Procedure: Contractor safety engagement

Purpose

This procedure provides guidance on how the University may evaluate and monitor contractor work health and safety (WHS) when performing work for, or on behalf of, the University (the Work). This procedure ensures compliance with Work Health and Safety Act 2011 (Cth) (the Act) and Work Health and Safety Regulations 2011 (Cth) (the Regulations), and supports the implementation of the University’s Work Health and Safety Policy.

This procedure must be read in conjunction with WHS Management System Handbook (WHSMSHB) Chapter 3.6 – Contractor safety engagement (and appendices).

Scope

This procedure applies to all activities associated with engaging a contractor and managing their safety performance in completing the Work, in and outside of Australia (Specific Regulations may apply to Work outside Australia, see Regulation 11A.).

Key processes described in this procedure include: tender and contract requirements

Contractor evaluation and selection

WHS risk management

Workplace induction

Monitoring contractor safety performance (during the Work)

Evaluation of contractor safety performance (at the conclusion of the Work).

General

1. Contractors engaged by the University share concurrent health and safety duties for which the University must ensure compliance with the Act and Regulations. Both the University and its contractors have a duty to consult, cooperate and coordinate, in so far as is reasonably practicable, on health and safety matters in relation to the Work. Further information on the duties of the University and its contractors is available on Comcare’s website, under Manage contractors.

2. Engaging and managing contractors requires the University to do what is reasonably practicable to eliminate or minimise the risks associated with the Work over which the University has control and influence. The more control and influence over the Work of a contractor, the greater the steps the University must take to reasonably discharge its duties under the Act and Regulations.
3. Contractors engaged by the University may be grouped under the following general types:

1. Construction (CON)
2. Repairs and maintenance (R&M)
3. Goods and services (G&S)
4. Scientific and research (S&R)
5. International contractors working within Australia
6. Contractors engaged to work for the University outside of Australia.

4. See information in WHSMSHB Chapter 3.6 (and Appendices 1 to 6) for more detail on contractor types and recommended safety management requirements to engage, verify and manage the safety of each contractor type.
5. Note:

1. The information provided under the following headings guides the development of WHS information for inclusion in the University’s tender documentation and contractual agreements.
2. Local areas may decide to create and use fact sheets or checklists (or other documents) to inform contractors of WHS requirements, verify WHS tender evidence or manage a contractor’s safety performance.
3. It is essential the following information (and WHSMSHB Chapter 3.6) be considered in applying the University’s formal tender and contractual processes. Further information or assistance may be requested from Safety and Wellbeing at whs@anu.edu.au.

Tender and contract requirements

6. In preparing a tender and contract to engage a contractor, consideration must be given to:

1. Informing the prospective contractors of the WHS requirements for the Work being tendered (a duty to consult, cooperate and coordinate on WHS matters).
2. Ensuring the contract for the Work identifies key WHS obligations and requirements, the contractor must comply with [see section 16 (3) of the Act about more than one (1) duty holder].

Tender requirements

7. As a guide Table 1 sets out generic WHS information categories which may form the basis on which the University would structure the WHS requirements of a tender request and/or request specific WHS information from prospective contractors (evidence). The responsible person in consultation with the University Procurement and Contracts Office (UPCO), University Legal Office (ULO) and/or Safety and Wellbeing must determine what WHS information is requested from prospective contractors.
8. Table 2 sets our specific information to be considered for each contractor type and relevant regulatory references which may be applicable to the Work.

Table 1: WHS information categories

9. The following table identifies specific information or issues which must be considered for each contractor type. Regulatory references are provided as a guide in preparing specific WHS tender information or referral to contractors for consideration. The information is a guide and not limited to these points alone. The responsible person should consult Safety and Wellbeing, UPCO and/or ULO for assistance in drafting WHS content for tenders.

Table 2: Tendering considerations for WHS

Contract requirements

10. It is crucial the University clearly articulates in a contractual agreement with a contractor, key WHS requirements such as:

1. contractor’s WHS duties, both Commonwealth and State/Territory legislation.
2. level of management or control the contractor has over the work site and/or Work.
3. requirements for reporting incidents, hazards and/or risks to the University (immediate for notifiable incidents and as soon as practical for all other events).
4. conformance with all reasonable policy, procedure and/or direction issued by the University in relation to WHS matters.
5. requirement to effectively manage the safety performance of subcontractors engaged to perform the Work.

11. Table 3 provides examples of additional WHS matters which need to be considered according to the contractor type, but not limited to these entirely. The responsible person should consult Safety and Wellbeing and/or UPCO for assistance in drafting WHS conditions for a contractual agreement. Note, consultation is required with ULO for legal drafting of WHS conditions.

Table 3: Contractual considerations for WHS

Contractor evaluation and selection

12. The responsible person(s) and other key University stakeholders must assess the contractor’s WHS tender response against the relevant WHS requirements for the contractor type as per Table 4. The responsibility for managing the selection and engagement of various types of contractors is outlined in Table 5, but not limited to these examples. Seek advice from UPCO, ULO or Safety and Wellbeing if the engagement is extraordinary.

13. There are two (2) objective principles in verifying and evaluating a contractor’s WHS tender response information (evidence):

1. Fit for purpose, which means the evidence provided by a contractor is:
   1. suited to the Work to be completed, complies with WHS regulations.
   2. appropriate for the size and/or complexity of the contractor’s business operation. For example, a contractor certified to AS/NZS ISO 45001 and/or accreditation by the Office of Federal Safety Commissioner will have a sophisticated WHSMS where as a sole trader contractor may simply have a series of safe work procedures or safe work method statements for the work they complete; and

1. Deemed to satisfy, which means the evidence provided by a contractor:
   1. implies the contractor is aware of their WHS obligations as a PCBU and their WHS obligations to the University as a worker.
   2. implies compliance with applicable State/Territory WHS legislation in relation to the Work to be completed.
   3. provides a level of assurance to the University the contractor would work in a safe and compliant manner.

14. Note:

1. For construction work which involves high risk construction work, a safe work method statement (for the high-risk work) must be developed, signed by all workers and available on the construction site.
2. Construction work to the value equal to or great than $250K (≥$250K) must include (see Part 6.4 of the Regulations):
3. Contractual authorisation and management or control of the construction site to a principal contractor (PC). The University should avoid being deemed the PC for any construction project (construction work ≥$250K is a construction project and additional regulatory obligations are imposed on a PC).
4. Prior to work commencing, a site specific WHS management plan must be developed and implemented (the PC is responsible for this plan).
5. Safe work method statements are required for specific high risk construction work.

Table 5: Contractor engagement responsibilities

WHS risk management

15. The University and its contractors have a concurrent obligation, through the life of a contract and/or the period of Work, to ensure any risk to health and safety (of workers and others) is either eliminated or minimised in so far as is reasonably practicable.

16. The University, through the responsible person(s), must ensure the following actions are taken as required:

1. Advise contractors of any changes to the hazards, risks or other WHS matters affecting the Work or University workplace.
2. Provide direction to stop the Work or alter work practices in relation to identified hazards and/or risks which pose a threat to the health and safety of workers and others.

17. The contractor must be continuously encouraged to:

1. Report all incidents, hazards and/or new or changed risks to the University in relation to the Work.

Comply with their duty to ensure any risk to health and safety arising from the Work, is either eliminated or minimised in so far as is reasonably practicable.

18. All risk management, and consultative, cooperative and coordinated WHS activities must be recorded in an appropriate manner.

Workplace induction

19. Following the award of a contract, the responsible person(s) must ensure appropriate inductions are completed by all contractors and their workers. Campus Environment have developed an online contractor Induction training package for this purpose. Also refer to WHSMSHB Chapter 3.6 for information on inductions for contractors (and their workers) who are unescorted or escorted in the workplace.

20. Key components of a contractor induction include:

1. Hazards and risks associated with the University workplace.
2. University safe work practices associated with the identified hazards and/or risks, and
3. Process for reporting incidents, hazards and/or risks to the University, including notifiable incidents.

21. In relation to construction contracts, the contractor (or Principal Contractor) is responsible for ensuring all contractor workers (and visitors to site) are appropriately inducted to the construction site and possess all relevant licences or qualifications. The responsible person(s) must verify the contractor has systems in place to ensure all contractor workers (and visitors to site) are inducted and licenced/qualified.
22. An induction for contractors engaged to work at a University location outside of Australia should relate to safe work practices associated with the hazards and/or risks specific to the Work and location. Seek advice from Safety and Wellbeing about these induction processes.

Monitoring contractor safety performance

23. Engaging contractors to do Work is not a “set and forget” process. A contractor’s safety performance must be monitored and/or managed through to the end of the Work or contract. While a contractor may be assigned as a principal contractor and/or granted management and control of a work site, the University still retains concurrent WHS duties to do what is reasonably practicable to assure the safety of workers and others.
24. The ways in which a contractor’s safety performance may be monitored include these strategies but not limited to these (which are all proactive measures not passive):

1. Reviewing contractor incidents, hazard or risk reports to ensure the response by the contractor is reasonable and effectively contributes to eliminating or minimizing the risk of further incidents.
2. Requesting incident, hazard or risk reports from the contractor within realistic time frames taking into account the severity of the matter and/or regulatory obligations (ie, immediate response for notifiable incidents).
3. Conducting an audit (planned and unannounced) of the contractor’s work site to assure compliance with regulatory obligations and/or conformance with WHS or site-specific management plans, and contractual arrangements.
4. Ensuring WHS is a standing agenda item for all contractor and/or project meetings.

25. While the University may engage and rely on contractors to perform work for which the University does not have the expertise, the University must:

1. Verify a contractor continues to implement an appropriate WHS management system to complete the Work.
2. Monitor the safety performance of the contractor.
3. Ensure the process of incident reporting and response is timely and effective.

26. Refer to the following attachments to WHSMSHB Chapter 3.6 for further information:

1. Appendix 1 – Engaging construction contractors.
2. Appendix 2 – Engaging repairs and maintenance contractors.
3. Appendix 3 – Engaging goods and services contractors.
4. Appendix 4 – Engaging scientific and research contractors.
5. Appendix 5 – Engaging international contractors working in Australia.
6. Appendix 6 – Engaging contractors performing work outside of Australia.
7. Appendix 7 – Project or work site WHS inspection checklist
8. Appendix 8 – Contractor WHSMS audit checklist.

Evaluation of contractor safety performance

27. At the completion of a contract (the Work), a contractor’s safety performance should be reviewed by the responsible person(s) and recorded. These records may be used to update a preferred supplier database and assist with evaluating/selecting a contractor for future work. Any issues related to contractor safety performance should be discussed with the contractor as part of the close out of the contract or Work.
28. A review of contractor safety performance would consider these points but not limited to these as a whole (seek advice from whs@anu.edu.au where applicable):
29. Lessons learnt to improve the University’s management of:

1. incidents, hazards and/or risks associated with the Work, and
2. contractor engagement and safety performance.

30. Matters concerning contractor safety performance may include:

1. number and type of incidents occurring during the Work, in particular notifiable incidents to Comcare and/or a State/Territory WHS regulator.
2. capability of the contractor to appropriately respond to and apply effective corrective actions to incidents, hazards and/or risk events.
3. frequency of the University issuing non-compliance and/or non-conformance notices to a contractor, and
4. commitment to fulfilling their WHS duty to consult, cooperate and coordinate about WHS matters with the University.

Roles and Responsibilities

31. The following responsibilities are assigned to various the University roles in relation to contractor engagement and safety management. Seek clarification or further information from whs@anu.edu.au on WHS matters, UPCO in relation to procurement activities and ULO for legal and contractual issues.

Definitions

Audit – is a systematic and independent examination against defined criteria to determine whether health and safety requirements comply with the Act and/or Regulations, and/or conform to the contractor’s WHSMS.

Conformance relates to evidence which confirms a contractor’s WHSMS is being applied as intended and/or documented.

Compliance relates to evidence which confirms a contractor’s safety performance and/or work complies with applicable obligations under relevant State/Territory WHS legislation.

Contract refers to any written agreement or purchase order put in effect to engage contractors to perform the Work.

Contractor means any person(s) conducting a business or undertaking (PCBU), who is engaged by the University to carry out work for, and on behalf of, the University. A contractor can be an Australian PCBU or foreign entity.

Construction project is work that involves construction work where the cost of the construction work is $250 000 or more (see reg292 of the Regulations).

Construction work means any work carried out in connection with the construction, alteration, conversion, fit‑out, commissioning, renovation, repair, and maintenance, and refurbishment, demolition, decommissioning or dismantling of a structure (see reg289 of the Regulations). Construction work does not include:

1. The manufacture of plant.
2. The prefabrication of elements, other than at a place specifically established for the construction work, for use in construction work;
3. The construction or assembly of a structure that once constructed or assembled is intended to be transported to another place;
4. Testing, maintenance or repair work of a minor nature carried out in connection with a structure; and
5. Mining or the exploration for or extraction of minerals.

Deemed to satisfy means the evidence provided by a contractor:

1. implies the contractor is aware of their WHS obligations as a PCBU and their WHS obligations to the University as a worker
2. implies compliance with applicable State/Territory WHS legislation in relation to the scope of work the contractor will complete for, or on behalf of, the University
3. provides a level of assurance to the University the contractor would work in a safe and compliant manner.

Designer is a PCBU who designs plant, substance or structure which is used or could reasonably be expected to be used at a workplace. The designer has specific duties under the WHS Act to ensure the plant, substance or structure is designed without risks to the health and safety of persons.

Fit for purpose means the evidence provided by a contractor is:

1. suited to the scope of work a contractor will complete for, or on behalf of, the University
2. appropriate for the size and/or complexity of the contractor’s business operation and/or certification to AS/NZS ISO 45001 and/or accreditation by the Office of Federal Safety Commissioner, with reference to the scope of work to be completed for, or on behalf of, the University.

High risk work - means any work as described in Schedule 3 of the Regulations or other State/Territory WHS regulations. This is not work associated with the University’s process of determining low and high risk work areas across Colleges or Schools, which involves different risk management processes.

High risk construction work - means any work as described in reg291 of the Regulations or other State/Territory WHS regulations. This is not work associated with the University’s process of determining low and high risk work areas across Colleges or Schools, which involves different risk management processes.

Local area means a business unit of the University, such as a College, Division, Portfolio, specific project and/or sections of these units.

Non-compliance is an issue or situation which does not meet the requirements as prescribed in WHS legislation and/or other requirements called up by legislation.

Non-conformance is an issue or situation which does not meet the requirements as detailed in a PCBU’s safety management system (excludes regulatory requirements, see non-compliance).

Notifiable incident is an incident occurring in the University workplace which is reportable to:

1. Comcare as required by section 35 of the Act, and/or
2. State/Territory WHS regulator as required by applicable legislation.

Officer is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Commonwealth is taken to be an officer of the Commonwealth for the purposes of this Act (see s247 of the Act).

Plant – includes any machinery, equipment, appliance, container, implement and tool, and includes any component or anything fitted or connected to any of those things. Plant includes items as diverse as lifts, cranes, computers, machinery, conveyors, forklifts, vehicles, power tools and amusement devices.

PCBU – a person conducting a business or undertaking, see s5 of the Act.

Principal Contractor (PC) means a PCBU (original) who commissions a construction project or a PCBU engaged by the original PCBU as authorised to have management or control of the Work and to discharge the duties of the PC as per the Act and Regulations (see reg293 of the Regulations).

Repairs and maintenance is clarified by Comcare to be: testing, maintenance or repair work of a minor nature carried out in connection with a structure.

Responsible person means a University employee or representative who performs a role as a project, contract or contractor manager, which involves engaging and managing a contractor.

Safe work method statement is a document that sets out high risk construction work activities to be carried out at a workplace, the hazards arising from these activities and the measures to be put in place to control the risks.

Structure means anything that is constructed, whether fixed or moveable, temporary or permanent, see Division 3 of the Act and reg290 of the Regulations.

WHS management system is a set of policies, procedures and plans that systematically manage health and safety of work and aim to minimise the risk of injury and illness from workplace operations (Comcare).

Work is a holistic reference to activities, goods and/or services another PCBU undertakes/provides to the University and which occurs/provided within, on or part of a University workplace, site or location (whether within or outside of Australia).

Worker has the meaning of s7 of the Act. Practical examples of a worker include University employees, volunteers, apprentices, work experience students, VaHa, labour hire workers and contractors, and their workers (including subcontractors and their workers).