Contractor Management Procedure

The primary duty of care imposed on the PCBU is to ensure, so far as is reasonably practicable, the health and safety of:
•    workers engaged, or caused to be engaged by the person; and
workers whose activities in carrying out the work are influenced by the person while the workers are at work.

 “Health” is defined as both physical and psychological health.  
This primary duty also extends to other persons who may be put at risk from work carried out as part of the PCBU (e.g. visitors and members of the public).

The Legislation provides some guidance on how PCBUs can fulfil this primary duty. A PCBU must ensure, so far as is reasonably practicable:
•    the provision and maintenance of a work environment without risks to health and safety;
•    the provision and maintenance of safe plant and structures;
•    the provision and maintenance of safe systems of work;
•    the safe use, handling and storage of plant, structures and substances;
•    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and that the health of workers and the condition at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

What is “reasonably practicable” in ensuring health and safety?

At its simplest: it is taking all action that is reasonably able to be done to ensure health and safety. Whether something is “reasonably able to be done” is informed by the following considerations: 

• balancing the likelihood of hazards or risks occurring; 
• the degree of harm that might result from the hazard or risk;
• what the duty holder knows or could be expected to know about the hazard or risk and controlling the risk;  
• the availability and suitability of control measures; and
• the costs associated with control measures (but this must be a final consideration). 

What other duties are owed by the PCBU?

The Legislation also imposes some further specific duties on PCBUs:

• who have management or control of a workplace;
• who have management or control of fixtures, fittings or plant at a workplace;
• that design plant, substances or structures;
• import plant, substances or structures;
• supply plant, substances or structures;
• that install, construct or commission plant or structures.

If your business falls within any of the above categories, you should seek legal advice to ascertain what your additional duties are under the Legislation.

A PCBU must also consult with any affected workers in relation to health and safety issues. This includes: 

• when identifying hazards and assessing risks;
• when making decision about health or safety; and
• when proposing changes that may affect the health or safety of workers.  

Who is a worker?

A worker includes any person that carries out work for a PCBU. That broad definition includes employees, contractors or subcontractors, employees of contractors or subcontractors, labour hire employees, outworkers, apprentices, volunteers, etc. 

Does the contractor or do other parties also have a duty?

A contractors can be both a PCBU and a worker. 

Contractor as a PCBU

This primary duty can be the responsibility of more than one party at any one time, for example, where a company engages a contractor to perform work at the workplace. In this instance, both the company and the contractor are PCBUs for the purposes of the Legislation and each hold a duty to ensure the health and safety of the workers of the contractor. Each duty holder must comply with the duty imposed on it, to the extent that it has the capacity to influence or control the matter, even if the same duty is also held by another party.

This means that the company must comply with its primary duty for the health and safety of the workplace, irrespective of whether a contractor holds the same duty. In addition, work health and safety regulations may also impose specific obligations on a principal contractor for specific industries (e.g. on a construction project) as a PCBU (i.e. they manage or control the work at the workplace) in relation to some types of high risk work.

Contractor as a worker

In addition to complying the with primary duty of care (and the related duties as a PCBU), as a worker, a contractor must also to take reasonable care for their own health and safety, as well as ensuing they are not adversely affecting the health and safety of others.

What happens when there are a number of parties who owe duties?

Further, in situations where responsibility for health and safety is shared, or duties overlap, the Legislation requires that there is consultation, co-operation and co-ordination of activities with all duty holders, as far as reasonably practicable (for example, there may be a contract principal, project manager, architect, superintendent etc between the company and the contractor). 

The purpose of that consultation, cooperation and coordination of activities is to ensure that all actions taken are complimentary and will avoid any gaps in managing health and safety. 

For further guidance see the Code of Practice - Work Health and Safety Consultation, Co-Operation and Co-Ordination (relevant to your State or Territory). The code is generally applicable to all types of work and all workplaces covered by the Legislation, including workplaces that are mobile, temporary and remote.

Compliance with this procedure will assist the company in meeting its obligations under the Legislation, associated regulations and codes of practice in circumstances where contractors are engaged.

However, the company will need to assess its specific work and industry and obtain its own work health and safety advice regarding whether the processes it has implemented are sufficient to satisfy the company’s work health and safety obligations.

Any company using this procedure should also carefully review the commitments made in the procedure to ensure the company is prepared to undertake the relevant steps outlined. Whilst the procedure provides a helpful guide of steps that can be taken to minimise risk, if these steps are not complied with, the implementation of the guide may increase a contractor’s exposure to liability because the contractor may be found to be in breach of its own policies. 

Before engaging a contractor

Prior to engaging a contractor to perform any work, it is important for employers to consider the following:
•    the level of risk involved for the particular project or work to be undertaken;
•    ensure that your contractual arrangements with contractors provide sufficient insurance coverage for the level of risk involved in the work or project to be undertaken by the contractor;
•    ensure that the contractor can demonstrate how they will conduct their work safely and in accordance with the Legislation. This can be done by creating an “Approved Contractor Register” (this is explained in further detail in the Procedure);
•    implement a system of monitoring the contractor to ensure they are meeting their safety obligations. This will help employers satisfy their duty of care obligations to all workers; and
•    how you will systematically review the contractor’s performance. This should be done on a regular basis. The frequency of such a review will depend on the level of risk involved in the work or project undertaken by the contractor.
 
Record keeping 
Ensure that you keep records during and after the contractor’s engagement. In the event of a safety incident or an audit by the safety regulator, records can help businesses demonstrate compliance with their duties under the Legislation. 
Key records include: risk registers, induction documents, training registers. Other documents that can further assist with demonstrating compliance with consultation requirements include minutes of meetings, emails and file notes.
 

Disclaimer

This procedure does not cover the legal requirements that apply to specific industries or hazards (e.g. the mining industry, high risk chemical facilities or other major hazard facilities, managing  psychosocial hazards at work). For those specific categories refer to the relevant work health and safety regulations and codes of practice that operate in your State or Territory. 
 
 

A PCBU must also consult with any affected workers in relation to health and safety issues. This includes: 
·    when identifying hazards and assessing risks;
·    when making decision about health or safety; and
·    when proposing changes that may affect the health or safety of workers.  

tes of meetings etc.