Workcover Authority of New South Wales v Chubb Security Australia Pty Ltd
• December 2005
Security Firms were fined a total of $407,000 following a landmark decision handed down by the NSW Industrial Relations Commission (IRC) on the 2nd December 2005.
The decision has not only clarified the ‘place of work’ definition under the Occupational Health and Safety Act 2000 (the ‘Act’) but widened the scope of an employers responsibility.
BACKGROUND
On 3 September 2001 an All Time Security Guard was shot dead when leaving Punchbowl RSL with the club’s cash takings of $55,291. At the time of the robbery the security guard was driving a borrowed non-armoured sedan car, not fitted with any security devices such as remote central locking, two-way radio, job safe and panic alarm.
All Time Security was subcontracted to Chubb Security and the issue brought before the IRC was whether the provisions of the Act applied equally to companies engaging sub-contractors.
THE IRC DECISION
Chubb Security was charged by Workcover for failing to ensure the health, welfare and safety of a non-employee at its place of work. In defending the prosecution by Workcover, Chubb’s argued that the Punchbowl RSL car park was not its ‘place of work’. They argued it was not its ‘place of work’ because it was not a place where Chubb’s employees work; it was not a place adjacent to where Chubb’s employees work; and it was not a place which was affected by work done by Chubb’s employees.
IRC Justice Staunton examined the contracts between the retrospective parties and found that “the contractual and associated arrangements between Chubb, All Time Security and its employees tied Chubb inextricably and on an ongoing basis to the work being performed on its behalf at the Punchbowl RSL Club by employees of All Time Security”.
Essentially this meant that Chubb Security had an “ongoing interest, involvement and control” over the way All Time Security carried out the subcontracted services. Therefore the NSW IRC found that the RSL carpark was Chubb Security’s place of work and Chubb Security was fined $246,000 while All Time Security was fined $140,000.
IMPLICATIONS
As the NSW IRC has continued to expand the definition of ‘place of work’ under the Act, this case demonstrates the importance for employers to ensure the health, welfare and safety of those who perform work on the employers behalf, as well as the necessity to assess risk, where ever that work is performed.
More importantly though this case has wider implications for principle contractors as it highlights the place of work definition in the Occupational Health and Safety Act 2000 applies equally to both principle contractors and sub-contractors.
WHAT TO DO NOW?
The obligations and responsibilities of Employers are ever increasing. Owners and those employees in positions of authority may find themselves at risk for failing to provide adequate internal practice and procedure. An important first step would be to review your current contracts of engagement with current contractors and determine the application and location of the services performed under those contracts. If you would like assistance in reviewing your current contracts, or have any questions regarding the implications of this decision please do not hesitate to contact us.
This publication contains general information only. It is not provided as legal advice. Professional advice should be taken before any course of action is pursued, or any information herein relied upon.