In 2010 Sue Bottrell, after watching a Principal Contractor be found guilty for failing to manage the safety of expert contractors, wrote an article looking at the legal issues surrounding management of contractor safety, and the legal obligations imposed on employers under the health and safety legislation. In that article, she challenged the obligations which were being placed on Principal contractors to take control over contractors safety arrangements requiring them to go to significant lengths to approve, monitor and supervise those arrangements. The position proposed in that article pre-empted the land mark decision of the High Court in 2012 in Baiada Poultry v the Queen. That case set the scene to significantly change procedures adopted by employers and contractors when managing contractor safety, which should have reduced the associated administrative burden. Sadly, the far-reaching implications of that decision have been poorly understood and largely ignored by the safety profession to the detriment of employers and contractors. Employers continue to implement complex and unnecessary contractor management systems which not only place a significant administrative burden on employers and contractors but which arguably increases the liability of employers in the event of an incident involving contractors they engage. However, since the Baiada decision, State courts have increasingly adopted the principles laid down by the High Court and developed them further. This has clarified the duties owed to independent contractors and the actions required of Principal Contractors to meet their obligations. It has also clarified and significantly restricted liability owed to contractors under OHS, workers compensation and negligence law. This presentation will summarise the case law up to and since the Baiada decision and provide practical guidance to safety practitioners on how to ensure they are providing the right advice to their employers and clients. It will challenge the status quo and will generate discussion and debate amongst participants. Participants will gain an important understanding of the issues faced by principal contractors in confirming contractors safety arrangements whilst maintaining separation of responsibility between the parties to a contract. Practical advice will also be provided on how to demonstrate due diligence and limit liability, while acknowledging when it may be desirable to take greater control over contractor’s safety arrangements.

1. Efficient Online Onboarding
and Pre qualification of Contractors

2. The Law
• Contractor's are workers for the purposes of OHS
• Duties to ensure their safety so far as is reasonably practicable are owed to them
• OHS Act section 21
• 3 (a) a reference to an employee includes a reference to an independent contractor engaged
by an employer and any employees of the independent contractor; and
• 3 (b) in relation to matters over which the employer has control or would have control if not
for any agreement purporting to limit or remove that control.
• WHS Act section 8
• Meaning of a worker – independent contractor /sub contractor
Section 19
(a) Engaged by
(b) workers whose activities in carrying out work are influenced or directed by the person,

3. Duties to Contractors?
• Duties to contractors are clearly owed but what are they and how do
we meet them?
• The way these duties are met is different to our own employees due
to
• Reasonable practicability
• Matters over which the employer has control
• The nature of the contract
• Expert nature of the work

4. Duties owed to Contractors
The employer retains responsibility for the health and safety of specialist contractors at sites it
controls and in respect to matters over which it has control including;
• Complying with applicable health and safety legislation
• Controlling risks arising from its operations
• General site safety including security and general traffic management at sites it occupies and controls
• General emergency response including evacuation and general first aid in respect of its operations and at sites the
employer occupies and controls.
• Provision of appropriate facilities at sites the employer occupies and controls
• Ensuring safe access and egress at sites the employer occupies and controls
• Notification of serious incidents as required under work place health and safety legislation that occur at sites the employer
occupies and controls
• Selecting specialist contractors who are appropriately competent and/ or licensed to undertake work.
• Consulting with contractors with respect to matters of health and safety over which it has control
• Induction of contractors into site safety rules and organisational safety arrangements at sites the employer occupies and
controls
• Supervising contractors with respect to compliance with any site safety rules or procedures, relevant to matters over
which the employer has control and at sites the employer occupies and controls
• Coordinating contractor activities where multiple contractors are working at sites the employer occupies and controls

5. Duties owed by Contractors
Contractor have duties to
• Provide any informationnnd confirming the management of health and safety risks associated with the work
being undertaken.
• Comply with all applicable health and safety legislation.
• Identify and manage all hazards associated with the work they do
• Ensure their work does not pose a risk to the health and safety of others
• Consult with the employer and others with respect to OHS matters over which the contractor has control
• Immediately notify the employer of any incidents which occur at sites the employer occupies and controls
• Comply with all safety rules and procedures as provided by the employer at sites the employer occupies and
controls
• Provide the employer with any information, including training, to ensure the safety of the employer
employees and others arising from risks associated with the contractor’s work.
• Provide additional first aid response arising from risks associated with the contractor’s work.
• Provide additional emergency response arising from risks associated with the contractor’s work.
• Confirm competence and management of safety by all specialist sub-contractors and hazards arising from
sub-contractor activities.

6. Leighton v Brian Allen Fox 2009
“once an activity has been organised and its operation
is in the hands of independent contractors, liability for
negligence by them within the area of their
responsibility is not borne vicariously by the Principal
Contractor".

7. Kirk v WorkCover NSW 2010
"it is absurd to have prosecuted the owner of a farm
and its principal on the ground that the principal failed
to properly ensure the health, safety and welfare of his
manager, who was a man of optimum skill and
experience – skill and experience much greater than his
own."

8. Fortescue Metals 2012 Supreme Court of WA
“Whilst the respondents could not delegate or contract
out of their duties, they could perform them by
ensuring that an appropriately experienced and
qualified person was retained to deal with matters
beyond their own knowledge and ability.”

9. Baiada Poultry v R, 2012
“just because a Principal has a legal right to issue instructions and it is
possible to take that step, this does not establish that it is a step which
was reasonably practicable to provide and maintain a safe working
environment, even where the Principal has knowledge of the risks and
knows of ways to control such risks.”

10. Waco Kwikform 2014 – Taking Control
• Waco contracted Bradley Tracey to erect scaffolding
• Its was a requirement in the contract that BT prepare SWMS
• Waco retained general supervisory duty
• No continuing duty on Waco duty to prescribe and enforce a safe
system of work for dismantling the scaffolding.
• There was an incident so Waco prepared and issued a SWMS and
required BT workers to comply with it
• A worker fell and suffered serious injuries after Waco issued the
SWMS
• Waco found liable for incident as it has assumed control of the system
of work.

11. EPHE Enterprises
• Improvement notice issued to EPH requiring evidence of maintenance
of plant by subcontractors.
• Notice appealed and withdrawn as EPH did not have the requisite
control over matters required under the notice
• Confirmation of maintenance
• Daily pre start checks
• Confirmation of defect reports and actions
• Require evidence of roadworthiness
I am not satisfied that the applicant has control over the way in which
the Operators perform their duties, and specifically over maintenance
of the Operator’s vehicles.

12. McGlashan v QBE Insurance, 2014 - Duty of
Care
• McGlashan roofing contractor engaged by Lidoran to repair roof
• It should have been a two man job but McGlashan did it on his own
• Ladder fell over McGlashan injured
• Claimed Lidoran owed him a duty of care to provide him another worker to
assist him
• Lidoran was entitled to leave it to the judgment of Mr McGlashan as to
whether a particular job could be undertaken safely by him.
• Confirms that where a head contractor engages a subcontractor to perform
work, and the subcontractor is subsequently in control of the system of
work used, the head contractor will not owe the subcontractor a duty of
care in respect of the method of work.

13. Karimbla Constructions
• In March this year, the principal contractor, Karimbla Constructions
Services (NSW) Pty Ltd, was fined $135,000, plus $27,000 in costs,
after pleading guilty to breaching the State WHS Act in relation to the
February 2015 incident.
• District Court Judge Andrew Scotting found Karimbla's "work
practices focused too much on the work performed on site and did
not pay adequate attention to the dangers presented by the
conditions of the site itself".

14. Fairbrother Pty Ltd
• He accepted that Fairbrother had "effectively 'got the experts in' to
do this high-risk work and most if not all of their workers were
entitled to rely on that expertise".
• However, there were "plainly a number of opportunities" for
Fairbrother to check whether the work being perform complied with
the approved SWMS, but it didn't do so, he said.
• Does not accord with other decisions.

15. SWMS AND CONTRACTORS
• WorkSafe Victoria in 2010 a SWMS is described as
“a safety planning tool that identifies the hazards and risks of HRCW
and documents the control measures necessary to manage those risks”.
SWMS are not required to be developed for all and any work being
undertaken, and all the steps required to complete a task are not
required to be included in SWMS.

16. SWMS AND CONTRACTORS
• Legal requirement to collect SWMS for HRCW (questionable value)
• Has become an end in itself
• Driven by the Regulator
• Detracts from real time safety management.

17. SWMS AND CONTRACTORS
• The purpose of the development of SWMS is to ensure that
employers, in consultation with workers undertaking the work, have
taken the time to consider the risks posed by work being done,
identify any high-risk construction work and the specific risks
associated with that work and to develop risk control solutions in the
context of the work being done.
• The very nature of a SMWS is that it must be developed in response
to the work being done, and the development of generic or
prescriptive SWMS will not achieve the intention of the regulations.

18. But I can’t let go of Control?
• Will taking control of your contractors safety arrangements improve
safety?
• Will requiring/ checking documents improve safety?
• Giving responsibility and trust improves safety
• Reward local control
• Empower
• Control what you can control well

19. So What Should we do?
• Engage contractors with a good reputation
• Ask the right questions
• Confirm licensing competence
• Confirm supervision
• Confirm risk management
• confirm management of subcontractors
• Clearly establish the scope of work and responsibilities of each party for safety
• Understand obligations retained as a principle contactors
• Site safety
• Safety coordination
• manage safety risks from own operations
• Demonstrate due diligence when engaging contractors
• Require development and implementation of SWMS in respect of high risk construction work
• Do not approve, amend or supply safety instructions in respect of the contactors work

20. Monitoring?
• No strict legal requirement to do it but
• Ask questions if you think there is a problem?
• Suggest alternatives
• Discuss your concerns
• Do you have the knowledge?
• Are you creating other problems ?
• SHOW RESPECT AND USE THE EXPERTISE OF YOUR CONTRACTOR

21. What evidence of systems should we collect?
• Collection of safety documentation is not necessarily an effective way
to demonstrate management of safety
• Work as imagined vs work as real
• It is questionable that the production of safety documentation
improves contractor management of safety
• SWMS are only required for high risk construction work
• Most SWMS are generic and not updated for the job
• Licenses are out of date as soon as they are provided
• Reviewing, approving and amending contractor safety arrangements
is risky

22. Managing Contractors with poor safety
• Refer for assistance
• Be realistic about what you require (documented systems)
• Keep it simple
• Keep focussed
• Terminate contracts
• Do not rehire
• Conduct random audits if you have the knowledge to do so.

23. Assistance
Sue Bottrell
0431 975 286
info@contractorsafe.net.au