Employers,
Contractors & OH&S: make sure you’re
covered.
Business owners must take an active role in
managing Occupational Health & Safety and
not take for granted their contractor’s OH&S
credentials or rely on the expertise of
contractors alone.
A recent decision by the NSW Industrial
Relations Commission demonstrates that an
employer cannot contract out their
responsibility for Occupational Health and
Safety and those employers engaging
contractors must require written procedures
before commencing any contracted work,
verify their safety and nominate a suitably
qualified supervisor.
“The ever-changing OH&S legislation demands
businesses devote more time and resources to
managing OH&S, yet many small businesses do
not have such resources or do not fully
understand their obligations in relation to
the OH&S legislation. They rely on their
contractors to ‘do the right thing’ and
incorrectly assume they won’t be liable if
something goes wrong”, said Craig McFadden,
Managing Director of Savvy Human Resources,
a Ballina based human resources
consultancy.
The case involved a major transport company
that contracted with a fuel supplier to
remove fuel from an underground storage
tank. The company agreed on a compliant
method and was assured that the contractor
had the necessary expertise and that an
appropriately qualified person would be
present to supervise the operation.
Unbeknown to the company, the contractor
then sub-contracted the operation. During
the operation an employee of the
sub-contractor decided the method was too
slow and used a quicker, more dangerous
process. This resulted in an explosion in
which a worker suffered serious burns to his
face and chest.
The fuel supplier was fined $240,000 for its
role in the incident and the transport
company was fined $150,000 (out of a maximum
of $825,000).
Mr. McFadden said that employers should
ensure that:
the contractor sets out a safe work
procedure in writing prior to commencing
work;
the procedure is approved by an
appropriately qualified person; and
there is an appropriately qualified
supervisor present for the entire period of
the work.
“Employers should also be aware that their
lack of knowledge about the work being
completed and their attempts to engage
appropriately qualified contractors with
good safety records will not relieve them of
their obligations and they may still be in
breach of the Occupational Health & Safety
Act and be penalized accordingly. Employers
should consider all preventative measures as
the availability of those measures may later
be evidence of their failure to fulfil their
OH&S obligations”, said Mr. McFadden.
“An employer’s obligation to identify,
control or eliminate risks extends to the
work being conducted and the workplace.
Failure to do so may result in a criminal
conviction, large fines or even
imprisonment”, Mr. McFadden said.
This publication is provided by way of
general guidance only and is not to be
construed by the reader as legal advice or
as a recommendation to take a particular
course of action in the conduct of their
business or personal affairs. You should not
rely upon the material as a basis for action
that may expose you to a legal liability,
injury, loss or damage and it is recommended
that you obtain your own legal advice
relevant to your particular circumstances.
Savvy Human Resources Associates Pty Ltd and
their agents Disclaims All Liability For Any
Loss Or Injury Suffered, Howsoever Caused,
As A Result of Relying Upon The Content Of
This Publication In The Making Of Any
Commercial Or Personal Legal Decisions.
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