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The Duty to Cooperate, Consult and Coordinate: WHS and Off-Campus Activities

6/07/16
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It isn't hard to imagine a situation in which multiple people or organisations have the ability to control or influence the health and safety of staff or students. If staff or students attend an off-campus event, the school will often have responsibility as well as the organisers of the event, the transport company, and the managers or owners of the location. In the harmonised work health and safety States and Territories (NSW, Qld, SA, Tas, ACT, and NT) where a number of  PCBUs (formerly known as employers) may have overlapping responsibilities for safety, there is an explicit duty for them to "consult, cooperate, and coordinate activities" with each other to ensure the health and safety of those affected by their activities.

In Victoria this duty is less wordy and applies to an employer's obligation to consult with contractor's and the contractor's employees  to the extent that the employer has control or would have control unless there were an agreement to limit or remove that control. In Western Australia, while an employer is responsible for the health and safety of people other than employees who are affected by its activities, the obligation to consult with their employers is currently more implicit.

A recent decision by a court in South Australia found a not-for-profit organisation which found placements for trainees and apprentices, failed in its obligation when it placed a trainee worker with an employer who had "no safety measures in place". The trainee suffered significant injuries as a result of a foreseeable hazard which had not been managed. The first organisation had not "consulted, cooperated and coordinated" with the employer to ensure that appropriate safety measures were in place. This is the first conviction based on a breach of this section and led to a fine of $12,000. The possible fine could have been up to $100,000.

WHS laws and schools

Since 2012, harmonised WHS legislation (see our briefing paper for more details) has been adopted by all states and territories except Victoria and Western Australia. Schools must identify, assess and manage a wide range of workplace risks in order to minimise exposure to workplace health and safety risks to their staff, students, and anyone else affected by their activities. This is a positive duty which can overlap significantly with other legal obligations of a school, such as student duty of care.

There is no way to eliminate risk completely from any workplace. However, schools have an obligation to identify and assess hazards, then minimise their risk as far as is reasonably practicable. A serious breach of WHS legislation can lead to significant penalties of up to $3 million for corporations.

Duty to "cooperate, consult and coordinate"

In addition to evaluating all risks that are controlled entirely by the school, schools must also coordinate with other parties who have overlapping duties. The duty is to "so far as is reasonably practicable, consult, cooperate, and coordinate activities with all other persons who have a duty in relation to the same matter"For example, if the school uses a local aquatic centre for all swimming activities, the school should consult with the pool management team to coordinate risk minimisation strategies.

Obviously there are limits to this requirement. The legislation sets out that each party with this joint responsibility must "discharge the duty to the extent to which the person can influence and control the matter". What this means is further set out in the Code of Practice on Work Health and Safety Consultation Cooperation and Coordination.

Essentially, each party who has the shared responsibility  must be assured that at least one of the parties has addressed each of the elements of a PCBU's safety obligations. As a minimum that means all of the usual elements have been addressed, such as hazards have been identified, assessed and managed, safe work procedures are in place, first aid and emergency procedures are in place, staff performing functions are trained in safe work procedures, and monitoring and supervision  ensures that the safe work procedures are being followed.

How much a school can do will depend on how much it can control and influence the other parties. The bottom line is that if the school cannot be assured that all of the elements have been addressed to a satisfactory degree and it cannot influence or force the other PCBU to correct the situation, then the school's last resort is to withdraw from the relationship.  However, usually a school will be in a situation where it performs due diligence in choosing third parties with whom it will be working so it will ask to see licenses, insurances, hazard registers, etc. The next step is to seek further assurance in the contract terms, for example that all staff are adequately trained and monitored, and first aid and emergency procedures are in place. And the final step is to monitor the situation to ensure that those contractual terms are being met.

Implications of this decision for schools

There are a number of situations in which the school's duties overlap with those of another employer. Although most schools have detailed risk assessment strategies when dealing with third parties or off-campus events, this can be restricted to assessing the risk as opposed to a collaborative effort to minimise risk. The decision of the South Australian Court emphasises that a school's procedures must  include coordination with other persons or organisations in order to fully comply with WHS obligations. And the key to successful consultation, cooperation, and coordination in the work health and safety environment is that a school cannot afford to assume that the other party has done the right thing - you must have evidence that all reasonably practicable measures have been taken to ensure the health and safety of staff and students and anyone else affected by your school's activities.

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About the Author

Svetlana Pozydajew

Svetlana is Principal Consultant Workplace Relations at Ideagen CompliSpace. She has over 25 years of experience in strategic and operational human resource management, workplace health and safety, and design and implementation of policies and change management programs. She has held national people management responsibility positions in the public and private sectors. Svetlana holds a LLB, Masters in Management (MBA), Master of Arts in Journalism, and a Certificate in Governance for not-for-profits.

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