First WHS Conviction For Not Consulting with Other Duty Holders

In a workplace the focus of consultation attention is usually on consulting with workers – section 47 WHS Act. However in May 2016 a PCBU was prosecuted and convicted for not consulting with other duty holders –section 46 WHS Act.

This is the first prosecution and conviction of a PCBU under section 46. It will help to throw the spotlight on the sometimes missed or incomplete handling of a PCBU’s duty to consult with other duty holders. Even low risk workplaces encounter situations where section 46 applies.

This article is written to remind duty holders about the need to consult with other duty holders and also to indicate where you can find reliable guidance about this.

The Court Case

The PCBU in this case is a not-for-profit organisation that helps persons by finding and assigning them to host employers as trainees and apprentices. The PCBU assigned a trainee to a roofing company but he suffered multiple injuries when the guttering he was carrying came into contact with high voltage power lines.

$70,000 and significant time has been expended by the PCBU to improve its health and safety systems to ensure that the PCBU will comply with their duty to consult, cooperate, and coordinate with its host employers.

Does Your Workplace Have Situations Involving “Other Duty Holders”?

Part 5 of the Code of Practice: WHS Consultation, Co-operation, and Co-ordination provides excellent guidance on that question and what to do about it in your workplace. It is covered in the following 6 sections starting on page 17 of the Code:

5.1 Who must consult, co-operate and co-ordinate and with whom

5.2 When must you consult, co-operate and co-ordinate with others?

5.3 What is meant by consultation with other duty holders?

5.4 What is meant by co-operation?

5.5 What is meant by co-ordination?

5.6 What if another duty holder refuses to consult or co-operate or co-ordinate?

Examples of “Other Duty Holders” Situations

You may also find useful the 3 detailed examples of common workplace situations of “other duty holders”. Each example clearly shows the health and safety duties of each duty holder and what should be done to satisfy each of the requirements of; consult, co-operate, and co-ordinate.

The examples are in Appendix C of the Code on page 24. The examples are:

1. A company leasing premises in a multi-tenanted office block

2. A manufacturing company hiring on-hire workers from an on-hire firm

3. A local council running a street festival together with a large community organisation.

Note:

This Code of Practice on first aid in the workplace is an approved code of practice under section 274 of the Work Health and Safety Act (the WHS Act).

An approved code of practice is a practical guide to achieving the standards of health, safety and welfare required under the WHS Act and the Work Health and Safety Regulations (the WHS Regulations).

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Courtenell Pty Ltd

as Trustee for the Vowles Family Trust

WHS Training Specialists, Sydney, Australia  

train@courtenell.com.au ~ PO Box 622 Broadway NSW 2007

ABN: 42164393628 ~ ACN: 050109281