Contracting to meet the Health and Safety in Employment Act 1992 -- draft guidance for principals
5. Related duties during the progress of the contract
This guide focuses on the duties of a principal under section 18. There are three further provisions in the Health and Safety in Employment Act 1992 with particular relevance to principals during the lifetime of the contract. In some circumstances, these provisions overlap with duties under section 18. They are also in addition to the duties the principal may have as an employer.
5.1 Person who controls a place of work
Under section 16 a person who controls a place of work (except for a home they occupy) must take all practicable steps to ensure no hazard in the place, or arising in it, harms people in the vicinity or people lawfully at work there. People lawfully at work include contractors, subcontractors and their employees. The contractual framework under section 18, discussed above, should deal with people lawfully at work in any event. People in the vicinity include, most obviously, bystanders or passersby. For example, in relation to pedestrians near a construction site, is the screening or covering of excavations adequate, has scaffolding been erected safely etc? In relation to tree-felling operations near a road, is there an approved temporary traffic management plan?
Example
Abe's Construction Ltd was building a new suburban house. One of its employees was using a powder actuated fastening tool (a Ramset gun). The employee did not hold a current certificate of competence authorising him to use the gun. The gun was loaded incorrectly and a nail from the gun sheared off and travelled across the street, breaking a window in a property opposite. The company was convicted under section 16(1)(a) of failing to take all practicable steps to ensure that a hazard arising in a place of work did not harm people in the vicinity.
A principal becomes a person in control of a place of work where they:
- own it
- lease it
- sublease it
- occupy it
- are in possession of it.
This means, for example, a ship repairer is considered to be in control of a ship in dry-dock, a farmer to be in control of disused machinery on their property, and forestry contractors were held to control a forest in which tree-felling was being undertaken. Contractors have been held to have been in control of places such as a roof that was being sand-blasted and a section of roadway being constructed.
A right to control plant in the place of work also satisfies the definition, where it results from:
- ownership
- leasing
- subleasing
- bailment.
Again, this has been held to apply most obviously to machinery such as waste compactors, scaffolding, cranes and other vehicles.
Example
Isis Plant Ltd owned a 22 metre tower crane which was leased to NewBuild Ltd, a firm of building contractors. It was installed on the construction site of a six-storey building. One day while it was in use, the crane's load travelled out beneath the boom trolley to a point far enough away from the centre of the crane's base to overcome the counterweight. It collapsed and fell onto the adjacent roadway. Isis Plant Ltd was convicted under section 16, because the crane, as plant, was a "place of work". As the "person in control", Isis had not ensured that the crane was inspected and had a current certificate of inspection, had not tested the crane's limit devices after it had been assembled on site to ensure that they were correctly set, and had not ensured the crane's manual, which gave directions for safe use and daily maintenance, was available for those operating the crane.
5.2 Person who sells or supplies plant for use in a place of work
Section 18A places obligations on persons selling or supplying plant for use in a place of work. "Supplying" includes loaning, as for example the sharing of equipment between two contractors on a construction site, two neighbouring farmers, etc.
Once it is ascertained that plant is to be used in a place of work a person hiring, leasing or loaning it must take all practicable steps to ensure it is designed and made, and has been maintained, so it is safe for its intended use. For example, if a vehicle is leased or loaned, has it been adequately maintained, does it have necessary rollover protection, etc? If a machine is leased or loaned, is it adequately guarded, etc? The same duty applies if the person selling or supplying the plant agrees to install or arrange it.
5.3 Principal's duty to record and notify accidents and incidents in the place of work
Section 25(1A) of the Act requires employers, self-employed persons and principals to maintain a register of accidents and serious harm in a prescribed form. Principals must record in it the details of every accident or incident that harmed, or might have harmed a self-employed person while at work and contracted to the principal, or as a result of any hazard to which the person was exposed while at work and contracted to the principal.
All incidents of serious harm to a self-employed person while at work and contracted to the principal must be notified and reported to the Department of Labour.