Is your contractor an expert? High Court guidance on ‘reasonable practicability’ when relying on contractor expertise

The High Court of Australia has recently confirmed that engaging a contractor to perform work may be deemed a reasonably practicable way to ensure worker health and safety  – as long as the contractor is an expert.

The decision in Baiada Poultry Pty Ltd v The Queen was handed down by the High Court on 30 March 2012 allowing the appeal, quashing the conviction and ordering a new trial.

The Facts

The case involved the death of an employee from a transport contractor. Baiada carried on the business of processing broiler chickens at its plant in Laverton North, Victoria.  Baiada engaged independent contractors, known as “chicken catchers”, to round up and pack the chickens into crates and it engaged other independent contractors to carry the crates to its plant.

Baiada engaged DMP Poultech to do the chicken catching and Azzopardi Haulage to transport the crates of chickens from the farm to the plant. The principal of Aszzopardi Haulage, Mario Azzopardi, was killed when a chicken cage fell on him while he was helping an employee from DMP to load his truck.

The Allegation

Baiada was charged under section 21(1) of the Occupational Health and Safety Act 2004 (Vic), for failing as an employer “so far as is reasonably practicable, [to] provide and maintain for employees… a working environment that is safe and without risks to health”.

The prosecution said that Baiada should have provided an adequate system of work to be followed at grower farms or broiler sheds, and in particular should have:

  • ensured that the forklift was operated by a properly trained employee; and
  • identified and eliminated or controlled the risks associated with the system of unloading and loading live birds for transport at night.

The case first went to the County Court in Victoria in 2009 and then on to the Supreme Court in 2011. Following an unsuccessful appeal to the Victorian Court of Appeal, Baiada appealed to the High Court.

The Findings

The High Court unanimously overturned Baiada’s conviction.

The provisions under the Act are clear: an employer has to provide and maintain a safe working environment “so far as is reasonably practicable”. It is not enough for the prosecution to show that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment. An employer does not have to take every possible step that could be taken.

The High Court found that consideration should have been as to whether Baiada had fulfilled its duty of care by contracting the work to contractors deemed to be competent and experienced rather than control of the contractor’s activities. Justice Heydon gave an example of a householder who engages competent and experienced tradespersons to perform electrical and plumbing work. Heydon observed that it would be more practicable for the householder to rely on the contractors to determine how to safely perform the work rather than for the householder to give instructions on the matter.

The significance of Baiada

The decision in Baiada is significant not only because it is one of just three cases that have been before the High Court in this area of law but also because the decision provides some insight as to how the new harmonised Work Health and Safety laws will operate.

The WHS laws now in operation in a number of States, use similar language in relation to the obligation on persons conducting a business or undertaking (a PCBU), putting the prosecution to proof of the failure to provide and maintain a safe working environment so far as was “reasonably practicable”.  Such an obligation does not however impose that each and every possible step towards ensuring health and safety be taken, simply those steps that are reasonably practicable.

The decision in Baiada confirms the direction that reasonable practicability requires consideration of a range of factors, including the competence and experience of independent contractors.  Engaging a contractor to perform work may be a reasonably practicable way for a principal to ensure worker health and safety.

Importantly however, while engaging independent contractors and relying on their expertise may be a reasonably practicable step to satisfy work health and safety obligations, it may not be sufficient in all cases. An employer won’t be able to simply say it is “entitled” to rely on its independent contractors. The implication of Baiada is that better evidence will be required from the prosecution to show that a PCBU had failed to provide and maintain a safe working environment so far as was reasonably practicable.

When managing contractors and depending on the contract, nature of the work and risks, employers ought to be mindful of:

  • exercising due diligence in assessing and appointing the contractor, including ensuring that they have sufficient competence and expertise to carry out the contract safely;
  • identifying where the contractor’s specialised skills and expertise are being relied upon particularly where you don’t have the skills and expertise;
  • ensuring the contractor has in place a safe system of work and effective health and safety management systems;  and
  • creating contractual obligations on compliance with legislation.

 For further information in relation to the above case note or your contractor relationships, please contact us at enquiries@jvlegal.com.au

 

 

Author: Jo-Anne Chong

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.