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Presentation to the National Summit on Independent Contracting

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OHS & EEO issues for independent contractors ... Employees of AB Labour Hire supplied to BBP ... Stratton v Van Driel Ltd [1998] VSC 75. Case Study 2 ... – PowerPoint PPT presentation

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Title: Presentation to the National Summit on Independent Contracting


1
OHS EEO issues for independent contractors
  • Presentation to the National Summit on
    Independent Contracting
  • The Workforce of the Future?
  • Kerry Rehn, Partner, Workplace Relations
  • 24 August 2004

2
The Australian workplace Better Building
Products PtyLtd
  • Workers on site
  • Employees of BBP
  • Employees of AB Labour Hire supplied to BBP
  • Apprentices placed with BBP by CD Group Training.
  • Employees of XY performing maintenance work under
    contract between XY and BBP
  • Employees of SC erecting scaffolding for
    maintenance work under contract with BBP
  • Owner drivers engaged by delivery contractor LF
    collecting products for delivery.
  • Principal building contractor, JD and its
    employees building new offices on site.
  • Sub-contractor is JD and their employees
  • Employees of cleaning contractor, TT

3
Occupational Health and Safety Duties
  • Common Law duty of care
  • Occupational Health Safety Legislation,
    Regulations and Codes of Practice
  • Crimes Legislation eg negligently causing
    serious injury, industrial manslaughter

4
Common Law Duty of Care
  • Employer owes duty of care to
  • own employees
  • non-employees, including independent contractors,
    employees of contractors and members of the
    public
  • Standard of care is standard of reasonable
    employer

5
Occupational Health Safety Legislation
General Duties
  • General duties imposed upon
  • employers (in relation to own employees and
    others)
  • self-employed persons
  • occupiers of premises
  • persons carrying on undertakings and designers,
    manufacturers, suppliers and importers of plant
    and substances
  • erectors and installers of plant
  • employees in relation to own safety and safety of
    others

6
Employer duties application to independent
contractors
  • Duty owed by contractor to own employees
  • Duty owed to contractor by employer (ie principal)

7
Employer duties application to independent
contractors
  • Duty owed to contractor by employer imposed in
    one of two ways
  • Independent contractor deemed to be employee in
    relation to matters
  • (a) over which employer has control or
  • (b) would have control but for contrary agreement
    between employer and contractor.
  • (Victoria, South Australia, Western Australia,
    Tasmania, Northern Territory, Commonwealth
    employers/licensees)
  • Independent contractor owed same duty as other
    persons who are not employees
  • (New South Wales, Queensland, ACT)
  • Special provisions apply to construction
    workplaces in QLD

8
Employer duties applicable to independent
contractors (cont.)
  • Employer must provide and maintain, so far as
    reasonably practicable, a working environment
    that is safe and without risk to health of
    employees
  • Working environment includes
  • physical workplace, plant and equipment
  • work systems and procedures
  • rostering/staffing arrangements
  • lighting, heating, ventilation
  • emergency/crisis response systems
  • provision of information, instruction, training
    and supervision
  • risk assessment
  • stress factors

9
Employer duties applicable to independent
contractors (cont.)
  • Employer must ensure that people other than
    employees are not exposed to health or safety
    risks arising from employer's undertaking while
    at employer's place of work.

10
OHS Legislation Other duties applicable to
independent contractors
  • Self-employed persons must ensure so far as
    reasonably practicable that persons (other than
    their employees) are not exposed to risks to
    their health and safety arising from the conduct
    of the self-employed persons undertaking
  • Occupier of workplace must take such measures as
    are reasonably practicable to ensure that the
    workplace and the means of access to and egress
    from the workplace are safe and without risks to
    health

11
OHS Legislation Other duties applicable to
independent contractors
  • Designers, manufacturers, suppliers etc of plant
    or substances for use at a workplace must
  • ensure that plant or substances are safe and
    without risks to health when properly used and
  • ensure that adequate information is available in
    connection with the use of plant or substances
  • carry out such examination and testing as is
    necessary to ensure safety.
  • Employees must take reasonable care for their own
    health and safety and that of others who may be
    affected by their acts or omissions in the
    workplace

12
Penalties under OHS Legislation
  • Penalties vary considerably between States and
    Territories highest in New South Wales
  • Maximum penalties for first offence
  • body corporate 550,000
  • officer - 55,000

13
Criminal offences
  • Directors and officers can be liable for
  • manslaughter by gross or criminal negligence
  • negligently causing serious injury
  • Gross negligence is where conduct falls so far
    below the standard of reasonable care and there
    is such a high risk of death or serious injury
    that criminal punishment is warranted
  • Industrial manslaughter (ACT only)

14
Allocation of responsibility amongst dutyholders
  • Duties apply to multiple dutyholders
    simultaneously in respect of same workplace
  • Legislation provides little guidance as to
    allocation of responsibility amongst dutyholders
  • Key determinant is capacity to control

15
Case study 1
  • Roofing contractors (SH) engaged by construction
    company (VDL) to supply and fix roofing at site
    where VDL was engaged in construction work as
    head contractor
  • B, an employee of SH, fell from ladder on VDL
    site
  • VDL prosecuted for failure to provide and
    maintain plant and safe system of work

16
Case study 1 (Cont.)
  • VDL argued that roofing work was a specialist
    activity conducted by experts and it had no
    control over system of work
  • However, VDL required SH to submit description
    of safe system of work prior to start, and VDL
    supervisors were able to give directions about
    safety to SH employees
  • Held VDL had control over safety aspects of SHs
    performance
  • - Stratton v Van Driel Ltd 1998 VSC 75

17
Case Study 2
  • Maintenance contractor (AIS) engaged by O to
    remove heating and cooling coils from resin tank
  • O designed system of work and gave instruction to
    AIS employees (as per contract with AIS)
  • Employee of AIS seriously injured following
    failure of electric hoist
  • O and AIS prosecuted for breaches of OHS Act
  • Both fined (O - 90,000, AIS - 30,000)

18
Case Study 2 (cont.)
  • Primary liability allocated to O on account of
    responsibility for system of work, instruction
    and supervision but AIS also liable
  • A false sense of security as to the safety of
    its
  • employees cannot remove from . the
  • contractor its obligations under the Act.
  • - Mansell v Anytime Industrial Services 2001
    NSWIR Comm 237
  • - Mansell v Orica Australia Pty Ltd 2002 NSWIR
    Comm 155

19
Maxwell Review
  • Major review of Victorian OHS legislation
  • Key recommendations include
  • Control to the factors to be taken into account
    when assessing practicability
  • Applying employer duties to workers (rather
    than employees)
  • Defining control to include the ability to
    influence decisions
  • Providing for consultation on OHS with all
    persons working in or in connection with
    employers undertaking
  • Providing for a new duty on officers to ensure
    compliance with OHS Act and not wilfully or
    recklessly place anyones health or safety at
    risk
  • Increasing penalties

20
Secure Employment Test Case
  • Application to vary NSW Awards
  • If work is to be performed at employers premises
    by agency workers or contractors workers,
    employer must
  • Consult workers in relation to OHS consultative
    arrangements and provide OHS training
  • Provide protective equipment and clothing and
  • Ensure that workers are aware of risks and
    procedures to control them
  • Employer must provide injured workers with
    suitable duties as part of rehabilitation program

21
EEO Legislation
  • EEO laws prohibit discriminatory conduct in
    relation to recruitment and employment on grounds
    such as gender, race, age, marital status, status
    as a carer, disability and also prohibit sexual
    harassment
  • Specific grounds vary across jurisdictions
  • EEO laws extend protection to contractors, eg by
  • Defining employee, employment or work to include
    contractors and work performed by contractors
  • Including provisions expressly prohibiting
    discriminatory conduct towards contract workers
    ie persons performing work for a principal under
    a contract between their employer and principal

22
EEO Legislation cont.
  • Laws also apply to independent contractors in
    their capacity as employers
  • Employers and principals can be vicariously
    liable for the conduct of employees/contractors
    unless they can prove that they have taken
    reasonable steps to prevent contravention
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