The High Court of Australia has 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 incident which led to the case in point – Baiada Poultry Pty Ltd v The Queen  HCA 14 – involved the death of an employee from a transport contractor. Baiada Poultry engages contractors in several stages of its operations, including the transportation of its product, and does not oversee the process. The employee was killed when a chicken cage fell on him while he was helping an employee from a separate contracting company to load his truck.
Baiada was initially prosecuted by WorkSafe Victoria for not ensuring the health and safety of its contractors' employees, and a jury found the company guilty of the offence. Following an unsuccessful appeal to the Victorian Court of Appeal, Baiada appealed to the High Court. The High Court unanimously overturned Baiada's conviction, finding that the key 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. In announcing its decision, Justice Dyson 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 householders to rely on the contractors to determine how to safely perform the work than for the householders to give instructions on the matter.
The High Court's decision includes helpful observations regarding the scope of the duty for employers, and according to workplace law specialists at Allens Arthur Robinson lawyers, the key points for employers from this case law example include:
WHS legislation requires an employer to take reasonably practicable steps to ensure health and safety, not every possible step that could be taken; and
Reasonable practicability requires consideration of a range of factors, including the competence and experience of the contractor compared to that of the principal (the company engaging the contractor).
A principal must ensure the health and safety of contractors' and subcontractors' workers if the principal has 'control' over a matter that gives rise to a safety risk. 'Control' can be a contractual right to control or direct the contractor, or a practical ability to do so.
Engaging a contractor to perform work may be a reasonably practicable way for a principal to ensure worker health and safety. This is particularly so where the contractor has greater expertise and experience in performing the work than the principal, and the contractor has its own safety system and procedures that it implements in relation to the work.
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. This could include cases where issues of control arise in contractual arrangements or where there are questions about an independent contractor's competence or experience.
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