Reducing the risk of contractor injuries starts with managing contractor performance effectively. Contractor safety management software can automate prequalification processes, assign and track training and certifications, simplify permit-to-work workflows, and more. In this blog, we’ll review:
- An example of contractor safety management gone wrong
- Key elements of a successful contractor safety management program
- How software can help organizations optimize contractor safety management processes
R vs Greater Sudbury – Who’s responsible for contractor health & safety?
Almost one year has passed since the Supreme Court of Canada (SCC) issued its decision in R vs Greater Sudbury, upending a long-held perspective on the extent to which organizations can be held accountable for the actions of their contractors.
For those unfamiliar with the case, here’s a quick recap.
Background
The City of Greater Sudbury (‘City’), a municipality in the province of Ontario, Canada, had hired a contractor to complete road and water main repairs. The contractor agreed to serve as the ‘constructor’ for the project, meaning they would assume overall responsibility and control over the project and its activities. This included ensuring its employees and subcontractors adhered to all applicable health & safety standards.
Moreover, the contract issued between the parties held that the City would have ‘minimal involvement’ in the project and would not exert any responsibility for day-to-day operations. The City would only be responsible for its own employees that visited the site for quality inspection purposes.
Incident
In September 2015, a reversing road-grading machine struck and killed a pedestrian who entered the project site without permission.
Following an investigation by labor authorities, the constructor was cited for breaches of applicable health & safety standards. Specifically, the constructor was charged with failing to implement adequate provisions (e.g., fencing & security) to prevent unauthorized persons from entering the project site.
The regulator also charged the City, arguing that the municipality failed to meet its responsibility for worksite safety as the ‘employer,’ since it had hired the contractor to perform the work. The City argued that the regulator didn’t have the legal authority to issue the charges, as the City was operating as a project ‘owner’, not an employer. This stipulation was under that province’s law and allowed the City to cede many employer responsibilities to the constructor.
Trial
The City was acquitted of all charges at trial, however, that decision was overturned on appeal, with the appellate court ruling that the City was in fact an ‘employer’ under health & safety law. Therefore, the City held a legal obligation to ensure the safe execution of work activities on the project. Following the verdict, the City then appealed that ruling to the Supreme Court of Canada (SCC).
With a 4-4 split decision, the SCC upheld the appellate court’s ruling, arguing that the City of Greater Sudbury was in fact the ‘employer’ of the constructor. Therefore, making them responsible for ensuring the measures outlined in health & safety law were carried out on the project site. However, the City still had the ability to prove a due diligence defense; that it had acted in a reasonable manner in the circumstances to ensure that health & safety provisions were followed.
In conclusion, the City of Greater Sudbury was found not guilty of the charges since they were able to prove it had acted in a duly diligent manner.
Implications
It’s relevant to note that this case deals with specific legal nuances that are only applicable in one Canadian province; that of the differing roles of employers, owners, and constructors. But the case also reinforces a truism; that hiring a contractor doesn’t automatically shield an organization from potential liability if something goes wrong. If a business hires a contractor, it may be held responsible for their actions and omissions, even if it isn’t directly managing that work.
And things can go wrong. Studies suggest that, as a group, contractors are disproportionately more likely to be hurt or killed on the job when compared to an organization’s own employees1. There are many reasons why, here are a few:
- Contractors are less likely to receive training and site-level instruction versus their employee counterparts;
- Organizations often out-source their most hazardous work to contractors, often due to a lack of skillsets available internally, and/or to reduce the risk of injury to their own employees; and
- Foreign-born contract employees often face language, literacy, and cultural barriers that put them at greater risk of a workplace injury.
Therefore, organizations cannot simply hire contractors and then ‘turn a blind eye’ to their activities. Contractor performance must be effectively managed at all stages of the relationship.
Contractor Safety Management Tools
To prevent an unfortunate accident, as described in the R vs Greater Sudbury example, there are some crucial elements that every organization must include in their contractor management program. The following are some of the important ones to consider.
Contractor Prequalification
Being selective with the contractors you hire is the first step toward lowering the likelihood of an on-site incident. Every company must establish a robust contractor prequalification system that considers the contractor’s work & accident history, risk profile, and declarations against set standards to determine which contractors are ‘too risky,’ and should be removed from hiring consideration.
How software helps: While many companies use contractor prequalification, the process is often highly manual. It requires businesses to dedicate considerable time and resources to chase contractors for their submissions and then determine if they meet the defined evaluation thresholds. Automating the data intake and evaluation process with software speeds up the process, eliminates human errors in data validation, and removes evaluation bias that can unfairly skew decisions on contractor hires.
Certification & Training
One of the biggest challenges with contractors is staying atop of who’s trained and certified to perform specific tasks. It’s common for contract employees to be shuttled between projects with different employers on a weekly basis. Consequently, it’s possible that a contract employee shows up to perform a job they are not competent to do. Strong contractor management requires hiring organizations to keep apprised of what contractor employees are on-site at any given time, and what work they are trained and authorized to perform.
How software helps: Software simplifies the collection of employee training and certification records, especially where workers can submit their training history directly from their preferred device through a mobile app. Workflows can then be configured with business rules to alert site management when a given worker’s training expires, or when an individual doesn’t have the necessary credentials to perform a specific task. These automated messages ensure that the business can focus its efforts where gaps exist and avoid auditing records at random, without a sense of where risk is greatest.
High-Risk Tasks
As previously mentioned, contractors are frequently hired to offset skill gaps within the regular workforce. This is especially true for high-risk, permit-required work. If performed improperly, this high-risk work can easily result in a life-threatening event. For this reason, organizations benefit from integrating their contractor management programs with permit-to-work systems. Doing so ensures contractors tasked to undertake highly dangerous work are held to the same expectations as regular employees.
How software helps: With enterprise software solutions, companies can easily integrate workflows so contractors cannot be rostered to complete permitted tasks unless they are ‘in good standing’ in the affiliated contractor prequalification process. In this respect, information received from contractors on a regular basis (e.g., training records, insurance certificates) can be integrated into permit-to-work workflows, ensuring stronger management oversight and greater process efficiency.
For more information on digitizing permit to work programs and streamlining processes with EHS software, check out our blog Ask the Expert: What to Consider When Digitizing Permit to Work Programs
Document Management
Managing the sheer volume of paperwork generated through a contractor management process can be daunting. Centralizing that information will ensure effective oversight of contractor performance and easily accessible information that supports regulatory or internal auditing.
How software helps: Software helps centralize all documentation in a consistent format and enables users to create linkages between records to support stronger data auditability and traceability. Digitizing paper records reduces the risk of data loss and bulk import utilities help streamline data ingestion and reduce administrative burdens associated with transcribing paper records into electronic formats.
Benchmarking
Contractor management isn’t just a ‘CYA’ exercise to shield the business if something goes wrong. It’s designed to help businesses identify and resolve uncontrolled contractor risk before it translates into a future loss. By creating a contractor management system, organizations implement a more objective and quantifiable way to evaluate contractors against set standards. Doing so helps identify the strongest performers and ensures these groups are considered first for future contracts. It also helps identify and weed out the riskiest operators.
How software helps: With embedded business intelligence tools, software makes it easier for organizations to visualize and benchmark performance across their pool of contractors while also identifying trends and surface insights to support in-depth investigation and issue resolution. Using business rules, organizations can send automated alerts to designated recipients whenever a contractor’s performance starts to trend negatively. This enables a prompter response and resolution, ensuring that the business has a wide and flexible roster of ‘safe’ contractors to choose from when the need arises.
Final Thoughts
Every district globally approaches contractor management in a slightly different way. But despite this variability, there is one constant: businesses who hire contractors are responsible for ensuring that those individuals perform their work in a manner that doesn’t endanger themselves or others. If not, the hiring company might end up explaining themselves to a judge.
Reducing the risk of contractor injuries starts with the effective management of contractor performance. There are numerous internationally recognized standards to guide businesses on the necessary elements of a robust contractor management program. We’ve covered just a handful of the most important program elements in this blog.
As businesses look to optimize their contractor management program, they should consider how software might help reduce costs, eliminate errors, increase visibility, and boost the effectiveness of current efforts. Which could be the difference between the right and wrong side of the law.
Want to learn more? Check out our recent webinar, Effective Contractor Management – Strategies for Success
Sources
1 Phillips, P. 2023, July. Contractor Safety Systems. MRO. Accessed at https://www.mromagazine.com/features/contractor-safety-systems/
