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TRANSCRIPT
Unknown Speaker
This is an ohs.com.au production
Unknown Speaker
Welcome to Episode 50 of the Australian Health and Safety Business Podcast. I'm Brendan Torazzi, the host of the show, and today on was Sue betrayal. Sorry, I think I got that wrong. Bottrell from contractor safe. Hi, Sue. Thanks for coming on the show.
Unknown Speaker
Thanks, Brendan. Hi.
Unknown Speaker
Now, your background you're actually a solicitor or is it? You've got a legal background? Yeah. So
Unknown Speaker
I started life in the safety arena actually working for WorkSafe Victoria as an industry project manager, no. So well, a step before that. I was working in the policy division of the workers comp side of the business, then I went over and started work with the regulator, not as an inspector, but as a project manager in industry. Then I went off and became, I'm a chartered safety professional. I've worked in safety for about 20 years. And then in my 30s, I thought, well, what can I do with myself, I went off and did a law degree.
Unknown Speaker
And as you do, as you do when you've got a bit of spare time, so yeah,
Unknown Speaker
yeah. So and then I have essentially bolted that law degree onto my safety, Korea, not the other way around. So
Unknown Speaker
that's really powerful, hey, like to have that background in legislation and regulations and all of that. So understanding the law component?
Unknown Speaker
Look, I think the thing is that What's critical is, I've got a safety background first. So I look at things through a safety lens, you know, safety theory, safety management, risk management, I've been a frontline safety manager, you know, I've dealt with, I dealt with an amputation, terrible incident, you know, I've been in the trenches. And then I apply the law. So you get both sides of the coin. Now, and I don't mean to be critical and when I'm but generally, what you get is one or the other, you'll have a lawyer telling you about the legislation, or a safety professional telling you about safety on the ground. And what I think unique about me is I do both there, I see it through both sides of the coin. And it really gives me a unique insight into safety management and what it actually means on the ground.
Unknown Speaker
But also, I think having a background working, you said you work for the regulator. So that will give you a knock back gives you another lens again, right. So you've got the commercial business side, safety side, the legal plus the government, the government lens, as well, which is really interesting.
Unknown Speaker
And, you know, I facilitated a couple of projects, there was one, which was the total mechanization of collection of recyclable waste, which is now across all countries, all states in Australia, and, you know, that will involve huge stakeholder liaison and management, to get to get that solution out to industry. You know, I've also worked in aged care and occupational violence and all this stuff. So it absolutely, I understand what the point of view of the regulator is. And I still actually have contact with people inside the regulator a lot. And probably more so arguing with them these days, but I know I do understand their point of view, and what it is that they're trying to achieve. So yes, it's quite helpful.
Unknown Speaker
So when you say arguing with them, what is that presenting a different lens on a situation and how that might affect different stakeholders?
Unknown Speaker
Yeah, so look, my obviously my my 100% focus these days is on contractor safety management. It is in desperate need of reform. It's in desperate need of legislative reform. It's in desperate need of enforcement reform. The practices that are currently being used and inadvertently promoted by the regulators are singularly unhelpful in improving safety, divert massive amounts of resources and attention away from focusing on operational safety and into focusing on administrative safety systems.
Unknown Speaker
So So are you saying that in the eyes of the regulator or the law that contractors are deemed separately to say, I don't know workers is that is, tell us what the basic problem is.
Unknown Speaker
So how it works is contractors are absolutely employees for the purposes of health and safety. But the application of the legislation is narrower than it is for your ordinary workers. And for good reason, because you don't have the degree of control over your contractors as you do your workers. When a worker comes to work, they're using your systems of work. They're using your equipment you're trying In them, you're supervising them, you're telling them how to do their work. That is not the relationship you have with your contractors, you are usually bringing in well, you are bringing contractors in because they have skills that you want to use in your business. There is independence between you and your contractors, you're not going to roll out into the yard and tell a qualified Carpenter, how to use carpentry equipment, or how to put together a housing frame, you know, nail it together. So it's it's a much more nuanced relationship where you need to think about what is the matters that each party has control over. So you know, and construction is an area that is particularly problematic, because there's regulations around construction that define what principle contractors should, should do. But this applies to any contract relationship. So I could be a manufacturer, I get in my electrical contractor, and I want them to do some work. What we need to say is what is the electrical contracting control off, they're in control of doing the leg electrical work, I'm not, and even to go so far as even if I have some knowledge about how to do electrical work, it is still not in the nature of the independent relationship. For me to roll out and domain, I want to talk to you about how you're going to isolate that electrical switchboard, because that's their responsibility. So there is an overall deeming provision in the health and safety legislation. But it is misread because people think, oh, that means I need to treat my contractors in the same way. And it is different. Because people think they need to treat them in the same way. They run around, making their contractors almost behave like employees, providing, you know, masses of evidence of safety management, safe work method statements, safety procedures, copies of licenses, all of that all of that obligation sits with the contractor, not with the employer. And for employers to mistakenly think they need to do all that staff drives. And you would be aware of contract management systems that comprise I thought when the other day that 76 pages long. Were contractors are spending hours trying to produce evidence of their safety management for these poor old principle contractors who think more if I don't collect my leg, my electricians license and there's an incident I'm going to be held responsible, which is absolutely not true.
Unknown Speaker
So it all comes, it sounds like it comes down to who's the competent person? Well,
Unknown Speaker
no, not really, it actually comes down to what's your role. So as I said, I could be a principal contractor who, you know, I have knowledge of electrical work, but it's still not up to me to go over to an independent contractor, and tell them how to do their work. It's really about the relationship and saying, they are independent to you. And you that's you've hired them in they are a an employer or a PCBU. Because conducting a business or undertaking in their own right. They have obligations to comply with the legislation to make sure their license competent, doing their work safely, blah, blah, blah. So we we have a separation. So it's not Yeah, no, it isn't about competence. It's about the relationship, which is entirely different to the relationship between an employer and their employee. And we must see it that way. Otherwise, we fall into this trap of always overkill around asking contractors to ask and directing, quite frankly, directing contractors in how to do their work. And that's one of the most dangerous things you can do. Because as soon as you start doing it, you actually are taking control. So it's a much more it's a very different relationship.
Unknown Speaker
So it's almost like the paperwork has been created for paperwork sake, not, not necessarily to make the job safer.
Unknown Speaker
Absolutely. Yes. And I say to people all the time, the production of documentation is not an effective way to assess operational safety. All it tells you is either someone's good at googling. They've paid consultants, or they've got a good admin person in the background. Yeah. Even the largest of firms, you know, who you would think are they must have a good safety management system will tell you, and research has confirmed that the paperwork that is produced and describes how we're going to manage safety bears very little relationship to what actually happens on the ground.
Unknown Speaker
Yeah. That makes sense. Yeah, makes sense. And so that's probably a good segue into contractor safe. What do you what do you do in that business?
Unknown Speaker
Yeah. So basically, I consult from a legal and safety standpoint on contractor safety management. So I assist clients to understand their relationship with their contractors, to develop systems that affirm contractors responsibilities for safety, and that they are managing safety. We don't run down this rabbit hole of collecting a whole bunch of paperwork. But we have the right engagement clauses in relationship, we ask the right questions, we get the right answers. The other thing that I do is I work with clients to look at how they onboard their contractors. I've, you know, so many contractor inductions tells focus mainly on telling the contractor how to do their work via a ladder, you need to set it up this way, if you're going to do this, you know? And it's like, no, no, no, no, no. As the principal contractor, you're bringing a contractor into your workplace, you need to be telling them how you can hurt them. So for example, if you're bringing a contractor into a retail environment, you need to be explaining to them about customers, and how they need to isolate their work from customers, and how customers don't have their work raining. And so they probably will just step over your tape that you've got isolating your area, we all major hazard facility, we need to not tell the contractor again about using his ladder, but saying this is an explosive environment, and you need to be aware of it. So our focus in induction is usually in the wrong direction. And
Unknown Speaker
it sounds like it needs to be site specific. So contextualize to that particular one excite it's business
Unknown Speaker
specific. So yeah, so you've got an initial induction, which talks about the business or the principal contractors operations, and what can harm contractors, what are our critical risks. So a school, our critical risk is that a student gets harmed. And then, as you say, the site comes after that to say, now you're on site, these are the things you need to be aware of, you know, access egress, any specific site instructions, all that sort of stuff. But it's saying, principle contractors need to look at their own business, and say, that's what I've got control over. And that's where my liability risks. So I need to be making sure that I'm keeping my contractors safe. Studies have shown that contractors by suffer far more injuries and fatalities than direct employees. And the reason for that is because they're usually not instructed well enough on what the operations of the client is, because they're usually injured or killed by the clients operations, not their own. Right. Okay. So we really need to say, okay, yeah, I don't need to they're doing their own work. They're in control of that, I need to be making sure I'm in control of what I, you know, what I have control over and making sure I'm making them aware of that. And equally, so moving on to monitoring is saying, I don't need to roll out and go, can you show me your safe work method statement? What I need to do is roll out and go, Look, we gave you some instructions about hazards on our site, and that you needed to do certain things. Are you doing those things?
Unknown Speaker
Yeah. So you go in and help develop the training contracts? What's the
Unknown Speaker
scope? Let's so I do yeah, contracts, pre qualification questionnaires, induction material frameworks to inform the actual process and procedure of how you're going to manage contractors. I do we work with a software platform to put the material that I develop online. There's a lot of online safety management systems, very few of which are actually informed by qualified safety people or your safety professional about what the content should be. Yeah. So what should you be asking? So unfortunately, there's a lot of I had a colleague, send me one yesterday and say, I've got a contractor who's got to fill in an online questionnaire. It's 90 Questions long. Wow. And he's got to upload, you know, all this documentation. So I work with yours. So this particular software platform to stop all that rubbish from happening, quite frankly. So I have contractors massive time, save principle contractors, masses of time and money. So we can all get back to focusing on operational safety, not administration.
Unknown Speaker
Well, it's probably the same as what you were describing earlier, where you have two people that create some of these software, software providers are not necessarily safety people. So there's a there's an imbalance.
Unknown Speaker
Yeah, and they definitely aren't safety people. And that's the sad thing is you know, that they don't and what they're doing is responding to the myth. And the misunderstanding of industry in general. So you can't kind of blame them because they go oh, well, yeah, you know, it seems as if principal contractors are responsible if their contractors, you know, have an incident, or better make sure there's all the stuff in there. But because their knowledge is not totally targeted enough or sophisticated enough, they go off in the wrong direction. And then saddle their clients with, you know, these massive questionnaires, uploading tons of documents and creating, I mean, I've known some platforms to take two and three weeks to prequalify, a contractor to get them to work.
Unknown Speaker
Yeah, right. There's a lot of bureaucracy isn't
Unknown Speaker
Oh, my God, and I can guarantee you there would be zero impact on safety.
Unknown Speaker
Yep. And what's more, it's probably not all the things that are being uploaded are probably not analyzed and read anyway.
Unknown Speaker
But they're stored, exactly stored. And then you go what for? I mean, the classic is things like upload a license register. Well, I'm uploading it today. And in a week's time, I've changed three stuff, well, that one's lost their license, so this one's left or whatever, it cannot possibly stay across this stuff. And it is not and the measure is what is reasonably practicable. And the Court has held over and over and over again, in Australia and New Zealand, Hong Kong, Europe, Canada, that it is not reasonably practicable, for a principal contractor to become involved in the safety arrangements of its own of its contractors, except to the extent where the principal contractors risks interact with the contractor.
Unknown Speaker
Yeah, yeah. And so can you give me an example of, I don't know, something that's gone pear shaped where? I don't know, it's, your system has shown that you have done everything necessary to keep.
Unknown Speaker
Okay, so we, we've had a situation where, you know, a notice was issued to a client around obtaining the licenses of drivers of an independent contractor of maintenance and pre qualification or not pre qualified restarts, and all the rest of it. And we essentially went to WorkSafe and said, No, we implement this system, we engage our contractors, we clarify that the relationship is one of independence, they are responsible for their own management of their own safety, we are responsible for managing risks that we impact on them. Therefore The notice should be withdrawn. And it was by contrast, you know, you look at something like the multiplex case where you've got a contract, you know, a principal contractor, who has, it seems case hasn't gone to court yet, but it seems, has interfered in the contractor safety arrangements to the extent of becoming in discussion, discussion about the plant that's going to be used, a fatality occurred, and now everyone in multiplexes waiting for their turn in dock.
Unknown Speaker
And so customers engaging you when the, you know, when things go wrong, or or are they engaging you before, you know, they're being preventative, and other in other words going were found Sue, and we're, we're gonna get up, correctly set up from the start, or is it more?
Unknown Speaker
Thank God that is happening more and more, it used to be a bit Oh, we've got to notice or something's happened, how can you help us? But now pretty much it's all about, yeah, we've seen the light, we see that the old way we've been doing it just doesn't make any sense. We'd really like to come up to speed. And, you know, we want to relieve the burden on our contractors, we see that, you know, we spend all this time asking them to upload documents that we never look at. We also and people are becoming, now that they're aware that if they get too closely involved with their contractors and direct them in their work and issue, God forbid, safety procedures and swings, well, they're going to be in the frame. People are now going, Okay, I see that I want to step back. So how can I step back without letting go all together? I'm not advocating a free for all. We just say you're the contractor. I don't care. Yeah, what we need to do is have really effective systems to say, I'm the principal, you're the contractor, I control my beat, you control your bid, you confirm that you understand that you confirm that you do what you're supposed to be doing. And I'm going to hold you responsible for doing that. And to be honest, you know, anybody can do that. You know, the systems that I implement with clients, you know, sometimes I go into work places where they've got. No, I don't mean to be I'm not being disparaging of payroll, ladies, but you might have the payroll lady who's been saddled with safety. And they don't know. And they they're not, you know, they're not it's not it's not their fault, but they don't know what they're looking at. So we need to have processes where they can go great. I've got the answers that I need from the contractor, they've confirmed that they understand their role, we've established that clarity in the relationship. And we need something that can take a contractor 15 minutes to complete. And 15 minutes on the on the principle contract designed to get it up and running.
Unknown Speaker
Out of breath, that breath of fresh air, if you're a contractor, and you come across, you come across your system, I like oh, yeah, actually, this year, I'm much more straightforward.
Unknown Speaker
I had a contractor clients say to me, he said, all our contractors just say this is by far the easiest prequel I've ever done. Oh, that's good. Yeah, people might think, Oh, well, that's because it doesn't, you know, it's not detailed enough. It does exactly what it needs to do. Yeah. And that is what you need. You know, that's what we need. We don't need all this overkill. It's just it to be honest, it's a money making machine.
Unknown Speaker
Yeah. Yeah. So did it take you a long time to find the software that you're working with at the moment?
Unknown Speaker
I've been working with them for about five years. And, you know, it was funny, when we first started working together, you know, I was a colleague of mine actually put me on to them. And I thought, you know, this could really work this this partnership. And you know, I just find them, they get it. They are not trying to be they are a software platform. Yeah. And they do not trying to say they are safety people, unlike a lot of others. They basically say we don't supply safety advice. That's what's useful. Yeah. So clients, I mean, clients can come to them and say, Oh, look, we already have a safety person. And we're happy with our pre qualification and induction fine, great. Use your own. No worries. But if you have clients who go look, we're not sure or we'd like some advice, then that's where my role comes into it. Yeah, basically, I can supply them with the legal clauses and the pre qual and the induction content. I mean, I've got one question set that I've been working on now for 11 years.
Unknown Speaker
Working on in the sense that, you know, you're updating it constantly or working on your they are right, okay. Wow, absolutely.
Unknown Speaker
So like, for example, when the labor high Licensing Act came in, we included a question around the US labor Ha, are you supplying labor higher? If you are, where's your license? When the heavy vehicle national law was amended in 2018, we amended our questionnaire. So that's my role as well, as a specialist in this area. I keep an eye on what's happening in legislation, and I make necessary changes. So that people can know oh, well, look, I don't have to worry so much about what's happening in this space, because I've got somebody who's actually doing it for me. And that's all I think about. Yeah. But also, you know, you learn things about just tweaking wording, so it's doing exactly what you want it to do the question, simplifying, constantly tweaking and making it better. Yeah, so yeah, so I do I do do that.
Unknown Speaker
That's good. That's good. And then so what's the future look like for you? So like, what are you Where are you planning on taking? Contractor safe? And,
Unknown Speaker
yeah, I'd like to write a book that's circling in my brain, I think that would be a really good resource for people. I'm making some inquiries about doing some lecturing. I think that would be really nice as well. I think at university level, there's a real well, there's a real critical lack of knowledge across the profession. And I think at university level, it would be fantastic to get something going out always obviously, to work with clients and to continue to promulgate art. But the other thing that's really critical is I'm trying to really lobby government at the moment to undertake reform. So you know, the heads of workplace safety authorities, how's are all of the regulators? I just, you know, want them to have a close look at this issue because it is inadvertently driving very, very wasteful practices in the safety industry. And I would, I just would really welcome the opportunity for there to be consultation and reform, both in the legislation and in the guidance material that's being issued by all of the regulators including Safe Work Australia and Next week, that's
Unknown Speaker
a big task. Is it just use it that's lobbying or
Unknown Speaker
if it is at the moment, but I have just put out a bit of a call on linksafe. And a number of people have come and said, Yeah, actually, we're really keen to get involved, because we see the problems with this issue. And we think that reform is, you know, well and fully overdue. So, look, fingers crossed, that we might get some interest in it. But it's, it's critical. It affects every business, in every jurisdiction across every industry, millions and millions and millions of workers, hours and dollars are going into practices that are ill informed, and unhelpful.
Unknown Speaker
Yeah, yeah. Well, I mean, that's, that's the challenge with legislation, isn't it? Everyone has a different viewpoint on how they're going to interpret it and what it actually means.
Unknown Speaker
But the nice thing is, we have high court case law, which is irrefutable. And we have we have 100 years worth of high court case law. Yes, says this is the way you interpret it. And for some reason, and I must get to the bottom of it, where it all ran off the rails, but somewhere, somewhere, someone somewhere where and look, the lower courts sometimes fall into the trap of interpreting legislation incorrectly. And but we have high court precedents that, and look, I've seen a real improvement in the judgments that are being handed down in this space every now and then you'll get one that just runs off the rails, but there has been a real improvement in the understanding of the obligations owed by principal contractors to contractors. But that's the nice thing. We have the all the high court precedents, it's irrefutable. Yes. So we just need to get it happening and get the guidance happening in relation to because you go on and you look for guidance, say from the regulator, and it's just not clear enough and leads you you have these overarching statements like, you know, principal contractors are responsible for the safety of their contractors full stop. Well, yes, that's true. But it's full of odd. Yeah. And that is missed. And so what people say, Oh, my God, I'm responsible for my contractor, I better do all these things. And it's, it's just misinformed. And it drives just really unhelpful systems and processes that's costing industry. billions, billions of dollars.
Unknown Speaker
Well, you sound like you would be a great person to work with. So if people want to people out there listening to this podcast, want to connect with you. What's your website?
Unknown Speaker
So contractor? safe.net.au? Yeah, it's fine. And look me up on there, my phone numbers there, my emails there. I'm very prolific on LinkedIn, jump on LinkedIn, I love having a good controversial post on LinkedIn, love discussing this stuff with people. And I'll put out questions and go, What do you reckon about this? You know, it's an area that there's a real groundswell of interest. And it would be just my the pinnacle of my career, to bring about some really meaningful reform in this space. So it'd be great. Watch this space.
Unknown Speaker
That's great. So Well, thank you very much for coming on the show today.
Unknown Speaker
No worries. Thank you so much for having me.
Unknown Speaker
You've been listening to an ohs.com.au production.
Brendan Torazzi
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