Introduction

It is no secret that risks in a workplace are multiplied when different parties working together in a workplace fail to develop effective safety communication processes. This fact is recognised by the express duty to consult with other duty holders in section of 46 of the Model WHS Law.

Two recent prosecutions arising out a fall from a scaffold (Inspector Estreich v Sangari [2012] NSWIRComm 37; and Inspector Estreich v Sidaoui [2012] NSWIRComm 38) illustrate the tragic consequences of a failure of communication when it comes to work safety, and also illustrate that the steps necessary to enable “reasonably practicable” communication to occur need not be complex or expensive.

The facts

In 2009, GEC Consulting Group Pty Ltd (GEC) was engaged by TAFE NSW to undertake construction work at the TAFE Western Institute, Castle Hill College. Mr Sangari was the sole director of GEC, had overall responsibility for operation of the company, and was in charge of the construction site. GEC engaged Wallywood Carpentry and Joinery (Wallywood) (which was a business carried on by Mr Sidaoui) to undertake construction work at the site.

On 30 April 2009, Mr Sidaoui and his employee Mr Yassine were on site undertaking guttering work from scaffolding (approximately four metres above ground level). Mr Yassine took a coffee break and Mr Sidaoui left the site to purchase some additional piping.

Prior to the resumption of work, Mr Sangari (who believed that Wallywood had completed the works) began removing sections and dismantling the scaffolding. After removing parts of the scaffold, Mr Sangari left the site without informing Mr Yassine and Mr Sidaoui that he had partly dismantled the scaffolding and that it was unsafe for use. The scaffolding was not danger tagged nor was there any notice attached prohibiting use of the scaffolding because of its unsafe state.

After Mr Sangari left the site, Mr Yassine and Mr Sidaoui resumed work and climbed the scaffolding to complete the works. Mr Yassine fell off the end of the scaffold and suffered serious injuries, namely, spinal injuries, and a closed head injury, resulting in Mr Yassine becoming paralysed from the chest down.

The result

Mr Sangari’s actions in partially dismantling the scaffold, and in failing to communicate that the scaffold was unsafe, meant that he was found guilty of breaching s 8(2) of the Occupational Health and Safety Act 2000 (NSW) (OHS Act) and fined $22,500, plus costs.

Mr Sidaoui’s failure to inspect the scaffold and to observe that the scaffold was unsafe meant that he was found guilty of breaching s 8(1) of the OHS Act and fined $10,000 plus costs.

How would the current Work Health and Safety Act 2011 apply to these circumstances?

Under the Work Health and Safety Act 2011 (WHS Act) there are 2 consultation duties:

  • Vertical – that is the requirement to consult with workers who carry out work for the business or undertaking or who are, or are likely to be directly affected by a matter relating to work, health or safety; and

Click here to see diagram

  • Horizontal – that is the requirement for one person to consult, co-operate and co-ordinate with others who have a duty in relation to the same matter.

Click here to see diagram

The penalties

The maximum penalty for failing to consult (vertically or horizontally), in the case of an individual is $20,000, or in the case of a body corporate $100,000. Notably, this is on top of any other penalties which the individual or corporation may incur (such as for a breach of s19 of the WHS Act). Equally, a penalty can be imposed for a failure to consult even if there is no other breach of the WHS Act.

The application to the case?

On the facts of the cases described above, GEC, Wallywood, Mr Sangari and Mr Sidaoui failed to fulfil their consultation obligations in relation to the construction, use and dismantling of the scaffolding.

The failure to consult could potentially have incurred significant further penalties. Reasonably practicable measures, such as open communication between the parties, site scheduling and standard tag out procedures which should have been present were not.

Lessons for PCBUs

For a detailed consideration of Consultation issues, see Horizontal and Vertical Consultation, the latest book in the Due Diligence series by Michael Tooma (published by CCH).

  • Consultation, co-ordination and cooperation have always been important parts of managing safety.  However the express obligations in section 46 of the WHS Act mean that PCBUs should review both their consultation processes, and the way that those processes are documented.
  • Particular care will be required in consultation processes involving PCBUs with differing degrees of safety expertise, so that an otherwise robust process is not compromised because of one weak link in a chain.
  • The greatest danger in a consultation process is to ignore a risk on the basis that the risk is “someone else’s problem”.  Effective consultation requires identifying that risks in a workplace are the problem of everyone in that workplace, and devising a program for eliminating or managing those risks that protects everyone in the workplace.