A QLD Magistrate recently handed down a decision that may cause some angst, but careful reading of the factual matrix is important to avoid misunderstanding the impact of the decision.
A cleaning contractor employed two “sub-contractors”. One of the “sub-contractors” walked across a roof, while ignoring a metal walkway, and fell resulting in serious injuries. The cleaning company pleaded not guilty on the basis that it had a right to rely on its sub-contractors to manage risks arising from their specialist work. The company was found guilty. This case is a red herring beware!
But let’s unpack this decision. Reading between the lines these workers were not sub-contractors, they were labour hire or ABN holders, working under the direction of the cleaning company. They were not engaged in specialist work, and to try and avoid liability by arguing they were and that the cleaning company had a right to rely on them to manage their own safety is disingenuous and strains the “reliance defence.”
However, the observation made by his Honour that an employer must take steps to ensure expert contractors work safely and carefully in respect of their own work, must be challenged as it does not accord with High Court judgements which have repeatedly confirmed that an employer/ Principal Contractor who engages an independent contractor does NOT have an obligation to supervise their work or safety arrangements with respect to that work.
“The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur.” STEVENS v. BRODRIBB SAWMILLING COMPANY PTL LTD (1986) 160 CLR 16 13 February
One last note though I am sure WorkSafe QLD will argue the worker has no right to common law benefits due to his own failure to use the walkway!