(C) SOS Safety & Legal June 2017 EFFICIENT ONLINE ONBOARDING AND PRE QUALIFICATION OF CONTRACTORS

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1 EFFICIENT ONLINE ONBOARDING AND PRE QUALIFICATION OF CONTRACTORS

2 The Benefits Ensure separation of responsibility for management of safety between contractors and employers. Prequalify contractors from any device / any time. Integrate with existing HR, payroll software and other programs. Quickly demonstrate due diligence for contractor safety. 15 minutes to complete. 10 minutes to approve. Automatically send Inductions to contractors. Centralised recording and instant reporting of contractor data and status (approved or rejected). Legally compliant (developed by a lawyer and OHS professional). Automatic reminders to contractors to update insurances.

3 The Benefits Uses every day language. Legally binding Terms and Conditions. So easy to use and implement - anyone can administer it! One annual fee no matter how many contractors/ sites. Easily collect and store safe work method statements. Additional Services : a. Set up site registers for visitors on multiple sites + run reports b. Verify compliance using a FREE mobile APP ContractorSAFE EFFICIENTLY MANAGES CONTRACTOR SAFETY WITH A MINIMUM OF FUSS AND EXPENSE.

4 The Law Contractor's are workers for the purposes of OHS Duties to ensure their safety 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

5 Duties to Contractors? Duties to contractors are clearly owed but what are they and how do we meet them? Limited by: a. Reasonable practicability b. Matters over which the employer has control c. Duty of care

6 Duty of Care 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 Duty of Care 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 Duty of Care 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 Duty of Care 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 Duty of Care 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 Duty of Care EPHE ENTERPRISES Improvement notice withdrawn as Employer did 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 subcontractors. 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 Duty of Care MCGLASHAN V QBE INSURANCE, 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 It s not just a legal question Moral duty not to hurt people Reputational risk Commercial risk

14 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.

15 So what should we do? Engage contractors with a good reputation. Ask the right questions. a. Confirm licensing competence (see next slide) b. Confirm supervision c. Confirm risk management d. confirm management of subcontractors Clearly establish the scope of work and responsibilities of each party for safety.

16 So what should we do? Understand obligations retained as a principle contactors: a. Site safety b. Safety coordination c. 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.

17 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

18 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.

19 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

20 Assistance Sue Bottrell