Chain of Responsibility Update: Can You Contract Out Responsibility? High Court View.

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It’s long been said that you can’t contract out, or delegate responsibility, and certainly this saying has a good fair share of truth…

Our responsibility as company owners is to take “every reasonable measure” regarding our safety obligations, and this principle forms the basis of the whole Chain of Responsibility legislation.

SafetyCulture.com.au recently published an interesting case about this in an article titled: “You can’t contract out your responsibility – or can you? The High Court weighs in.”:

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 4th, 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 [2012] 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 article correctly refers to the “fine line of responsibility for WHS obligations.”  Was DMP Poultry responsible for the unlicensed and unsupervised forklift operator?  Was Baiada ultimately responsible for the death that occurred?

The High Court made some interesting general observations:
The following observations were made by the High Court regarding the scope of duty:

  1. WHS legislation requires an employer to take reasonably practicable steps to maintain a safe working environment; and
  2. ‘reasonably practicable’ requires a range of factors be considered including the competence and skill of the contractor in comparison to the principal.

(Source: www.safetyculture.com.au).

In discussing the ramification of this case, SafetyCulture.com.au comments:

“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.”

and further….
“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.”

What do you think?  was it “reasonable” for Baiada’s conviction to be overturned?  How does a contracting company “reasonably” go about ensuring the safe practices of sub-contractors, like, in this case, DMP Poultry?

Here are some thoughts about “reasonable steps to take:

  1. Inspect the sub-contractors OHS Plan, and assess what their commitment is to training – is it adequate (In the case of the transport industry, this is the Chain of Responsibility Training
  2. Ask if all operators requiring special licenses, like forklift operators, have current licenses in place – how is this determined?
  3. What measures are in place to ensure adequate supervision of dangerous tasks?
  4. What measures does teh company have in place to ensure the safety of sub-contractors it engages, that could be part of the chain of responsibility for the project you are responsible for?
  5. What risk assessment and risk management plans are in place and how seriously are they implemented?
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