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Expensive and Fatal Reminder That WHS Responsibilities are Non-Delegable


Fines of more than half a million dollars have been handed down in two recent and related NSW workplace health and safety contravention cases.

Two separate PCBUs have been slammed by courts in NSW for breaching their non-delegable duties by relying on others to manage an exclusion zone. It was heard the site supervisor of the principle contractor who was charged with overseeing the site was inexperienced and watched and allowed a worker to enter into an exclusion zone which had scaffolding being dismantled 4 storeys above. While the worker was working within the exclusion zone, a glass atrium roof, a 3.2-meter-long scaffolding standard fell, shattering the glass causing the worker to fall 4.4 meters into a shopping center.

The worker along with a passing by courier sustained serious injuries and were rushed to hospital.

It was found that the site supervisor, charged with the responsibility of supervising the site and fulfilling WHS obligations, never received any formal training.

The second PCBU, who was responsible for removing the scaffolding, was said to have relied on the principle contractors inexperienced site supervisor to manage an exclusion zone which they were working above. The Judge commented and wondered how this PCBU felt ‘that he could rely on others on site to ‘supervise’ or manage the project’…….the  ‘planning for dismantling the scaffold did not adequately identify the risk of falling scaffolding components or any safety issues pertaining to the atrium.’

The Judge made it clear in their commentary that a PCBUs WHS duty is a non-delegable one and that that all PCBUs need to keep at the forefront of their minds the absolute necessity of coordination and clear communication with all contractors on a site as to the work to be performed. Proper planning and programming of work is essential to overcome the risk of injury to not only persons working on the site but those in the vicinity of work being performed on the site.

If you would like further advice on meeting your obligations or want more information, the Workplace Relations and Legal team are here to help. Please contact us on (02) 6175 5900.

Want to read more on these cases? Click the links below.

SafeWork NSW v L&N Properties Pty Limited [2023] NSWDC 512 (23 November 2023)

SafeWork NSW v Think Tank Building Solutions Pty Ltd [2023] NSWDC 532 (1 December 2023)