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jurisdictions. The duty is not based on the employment relationship (where a duty is owed by
an employer to an employee with limited duties for an employee to act in respect of their own
safety and the safety of other employees). Instead, the duty is owed by a person conducting
a business or undertaking (PCBU) 4 to workers engaged or caused to be engaged by the
person and to workers whose activities are influenced or directed by the person. Workers is
a term which encompasses a class far more broadly defined 5 than the notion of an employee
at common law.
The primary duty of care is set out at clause 19 of the WHS Act. It requires duty holders to
ensure that, so far as is reasonably practicable, the health and safety of workers engaged or
caused to be engaged by the person and workers whose activities are influenced or directed
by the PCBU are not put at risk. This duty includes the provision and maintenance of a safe
work environment, the provision and maintenance of safe plant, structures and systems of
work; provision of adequate facilities and the provision of any information, training, instruction
or supervision that is necessary to protect persons from risks to their health and safety
arising from work carried out as part of the business or undertaking.
It is important to note that the obligation on each PCBU is to ensure that these requirements
are met. The duty is not to provide each of these things. As Sherriff and Tooma 6 point out,
where there are multiple duty holders in respect of the same activities, a PCBU may comply
with the duty of care by ensuring that the relevant matters are attended to by another person.
For example, a PCBU may not have to actively take any steps for the provision of safe plant,
training or welfare facilities if another PCBU is doing so. However, the first PCBU may be in
breach of the duty of care if they do not ensure that the second PCBU has discharged the
obligations. The first PCBU must therefore take steps to identify and verify the actions taken
by others to meet the obligation. 7
Consultation, cooperation and coordination of activities will therefore be critical to ensuring
that each PCBU with a primary duty of care fulfils their duty.
What is required to meet the duty?
There is existing case law on the meaning of consultation which is of assistance in
interpreting clause 46 of the WHS Bill. In Tvw Enterprises Limited v Duffy, 8 Toohey J stated:
Consultation is no empty term. "The requirement of consultation is never to be treated
perfunctorily or as a mere formality" (Port Louis Corporation v. Attorney-General of
Mauritius (1965) AC 1111 at 1124). That decision and others e.g. Rollo v. Minister of
Town Planning (1948) 1 All ER 13 at 17 and Sinfield v. London Transport Executive
(1970) Ch 550 at 558 make it clear that a responsibility to consult carries a
responsibility to give those consulted an opportunity to be heard and to express their
views so that they may be taken into account.
The meaning of this term is set out at clause 5 of the WHS Bill.
The meaning of worker is set out in clause 7 of the WHS Bill,
6 Barry Sherriff and Michael Tooma, Understanding the Model Work Health and Safety Act (2010, CCH Australia Ltd)
page 25.
7 Ibid, page 26.
8 Re Tvw Enterprises Limited v Michael John Duffy; Australian Broadcasting Tribunal; Perth Television Limited; West
Coast Telecasters Limited and Western Television Limited [1985] FCA 251 (12 July 1985), para 19
4
5
So, consultation needs to be genuine and two way. The Courts have also found that directing
a particular course of action or telling another party what is going to be done (as opposed to
seeking views on what is proposed to be done) 9 do not constitute consultation.
Merely adopting a directive stance over matters where more than one duty holder has a duty
of care would also be inconsistent with the approach recommended in the Code of Practice
which sets out that discussions with other duty holders should commence as soon as those
other duty holders are reasonably able to do so (page 17). The draft Code of Practice states
that the nature of those discussions should include the following:
What each will be doing, how, when and where and what plant or substances may be
used
Who has control or influence over aspects of the work or the environment in which
the work is being undertaken
Ways in which the activities of each duty holder may affect the work environment
Ways in which the activities of each duty holder may affect what others do
Identifying the workers that are or will be involved in the activity and who else may be
affected by the activity
What procedures or arrangements may be in place for the consultation and
representation of workers, and issue resolution
What information may be needed by another duty holder for health and safety
purposes
What each knows about the hazards and risks associated with their activity
Whether the activities of others may introduce or increase hazards or risks
What each will be providing for health and safety, particularly for controlling risks
What further consultation or communication may be required to monitor health and
safety or to identify any changes in the work or environment.
An approach which encompasses the listed level of detail is clearly also needed to fulfil the
two other legs of clause 46 - to cooperate and coordinate activities. The draft Code of
Practice provides the following guidance as to what is meant by cooperation and by
coordination.
The Code states that cooperation may involve implementing arrangements in accordance
with any agreements reached during consultation with the other duty holder as well as not
acting in a way that may compromise health and safety. It also states that cooperation also
means that, if a duty holder is approached by other duty holders wanting to consult, the first
duty holder must not obstruct communication and must respond to reasonable requests from
other duty holders to assist them in meeting their duty.
In relation to coordination, the Code states that coordination of activities requires duty
holders to work together so that each person can meet their duty of care effectively without
leaving any gaps in health and safety protection. Duty holders should plan and organise
activities together with other duty holders. This will include making sure that the measures
each duty holder puts in place work effectively together to control the risks.
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
QR Limited (no 2) [2010] FAC 652 (unreported, Logan J, 22 June 2010).
Site induction
Examples
Subcontractors are required to provide an appropriate OHS Plan.
Tender documentation stipulates OHS requirements for
subcontractors.
A safety information start up pack is available for subcontractors.
A process is in place for subcontractors to submit an OHS plan to
demonstrate hazard identification, risk assessment and control
procedures.
Selected subcontractors have the required skills and experience to
undertake the work and a proven track record in OHS. This could
include checking management plan submissions, conducting pre
work interviews and checking references.
Subcontractors are incorporated into the common system for site
induction.
All subcontractors are instructed in the site safety rules and site
specific emergency procedures.
A procedure is in place to ensure subcontractors have met minimum
induction requirements prior to commencing work.
Regulation 309
The table is based on the Federal Safety Commissioners Fact Sheet An introduction to subcontractor OHS
management which is available from the Federal Safety Commissioners web site www.fsc.gov.au/Resources
10
11
Communication
Hazard
identification
and
risk
management
Monitoring and
reviewing safety
on site
12 The Explanatory Memorandum to the Model Bill states on page 39 that Consultation is an integral part of issue
resolution and conversely, issue resolution processes may be required to deal with issues arising during consultation.
The provisions for consultation are dealt with separately in Divisions 1 [consultation with other duty holders] and 2
[consultation with workers] of this Part.
13 Regulation 47
Agreed dispute resolution procedures need to be in writing and include all of the steps
specified for the default procedure. 14 Master Builders recommends that the requirement to
comply with the terms of the dispute resolution procedure for the workplace should be in the
governing contract documents.
Any party to a dispute can have a representative (such as Master Builders) to represent them
in a dispute.
Does the consultation duty mean that principal contractors cannot direct how work is
undertaken?
On construction sites, particularly large and complex sites, it is common for principal
contractors to put into place site safety rules as well as arrangements to verify that work is
actually being carried out in accordance with agreed procedures. As noted above, such
arrangements are part of good subcontractor management and are a necessary and
important part of ensuring that the principal contractor is meeting the primary of duty of care
to workers on site. Clearly adopting a directive approach to site safety, where there is no
consultation with subcontractors will not satisfy clause 46. However, the requirement to
consult with other duty holders who have a duty in relation to the same matter does not mean
that principal contractors cannot direct that subcontractors comply with agreed site safety
rules nor that principal contractors cannot ultimately direct that work be carried out in a
particular manner if that is what is required in order for the work to be carried out safely.
It should be noted that if a principal contractor directs a particular course of action it is less
likely that the principal contractor could successfully argue that they did not have influence or
control over the matter. Clause 16 of the Model Act provides that where more than one duty
holder has a duty, each person must discharge that duty to the extent to which they have
influence and control of the matter. This provision, together with consideration of what is
reasonably practicable in the particular circumstances are the two, inter-related ways in
which the Model Act deals with the issue of control in relation to the primary duty of care.
Master Builders has prepared a comprehensive paper which considers the application of the
notion of control in the Model Act. 15
What happens if a principal contractor does not want to consult?
The obligation to consult is multi-directional. It is not an obligation on principal contractors to
consult with subcontractors but for all duty holders with a duty in relation to the same matter
to consult with each other. So subcontractors and labour hire company have an equal
obligation to consult with a principal contractor as does a principal contractor with those
parties. This raises questions as to what happens if another duty holder does not wish to
participate in consultations or does not participate to the extent that satisfies the other duty
holders that they have sufficient information to determine that they are meeting their duty of
care.
The Code of Practice does not provide adequate guidance to deal with this issue. The Code
states This does not mean that you should simply accept what you consider to be
inadequate action by another duty holder. You should check that they are aware of this duty
and what you consider is needed to comply with it, and with the health and safety duties that
Regulation 46
See Master Builders research paper Losing Control? The impact of the primary duty of care. This paper discusses
the application of the notion of control in the Model Bill, including where more than one duty holder has a duty in
respect
of
the
same
matter.
The
paper
is
available
on
Master
Builders
web
site
www.masterbuilders.com.au/HealthSafety
14
15
you each have. This somewhat trite statement does not adequately take into account the
complexities of the commercial environment in which such consultation takes place. Labour
hire companies and subcontractors may be able to rely on contractual arrangements or can
call on the regulator to assist with a situation where consultation is not occurring to the extent
needed to be satisfied that they are meeting their duty of care. Ultimately, if, for example, a
labour hire company is not able to be satisfied that the work that their employees will be
undertaking will be done safely, the company needs to carefully consider whether or not that
particular placement should proceed.
Conclusion
The requirement to consult, cooperate and coordinate is no mere window dressing. All
parties who undertake construction work must ensure that arrangements are in place so that
communication about how each party involved with the construction process will meet their
duty of care is a consideration about which there is no doubt.