Contracting and WHS responsibility & liability - is it right?

[Sally M]

Under the current law, recruitment agencies who contract out workers to a third party are responsible for occupational health and safety at the contractor's workplace, they are also held liable when an accident occurs.

To my mind this is ridiculous, because the agency is not on site and in many cases wouldn't even be allowed on site.

In a recent case SKILLED Group has been charged, and a host employer fined after an on-hire worker was dragged into an unsafe machine and seriously injured.

SKILLED pleaded guilty to failing to provide safe systems of work, and will appear in court on November 26.

The accident occurred in part, because of a missing safety switch which prevents the machine from operating when some is inside it.

I know that most recruitment agencies who supply blue collar workers on a contract basis do visit sites to try to do the right thing with regard to their WHS responsibilities, but with the best will in the world, any inspection of the site by Skilled could not have prevented this accident. This is something that should have been picked up by the host employer's WHS rep.

I can't help wondering if the current law is doing workers a dis-service by putting the ultimate responsibility for WHS onto the contracting agency who is not in a position to ensure the work environment is safe.

What do others think?

[Rodt]

Hello Sally,

Not really enough info in your post to answer you accurately. I know that under the previous legislation in Qld the obligation to ensure h&s was absolute and any injury to a worker meant that the employer failed their obligation. This has now changed and it comes down to did they do everything that was reasonably practicable. I have never heard of a labour hire arrangement (by a reputable company) where it wasn't (including Skilled) written into the agreement that a site inspection is part of the contract. I have personnaly seen situations where labour hire companies have been asked to supply competent personnel and when they have arrived this was far from the case.
There is a joint responsibility and I am happy if both sides are held accountable for their actions or inactions.

[Terry]

Hi Sally,

Firstly I know the dilemma and can sympathise. The only thing that Skilled would have to rely on as a defence is documentation. Basic safety checks or hazard hunts, conducted prior to or on the day of induction, supporting evidence would come by way of safety system check (management systems), copies of documents where possible all to be listed and signed off by both parties.
List the responsible persons on site. With regard to plant and machinery, check that they have current log books and service history. Service histories for all plant and machinery should be up to date, notations of why parts have been modified or removed and when the faults are to be rectified. Machinery or plant of this type should be tagged and locked out of use. SWP's should be raised by the host company. The induction by the employer (the recruitment agent) should be thorough and include what should be done should the employee be asked to work in an unsafe manner, report to the supervisor, report to the recruitment agent. the recruitment agent can then tell the employee to stand down until he/she attends site. The employer and the host can then discuss the best options to move forward. So it really comes down to initial site observations, especially the employee work area with the site responsible person, check management documentation (get copies and sign off [both parties]) check log books and service histories again copies here would be good. It can be an unfair balance but if you gather information and signatures it can help a lot. Also photograph areas of interest on your phone. Sites you can not gain access too are usually treated the same as mine sites and basics can be done here as the company takes on the full responsibility of the employer, check this as each case has its own merits.

Hope this helps

[Horsburgh605]

Very well put Sally, your spot on, health and safety is serious business these days but companies still take short cuts in safety, they fall down in all that Sally has mentioned. A good agency will and do go on the host site and conduct their own safety audit to ensure their staff are not being put at risk but most agencies do a useless payer trail at their site during the casual worker signing up for work, I have signed up at 4-5 agencies in the past only to fill out lots of useless paper work. These induction are useless they achieve nothing but cover the agencies bums. The host employer is the only one that can truly make things safe. In Victoria the host isn't responsible if a casual worker gets injured, the agencies are, with this system nobody wins

[Horsburgh605]

I'm sorry I said Sally when it was Terry I should of praised