OHS Responsibility cannot be contracted out

Employers are responsible for the occupational health and safety of contractors – even when those contractors have been hired for their specialist knowledge and skills.

Sage Technology Director, Peter Kingwill, said this lesson was strongly reinforced by the recent prosecution and fining of Qantas under OH&S legislation in New South Wales.

The prosecution against Qantas followed an explosion which resulted in a sub-contractor suffering burns to his face and chest. The incident occurred as fuel was being removed from an underground storage facility which was being decommissioned.

Qantas was prosecuted for failing to transfer fuel by the process known as bottom loading, and for failing to ensure that mobile tankers were properly purged of fuel prior to the transfer.

Qantas, which pleaded guilty following discussions with WorkCover, had carried out an extensive review of its expertise and determined that it should engage specialist contractors to carry out the work. Caltex Petroleum was engaged to remove the fuel and subsequently contracted Kel Campbell for the provision of tankers and drivers required for the removal of the fuel.

Qantas argued they had closely checked Caltex’s qualifications, safety procedures and safety records and were satisfied that Caltex had the expertise to carry out the work. Qantas also said that Caltex had indicated they would use expert staff with the relevant training and qualifications to complete the job in a safe and expedient manner.

The accident occurred as a result of an ad hoc decision by a Kel employee to cease bottom pumping and to load the fuel into the top of the tankers to expedite the process. This change of method was implemented without the knowledge of Qantas and against the recommendations of the Caltex Australia Drivers Handbook, which all kel and Caltex Petroleum staff were aware of. The handbook specifically warns of the risk of explosion when top loading tankers.

The NSW Industrial Court was faced with the classic example of an employer relying on a specialist contractor to carry out work that the employer did not have the expertise to undertake.

The Court indicated that whilst such contracting was normal, every day business procedure, an employer must not and could not under any circumstances contract out the responsibility for occupational health and safety, regardless of any contractual arrangement between the parties.

The Court found that the risk of an explosion was reasonably foreseeable and Qantas should have been aware of it. Qantas was fined $150,000. In a separate hearing, Caltex was fined $240,000.

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