Drafting a Contractors Agreement can be quite tricky if you do not seek the appropriate legal advice and guidance. Ensure a contract lawyer looks over your proposed Contractors Agreement or simply have him or her draft it for you. The ‘Workplace Health and Safety’ clause is incredibly important in any Contractors Agreement, as it outlines the duties and rights of workers on your site. It is essential that workers (employees, contractors, agents, etc.) are made aware of their rights and responsibilities under the Workplace Health and Safety Act (the WHS Act), which can be found under section 28 of the WHS Act. Although these obligations are subject to what a court considers reasonable, the duties typically include the following:

  • Taking reasonable care for personal wellbeing/safety;
  • Ensuring that other persons are not harmed by the actions/inactions of workers;
  • Comply with the orders/instructions of the ‘Person Conducting a Business or Undertaking’ (PCBU), so far as is reasonable; and
  • Comply with any workplace policy/procedure that is aimed at increasing safety of workers.

Your contract lawyer should draft the Agreement so that the contractor is required to take responsibility for itself and its workers.

Some important sub-clauses

  • The Parties (and its employees or agents) must comply with all applicable workplace health and safety laws and all safety instructions reasonably issued by the other Party from time to time.

Have your contract lawyer include a sub-clause that requires the contractor and its agents/employees to comply with any WHS legislation, as well as any safety procedures or directions during the term of the contract.

  • The [Contractor/Principal] must ensure that all plant, tools, equipment and substances used in performing the Services are in a safe and serviceable condition and used in accordance with their operating instructions.

Both parties should guarantee that all equipment is safe and used in accordance with any applicable safety procedures. Have your contract lawyer reciprocate this sub-clause so that both parties are responsible for their own tools.

  • The Contractor must ensure that its employees, agents and subcontractors are adequately supervised at all times while performing the Services.

If something happens to the contractor’s staff, who will take responsibility? If your contract lawyer inserts a clause that makes the contractor responsible for its own staff, you will more adequately protect the interests of the business by decreasing its liability.

  • Each Party must ensure that before its employees, agents and subcontractors perform the Services they receive adequate training in security, workplace health and safety, customer service and risk management.

You could be liable for workers that have not received the appropriate training in delivering the required service. In addition, workers who are not made aware of their duties under the WHS Act will be more of a hazard whilst at work, which endangers other workers.

  • If the Contractor (or one of its employees, agents or subcontractors) engages in conduct on the [Principal’s premises and Project Sites] which, in the reasonable opinion of the Principal, could cause a serious risk to health or safety, the Principal may ask them to cease performing the Services and/or leave the [Principal’s premises and Project Sites] immediately and they will agree to do so. They will not return to the [Principal’s premises and Project Sites] without the Principal’s prior consent.

Have the contract lawyer insert a sub-clause that warrants the removal of any contractor (or its employees) if the Principal becomes concerned about the safety of other workers because of their misconduct. This will give you more control over your site.

  • The Contractor may be obliged to follow safe working directions, wear Personal Protective Equipment (PPE) and/or other Safety Gear as set out in the Schedule when required and avoid adversely affecting the safety of you or others in the course of your engagement.

There are many policies and procedures that are designed to lower the risk of injury on the workplace, and by including a sub-clause that enables the Principal to impose those policies the overall risk of injury is decreased.

  • If the Contractor (or one of its employees, agents or subcontractors) considers that the working conditions or behaviour or other workers could cause a serious risk to health or safety, the Contractor may cease performing the Services and/or leave the [Principal’s premises and Project Sites] immediately.  If the situation is not rectified within a reasonable time, the Contractor can terminate the Agreement with notice.

The above clause gives the Contractor the right to cease work if the conditions are unacceptably dangerous. The contractor’s lawyer will require this sub-clause be inserted so that its client is able to terminate if working conditions are inadequately safe.

  • The Contractor will promptly notify the Principal of any workplace health and safety incidents that occur or of any involvement by workplace health and safety officials in connection with the Services.

The above sub-clause shares the reporting responsibilities between the Principal and the Contractor. If your Contractors Agreement does not include it already, you should consult your contract lawyer.

Conclusion

Although the responsibilities for health and safety are shared to some degree between the contractor, his staff and the Principal, it is the PCBU who has the main duty under the WHS Act. This primary responsibility requires the PCBU to protect – as far as is reasonably feasible – the health and safety of everyone on the site. For this reason, it is crucial that your contract lawyer carefully reviews the provisions of the Contractors Agreement to ensure that liability is reasonably shared.

Lachlan McKnight

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