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WHS for Labour Hire

Conventional wisdom says that non-traditional work is unsafe work.  Non-traditional work is defined by temporary or transitory experience. Casual workers, self-employed contractors, fixed-term employees and on-hire workers all fall into the category of non-traditional work.

People engaged in this type of work is growing at a rapid rate.   Therefore, acquiescing to the notion that non-traditional work is unsafe, would suggest there is a significant and increasing number of workers who are in unsafe work.   This view was the basis for WorkPro to conduct research by way of survey with the aim of identifying trends in non-traditional work, specifically, in on-hire work arrangements.

WorkPro’s approach to the research included engaging with a total of 11,485 on-hire workers in the combined periods of 2011 and 2015. The crux of the survey – to seek on-hire worker’s opinions on a range of matters extending from their motivations to work in non-traditional work, to awareness of health and safety responsibilities.

The first survey was undertaken in 2011 to obtain initial raw data.  In 2015, WorkPro again hosted another survey; the objective being to identify changes, if any:

  • in on-hire worker attitudes towards onboarding and safety;
  • age of participants; and
  • breadth of industry over time.

Overall, the outcomes of the WorkPro survey displayed positive results for the on-hire industry.

To bust the myth that non-traditional work is unsafe work, WorkPro requested respondents to identify whether they felt at a greater risk of workplace injury.  Comfortingly, the majority of respondents (three quarters) did not feel they were at a greater risk of a workplace injury when compared to those who are permanently employed.

To support this response, WorkPro undertook a brief analysis of recent work health and safety prosecutions nationally that indicated the following as the common failures that contribute to on-hire workers sustaining significant injury:

  • inadequate systems of work
    • Hazard identification and risk assessment;
    • Safe operating procedures;
  • inadequate information, instruction, training and supervision
    • induction
    • Safe operating procedure instruction;
    • Training
    • Task supervision

There is no question that on-hire firms are deemed a person conducting a business or undertaking (PCBU) under modern work health and safety law.  As a PCBU, On-hire firms have a primary duty of care.  In its simplest form, this duty requires the on-hire firm to ensure the health and safety of on-hire workers whilst they are on assignment at the host organisations’ workplace.

Whilst the work health and safety Act does not specifically prescribe the activities the on-hire firm must carry out to meet their duty of care, Safe Work Australia’s Legislative Fact Sheet Series-Labour Hire: duties of persons conducting a business or undertaking provides such guidance.  The fact sheet suggests that in some circumstances; where the on-hire firm believes there is risk to an on-hire workers’ health and safety that is not adequately controlled, the on-hire firm may need to make a decision not to supply the on-hire worker.  It describes the activities the on-hire firm are expected to execute before and during placement of an on-hire worker; it includes but is not limited to:

  • gathering information on the work, hosts’ work environment and safe systems of work;
  • provision of the on-hire firm WHS induction; and
  • verification of a host induction, information, instruction, training and supervision.

When we compare the on-hire work health and safety case law to case law where workers engaged in traditional work are injured; the failures are comparable.  There is consistency in the duty holder’s failures across both structures of employment.  This implies that on-hire workers are not at higher risk of exposure to workplace illness and injury.

If popular wisdom says that non-traditional work is unsafe work, the question must be raised; Why would a worker want to be engaged in non-traditional work if the perceived risk of illness and injury is much higher?

The WorkPro survey provides some insight. A large proportion, 65% of respondents identified that lifestyle choice was their primary reason for contracting/temping; expressing their appreciation for the flexibility and variety this type of work offered them.  Pay was identified as another incentive for respondents to engage in this type of work arrangement.  No longer are we restrained to a 9 to 5 job; it is now our culture to have a “work/life balance”, so it makes sense that a large proportion of respondents are attracted to on-hire work as it offers that flexibility.

The survey results indicated that employers are effective in conveying the health and safety rights and obligations message to those in contracting/temp roles.  An impressive 90% of respondents indicated they felt satisfied in receiving this information.  This was consistent across both surveys.

Interestingly, 92% of respondents in the 2015 survey identified that as a contractor/temp worker, they were aware that multiple parties are involved in managing health and safety in the workplace.  This outcome is encouraging, as it indicates workers are abreast of the modern work health and safety framework and they understand they are owed a duty care of care by multiple parties.    

So, why might this be a surprising survey finding?

If we turn back the clocks to the time of traditional work, health and safety law imposed a duty on the employer to the employee.  For direct employment, you can understand why the law was structured this way.  The employer employed a person to carry out work for an unfixed period of time – relatively straightforward.  However, as we embarked on the new millennium, it became quite obvious how out of date this law was.  It no longer reflected modern work.  It was the subject of confusion for non-traditional work arrangements such as on-hire.  Who was the employer? The on-hire firm or host organisation? Whilst both were deemed the employer, the law was inarticulate.

In 2012, Australia welcomed the introduction of model work health and safety laws.  These new laws now offer a structure that is reflective of modern work and workplaces.  The model work health and safety laws have introduced the term person conducting a business or undertaking (PCBU) replacing the traditional term employer.  The term worker is used in place of employee.

The law recognises that there may be multiple parties to a work arrangement.  It imposes a primary duty of care on each party who is involved in an on-hire placement.  The diagram below offers a visual of the traditional v modern work health and safety laws.

Modern work health and safety duty of care structure

The current model work health and safety framework recognises each party to the on-hire arrangement owe a primary duty of care.  Each party maintain their duty and must do everything so far as is reasonably practicable to ensure the health and safety of the on-hire worker.  The PCBUs must consult, cooperate and coordinate health and safety activities with each other to ensure the on-hire worker is not exposed to illness and injury at the workplace.

Unlike traditional work health and safety laws, the model laws require consultation, co-operation, and co-ordination between duty holders i.e. the host, on-hire firm and other parties to the arrangement e.g. other on-hire firms and contract management companies.  It states If more than one person has a duty in relation to the same matter under this Act, each person with the duty, must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. (section 46, Model Work Health and Safety Act 2011).

The duty to consult with workers is not a new obligation.  Both the on-hire firm and the host organisation must consult with on-hire workers regarding matters that affect or may affect their health and safety.  Consultation was the only pitfall of the WorkPro 2015 survey with 11% of respondents acknowledging that they were rarely or never consulted on work matters that may impact on work health and safety.  When we consider this and the fact that 35% of respondents disagreed or were not sure they were well-prepared by the on-hire firm before commencing work in a new location/work site, suggests this is an area for improvement for on-hire firms.

Overall, the WorkPro survey showcases positive results for the on-hire industry; indicating there is no detrimental change in respondent’s perceptions regarding health and safety.  The survey does indicate however that on-hire firms should place a greater emphasis on preparing on-hire workers before commencing work in a new location/site; specifically, the provision of:

  • Induction;
  • Role expectations;
  • Information regarding the likely WHS hazards of the workplace and procedures;
  • Consultation throughout the duration of the worker’s placement.
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