A principal's guide to contracting to meet the Health and Safety in Employment Act 1992
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4. Awarding the contract
Information-sharing between the principal and contractor should begin immediately. Depending on the type of contract, once the contractor is appointed a contract-specific health and safety plan should be developed by the contractor and provided to the principal.
Project health and safety will often be managed by the contractor, but the plan provides an important means for the principal (in conjunction with the contractor) to monitor the contractor’s health and safety performance.
For a substantial contract, the principal may ask the successful tenderer to give a detailed presentation on their work activity plan. As discussed above, this would include providing an outline of the health and safety plan prepared for the project, and an opportunity to answer further questions on health and safety arrangements.
Where necessary, post-tender meetings should be held with potential contractors on a one-to-one basis to further assess their competence and aptitude for managing health and safety.
This could, of course, coincide with any discussions and clarification of other aspects of the tender. For example, principals monitor contractors constantly to ensure they are conforming to contractual specifications in other respects, and to monitor work quality. Health and safety should be no different.
4.1 Documentation
Health and safety requirements should be documented and become part of the written contract wherever practicable. Usually this will involve reference to the management of the project’s specific hazards, conformity with standards, co-ordination and reporting requirements and other project-specific information obtained in the tender documentation. The health and safety plan may also form part of the contract documentation.
Principals will be expected to act on information in their possession at the relevant time. For example, the courts have found that when a principal learnt that a contractor allowed its employees to decide on the use of safety equipment, it had a duty to ensure the contract terms included clearly defined duties for the provision of appropriate safety equipment and supervision of work practices.
4.2Briefing the contractor
Where appropriate, contractors and their employees should be given induction training regarding the workplace or site, and the opportunity to ask about hazards and risks. The nature of induction training will vary according to the types of hazards and associated risks. In some cases, basic induction training will be sufficient, where in others training will need to be more rigorous. The principal's conditions for contractors, whether general or for defined tasks, may be discussed, agreed and specified as part of 'job registration'.
To help identify risks and to plan the work safely, the principal may use job registration forms, or checklists specific to the project (see the sample job registration form in section 4.3.4 of this guide). This helps to assess the risks associated with the activity and define control measures and precautions required (e.g. safe systems of work, method statements, use of specific equipment). The number and type of questions will depend on the work complexity and hazards involved.
4.3Information-sharing between principal and contractor
Information sharing between principals and contractors will be closely related to the monitoring of contractor performance. What is appropriate will vary according to the circumstances.
In a situation where the contractor is employed for their particular expertise and the principal has little effective control over the place of work, the principal might not be expected to take detailed operational steps in relation to the contractor's specialised functions. This may reduce the need for information sharing to a context of careful planning, selection and induction.
As an example, a principal that had subcontracted building work was held not to be liable for failing to ensure on-site supervision was provided. The principal was found to have taken all practicable steps in relation to contractor selection, providing safety information prior to work actually commencing that identified the specific hazard, and installing an adequate induction process. In another case, a principal who had carefully stipulated appropriate requirements for confined space entry in advance, made extensive contractual provision for health and safety, and checked its contractor’s safety procedures, was held not to be liable when members of the contractor’s specialised confined entry team were involved in an accident arising from defects they had noticed on site.
This is in contrast with a situation where the nature of the work may be well known to the principal, or where the principal may exercise a high degree of control over the place of work — perhaps providing specialised plant or equipment for the use of the contractor — and there is associated information sharing.
Examples
A building owner principal provided a “cherry picker” for a contractor and their employees to gain access to a roof. When the cherry picker broke down and wasn’t replaced or repaired in a timely way, the contractors’ employees began to gain access to the roof in an unsafe way. After an accident involving one of the contractor’s employees the principal was held to be responsible for maintaining the equipment and developing a procedure to follow if the equipment failed.
A building contractor engaged a subcontractor to provide scaffolding as part of their contract. They failed, as a principal, to tell the subcontractor that the scaffolding was to be used to support a free-standing wall. When the wall and scaffolding collapsed, they were held to have breached the Act.
Whatever the situation, effective information is critical and the principal and contractor should share and discuss information about the work and the area where it is to be carried out. Above all, the information needs to be effective. For example, simply providing information about the unsafe state of plant on a hazard board placed in a busy office was held to be insufficient, when the evidence indicated that it would have been practicable to attach information to the plant itself.
Example
ProPack Ltd, a chemical packaging company, regularly used Valiant Labour Hire Ltd to supply it with temporary workers.
One such worker, Kelly, was using a ribbon blender to mix and package chlorinated alkali powder. When the level of the chemical ran low she entered the blender tank to manually empty the remaining product. While inside it, Kelly’s chemically resistant overalls were ripped by the blender blade and her skin came into contact with the chemicals, resulting in a severe burn to her foot.
Proper practice had always been to clean the tank from outside, but the company had allowed the practice of cleaning it from the inside to develop. Propack Ltd was charged with a breach of section 18(1)(a) and the court found it had failed to accurately identify the hazard and should have imposed a strict policy prohibiting workers, including Valiant’s employees, from entering the tank.
4.3.1Effective information sharing
Effective information should include the following details:
Nominated contact persons for both the principal and contractor
Representatives nominated should have the appropriate level of knowledge for the role, and be at a level of authority within the organisation that allows them to be effective. They should also be resourced and available to carry out the role effectively.
The planning and running of joint meetings
Meetings should be regular, and conducted in a format allowing a free and open exchange of information. It may be efficient to incorporate safety and health issues in other administrative meetings, but only where appropriate personnel and resources are available, and the forum allows sufficient coverage of the subject. The outcome of any meetings should be recorded in writing.
Procedures for reporting hazards
Although principals are required to take all practicable steps to monitor and manage hazards, there may be situations where they are reliant on the contractor to report hazards. Alternatively, there will often be situations where a contractor is dependent on the principal's control of hazards, or on their provision of hazard information. For effective hazard management, there needs to be efficient transfer of information between the parties. This can only be achieved with any certainty through clearly designated reporting lines.
Contractors or principals who are employers are required to follow the formal hazard management processes of sections 7-10 of the HSE Act. These are discussed in section 2.3 of the Guide to the Health and Safety in Employment Act 1992, covering hazard management responsibilities. Although these steps are not directly applied to the duties of principals under the Act, the courts have held they are relevant when considering the scope of the principal’s duty to take “all practicable steps”.
Responsibilities where work is notifiable to the Department of Labour
The Health and Safety in Employment Regulations 1995 require employers to notify the Department of Labour of certain categories of work at least 24 hours before work begins. Much of this type of work, such as construction and forestry operations, is commonly performed by contractors. For a list, see the glossary at the back of this guide, under "notifiable work". The section 18 duty requires the principal to any contract involving such work to be aware of the notification requirements, and ensure the contractor complies.
Method for reporting accidents and incidents to the principal
As noted above, employers, the self-employed and principals all have responsibility for recording, investigating and reporting accidents in the workplace under section 25 of the HSE Act. The principal should ensure they are advised by contractors of all accidents and incidents, whether or not these arise from hazards or potential hazards over which the contractors exercise control. This includes accidents that actually cause harm, or incidents or events which in different circumstances might have caused harm.
Involvement in employee participation
Where a principal or contractor maintains an employment participation system there may be scope for shared arrangements with meetings and processes for improving health and safety in the workplace.
4.3.2Information to be given by the principal about the workplace or procedures
The section 18 duty also means there is a duty to inform of any foreseeable hazards, even when the principal is not an employer. Information to be given by the principal has been discussed in the previous section, but may be summarised as including the following categories:
- hazards that are known to exist in the place of work and may affect the contractor or their employees
- restricted areas
- any work permit procedures, e.g. hot-work permits
- any company rules that the contractor will be required to comply with during the contract
- emergency procedures that exist and first-aid facilities available, and
- specific job instructions and work methods.
The practicable steps are unlikely to include instruction on any specialised work for which the contractor has been employed. This means that, for example, having taken sufficient care to engage a competent diving contractor to inspect the piles of an estuary bridge, and that the work is notified to the Department of Labour, a principal would not usually be expected to provide instructions on diving practices or equipment. However, the principal would be expected to advise on such matters as traffic volumes over the bridge, the likelihood of flash flooding, or peculiarities in the method of construction that may create hazards for divers.
Example
Enda Ltd were plastics manufacturers who contracted Acme Pressure Systems Ltd to carry out maintenance on one of its phenolic kettles used to make resins. Acme Pressure Systems employed technician Juan to perform the work.
Juan performed this work in the plant, alongside Enda Ltd employees. One day he left the processing plant for a tea break, leaving by one door and returning soon after to resume work. He was working beside the kettle when two trainee technicians, who had observed him leave by one door but not return by the other, initiated the manufacture of a batch of phenolic resin. As a result, Juan was exposed to phenol vapour and had to be taken to hospital.
Juan was unable to work for a month and suffered lingering health effects for six months. Enda Ltd was convicted of a breach of section 18(1)(a). The court found that there were a number of practicable steps Enda should have taken to prevent the accident, including preventing access to the kettle floor when it was in use, having a system to warn workers when a cook was about to begin, and improving communication about work scheduling between technicians and others on site.
Where a principal is also an employer and is required to manage hazards in the workplace, it would be expected any information on hazards acquired in this process would be readily made available to contractors. See also section 2.3 of the Guide to the Health and Safety in Employment Act 1992, for a discussion of hazard management responsibilities.
4.3.3 Information to be given by contractor about the workplace or procedures
Information to be given by the contractor is described in the section above, and will be contained in the health and safety plan for the project. For any significant contract the contractor should submit a plan of how they intend to manage health and safety in relation to the proposed work, before the contract is formed. What is a significant contract will depend on the circumstances. For example, in the forestry industry a contract to fell and remove several trees from an isolated farm paddock would probably not require a formal plan. However, clearing a similar stand of trees from beside a busy highway or extracting a woodlot by a cable-logging operation would each require a detailed plan. Similarly, in the construction industry, the building of a single office partition might require elementary health and safety considerations, but for the refitting of an entire floor of an office building or the construction of a new building, the courts would likely require a detailed plan.
The health and safety plan will often have been based on the ‘information for tenderer’ document described in section 3.1, and may then be added to or improved as project planning proceeds. For any project, it should as a minimum contain the following details:
- hazards identified and control measures to be taken
- emergency procedures
- training, experience and qualifications of employees (including certificates of competency where required)
- procedures for reporting and recording of accidents/incidents, and
- means of involving employees in the improvement of health and safety.
The health and safety plan or policy needs to be adequate and appropriate to the hazards and circumstances of a particular contract. As mentioned above, this means a standard policy intended to apply to all contracts is unlikely to be appropriate. The plan should describe the lines of accountability and responsibilities for supervision.
The plan should contain the following information on hazard management, in addition to any other topics raised by the information for tenderer:
- information on hazards that the contractor is bringing onto or may be creating on site (e.g. hazardous substances, noise, dust, electrical hazards, etc)
- safety provisions for other people who may be affected by the work, including people in the vicinity and the public
- safety equipment that may be necessary, including means of access to an appropriate standard, and
- restricted areas, security and control of access to the work area.
The contractor will need to provide regular updates on progress with the health and safety plan.
Example
Cleaning contractors Splendid Services Ltd were engaged by meat processing company Longhorn Meats Ltd to clean the processing areas in its large meatworks.
Myles was one of several cleaners employed by Splendid Services Ltd for the Longhorn contract. One day Myles was cleaning an offal auger when he put his arm into the machine to clear a blockage. Myles had wrongly assumed that it had been turned off, and his arm was crushed.
Longhorn Meats was charged under section 18(1)(a) with having failed to take all practical steps to ensure that an employee of its contractor was not harmed. The court found that Longhorn should have isolated the hazard by ensuring that Myles could not access moving parts of the offal auger, or, if that was not a practicable step, established a documented procedure to ensure the auger was switched off before it was cleaned.
4.3.4Using a job registration process
Job registration can be a useful communication tool between principal and contractor. It provides an opportunity for risk assessment and control by the principal.
The following questionnaire contains questions and relevant issues to be addressed following tender once the contract has been awarded. It is a means of the principal checking that the contractor is aware of specific health and safety issues, and may be used as a checklist with which to compare the content of the health and safety plan submitted by the contractor.
The plan will contain the detail of how the contractor proposes to deal with the specific hazards of the contract raised in the "information for tenderer" and any further safeguarding the contractor deems necessary.
Specific arrangements regarding hazards will need to be agreed to by both parties.
Sample job registration form
This sample questionnaire particularly relates to "high hazard" work (e.g. roofing, construction, excavation, or entry into confined spaces). Work will be carried out according to the principal’s conditions for contractors, which will also be described, discussed, and agreed as part of the "job registration" process. This form might also be adapted for less hazardous work.