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Engaging contractors

As a person conducting a business or undertaking (PCBU) you have responsibilities in regards to the contractors you engage.

Primary Duty of Care

You, as the PCBU, have the primary duty of care and must, so far as is reasonably practicable, ensure the health and safety of:

  • workers you have engaged, or caused to be engaged
  • workers carrying out work who are influenced or directed by you (eg contractors), and
  • other persons (eg visitors and the public).

You owe a duty of care when, as a PCBU, you:

  • direct or influence work carried out by a worker
  • engage or cause to engage a worker to carry out work, including through sub-contracting, or
  • have management or control of a workplace.

Shared responsibilities

If a PCBU engages a contractor, both parties have shared responsibilities and must work together to ensure the health and safety of themselves and others.

The Act requires each PCBU to consult, cooperate and coordinate activities so that WHS risks can be effectively managed. The purpose of consultation is to ensure everybody has a shared understanding of the risks, who will be affected and how the risks will be controlled.

The exchange of information helps each person to meet their duty and minimise gaps in WHS management. This process can range from directly discussing and planning daily work with contractors to establishing formal mechanisms with written agreements and consultation meetings.

Each PCBU must, so far as is reasonably practicable, consult with workers and any health and safety representatives (HSRs) about matters that directly affect their health and safety. This duty extends to all workers, as defined previously.

The duty to consult does not require agreement, although each duty holder retains responsibility for meeting their health and safety duties.

Example:

A principal contractor and a subcontractor for construction work, as PCBUs, must ensure, so far as is reasonably practicable, the provision of adequate facilities for the welfare of the workers carrying out the construction work. This does not mean that both are responsible for providing the facilities. One may provide the facilities with the other duty holder satisfying themselves that their duty is met because the facilities provided by the other duty holder fulfil their obligations.

Source: Guide to the model Work Health and Safety Act, SafeWork Australia, March 2016

Contracts

The primary duty of care applies to all PCBUs regardless of the terms of any contract. The “no contracting out” provision is fundamental to the Act. This provision essentially means that duty holders cannot limit or modify their obligation by way of a contract with a third party.

Contracts that assume liability to the contractor for all health and safety matters arising from the work will be void to the extent they attempt to render the contractor responsible or liable for a PCBU's statutory duties. The question of what duties you have will always be determined on the facts and circumstances of each case, rather than contractual terms.

Each PCBU retains responsibility and must discharge their duty to the extent by which they have the capacity to influence and control the matter, disregarding any attempts to “contract out” their responsibilities.

Example:

A labour hire company hires out workers to host employers to carry out work for them. Both the labour hire company and the host employer owes a duty of care to those workers. In such cases both are fully responsible for meeting that duty to the extent by which they have capacity to influence and control the matter. It is not possible to ‘contract out’ of work health and safety duties.

Source: Guide to the model Work Health and Safety Act, SafeWork Australia, March 2016