13 Apr 2010

The three OH&S Cs: Consult, co-operate and co-ordinate with other duty-holders

by Joe Catanzariti

Contractors' and other employers' approach to the provision of a safe workplace cannot be implemented in isolation from the context of their work environment. Employers must acknowledge the existence of other contractors in co-operating and co-ordinating efforts to implement a safe work environment and assess site specific risk.

A recent decision in the Industrial Court of New South Wales where three contractors were each fined $120,000 for the death of an employee highlights the need for contractors on multidisciplinary worksites to focus on communication and co-ordination in risk assessment and in the implementation of safety policies and procedures. The Court recognised that these contractors had good internal communication, however their general discussions fell short of what was necessary to discharge their obligations under the Occupation Health and Safety Act 2000 to ensure the health, safety and welfare of employees.

The three contractors - Eagle Eye Traffic Services Aust Pty Ltd, Nace Civil Engineering Pty Limited, and Borthwick & Pengilly Asphalts Pty Ltd - were involved in a joint project to resurface a road that required work to be undertaken at night. The employee was wearing reflective clothing, carrying a wand and two-way radio and the truck had reversing alarms and flashing lights. General discussions had occurred between the subcontractors about the tasks that were going to take place on site. However, a failure to identify the "obvious risk" of vehicle/mobile plant resulted in the fatal injury of the employee after he was struck by a reversing truck. The Court found roadwork to be "inherently dangerous and sites must be rigorously assessed".

Justice Kavanagh held that a failure of the contractors to identify specific risks and communicate them resulted in an absence of a co-ordinated safety plan contributed significantly to the fatality. Each party was responsible for identifying risk involved in the work site. Co-ordination was identified as "a priority on sites with multi-subcontractors." There was a complete failure by the contractors to develop a safety plan in relation to vehicle/mobile plant and pedestrian movements within the site. This resulted in employees on the site being inadequately trained and instructed.

What does this mean for employers?

The importance of consulting, co-operating and co-ordinating with other duty holders cannot be ignored. Employers must ensure that adequate communication processes are implemented and maintained in relation to occupational health and safety matters.

There will be a legislative requirement of duty-holders to consult, co-operate, and co-ordinate with each under the harmonised OHS Acts, commencingon 1 Jan 2012. Clause 45 of the model provision states:

"If more than one person has a duty in respect of the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. Significant penalties have been attached to this obligation; $20 000 for an individual and $100 000 for a body corporate."

This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

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