04:26 pm, Wednesday 4 April, 2012
A High Court decision has highlighted the fine line of responsibility for Work Health & Safety obligations when using contractors. Poultry heavyweight, Baiada, contracted DMP Poultry to catch and cage chickens from chicken growers. The cages were loaded into steel modules which were then loaded by a forklift onto a trailer owned by Baiada and hauled to their processing plant by another independent contractor. An unlicensed operator was using the forklift, unsupervised, on December 4, 2005 when a steel module fell, striking one of the independent contractors, killing him.
“At trial …. the trial judge did not direct the jury that the prosecution needed to prove beyond reasonable doubt that by engaging apparently skilled subcontractors, the appellant did not discharge its statutory obligation to provide and maintain a safe working environment so far as was reasonably practicable. The jury found the appellant guilty…”(baiada poultry pty ltd v THE QUEEN  HCA 14).
Baiada appealed this decision, and after a further decision by the Court of Appeal that the Judge had made an error, was granted special leave to appeal to the High Court of Australia.
The High Court unanimously overturned Baiada’s conviction and held that consideration should have been given to whether Baiada had fufilled its duty by engaging competent contractors.
The following observations were made by the High Court regarding the scope of duty:
- WHS legislation requires an employer to take reasonably practicable steps to maintain a safe working environment; and
- ‘reasonably practicable’ requires a range of factors be considered including the competence and skill of the contractor in comparison to the principal.
What does this decision mean?
The principal contractor must ensure the health and safety of contractors’ and subcontractors’ workers if the principal has ‘control’ over a matter of a safety risk. ‘Control’ may be a contractual right to control or direct the contractor, or a reasonably practical ability to control the contractor.
Where a contractor has more expertise or experience in performing the work than the principal, engaging such a contractor may be a reasonably practicable way for a principal to ensure the health and safety of workers. This may be particularly so if the contractor has its own WHS system and procedures that it implements to undertake the work.