Not just a matter of chicken and egg when it comes to OH&S

Can you delegate your OHS responsibility to a subcontractor? That’s the question raised by a High Court case involving poultry giant Baiada.

Baiada Poultry provided a trailer with chicken crates to DMP Poultry. DMP was a subcontractor who went to chicken growers, caught the chickens, put them in cages and loaded the cages onto a trailer owned by Baiada. A haulage company collected the trailer and the principal of the company died when an employee of DMP was loading cages onto the trailer and a pallet fell on him.

Baiada’s counsel argued that Baiada was entitled to rely upon skilled contractors and that it did not have the authority to control the subcontractors. The Judge refused to direct the jury as to these issues in respect of whether Baiada did everything that was reasonably practicable to avoid the incident.

The High Court disagreed and held that the jury ought to have been directed in respect of the entitlement for Baiada to rely upon skilled subcontractors and as to whether it had discharged its obligation to do everything that was reasonably practicable. In doing so, the High Court captured the complexity businesses face when directing subcontractors to undertake such work.

The High Court appeared sceptical as to whether the evidence in the case would assist Baiada, and so a new trial was ordered.

The lessons for Australian businesses are by no means clear. However, if the following facts are present you should be safe:

• You have safe procedures in place that subcontractors and contractors must abide.
• The subcontractor holds a unique skill that you don’t have and, in the process, they have demonstrated that their safety system is safe.
• The subcontractor is obliged to complete a safety assessment for all work undertaken for you and that procedure is regularly checked.
• Your internal procedures ensure that there is subcontractor supervision, ensuring the safety system of the subcontractor accords with procedure.

If you can demonstrate the above you will be doing everything that is reasonably practicable. But if, as in Baiada, the subcontractor is exercising skills that you also exercise, then your capacity to direct and require is higher and it is highly unlikely you will be able to demonstrate that you did everything reasonably practicable to avoid the incident.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.