July 2017 – Newsletter

This was published by “Contractor Safe” and thought it has important information worth sharing, especially seeing the discussions we have had re SWMS.

Although the case is from the NSW Courts, the legislation (as we all know) is relevant to Queensland.

THE OUTCOME OF POOR SAFETY BOUNDARIES BETWEEN PRINCIPLES AND CONTRACTORS

Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC (27 March 2017)

A recent decision of the District Court of New South Wales considers the duties owed as between principle contractors and the contractors they engage, for managing safety and confirms that taking control of contractor safety is risky both in safety and legal terms.

Background:

The players were Baptist Care Services Pty Ltd (BCS) who engaged Unity Pty Ltd to install a fire sprinkler system. Unity engaged Activate Fire Pty Ltd to design and install the system. Activate engaged Hannah Plumbing to do the installation. BCS would be advised by Unity if any works would impact on its services and whether those works could proceed.

The principle contractor and contractors (Unity, Activate and Hannah Plumbing) had access to and had inspected the roof space where the work was being done and noted the risk of electric shock. However, under the agreement Activate retained responsibility for providing Safe Work Method Statements for high risk construction work, which it prepared and provided to Unity and Hannah.

Hannah confirmed their workers had read them and signed off on them.

*The risk controls implemented at the time of the incident were conducting daily tool box talks to remind workers to avoid the wires and not drop tools on them, as opposed to eliminating the risk by isolating the power source prior to work being undertaken. *

A worker employed by Hannah received an electric shock in the roof space when he leaned on a duct which was punctured by a screw which allowed an electrical current to run through it. Bizarrely during CPR the worker also fell through the roof onto the floor below. He sustained a hypoxic brain injury. Somehow Hannah sidestepped their obligations which (I think incorrectly) implies that Hannah could hand over is obligations for its workers safety to Activate and Unity.

The Decision

  1. The Court confirmed that obligations were owed to Hannah employees by Unity and Activate under the WHS Act (NSW).
  2. Unity and Activate retained a significant amount of control over Hannah and its employees.
  3. Activate provided the SWMS so immediately took control of managing risks associated with the work being done by Hannah employees.
  4. Unity influenced or directed Hannah by relevantly;

i. Arranging daily tool box talks which included discussing the risks posed by the wires in the roof

ii. Inviting input into work processes

iii. Requiring that electrical work be done by qualified electricians

What Does It Mean?

*The decision confirms that it is ill advised for principle contractors to direct contractors in their safety activities because;

  1. Activate assumed control of Hannah when it developed and supplied the SWMS to Hannah.
  2. Unity retained control by delivering tool box talks and directing workers in how to respond to the risk of electrical shock by avoiding the wires.
  3. Hannah was asleep at the wheel and relied on direction from Activate and Unity as to their workers safety.

Activate and Unity ensured by taking control they would be held responsible in the event of an incident with no improvements in safety.

*To confirm all contactors should remain responsible for identifying hazards and implementing risk controls, including drafting their own SWMS. This ensures that they are intimately aware of the risk posed to their workers, responsible for developing risk controls and will be held directly responsible for safety. This makes sure everyone is thinking about the risks and not relying on others for their safety.

So, the steps when engaging contractors to improve safety and protect against liability are

1. Demonstrate due diligence through simple initial confirmation of contractor management of safety.

2. Require contractors undertaking high risk construction work to supply SMWS.

3. Confirm by question that they are updating and amending SWMS when the work is being done.

4. Do not supply, review or approve SWMS, only make sure the content is applicable and current.

A Side Issue: – Safe Work Method Statements

The Judge commented that Unity, as a principle contractor, had an obligation to review the SWMS prepared by Activate once it became aware of the conditions in the roof space.

Division 2, regulation 301 of the WHS Regulations require that principle contractors be provided with a copy of any SWMS prepared by a contractor undertaking high risk construction work.

The regulations require the contractor to review SWMS and ensure that it is implemented.

Even where a principle is aware of a risk to contractors and knows of ways of controlling it, it does not follow that it is reasonably practicable for the principle contractor to direct a contractor in its methods of risk control or to supervise or monitor their implementation. This would rest on the PCBU undertaking the work.

I hope you find this piece a “discussion starter” as I know we have had numerous discussions about SWMS etc. and all agree that the area needs some real “CLARIFICATION”. I thought it was a great piece sent through from “Contractor Safe” and worth sharing.

If you would like to discuss any of the points through this update, please feel free to contact us and happy to discuss further.

Until next time.

Stay safe and well.

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