Are you liable for contractor's employees?

Are you liable for contractor

By Gaby Grammeno on 21 June 2018 We've noticed a contractor's employees are not following safe work practices. Should we intervene?

This question was recently sent to our Ask an Expert service.

Q We employ a contractor to provide maintenance services for our company. We've seen the contractor's employees engaging in risky and unsafe work practices, however their boss does nothing to address their behaviour. Should we start telling them how to do their jobs? What are our obligations here?

A Responsibility for the health and safety of a contractor’s employees is shared between the contractor and the host employer – that is, the organisation engaging the contractor. It should never be assumed that the safety of a contractor’s employees is entirely a matter for the contractor – these responsibilities are shared and overlapping.

Host employers cannot rely solely on contractors to implement safe work practices, as numerous prosecutions under health and safety laws have shown. Again and again, host employers, as well as principal contractors, have been convicted and fined, when a contractor’s employee has been injured in a work accident.

A contractor’s responsibilities


Under work health and safety laws a principal contractor has the responsibilities and duties of a person conducting a business or undertaking (PCBU). This means a contractor has a duty of care towards its own employees and also to everyone else at the workplace. The contractor must ensure, so far as is reasonably practicable, that no-one’s health or safety is put at risk by the work carried out by the contractor or its employees.

If a contractor is working under someone else’s direction, the contractor has the responsibilities and duties of a worker. In this case, the contractor must take reasonable care of their own and others’ health and safety, comply with reasonable instructions it is given and cooperate with the PCBU’s reasonable policies and procedures.

Overlapping roles


Individuals may have more than one role – for example, a contractor could be a PCBU to his or her staff and a worker for another PCBU. If this is the case, they must comply with both sets of duties.

An employer’s responsibilities


Health and safety laws clearly require employers to accept a duty of care for everyone at the workplace, including contractors and their employees. To fulfil this duty, employers must provide information, training, on-the-job instruction and supervision to enable everyone on site to work safely, including contractors’ employees. In other words, training and supervising a contractor’s employees is part of the host employer’s role.

Ideally, host employers will only use contractors with robust WHS standards. To make sure this is the case, employers will need to collect relevant information from the contractor before engaging them, and provide suitable induction and instruction for the contractor and its employees on the health and safety risks of what they will be doing and acceptable safe systems of work.

The safe work policies and procedures applying to the contractor’s tasks should be specified – for example, that all plant and machinery with moving parts that could be dangerous to workers is isolated and disconnected before maintenance work is carried out on them – and make it clear to the contractor and its employees that they must comply with these rules.

And yes, if ever you see a contractor’s employees engaging in unsafe work practices, as the host employer you should definitely intervene.

A contractor’s ignorance, poor training or lack of experience – and that of the contractor’s employees – are ultimately a liability for the host employer as well as the contractor.
 

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