James Mattson,
Executive Lawyer at Bartier Perry
26
| ACCESS
in
ACTION | FEBRUARY 2013
ACCESS in ACTION
The unfortunate incident at UTS Broadway in late
2012
is a timely reminder for suppliers of plant
of their obligations under the NSWWork Health
and Safety Act 2011.
By James Mattson,
Executive Lawyer at Bartier Perry
UTS engaged a building company, Lend
Lease, to undertake the construction of its
new education facility. Lend Lease engaged
a company to supply the crane. During the
project, the crane caught fire and the arm
fell onto the construction site. The CFMEU
alleged a week earlier it had reported oil
leaking from the crane. The cause or causes
of the incident are still under investigation,
but that brief story line emphasises an
important role suppliers have in the chain
of safety.
WORK HEALTH AND SAFETY LAWS
The WHS Act imposes obligations on
suppliers to ensure, so far as is reasonably
practicable, the safety of any plant supplied
to be used, or expected to be used, at work.
The plant must be without risk for that
use, assuming it is used for the purpose for
which it is designed or manufactured.
There is also a positive duty on officers
(
directors and senior decision makers) of
the business to exercise due diligence.
Managers, who aren’t officers, must
nevertheless exercise
reasonable care to
ensure their acts
or omissions do
not place others
at risk. Penalties
of up to $3 million
for corporations may be imposed, up to
$600,000 or five years jail for officers and up
to $300,000 or five years jail for managers
and workers apply.
Work health and safety is fundamentally
about acting to ensure safety and gathering
and sharing information about safety. The
obligation imposed on every business is to
consult, cooperate and coordinate with all
other businesses that have a WHS duty. It is
not surprising then some of the main duties
of suppliers are directed at these goals.
Under the WHS Act and its regulations,
suppliers must, among other things:
s TAKE ALL REASONABLE STEPS TO OBTAIN
relevant safety information from the
manufacturer of the plant;
s CARRY OUT ITS OWN INVESTIGATION AND TESTING
to be able to provide a proper safety
report to the recipient of the plant;
s IDENTIFY ANY REASONABLY FORESEEABLE FAULTS
in, and hazards with, the plant;
s ASSESS THE RISKS AND IDENTIFY MEASURES TO
Work Health and Safety: a timely reminder
eliminate or control the risks;
s SHARE THAT RELEVANT SAFETY INFORMATION
with the recipient so it can assess the
safety of its use of the plant; and
s MAINTAIN CURRENT RELEVANT SAFETY
information about the plant to provide
updates to the recipient of the plant on
request.
WHAT’S RISKY WITH HIRING PLANT?
The hire of plant to others is a particularly
risky endeavour given the various matters
over which the supplier may have little
control.
How do you control or manage how
workers of another business use your plant?
What can you do if faults and incidents are
not reported to you at all or in a timely
manner?
To discharge your WHS duties as a
supplier of plant need not be an onerous
affair. The key is to think about safety
and to gather and share relevant safety
information on a continuous basis with
other duty holders. You do not need to
manage the businesses of others. You need
to act, so far as is reasonably practicable.
Often the question is raised whether
knowing too much is placing you at greater
risk. Discussion about risks and safety is not
to be seen as exposing you to risk, rather
it enables you to demonstrate you took all
reasonable steps to ensure safety.
On purchasing plant, a supplier ought
to obtain all relevant safety information
from the manufacturer and assess the
information for the environments in which
the plant is likely to be hired.
A supplier of plant was fined $95,000 for
not conducting its own testing of plant:
Inspector Dugdale v Fluid Hydraulics Pty Ltd
[2011]
NSWIRComm 88.
A supplier ought to conduct its own
investigation and testing to ensure the
plant is safe for its intended use.
Interrogate the safety information from
the manufacturer.
Develop safe work method statements
for the plant.
Investigation and testing should also
be viewed as including inspections and
maintenance of plant as required on return
and before re-hire.
Prior to hire, a discussion should occur
with the recipient of the plant about the
intended use of the plant to reveal relevant
safety matters arising from the use of plant.
This is part of the obligation to consult.
Consideration should also be given
to how hazards and incidents are to be
reported during the period of hire of the
plant. A safety report at the end of the hire
period should be provided by the hiree of
the plant’s use and any incidents or repairs
that may have been undertaken. That
information could be vital for a supplier to
assess the plant for safe future use.
For long periods of hire, do you want
the right to conduct
your own audits and
maintenance to ensure
the safe and proper
use of the plant? It may
enable you to discharge
your obligations and demonstrate your
commitment to safety. It may also allow you
to look after your asset.
So, action and discussion, the gathering
and sharing of safety information, allows
workplace safety to be effectively managed.
In Inspector Wade v Goldspring’s
Earthmoving [2011] NSWIRComm 106 a
supplier was fined $84,000 for supplying
an excavator with faulty reverse alarms,
mirrors and lighting. You must know the
faults to be able to action the faults. A
diligent business actions all faults and risks.
TIME FOR ACTION
So, with a year under the new WHS Act,
it is time to review safety processes and
systems to ensure they are adequate and
working. Indeed, officers of a business
have a positive duty to do so, or cause to
be done, a verification and audit of safety
systems.
For more contact: 02 8281 7894 or visit:
www.bartier.com.au
HR
Prior to hire, a discussion should occur with the recipient of
the plant about the intended use of the plant to reveal
relevant safety matters