The Importance of Workplace Consultation

A labour hire provider in NSW was recently ordered to pay a fine of $82,500 after one of its workers sustained injuries at a client's worksite. This article contains a summary of the case, including a summary of the duties owed by employers to their workers under the WHS Act. The case highlights the need for employers to work closely with workers, clients and other duty holders under the WHS Act to eliminate or respond to workplace risks. 

An Employer's Legal Obligation

Do you know what your obligations are as an employer to protect the health and safety of your workers? Employers must be well-versed in their legal obligations to foster fair and lawful employment practices, protect workers’ rights, avoid legal issues, and maintain a legally compliant operation.

An employer is required under section 19 of the WHS Act to ensure the health and safety of their workers and others exposed to the work carried out by the employer. 

What will a court consider when determining an employer has taken all reasonably practicable steps to discharge the duty of care:

• the likelihood of a hazard or risk occurring

• the degree of harm that may result from that hazard or risk occurring

• what an employer knows, or should know about the hazard or risk identified, and the ways of eliminating or minimising that risk

• the availability and suitability of ways to eliminate or minimise the risks identified

• whether the costs associated with eliminating or minimising the identified risks are disproportionate to the identified risks

Eliminating risk to your workers should always be your initial goal as an employer before considering minimising or managing risks, including using personal protection equipment. 

The maximum penalty for failing to comply with a health and safety duty (including under section 19 of the WHS Act) under section 33 of the WHS Act is $588,450. This is a Category 3 offence relevant to less serious offences that do not expose workers to risk of death or serious injury.

Recent Case: Labour Hire, HLH Fined $85,200

HLH NSW Pty Ltd (HLH) supplied temporary labourers and tradespeople in the construction industry. A longstanding client, Harbour City Roofing (HCR), engaged HLH to provide general labourers to carry out work at HCR’s worksite. HLH employed Mr Spillane (the worker) and assigned him to HCR’s site on the same date.

When performing his duties, the worker fell from a height at the worksite and suffered injuries.

After pleading guilty to a Category 3 offence HLH was fined $110,000. The Court concluded that HLH’s conduct was objectively serious because its workers were exposed to a risk of death, and the steps it could have taken, including consultation with the worker and HCR, to manage this risk were relatively simple.  However, the Court acknowledged that the COVID-19 pandemic hindered HLH’s ability to meet workers and conduct site visits, and that HLH had informed HCR that its workers were not qualified to work at heights. 

The Court reduced HLH’s fine to $85,200 after recognising its lack of prior convictions, the remedial measures it took after the incident, its early guilty plea and its significant cooperation with SafeWork NSW. 

Key Takeaways for Employers

Employers need to remember that health and safety duties cannot be delegated.  

Employers such as labour hire providers are required to work closely with workers, clients, and other duty holders in identifying and eliminating/mitigating/managing health and safety risks that may arise in the workplace.  Labour hire providers are expected to maintain contact with assigned workers, and to conduct worksite visits before and during a worker’s placement to ensure health and safety risks are appropriately managed at the worksite.  Labour hire providers should ensure their WHS policies and procedures are enforced and that clients are often reminded of critical contractual obligations, such as the need to obtain permission on each occasion before the nature of a worker’s assignment is varied.

Holman Webb Lawyers bring a depth of legal knowledge and experience crucial for employers and employees to navigate the complex legal landscape of workplace relations. Our guidance helps prevent legal issues, protect the rights of both employers and employees and contribute to a safe and legally compliant work environment.

If you have any questions about this article or need assistance reviewing employment agreements, please do not hesitate to contact Robin Young or Daniel Iminjan from our Workplace Relations team.