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The duty of a person conducting business or undertaking (PCBU) to assess risk – can you draw a line?

August 29, 2019

If you are a PCBU, main contractor, principal contractor or the person in control of the site and have engaged a subcontractor, employees of that subcontractor are legally still under your influence and direction and therefore, you cannot assign your safety responsibilities to others. You are responsible for conducting the appropriate risk assessment and the overall management of safety on site.

In a recent NSW decision a PCBU was formally charged with, and plead guilty to, failing to comply with its health and safety duty. The judge handed down a substantial fine.

In this case the PCBU was contracted to build a six-storey mixed residential and commercial block with basement parking at the construction site. The PCBU engaged Subcontractor A to perform formwork services. Subcontractor A engaged Subcontractor B to physically carry out the formwork services on the construction site.

An experienced employee of Subcontractor B, fell more than 3 metres onto a metal starter bar with a yellow reinforce bar cap that was protruding from the floor below while completing a deck. Unfortunately, the worker was fatally injured in the fall.

While the PCBU had a WHS system in place, and the subcontractors had Safe Work Method Statements, neither set out the accepted industry standard for laying formwork.

PCBU’s level of responsibility

As a PCBU you have a duty to ensure that your subcontractors’ safety systems are in place and enforced on a construction site.

In this case the PCBU was held responsible for the fatality of the employee on the basis that:

  1. The risk of falling was identifiable;
  2. The risk was foreseeable;
  3. The risk was obvious;
  4. The CFMEU attended the construction site and issued notices which included the fall risks;
  5. The PCBU director gave notices regarding safety concerns little regard and almost solely relied on Subcontractor A to address the safety issues;
  6. It is the role of the PCBU to make appropriate risk assessments; and
  7. The PCBU’s actions resulted exposed workers to a risk of serious injury or death.

There were obvious measures the PCBU could have implemented to eliminate the risks to the health and safety or workers which were neither difficult, nor expensive. The judge considered that it was largely irrelevant that the PCBU communicated with Subcontractor A about the overall job planning and relied on Subcontractor A, as an experienced contractor.

Workplace Health and Safety Regulator Websites

ACT www.accesscanberra.act.gov.au
New South Wales www.safework.nsw.gov.au
Northern Territory www.worksafe.nt.gov.au
Queensland www.worksafe.qld.gov.au
South Australia www.safework.sa.gov.au
Tasmania www.worksafe.tas.gov.au
Victoria www.worksafe.vic.gov.au
Western Australia www.commerce.wa.gov.au

If you are uncertain about how to achieve good safety outcomes you can also get assistance from HIA.  Contact HIA Safety Services or your local Workplace Advisor on 1800 650 620.