Management Assignment: Advice On The Work, Health And Safety Requirements

Question

Task:
Management Assignment Scenario
You act for the Australian Fast Transit Authority (AFTA), which was recently established by the Australian Government to build a high-speed train network in Australia.

The rail network will be carried out in phases, with the first phase being a rail link between Sydney and Newcastle (the Project). Following a tender process, Renkon Kabushiki Kaisha (Renkon), a Japanese company, was appointed as the contractor for the Project. As is common in projects of this size, Renkon will engage various subcontractors to carry out discrete parts of the construction work on the Project. Renkon will be responsible for overseeing the Project from its design phase through to completion.

Julia George is the General Counsel of AFTA. She has informed you that AFTA and Renkon are currently negotiating the Design & Construction Agreement (the D&C), under which the Project will be completed. It is proposed that the D&C contain the following clause:

Part 15: Work Health and Safety
15.1 Despite any other provision in this Agreement, Renkon must comply with all instructions and directions issued by the Authority in relation to work health and safety.

15.2 Where Renkon receives a notice under clause 15.1, it must inform all workers working on the Project of the notice.

15.3 Renkon must comply with all work health and safety laws.

AFTA seek your advice in relation to the following matters:

1. Will AFTA be classified as the “person with management or control” of the construction site once the work on the Project commences?
2. AFTA and Renkon disagree about who the principal contractor should be for the Project. Renkon’s position is that it should be AFTA. Which party should be the principal contractor?
3. Does AFTA need to consult with Renkon about safety matters during the Project? If so, will AFTA have discharged its duty if it complies with the Code of Practice on Consultation, Co-operation and Co-ordination?
4. Renkon is accredited under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) in respect of the Project. Will each subcontractor working on the Project also need to be accredited under this law?
5. Does AFTA require accreditation under the Rail Safety National Law for the construction work?

Draft a letter to Julia providing your advice in relation to her questions. The advice is needed by no later than 7 May 2021. Julia is meeting with AFTA’s lawyers shortly after to finalise the D&C before it is signed, and she will need time to consider your advice carefully.

Answer

To Julia
Address:
Date:

Subject: Advice on the Work, Health and Safety Requirements
Dear Julia,
Considering your current issues in the present context of management assignment, I have drafted the following advice for you. Every advice and the reason behind them is drafted bellow. Hope this would be beneficial for you.

From an employment perspective, the management is liable for the safety and health care of the employees and with a mishap, the organization will be responsible for the fault under the necessary law. In the report, the discussion has been on a project that is related to the building of the rail network in Australia. A letter has drafted to the Julia by providing advice on the different aspects

In relation to the issue, it is advised that it has been noted that AFTA and Renkon have been working on the combined project of building a high-speed train network in Australia. AFTA has been in charge of the project but Renkon has been involved in the tendering process. The Japanese company has been appointed as the contractor for the project. Section 173(b) of the Education and Care Services National Law in South Australia states that a "person with management or control has been determined as the person having the responsibility of the operations of the project or a business¹. It indicates that the person will have a "day to day charge of the project or activities that are undertaken. Here, in this scenario, the person with management or control will be both AFTA and the Renkon.

Julia, it should be taken note of that the principal contractor is determined as the person who is responsible for the work health and safety regulations in the construction projects. Work Health & Safety Regulations 2017 (NSW) (WHS Regulations)² states that the principal contractors do have some fundamentals that are to be followed. It has been determined under the Work Health & Safety Act 2011 (NSW) that the principal contractor³ is determined as the person who is called the PCBU. The management that commissions the projector takes care of the project has been determined as the principal contractor. It has been classified under the legal terms that the default principal contractor does have the right to engage another agent as the principal contractor⁴. However, it is legally claimed that there can be only one principal contractor at a time⁵. Hence, here in the given incident it is advised that, the AFTA has been the principal contractor since they have charge of the project. Regarding Renkon, they are acting as the sub-contractor but the main agent working on the project has been AFTA

In the given scenario, since AFTA has been working as the principal contractor and has appointed Renkon as the subcontractor, matters regarding health and safety have to be communicated. Section 274 of the Work Health and Safety Act do speak of the Code of Practice that is regarding the consultation, cooperation and coordination of the matters as can be advised. The person who is known as the PCBUs does have the duty of consultation, cooperation and coordination⁶. It is also determined that the manufacturers or the suppliers in the construction projects do have a role in the communication of the information about health and safety. Thus, AFTA needs to consult with Renkon regarding health and safety measures.

This does not indicate that AFTA will have discharged duties since AFTA is the main agent. AFTA will prepare the document that will share all the information regarding the health and safety to the Renkon and the people. Thus, the sharing of the duty will indicate that AFTA will be liable under any circumstances. This has been thus classified that Renkon and AFTA both will be required to share the information as necessary.

According to Section 5 of the Building and Construction Industry (Improving Productivity) Act 2016 it is advised that the subcontractor need not be accredited. The rule states that the subcontractor does not need to be accredited under Australian law⁷. The main agent AFTA needs to be accredited that is sufficient for the construction of the project. In the scenario, however as Renkon has been accredited, it is being stated that Renkon will be accredited and AFTA will be there but no other sub-contractors need to be accredited.

Under the Rail Safety National Law for the construction work, since AFTA has been working as the main agent of the project, accreditation is needed. As the project has been concerning the rail network, the accreditation indicates that recognition is needed by the main head of the project. Thus, the organization has to be taken recognition by Rail Safety to comply with the health and safety protocols in the Australian government. It is thus being recognized that AFTA needs to be legal in its operation and also in its performance. The safety of the people is in the hands of the organization and the contractor also has to be liable.

From the discussion of the issue, it is evident that health and safety protocols must be followed by the organizations to be on the safe side. The management has been responsible for the accidents and the injuries that are caused to the employees under the Work Health Safety Act. Compensations are also given to the employees under the Workers Compensation Act 1987 in NSW.

Yours Sincerely,

Solicitor

Bibliography
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