Universities regularly engage contractors and service providers to perform works and services that range from major construction projects to the provision of hospitality, security and facilities maintenance services. Most contracts attempt to allocate responsibility—and liability—for work health and safety (WHS) matters to the contractor or service provider. While it is appropriate for universities to limit legal risk through well-drafted contracts, WHS legislation does not allow duty holders to "contract out" of their obligations.
WHS legislation—harmonised jurisdictions
Under the Work Health and Safety Act (model WHS Act), the primary duty of persons conducting a business or undertaking (PCBUs) applies to "workers", a term defined to include contractors. If a university causes workers to be engaged, whether as contractors or employees, and influences or directs those workers, the university will have a primary duty to ensure their health and safety, so far as is reasonably practicable.
Where a university engages contractors or service providers to undertake work at its premises, the university will also have a statutory duty to ensure the workplace is safe.
No contracting out
The above duties, and others, apply to universities, regardless of the terms of any contract. The "no contracting out" provision is fundamental to the model WHS Act. This provision essentially means that duty holders cannot limit or modify their WHS obligations by way of a contract with a third party. A term stating "the contractor assumes liability for all WHS matters arising from the work" will be void to the extent it attempts to render the contractor responsible or liable for the university's statutory duties. The question of what WHS duties a university has will always be determined on the facts and circumstances of each case, rather than contractual terms.
Principles that apply to duties
The WHS Act recognises that a number of PCBUs may have responsibilities for a particular project, scope of work or group of workers. Attempts to artificially delineate and allocate WHS responsibilities to different parties can result in gaps in WHS management, increasing the risk of incidents occurring.
The WHS Act includes principles intended to close those gaps. It provides that a person can have multiple concurrent duties. Also, more than one person can have the same duty.
If more than one person has a WHS duty for the same matter, the WHS Act further requires each person to proactively consult, cooperate and coordinate activities so that WHS risks can be effectively managed. The purpose of consultation is to ensure duty holders have a shared understanding of the risks, which workers will be affected and how the risks are controlled. The exchange of information helps each person to meet their duty and to minimise gaps in WHS management. This process can range from directly discussing and planning daily work with contractors to establishing formal mechanisms with written agreements and consultation committees.
WHS legislation—non-harmonised jurisdictions
The WHS legislation in WA and Victoria does not contain the same "no contracting out" provisions as the model WHS Act. However, consistent with the model WHS Act, an employer in these jurisdictions cannot contract out of statutory health and safety obligations simply by including terms in a contract that purport to transfer those obligations to another party.
In the WA and Victorian legislation, the primary duties of employers extend to employees and contractors. The key issues when determining an employer's obligations are:
- engagement: this is not limited to direct contractual engagement and can extend to the remotest of sub-contractual engagements, and
- control: the degree of control is a question of fact and what will be reasonably practicable in the circumstances. If it is reasonably practicable for a university to direct activities of the contractor or review their processes, this may be the necessary control that attracts an employer's duties in these states.
Principal contractors and main contractors
Under both harmonised and non-harmonised laws, the PCBU (or equivalent duty holder) who will have management and control of the project is deemed to be the "principal contractor" (or "main contractor" in WA). This person has additional responsibilities for managing WHS risks associated with construction work.
Contracts often seek to appoint third parties as the principal or main contractors. However, the appointment of a principal or main contractor will not absolve a university of its WHS responsibilities. A university will retain WHS duties for those matters over which it retains management or control. A university should consult with the principal or main contractor on how WHS risks associated with the project will be managed, particularly if a construction project is carried out on campus and in close proximity to university operations.
When is it ok to rely on contractors?
The provisions discussed above do not preclude universities from relying on contractors or service providers for the management of some WHS matters, when it is appropriate to do so. Indeed, in Baiada Poultry Pty Ltd v The Queen  HCA 14 (Baiada) Heydon J stated that:
"In some circumstances, the employment of independent contractors may be the only reasonably practicable way of ensuring and maintaining a safe working environment."
The challenge for universities it to understand when they need to take responsibility for WHS, and manage the work undertaken by contractors and service providers, and when they need to take on a monitoring role. The appropriate approach will depend on a range of factors, including:
What does this mean for universities?
- Contractual terms should never be relied on as a guarantee that WHS risks will be effectively managed by a contractor or service provider. Universities should continue to use contractual terms to provide maximum protection from WHS liability, but there are limits to the extent to which such terms will be effective in the event of an incident. WHS risks and potential liabilities for a university can also be managed through:
- carefully selecting appropriately qualified and skilled contractors and service providers
- understanding the scope of work and how it may be impacted by or impact on the university's operations
- understanding who will have day-to-day control over the work or services and the workers
- training university personnel on the extent of the university's WHS obligations
- consulting with other duty holders
- having appropriate WHS policies and protocols in place, and
- appropriately managing or monitoring the work or services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.