The Workplace Health and Safety Show will be in Sydney soon (22 - 23 May 2019). I am presenting and will be covering clarification of liability for contractor safety and how to develop and structure a best practice contractor management process. See you there.
Register at www.whsshow.com.au
My relationship with LinkSafe means they provide the only software solution for contractor management that correctly reflects the legal requirements of the Heavy Vehicle National Law and will into the future as I closely monitor the reforms. Stop your the headaches and be totally reassured that you have both the IT and legal back up you need to manage your contractors.
LinkSafe, along with ContractorSafe, are able to assist in simplifying the HVNL changes by utilising our contractor management module.
RECENT HVNL CHANGES AND YOUR TRANSPORT BUSINESS
It is great to see the NHVR consulting with the transport industry on the proposed HVNL reforms but where is the WHS input, Safe Work Australia, Safety Institute of Australia and state regulators. Input from those who have worked under the WHS legal regime which is predicated on reasonable practicability is vital to get this right.
I am running another webinar to help combat the ongoing misinformation around the National Heavy Vehicle Law and Chain of Responsibility. Please register if you really want to understand in the simplest terms how it all works. I will also be discussing the proposed overhaul of the HVNL to align it with the legal principles of Workplace Health and Safety Law.
To register click here
The truck related crash on the Murray Valley Highway over the weekend which devastated a family, will no doubt see the changes to the National Heavy Vehicle Law (NHVL), which came into effect on 1 October 2018, put to the test. As a result of those changes, all parties in the chain of responsibility need to look closely at their own operations and identify where they can impact on the safety of transport operations vs focusing on the operations of others in the chain, where they do not have (real) control of influence. As tragic as this incident is, I am very concerned that it is going to send the transport industry into overdrive and result in parties in the chain, out of fear, going back to the unhelpful practices which were intended to be stopped by the changes to the NHVL such as endlessly chasing down driver licenses, vehicle registrations, maintenance records, drug test results from transport operators etc rather than focusing on what will really prevent these kinds of incidents which is every party in the chain carefully and proactively understanding and managing the risks arising from their own undertaking and over which they have control.
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In a recent Fair Work Commission decision a worker was reinstated after he was dismissed for failing to sign onto a confined space permit and entering the space. The reason for reinstatement was that the workers supervisor had previously waived the need to sign on and that his actions didn't cause any actual harm. This decision totally abdicates worker responsibility to ensure their own safety and the safety of others and make intelligent decisions about it. It undermines prevention focus of WOHS legislation. So is the excuse for the next serious incident going to "he told me to" what are we 5??? This incident could have resulted in serous injury or fatalities. The use of permits in respect of confined spaces is an important risk management tool and this decision basically says don't worry about it if your boss says that ok. Just a note the decision was also influenced by the fact that the Supervisor was only counselled, they both should ave been fired.
Case reference Boral Cement Ltd v Steven Hawkins  FWCFB 6484 S
The promotion of the implementation of safety management systems (SMS) to ensure compliance with the upcoming amendments to the Heavy Vehicle National Law must be approached with caution, particularly in an industry with 80% very small operators. The experience in the WHS space indicates that SMS may well create as many problems as they solve. The evolution of SMS has typically seen organisations develop voluminous documentation, at times to the detriment of practical activities intended to resolve identified risks. A documented SMS is not a panacea for OHS issues, and written documents do not guarantee legal compliance or a healthy and safe workplace. Whilst an SMS may provide a method for demonstrating due diligence and corporate governance, its presence does not guarantee a safe and healthy workplace. A common outcome of rigidly documented SMS is that organisations become focused on compliance with rules, discourages workers from engagement in responding to risk as they arise and the “system” becomes misaligned with the way work is actually done on a day to day basis.
It is great to see the NHVR communicating accurately about the upcoming changes to the NHVL in October 2018. A recent newsletter (On The Road August 2018) issued by the NHVR confirmed that "Although the laws will change, they will still only apply to activities that a person or business has control over and could influence. In other words no one will be liable for breaches they cannot control (e.g. a contracted transport operator is responsible for maintaining their own vehicles). If you are doing everything that is reasonably practicable to identify, assess, reduce and wherever possible, remove safety risks related to your transport activities, you are likely to be complying with the changed law." The previous message - "The aim of COR is to make sure everyone in the supply chain shares responsibility for ensuring breaches of the HVNL do not occur" misrepresented the legal obligations of parties in the chain. The shared obligation is to make you don't do anything which forces another party in the chain to engage in unsafe practices e.g. overloading a contractors truck.
Let me know if you need any assistance to simplify your transport contractor management.
In the 1960s, social psychologist Douglas McGregor developed two contrasting theories that explained how managers' beliefs about what motivates their people can affect their management style, Theory X and Theory Y. Theory X managers believe that team members dislike their work and have little motivation and use an authoritarian style of management. This approach is very "hands-on" and usually involves micromanaging people's work to ensure that it gets done properly. Theory Y managers believe that people take pride in their work, see it as a challenge. They adopt a participative management style and, trust people to take ownership of their work and do it effectively by themselves. Traditional management of contractors safety reflects a Theory X approach, little trust, limited handing over of responsibility and assumption of poor performance. Now that it has been confirmed beyond doubt that legally Principal Contractors can rely on the skills of their contractors to manage their own safety, perhaps it is time to look at our management styles and adopt processes for managing contractors reflecting a Theory Y approach.
I am thoroughly thoroughly sick of government departments and the gate keepers of government tender processes who are not up to date with who must prepare SWMS and when they must be prepared. You are costing the community billions in wasted effort with NO safety benefit. Do you really want/ need SWMS for contractors who come and water the plants! All State Regulators need to do more work to ensure government processes when engaging contractors accurately reflect the law and best practice in safety. The law was clarified in 2012 (and before). It is appalling that government agencies (which should be exemplar) seem to be the last to get their head around this.
In 2006 in Sweeney v Boylan Nominees Pty Limited  HCA 19, the High Court held that Boylan (the employer) was not vicariously liable for the negligent act of the serviceman mechanic (contractor) when a fridge door the mechanic had serviced fell on an employee. In respect of the argument that the contractor was acting as an agent of the employer with the employer therefore being liable for the actions of the contractor, the High Court said "[Boylan] did not control the way in which the mechanic worked. The mechanic supplied his own tools and equipment, as well as bringing his skills to bear upon the work that was to be done, the mechanic was not presented to the public as an emanation of [Boylan]."
Recent charges of reckless conduct laid against Multiplex Directors, Site Managers and the Site Safety Officer in respect of a incident involving an independent contractor may have people ramping up their scrutiny of contractors and increasing the reams of paperwork required from them to demonstrate management of safety. Well STOP. This case, I suspect, will highlight exactly why we need to clearly allocate responsibility for management of safety to contractors and not meddle in their operations. In order for recklessness to be made out a person must know of the risk and its seriousness and take the risk anyway. So what this says to me is those charged knew the crane was undersized, knew the risk was serious and went ahead and either instructed or agreed with the contractor that the work would proceed anyway. Perhaps if the contractor ha been left to undertake the work they may have decided not to use an undersized crane, or may have decided to use it anyway but at least Multiplex would have been protected. Safety may also been improved if the contractor was aware they would be held solely liable and were given the authority and accountability to conduct the work in a manner they saw fit without instruction from the principle.
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.