Multiple Duty Holders

First and foremost, duties under the Work Health and Safety (WHS) Act cannot be transferred. Moreover, a person or person conducting a business or undertaking (PCBU) may have more than one duty and more than one person can have the same duty.

As a PCBU, your duty of care extends to any person directly working for you, or on your behalf.

Talking to, co-operating and co-ordinating activities with other PCBUs or workers involved in the work will mitigate risks and assist each duty holder comply with their duty. Where PCBUs fail in their obligation/s to co-operate or coordinate workplace activities, charges, and financial penalties are forthcoming, as multiple PCBUs in Adelaide discovered this week.

Following are extracts from an article published by Australian Leisure Management, Ride Owners Charged Over Royal Adelaide Show Fatality, and highlights the extent of the law where multiple duty holders are concerned:

“The owners of a ride from which a young girl was flung, causing fatal injuries, at the Royal Adelaide Show in 2014 have been charged.

SafeWork SA has confirmed charges have been filed against C,J & Sons Amusements Pty Ltd and co-Directors Jenny-Lee Sullivan and Clinton Watkins.

The development comes just weeks after charges were filed in the Industrial Magistrates Court against Safe is Safe, the company that inspected the ride, and Hamish Munro, who verified the apparent safety of the ride.

In summary, SafeWork SA said charges against all included failure to provide and maintain, so far as is reasonably practicable, plant in a safe condition.

They also included failure to ensure the device was inspected by a competent person, failure to ensure safe systems of work to ensure the safe operation of the device and failure to provide operators and deck attendants with training and instruction on how to operate the plant safely.

Safe is Safe and Hamish Munro are scheduled to appear in court on 30th June while C,J & Sons and the co-directors are expected to appear on 11th August.”

In summary, assess both policy and operational activities to ensure, where multiple (more than one) PCBUs have a duty of care for the same matter, then each PCBU must: 

• Retain responsibility for their duty in relation to the matter; and
• Discharge their duty to the extent the matter is within the person’s capacity to influence or control; and
• Consult, co-operate and co-ordinate activities with all other persons with a duty in relation to the same matter.

Also, don’t take training (third party or in-service) for granted. Ensure all training sessions: 

• Are conducted by competent people;
• Are flexible in their delivery (i.e. cater for different/varying learning rates);
• Are documented and validated by both the training organisation (if a third party) or in-service trainer and the trainee; and
• Include assessments and/or assessment tools to deem whether or not a trainee is “competent” or “not yet competent”. Furthermore, this determination must be recorded against each trainees training record and signed by the trainer.

In terms of record keeping requirements (financial, workplace and/or training documents), remember: 

• Personal financial records must be kept for 5 years;
• Company financial records must be kept for 7 years;
• Employee training (in-service) records or assessment tools must be kept for 7 years;
• Student training results (if an RTO or RTO Partner) must be kept for 30 years; and
• Where an appeal or evidence is required to determine the competency or validity of a claim, 100 percent (100%) of records must be retained until the expiration of the appeal period.