Baiada Poultry and Contracts WHS obligations

Workplace Health & Safety and contractors – you need to know your duties

The complicated issue of where the health and safety responsibilities of employers lie when it comes to contractors has received some clarification in the High Court, however questions continue regarding an organisation’s liabilities should a contractor get injured at the workplace.

A recent ruling in April 2012 by the High Court of Australia has confirmed that engaging a contractor, who is an expert in their field, to perform work may be deemed a reasonably practicable way to ensure worker health and safety.

It was in Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 which involved the death of an employee from a transport contractor. The employee was killed when a chicken cage fell on him while he was helping an employee from a different contracting company to load his truck.

Baiada Poultry engages contractors in several stages of its operations, including the transportation of its product, but does not oversee the process. Baiada was originally prosecuted by WorkSafe Victoria for not providing for the health and safety of its contractors' employees. A jury found the company guilty of the offence.

Then there was an unsuccessful appeal to the Victorian Court of Appeal, after which Baiada then appealed to the High Court.

The High Court unanimously overturned Baiada's conviction, finding that the key consideration should have been as to whether Baiada had fulfilled its duty of care by contracting the work to contractors deemed to be competent and experienced.

When Justice Dyson Heydon gave his decision, he used an example of a householder who engages competent and experienced tradespersons to perform electrical and plumbing work. Heydon observed that it would be more practicable for the householders to rely on the contractors to determine how to safely perform the work than for the householders to give instructions on the matter.

The High Court's decision provides useful clarifications regarding the scope of the duty for employers. The important points for employers from this matter include:

 

  • The Workplace Health and Safety legislation requires an employer to take reasonably practicable steps to ensure health and safety, rather than every possible step that could be taken; and
  • Reasonable practicabilityrequires consideration of a range of factors, including the competence and experience of the contractor compared to that of the principal (the company engaging the contractor).
  • A principal must make sure the health and safety of contractors' and subcontractors' workers is provided if the principal has 'control' over a matter that gives rise to a safety risk. 'Control' can be a contractual right to control or direct the contractor, or a practical ability to do so.
  • Engaging a contractor to perform work may be a reasonably practicable way for a principal to provide such worker health and safety. Even particularly so when the contractor has greater expertise and experience in performing the work than the principal, and the contractor has its own safety system and procedures that it uses  in relation to the work.

Be aware though that, while engaging independent contractors and relying on their expertise may be considered a reasonably practicable step to satisfy work health and safety requirements, it might not be sufficient in all cases. This could include cases where issues of control arise in contractual arrangements, or where there are questions about an independent contractor's competence or experience.

This is provided as general advice only and we suggest you consult a specialist solicitor for further advice in this area. 

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