Are you responsible for the safety of a contractor’s workers?
By Joanna Weekes
After last week’s OH&S Bulletin about the risks that contractors can pose in your workplace, we had a question from a subscriber that I thought was worth a bulletin itself because it is a very important matter for anyone engaging contractors in their workplace.
So let’s get straight into it!
Q: If an employer is responsible for a contractor’s workers’ safety on their worksite, what is the contractor responsible for?
A: That’s right, you have a duty of care for the health and safety of a contractor’s workers when they are performing work on your worksite. This is your general duty of care under health and safety legislation and is non-delegable, meaning that it is a duty that you cannot contract out or transfer over to another party, e.g. a contractor. In principle, you therefore owe the same duties to contractors and their workers as you do to your own workers.
Due to this, it is not acceptable to say that you relied on a contractor to identify hazards or adopt a safe system of work during their time in your workplace (even though you hired them for their specialist knowledge).
BUT contractors still have their own duty of care to comply with when working in your workplace.
A contractor must take positive steps to ensure the worksite its workers are sent to does not pose risks to their health and safety. This may require the contractor to make enquiries and implement processes to ensure that its workers are not instructed to, and do not carry out work in a manner that is unsafe while at the host employer’s worksite.
If a worker of a contractor is injured in your workplace, both your business and the contractor can be held liable under health and safety legislation. This is what is called concurrent liability, i.e. when two or more parties are independently liable for the same incident. For example, the workers of a contractor may be considered workers of the contractor and the business in control of the worksite where the contractor is engaged.
REMEMBER: Although the host employer has a duty of care for the health and safety of a contractor’s workers, the contractor cannot simply rely on the host employer to ensure the safety of its own workers.
Later this week, we will look in more detail into what a host employer can actually do to ensure that safe systems of work are being implemented by the contractors on their worksite – a task that can seem difficult since the contractor operates in specialist areas that you may not have knowledge of.
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