In confirmation that you don’t lose your safety obligations and responsibilities when you send your employees to secondments, labour hire or other arrangements, the New South Wales District Court found a PCBU owed its employees a duty to ensure that measures to eliminate safety risks were put in place by a second company before sending its workers to the site.
Phong Warehouse and Distributor Pty Ltd pled guilty to breaching section 32 of the Work Health and Safety Act 2011 after failing to comply, as far as reasonably practicable, with the health and safety duties imposed upon it as a PCBU. Phong, was contracted by Williams Pressing & Packaging Services to provide workers for its warehouse. In the performance of that work, an employee was seriously injured after a forklift reversed over her feet.
The Court found Phong had failed to eliminate or minimise the risks to the health and safety of its employees through failing to:
- conduct a risk assessment;
- implement a safe work procedure to identify and eliminate risks;
- develop and implement a traffic management plan;
- install items such as physical barricades, pedestrian walkways and mirrors to enhance safety in the workplace;
- ensure all workers were trained in workplace safety and informed of risks in a language they could understand; and
- ensure proper supervision of the workers.
Significantly, the Court found that Phong failed to ensure that the above measures were similarly executed by Williams. It held that Phong’s obligations to the workers could not be delegated to Williams. Considering mitigating factors such as the employer’s guilty plea and capacity to make the payment, the Court fined it $40,000 with a 25% discount, plus $18,000 in prosecutor’s costs.
A PCBU’s work health and safety duties are not delegable. PCBUs still owe health and safety duties to workers even if the PCBU is not the employer of the worker, or the PCBU’s worker is not working at a workplace over which the PCBU has management and control. A PCBU must ensure all reasonable steps are taken to eliminate (or alternatively, minimise) any risks to the health and safety of workers in the workplace including:
- conducting appropriate risk assessments;
- implementing effective safe work procedures; and
- ensuring all workers are appropriately trained and informed of proper workplace safety behaviours.
Author: Charles Watson