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Recognising the ghost worker in the OH&S trilogy

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…. or how to meet your statutory obligations to your contractors. Ray Schaffer* reports.

Employers know all too well just how important the “ghost worker” is in the day to day running of their business, yet search the NSW Workcover website for assistance with the application of the OH&S law and the duties and responsibilities of employers vis-à-vis these workers, and you will be hard pressed to come up with any code of practice or guide document that might assist.

Similarly, with the Victorian Worksafe website there is scant information available. So, who are these “ghost workers”?

They are the third but, very important leg of the OH&S triumvirate, namely, the employer, the employee and the contractor, ie. the persons who service, repair and maintain all of the plant, equipment, tools, forklifts, energy supply, and the building housing your factory. And who for the most part, work in the background and are seldom much seen in the normal run of things.

Problem is, no one seems to know where they fit in the OH&S System’s statutory requirements.

Despite their numbers and very real presence, employers are mostly totally ignorant about their OH&S duties and obligations regarding these workers. If employers think about the relationship at all they usually frame the question: How do I move my possible liability exposure in the event of a Contractor accident and injury off on to the shoulders of the Contractor?

What is not appreciated or understood by employers is that they cannot do this. And the reason why is to be found in a very short and simple section in the NSW OH&S Act namely, Section 8 (2). (See Section 23 in the new 2004 Victorian Act).

These sections move the responsibility for these “ghost workers” squarely on to the shoulders of the employer. It is a statutory requirement that employers who have an OH&S safety management system in place for employees apply the elements of this SMS to each and every contractor who enters on to the employers’ site or premises to work. The problem is, how does the employer go about doing this?

Where do contractors fit in?

The NSW and Victorian Workcover and Worksafe websites carry voluminous information on a myriad of OH&S subjects but no real answers.

The new Victorian Act (Occupational Health and Safety Act 2004), which will be operational (most parts) 1 July 2005, will bring some major changes. But, nowhere in that report does the author even consider this question of contractors and how to make them conform to the compliance requirements of the Act.

The NSW website offers what is called a “Subby Pack – (an) OH&S Contractor Management Tool”. This is not the scenario being identified in this article, namely, the employer who has in place an OH&S Safety Management System that applies to the employees but who also has a number of workers who enter on to the site and into the buildings to work on the employers’ premises in the capacity of contractor.

If we turn now to addressing how to go about setting in place a system that will on the one hand protect the employer and apply the employer’s SMS to the contractor and on the other hand make the contractors understand they work on the employer’s premises under the control of the employers’ management, we might commence with a presumption. This takes as a given, we are not dealing with any of the questions regarding a contractor absolving an employer of liability (where possible) or the aspect of sub-contractors liability or self–employed contractors assuming part of their potential liability, all of which add complex legal issues, we will not attempt to address here. We will presume the contractor is a wholly independent party, a registered company or business –contracting with the employer to perform on-site certain agreed services.

When and how

The ideal time for the employer to negotiate and establish with the contractor the OH&S compliance requirements is at the time of entering into the contract with the contractor.

The essential elements include a clear definition of OH&S roles and responsibilities; a set of relevant policies and procedures for delivery to the contractor; a mechanism for harmoniously resolving OH&S non-conformances by the contractor; and the establishment of records by the employer.

These pre-commencement of work requirements also include the employer enquiring about and determining the extent to which the contractor already has in place an OH&S management system and is complying to industry accepted safety standards, or not.

The documentation the employer needs to obtain from the contractor pre-commencement of work will include a formal work contract; copies of relevant licenses, registrations and permits etc; copies of insurance policies; membership of trade associations, if relevant; and training certificate/s copies.

The employer commences making preparation for “managing” the contractor by training his/her business’ managers and supervisors in applying the business’ SMS to the contractor, just as if they were the business’ employees. This exercise commences with inspecting the contractors’ PPE and other equipment such as step ladders, drills, tools etc.

The object being to ensure these are of satisfactory integrity. The employer develops an SMS Induction Program for the contractor and trains the business’ managers in how to apply the SMS to the contractor.

The SMS Induction Program presentation is a suitable time for the handover of copies of selected relevant employer OH&S policies; procedures; risk assessments (if relevant); an acceptable PPE guide, as well as any other document that establishes for the contractor an indication of the standard of safety set by the employer in the implementation of the employers’ SMS. The handover is performed by the selected supervisor with responsibility for managing the contractor at all times he/she is on site.

But, prior to this the employer establishes a set of matrices that will record for example; the contractors’ name or representative; the contract job description; contractor employees’ names; job start/finish dates; OH&S documents supplied to the contractor; the employers’ supervisor with responsibility; and the SMS Induction Program details.

The employer having prepared and trained the in–house supervisory member or team also alerts the business’ employees and especially the safety committee members or safety representative/s that they are to continue in their vigilant role as regards identifying hazards and reporting them. But, this now covers and includes the contractor and any workers of the contractor - just as if they are employees of the business.

The employer prepares a Contractor Safe Operating Procedure, a set of house rules which will be delivered in to the contractors’ hands at the time of the SMS Induction Program, inducting the contractor. The employer records this and records acceptance in writing by the contractor of all of the house rules, also a commitment to abide by and conform to the terms and conditions of the SMS of the employer.

The records initially generated are part of an ongoing set of records for that contractor. If the contractor or the representative of the contractor changes over time, then the process outlined above needs to be repeated for the new incumbent.

It will occur in certain emergency type situations that time will not permit all of the above formalities to be worked through. In this situation it is appropriate to have available for application at least a shortened form of documentation, and the house rules document would be given to the contractor together with other relevant documents

Finally, the employers’ manager at the time of the completion of the work performed by the contractor inspects the work carried out especially for the creation of any new or uncontrolled hazards that may need assessment. And in particular, the supervisor with responsibility for the contractor must determine prior to the departure of the workers whether the contractor or any worker of the contractor has experienced any injury or incident and whether this has been recorded in the employers’ accident register.

* Ray Schaffer is the principal consultant with RMH Schaffer and Co , 02 9878 0613 or visit www.environmentdiy.com.au.

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