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Ensuring contractor competency is a critical health and safety issue

April 28, 2020

Grant Nicholson Partner
Olivia Welsh Senior Associate
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Finding competent contractors, and ensuring they implement appropriate health and safety processes, can often be a challenge.  A recent prosecution of a principal for engaging incompetent contractors highlights the importance of taking adequate steps to ensure contractor competence both at the outset and throughout the performance of any contract.   

 

WorkSafe prosecution

At the end of 2019, Central Siteworks Limited (in liquidation) (CSL) was convicted and sentenced for failing to ensure a worker was kept safe whilst felling trees, after a tree crushed a worker causing serious chest injuries.  

 

The law

CSL breached its primary duty of care under section 36 of the Health and Safety at Work Act 2015 (HWSA).  That duty requires PCBUs (persons conducting a business or undertaking) to ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU and other workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.

 

CSL had engaged a contractor to carry out the forestry work, but it transpired the contractor’s workers did not have any forestry or arboriculture qualifications, had very limited experience of that type of work, and had not received appropriate training.  This was clearly deficient.

 

Key considerations and WorkSafe guidance

WorkSafe has released good practice guidelines in a document called PCBUs Working Together (Guidelines).  This gives practical advice and guidance on two key areas of contractor engagement:

  1. How to build health and safety into contracting practices; and
  2. How PCBUs can work together to meet shared duties.

 

The Guidelines update the previous well known document, A Principal’s Guide to Contracting, which provided important guidance about how to meet contracting obligations under the old Health and Safety in Employment Act 1992.  There are three main matters to consider.

 

Choosing a contractor

It is important to make health and safety considerations a priority from the outset, including during tendering or any other pre-contract selection process.  The Guidelines highlight some key considerations when choosing a contractor, including:

  • past performance/experience in health and safety
  • experience of the job at hand
  • resources to carry out the work safely
  • accreditation under health and safety management programmes
  • details on employee/worker training
  • health and safety or training certificates
  • internal arrangements for health and safety management.

 

This information can be gathered in various ways – what is important is that the principal can verify the proposed contractor is right for the job.  For example, prequalification questionnaires can be sent out to potential contractors, or copies of health and safety plans, policies and procedures can be requested.  Interested parties can also be asked how they intend to manage specific risks the principal has identified in regards to the proposed work.

 

The contract

Once a competent contractor has been selected, health and safety requirements should be documented, and where appropriate, built into the contract. Contract documentation should set out:

  • clear responsibilities of each party
  • training and competency requirements for workers
  • the approach to hazard and risk management
  • co-ordination and reporting requirements
  • any other project specific information.

 

Whilst contract documentation should clarify roles and responsibilities, it is important to remember that no one can contract out of health and safety responsibilities. The contract is not a means of deflecting rightful responsibility, but instead is a way of facilitating better health and safety management and ensuring the duty to consult, co-operate, and co-ordinate is met. 

 

Monitoring and ongoing review

Monitoring of, and providing feedback to, contractors is key to accountability and good practice.  Principals should ensure that health and safety processes and performance are reviewed and monitored through the duration of the contract. This can include: 

  • monitoring the health and safety performance of contractors (and any sub-contractors)
  • monitoring work conditions and practices
  • monitoring hazard reporting and risk assessments
  • bringing unsafe conditions or practices to the attention of the contractor.

 

WorkSafe’s Guidelines are available as a free download here 

 

If you have any questions or would like advice about the engagement and management of contractors in your business, please get in touch with our team of health and safety experts.

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