A recent Safework SA prosecution highlighted the need for labour-hire companies, and for businesses using labour-hire companies, to understand dual safety responsibilities.
Death of a worker in April 2020 leads to huge fines for labour-hire company after a 29-year-old man received fatal head injuries while working at a quarry.
The worker entered a cavity in a rock-crushing machine to remove a blockage, which when released, caused components of the machine to move with significant force, striking the worker in the head and causing his death.
A SafeWork SA investigation found the worker’s host employer had not conducted a risk assessment or created a safe work procedure for the task and, as a result, the worker was not provided with adequate training to safely remove blockages. The investigation also found that as this risk was identifiable and foreseeable, the host employer had breached their obligation to prevent such an event from occurring.
As the worker was a labour-hire employee, SafeWork SA prosecuted both the host employer and the labour-hire company in the South Australian Employment Tribunal (SAET).
The labour-hire company was found to have failed to adequately consult, coordinate and cooperate with the host employer to ensure their employee was protected from hazards and risks. The SAET fined the labour-hire company $40,000 (reduced to $24,000 after a 40% discount for an early guilty plea) plus legal costs.
As for the host employer, the SAET found they failed to provide and maintain, as far as reasonably practicable, safe work systems for any and all tasks completed by employees, and they did not perform appropriate hazard identification and risk assessments for this particular task. Further, the SAET stated the employer should have provided training, supervision and instruction to all persons at risk. The host employer was fined $650,000 (reduced to $455,000 after a 30% reduction for an early guilty plea) plus legal fees.
This case is an important reminder to regularly review, identify and eliminate risks to as low as reasonably practicable[KC(S1] . Further, labour-hire companies and host employers have significant WHS obligations.
The South Australian Business Chamber can deliver training that unpacks dual responsibilities and provide the tools and skills to ensure staff managing the relationships are equipped to do so. Enquire today about how we can assist your business.
The SA State Government is bringing in new laws that would see industrial manslaughter introduced to the WHS Act – it was a pre-election promise and given the numbers in the Upper House, in all likelihood, the change will go through.
After reviewing the government’s draft bill, the South Australian Business Chamber, like many other employer representative organisations, stated that this new law is superfluous given that industrial manslaughter can (and has been) successfully prosecuted via the existing Criminal Law Consolidation Act 1935. Recognising the government’s power in parliament, however, we took a conciliatory approach, recommending a range of amendments to the bill to ensure that only the most egregious of cases will lead to prosecution.
No one ever wants to see anyone injured, or worse killed, in the course of their work. The South Australian Business Chamber will continue to work closely with the government to ensure you are best equipped with the right advice to keep your workplace safe.
If you need assistance with how to improve work, health and safety in your business, either through training or a one-on-one WHS consultation, contact us today.
