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Case Summary

Who is responsible for safety in labour-hire contracts?

Steel Construct Australia Pty Ltd & Anor v Guilfoyle [2021] QDC 124 (25 June 2021)
It is fairly common for businesses to push safety responsibility on to each other, particularly in labour-hire contracts where clauses will stipulate who is responsible for safety.
In labour-hire arrangements, each party owes some safety duties depending on the facts of the case. Safety-related clauses have no practical effect because these are statutory obligations that cannot be contracted out of.
Nina Hoang
Published:

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In the appeal case of Steel Construct Australia Pty Ltd & Anor v Guilfoyle [2021] QDC 124 (25 June 2021), a Workfast Marketplace labour-hire worker was engaged by Steel Construct Australia (SCA) to install a flooring system on a Construction site. The worker had fallen three metres through a void in the roofing deck, resulting in serious spinal injuries.

At first instance, it was determined that:

  • the safe work method statements (SWMS) adopted by the host employer failed to account for the risk of penetrations and voids; and
  • there were inadequate controls to address these risks as workers were using unsecured flooring offcuts as coverings (these materials were weak and could not withstand any fall impact).

This resulted in fines of $90,000 for the company and fines of $8000 for the Director.

This case was appealed on two grounds:

  1. They did not owe a duty of care to the worker because work was directed and influenced by Ultrafloor (the project manager of the site).
  2. They claimed they did not have the expertise to know how to minimise the risk of falls, and needed to rely on the expertise of other companies.

Both arguments failed dismally! The SWMS detailed that SCA was responsible for the implementation and supervision of the SWMS for their part of the project, and their supervisor was able to amend the SWMS with the correct controls after the incident evidencing sufficient knowledge and expertise. The appeal case failed and they were responsible for costs of $2100.

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Lessons for Employers

  • With all high-risk tasks, ensure SWMS covers suitable controls – especially with working with heights. WorkSafe is cracking down on these incidents.
  • All companies (whether labour-hire, contractor or host company) have safety obligations, especially if they have management or control over the work, and are directly supervising the workers. Companies cannot contract out of these obligations!
  • Remember that actions taken after an accident can be used towards establishing what was reasonably practicable before the incident occurred.

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Managing Principal - Victoria

Principal Lawyer and Head of Workplace