DETERMINING who is legally responsible for height safety is often difficult for the courts, so it should be no surprise that deciding financial responsibility is equally fraught with difficulty.
The Occupational Health and Safety Act states that people who have management or control of a workplace must take every reasonable action and work proactively to ensure health and safety in the workplace.
Irrespective of which state-based regulation applies to your workplace, the legislation is generally clear that the controller of the workplace carries the legal obligation for safety.
The controller of the premises is the party who engages and manages contractors and employees at a particular location. According to WorkSafe Victoria, a person who manages or controls a workplace “…can include an employer, the building or site owner, and the property management or lessee of a building or site where there is a workplace.”
In NSW, Division one of the OH&S Regulations 2001 outlines the general duties that the controller of premises must take to identify hazards, assess and eliminate or reduce risks. Division 2, which deals directly with fall prevention, elaborates further on the controller’s direct responsibility in relation to working at heights.
In many cases, responsibility is only established after an incident or prosecution because just who carries the legal burden of making a building safe is not clear-cut.
Damages are often awarded on a pro-rata basis against the parties, depending on who had knowledge of what, the steps that had been taken to minimise risk and by whom.
Who pays?
When the same party is the tenant, landlord and controller of the workplace (in properties owned and managed by local governments for example), the process is much simpler and easier to determine.
But in the commercial world, it gets more complicated because the landlord, tenant, facility manager and contractor are all separate and independent entities whose financial obligations are governed by a web of agreements and contracts.
In these cases, the parties involved usually come to a compromise on financing the cost to reduce the risk.
The proportions paid by the landlord, tenant, facility manager and controller will fluctuate and often comes down to their willingness to retain a level of risk.
In my experience, many issues can influence whether or not a landlord decides to pay for repairs and upgrades. Landlords are more likely to upgrade a building if it is yielding a reasonable rate of return.
Landlords are more likely to spend money on a building during second half of a lease term, since they would have recouped a portion of their initial investment.
Improvements tend to be considered more favourably when the request is likely to lead to negotiation for lease renewal or to exercise an option.
The landlord’s attitude to risk is important — they may elect not to take steps to reduce risk at all or only limited steps, and to retain a high level of risk. Other landlords are totally risk averse and want to eliminate all risk.
Sometimes negotiations reach a stalemate and the landlords or tenants find themselves in the uncomfortable position of at least a shared legal liability for height safety without any plans to install the mandatory fall prevention measures.
I advise companies concerned they are the “controller of the workplace” to take immediate action.
Immediate steps to reduce the risk
The controller’s best option is to put service or maintenance on hold until funds are available, and to put risk control measures in place as part of a height safety plan.
However, if it is essential to continue maintaining the plant before the risk can be removed, then controllers should prepare a specific, safe work method statement for the task in consultation with the contractor or employee.
They should also hire temporary equipment, such as perimeter guardrails or elevated work platforms, write an emergency rescue plan and have rescue equipment immediately available, directly supervise the work and place the fire brigade and emergency services on notice.
Arrange for a working at height risk assessment to be conducted which clearly explains the risks to all the parties involved in plain English.
The risk assessment should rank the risks as high, medium or low so that everyone appreciates the severity of the hazard and recommend controls.
Budget
For their own protection, controllers should budget for the works as well as any ongoing costs, regardless of who they believe should actually be paying.
As a side benefit of paying towards the construction of the fall prevention measures, controllers can also be sure the most simple, cost effective height safety solution is used.
I recommend that controllers demand a system that meets occupational health and safety standards, fulfills the controller’s requirements and suits its operation.
The system should also minimise ongoing maintenance, inspection and certification costs. Consider guardrails rather than roof anchors and static lines.
It should be free from ongoing administrative problems requiring special permits and special skills such as rescue plans, specialised training, personal protective equipment, roof permit systems and other special inductions as required by law.
Of course, there are commercial realities to be faced but, increasingly, companies are adopting a pragmatic approach towards height safety — opting to pay (whether totally or partly) for the installation of safety equipment rather than risk an incident with almost certainly attract crippling legal consequences.
* Carl Sachs is a director of Workplace Access & Safety and represents the Master Builders Association on the committee for AS 1657 – 1992: Fixed platforms, walkways, stairways and ladders – Design, construction and installation. Email your height safety questions to Carl at sales@workplaceaccess.com.au or call 1300 552 984.
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