WHS laws clarified - contractors and your responsibilities

Revised workplace health and safety (WHS) laws address the historical ambiguity surrounding contracted workers. Following a review of the existing legislation, which began in 2011, the Australian Government provided clarification on outsourcing jobs to workers who operate their own business, seek placement through a staffing firm or otherwise manage their commercial terms.

It's a common misconception that outsourcing work to a contractor absolves the employer of normal WHS responsibilities. The new guidelines introduced the term 'worker' to remove ambiguity as to who the person conducting a business or undertaking (PCBU) has responsibility towards. In addition to clearly defining what a 'worker' is, these guidelines help PCBUs understand the extent of their obligations to each type of worker.

Even with clearer legislation, the nuances of WHS responsibilities can be confusing. To combat the confusion, WorkPro has released 'The Independent Contractor' (IC), the latest in its series of e-book publications. The e-book is free to download and covers the key aspects of the guidelines, examines legal precedents and offers tips for managing contractors within an overarching safety program.

Contracted workers defined

The IC outlines the differences between main classifications of workers, as defined in the WHS Act: contractors, temps and employees. It also explains who retains responsibility for upholding WHS requirements when each type of worker is engaged for a job with an organisation.

Although these are the main classifications for workers under the model WHS laws, the changes address obligations towards all types of workers, which also include apprentices, outworkers, trainees, students gaining professional experience, volunteers and subcontractors.

For that reason, these changes apply to a great proportion of organisations in Australia. Not having a clear understanding of who holds a legal obligation for ensuring a worker's wellbeing is not a valid excuse in the case of a breach, incident or accident.

Clearer guidelines on WHS responsibility

For the purposes of WHS, it's important to identify who is considered a PCBU.

WorkPro's IC e-book outlines PCBUs for each type of worker. In general, any business that is involved in placing an individual for work - whether the independent contractor, staffing agency or host company - retains obligations to uphold WHS requirements.

Importantly, the document emphasises that a PCBU may also be classified as a worker and therefore also has WHS obligations. It is illegal to "contract out" WHS obligations, and any attempt to do so contractually will be considered invalid. The individual can also be a worker of more than one entity at the same time.

All entities involved in the engagement of contractors must collaborate to ensure work arrangements have the necessary precautions in place and each must be in compliance with WHS regarding contracted individuals. To do so effectively, each and every stakeholder must have a clear understanding of its responsibilities.

Strategies to improve compliance programs

Whether or not an organisation previously ensured its practices addressed the health and safety of contracted workers, every company can benefit from a streamlined, comprehensive approach to manage compliance with regard to contractors. That's all the more true with these revised guidelines, since inspectors are likely to enquire into the PCBU's method for addressing compliance for independent contractors and temp workers.

To assist businesses with these strategies, the e-book provides practical advice for enterprises to take a strategic, proactive approach to managing contracted workers.

In particular, organisations should ensure they have a documented contractor management procedure in place - one that outlines WHS arrangements prior to and during the engagement of contracted workers. Companies should also establish processes for induction and training programs, as well as check that they are competent in upholding their WHS obligations.

For a step-by-step plan, HR leaders and other decision-makers can turn to the e-book's contractor management guidelines, which detail five essential components of a strong, comprehensive program. This kind of systematic approach is particularly helpful where contractors, firms and host organisations need to collaborate and coordinate in activities to uphold compliance under the new stipulations.

As a whole, each entity that retains a duty of care towards a worker must understand its responsibilities and ensure its processes support compliance. A proactive approach is imperative in this regard, since a good contractor management process begins far before the job commences.

Additional resources

Enterprises that hire contracted workers, staffing firms and contractors should familiarise themselves with WHS law. The Guide to Model Work Health & Safety Act is a good place to start, in addition to reviewing Section 19 of the WHS Act. Organisations should go to their state's WHS website for the relevant version of the law.

Although familiarising themselves with the letter of the law is essential for organisations that deal with contracted workers, many companies will require practical, easy-to-understand guidance. WorkPro's free Independent Contractor e-book fills this gap, compiling all of the core definitions and takeaways in a single resource. By suggesting a strategic plan of attack for implementing a contractor management program, the document provides actionable advice to help HR teams take charge of their WHS practices where contractors are concerned.

As a whole, this is an important change in WHS law - one that should help ensure no-one slips through the cracks and everyone receives the protection they deserve. WorkPro encourages companies to take the opportunity to ensure their practices and policies align with the legislation.