The South Australian Industrial Relations Court in the matter of Boland v Trainee and Apprentice Placement Service Inc. [2016] SAIRC 14 has handed down the first conviction under the model work health and safety laws for a failure by a duty holder to consult with another duty holder.

Section 46 of the Work Health & Safety Act (the Act) provides that:

If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.

The maximum penalty for a breach of this provision is $20,000 for an individual or in the case of a corporation, $100,000.

In this case a labour hire business that specialised in providing apprentice tradesmen sent a worker to perform duties with a roofing contractor. The worker was standing on scaffolding and was being passed a piece of guttering over 7 metres in length. Whilst handling the guttering it clipped a power line electrocuting the worker.

The Industrial Magistrate noted that there was no safety measures on site. He said that it was “surely not rocket science” that an employer and the roofing contractor which was in control of the site would not have seen that the powerlines presented a real and present danger.

The Industrial Magistrate noted that the labour hire business placed apprentices with approximately 100 host employers. It had three field officers who attempted to attend various sites every 8 weeks. He noted that it was a difficult job and reliance must have been placed on the host employers to do the right thing however that did not absolve the labour hire operator from its duty to consult under the Act.

The Industrial Magistrate convicted and sentenced the labour hire business to a fine of $20,000 reduced by 40% taking into account the extensive steps it put in place to improve its work health and safety procedures. He also noted the contrition of the labour hire business and the support that was provided to the worker after the incident.

This case is a major alert for all businesses in the labour hire industry and elsewhere including most contractors to ensure that they have in place systems for consulting with host employers prior to lending their workers on hire. These systems should be reflected in contractually enforceable obligations upon all stakeholders to consult on work health and safety matters in such a manner that is consistent with their statutory obligations.

The decision notes the challenges faced by labour hire businesses particularly when dealing with small clients where work may only be done on a site for a short period of time. Nonetheless, before allowing workers to be lent on hire, a labour hire business must ensure that it has consulted with the host employer with respects to the safety procedures that they have in place and to the extent they are deficient, must ensure that procedures are put in place before their employees are sent out to a site. The procedures should be reflected in standard terms of business. Attention to detail should be given to the work health and safety systems with regards to the particular industry in which the host operates and the work that will be performed to ensure that the systems are adequate. A mere box ticking exercise will not to suffice in order to discharge the labour hire business’s duty to consult under the Act.