3 April 2012
In brief: The High Court has confirmed that simply engaging a contractor to perform work may be a reasonably practicable way for a principal to ensure worker health and safety.
Background
Baiada Poultry Pty Ltd subcontracts to local farmers the raising of the chickens it processes. When the chickens are ready for processing, Baiada engages a contractor to catch the chickens and a separate contractor to transport them to Baiada's processing facility. Baiada does not oversee this process.
The incident at the centre of this case1 involved the death of an employee of the transport contractor. The employee was killed when one of the chicken cages fell on him while he was assisting an employee from the chicken catching contractor to load his truck.
Baiada was prosecuted by WorkSafe Victoria for not ensuring the health and safety of its contractors' employees. A jury found Baiada guilty of the offence. Following an unsuccessful appeal to the Victorian Court of Appeal, Baiada appealed to the High Court.
High Court's analysis of the duty
The High Court unanimously overturned Baiada's conviction. The High Court held that consideration should have been given to whether Baiada had fulfilled its duty by contracting the work to the competent and experienced contractors.
The High Court's decision includes helpful observations regarding the scope of the duty, including that:
- 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.
Justice Heydon gave an example of a householder who engages competent and experienced tradespersons to perform electrical and plumbing work. Justice 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 outcome of this ruling
- 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.
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