Contracting out of OHS obligations

Two recent decisions underline the importance of employer OHS responsibility of implementing and reviewing OHS procedures and avoiding reliance on contractor's safety procedures.

In Barnett v Aquista Investments and Collex, a driver was seriously injured after he was struck by a bale which fell from a trailer. The company tried to escape liability claiming the employee was engaged by a different company, Integrated Waste Services (IWS). Magistrate Lieschke found the company was only a trading name, not a separate legal entity, and that Aquista and Collex were in control of its operations. The companies were responsible for providing safe systems of work and could not contract out of OHS.

In WorkCover Authority of NSW v Australian Holding and Sassall Glass and Joinery, the two companies were found liable for the four-storey fall of a crane and window fixer. Australand failed to ensure the operators of the crane were aware of the weight they were lifting, and Sassall had neglected to obtain a safe work method statement from the contractor, Skyrise. The companies were fined a total of $343,000 for failing to ensure a safe system of work was adopted and maintained.

OHS responsibilities cannot be avoided or delegated. Those in control of companies and premises need to be involved in maintaining safe systems of work and will be held accountable when they don't. Cute legal arguments about company structures or reliance on contractor safety programs will not be accepted to excuse companies from OHS responsibility and, ultimately, liability.

*Douglas Workplace & Litigation