Hi, any thoughts on this one?
1. Downstream PCBU sets up a work project and contracts an Upstream PCBU to oversee and supplies design specifications to Upstream PCBU for plant which breaches the national statutory performance code for this plant. Unknown if this was deliberate or not.
3. Upstream PCBU designs plant as specified and does not raise with Downstream PCBU that the plant as designed will not comply with the requisite code. Unknown if identified at time or not.
4. Upstream PCBU sub-contracts installation and commissioning of the plant to a contractor who has an nationally accredited in-house inspector in its team and who gives the non-compliant design a clean bill of health - the plant is manufactured and installed. The Inspector signs off the installed plant and this is accepted by the Territorial Authority in good faith.
5. Downstream PCBU quality control for project fails to identify any compliance or safety issue.
6. An HSR at the workplace where the plant is installed identifies safety issues, works back to identify cause is a non-compliant design and brings this to the attention of their PCBU, who initially resists acknowledging the matter but in the end agrees and takes steps to remedy.

Question: If under section 39 of the Act, the Upstream PCBU owes a duty to the workers in the Downstream PCBU i.e. to have designed plant that is without risks to the health and safety of persons who will use the plant, who can hold the Upstream PCBU even a little bit accountable if the Downstream PCBU does not want to?