The recent successful prosecution of a labour hire company in South Australia is a reminder to all organisations that WHS obligations are personal and cannot be delegated. In particular, the WHS obligations of labour hire businesses continue to apply even after their workers are placed with host companies.

Big Mars Pty Ltd (Big Mars) was fined $240,000 by the Magistrates Court of South Australia in March this year when a worker was severely burnt when he fell into a heated bath of sodium hydroxide.

The labour hire company was engaged by a host company, to supply labour for its abattoir and meat processing business.

Before the worker started work at the host company, Big Mars failed to ensure that:

  • the worker received training or instructions in relation to how to safely perform his duties; 
  • the worker would have adequate supervision while performing his duties; and
  • a detailed risk assessment/analysis of the abattoir was completed.

The steps above were not taken despite the fact that Big Mars had placed more than 40 workers at the host company's premises. 

While at the host company's premises, the worker was:

  • given written work instructions in English, and told to translate them into a language he could understand in his own time – the worker has limited understanding of English (although even if the instructions had been translated, it was missing key safety instructions in relation to the recent addition of a gate around the bath);
  • not told that he would be working near a bath containing a solution of sodium hydroxide;
  • not give any instructions about what to do if he came into contact with the liquid in the bath; and
  • permitted to continuously adopt an unsafe work method in full view of his supervisor.

The worker suffered serious injuries after falling into the bath – made worse by the fact that he had not received any training in relation to what he should do should he come into contact with the liquid.

The Court found that Big Mars had 'failed miserably to carry out any of its fundamental safety responsibilities' and that such a failure warranted the imposition of a severe penalty.

What does this mean for your organisation?

  • Your organisation's WHS obligations are non-delegable under WHS legislation – even if there are multiple PCBUs that share the same WHS obligation. The extent to which you are required to discharge those obligations may vary depending on the level of control you have over your workers or the work being performed. 
  • Labour hire businesses can take a number of steps to ensure they comply with their WHS obligations to their workers, including: 
    • requesting host companies to provide them with information in relation to hazards and risks at their workplaces;
    • requesting copies of any safe operating procedures, safe work method statements and any other written safety instructions from the host employer and ensuring their workers are given copies;
    • performing risk assessments before placing any workers at host companies (this does not have to be done with every placement, but should be performed whenever a new host company engages your services, or where an existing host company requires your workers to attend a new workplace);
    • regularly reviewing whether the level of training and supervision provided by the host company is adequate.
  • All organisations should ensure any mechanical or engineering changes made to machinery be reflected in safe operating procedures immediately after the change. Training should also be provided to workers in relation to the change.
  • Consider any language barriers within your workforce when assessing, controlling and communicating WHS risks.