There have been recent concerns surrounding the maintenance of acceptable safety standards in labour hire between employers and host employers. As these arrangements can be complex, Safe Work Australia has released a compliance guide under work health and safety laws - Labour hire: duties of persons conducting a business or undertaking.
The guide outlines the duties of persons conducting a business or undertaking ('PCBUs') for the supply of workers ('Labour Hire PCBUs'), as well as those who host workers ('Host PCBUs'). The key points from the guide are summarised below.
It is important to keep in mind that all Labour Hire PCBUs and Host PCBUs have a primary duty of care to reasonably ensure the health and safety of labour hire workers, and that this obligation cannot be transferred or contracted out to another person.
Key Responsibilities for all PCBUs
The guide highlights that Labour Hire and Host PCBUs must communicate with each other and share information to ensure compliance with workplace health and safety laws. Safe Work Australia have identified a number of issues for duty holders to discuss, which include:
- Potential hazards/risks and their control measures;
- Compliance with minimum workplace health and safety standards and legal requirements;
- Safe work methods and training requirements;
- Arrangements for facilitating assessments of worker's needs; and
- Policies and procedures, as well as roles in response to an incident.
Both Host and Labour Hire PCBUs are required to be proactive in managing hazards and risks. It is important to ensure that you review hazards and risks when circumstances change, such as a change in work process or a change in the physical environment.
Host PCBUs Duties and Responsibilities
Safe Work Australia suggests that Host PCBUs should consider the following points prior to engaging labour hire workers.
- Ensure that Labour Hire PCBUs have supplied candidates with detailed information relating to the nature of the work that they will be performing. This includes details of the task, known hazards and risks, accommodation arrangements, any skills or knowledge required and workplace health and safety arrangements.
- Verify that the worker has the necessary skills and qualifications for the work, and discuss general health and safety arrangements.
- Consult with Labour Hire PCBUs on workplace health and safety matters, including the supply of necessary safety equipment.
In addition to pre-employment due diligence, Host PCBUs should also consider the ongoing needs of workers throughout the course of their labour hire placements. Safe Work Australia have suggested the following strategies for Host PCBUs:
- Treat labour hire workers as you would treat your own employees. This includes providing adequate supervision and further training as required.
- Ensure that you communicate with the Labour Hire PCBUs with regard to any newly identified risks or hazards. This includes consulting the Labour Hire PCBUs if you wish to transfer their workers to new tasks, work environments or locations.
- In the event of an incident, notify the Labour Hire PCBU as soon as possible in order to implement the arrangements as agreed.
Labour Hire PCBUs duties and responsibilities
Labour Hire PCBUs have the responsibility of ensuring the safe placement of labour hire workers. The recommendations from Safe Work Australia suggest that Labour Hire PCBUs:
- Review the Host PCBU safety record and gather information about the host's work environment, including health and safety risks, facilities, work schedules etc.;
- Provide the worker with workplace health and safety training that they can understand, and ensure that they have the necessary qualifications for the job; and
- Ensure that workers have a means to identify and take action in an unsafe situation. Also confirm that workers are aware how to raise safety issues with you if they aren't satisfied with the host's response.
Whilst workers are engaged with the Host PCBU, Labour Hire PCBUs continue to hold responsibility for their workers' safety. To ensure that the duty of care has been upheld, Labour Hire PCBUs should consider applying the following suggestions outlined by Safe Work Australia:
- Maintain communication with the Host PCBUs. Communications are to include any changes to the worker's situation, or the maintenance of workplace health and safety regulations;
- Encourage the worker to provide feedback on health and safety matters;
- Thoroughly monitor the workplace. This may mean regular visits to the site and taking effective action if there are concerns surrounding risks to health and safety; and
- If there is an incident, work with the Host PCBUs to respond effectively.
It is important for both Labour Hire PCBUs and Host PCBUs to have a full understanding of their duties and responsibilities in relation to workers, in order for them to ensure consistently safe working environments.
Complying with these duties can pose challenges for managers, especially in circumstances where a worker is not a direct employee, or where a worker is not under the PCBU's direct control. A breach of duty by a PCBU can have serious consequences, including prosecution and substantial fines. As such, PCBUs should be constantly reviewing their safety systems to ensure that they are up to the task. If there is any doubt, it is important to seek professional advice.
If you have a query relating to any of the information in this piece, or you would like to speak with a member of Holman Webb's Workplace Relations team with regard to a matter of your own - please don't hesitate to get in touch today.