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Due to the constantly evolving nature of employment, more organisations now rely on labour hire to assist their business needs. Businesses are discovering the potential value of outsourcing some or all of its operations. Unfortunately, many labour hire agencies and the host organisations that hire the workers fail to understand their duties under the Work Health and Safety Act 2011 (Cth) (the ‘WHS Act’).

For example, an agency may assume that host organisation remains solely responsible for the health and safety of their ‘temporary’ or ‘seasonal’ workers. The truth is, both parties have responsibilities under a shared duty of care principle. The following information helps break down the key health and safety duties of a labour hire business in simple terms.

Who Is Responsible for Accidents Involving On-Hire Workers?

In the past, the courts would often fine the host organisation for violations of the WHS Act that has resulted in either an injury or illness. However, the Australian Government has since implemented stricter guidelines for labour hire agencies for WHS Act violations. In several high-profile cases, the courts have penalised the labour hire businesses for a range of breaches to the WHS Act.

One major example is the decision of Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14, the agency failed to consult with the host employer regarding the enacted safety measures across its operations. This was the first time that the courts prosecuted a labour hire agency for its failure to consult with the host employer under section 46 of South Australian version of the WHS Act (Work Health and Safety Act 2012 (SA)).

Safe Work Australia outlines that in most cases, the labour hire agency is typically responsible for workers’ compensation for injuries or illnesses. However, the labour hire business and the host business must work together to minimise risks.

What Are the Responsibilities of the Agency?

WHS duties have previously solely required to be enforced on the host employer. Under varying versions of the WHS Act, labour hire agencies have clear objectives and responsibilities for the required risk mitigation measures to ensure the protection and safety of its on-hired workers. Under WHS legislation, the agency must ensure that workers are placed in safe work placements environments that have been risk assessed by both the employer and the labour hire company.

Labour hire businesses do not have direct control over the safety of temporary workers. They still need to take every reasonable step possible to place workers in a safe environment. This includes the following steps:

  • Induction;
  • Assessment; and
  • Monitoring

These steps are exclusive to the labour hire industry. Before placing a worker, an agency needs to provide the worker with general information about the host workplace. This includes potential workplace hazards and the steps needed to control any risks.

Labour hire agencies need to consult with the host company to ensure they provide necessary training to on-hire workers. This involves an assessment of the placement. The agency should gather information about the work environment. If they feel that the host employer does not provide a safe work environment, it is the duty of the agency to withhold placement until its WHS concerns are addressed and rectified.

As part of the induction process, the labour agency should determine if any training is required. In high-risk work environments, such as construction or mining, all workers need to complete necessary training through a registered training organisation. It is the responsibility of the agency to ensure that the on-hire workers have completed the required training.

How Can a Labour Hire Agency Provide Safe Placement?

The best practices for complying with WHS Act legislation include the requirement to consult and coordinate with the host employer. Labour hire agencies need to review the safety records of the host company before agreeing to place an on-hire worker. Additional steps include:

  • Gathering information;
  • Visiting and auditing the worksite; and
  • Implementing hazard controls.

Agencies need to assess the host employer, the type of work being conducted, and the work environment. Agencies should also gather details related to the materials and substances that the workers may be exposed to and the equipment that they will operate. This includes ensure Safety Data Sheets (‘SDS’’) are readily available.

To evaluate these details, the labour hire agency should send a representative to visit the worksite. Workplace visits enables the agency to evaluate WHS risks and the steps taken to reduce exposure to hazards. This visit should occur prior to placing an on-hire worker with the host employer.

Before placing the worker with the employer, the agency needs to be satisfied with the control measures in place. The agency does not have control over the actions taken at the worksite, but they can control whether to place a worker with the employer.

What Are the Responsibilities of the Employer?

The labour hire agency and the host employer need to coordinate to ensure on-hire workers are working within a safe work environment. To comply with WHS legislation, the employer should consult with the agency. The employer needs to provide details of the work environment and the nature of the work being performed.

The employer also needs to list any skills or training needed to complete the work or adhere to safety procedures. The agency and the employer should confirm who will provide the required equipment, WHS information, and training.

As a final precaution, the employer should verify that the labour hire agency has insurance policies, including workers compensation and public liability insurance.

What Are the Responsibilities of the Workers?

On-hire workers face greater risks at the workplace, as they often have less experience and knowledge of the hazards. Many temporary workers also fail to understand their rights and responsibilities under the WHS legislation.

Workers need to follow all reasonable health and safety practices. If a worker is unsure of how to safely complete a task, they should stop work, ask a supervisor and request additional instructions.

Last Thoughts on Health and Safety Obligations for Labour Hire Agencies

Everyone has a duty to comply with WHS legislative requirements. Labour hire agencies, host employers, and on-hire workers need to review safety measures and follow any necessary precautions.

Ultimately, labour hire agencies are not exempt from WHS prosecutions. Regardless, the labour hire agency must ensure that it takes every reasonable step to ensure on-hire workers receive placements at organisations with effective health and safety policies. For more information about the duties of all parties involved in the labour hire process, review the WHS legislation in your jurisdiction.

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