The South Australian Industrial Relations Court has fined and convicted and fined a duty holder under the Work Health and Safety Act 2012 (SA) for its failure to consult, co-ordinate, and co-operate on matters of health and safety.1 This is the first instance of a successful prosecution of the consultation duty under the model Work Health and Safety laws (WHS). It should serve as a warning to all duty holders under WHS to ensure that they are, in fact, consulting with workers and other duty holders on matters of safety, particularly where workers are being placed into other workplaces.
Trainee and Apprentice Placement Service Inc (TAPS), a not-for-profit organisation, placed a worker with a roofing business, Shear Edge Roofing. The company in control of the site was Inspire Construction Services Pty Ltd.
On 15 January 2014, the TAPS worker suffered serious injuries at the Shear Edge Roofing worksite, after he was asked to manhold 7.7 metres of guttering and the guttering came into contact with an 11,000 volt powerline.
TAPS was prosecuted for a breach of section 46 of the Work Health and Safety Act 2012 (SA) (WHS Act). Section 46 provides that:
If more than one person has a duty in respect of the same matter under this act, each person with a 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.
In this case, the proximity of the powerlines on the site presented a real and present, and obvious, danger. There were also no safety measures in place on the site and TAPS admitted that the Job Safety Analysis audit was not adequately performed.
TAPS effectively acquired a “state of knowledge” as to the inadequacy of health and safety risk control measures at the site through the fact that a number of its own field officers attempted, but failed, to visit the site on multiple occasions. While the Court had sympathy for the difficulty TAPS faced in its attempts to verify compliance with WHS laws, it found that TAPS ultimately relied on Shear Edge Roofing and Inspire to “do the right thing” and TAP’s failure to visit the site became evidence of its failure to consult with Shear Edge Roofing and Inspire
The Court was particularly critical of the faith TAPS placed on the unseen safe systems of work that Inspire, as the company controlling the site, had purportedly adopted. In fact, the site had not adopted any safety measures, despite the work being undertaken in proximity to powerlines. The Court held that it was “surely not rocket science” for a duty holder to identify the present dangers posed by the powerlines, noting that this hazard could be clearly identified from photographs included in the prosecution brief.
In reaching its decision, the Court considered what TAPS had done following the incident to improve health and safety. Relevantly, TAPS had:
- supplemented and expanded upon its existing health and safety measures, including comprehensively revamping its safety procedures; and
- made efforts to improve its safety systems, with an increased focus on ensuring compliance with its duty to consult, cooperate and coordinate with its host employers.
TAPS’ early guilty plea resulted in a discount of 40% to the maximum penalty of $100,000. The court also noted that it was TAPS’ first offence and that it had cooperated with the investigation into the offence. The Court’s starting point for the penalty was therefore $20,000, which it reduced to $15,000 in light of these factors.
The other parties involved in the incident, including Inspire, were also charged with safety breaches.
This is the first prosecution for a breach of the consultation duties under the harmonised WHS laws. Although this case involved actual harm, the consultation duty does not rely on an accident to crystallise. As a positive duty, a simple failure to undertake consultation alone could expose a duty holder to enforcement action — which would be relatively straightforward to prove if no such steps have been taken.
This case also reinforces the nondelegable nature of WHS duties, even when control or management of a workplace has been largely ceded to a contractor or occupier of a site.
While this case focused on consultation between duty holders, it is likely that consultation more generally (e.g. with workers) will become a target for prosecutors in the future.2
Are you meeting your consultation duties?
The philosophy underpinning the consultation obligations in the model WHS laws is a belief that a safe workplace is more easily achieved when everyone involved in the work communicates with each other to identify hazards and select appropriate risk control measures. The obligations aim to ensure that duty holders share their respective knowledge about the nature of the work and the associated hazards in order to optimise the risk control processes.
The duties also assume that if workers are actively engaged in reflecting on their own sense of safety, then there will be a greater chance that risk control measures will be adhered to and workers will exercise greater care as a result.
The extent of consultation required will depend on the risk profile of the workplace in which multiple duty holders are located or where workers are exposed to hazards. The duty is constrained insofar as a duty holder must consult to an extent that is reasonably practicable, which incorporates the degree of risk as a consideration.
Safe Work Australia has developed a model Code of Practice that illustrates the standard of consultation required by duty holders and provides examples of consultation in practice.3
Labour hire providers in particular must ensure that they pro-actively engage with the site managers at the locations where they place their workers, and capture this process as evidence of compliance with their consultation duties. The decision in Boland v TAPS makes it clear that it is not enough to simply assume that if a worksite or worker was safe at one point in time that they will continue to be so.
The good news is that you are probably already undertaking a significant amount of consultation through the manner in which you interact with both your workers and other WHS duty holders. The question is, are you documenting that consultation and, more critically, are you checking for gaps in the scope of your consultation?
Bottom line for WHS duty holders
- WHS duty holders must clearly specify safety consultation as a key requirement in their contractor management procedures and procurement processes. In particular, labour hire companies and other businesses that place workers in workplaces over which control or management is primarily held by another duty holder must consult with that other duty holder to ensure that its workers are adequately protected.
- The best approach for any duty holder is to apply the rule of “a little and often” and integrate consultative actions into existing activities, such as during toolbox talks, as part of project scoping, during induction, and as new activities are implemented in a workplace.
- WHS duty holders need to expressly outline safety consultation as a key requirement in their contractor management procedures and procurement processes.
- The best approach for any duty holder is to apply the rule of “a little and often” and integrate consultative actions into existing activities