I often see advertisements offering WOHS (workplace/ occupational health and safety) inspections for strata title buildings. I also speak to Owners Corporations (OC) Committee's, usually made up of residential owners, who are concerned about their obligations for WOHS for contractors and others. So, let’s clear it up.
Strata title OC Committees of solely residential properties are exempt from coverage under WOHS legislation as they do not do not have any employees. The engagement of independent contractors does not result in the Owners Corporation becoming an employer to which WOHS obligations attach.
Strata title OC's which manage solely commercial properties are subject to WOHS obligations and must ensure that risks to employee safety are managed in respect of common areas. Including ensuring that matters over which the Owners Corporation has control in common areas do not impact on the health and safety of contractors, such as ensuring safe access and egress, housekeeping, exposure to asbestos and work at heights. However, OC’s in commercial properties are entitled to rely on the expertise of contractors to undertake their specialist work safely once they have obtained confirmation from the contractor that they have safety arrangements in place.
Where a property has mixed commercial and residential owners and there are common areas which are used solely for residential purposes, and the Owners Corporation does not engage any employees they are exempt from WOHS obligations.
If your OC is subject to WOHS obligations and has any concerns about its legal obligations, contact ContractorSAFE to easily put your mind at ease. Go to www.contractorsafe.net.au or email us at email@example.com
There is significant confusion in the use of the terms JSA and SWMS.
Job safety analysis refers to the process by which an analysis of the work to be done is undertaken to identify risks and develop strategies to eliminate or control those risks.
A SWMS is the document by which the JSA is recorded
SWMS, while a useful tool to identify and record hazards and methods to control them more generally, are only legally required to be developed for high risk contruction work – See OHS Regulations 2007 (Vic) Division 5 and WHS regulations chapter 6, section 291
The purpose of the development of SWMS is to ensure that employers, in consultation with workers undertaking the work, have taken the time to consider the risks posed by work being done, identify any high-risk construction work and the specific risks associated with that work and to develop risk control solutions in the context of the work actually being done.
The very nature of a SMWS is that it must be developed in response to the work actually being done, and the development of generic or prescriptive SWMS will not achieve the intention of the regulations, without the ability to amend those SWMS when onsite.
Best practice, which supports efficient documentation, indicates that the process of JSA be conducted through discussion, physical inspection, consideration of expert content and problem solving and the SWMS process be used to document the outcome of those processes.
The responsibilities of employers to contractors is now very clear. The key concept is matters over which each party has control. In a recent WorkSafe Victoria Health and Safety Week presentation these concepts were clearly articulated by Karen Willis from Trusafety Solutions and endorsed by Worksafe Victoria.
ContractorSAFE is reflects these principles and is the simplest system to demonstrate due diligence for safety when engaging contractors. Contact ContractorSAFE and get your contractors under control.
In a previous post and through an article in the Herald Sun SOS Safety and Legal alerted the public of an unacceptable situation, where an owner driver was being denied access to worker?s compensation by both ComCare and WorkSafe due to an anomaly in the two schemes legislation.
The essential issue came down to the definition of an owner driver. WorkSafe says an owner driver transports "goods" and does not include the transport of waste or materials. Which results in an owner driver who is employed by one employer more than 80% of the time being a contractor and under the 80/20 rule a deemed worker of their employer, therefore required to claim worker?s compensation from their employer. However, ComCare do not agree.
However, WorkSafe have decided to honour our client?s policy after having it pointed out to them that it was unacceptable that a private citizen would need to launch legal action in the Supreme Court to sort out the issue between the two schemes.
SOS Safety and Legal commends WorkSafe for their decision, but a real issue with the two schemes remains and many owner drivers are in no man?s land while this anomaly exists and are paying for workcover policies that may offer no cover.
Baiada Poultry had lost its application to the High Court for special leave to appeal a case involving the decapitation of a contractor while cleaning a chicken processing chain line. The application advanced the argument that WorkSafe had not provided enough detail in specifying how Baiada could have controlled the risk and therefore the charge was invalid. This argument was rejected.
SOS has cited the successful appeal to the High Court in 2012 in respect of clarifying the duties owed to contractors in respect of safety and the level of control a principal contractor must exercise over a contractor in respect of the work they are engaged to undertake.
The two cases must be distinguished and it would be a mistake to think that this decision overrides the decision in 2012.
In the current case Baiada had at all times control over the processing line that was being cleaned. The cleaners were there to clean; the hazards posed by the chain line clearly arose from the undertaking of Baiada and Baiada clearly should have had procedures in place to ensure that it was locked out and isolated prior to cleaning being undertaken.
This is starkly different from the successful appeal in 2012 which established that where an independent contractor has been engaged a principal contractor is not required to retain control over safety arrangements in respect of the hazards arising from the contractor?s work.
The crux of that decision was that even where a Principal has the legal right to instruct a contractor either through contract or some other means, it does not follow that it is reasonably practicable for a Principal to do so because of the expert nature of the work being under taken or the cost and effort of such instruction.
As we have consistently said principal contractors must identify the hazards posed by their undertaking, in this case hazard posed by Baiada?s plant, and eliminate or reduce them so far as is practicable for contractors as well as their own employees.
In response to the ongoing confusion and misinformation about what is required to manage contractor safety, SOS Safety and Legal has developed the only contractor management system which is consistent with current Australia case law and legislation.
ContractorSAFE is the simplest way to manage contractor safety for both independent contractors and Principal Contractors
ContractorSAFE correctly reflects the law and demonstrates due diligence when engaging contractors.
ContractorSAFE was developed by a qualified lawyer
ContractorSAFE correctly reflects Australian High Court principles.
ContractorSAFE ensures contractors and Principals clearly understand their legal obligations
ContractorSAFE gives you ongoing support and advice from a qualified lawyer
ContractorSAFE gives you ongoing IT support
ContractorSAFE is charged on a one off annual fee
ContractorSAFE gives you freedom to add as many contractors as you want at no extra cost
ContractorSAFE can be used and administered by administrative staff
ContractorSAFE means your contractors can be on-board in 15 minutes
ContractorSAFE is online and can be used through smart devices.
The other systems currently being offered to manage contractor safety are cumbersome and onerous and in fact increase the liability of Principal Contactors.
SOS Safety and Legal is representing the widow of an owner driver, employed by Cleanaway, who died last year while working in Melbourne. Gary Torr worked 17 hours a day 6 days a week for over 15 years for Cleanaway and held his own worker?s compensation insurance with the Victorian WorkCover Authority. However, both the VWA and Cleanaway are denying liability for worker?s compensation Gary, leaving his widow, Doris Torr, without access to workers compensation insurance.
A recent article in the Herald Sun exposes the illegality of this situation and the risk to other workers if they are in the same situation. I urge you to read the below article and consider of this situation may affect you or your workers and contact WorkCover.
Insurer finds loophole to deny widow - The Herald Sun 16 June 2016
An insurance giant has used a loophole to deny a Melbourne widow workers compensation for her husband?s death. Doris Torr has been forced to sell her home after both CGU Insurance and WorkSafe Victoria denied liability for her late husband, Gary ? for contradictory reasons.
Mrs Torr, 61, said she was left shattered when her truckie husband died of a heart attack while on a job for Cleanaway on June 26 last year. She said the buck-passing by CGU, WorkSafe and national workers compensation scheme ComCare had compounded her grief. ?Gary paid for his WorkSafe policy, he worked really hard and now he?s not covered? Doesn?t he count? Is he nobody?? Mrs Torr said. ?Gary was loyal to Cleanaway, it just seems so wrong.? Mrs Torr said she recently sold their beloved Sunbury home after being unable to service the loan, and was moving in with her daughter.
Cleanaway and its insurer, CGU, were first to deny Mrs Torr?s claim, saying her husband was a self-employed truck driver and not employed by the company. But WorkSafe also denied liability, insisting Mr Torr was an employee of Cleanaway. This is despite Mr Torr paying for his own policy with WorkSafe for more than 10 years. A medical expert found the 15 years Mr Torr worked for Cleanaway on a self-employed basis ?materially contributed to his death?. Mrs Torr?s lawyer, Sue Bottrell, said the 62-year-old grandfather worked 100 hours a week for the company, operating on just a few hours? sleep each night. She said someone needed to take responsibility for her client, who is seeking about $1 million in death benefits and loss of income. ?These decisions mean that Gary, and potentially thousands of other owner-drivers, have no workers compensation insurance if injured at work, which is not legally or morally possible in Australia in 2016,? Ms Bottrell said. CGU, which has rejected the claim twice, declined to comment.
WorkSafe spokesman Peter Flaherty said it was confident the matter would be covered by one of the schemes. ?While WorkSafe cannot discuss individual cases for privacy reasons, it is of concern if the complexities of state and federal workers compensation laws prevent a speedy response to a claim,? he said.
Cleanaway human resources general manager Johanna Birgersson said it was not appropriate to comment as it was a private matter still under consideration by all parties.
Well I presented the webinar for the SIA and it has caused quite a stir, which is should. The current practices being encouraged to manage contractor safety are not only unnecessarily burdensome for both principal contracts (employers) and contractors, they increase risk to principals and confuse liability. The questionnaires currently being used to assess contractor?s safety management systems are excessive and the practice of principals interfering in contractor?s safety arrangements by assessing, amending and signing off contractor safety arrangements is dangerous.
The High Court has made it abundantly clear that the reason we use contractors is because we generally don?t know how to do their work (including managing safety risks in respect of that work) and it is not reasonably practicable to give safety instructions to skilled and experienced sub-contractors, check whether those instructions are being followed and require compliance with those instructions.
The High Court has also made it clear in Leighton v Brian Allen Fox that liability for negligence by a contractor within their area of their responsibility is not borne vicariously by the Principal Contractor.
I had previously qualified my position in respect of the construction industry but after consideration it is clear that this position does apply to the construction industry, with the exception that safe work method statement must be collected for high risk work, as defined under health and safety legislation and the principal must ensure that the contractor must demonstrate a method by which the contractor will ensure compliance with their safe work method statement.
So in response to this SOS Safety and Legal have developed a contractor management system, ContractorSAFE, which correctly reflects the law, uses an objective scoring system, can be used by employers in any industry and is cost effective. Contractors can access can be pre-qualified and ready to go in 15 minutes.
Please get in touch to get your contractor safety sorted.
Despite the definitive decision by the High Court in Baiada v The Queen in 2012 the legal obligations of principal contractors for independent contractor safety is still very poorly understood. Unfortunately, that decision and its clarification of what is expected of principal contractors in respect of management of contractor safety has been largely ignored. This has resulted in the continued implementation of overly complex contractor management systems, drowning both contractors and principals in paper work, Principals directing independent contractors in respect of safety in areas in which they have no or little expertise and potentially increasing the liability of principal contractors in the event of an incident involving contractors.
I am presenting a webinar for the Safety Institute of Australia at 4.00 p.m. on 4 May 2016 on this topic and I intend to explode the myths and misunderstandings in respect of independent contractor safety.
Click here to register to attend.
What is a safety management system? It seems in recent times safety management systems have become massive repositories for documentation which is often completely unrelated to the actual workplace. I have seen small organisations or organisations with very simple risk profiles trying to implement complex systems, which are completely irrelevant. Is it really necessary for a small business to have a written OHS policy?
A safety management system is the way, i.e. the actions we take, to proactively manage safety. The documenting of this process (our ?safety system?) is simply the recording of how we actively manage safety for the purpose of training, continuous improvement, communication, consistency and evidence of action.
The development of all safety management systems must be driven by the risk profile, determined in consultation with worker, of an organisation and its operational activities to ensure the system is immediately relevant to the organisation and its workers.
If all elements of a safety system are directly tied to the organisations risk profile and operations, the implementation of safety management activities such as training, hazard identification and consultation will be significantly more successful (people learn and use what they need to know) because procedures will have meaning and context and redundancy will be avoided. Roll out the elements of your system when it is most relevant, for example implement and roll out procedures based on feedback from workers as to their most significant safety concerns i.e. refresh manual handling training prior to Christmas in retail stores.
Documentation must be succinct, relevant and provide people with information they can readily use. Who really needs a scope and purpose statement at the start of every procedure? Who is going to read a 36-page safe driving procedure (yes this actually happened)?
Remember a paragraph is better than a page, a sentence is better than a paragraph and word is better than a sentence and dot points rule.
Go back to your ?system?, compare it with your risk profile, discuss with workers what they want to know about safety in the workplace, review your documentation and start deleting.
After years of working in the safety game I now know the worst thing about safety is ?safety?. The industry has gradually become irrelevant to the worker and frustrating for business. The ?no risk is good risk? or ?zero harm? approach has done more harm to the way both employers and employees see safety and possibly the safety of workers than any other safety strategy.
Traditional safety systems ignore the intelligence of workers, the reality of the workplace and the important role of risk taking in learning. Reason not rules must be the focus if we are to make workers truly resilient to risks to health and safety. This approach does not ignore the need for workplaces to truly support a safety first approach, but allows workers to become decision makers and managers to become facilitators of safety not enforcers.
Focusing on what went wrong misses out on learning from the 99% of what went right. Trying to predict the future leads to ever more failure and a negative mindset about safety with the focus on failure not success. We are destined to fail.
As both a lawyer and long practising safety consultant I encourage you to work with your employees and use the enabling health and safety legislation we have which requires us to understand our workplace, understand risks and make informed decisions about how we manage risks, not just implement cookie cutter solutions which not only don?t improve safety but alienate our workforce and make safety a joke.