A number of people have contacted me asking for my views on the recent decision by the NSW District Court – SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13 and asking whether I think the decision undermines precedent law confirming the right of a PC to rely on an independent contractor to manage risk arising from their work. It does not. Why not?
As we know under WHS law, duties for safety stem from control (s 16). You cannot be responsible for something you do not control. In summary where a PC engages an independent contractor who has control over their own operations and is not subject to the control of the PC a PC will not be liable in the event of an incident in respect of matters under the control of the contractor.
So why was the defendant guilty? “The defendant engaged a subcontractor, Modern Roofing & Facades Pty Ltd, to complete the labour component of the roofing works. Modern Roofing & Facades was required to adhere to the defendant work health and safety policies and procedures.” There was clear control by the defendant over the work, and the safety arrangements. They specifically required the sub-contractor to adopt and implement their procedures and as a result when the incident occurred were liable. I consider that the arrangement between the defendant and the sub-contractor was in fact a labour hire arrangement and not a subcontracted arrangement. This decision is in line with the decision in Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140 and does nothing to undermine previous precedent law in this space and it should not be reported that is does.
I will be looking at this very issue in my next LinkSafe Legal webinar on 22 March 2023. Click here to book and come along