First WHS conviction for failing to consult

In May this year, the South Australian Industrial Relations Court recorded the first conviction against a company for failing to comply with the duty to consult, cooperate and coordinate activities with other duty holders in relation to work health and safety matters.

In Boland v Trainee and Apprentice Placement Service Inc. [2016] SAIRC 14 (27 May 2016), a trainee and apprentice placement organisation, Trainee and Apprentice Placement Services Inc. (TAPS), was fined $12,000, a fraction of the potential maximum penalty of $100,000, for breach of consultation obligations under the Model Work Health and Safety (WHS) Act.

This is the first time that any Australian company has been convicted for breach of the duty to consult with other duty holders since the WHS legislation was enacted in most Australian states and territories.

Circumstances of the offence

TAPS is a not-for-profit organisation that places plumbing and roofing industry apprentices with host employers. Similar to some labour hire providers, TAPS directly employs the apprentices and undertakes to monitor and train the apprentices on behalf of host employers with the intention of securing the placement of more apprentices and trainees in the plumbing and roofing industries. At the time of the judgment, TAPS employed approximately 260 apprentices who were engaged with about 100 host employers.

In January 2014, an apprentice TAPS had placed with a roofing business suffered “horrific injuries” while working at a construction site when a section of guttering he was handling came into contact with power lines.

The apprentice was standing on scaffolding and being handed guttering by his supervisor (who was also the owner of the roofing business) from a lower level. Live power lines were located 4.1 metres from the top of the scaffolding on which he was standing and the guttering handed up to him was 7.7 metres long. The guttering came in contact with both a 240-volt and an 11,000-volt power line and the apprentice was electrocuted.

The evidence before the Court was that the power lines were in close proximity to the scaffolding and presented a real and present danger. Despite this, the roofing company that the apprentice was working for and the company in control of the site, Inspire Construction Services Pty Ltd (now in liquidation), had not put any safety measures in place to deal with this safety risk.

Obligation to consult

TAPS was prosecuted under section 46 of the Work Health and Safety Act 2012 (SA), a provision which is replicated in all other Australian states and territories that have adopted the model WHS legislation (ie, all states and territories other than Victoria and Western Australia). That provision states:

“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.” (Emphasis added.)

Interestingly, while other entities were charged with safety breaches after the incident, TAPS was the only entity to be prosecuted for breach of the consultation duty where the construction company in charge of the site had gone into liquidation.

The Industrial Magistrate found that TAPS had an awareness of WHS issues and undertook certain measures to comply with its WHS duties. For instance, its field officers visited each of its host employers’ sites every eight weeks.

However, the Court also found that TAPS had not engaged in a consultation process with the roofing company about its WHS policies and procedures and admitted that the JSA audit conducted on-site prior to the incident was inadequate. The Court accepted evidence there were no safety measures in place at the site, despite it being a high-risk environment.

Penalty

The Industrial Magistrate applied a significant reduction to the penalty imposed on TAPS for breach of section 46 because it had:

• no prior convictions;
• entered an early guilty plea;
• acted swiftly to comply with improvement notices;
• carried out a comprehensive revamp of its safety procedures;
• spent around $70,000 improving its safety systems to ensure that it complied with its duty to consult, cooperate and coordinate with its host employers in the future; and
• provided substantial ongoing support to the injured apprentice after the incident.

Turning attention to consultation

In the past there has been a tendency for companies to assume that the obligation to consult with other duty holders is a supplementary and less important WHS duty. The Court’s decision in this case should serve as a timely reminder that the consultation obligations in WHS legislation must not be overlooked. This decision is of particular importance to organisations responsible for placing workers with host employers or on client sites to perform their primary work as well as host employers of apprentices or other trainees.

Consultation with other duty holders should form a standard compliance measure in any engagement, placement or audit process. Failing to comply with consultation duties can lead to significant penalties and safety convictions recorded against the company.

Aside from statutory compliance, failing to consult with other parties may prevent an employer from obtaining all of the information required to make a proper assessment about safety. From a purely legal perspective, consultation with concurrent duty holders is essential to an employer being able to discharge its primary WHS obligations under WHS legislation, where these duties can never be entirely delegated to a third party. From a practical perspective, consultation is also critical to achieving optimal safety compliance by ensuring open communication with everyone involved in work so that all possible hazards and risks are identified and everyone can work together to find solutions. For this reason, consultation must involve not just those who manage and control the work, but also those who carry out or are affected by the work.

Ultimately, the aim of consultation with other duty holders is to:

• identify any gaps in safety compliance, for example, where there is an assumption that someone else is taking care of a health and safety matter;
• understand how your activities impact on health and safety, in particular whether they add to the hazards and risks to which others may be exposed;
• ensure that safety compliance actions are taken by the person in the best possible position; and
• ensure that actions taken to control risks are complementary.

Above image: Baker & McKenzie senior associate, Kellie-Ann McDade.

Top image credit: ©iStockphoto.com/©DNY59