Falls from Heights, PCBU Responsibilities and a Reminder to Comply with your Obligations

There have been a number of recent NSW decisions that have been handed down recently that relate to falls from heights, PCBU responsibilities – with regard to unlicensed workers, and confirming that obligations under the WHS legislation is not transferrable.

Unlicensed worker causes injury to others

The NSW District Court has found that the worker was unlawfully allowed to perform a specialist crane task, which he did incorrectly, resulting in a 76kg wall panel falling on two scaffolding workers, causing shoulder, knee and cheek injuries to one of them.

It was found that the PCBU had ‘failed to ensure its safety measures for taking delivery of wall panels at sites were in place. Had its site supervisor implemented these measures, the risk of falling loads would have been eliminated or minimised’.

To read a copy of the decision, click here.

Falls from heights and responsibilities of PCBUs

A PCBU that supplied harnesses for height work, but unlawfully relied on a subcontractor to provide safety instructions and supervision to workers, has been convicted and fined after the subcontractor “tragically” failed to use the harnesses, resulting in a fatal fall.

NSW District Court Judge Wendy Strathdee fined CCP Remedial Pty Ltd $93,750, plus $32,000 in costs.  In December last year, Judge Strathdee fined Macfin $150,000, finding it breached its primary duty of care in failing to require CCP to install adequate edge protection like guard rails and covers at the site and prohibit workers from accessing the roof until protection was in place.

To read a copy of the decision, click here.

Contractor duties: not transferrable to another

A contractor must ensure it complies with its work, health and safety (WHS) obligations and duties. Under State/Territory WHS legislation, these duties are not transferrable. Where a contractor enters into an agreement with a sub-contractor it must ensure that it continues to manage/minimize risks to health and safety, to consult with duty holders and provide information, training and instruction. It is common for more than one person to have a duty in relation to the same matter under WHS legislation.

In SafeWork NSW v Aceline Plumbing Group Pty Ltd [2020] NSWDC 774 and Safework NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44, the District Court of NSW penalised two contractors for its failure to consult with other duty holders, among other things, which lead to the serious injury of a worker.

The two contractors had a Referral Agreement in place between them whereby one of them would allow the other to fraudulently use its license to undertake roof plumbing work. The worker was not provided with any information or instruction as to a safe work method to implement while undertaking the installation despite the risks being made aware to both contractors. The worker whilst undertaking roof works, fell of the roof and into an empty swimming pool and suffered serious injuries including a spinal injury. Despite this being a notifiable injury, the contractors failed to notify SafeWork NSW.

Contractors must understand that WHS legislation imposes specific obligations on you regardless of the agreement in place between the contracting entities. Agreements may be used to limit responsibility for WHS obligations in certain circumstances; however, they cannot be used to contract out of obligations altogether. Failure to comply with these obligations can result in penalties.