Labour hire arrangements in WA are covered by the Work Health and Safety Act 2020 (WHS Act) and associated regulations.

The primary duty of care under the WHS Act is owed by a PCBU to a ‘worker’, which includes a labour hire worker. All PCBUs who supply workers to other businesses (labour hire PCBUs) and host PCBUs have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of labour hire workers engaged by, or caused to be engaged by them, or whose activities are influenced or directed by the PCBU.

The WHS Act provides that more than one duty holder may have the same duty. Labour hire arrangements can be complex. In some circumstances, there may be more than one labour hire or host PCBU.

If more than one person or business has a duty for the same matter, each person must meet their duty to the extent to which they have the capacity to influence and control the matter. A labour hire PCBU or host PCBU may exercise influence and control over a relevant matter through, for example, the terms of a contract or directing workers in a practical sense. However, duty holders cannot contract out of or transfer their WHS obligations to another person. 

Consultation between PCBUs

All duty holders in a labour hire arrangement must, so far as is reasonably practicable, consult, cooperate and coordinate with each other.

Each duty holder should share information to find out who is doing what and work together in a cooperative and coordinated way to ensure compliance with WHS laws. For example, host PCBUs and labour hire PCBUs must discuss consultation arrangements, the hazards and risks associated with the work, what precautions will be taken to ensure the health and safety of the labour hire worker and the respective roles of the organisations in responding to an incident. Some labour hire PCBUs may have substantial knowledge of WHS issues and risk management practices in their industry that may assist in assessing the practices of a host PCBU and ensuring compliance with WHS laws.

Duty holders should not assume that someone else is taking care of a health and safety matter. Find out who is doing what and work together with other duty holders so risks are eliminated or minimised as far as is reasonably practicable. What is reasonably practicable will depend on the circumstances. Relevant issues for duty holders to discuss will depend on the circumstances. These may include:

• hazards and risks that may arise, taking into account things like the physical environment where work will occur
• control measures to eliminate or minimise risks and the suitability of those measures
• compliance with minimum requirements set by legislation, such as the WHS laws
• how work will be carried out (including safe work methods and processes that are already in place or need to be in place)
• the people involved in the work (including supervision arrangements)
• competency and training requirements, including arrangements for the provision of additional training required for the particular work
• arrangements for facilitating assessments of the individual worker’s needs and/or competencies, as appropriate
• arrangements for health monitoring and relevant vaccinations
• the respective roles of the organisations in responding to an incident, as well as relevant policies and procedures
• any other factors which may impact the work environment and how work is carried out.

Like all PCBUs, labour hire PCBUs and host PCBUs are required to be proactive in managing hazards and risks. The duties in the WHS Act are ongoing and must be complied with throughout the labour hire arrangement.

Be aware that circumstances can change over time and this may result in a change in the hazards and risks or in the ways they may be eliminated or minimised. Changes that may necessitate a review of hazards, risks and control measures may include:

• change in a work process
• change in the physical environment
• different people undertaking the work, with different skills or means of coordinating activities
• new hazards are identified
• new ways to eliminate or minimise risks are identified or invented.

If a labour hire worker has a reasonable concern that to carry out the work would expose them to a serious health or safety risk, they may cease, or refuse to carry out work. A labour hire PCBU and host PCBU must not discriminate against a worker for exercising this or any other right under the WHS Act.

Further information

• Duties of PCBUs who use labour hire workers
• Duties of PCBUs who supply workers to other businesses
• Labour hire case study, Safe Work Australia
  This case study illustrates 4 key WHS principles that apply to all WHS duties and the duty to consult, cooperate and coordinate with other duty holders.