By Andrew Hobbs
MOST businesses will engage an independent contractor at some point, but Safe Work Consulting principal consultant Amy Towers says many business-owners are oblivious to the duties they owe these contractors.
Any person, corporation, partnership or association that conducts a business or undertaking – whether they are for profit or not-for-profit – has responsibilities under the harmonised work, health and safety (WHS) legislation that covers NSW, Queensland, SA, NT and the ACT.
The responsibilities of a person conducting a business or undertaking (PCBU) are similar to those of ‘employers’ under WHS legislation in Victoria and WA.
In all jurisdictions, legislation says independent contractors engaged to undertake work for a PCBU or an employer are considered to be workers of that business.
As a PCBU, you have a primary duty of care to any contractor you engage and to any workers they may have working for them. Under this duty, you must ensure their health and safety, so far as is reasonably practicable, Ms Towers said.
You cannot use a contract to limit or modify your statutory obligations. If you attempt to transfer your duty to an independent contractor via a contract, the provision will be invalid.
Five steps for exercising your duty of care
Developing a comprehensive contractor management system addressing the following elements is a key part of meeting your duty of care to independent contractors:
1: Selection: Select contractors based on their expertise, competence and WHS record. For example, are they properly licensed? Do they have references from commercial clients?
2: WHS documentation: Obtain and review all relevant contractor documentation, including competencies, high-risk work licences, insurances and safe work method statements (if applicable).
3: Induction: Induct all contractors in your WHS policies and procedures before they commence work. Provide contractors with information, instruction and training that is both easy to understand and relevant to the work they are engaged to perform.
4: The three Cs: Consult, cooperate and coordinate activities with contractors and others involved in the work.
5: Monitoring: Monitor contractors’ work activities to ensure they are carried out in accordance with your contractor management program and relevant WHS legislation.
Contractors are not absolved of their duty of care to their own workers and others in a workplace just because they are retained by you.
Independent contractors are also deemed PCBUs if they are operating a business and engage their own workers.
As a result, there may be complex and overlapping duties of care operating in the same workplace.
Where to find more help
Chapter C1 Contractors of the Health & Safety Handbook, published by Portner Press, explores in greater detail the subject of concurrent liability – where two or more parties are independently liable for the same incident.
It also provides further information about how the contractor management system you devise might help to do that, as well as further information about how to conduct a due diligence check before a contractor starts work at your business.
Written by the legal team at Holding Redlich, the chapter is just one of more than 70 that cover the A-Z of workplace health and safety, with clearly written guides to help you plan for future problems and avoid them where possible.
Order the Health & Safety Handbook today and put it to work at your business on an obligation-free trial. Show your workers you take safety seriously this Safe Work Month.