Local councils are not immune from regulatory attention, and should maintain robust safety management systems to manage the work of third party contractors

Background

Wingecarribee Shire Council (Council) has recently entered into an enforceable undertaking with SafeWork NSW following alleged breaches of health and safety duties, which left two workers injured.

In 2018, Council engaged a contractor to drain vessels at a sewerage treatment plant. In October 2018, during the course of that work, a 15 tonne crane was being used to dismantle a piece of equipment and came into contact with overhead powerlines. Unfortunately, two workers who were guiding the equipment at the time received electric shocks and suffered serious injuries. The driver of the crane was not injured.

Following the incident, an investigation revealed that the crane driver was not given a site-specific induction prior to carrying out the work and was not licensed to operate the crane.

Outcome

During the course of the investigation, SafeWork NSW issued improvement notices to Council to ensure that all contractors completed a site induction before commencing any work at the sewerage treatment plant and to ensure that high risk work was only carried out at the plant by appropriately qualified workers.

Following this initial regulatory response, SafeWork NSW’s investigation led it to allege that Council had failed to discharge its obligations under section 19 of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure, so far as was reasonably practicable, the health and safety of workers. Council’s alleged breach of this primary duty exposed workers to a risk of death and of serious injury, contrary to section 32 of the Act. Those workers were not employees of Council, but employees engaged by the contractor.

In lieu of prosecution under the Act, Council has recently entered into an enforcement undertaking with the regulator.

Enforceable undertakings are alternatives to prosecution, and are legally binding agreements with SafeWork NSW, requiring the person giving the undertaking to complete the activities outlined in the agreement which can be costly and substantial undertakings. SafeWork NSW will only consider an enforceable undertaking for contraventions of health and safety duties that do not involve recklessness or gross negligence, and where there are demonstrable benefits to the workplace, the industry and the community. Once an enforceable undertaking is entered into, legal proceedings will not be commenced (unless the undertaking is not complied with).

The enforceable undertaking with Council included substantial safety initiatives, representing a cost to Council of over $600,000 to implement. Those measures include developing and implementing an automated induction program, a new contractor management program, establishing a WHS cultural improvement program to address a stated lack of trust and information that lead to a poor WHS culture at Council, and participation in National Safe Work Month by partnering with SafeWork NSW to deliver a range of educational safety presentations to promote the importance of safety in the workplace. Each outcome is targeted to different issues and implemented in stages.

This enforcement outcome is the product of an investigation into Council’s systems, where Council engaged a third party contractor to undertake specific and specialised work. However, the failures identified in the enforceable undertaking were failures of Council’s safety management system and were avoidable through routine activities, and checks and balances. Even though Council engaged a third party contractor to complete the work, Council was still required to ensure it had complied with its own obligations and could not delegate its duties to manage risk.

Key takeaways

This outcome illustrates:

• Councils often have varied workforces and engage contractors regularly to carry out the types of work local government is required to complete for their communities. This gives rise to special circumstances and a unique risk profile that must be attentively managed by Council officers who procure, facilitate and manage third parties carrying out this work;
• Councils will be subject to the full attention and regulatory response of safety regulators when incidents occur that highlight deficient safety practices;
• enforceable undertakings may be appropriate and available where Councils can demonstrate tangible improvements to their safety management systems and programs; and
• the risk of prosecution and the high legal and operational costs of alternative measures are good reasons why Councils should take proactive steps to ensure their compliance with their health and safety duties to avoid risk of injuries to their employees, and other workers.

For more information on this matter, or to discuss any other employment relations and safety matter, contact a member of our expert team here.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.