How an on-hire business successfully defended a WHS prosecution
Once upon a time, in the world of WHS compliance, good news stories were hard to find—but this one is worth sharing.
In my last blog, a client joked about how “joyful” our articles are (tongue in cheek, of course). Well, here we are again, delivering some WHS news—but this time, it’s not so bad. This comment prompted me to share a positive outcome for an on-hire firm that managed to successfully defend a WHS prosecution.
Unfortunately, this story begins with an injury. Typically, when an incident like this occurs, both the on-hire firm and the host employer are prosecuted because evidence often shows that neither party has fully met their primary duty of care. In this instance, the host employer was successfully prosecuted. SafeWork NSW, however, also believed there was cause to prosecute the on-hire firm. They took the firm to court, alleging that it too had failed to meet its duty of care.
However, the on-hire firm was able to demonstrate there wasn’t much more they could have reasonably done to prevent the incident. This distinction was key in their defence. They presented evidence of the systems and processes they had in place, showing they had done everything reasonably practicable to fulfil their obligations. Ultimately, the court found that the on-hire firm had acted within the scope of its duty and that the primary responsibility for the breach lay with the host employer. SafeWork NSW’s prosecution of the on-hire firm was unsuccessful.
When I came across the case, I decided to reach out to the director of the on-hire firm to better understand their position and what helped them avoid prosecution. He acknowledged there’s always room to improve, but the steps they’d taken were enough to demonstrate compliance and prevent their business from being held liable. Here’s what stood out:
Terms of Business:
The firm’s terms clearly required clients to notify them of any changes to the scope of work. The on-hire firm demonstrated they had documented and agreed on a specific scope and hadn’t been informed of any changes.Pre-Placement WHS Evaluation:
This evaluation was conducted by their Business Development Manager, who was trained in hazard identification and risk control. The BDM assessed the host site (specific area) where the work was to be carried out.WHS Processes:
The firm’s systems were supported by strong documentation. This demonstrated they had taken all reasonably practicable steps to protect the on-hire worker.
These measures were critical in helping the on-hire firm avoid prosecution. While no system is perfect, this case shows how having clear terms of business, proactive assessments, and strong WHS systems can make all the difference when it comes to protecting your on-hire workers—and your business.
It’s never ideal to find yourself defending a case in court, but this example highlights the value of taking proactive steps to define responsibilities and document processes. For this on-hire firm, these measures were their “get out of jail” card.
Need Expert Support?
If you’re looking to make sure your terms of business are watertight, Martin Richardson at Ready Set Recruit Legal is the person to call.
For support with your WHS systems and processes, Risk Collective offers the expertise to guide you. As on-hire WHS subject matter experts to both peak bodies, RCSA and APSCo, we bring deep industry insights to our clients. Last year, we were engaged by a state health and safety regulator to provide an expert opinion on whether an on-hire firm had fulfilled its obligations, so far as was reasonably practicable, in the tragic case of a fatality involving its on-hire worker at a host workplace. Our proven experience in such critical matters ensures we are well-equipped to help your business navigate WHS compliance with confidence.