Reliance on subcontractors,

the Baiada experience

A recent decision of the High Court of Australia had a look at the issue of contract workers on premises over which the company had control.

In the case of Baiada Poultry Pty Ltd v The Queen [2012], it was highlighted how important it is for employers, principals and head contractors to conduct risk assessments and determine whether it is reasonably practicable to provide a safe system of work for a contractor’s employees.    The case related to the obligations imposed by the Occupational Health and Safety Act 2004 (Vic) to provide, so far as is reasonably practicable, a workplace that is without risk to health or safety.

In this case, Baiada Poultry Pty Ltd engaged contractors, DMP Poultech Pty Ltd and Azzopardi Haulage Pty Ltd, to round up and transport chickens from farms to Baiada’s processing plant.  

An unlicensed forklift driver engaged by DMP was using a forklift to load crates onto Azzopardi’s trailer.  Mr Azzopardi was assisting the driver to dislodge a module that had become stuck.  The module was moved, causing another module to fall on Mr Azzopardi who later died as a result of his injuries.  

Baiada was prosecuted for breaches of the OHS Act and found guilty because it had control of the workplace and had failed to implement a safe system of work, including appropriate instruction and supervision of the contractor’s employees.  

The High Court quashed the original sentence and decision after unanimously finding that the trial judge had erred in failing to expressly direct the jury to consider whether Baiada had, beyond reasonable doubt, done all that was reasonably practicable to provide a workplace that is without risk to health or safety.  

At trial, and despite the submissions made by the appellant's counsel, the trial judge did not direct the jury that the prosecution needed to prove beyond reasonable doubt that by engaging apparently skilled subcontractors, the appellant did not discharge its statutory obligation to provide and maintain a safe working environment so far as was reasonably practicable. The jury found the appellant guilty, and the appellant appealed. 

In particular, the High Court found that ‘demonstration that some step could have been taken does not, without more, demonstrate that to fail to take that step was a breach of the obligations so far as reasonably practicable to provide and maintain a safe working environment’.  

The High Court ordered a new trial.

More:- http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcs14_2012_03_30_Baiada_Poultry.pdf