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The High Court recently considered the question of whether
engaging a contractor to perform work is enough to discharge a
person's duty to ensure safety in Baiada Poultry Pty
Ltd v The Queen [2012] HCA 14.
The incident
Baiada Poultry Pty Ltd (Baiada) processed
chickens at its plant and had agreed with the chicken growers to
round up the chickens and transport them to its plant. To do this,
Baiada engaged independent contractors to catch the chickens (the
'chicken catchers') and other independent contractors
to transport the chickens to the plant (the
'transporters').
The incident involved an unlicensed chicken catcher who was
using a forklift to put some remaining modules (steel pallets
stacked with crates) onto a trailer. As he was doing this, one of
the modules became stuck and he asked one of the transporters to
assist him. While the module was being shifted, another module fell
and killed the transporter.
The prosecution
Baiada was prosecuted by WorkSafe Victoria for failing to ensure
the safety of the transporters. Baiada argued that it was entitled
to rely on "competent and experienced sub-contractors in order
to carry out the work they could not do themselves". Baiada
argued it did not have the right to control how the forklift was
used and that this was a matter within the control of the
independent contractor. A jury rejected these arguments and
convicted Baiada. Baiada appealed.
On appeal, the Court of Appeal agreed with Baiada that the trial
judge had failed to give the proper direction to the jury as to the
relevant standard of proof required for the prosecution to succeed.
However, notwithstanding this error, the Court of Appeal dismissed
Baiada's appeal on the basis that no substantial
miscarriage of justice had actually occurred. Baiada appealed to
the High Court.
Not required to take "every possible step" - High
Court
The High Court overturned Baiada's conviction and
ordered a new trial, finding that the Court of Appeal could not
conclude that the charge laid against Baiada had been proved beyond
reasonable doubt and therefore could not be satisfied that no
substantial miscarriage of justice had actually occurred.
The High Court emphasised that when there is an alleged
contravention of the duty to provide and maintain a safe working
environment, the question is whether the employer had "so far
as [was] reasonably practicable" provided and maintained a
safe working environment. In its observations about the scope of
the duty, the High Court said that all elements of the statutory
description of the duty were important and that the words
"reasonably practicable" indicate that an employer is not
required to take "every possible step that could be
taken". Rather, the steps required "are those that are
reasonably practicable for the employer to take to achieve the
identified end of providing and maintaining a safe working
environment".
The High Court went on to say that the prosecutor simply
demonstrating that another step could have been taken was not
enough. In this case, the prosecution had to prove beyond
reasonable doubt that Baiada exercising a right to control its
subcontractors' activities was in fact a reasonably
practicable step for it to have taken.
What does it mean for employers?
The Baiada case provides valuable guidance about the
scope of the duty of care owed by businesses under the new
harmonised Work Health and Safety laws. This is because those laws
now contain a primary duty on a person conducting a business or
undertaking (PCBU) to ensure the health safety of
workers "so far as is reasonably practicable".
The implication of the case is that in defending a prosecution,
a PCBU need only demonstrate that it took "reasonably
practicable" steps - it is not necessary to demonstrate that
it took every possible step. By contrast, the prosecution must then
prove beyond reasonable doubt that the PCBU failed to take
reasonably practicable steps.
The case also leaves open the question as to whether it is
sufficient for a PCBU to engage and rely on a subcontractor who has
greater expertise and experience in performing the work than the
PCBU, to discharge its obligation to provide a safe working
environment. Even if a PCBU has a "right" to issue
directions to the contractor regarding safety, the PCBU is only
required to exercise this right if it is "reasonably
practicable" in the circumstances.
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.
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
