Contractor Management: There goes another forest (Aug 04)

Contractor management can be a futile exchange of paper. What can we do to actually change behaviour?


Introduction:

This is how it goes: You send out letters and forms to contractors (some trees sacrificed for the reams of paper). They tick all the boxes, copy a “safety plan” from their mates, or one of many the boss keeps in the top drawer (more trees gone) and flick it back.

At best, you’ve got agreement from the boss that they will agree to abide by “all relevant safety codes and standards” and a few site rules. Possibly you give them an indemnity form to sign, saying that if an accident happens, it’s their entire fault.

Problem? The guy that arrives to do the job hasn’t read all that stuff, is doing a job where the hazards are not covered by the generic site rules anyway and if he causes an accident, OSH will tear up your nice indemnity form and stick you in front of the beak for not taking “all practicable steps”. And quite right too.

What do contractors think?

Our experience is overwhelmingly that contractors are competent and concerned about safety. What they hate is meaningless bureaucratic hoops to jump over. So, they will sign anything you give them and muddle through the best way they can.

Often, you got them through a competitive process, hardly even scoped the job properly, then confronted them with time consuming paperwork. How would you respond in this situation?

What are your legal obligations?

In a nutshell, the HSE Act says that if you employ a contractor at a place of work, and you are “in control” of that place, you must “take all practicable steps” to ensure that no hazard harms the contactor. (ACC WSMP and Partnership Programmes take a different slant and put the emphasis on ensuring the contractor does not harm your employees, however, this does not release you from complying with the HSE Act).

What does “All Practicable Steps” mean?

Good question. This is the key to understanding the whole thing. What it means is that in considering how far you need to go in managing the contractor, you must take into account: (Plain English Version)

  • How serious the harm could be
  • How likely it is to happen
  • Whether you knew about this (or ought reasonably to have known)
  • Whether effective means are available to reduce the risk
  • Whether the means are available at a reasonable cost

It’s risk assessment. Notice the words. So, to sum up: If the harm is potentially serious, it is likely to happen, the means are available to reduce the risk to an acceptable level and at a reasonable cost, you’ve simply got to do it.

Common Misunderstandings

People often ask: “Am I expected to be an expert in what the contractor is doing? We employ them because they are specialists. Why should we also be accountable if they do something stupid?”

The answer is not black and white but shades of grey. The following recent case histories may help to illustrate:

1. An auto body company was fined $15,000 for facial injuries to a contractor commissioning a spray booth. An explosion blew a burner unit directly into the contractor’s face. The accident occurred as a result of mis-wiring, which most likely would have been detected if an appropriately qualified and experienced person had been on site for the commissioning of the unit.

  • The judge said: “There were a number of steps which the company could have taken, but most importantly it should have ensured that a suitably qualified and experienced gas professional was on site for the commissioning of the spray booth.”
  • · “It should also have ensured that there were clear guidelines established as to the roles of gas rofessionals, together with its personnel and contractors in regard to the installation of spray booths”.

2. A dairy company was fined $18,000 after failing to ensure an employee of a contractor was not harmed when his hand became trapped in machinery. The accident occurred when the worker was conducting engineering maintenance work.. The sleeve of his overalls became caught in the machinery after it started unexpectedly and dragged his hand and then his forearm into a screw auger,"

  • "In this case the company should have taken practicable steps to ensure the safety of the contractor’s employee.”
  • "These steps should have included guarding the machinery, and having effective procedures in place to isolate the machinery while maintenance work was being carried out.”

3. A water company was fined $12,000 after a contractor was severely burned. The worker suffered serious injuries from an 11KV electrical flashover while working on switchboard equipment at a wastewater treatment plant.

  • “The judge commented that the accident would not have happened had (the Company’s) safety procedures been properly adhered to, a permit for the work obtained, and the necessary isolation carried out.

A landmark decision against Central Cranes in 1997 is still one of the key cases marking contractor management guidelines in New Zealand. (It should be noted that the case involved a rigging contractor, who was also prosecuted).The case against Central Cranes reflected the intent of the HSE Act in that:

  1. A person may be at the same time a principal, contractor, person in charge etc
  2. The Act imposes the same duty on 2 or more of these persons
  3. The Duty is not diminished by the fact that it also applies to others
The case involved a prosecution of a principal where a (rigging) contractor was seen working 41 metres above a construction site without a helmet or protective harness. The principal argued that it was the contractor’s employer (not themselves) who should be responsible for the safety of the contractor. The Court of Appeal rejected this argument and clarified the law in relation to a principal’s responsibilities finding that, although the responsibility primarily rests with the employer, the principal’s responsibilities are not diminished.

The Court of Appeal observed that under the Act a principal is required to take "all practicable steps". It continued to find that a principal cannot be distanced from what occurs in the workplace simply because a contractor is involved and that contractor in turn owes more direct duties to his or her employees. The Court would not set down a clear detailed code of what is practicable in the circumstances. What is practicable, will be determined on the facts of each case.

What can we learn from this?

  1. We must select suitably qualified contractors
  2. We must ensure they have a safe workplace to work in
  3. We must ensure they follow our safety procedures and agree to safe practices
  4. As far as practicable, we must supervise them, to ensure they work safely

What can we do?

  1. Depending on the risk and complexity of the task, you may need to specify a recognized qualification or competency. Talk to OSH or industry associations if in doubt.
  2. You are responsible for warning the contractor of the hazards your own workplace has and the means of managing those risks
  3. If you have, as part of these risk management methods, procedures such as working at heights, isolation, confined spaces, hot work, you must require the contractor to follow them
  4. You must supervise, communicate with and monitor the contractor for the duration of the work, again, in relation to the risks, duration and complexity of the task
  5. Preferably, you should have as much as possible in writing, just in case the worst happens and you end up in court.

What system can we use?

There is nothing simple about this. Systems can be useful but at the end of the day, it’s about understanding your obligations and applying common sense. What you do for a courier driver will be totally different from what you do in a major building project, however, here are some thoughts:
  • Ensure all contractors and visitors report to one place if possible and register their presence.
  • Do they have a clear mandate and what limits are there to vary it?
  • Is it clear to whom (internally) they are responsible?
  • Do they need particular competencies and/or equipment?
  • What hazards will they create or encounter? Do you need agreement on how risks can be made acceptable?

Discuss this openly with the contractor. Talk about problems and agree solutions. Get help if in doubt. Ask OSH or Industry Associations.

  • Do you need to identify critical steps or critical precautions? What evidence do you need?
  • Are you going to do spot checks? Constant supervision?
  • Agree specific work methods for high risk work such as work at heights, confined spaces and isolation of energy
  • Show clear leadership. If it’s important enough, don’t compromise
  • Would it be useful to have regular planning meetings, as the project evolves?
  • For agreed methods and routines, get it in writing
  • If appropriate, audit the contractor against the agreed or stated system
  • Consider reasonable sanctions for non compliance
  • Review results with the contractor after completion, in order to get feedback and reinforce the process

If the process is truly about safety, not bits of paper, we suspect your contractor will be very supportive. It also means that minor and low risk tasks can be dealt with in an economical, no nonsense way.

How do we measure success?

Surely, it’s all about behaviour. If the safety behaviour of the contractor is affected by the agreements reached, then you have achieved something. If, on the other hand, all you did was chop down a forest to cover your bum, it was a waste of trees.

Try OHS Occupational Health & Safety Software Program, SafetyBase NZ

Smart Safety Software >>