Where is the line in the sand between Council’s WH&S Duties and those of its Contractors?

LG Leader November 2017

Most councils engage a range of contractors to complete various tasks, ranging from maintenance and roadwork through to IT services.

The Work Health and Safety Act 2012 (SA) imposes strict duties on a Person Conducting a Business or Undertaking (“PCBU”), such as a council, to ensure the health and safety of its workers, and workers whose activities in carrying out work are influenced or directed by the person. But the extent to which that duty is owed may turn on a number of matters, such as the nature of the undertaking, the level of control over the contractor, the expertise of contractors and (to a limited extent) the contracts between parties.

In dealing with contractors, it is important to recognise that the contractor is a PCBU itself, in relation to its own undertaking, and will therefore have its own duties. The case of Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492 is an example of this.

This case established that there is no general obligation on a head contractor to supervise the work of an independent contractor having a particular expertise which the head contractor itself lacks.

The High Court decision of Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, provides a clear example of where the duty may only extend so far as relying on the expertise of contractors engaged by the principal.

Baiada processed chickens for sale. It contracted with chicken farmers, to raise the chickens (supplied by Baiada), chicken catchers, to capture and load the chickens into special crates (supplied by Baiada), and with haulage contractors, to transport the loaded crates

from the farms to Baida’s facility for processing. While a chicken catcher was loading crates filled with chickens onto a prime mover for transport at a farm, some of the crates fell and fatally injured an employee of the haulage company.

Baiada argued, and the High Court accepted, that it was entitled to rely upon the expertise of its contractors, and in engaging such contractors, it had done all that was ‘reasonably practicable’. The Court accepted this argument, and Heydon J noted in his minority decision (but agreeing with the majority) that, “In some circumstances, the employment of independent contractors may be the only reasonably practicable way of ensuring and maintaining a safe working environment.”

It does not mean councils can abdicate responsibility for WH&S to their contractors. The duties on council imposed under the WH&S Act remain, and cannot be transferred. However, council is required only to do all ‘reasonably practicable’, and only ‘to the extent to which the person has the capacity to influence and control the matter’.

This means councils will still need to manage safety during the contract process, including requesting contractor’s systems of work, completing reviews of contracts, policies and procedures, and providing training to staff, including contractor management.

If you require assistance with the process of managing contractors, please contact Chris Morey on 8113 7111 or cmorey@kelledyjones.com.au.