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Perspective

Who is culpable for subcontractor injuries?

In the case of SafeWork NSW v J & CG Constructions Pty Limited [2020] NSWDC 614 (16 October 2020), the Courts have found the principal contractors, J & CG Constructions Pty Ltd (J&CG), to be equally as culpable as the contractor when a subcontracted worker fell 6 metres from an unprotected ledge whilst stripping columns.

Under section 26 of the Occupational Health and Safety Act 2004 (VIC) employers have a primary duty to ensure that the workplace they are managing or controlling is safe and without risks to health. Principals usually bear less responsibility than contractors as they are have less direct control over the subcontractors’ duties, however if it is determined that they were aware of a risk at the site and their actions could have mitigated the risk then their primary duty will arise.

In this case, the contractor had informed J&CG about incomplete scaffolding by another contractor on two previous occasions. One of these occasions was just 10 days before the accident occurred. The Court determined that J&CG failed in their primary duties because:

  • they failed to direct their scaffolders to rectify the gaps and permitted work to continue on the construction site;
  • they also failed to implement measures to control the risk of the gap, such as barriers or an exclusion zone to prevent workers from accessing the area; and
  • no risk assessment was undertaken to determine whether the SWMS by contractors identified and mitigated the risks of falls from heights.

These failures cost J&CG a fine of $180,000 and they were ordered to pay costs of $48,000.

Key lessons

  • Principal contractors also bear responsibility for ensuring the health and safety of all workers on site.
  • Principal contractors are responsible for ensuring all contractors have suitable SWMS for all high risk activities.
  • If any safety risks are raised, principal contractors not only need to engage and direct appropriate people to mitigate the risk but must also put in place temporary measures to prevent the exposure of workers to those risks.

Written by Nina Hoang

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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