April is a great time of year for getting out and enjoying the warm days without the humidity of summer,
especially with the rain easing over the last week. We are fortunate to live and work so close to many
areas of natural beauty that offer spectacular camping, hiking, riding, climbing, swimming, fishing,
and more. Where's your favourite spot?
Have you taken reasonably practicable steps to ensure the safety of anyone who does any work for you anywhere?
This is the executive summary:
If you're thinking of engaging people to work for you, or if you already have a long-standing
arrangement with contractors, you need to re-examine your operations in light of the
"reasonably practicable" steps required of you, and the amount of control you have. Additionally, it
would be a good idea to take reasonable steps to ensure you have someone who is competent, experienced,
registered and licenced as appropriate. Taking their word for it may not be enough to protect yourself.
A recent court case (Baiada Poultry Pty Ltd v the Queen [2012] HCA 14) has clarified the
definition of "reasonable practicability" contained within the new Workplace Health and Safety Laws
that were harmonised across most states and territories last year and this year.
Under the Work Health and Safety Act 2011 (Qld) people who engage contractors have general duties of
care for the health and safety of their contractors, which are qualified by the idea of what is
"reasonably practicable". When determining whether "reasonably practicable" steps have been taken to
ensure safety you must consider the following factors:
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the likelihood of the hazard occurring;
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the amount of harm that would result if the hazard occurred;
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what you knew, or should have known, about the hazard and ways it could have been eliminated or
the risk reduced;
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the availability and suitability of hazard-reduction methods;
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the cost of reducing the risk or eliminating the hazard.
In the Baiada case, they looked at the impact that control has over your liability to protect
those whom you contract, and how that affects the reasonably practicable steps you take to ensure their
safety. "Control" in this case means control over potential safety issues, as well as control over what
your contractors do. Essentially, the greater the amount of control you have over how and where your
contractors work, the greater the duty of care you have for their safety and the higher the bar is set for
what is "reasonably practicable".
In making his decision in Baiada, Justice Heydon gave an example of a householder who engages
competent and experienced tradespeople to perform the electrical and plumbing work. In his example he
said it would be reasonably practicable for the householders to rely on the contractors to determine
how to safely perform the work, rather than for the householders to give them instructions. Presumably
this is because the tradespeople use their industry experience to pre-empt and control for potential
safety issues, and the tradespeople determine how they will perform the job. The householder has less
control in this situation than, say, the licenced builder whose subbies use the builder's equipment and
install per the builder's instructions.
What this recent case didn't address, however, is yet to be fully tested - how far do you have to go in
checking that you have a bona fide expert? Must you verify with the Building Services Authority, with
QMBA, with all the potential relevant authorities to verify everything you are told? Do you have to check
the bona fides of everyone who works for them? Can you get them to sign something that certifies all work
is completed 100% according to the law, and is that enough protection? These are all valid questions with
no clearly defined answers as yet. Where there are questions about a contractor's competence or experience
it might still not be enough to rely on the expertise of specialised contractors to ensure they take care
of their own safety, even if you know nothing about how to do their job and have no control over how they
do it.
Therefore, until the courts resolve it more it would seem prudent to take every precaution to ensure
that anyone who works for you has a safe working environment, whether employee or contractor. You have
a positive duty of care to ensure that this is so, but you can rely on the advice of experts provided you
have no reason to doubt their ability or credentials. No doubt a lawyer may say this is not technically
100% correct but it sure sounds like the gist of it. Be aware.
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Peregian Beach near our office
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Contact Peregian Accounting - Adaptive Accounting
Web:www.adaptive.net.au
Email: info@adaptive.net.au
Phone: 61 7 5448 1218
Fax: 61 7 5448 1221

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2011-12 Income Tax Returns due next month
By now you should already have received a letter or an email from us reminding you that, if you
have not lodged already, you should contact us as soon as possible to lodge your 2011-12 income
tax return. We pride ourselves on doing a thorough job preparing tax returns that are accurate
and comprehensive, but the process of achieving this can be time-consuming. So, the sooner you
respond to our letters and emails the better.
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