First WHS conviction for PCBU not consulting with other PCBUs

In May 2016 a PCBU was prosecuted and convicted for not consulting with other PCBUs – Section 46 of the WHS Act 2011. It is the duty of a PCBU to consult other PCBUs as well as their own workers on WHS matters. WHS duties are non-delegable. This means a duty holder cannot transfer or subcontract their legal liability to another party. Even if the task is delegated, the original party remains responsible for ensuring it is performed correctly.

This is the first prosecution and conviction of a PCBU under Section 46 of the Model WHS Laws since they were enacted in 2011.

The Court Case

In Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 Trainee and Apprentice Placement Service Inc was charged under Section 46 of the WHS Act (South Australia) for failing to, so far as was reasonably practicable, consult, cooperate and coordinate activities with other duty holders, including the host employer “Joseph Cameron Argent trading as Shear Edge Roofing.” The PCBU in this case is a not-for-profit organisation that procures and places people to host employers as trainees and apprentices.

In this matter, the defendant, being Trainee and Apprentice Placement Service Inc had placed the worker into a job at the Host Employer and under the Host Employer’s supervision. Inspire Construction Services Pty Ltd (in liquidation) controlled the site. In performing the job, the worker sustained multiple serious injuries when the guttering that the Host Employer had instructed him to handle came into contact with high voltage wires.

The court found that Trainee and Apprentice Placement Service Inc failed to consult with Joseph Cameron Argent when it failed to ensure that:

• Argent or the principal contractor had performed an adequate hazard identification and risk assessment process for the site;

• Argent was providing and maintaining, so far as was reasonably practicable, safe systems of work and a written safe work method statement for high-risk tasks;

• Argent was providing and maintaining, so far as was reasonably practicable, a work environment without risks to the workers' health and safety; and

• the training and supervision that Argent provided to the worker was adequate and effective, and related to high-risk tasks performed at the site.

The judge commented that 'it was surely not rocket science than an employer and also the person in control, or the company in control of the site ... could have seen, as I can see from the photographs, that the powerlines presented a real and present danger'.

The organisation was fined $70,000.

Do you need to consult with other PCBUs?

Understanding where your organisation's WHS duties overlap with third parties is key to limiting WHS risks. Since this initial case there have been further instances of Improvement Notices being issued to PCBUs for not consulting with other PCBUs.

Part 5 of the Code of Practice: WHS Consultation, Co-operation, and Co-ordination provides excellent guidance on that question and what to do about it in your workplace.

The examples in Appendix C of the Code (Page 24) are instances where a PCBU must consult with another PCBU on WHS matters:

1. A company leasing premises in a multi-tenanted office block

2. A manufacturing company hiring on-hire workers from an on-hire firm

3. A local council running a street festival together with a large community organisation.

An approved code of practice is a practical guide to achieving the standards of health, safety and welfare required under the WHS Act 2011 and the WHS Regulation 2017

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066

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