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.
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