August Newsletter

“Some interesting facts and reading for you re the ongoing responsibilities, even if there is NO money and a failed business.”…… sure are you about your work?

Director hit with $30,000 personal fine despite difficult financial position and loss of the business – 15 year old apprentice, on the job 3 weeks, fatally injured in unguarded plant

The defendant Hadfield was the managing director of AMS and was personally and directly involved on a day-to-day basis in its operations.

An incident occurred at a metal spinning facility on 4 May 2010 involving a 15 year old employee, Wade Braeckmans. Wade had commenced employment as a laborer only 3 weeks earlier. Wade was working on an automatic Spinning, Flow Turning and Necking-in Machine” (“the machine”). The machine was used to spin and form objects from flat discs of metal (also known as ‘blanks’).

The method of operation Wade had been taught meant that the start button was subject to a build-up of grease and would sometimes become stuck in a depressed position. When this occurred the machine could start a fresh cycle spontaneously.

As he was working on it a cycle commenced automatically and Wade’s hand was pinned in the machine which then began to spin. His arm was pulled into the machine, and his hand was severed above the wrist. His arm was degloved up to the elbow. He was only released from the machine by emergency workers who had to amputate his arm on site. He died in hospital a couple of days later.

At the time of the incident Wade was effectively working alone, out of site of the only other person on duty who performed administrative duties. The machine had never had a guard or interlock.

The failures alleged against the defendant included – FAILURE TO:

∎ fit the machine with a guard and interlock device;
∎ ensure the overhead computer control panel, in particular the green start button, was kept clean so that it did not become stuck;
∎ provide employees with a written work method statement or safe operating procedure in relation to the operation of the machine;
∎ provide employees with necessary training and instruction in relation to operating the machine; and
∎ provide supervision.
∎ permitting him to operate the machine in circumstances where the machine had a known capacity to commence a fresh production cycle in the absence of a command by the operator to do so.

Wade had no previous work experience of any kind. In particular, he had no training or experience in relation to the operation of any plant and equipment, including but not limited to the kind owned and/or operated by AMS, in particular the machine.

THE COURT said, amongst other matters:

►This was, objectively, a very serious offence.
►Not only was there a failure to provide adequate measures to eliminate what was an obvious risk of entanglement posed by the presence of an unguarded, dangerous machine in this case, a defect in the machine’s control system meant that, when the green start button became jammed with residue as an effect of the lubrication process and the machine was being operated in automatic mode, the machine had the capacity to begin operation spontaneously at any time (including whilst operators were reaching into it).

The risk was exacerbated by a system of work which actively exposed workers to the risk by requiring them to reach into the machine whilst it was in operation in order to lubricate blank discs.
►Moreover, the risk was one to which a young, inexperienced and, ultimately, unsupervised worker was exposed.
► In all the circumstances, the risk of entanglement was highly foreseeable. There were simple remedial measures available prior to the incident which, had they been implemented, would have abated the risk.
►The likelihood of catastrophic injury occurring was high.
► The defendant is entitled to mitigation of sentence because he did not have any prior record. ( There was also significant discussion about the Defendants difficult financial position including the forced sale of his home and business and his level of debt).

Fine – $30,000 plus costs
Inspector Estreich v Hadfield [2012] NSWIRComm 88 (17 August 2012)

July Newsletter

A new financial year and a good reason to assess where you are at with WH&S.

Well a new financial year and for most of us we have survived another 12 months of business “taxing” and “changes”.

A new year brings the chance to re assess our businesses in a number of areas as well as the area of WH&S and compliance, so we thought we would give you a few triggers to get you thinking………….

Ask yourself these few questions!

  1. What will my work cover insurance premium look like when I renew it? Have I had to make a claim?
  2. When was the last time I went through the “due diligence” checklist we worked through when the laws changed 6 months ago on the  1st of January.
  3. Have I looked at the training matrix I said I would focus on when we talked about the changes to the legislation requirements? Have we completed the training we said we would undertake? (Ergonomics, Manual Handling, Harassment)
  4. Are all the current workers I have with me up to date with their competencies and Inductions? (Including Volunteers and Contractors)
  5. Have I booked for my Annual Audit review of the business and action plan which also forms part of my due diligence or Governance?
  6. Are my documents and templates current  and up to date reflecting the new legislation? Have I amended the dates and reviews that align with my document control?
  7. Have we undertaken our required testing of the emergency procedures for our business? Remember this is still a yearly requirement.
  8. Have we been holding and recording our meetings (consultation process) as required. This is still a minimum of every 3 months and clearly stated in the new Regulations.
  9. Have we worked out the requirements and feel comfortable that we are covered with “Working From Home” and “Home Office” requirements?
  10. Do I have a clear understanding of what and where I need to report serious incidents and dangerous events? The definitions have changed so am I up to date with them?

So how did you go with the answers?

Well done if you have answered all of these with conviction and assurance that you are in line to where you need to be. If you haven’t it is time to get some planning happening.

These questions were sent through to get the thinking and planning process started, ready for the next 12 months.

Remember if you need any checklists to help define some of these questions let us know and happy to send through.

If you need assistance in turning these questions from a NO to a YES again let us know.

Lest make this year a profitable one by staying safe and fir for work!!!!

The best outcome for your bottom line!!


Lynn and the team at P.B.C.&S

07 3410 8482

July  2012

June Newsletter

The Start of the testing of the new LAWS!!!!!!!Contractor Management Requirements.

Hope this all finds you safe and well and the business you undertake is humming along, especially in these somewhat “difficult” times.

We are starting to get through feedback re the effects on the work place and the Harmonisation roll out. As you probably have heard by now WA is still “talking” about coming across and we now believe it is down to the inclusion of the Mining Act, so slowly getting there. Victoria have decided they are unable to afford the implementation, which is a pity seeing the “base model” was on the Victoria Act in the first place, so in saying this we are all still right in the middle of new terminology and WHS SPEAK!!

So as we said first up in this newsletter there is the “starting” of some challenges in the Courts re the legislation so I thought we should share this with you. These are primarily re Contractor Management….a hot topic from what I hear out there!!!!!!

Clarifying contractor management:

17 April 2012

The recent decisions of the High Court of Australia in Baiada Poultry Pty v The Queen and the Supreme Court of Western Australia in Kirwin v The Pilbara Infrastructure Pty Ltd2 provide valuable guidance to persons conducting a business or undertaking (PCBUs) on what is expected to achieve compliance with work health and safety obligations, particularly when engaging expert contractors (summaries of the cases can be found at the end of this article).

Why are these decisions important?

With the harmonised work health and safety (WHS) laws now commenced in five jurisdictions (Queensland, NSW, NT, ACT, Commonwealth) many PCBUs are considering how best to achieve compliance with the new obligations imposed. One of the key changes under the legislation is that the primary duty is no longer a duty owed by an employer to its employees, but rather a duty owed by a PCBU to its ‘workers’. The term ‘worker’ has been given an expansive definition and includes contractors, sub-contractors, labour hire employees and outworkers. The breadth of the new primary duty means that it is more important than ever for businesses to understand their obligations to contractors and develop and implement sound contractor management strategies.

How can contractor management impact your exposure to risk?

Choosing the correct contractor management strategy for each situation is important and doing so is likely to result in improved safety, legal and commercial outcomes. Whilst WHS responsibilities cannot be delegated they can be allocated. By allocating responsibility to a contractor with appropriate expertise a PCBU improves safety and reduces its exposure to liability under WHS laws, reduces the risk of prosecution for its workers and officers and reduces exposure to common law claims for personal injury, commercial loss and the like.

What is required of PCBUs to comply with the primary WHS duty?

While both Baiada and Pilbara Infrastructure are prosecutions under pre-harmonisation laws, they provide important commentary on how WHS duties should be interpreted and understood. In particular, the following observations were made:

  • While the legislation imposes a duty to be proactive in the pursuit of safety, the offences are criminal in nature. The obligation is not to ensure that accidents never occur, but to ensure that everything that is reasonably practicable is done to ensure that workers are safe from hazards.
  • Demonstration that a step could have been taken does not, without more, demonstrate that failure to take that step was a breach of the obligation so far as is reasonably practicable to provide a safe working environment.
  • It is for the prosecution to prove that whatever measures it alleges the defendant should have taken would have been reasonably practicable and more practicable than whatever steps were in fact taken (eg relying on a contractor).
  • The primary duty does not require a PCBU to provide the safest working environment that is reasonably practicable, but rather to provide one among a range of reasonably practicable safe working environments. 
  • Conduct should not be assessed with the wisdom of hindsight and it should not be assumed that errors exposed later were obvious at the time.

These comments make clear that while the obligations imposed by WHS legislation are onerous PCBUs can achieve compliance by taking the reasonable steps that an employer in their position would take. Employers are not required to take every ‘possible’ step that could be taken.

What do Baiada and Pilbara Infrastructure tell us about contractor management?

Baiada and Pilbara Infrastructure both involved the prosecution of businesses which engaged specialist contractors to perform particular tasks. In each case it was alleged that the business engaging the contractor (the Principal) failed to take ‘reasonably practicable’ steps to ensure safety in connection with those tasks and that engagement of an expert contractor alone was insufficient to discharge the Principal’s duty. Importantly, the courts rejected this later proposition and indicated the following:

  • Reliance by a Principal on independent contractors alone is capable of achieving compliance with the Principal’s WHS obligations.
  • While the state of knowledge referred to in the definition of ‘reasonably practicable’ is objective, it is objective with respect to the particular person in question. A Principal is not expected to have the same expert knowledge as the specialist contractor that it engages, but is judged against the knowledge that other Principals in their position have.
  • In some circumstances the engagement of independent contractors may be the only reasonably practicable way of ensuring and maintaining a safe working environment. Very often those who engage independent contractors (i.e. Principals) know much less about safety than the independent contractors do.
  • If a Principal relies upon a specialist contractor to perform a task which falls within the contractor’s expertise and outside that of the Principal and if the task appears to have been carefully and safely performed by the contractor, then ordinarily the Principal will have met its duty.
  • The fact that a Principal has safety procedures for its own plant and employees does not mean that it must require its contractors to put those procedures in place for their employees or that it must check they were being observed.
  • It is not enough for a Principal to merely assume that someone will attend to safety requirements, but if such an assumption is based on inquiries made, assurances given, a reasonable belief as to the skills of the responsible contractor and a reasonable belief that regulatory (building) approval has been obtained then it may be well-founded.
  • If a Principal is alerted to a particular risk or issue by a specialist contractor then there may be further steps that it is reasonably practicable for them to take.

What should PCBUs do?

The changes under WHS harmonisation have brought the issue of dealing with contractors sharply into focus, with many PCBUs reviewing their approach to contractor management. While the Baiada and Pilbara Infrastructure decisions relate to duties owed under pre-harmonisation legislation in Victoria and Western Australia, the analysis of what it is reasonably practicable for a Principal to do when engaging contractors is equally applicable to the primary duty under the Model Work Health and Safety Act.

PCBUs should consider the following to ensure they are complying with their obligations to contractors:

  • Develop an appropriate contractor management strategy. Here, in broad terms, the options range from high control with high exposure at one end of the spectrum to low control with low exposure at the other end. Each situation should be assessed on its merits.
  • Ensure that contractual documentation is consistent with the strategy chosen for each situation.
  • Review the processes and procedures available on the ground to support implementation of the strategy and contractual obligations.

PCBUs will need to consider what steps are reasonably practicable for them to take during the various stages of the contracting process. Different approaches are likely to be necessary for different categories of contractors (eg expert contractors versus labour hire) and different types of work (eg construction versus services contracts). As outlined above, taking these steps has the potential to significantly reduce the risk profile of businesses.

Baiada Poultry Pty Ltd v The Queen

The facts

Baiada Poultry Pty Ltd (Baiada) runs a chicken processing plant and has in place contracts for the raising, catching, crating, loading and delivery of chickens to that plant. Baiada engaged DMP Poultech Pty Ltd (DMP) to catch and cage chickens at a farm and then load the cages onto a trailer using a forklift. Baiada also engaged Azzopardi Haulage to provide a driver and truck to take an empty trailer of chicken cages supplied by Baiada first to the farm where DMP would fill them and then to Baiada’s chicken processing plant. An unlicensed chicken catcher was loading the cages onto the trailer once they had been filled when one of the cages fell from the trailer onto Mr Azzopardi, killing him.

The legal issue

At trial Baiada argued, firstly, that it did not have control in relation to the traffic management employed by DMP at the time of the incident and so did not owe a duty with respect to that issue. Secondly, if it did have control in relation to the matter, it was entitled to rely upon the expertise of its sub-contractor (DMP), whose direct employee and forklift were involved in the incident. Baiada were found guilty at trial and the issue on appeal was whether the inadequate direction of the jury at trial had led to a substantial miscarriage of justice and so required a retrial to be held. In considering this procedural issue the High Court examined the nature of the duty owed by a Principal when engaging expert contractors.

The findings

The court found that there had been a substantial miscarriage of justice because the trial judge failed to direct the jury that the prosecution had to prove beyond reasonable doubt that the appellant’s engagement of apparently skilled sub-contractors to perform the work did not discharge its obligation, so far as was reasonably practicable, to provide and maintain a safe working environment. In reaching its finding the court commented that the fact the prosecution had pointed to additional steps Baiada could have taken did not mean these steps were reasonably practicable. Further, an interpretation of the duty that meant reliance on independent contractors alone was incapable of achieving compliance was an extreme one.

Kirwin v The Pilbara Infrastructure Pty Ltd

The facts

When tropical cyclone George hit a railway camp in the East Pilbara in March 2009 workers took shelter in pre-fabricated buildings (known as dongas). The dongas did not meet applicable standards and so, a number of workers were injured (including some fatally) when a number of the dongas lifted in the wind and collided. The Pilbara Infrastructure Pty Ltd (TPI) had engaged Spunbrood Pty Ltd trading as NT Link (NT Link) to build the railway camp. TPI had also engaged Spotless Services Australia Pty Ltd (Spotless) to act as project manager for the building of the camp during the request for tender (RFT) stage.

The legal issue

The key issue in the case was whether TPI, in its role as the Principal who contracted the construction of the dongas, had done everything reasonably practicable to ensure that the dongas were properly constructed and safe refuge in the event of a cyclone. The steps taken by TPI involved procuring the services of apparently well-qualified and experienced experts (NT Link) to design and identify the suitable specifications for the dongas. The regulator asserted that TPI should have done more, in particular that it should have engaged the services of an appropriately qualified engineer specifically to ensure that the dongas were built to relevant wind specifications (ie engage a further expert to review the work of NT Link).

The findings

The court rejected the position of the regulator and found that whilst TPI could not contract out of or delegate its duties, it could perform those duties by ensuring that an appropriately experienced and qualified person (NT Link) was retained to deal with matters beyond its knowledge and ability. In reaching its findings, the court closely examined the terms of the contractual documentation between the parties and ultimately relied on this information to determine their respective responsibilities for safety and design matters.

So as you can see there is now “proof” testing of the new laws in the Courts and the findings are wide spread responsibilities, more so than before.

We apologise for the length of this newsletter but I think you will agree the information is important to you all.

Again, let us know if there is anything further you need answers or clarification on, or maybe just feedback on concerns and issues you have faced with the implementation.

April Newsletter

Word is out there, the checks are starting!!!!!!!

Well as we go into the Easter break there is some interesting follow up starting to come through from Harmonisation and the effects.

We are to believe the “regulators” are out in the market place carrying out spot checks on the new laws and their communication through ALL levels of the business sector. In Queensland the ranks have been significantly increased to be able to provide a wider coverage over a shorter period of time.

The rural industry is getting a once over as we put this together and talking to our contacts in Workcover the industries that have been performing under required standards as far as injuries resulting in their contributions being capped are also under the microscope. Theses cover not only physically but also mentally safe workplaces.

Some other points to note are the “non compliance” and on the spot fines for non carrying of licenses while performing work, (plant, forklifts and competency) another simple process that you can follow up in your business to make sure everyone understands this requirement.

So the roll out has been completed and now the enforcing process begins.

For those in Victoria and WA it is now a good time to be pro active and start to “change” ready for January next year.

There has been a lot of questions and discussion about “volunteers” in the new role out. There is a great “volunteers information package” available through the safe work website, worth downloading and going through if you have volunteers in your business.

Something also that is a real focus now is the new code of practice for Hazardous Manual Tasks, to help you all get you head around the “factors” that this takes in account we have included a simple checklist to get you thinking whether there are any risks in your work site that may need addressing.


Tick yes if any of the following environmental factors are present in the task.

Use of a vehicle or tool not suitable for the environment or task
Driving for long periods
Driving on rough roads
Frequent use of hand powered tools or use for long periods
Using high grip forces or awkward postures when using power tools
Use of machines or tools where the manufacturer’s handbook warns of vibration
Workers being jolted or continuously shaken

So as you can see we are “embracing” the changes and will keep you informed if we hear of any more useful information to keep you compliant as well as remaining safe and well.


Lynn and the team at P.B.C.&S

07 3410 8482

April 2012.

Harmonisation Laws

Happy Harmonisation!!!!!!!

Well it is finally here….we have been talking about it for so long now and I know that you all stayed up until midnight just to see the new laws take effect!!!!!!!

New national OH&S regulations come into effect from New Year’s Day. They impose on all businesses, tough requirements which will be time consuming and present to us considerable risks for lack of compliance.

I know that you have probably read all this before but I thought that we would give you again the wash up of what is what so that there is no “grey areas” for everyone.

All businesses, regardless of size, need to be aware that new model Work Health & Safety (WHS) laws commence on the 1st of January 2012 in most States and Territories. (Victoria, South Australia and Western Australia are still to confirm exact dates) Under these new model laws all businesses have a positive obligation to undertake due diligence to ensure that their organisations are compliant.

The introduction of a new concept of “Person Conducting the Business or Undertaking” (PCBU), and the expansion of the definition of “worker”, has together greatly increased traditional employer obligations.

Employers (now PCBU’s) must ensure that, so far as is “reasonably practicable”, their workers are not exposed to health & safety risks.

The concept of “reasonably practicable” requires each employer to effectively implement a formalised risk management program, through which it identifies workplace hazards, assesses them and takes action to either eliminate or control them. All business managers and owners are required to have a good working knowledge of WHS matters and how they apply in practice to their organisation.

All businesses are also required to ensure that their organisations have appropriate resources and processes in place to manage WHS and, critically, to verify that these processes actually work in practice. This requires a system that provides both transparency and visibility.

It only takes one worker (it could even be a work experience student), to request that a Health & Safety Representative (HSR) be appointed and an organisation must comply with this request.

HSR’s have expanded powers and can issue directions to cease work, which must be complied with.

The new laws come with significant fines and penalties of up to $3 million per breach for a corporation and $600,000 per breach for Individual owners.

Business managers / owners (and potentially, workers) face prison terms of up to 5 years.

If owners / directors fail to discharge their duty, they can be prosecuted, even if the PCBU is not prosecuted, or the PCBU is found not guilty. In some jurisdictions (including New South Wales and Queensland) criminal proceedings arising from WHS events are being moved from the Industrial Courts to the mainstream court system (magistrates court), where prison terms are handed down on a daily basis. This means that prison sentences are more likely to be applied.

The simple message is that business managers and owners should act NOW to ensure compliance and avoid fines and penalties.

The following is a summary of the key changes due to commence on the 1st of January 2012.

Move Away From Employer Definition: From 1 January 2012, the primary duty of care for workplace safety will sit, not with the employer but rather, with the “Person Conducting the Business or Undertaking” (PCBU). A PCBU may be a corporation, partnership, unincorporated association, a self-employed person, or a sole trader.

Expansion of Duty of Care: The PCBU concept is much broader than the employer definition it replaces. In simple terms, the introduction of the PCBU definition is designed to break down barriers of responsibility so that there can be more than one party primarily responsible for the health and safety of workers.

Expanded Definition of Worker: The definition of “worker” has also been expanded to include contractors, subcontractors (or their employees), employees of a labour hire company, volunteers and work experience students, to name but a few. This expanded definition is designed to better reflect the nature of the modern workplace and the types of relationships that now exist within it.

Expanded Obligation to Consult: The obligation to consult has been significantly expanded to include a requirement for each PCBU to consult downstream, upstream and cross-stream, depending on the nature of the workplace and the other PCBUs it interacts with.

Additional Powers for Representatives: The role of the Health and Safety Representative (HSR) has been expanded to include the power to stop work or demand remedial action. From 1 January 2012, it will only take one worker to request the appointment of an HSR and an employer must do so.

Officers Required to Exercise Due Diligence: Officers (adopting the broad Corporations Act definition of an “Officer”), are required to exercise ongoing ‘due diligence’ to ensure that a PCBU meets its WHS obligations. The definition of due diligence requires each and every officer to take positive steps to inform themselves of their organisation’s workplace safety obligations and to ensure that they have adequate systems and procedures in place to comply with these obligations.

New Model Codes of Practice: In conjunction with the introduction of the Model Law, new Model Codes of Practice have been developed. These provide guidance as to how to comply with certain aspects of the new legislation. Courts can reference the Codes to identify what is “reasonably practicable”.

Increased Penalties: Maximum penalties have increased significantly.


  • Up to      $3 million per breach for a corporation.
  • Up to      $600,000 per breach, or 5 years’ imprisonment, or both, for a director or officer
  • Up to      $300,000 or 5 years’ imprisonment for a worker.


Change in Criminal Jurisdiction:

Whilst in the past directors often referred to the possibility of “going to jail” for workplace safety breaches, the reality was that in the Industrial Court system, offenders were rarely sentenced to a prison term. This may be about to change, with some States now passing jurisdiction for serious offences arising from WHS breaches to the criminal courts. Here, judges are used to imposing prison sentences on a daily basis.

So there it is. A simple run down of the outcomes of the clock moving to January 1 2012. If there are any of you out there still not sure of what you still need, or what still has to be done give us a call and we can discuss further.


Another year has begun, so let’s make it a safe one and all be together this time again next year!!!


March 2012 Newsletter

Where is this year going!!!!!!!


Cannot believe it is the middle of March already and this is only the second newsletter we have produced for 2012.

Everybody has been very “reactive” to the new laws and it is a pity the flow has not yet reached our southerners in Victoria or across in W.A.

It has been interesting carrying out the workshops we have been doing and seeing how many business owners and managers out there still are unaware of the changes and their implications. If you or your management / owners would like us to do a 2 hour workshop and presentation, let the office know and we can get this happening.

On a sadder note: It has been a bad start to the year for fatalities in Queensland unfortunately, and could have had another statistic last week as well with the concreter that suffered a shock of 11,000 volts through his body, through a concrete pump line. Thankfully he was brought “back” by a quick acting lifesaver and a defibrillator…

Workplace Health and Safety Queensland is investigating three fatal incidents that occurred last week in Queensland. A worker was electrocuted while working on a billboard in the western Brisbane suburb of Sherwood.

A young worker was electrocuted on a construction site at Clermont, 250 km south west of Mackay.

A worker was killed during the erection of an electrical transmission tower at Jandowae, north-west of Toowoomba. A section of the tower fell while being lifted by a crane.

Could this happen anywhere your employees are working? Consider the effectiveness of your safety management systems in preventing an incident like this from occurring at a workplace.

The Electrical Safety Code of Practice 2010 – Working near exposed live parts applies to people such as:

  • crane operators
  • plant operators
  • painters
  • carpenters
  • people erecting or working on scaffolds
  • signmakers
  • agricultural workers
  • carriers of high loads
  • electrical repairers
  • builders working near exposed live parts
  • anyone who clears vegetation near overhead lines
  • electrical workers

If you do not fit into one of these categories, but are working around exposed live parts, this Code of Practice still applies to you.

This is what it is all about, making sure we have a plan in place to ensure our workers are acting safely and LOOKING at the surrounds before they start their scope of works.

Do you have a “take 5” or “take 5 minutes” in place? Something worth considering.

Remember if you are responsible for anyone in the workplace then you have a “duty of care”…..the only difference is the “depth” that the duty goes!!!!

Remember; give us a call if there is anything that you still are not sure of with the new legislation, or if you would like a workshop run for the team. Stay safe and make sure your team around you does not become one of the statistics that we have just spoken about.

Don’t forget to check out our new web site at….post a BLOG about facts and points of interest, or use it to ask a question, give us some feedback!



Lynn and the team at P.B.C.&S

07 3410 8482

March 2012.

Welcome to the new laws of 2012

New laws have come into effect as of January the 1st. Exciting changes and everyone should be aware of what is in store for all businesses and business owners.  Watch this space for more updates as they come through. Happy new year and stay safe!


Welcome to the new and improved Personalised Business Coaching & Solutions website. We will start adding great articles, industry updates and tips in 2012, so please return soon.

















Workplace Health & Safety Consultants

PO Box 678
Bribie Island QLD 4507
Tel: 07 3410 8482

Worplace Health & Safety Training and Audits

WH&S Services:

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