Learnings from SafeWork NSW v Aceline Plumbing

4 minute read  11.02.2021 Trent Forno, Samantha Betzien, Harriet Smith, Naa Sackey

A recent prosecution of a person conducting a business or undertaking (PCBU) for failing to 'consult, co-operate and co-ordinate' with other duty holders has placed the spotlight on consultation obligations imposed on all duty holders under the harmonised work health and safety laws. These provisions require duty holders to talk to each other and share information about how work can be safely carried out.

Aceline engaged Easy Fall Guttering Pty Ltd (EFG) under a 'lead referral agreement' whereby non-licenced installers undertook work for EFG using Aceline's sole director's plumbing licence for a fee.

On 16 May 2017, Mr Hogan, an unlicensed sole trader working under this arrangement, fell off a two metre high makeshift platform at an EFG client's property. Mr Hogan had been attempting to lift a 7.5-metre-long steel gutter shell without assistance as he was the only worker on site. He suffered significant spinal injuries from the fall.

The sole director of Aceline, Mr Ayad, had spoken with Mr Hogan only once prior to the incident to enquire as to why the job was taking so long to complete. During this call, Mr Hogan advised Mr Ayad that the job was complicated and he was concerned about completing one of the sections safely. Mr Ayad did not provide Mr Hogan with any information or instruction about the hazards or risks relevant to the job or control measures that could be implemented to manage these risks.

Neither EFG nor Aceline notified SafeWork NSW. SafeWork NSW only became aware of the incident in August 2017 when Mr Hogan lodged a Request for Service.

Judge Strathdee's findings

Judge Strathdee found that Aceline failed to:

  • consult with EFG and Mr Hogan about the hazards and risk associated with installation of guttering at heights, particularly the risk of falls;
  • co-operate with EFG and Mr Hogan to implement control measures prior to the commencement of work, including the use of safety equipment and temporary platforms or mobile scaffolding; and
  • co-ordinate with EFG and Mr Hogan to arrange an additional worker to assist with installation of long lengths of guttering while working at heights.

Aceline did not undertake a risk assessment or visit the site as required by the lead referral agreement. Further, Mr Hogan was not provided with any instruction on working at heights, even after he raised safety concerns with both EFG and Aceline.

Judge Strathdee found it was 'glaringly obvious that this work was inherently dangerous' and it should not have been left to Mr Hogan to assess the hazards and risks.

The judge determined the appropriate fine for Aceline's consultation breach was $80,000 (maximum being $100,000), reduced by 25% for its guilty plea. Aceline was also fined $30,000 for failing to notify SafeWork NSW of the incident.

The importance of effective consultation

The decision highlights the importance effective consultation between parties and signals a renewed willingness on behalf of safety regulators to challenge PCBUs' compliance with these obligations.

Effective consultation in practice will look different depending on the system and nature of work being performed. Some examples include:

  • sharing of information at the start of a job about the nature of the risks and hazards at the site
  • regular meetings of all staff/parties ('toolbox talks');
  • establishment of health and safety committees;
  • election of health and safety representatives to consult with workers and management;
  • regular audits of workplaces/client sites for risks to work health and safety; and
  • setting expectations of each party's safety responsibilities in writing.

Organisations must be live to any areas within their business where responsibility for ensuring the safety of workers is shared with other entities. Common examples include tradespeople attending offices to perform maintenance work, labour-hire workers, and shared workspaces or sites. It is critical that the business has clear processes and systems in place to identify areas of shared responsibility and to proactively engage with other parties to ensure hazards and risks are effectively controlled. Where there are contractual arrangements in place between parties it can be a good idea to include the agreed consultation process in the contract so that everyone is clear about what is required of them. It is also sensible to include 'consultation with other duty holders' as a standard compliance measure in routine internal and external WHS audits.

Consultation and cooperation is an ongoing responsibility of all duty holders under the harmonised WHS laws. Further guidance is provided in the WHS Code of Practice, Work Health and Safety Consultation, Cooperation and Coordination (NSW, August 2019).

Please get in touch with a member of our Workplace team if you would like more information on anything we have discussed in this article.

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