Given that October is National Safe Work Month, we thought it might be timely to look at what’s new in Work, Health and Safety.
Duty to public at large
The recent case of Boland v Safe is Safe Pty Ltd & Munro  SAIRC 17 has confirmed that section 19(2) of the Work, Health and Safety Act (“WHS Act”) imposes a duty to protect the public at large from the risks associated with work that has been undertaken by South Australian businesses and undertakings (“PCBUs”).
Health and safety duties are not limited to the time and location when the work was originally performed. Rather, these duties extend as far as the reach of adverse health and safety consequences of work undertaken by a PCBU.
This was demonstrated in the case of Safe is Safe when the company responsible for conducting a safety audit on an amusement ride was held liable for risk posed to a member of the public riding the equipment at the Adelaide Show some 12 days later.
The nature of health and safety duties vary, depending on who is at work and what they are doing.
Defining the duty
If a PCBU conducts a number of activities, such as running a cattle station and entering into a joint venture to manufacture farm equipment with another PCBU, its WHS duties will vary depending on what activities and roles are being undertaken.
The WHS Act requires an analysis of each PCBU’s role with respect to each work activity to determine the scope of WHS duties in each instance. Relevant to this assessment is:
- Defining the precise nature of each PCBU’s undertaking;
- The amount of control that each PCBU exercises over the work activity;
- Levels of expertise of the various PCBUs involved in the venture; and
- The terms on which the PCBUs have agreed to work together.
Get it “write”
When working with another PCBU it’s important to know that the terms of any contract or informal arrangement will be ineffective if they seek to reduce or transfer a PCBU’s WHS duty under the Act. Terms of agreement between collaborating PCBUs are essential in ensuring that all WHS risks associated with a venture are adequately addressed, with proof of those efforts captured in writing.
Just because your joint venture partner owes a particular WHS duty doesn’t mean that you don’t; more than one person can have the same duty concurrently. Each duty holder must discharge the person’s duty to the extent to which they have the capacity to influence and control the matter. Consultation and co-operation between multiple duty holders is vital.
Consultation and co-operation
In Boland v Trainee & Apprentice Placement Service Inc  SAIRC 14, the employer of a trainee was convicted for breach of its duty to co-operate when it had conducted an inadequate safety audit on the site where the worker was located under the day to day guidance of a third party.
There were no safety measures in place on the site and the worker suffered horrific injuries as a result of electrocution. The employer had field officers who audited host employer sites, and the Court acknowledged that there was a necessary reliance upon those on site ‘doing the right thing’. Nevertheless, the duty remained to consult with other duty holders about addressing risks to safety.