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Who is Engaged as a Worker?

In the case of Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66 the court had to decide whether Labour hire principals were liable for breach of health and safety dutes for exposing an employee to a risk of serious death or injury through failing to take necessary precautions.

The issue was

Whether a principal has “engaged” a contractor for the purposes of the Work Health and Safety Act NSW 2011
Whether a principal could have taken steps to minimise the risks of electrocution to employees of a sub-contractor

An employee, Dwayne Gumbleton, suffered an electric shock resulting in serious injury and hypoxic brain damage while working in the roof space of the Kularoo Aged Care Facility at Forster.

Mr Gumbleton was an employee of Hanna Plumbing Pty Ltd (Hanna Plumbing), The facility was operated by Baptist Care Services Pty Ltd (BCS) and at the time of the incident Mr Gumbleton was with other employees of Hanna Plumbing installing a fire sprinkler system.

The facility was constructed by Unity Pty Ltd (Unity), who engaged Heinz Stalder, the Director of Hanna Plumbing, to be involved in the tender process for the work.

Mr Stalder brought in Activate Fire Australia Pty Ltd (Activate Fire) due to the size of the project which entered into an agreement with Unity to design and install the system. Hanna Plumbing then entered into an agreement with Activate Fire to supply the labour to fabricate and install the system. plumber

Activate Fire retained the responsibility for providing a Safe Work Method Statement for the work, certifying the system and for arranging materials to be ordered and delivered to the site. It was alleged that Unity and Activate Fire breached a health and safety duty owed pursuant to section 19(1) or (2) of the Work Health and Safety Act 2011 (the Act) and therefore exposed Mr Gumbleton to a risk of death or serious injury.

The focus of the trial was whether a principal is considered to have “engaged” a contractor for the purposes of health and safety legislation.

The court found that Mr Gumbleton was indeed a worker “engaged” by Activate Fire and Unity as per s 19(1) of the Act because each of them contemplated at the time they entered into the contracts obliging them to install the system, that they would be using the services of the Hanna Plumbing employees to undertake the work necessary to do so.

The clearest indicator of Activate Fire’s influence and direction over the work performed by Mr Gumbleton was the imposition of the requirement on Hanna Plumbing’s employees to carry out work in accordance with the Safe Work Method Statement prepared by Activate Fire. His Honour held that Activate Fire and Unity had actual knowledge of the risk involved with the work in the roof space by reason of the oral and written information provided to them by Mr Stalder. Further it was argued that steps should have been taken to isolate the power to the wing in which Mr Gumbleton was working prior to the installation and the implementation of such a procedure would not have been disproportionate to the risk. Both Unity and Activate Fire were held liable for breaching the health and safety duty pursuant to s 19(1) and (2) of the Act and exposing Mr Gumbleton to a risk of death or serious injury.

Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66

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