A decision of the Industrial Court of NSW has reiterated the need for labour hire employers to take a proactive approach to ensuring the safety of workers when lent on assignment to host employers (Inspector McGrath v Edmen Recruitment Pty Ltd  NSWIRComm 108).
The key messages that labour hire employers can take from this judgment to reduce the risk of injury to workers and reduce exposure to prosecution under the Work Health and Safety Act (WHS Act) are:
1. Inductions for labour hire workers must reinforce safety issues and ensure workers are aware of the steps they need to take if a host employer reassigns their duties.
2. Ensure that workers receive a site specific induction that is more than a superficial walk through the host employer’s site.
3. Make regular visits to the host employer’s place of business and develop a thorough understanding of how the site operates. Ensure adequate risk assessments are in place for each task to be performed.
4. Develop and maintain systems for communicating with employees.
5. Develop and maintain systems for communication with the host employer.
Emden Recruitment Pty Ltd (Emden) lent on hire a worker to perform welding duties for SITA Australia Pty Ltd (the host employer). In the course of these duties he was performing work on the hopper of a baling machine and the worker became caught in the machine, sustaining serious injuries resulting in amputation of both his legs and a hand.
The worker was not trained in the operation of the baler and sought to isolate the machine using a trial and error process. The supervisor of the host employer was also not familiar with the operation of the baler and relied on the advice of a contractor responsible for its upkeep. The host had an isolation and tag out procedure which was not followed and the worker was not trained in this procedure.
Emden was prosecuted pursuant to s.8(1) of the Occupational Health and Safety Act 2000 (OHS Act), which has now been superseded by the WHS Act. The host was prosecuted pursuant to s.8(2) of the OHS Act and the supervisor was prosecuted pursuant to s.20(1) of the OHS Act. All defendants pleaded guilty to the charges.
Decision of the Court
The Court found that Emden failed to ensure the health and safety of the worker whilst on assignment at the host employer. In particular, it found that there was a failure to ensure it was aware of duties required to be performed by the worker and any changes to those duties.
It was held that Emden failed to comply with its own procedures to ensure that it was aware of the work that was being performed at the host employer’s site. Emden was criticised by the Court because its risk assessments merely covered general site safety and did not touch upon the specific work that was being undertaken by its employees.
Emden argued that even if they had conducted a risk assessment that included the changes to the worker’s role and his work on the baler they would have relied on the advice of the host employer’s site manager that the baler could not operate.
The Court however found that if Emden had undertaken an assessment it would have come to their attention that if the isolation procedures were followed, a tag out would have addressed the energy points that allowed the baler to operate.
Emden was convicted and fined $117,500.
Lessons for labour hire employers
Under the WHS Act labour hire companies have an obligation to ensure the health and safety of their workers, so far as is reasonably practicable (s.19). Labour hire employer’s also have an obligation to “consult, cooperate and coordinate” activities with host employers to eliminate or minimise safety risks (s. 46).
Essential to ensuring compliance is having, establishing and maintaining clear lines of communication with the host employer and the employee.
Situations commonly arise where new equipment or procedures are brought into a workplace. It is important to keep in mind that a failure to keep track of changes at a host’s worksite may result in prosecution under the WHS Act if a worker is injured.
The obligations under the WHS Act are absolute.
It is not a defence to rely on the on the host to ensure compliance with safety obligations. The obligations of the labour hire employer exist even if the host assumes responsibility under a written agreement.
Holman Webb are able to advise on how to best meet your WHS Act duties and obligations. For further information please contact our team members listed below.
Robin Young, Partner
P: +61 2 9390 8419
Ethan Brawn, Associate
P: +61 2 9390 8328