Consultation as the fundamental failure in serious work health and safety incidents

Serious workplace incidents, worker fatalities, and life‑altering injuries rarely occur in the absence of prior warning signs. Repeatedly, investigations, coronial inquiries and court decisions show that the most common systemic failure is not the absence of written safety systems, but the failure of those systems to be informed by meaningful consultation.

The failure to consult workers, to coordinate between duty holders, and for officers to ensure that consultation occurs as required by law, is consistently identified as a root cause of serious harm.

The Work Health and Safety Act 2011 (WHS Act) embeds consultation as a core mechanism for the employer and employee to come together and consult on hazard identification, risk assessment, decisions about controls, proposed changes affecting health and safety, and the development of WHS procedures and training.

The Act also defines the nature of consultation. Consultation requires the sharing of relevant information, giving workers a reasonable opportunity to express views and contribute to decision‑making, taking those views into account, and advising workers of outcomes.

Why Consultation Failures Lead to Incidents

Consultation failures are rarely dramatic. They are often subtle, cultural and cumulative. Decisions are made in silos, worker concerns are minimised or ignored, contractors assume others have managed risks, and officers rely on documentation rather than verification. When incidents occur, investigations frequently trace causation back to these failures rather than to any single unsafe act.

Detailed Case Studies Demonstrating Consultation Failure

SafeWork NSW v Paul Whitmarsh (No. 4) [2025] NSWDC 274

This prosecution followed a workplace fatality during a crane‑assisted salvage operation in January 2021. SafeWork NSW charged both the company and its director. The NSW District Court convicted the director for failing to exercise due diligence and imposed a fine near the maximum available penalty. The Court identified extensive, long‑standing safety failures: there was no effective risk assessment, no safe work method statement, no coordinated planning between duty holders involved in the lift, and workers were directed to perform high‑risk work without adequate information, training or supervision.

Although the offence was framed as an officer due‑diligence breach, the factual findings revealed the absence of any functioning consultation system. Workers were not consulted on how the lift should be conducted, hazards identified during the job were not escalated, and the director had not ensured that consultation processes required by sections 47 to 49 were operating in practice.

SafeWork NSW v Laggner Constructions Pty Ltd [2024] NSWDC 204

In this matter, a worker fell approximately 2.7 metres through an inadequately covered stair void and suffered serious orthopaedic injuries. The Court found the risk was obvious and well‑known, yet the PCBU failed to implement effective controls. The evidence demonstrated a failure to consult workers meaningfully about the hazard and about suitable control measures. Temporary fixes were adopted without worker input or verification. Changes to site conditions were not communicated clearly, and supervision was ineffective.

The case illustrates how failures to consult at each decision point required by section 49—hazard identification, control selection and change management—can render even simple risks catastrophic.

South Australian Manufacturing Fatality – Riverland (2024 Sentencing)

A South Australian manufacturing business was fined $840,000 after an apprentice was fatally crushed by a stainless‑steel tank weighing more than three tonnes when a gantry crane cable failed. Investigations identified systemic failures in plant inspection, maintenance and safety oversight.

The incident exposed failures to consult workers about plant condition, history of defects and safe work procedures. There was no evidence that workers were meaningfully involved in identifying risks associated with lifting operations or in decisions about maintenance scheduling.

The fatality highlights how consultation failures allow mechanical risks to persist unchecked, particularly where young or inexperienced workers rely on systems that were never informed by worker input.

SafeWork NSW v Aceline Plumbing Group Pty Ltd [2020] NSWDC 774

Although decided earlier, this case remains a key authority on consultation between PCBUs under section 46. Aceline allowed guttering work to be undertaken under its licence by another entity. A worker raised safety concerns about the work method but was told to ‘work it out’. The worker later fell and suffered serious injuries. The Court found Aceline failed to consult, cooperate and coordinate with other duty holders to ensure safe systems of work.

The judgment confirms that consultation obligations cannot be satisfied by contractual arrangements or assumptions that others are managing safety.

Dreamworld Thunder River Rapids Fatalities – Coronial Findings

Following the deaths of four patrons at Dreamworld in 2016, the Queensland Coroner identified systemic failures in safety management and governance. There was no holistic risk assessment, no coordinated change‑management process, and reliance on frontline operators to identify risks without adequate authority or support.

Subsequent professional analysis consistently identifies the absence of structured consultation and hazard escalation as a central factor. Known ride issues were not translated into decision‑making, demonstrating what occurs when consultation is nominal rather than functional.

Officers’ Responsibility to Ensure Consultation Occurs

Officers and senior managers have a personal duty to exercise due diligence to ensure PCBUs comply with their WHS obligations. This includes ensuring that consultation systems exist, are resourced, and are actually used. Courts now scrutinise whether officers verify that worker input is influencing decisions, rather than merely receiving reports or policies.

Consultation as a Preventative Control

Effective consultation integrates frontline knowledge into hazard identification, aligns control measures between duty holders, and exposes risks created by change. When consultation is embedded into planning and operations, serious incidents are substantially less likely to occur.

Every organization in Australia must have consultative processes. To further assist, a business may choose to form a health and safety committee to act as an additional resource on top of existing consultation processes. Health and Safety Committees are made up of people from all areas of the workforce and their individual areas of expertise and experience can help the business gather the correct information needed to be able to resolve ongoing or identified WHS matters.

Conclusion

Australian WHS law is unequivocal: consultation is central to safety, not peripheral. The repeated lesson from prosecutions and inquiries is that where PCBUs fail to consult, and officers fail to ensure consultation occurs, foreseeable risks go unmanaged and catastrophic outcomes follow.