Judge emphasizes WHS duties are non-delegable
Weekly WHS Article 8th February 2024
Non-delegable duties are legal obligations that cannot be transferred to another party. Even if the task is delegated, the original party remains responsible for ensuring it is performed correctly. This concept is often used to impose liability on one person for the negligence of another to whom they have entrusted a task.
Under WHS law, health and safety duties are non-delegable and cannot be transferred or subcontracted out as per Sections 14 and 272 of the WHS Act 2011.
Two companies faced a combined penalty of $532,000 following multiple worker injuries caused by falling objects at a construction site.
L&N Properties Pty Ltd, the primary contractor, and Think Tank Building Solutions Pty Ltd, the engaged project manager for the removal and replacement of external cladding, were fined due to inadequate safety measures on site. A piece of scaffold dropped from four stories above, exposing workers due to the absence of impact protection. The scaffold struck a glass atrium roof, resulting in a worker's fall from approximately 4.4 meters, and simultaneously injured a courier on the ground level with large glass shards.
The investigation revealed that the site supervisor, responsible for overseeing the site and ensuring work health and safety (WHS) compliance, lacked formal training. Furthermore, the second PCBU, tasked with scaffold removal, relied on the inexperienced site supervisor of the principal contractor to manage the exclusion zone they were working above.
In assessing Think Tank Building Solutions' culpability, the judge questioned the rationale behind the project manager's belief that others on-site could adequately oversee or manage the project. The defendant, responsible for coordinating scaffold removal and engaging in discussions about the exclusion zone with Mr. Faulkner, asserted in written submissions that Mr. Faulkner and Mr. Aghakhani would be overseeing the exclusion zone. However, it is evident that they did not fulfill this responsibility.
The judge emphasized that the duty is non-delegable, and the defendant unmistakably violated it by relying on others to supervise or manage the project.
L & N Properties Pty Ltd, was charged with a breach of section 32/19(1) and 32/19(2) of the Work Health and Safety Act 2011. On 23 November 2023, they were convicted by the District Court and fined $50,000 for each offence instead of the original $390,000 fine, due to L&N Properties pleading "poor."
Think Tank Building Solutions were charged on 1 December 2023 and ordered to pay $216,000 + Costs. They were not able to plead poor, unlike L&N Properties.
So why did it go this way?
WHS legislation is sequential
As we know, the WHS Act is the primary legal instrument applicable to all businesses, companies, and organisations for managing the health and safety of staff and interacting with other businesses and their staff when involved in business with another party such as a subcontractor.
The Parts and sections of the WHS Act are sequential.
The Act starts with the basics: identifying who are duty holders and what are their duties. A governing principle on how WHS duty holders approach dealing with health and safety issues and challenges is the idea that the actions taken must be consciously “reasonably practicable.” Courts of laws always view cases on what actions were taken (or not taken) and were those “reasonably practicable.”
In the above case, both the primary contractor and subcontractor for the specific work are each business entities and share common responsibilities and duties under the WHS Act.
They have responsibilities to their own workers and to each other as businesses operating in the same location.
Primary duty of care
All business entities must provide a health and safety management system as the first step. This is “Primary duty of care” as described in Section 19 of the WHS Act.
In the above case it was discovered that the site supervisor lacked “formal training.” As part of the primary duty of any business, the business must provide information, instruction, training and supervision to all staff for them to be able to perform their jobs safely. A supervisor must know how to supervise staff and ensure that they follow the safety protocols in place. They must be trained.
The sub-contractor responsible for the scaffolding made the mistake of relying on the primary contractor’s unqualified supervisor to manage the exclusion zone, therefore not only was the primary contractor in breach but so was the sub-contractor for the same reason: failing to provide safe systems of work as far as is “reasonably practicable.”
Employing a supervisor who actually knew how to supervise is proof of “reasonably practicable” adherence to Section 19 of the WHS Act, regarding primary duty of care.
WHS duties are non-delegable
Section 14 of the WHS Act states that WHS duties are not transferrable (to other staff.)
For example, under Section 27 of the Act there are 13 defined actions that company directors and business owners must demonstrate on an ongoing basis as part of their duty as officers. They are to "... ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking…” A director, or CEO cannot relinquish any of these actions to someone else and hold them responsible for them.
In addition to Section 14 of the Act, Section 272 of the WHS Act states that WHS duties cannot be subcontracted out.
Section 14 applies internally.
Section 272 applies externally.
Conclusions
In this court case, the subcontractor’s ignorance of his company’s duty to properly manage their own activities and primary duty of care was evidenced by the attempt to “pass the buck” by saying “someone else” was responsible for the actions that lead to the accident. But the persons he was referring to were staff of the primary contractor.
The judge reiterated what it says in these two sections of the WHS Act by pointing out to the accused that duties are non-delegable.
Both PCBUs were responsible, and both failed their responsibilities for more reasons than one.
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.
8th February 2024
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