Contractor Health and Safety – Who is responsible in South Africa? Is it the employer or the contractor?

Introduction

It is common for many companies to entrust work in the capable hands of contractors to allow them to perform essential business activities as well as skill-specific tasks. There is a multitude of people in South Africa who work as independent contractors across all industries. They have become a necessity as, at some point, companies may need a contractor.

Contractors can provide important business benefits. They also offer a practical and a profitable way of managing workloads which vary. However, there is one important consideration where they are concerned pertaining to contractor health and safety and who is responsible in South Africa. Is it the employer or the contractor?

Employers may already have an adequate understanding of their health and safety responsibilities with regards to their own employees, at least where the Occupational Health and Safety Act (85 of 1993) is concerned.

However, some employers may not have absolute certainty of where their contractors fit into that scope of responsibility. It may pose a substantial risk should contractors not understand the safety procedures of the organisation. It can also lead to failure of the employer’s responsibility as a business owner.

Employers cannot afford ignorance of the duties that they have towards their contractors and it is for this reason that it is crucial that employers understand who is responsible for contractor safety when they are in the workplace.

What are the risks involved with engaging Contractors?

Often, the obvious choice is to engage with a contractor when specific work needs to be done. This allows for the right skillset to get the work done within a certain period and in a specific budget.

However, there are factors that need to be considered and that the employer must be aware of before a contractor starts working. While contractors are associated with an array of benefits, they may also expose the employer and business to increased risk factors.

Contractors do not always possess the right amount of knowledge of the safety management systems and they are not always trained or overseen in the same way that employees would be.

As result of this, the contractor can pose a significant risk to safety on site. This means that contractors may be exposed to existing hazards on the premises and they can also introduce new risks, posing a threat to current employees.

The employer has a legal obligation towards providing a safe working environment which is free of danger to worker health, how does the employer manage the risks which may be introduced by their contractors?

Is the Employer Accountable for Contractor Safety?

The short and simple answer is yes. Employers have a legal obligation to ensure the health and safety of a contractor’s workers when they are on the work premises and in the workplace. Employers cannot depend only on the contractor’s ability to identify on-site hazards, even when the contractor is hired for specialist knowledge. It is also unacceptable for the employer to delegate their responsibility.

Legally speaking, the employer is responsible for:

• The protection of the health and safety of all company employees, clients, contractors, and suppliers.
• The provision of safe workplaces for all parties.
• The conducting and managing of work in a safe manner and the prohibition of work without the required controls for such work present and managed.
• The provision of a structure and requirements for work to be conducted by contractors as well as suppliers and the permit management of such work.
• The provision of information to employees, contractors, and suppliers relating to health and safety hazards as well as risks.
• The identification and controlling of health and safety hazards and risks.
• The provision of a structure for the procurement of contractor and supplier services as well as work and deliverables aligned with the required compliance to both company and legislative requirements.

How can Employers exercise their ‘Duty of Care’ towards Contractors?

By making use of a comprehensive contract management system, employers can meet their obligations towards health and safety. In exercising duty of care towards contractors, employers must address the following:

• Selection Criteria – the selection of contractors must not only be based on the expertise they offer but also on their competence as well as knowledge of workplace health and safety matters relevant to the task.
• Documentation – the employer must review all documentation of the contractor such as qualifications, licences, insurances, and safe work method statements.
• Safety Induction – contractors must be familiar with the employer’s workplace health and safety policies and procedures prior to work commencement.
• Supervision – the employer must ensure that contractors are supervised and monitored to ensure that they are performing work in accordance with the contractor management process and workplace health and safety regulation.

What are the responsibilities of the Contractor?

Contractors also have certain responsibilities towards their own health and safety, much like the employer has their responsibilities towards overall health and safety of those on the premises. However, the health and safety of contractors does not solely rest on the shoulders of the employer.

Contractors have their own duty of care while they are on the premises of the employer. in addition, the duty of care does not only apply to the employees of the contractor but also extends to everyone in the workplace.

Contractors must ensure that they do not put the health or safety of anyone at risk through their operations or activities while on the premises of the employer.

Contractors meet their duty of care by ensuring the following:

• That effective Occupational Health and Safety Management System requirements are demonstrated.
• That there is consultation with the employer with regards to workplace health and safety risks.
• That they comply with contract-specific workplace health and safety requirements.
• That they implement the necessary processes to effectively deal with safety issues.

Where high-risk goods and services are concerned, contractors also have their own duties of care under workplace health and safety legislation when providing such goods or services.

Collaborative effort for a healthy and safe workplace

Where contractor safety is concerned, the important thing is concurrent liability. Both the employer and the contractor are held responsible under workplace health and safety legislation. As much as the employer cannot expect the contractor to identify and manage hazards and risks alone, the contractor cannot expect that the employer alone be responsible for the health and safety of the contractor employees.

Both the employer and the contractor have a responsibility for on-site safety. These responsibilities overlap and for this reason, there must be consultation and consistent, continuous communication processes to prevent any assumptions and therefore loopholes in safety and health.

Contractor safety must be managed proactively

Employers must intervene should they notice, or be made aware, of unsafe work practices in the workplace. Regardless of whether an employee or a contractor is at fault. The ignorance of workers is a matter that holds liability for both parties, and it is something that cannot be ignored.

How can SafetyWallet help Employers and Contractors’ Health and Safety Compliance?

With SafetyWallet and its partnership with MAKROSAFE and OHS Online, subscribers can ensure that they are a part in creating a safer, healthier, and more compliant working environment. To find out how you can ensure employers’ and contractor Health and Safety, click here.