By Kelly Godfrey

It is common in many industries to engage contractors. While a principal contractor cannot delegate its own work health and safety (WHS) obligations, in some circumstances it may be reasonable to rely on a specialist contractor to ensure work is safely performed. The reason being, the subcontractor is often engaged to undertake work in which the principal contractor generally does not have the skill and capabilities to perform. In many cases, it is common that a principal contractor has little control over these aspects given the subcontractor has been engaged because they have the skills, including the safety knowledge, to undertake the required tasks. This lack of control can affect the assessment of what it is “reasonably practicable” for the principal contractor to do to discharge its WHS obligations. What is “reasonably practicable” will be assessed on the facts of each case.

In SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd (No. 2) (2020), McConnell Dowell Constructors (Aust) Pty Ltd (McConnell Dowell) was the principal contractor on a construction site to build a ferry wharf. Brady Marine was engaged as a subcontractor to remove headstocks (large metal beams), which were placed upright on a barge. The headstocks were unsecured and when one accidentally tipped, it crushed and killed a Brady Marine employee.

SafeWork NSW charged McConnell Dowell with a breach of its WHS obligations to ensure, so far as is reasonably practicable, the health and safety of workers at its site.

McConnell Dowell argued it was not guilty and was entitled to rely on the expertise of Brady Marine, which had direct control over the work that had been subcontracted to it. McConnell Dowell argued it had provided safety training to Brady Marine staff who had themselves implemented safe systems of work. McConnell Dowell argued that it was not its responsibility to double check the work.

WHS legislation provides that “reasonably practicable” means what is reasonably able to be done “taking into account and weighing up all relevant matters”, including:

• the likelihood of the hazard or risk occurring;
• the degree of harm that may result from the hazard or risk;
• the knowledge (or reasonable expectation of knowledge) about the risk, and ways of eliminating or minimising the hazard or risk;
• the availability and suitability of ways to eliminate or minimise the risk; and
• cost.

The Court indicated that where a principal contractor takes steps to ensure the subcontractor has a safe system of work and is actually performing the work safely, then the principal contractor might be considered to have taken all steps that were reasonably practicable. Specifying and assigning safety tasks in a contractor agreement is required, but not fulfilling those obligations can be fatal.

The Court concluded that McConnell Dowell had not discharged its duty for the following reasons:

• McConnell Dowell was not reliant on Brady Marine’s skill and expertise. Given the nature of its business and experience, it was capable of performing the work itself.
• The contractor agreement required McConnell Dowell to undertake daily inspections of the worksite and immediately cease any unsafe work practices, which it had not done. If such inspections were carried out, McConnell Dowell would have realised the headstocks were not secured and ceased all work until this was rectified.
• McConnell Dowell had not provided safety training on the safe transportation of the headstocks or directed Brady Marine to undertake a risk assessment of this task.

Engaging contractors is a necessary part of many industries; however, just because the assigned tasks are subcontracted, it doesn’t mean the WHS obligations are as well.