WHS: Not just an employer/employee obligation

Many businesses still identify the work health and safety obligation as an employer/employee obligation. Certainly, since almost all prosecutions are against employers that failed to ensure an employee’s safety, such a view is not unreasonable.

However, a new decision from the New South Wales District Court is a timely reminder that work health and safety is not just an employer/employee obligation and that employers (as persons who undertake a business) owe a much wider obligation.

The Work Health and Safety Act 2011 (WHS Act) broadens what was might once have been an employer obligation to its employees, to a broader focus on how a business conducts its operations. Employers, as business operators, must ensure the work health and safety of all persons who may be affected by those operations – so far as is reasonably practicable.

Since the safety obligation is not just an employer/employee obligation, multiple businesses may share the same safety obligation in relation to particular work activities. These multiple obligation holders are subject to an express obligation to consult with one another on the risk management steps necessary to ensure safety.

In this recent New South Wales Court decision (and most Australian States apply uniform safety legislation as was applied in this decision) a principal contractor on a construction site was fined $180,000 (along with the worker’s employer) on the basis that the principal contractor was co-responsible for the worker’s safety.

That is, two businesses – employer and contractor – sharing the same safety obligation were fined over the one safety incident.

Background

J&CG Constructions Pty Ltd was the principal contractor on a construction site. Orbit Formwork Pty Ltd was a subcontractor undertaking work on the site. Orbit’s employee was working on the second level of the construction and fell over an unprotected edge. There was a 1.2-metre gap on this second level between the building and the adjacent scaffolding.

Orbit’s supervisor had twice raised concerns with J&CG about the incomplete scaffolding at the site. About 10 days before the incident, Orbit’s supervisor reported to both Orbit’s director and to J&CG’s project and site managers that the recently completed scaffolding was missing parts and identified the 1.2-metre gap on the second level as a safety risk.

J&CG managed and organised the scaffolding, and it was J&CG that could direct the scaffolders (or indeed engage other scaffolders if necessary) to rectify the problem.

Despite identifying the risk however, both Orbit and J&CG allowed work to continue.

An Orbit formwork labourer was working on the second level when he fell 6 metres off the exposed edge (at the identified gap). The worker sustained major injuries and was ultimately unable to return his pre-injury job.

J&CG pleaded guilty to breaches of the New South Wales WHS Act, including the duty as a PCBU to ensure safety for its workers and for exposing the worker to the risk of death or serious injury.

The decision

In its decision, the Court held that once the scaffolding gap was identified, both J&CG and Orbit should have prohibited work in the area until the risk of a fall from height was controlled. Instead, both entities failed to stop workers working near the gap. Specifically, J&CG failed to impose an exclusion zone or barricades to prevent access to the area.

J&CG’s assertion that it could not “force the scaffolding company to come back and rectify the defect” was given short shrift . The court held that if that was the case, the obligation was to engage a new scaffolding contractor to come and rectify the issue in order to manage the risk of falls.

Further, there wasn’t any evidence that J&CG perform its own risk assessment regarding the risk of falls at the site and didn’t assess whether Orbit had or was complying with its own safe work method statement. So, once Orbit raised the concern about the dangerous scaffolding (which it did on at least 2 occasions) J&CG (while not the employer) was as culpable as Orbit over the incident.

The court fined J&CG $180,000 (which included a 25% reduction for its early guilty plea. It was ordered it to pay $48,000 in costs.

Lessons for businesses

1. Businesses must rid themselves of a mindset that their obligation for safety is limited to its employees. The safety obligation extends to workers and others who undertake work for the business or undertaking or who are affected by the manner in which the business is conducted.
2. Businesses must recognise that they cannot delegate safety to other employers, contractors, or business that undertaking work for them.  Those other businesses and their employees are your obligation.
3. Businesses that share a safety obligation in relation to work, for example a principal and a sub-contractor, must ensure that they share an organised, definite consultation process together.  That way, the businesses can determine, jointly, how safety will be managed.  Remember, consultation is a two-way discussion, with input from all the participants.
4. If a safety risk is identified, businesses that have a safety obligation in relation to the risk, must take steps to ensure that the safety risk is managed and eliminated (or minimised). Don’t ignore an identified risk and just leave it to someone else to manage it.
5. Businesses must be willing to stop work until work can be conducted safely. Sub-contractors must be willing to cease work until a principal contractor (with the management and control of a workplace) has taken steps to ensure that the workplace is free of risk to safety.
6. Finally, businesses ensure that those entities with which they are working and with which they share a safety obligation, not only have appropriate safe work method processes, but must monitor and review that the safe work method processes are actually being undertaken and met.

Queries

If you are unsure about your safety obligations or whether you share a safety obligation with another business, please contact a member of our Employment, Workplace Relations & Safety team.  Never leave safety to chance or good luck.

Disclaimer

This information and contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders and is for reference purposes only.  It does not constitute legal or financial advice.  If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.