Process Document Final Version 2006

University of Otago Compliant Contractor Process Documentation
COMPLIANT CONTRACTOR PROCEDURE DOCUMENT
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SECTION 1: POLICY STATEMENT........................................................................................................3 1.1 AIM.........................................................................................................................................................4 1.2 COMPLIANT CONTRACTORS POLICY DOCUMENT...................................................................................5 SECTION 2: LEGAL REQUIREMENTS...................................................................................................8 HSE AMENDMENT 2002...........................................................................................................................10 SECTION 25:...............................................................................................................................................10 IF THERE OCCURS ANY SERIOUS HARM OR ACCIDENT, THE EMPLOYER, SELFEMPLOYED PERSON OR PRINCIPAL CONCERNED MUST, -.......................................................10 (A)AS SOON AS POSSIBLE AFTER THE OCCURRENCE BECOMES KNOWN TO THE EMPLOYER, SELF-EMPLOYED PERSON OR PRINCIPAL, NOTIFY THE DEPARTMENT OF LABOUR OF THE OCCURRENCE AND................................................................................................10 (B) WITHIN 7 DAYS AFTER THE OCCURRENCE GIVE THE DEPARTMENT WRITTEN NOTICE, IN THE PRESCRIBED MANNER...........................................................................................10 SECTION 3: TYPES OF CONTRACTS...................................................................................................11 3.1 MAJOR PROJECT CONTRACTS. .............................................................................................................11 3.2 REGULAR CONTRACTORS......................................................................................................................13 3.3 COMPLIANT CONTRACTOR PROCESS ....................................................................................................13 3.4.1 CONTRACTOR TYPE.........................................................................................................................14 3.5 CONTRACTOR........................................................................................................................................18 3.6 SELF EMPLOYED CONTRACTOR............................................................................................................19 3.7 Material, Goods Supply and Delivery Contractors and Site Visitors.. ..........................................20 SECTION 5: UNIVERSITY CONTRACTOR INDUCTION..................................................................24 SECTION 6: IDENTIFICATION CARDS................................................................................................24 SECTION 7: COMPLIANT CONTRACTOR AUDITING.....................................................................25 APPENDIX 3: CONTRACTOR TYPE ASSESSMENT FORM.............................................................37 COMPLIANT CONTRACTOR MONITORING CHECKLIST................................................................................39 Appendix 4 : Self Employed Contractor Letter......................................................................................42 CONSULTANT LETTER.................................................................................................................................44 RE: CONTRACTOR HEALTH AND SAFETY CONTROL................................................................................44 CONSULTANT CONTRACTOR ......................................................................................................................45 COMPANY : .....................................................................................................................................45 ADDRESS: ............................................................................................................................45 CONTACT PERSON : ..........................................................................................................................45 WORK PHONE : CELL PHONE: .........................................................................................................45 TYPE OF WORK UNDERTAKEN: .....................................................................45 TRAINING AND/OR EXPERTISE TO UNDERTAKE WORK (FOR EACH EMPLOYEE) ....................................................................................................................................................................45 SAFETY PRECAUTIONS/HAZARD MANAGEMENT: ....................................................................................................................................................................45 SIGNED BY : DATE: .........................................................................................................................45 POSITION: ......................................................................................................................................46 APPENDIX 4: MATERIAL AND GOODS SUPPLY & DELIVERY, AND SITE VISITOR LETTER..........................47
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University of Otago Compliant Contractor Process Documentation Appendix 4 : Contractor Letter.............................................................................................................48 APPENDIX PRE-COMPLIANT CONTRACTOR LETTER...................................................................................55 4.3 NON-RESPONSE TO INITIAL CONTRACTOR LETTER..............................................................................56 NON-RESPONSE TO INITIAL CONTRACTOR LETTER...................................................................................57 4.4 ADDITIONAL INFORMATION REQUEST LETTER.....................................................................................58 4.5 COMPLIANT CONTRACTOR ACCEPTANCE LETTER................................................................................59 APPENDIX 4: CONTRACTORS LETTERS APPENDIX 5: ASSESSMENT OF HEALTH&SAFETY Information letters ..
Section 1: Policy Statement

The University of Otago recognises its responsibility to establish a clear and appropriate standard of Health and Safety performance for its contractors. This document outlines the system which is in place to ensure that this standard is met. Essentially the system is an information swapping exercise so that all parties involved can work safely. University of Otago believes that good safety management is good business and wishes to deal with contractors who we are confident will work for the University in a safe manner. As a baseline all compliant contractors must comply with the requirements of the Health and Safety in Employment Act 1992 and related legislation however the University of Otago wishes to encourage all contractors to be committed to effective management of
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Health and Safety. This is seen as a joint responsibility and by the application of this procedure it is hoped that there will be an improved relationship with contractors. 1.1 Aim The aims of this procedure are to ensure that there is: Clear Expectations placed on contractors An even playing field so that contractors who are budgeting for safety measures in their tender price are not undercut by contractors working in an unsafe manner. a system to ensure that this procedure is effective by monitoring contractor performance
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1.2 Compliant Contractors Policy Document
COMPLIANT CONTRACTORS HEALTH AND SAFETY POLICY
Purpose
The University of Otago recognises the responsibility as a Principal to establish clear and appropriate standards of Health and Safety performance for contractors on site. As a principal, the University of Otago has an established Compliant Contractor process to ensure the health and safety of staff, students and visitors to the University will not be harmed by contractors, or their subcontractors while on site. The Compliant Contractors process will also minimise the likelihood of harm to contractors and subcontractors while on University sites. All University of Otago workplaces.
Scope Associated Documentation
Legislative Health and Safety in Employment Act 1992 Health and Safety in Employment Amendment Act 2002 University Health and Safety Policy Compliant Contractor Process Document University Health and Safety Manual Additional ACC Partnership Programme
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Definitions Policy Statement(s) Procedure 1. Contractors All contractors will be assessed for health and safety compliance prior to working on University of Otago sites. Assessed contractors are required to attend University of Otago Contractor Induction training. Compliant contractors who have met the compliance assessment and completed the induction will be maintained on database. All compliant contractors will be issued with, and carry, photo identification. Compliant contractors will be reviewed every two years. Any health and safety performance concerns will be addressed and the compliance status may changes as a result of unsafe activities on site or non-compliance. 2. Material, Goods Supply & Delivery Contractors will be supplied with information on University of Otago health & safety requirements while on site. as an Health & safety 3. Guest Lecturers/Volunteers will be treated employee for the purpose of requirements and
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this is met through employee induction.
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Section 2: Legal Requirements

There are a number of sections of the Health and Safety in Employment (HSE) Act 1992 and HSE Amendment Act 2002. Section 15 Requires every employer to take all practical steps to ensure that, no action or inaction, of any employee while at work harms any other person. For example, an employee conducting laboratory work without correct equipment or training exposes the contractor to hazards. Section 16 - Duties of Persons who control places of work 16(1) A person who controls a place of work (other than a home occupied by the person) must take all practical steps to ensure that no hazard that is or arises in the place harms (b) people who are lawfully at work in the placeI. II. III. IV. As employees of the person; or As contractors engaged by the person; or As subcontractors to a contractor engaged by the person; or As employee of a contractor or subcontractor to whom subparagraph (III) applies. This section focuses on the control of hazards in the environment where the contractor works, rather than the hazards that the contractor generates. An example in the University would be the laboratory environment where contractor cleaners are required to work. If a contractor knocks down a chemical rack and is harmed, section 18 applies. If however, a container of chemicals explodes and injuries the cleaner, this is a section 16(1)(b) matter (an environmental hazard). The contractor is responsible for the hazards he/she creates, and the person in control of the laboratory is responsible for taking all
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practical steps to prevent harm to the contractor from the laboratory hazards.
Section 17 Relates to the duties of self-employed, and Section 19 Relates to the duties of employees. Both sections require the selfemployed and employees to take all practical steps to ensure that no action or inaction of theirs while at work harms them or any other person. The University of Otago has the 'Duty of Principal' as outlined in section 18: Section 18: Duties of Principals - (1) Every principal shall take all practicable steps to ensure that I. II. No employee of a contractor or subcontractor ; and If an individual, no contractor or subcontractor, is harmed while doing any work (other than residential) that the contractor was engaged to do. (2) Subsection (1) of this section shall be read subject to section 2 (2) of this Act. The case law example Central Cranes Ltd. Vs Department of Labour 1997 is provided in appendix 1 as an example of section 18 application.
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HSE Amendment 2002

Section 25: If there occurs any serious harm or accident, the employer, self-employed person or principal concerned must, (a) as soon as possible after the occurrence becomes known to the employer, self-employed person or principal, notify the Department of Labour of the occurrence and (b) within 7 days after the occurrence give the Department written notice, in the prescribed manner.
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Section 3:
Types of Contracts
The University will have a range of contracting relationships and situations. The Human Resources Division has issued guidelines for Contracting for Services; this is attached as appendix 2. It is not possible to cover all potential scenarios within this document, and additional information may be sought from Property Services or the University Health and Safety team. There are two main categories of contractors:
1. Major project contracts, and 2. Regular Contractors

3.1 Major project contracts.
Major or project contracts are where the University has established a contract for the completion of a significant, clearly defined area of work. Examples are the building of the ISB or CFI. These contracts are generally either high risk or have significant hazards, are long-term and/or are high value. These contracts are managed through Project management processes where a specific contract is drafted and agreed to by both parties. The project documentation will include specific health and safety responsibilities and requirements. For example, the re-facing of the Richardson Building. This contract is high risk, long-term and of high value. A specific project document was drafted and the health and safety requirements for all parties defined. Regular site meetings are a part of the project management process and health and safety requirements must be reviewed on a regular basis. The University is a principal in this situation, and the contractors and subcontractors must be assessed for suitability for the work and that the HSE requirements are being met. Post-contract completion is
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a part of the process to review contractor performance for future reference. Property Services should be consulted should this type of contract be required for any department, so that the due processes are included. The process for managing major contracts is not included in this document.
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3.2
Regular Contractors.
Minor or on going contracts are where companies are regularly used for short-term contracts, continuous contracts for routine work, and contracts where the hazards are well-defined and standard control measures apply. The University has a significant number of such contractors, and this document defines the contractor controls to manage these contractors. 3.3 Compliant Contractor Process
The Complaint Contractor Process (CCP) is a system where regular contractors are assessed for health and safety compliance, and provided with an induction session on the University requirements for contractors on site. The compliant contractor will then be issued with an identification card to be carried on site at all times. Compliant contractors will be maintained on a University of Otago database new contractors can be added at anytime. An auditing system of reviewing the continuing compliance of contractors will be implemented, every two years and new cards issued. The steps involved are: 1. Identifying the contractor type and requesting relevant health and safety information 2. Assessing the information for contractor compliance either satisfactory or further information requested. 3. Contractor induction completed 4. Contractor identification supplied 5. Monitoring and review
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3.4.1
Contractor Type
The contractual relationships and levels of control vary significantly within the University environment. The University has drawn up a list of frequently used contractors, and contractor groups have been identified with the various health and safety responsibilities defined, based on past experience. The University CCP system defines the nature and type of contract, the letter indicating the type of contract and the requirements for compliance, and the means of assessing a contractor. If a contractor does not agree with the contractor classification, then this can be reviewed on request. The defined contractor groups are: Group 1 - Companies Description: Limited liability trading entities a. Material and Goods Supplier deliver on site b. Services (i.e. carry out job work) c. Consultants (employed by an entity) University relationship: Order and supply Group 2 - Self employed Description: Non limited liability entities: partnerships, sole traders Supply a service (i.e. carry out job work) a. Job Work (order based) charge for materials and labour (set hourly rate) b. Labour only (University supplies materials) c. Consultants d. Specialists
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e.
Guest or Visiting Academics
University relationship: Contract for Services Group 3 - Other Employment Agency short term (resource shortage situations) Volunteers Proctor Students
Risk Groups:
High Risk Laboratory work Use of hazardous substances Construction work Any hot work, confined space or height work. Boat work Diving work Fieldwork Driving University Vehicles Low Risk Work in any restricted environment Office work Lecturing in lecture theatres
Induction requirements based on contractor type and risk group:

Relationshi p Group One -Companies -Material & Goods Delivery Compliance Level of induction requireme nt Pamphlet Risk
University purchase order
Escorted
Low
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-Services (carry out job work) -Consultants
University purchase order University purchase order or Contract for Service
Compliant Complaint
Full Full Induction or employee induction (as appropriate)
High High or Low
Group Two Self Employed Job Work (order based set hourly rate) Charge for materials and labour Labour only (University supplies materials) Consultants
Contract for Services
Compliant
Full
High
Compliant
Full
High
Compliant
Specialists
Treat as employees
Guest or Visiting Academics Group Three Other Employment Agency staff
Treat as employees
Full Induction or employee induction (as appropriate) Full Induction or employee induction (as appropriate) Employee induction
High or Low
High or Low
Low
Complaint
Employee induction
High or Low
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Volunteers Proctor Students
Visitors Visitors
Treat as employees Treat as employees
Employee induction Employee induction
Low Low
Need for a contractor
Will the work involve either alterations or additions to any part of the premises (PSSLA 12.1) or be part of a service contract relating to the premises (PSSLA6.2)
Yes Refer to Property Services relevant Facilities Manager
No
Property Services Contractor Approval Processes. Property Services Database
Identify the type of contractor
High Risk
Low risk
Is a suitable approved contractor available? (Check web page lists)
Arrange Contract as per guidelines
Yes
No
Arrange induction or provision of information as appropriate
Arrange Contract as per guidelines
Contact H&S office to initiate approval process
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3.5
Contractor
A contractor is where work is being performed for gain or reward falls into section 18 of the HSE Act, and a principal/contractor relationship exists. In this situation, the contractor clearly operates as an independent business and has duties as an employer under the HSE Act. All work conducted by contractors in this group must ensure safety for employees and students, as well as the contractor and his/her employees. The legally prescribed health and safety standards must be complied with by the contractor and contract-specific health and safety standards may need to be identified for management. The University has a duty to set a clear standard of required Health and Safety performance. The key factors when assessing contractor Health and Safety performance will be to look for evidence of: Management commitment; Employee involvement; Performance monitoring; Hazard management; Staff training. A contractor may provide evidence of current ACC Workplace Safety Management Practice/ACC Partnership Programme Certification which is accepted as meeting the University of Otago health and safety requirements. For the University of Otago to assess the compliance standard the
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following material is requested: 1. Management Commitment: Evidence that there is a recognisable Health and Safety Management system in place which has identifiable objectives and is regularly reviewed. An undertaking that Health and Safety is a priority for the contractor. 2. Hazard Management: Evidence that the contractor actively manages identified hazards. This system should include regular hazard reviews and a system to undertake task analysis for specific high-risk work. There should also be evidence that appropriate safety checks on equipment and personal protective equipment is undertaken. 3. Training and Information: Evidence that information as to the operation of the contractors Health and Safety system is provided to staff. Evidence that training requirements are identified and appropriate training for these issues is provided. 4. Injury Management: That a system is in place to accurately record, report and investigate all injuries and incidents.
3.6
Self Employed Contractor
This is a self-employed person who has no employees or others working for the individual. Self-employed contractor has duties under the HSE Act and specific information will be requested with an assessment by the University for compliance status. All self-employed contractors must attend induction. The University is seeking evidence that the person has identified the hazards relating to the work being undertaken and is adequately trained or experienced to undertake the work in a safe manner. The selfemployed contractor letter and self-employed contractor questionnaire will be forwarded to contractors identified in this group
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3.7 Material, Goods Supply and Delivery Contractors and Site Visitors. .
Material, Goods Supply and Delivery Contractors and Site Visitors companies may access University of Otago work sites for the delivery of goods and materials and are treated as site visitors. They should report on arrival to the University contact person and be supervised for the first visit. Repeat visits can then be unsupervised. The University of Otago has a standard health & safety pamphlet for Material, Goods Supply & Delivery Contractors & Site Visitors. The information in this pamphlet is to assist material, goods supply and delivery contractors, site visitors and the University of Otago to comply with the Contractor requirements, as stated in the Health & Safety Legislation, as well as assisting with any health & safety issues encountered while on campus. The current pamphlet can be viewed on www.otago.ac.nz/healthandsafety
3.8 Consultant Contractors Consultant Contractors may undertake hazardous work however it is in a limited and clearly defined scope. Consultants are the group comprising of companies that are providing the expertise to the University of Otago. If the person operates as a sole operator they should be dealt with as a self employed category. The consultant must be retained for his/her expertise rather than undertaking any physical work. While this group will generally pose a low level of risk if they are undertaking hazardous work they must provide full health and safety information prior to commencing work. It must be made clear to this group that the University of Otago only requires health and safety information relating to the work being
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undertaken. There is no need for instance to have information on how they manage their own office hazards.
Section 4: Information
Assessment of Health and Safety
The University health and safety team will assess the information requested for compliance using the Compliance checklist.
Contractor Assessment Process

Notes: The contractor assessment process is designed to ensure that contractors on University sites have health and safety requirements in place. It is not a full audit of the detail of contractors health and safe systems. For example, a Contractor is required under the HSE legislation to have hazard identification and control process. As a principal, we need to ensure that the contractor complies with this requirement. As the nature of the work of our contractors should be known within Property Services, we would look for specific known hazards and suitable controls e.g.: hot work, height work, confined space. Likewise with injury reporting, a system of reporting needs to be in place, however we do not need to view all the injury reports. Self employed persons are required under section 17 of the HSE Act to take all practical steps to ensure that no action or inaction of the selfemployed person while at work harms themselves or any other person. Self-employed persons are not required to have a hazard register. What we do need to know, is that the self-employed person is trained and/or experienced in their work, and that they are aware and consider
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the hazards they may be generating for University staff, students or visitors e.g.: fumes generated by a substance in use, restricting public access. This assessment process is one part of the compliant contractor system. The system also requires on site audits to ensure that contractors are working safety and to their, and our, prescribed requirements. The permit to work system, standard operating procedures and green hazard forms are expected to be used by contractors in the same manner as for University staff to ensure a safe process of work. Special attention must be paid to our recognised high-risk work tasks working at heights, confined space, asbestos and hot work. Where it is known that a contractor works in these areas, training and procedures should be a part of the submitted information. For each contractor, a separate form must be completed as appropriate for the type of contract relationship. This is important audit trial information that must be retained. Where contractors information has meet the required University standards, the contractor is considered to be Pre-compliant contractor. A second letter will be forwarded to the contractor requiring the contractors employees to attend the University of Otago Contractors Induction programme to obtain the required identification badge. A timetable of induction training and/or invitation to identify a suitable training time will be included.
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Where the University has assessed the information from the Contract Company but is not satisfied with the compliance level, the contractor will be informed by letter advising in which area of the health and safety information is insufficient. The timeframe for rectifying the deficiencies will be included in the letter for reassessment.
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Section 5: University Contractor Induction

All pre-compliant contractors are required to attend the University of Otago Contractors Induction Training. Property Services and the Health and Safety Team will provide this training. A prepared schedule of training will be forwarded to each pre-compliant contractor for booking arrangement suitable to both parties. Records of attendance for each individual at induction sessions must be signed by both parties, and recorded in the database. Notification of attendance is required prior to identification cards being issued.
Section 6: Identification Cards

On the successful completion of the induction training, attendees will provided with the required information for identification cards. Contractors on site not able to produce their identification card will be ordered off site. Cards will be limited to 2 years validation and reissued on completion of a successful 2 year review.
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Section 7: Compliant Contractor Auditing

Having required that contractors provide evidence that they are able to undertake the work being performed for the University in a safe way and informing them of the Universitys hazards they may be exposed, the University must assess the contractors performance. In essence this is a check to confirm that they are doing what they have already said they will do. No expectations other than legal compliance are being required of contractors and any impression that the University of Otago is being tough on contractors is misplaced. The audits must be structured, carried out on a regular basis and performed by staff whom have the training and experience to competently assess performance. This will be performed by staff that have had training in this role and the there is a pre-formatted form for this purpose. Review of contractor performance may also occur following any complaints of service, incident or accident occurrence and for any reported serious harm. The review may require additional controls to be verified and the University may revoke the compliant contractor status until the situation is rectified. Failure to meet the requirements will result in the contractor permanently removed from the complaint contractor system and may no longer work on University work sites.
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Appendix 1: Case Law and Contractors

The most relevant case law for defining the principal's liability is the court of appeal decision Central Cranes Ltd. V Department of labour (1997). This case was generated from a 1994 incident when a TV crew filmed a rigger walking along a crane's wire rope at the height of 41 meters above the ground, with no harness or safety helmet. The rigger was employed by a subcontractor engaged by the principal, Central Cranes Ltd. Central Cranes Ltd case was that they had done all that could be reasonably required of a principal by employing a competent contractor. The court of appeal disagreed and identified the following: Two or more persons may carry the same duty at any one time, and there are no set rules that shift responsibility from principal to employer. The employer has greater responsibilities than the principal does, however where there is a step that the principal could take irrespective of the employer steps, the principal is required to take those steps. Likely and/or unsafe practices that could be identified by the principal must be acted on. The presence or absence of the principal or its agents does not determine responsibility. Therefore, if working at heights is a likely work task of the contractor, the principal has a duty to ensure that all height work will be done safely. The principal cannot escape health and safety responsibilities by leaving safety measures the responsibility of the contractors. The principal must incorporate and allocate responsibility for safety features. Consultation and communication between all parties with responsibility for the worksite are essential. Risk analysis is required for every situation.
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Even when engaging a contractor with more specialist knowledge does not mean that the principal has no duties under the legislation. If the principal provides equipment for use by contractors employees, there are duties to ensure that the equipment remains safe for use and well maintained. Safety is a critical factor in the contract negotiations and contract duration. The principal needs to clearly identify the required standards of a contractor then maintain those standards.
The Court of Appeal identified the following steps that Central Cranes Ltd could have taken: The stipulation in advance of safety standards; and Identifying steps to be taken if and when unsafe practices are observed on the worksite.
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Appendix 2 :
Introduction
-Employment Agreement (Agreement of Service) applies to a person who is an employee of the University -Contractor Agreement (Contract for Services) applies to a person or entity who is an independent contractor In most cases a casual or fixed term employment agreement is the appropriate course. The Employment Relations Act 2000 (ERA) requires stated grounds for such short or limited arrangements, e.g. a specific project, translation services, lecturing services. The University preference is for employment agreements however the University accepts that for some situations it is appropriate to have a Contract for Services. To determine the correct arrangement you need to assess whether the individual is an employee or contractor. The Inland Revenue Department (IRD), the Employment Authority and courts have determined various tests to determine the real relationship. The following table demonstrates the main principle differences between being an employee or a contractor;
1 2
Employee or Contractor? Existing Employees

Contractor Contract for Services -independent business or service (sole trader, partnership, trust or company)
Employee Agreement of Service -employed by an entity (under an employment agreement)
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- payment of wages/salary -under supervision of another person -employer can control what, how, when, hours of and where the employee will work -employee attends a workplace (cannot send someone else in his/her place) -right to suspend or dismiss
-lump sum payment -withholding tax deducted (if applicable) -responsible for management of work output -provides own tools, transport, skills -choose whether to be available -has choice of whom they work for - can sub-contract to another person to provide that service - cannot be dismissed - law of contract
1 (a) If an individual is an existing employee of the University a Contract for Services is not appropriate. There are risks associated with both tax (IRD) and ERA requirements in regard to the nature of the relationship. There are other implications for the University in regards to existing on-site employment agreements. 2 (b) If the individual is an employee for another organisation then it is unlikely they will be a contractor. 3 (c) For Research contracts. In same case these contracts are 3 party contracts as a result of a Prime Contract with another organisation.
rd
In any of the above situations obtain full details of the proposed arrangements and discuss with your Research Adviser or HR Divisional Manager before proceeding with formal arrangements.
4. What Are The Essential Differences Between Employment Agreement and a Contract for Services?
`
an
Agreement of Service (Employee) is subject to common law and the provisions of the Employment Relations Act (ERA) Employees are usually paid for a number of hours, which does not necessarily relate to their output. If an employee is injured at work, under the Accident Insurance Act the employer has liability for 80% of income. Contract for Services (Contractor) is not subject to the provisions of the ERA, breaches of contract are found in common law and statute law. If you are suing for
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damages under breach of contract a loss of some kind must have been incurred as a result of the breach. Contractors provide certain outputs for a defined price. There is no statutory requirement in respect of independent contractors to provide for holidays, sick pay, accident insurance, minimum levels of remuneration or maternity leave, or to pay PAYE or FBT, deduct union fees, pay for hours when there is no work and so on. There is no access to the disputes procedure provided under the ERA. Withholding tax is normally deducted. Contractors must arrange payment of the ACC levy separately.
5. Procedure for Entering into a Contract for Services

If you believe that a Contract for Services would be appropriate, the following procedure should be followed in formalising the Contract: It is important to clearly define where the funding for the position is coming from: departmental budget OR research OR other external funding source. CHECK: that you have delegated financial approval to negotiate a Contract for Services. Non Research Funding Contracts Process a. b. c. Download the University Contract for Services template attached to this guideline and complete as indicated. Once completed, forward electronically to your HR Divisional Manager for final checking. There should be neither new clauses added nor clauses removed from the template. On receipt of approval to proceed from the HR Divisional Manager finalise the Contract with the Contractor by having them sign the contract and initial each page (bottom right). Forward the Contract to the HR Divisional Manager for signature on behalf of the University. The original contract is returned to the Department for filing; -A copy is retained by the HR Divisional Manager and information entered in central database -A copy is sent to the Accounts Manager, Finance Division for reference for payment purposes Research Funding Contracts Process
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d. e.
1 f. If the funding is research or grant based then you need to contact the Divisional Research Adviser from Research and Enterprise. This should be when you are at the early stages of making an application to the funder. The decision on whether the staff required for the research will be an employee or contractor will impact on the content of your application and accuracy of your budget. 2 g. Complete the template with the Research Adviser. On completion of the template the Research Adviser will work through with you the Contract for Services document. The Research Adviser will then ensure that the Contract is signed on behalf of the University. 3 h. The original contract is held on file at the Research and Enterprise office. -A copy is sent to the Researcher and Divisional Administrator -A copy is sent to the Accounts Manager, Finance Division for reference for payment purposes
The Contractor must not start performing the services until the contract has been signed by both parties.
6. Withholding Tax
Withholding Tax is an IRD (Inland Revenue Department) tax requirement and is deducted at source where the recipient is not an employee. An IR330 form is required to be completed by the Contractor otherwise an additional rate is applied (no declaration rate) which is on top of the required withholding tax deduction. A contractor may have a Certificate of Exemption which allows them to receive full payment without the deduction of withholding tax. This should be noted in your Contract for Services document. Different withholding tax rates apply to different activities and you should check this with your Adviser. However, in general the University deducts 20% withholding tax from the amount owing to the contractor unless an exemption certificate applies. For Non Resident Contractors different rates apply; again the contractor could obtain an exemption certificate for the New Zealand IRD.
7. Plain Language Explanation of Clause 2.18 and Clause 2.19

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Clause 2.18 of the agreement template allocates responsibility between the University and the Contractor for claims which may arise in connection with the services which are to be provided. Under that clause the Contractor accepts liability for claims which arise as a result of the Contractor's breaches - either breaches of the agreement itself, or breaches of the requirements of the Contractor's profession. Clause 2.19 records that the University arranges liability insurance for Contractors, other than Contractors - such as medical professionals who will already have equivalent cover. Arranging liability insurance by the University is an automatic process and does not require further documentation. If a Contractor does face liability, the insurance cover can be expected to protect the Contractor personally, except to the extent of the policy excess. It is important to note that clause 2.19 records certain disclosure obligations which apply in respect of the insurance. If the Contractor is responsible for a failure to observe those requirements, and there is no insurance cover as a result, or if the breach is outside the terms of the cover, the Contractor may be personally liable under clause 2.18. Note: When completing the Agreement, ensure the Contractor deletes what does not apply under
(d), e.g. (i) The contractor does hold professional indemnity insurance OR (ii) The contractor does not hold professional indemnity insurance.
Proceed to the tables to determine the correct relationship for your situation
8. Complete the following tables to determine the correct relationship

A. The control test has been the most common test utilised to distinguish between independent contractors and employees. The test analyses the nature and degree of detailed control exercised by the employer over the worker. The greater the degree of the control by the employer, the more likely it is that the worker is an employee.
TABLE A -- CONTROL TEST A B
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Does the potential contractor have control over how, where and when the services are performed (within practicality)? Is the potential contractor responsible for the quality and pricing of the services to be provided? Will the potential contractor supervise the provision of services and can the Potential contractor hire other people to perform some or all of the services?
Yes Yes Yes
No No No
B. The integration test (also known as the organisation test) is based on the notion of an employee as being part and parcel of the organisation in which he/she is employed. By way of contrast, an independent contractor, although doing work for a business is not integrated into the business, and is only an accessory.
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TABLE B INTEGRATION TEST Are the services to be provided by the potential contractor different from work usually performed by Employees of the University? Will the potential contractor pay for any expenses incurred in performing the services? e.g. use of the Universitys phones and administration services. Will the potential contractor invoice the University for the services provided? Will the potential contractor be paid only as the services are performed as opposed to a regular salary payment? Are the services to be performed by the potential contractor oneoff as opposed to there being a continuous need for the services? Does the potential contractor have a Staff ID Card?
A Yes Yes
B No No
Yes Yes Yes
No No No
No
Yes
C. The independent test focuses on the manner in which the worker ordinarily performs his/her business or work, including their economic involvement (for example, an independent contractor can make an economic loss from a contract).
TABLE C INDEPENDENCE TEST Will the potential contractor supply or be charged for the necessary tools, vehicles, office, phone, computer etc to perform the services? Will the potential contractor be free to work for other organisations? Does the potential contractor have their own client base? Does the potential contractor advertise their services? Would the University be required to pay GST in addition to any payment for the services performed by the potential contractor? Does the potential contractor pay tax, ACC and insurance directly? A Yes B No
Yes
No
Yes Yes Yes
No No No
Yes
No
D. The economic reality test involves examining the total situation of the work relationship to determine its economics reality. This includes having regard to circumstances prior to entering into the contract and the conduct of the parties since.
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TABLE D -- ECONOMIC REALITY TEST Would the potential contractor be exposed to normal business risks in the provision of the services to the University? Would the potential contractor be liable for correcting substandard work?
A Yes
B No
Yes
No
E. Finally, the intention test examines the intention of the parties in the relationship. Usually, intention is demonstrable from the express terms of the contract between the two parties. However, the contract must be consistent with the actual circumstances and conduct of the parties to the relationship.
TABLE E INTENTION TEST Would the potential contractor be performing services which had been performed by independent contractors? Could the University sue the potential contractor for loss resulting from the provision of services? If the services were not performed to the standard specified in the proposed contract with the potential contractor, could the University withhold payment? Has the potential contractor specifically stated that they want to provide services to the university as an independent contractor? Has the potential contractor always worked with the University as an independent contractor? A Yes Yes Yes Yes Yes B No No No No No
If all of the responses to the questions in Tables A-E are in column A, then the relationship is that of a Contractor (Contract for Services) If one or more of the responses to the questions in Tables A-E is in column B, then the Manager answering the questions should contact HR Divisional Manager or Research Adviser (Research & Enterprise) for assistance before proceeding.
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Appendix 3: Contractor Type Assessment Form Contractor Company:

This form is to be used to ascertain whether the company/person being retain is a contractor as defined by s.18 Health and Safety in Employment Act 1992, and if they are what category of contractor they are. Contract of Service or Contract for Services? Yes (Employe e) 1. Control of Work Will the work being undertaken be under the direct control of a University of Otago staff member? 2. Integration Is the work being undertaken part of the normal function of the university. 3. Economic Reality Is the person on a fixed hourly rate? Does the University of Otago control of the resources being used on this contract? Decision If you have answered Yes to all questions the person is to be considered for the purposes of Health and Safety to be an employee of University of Otago and must be provided with the relevant Health and Safety Induction. If you have answered No to all questions the person is a contractor and must complete the Compliant Contractor Process No (Contract or)
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Mixed response If the decision is not clear considering the factors listed above the following considerations should be taken into account. Consider all issues outlined and make a decision based on the balance of the considerations if required discuss this with the University Health and Safety Adviser. Additional Considerations: The following issues show how the relationship would vary between University of Otago as an employer and as Principal. University as Employer Can choose which employees do which task Regular payments e.g. wages or monthly invoice Must do the work themselves Can be dismissed Assessed by: Time: Signature: Assessment of Contractors type: Self Employed Contractor Employee University as Principal Cannot specify who will undertake specific tasks Lump sum for completion of contract Can delegate work to others Must cancel contract Date:
Contractor Database Updated: Date:
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Compliant Contractor Monitoring Checklist MONITORING CHECKLIST Contractor: Contractor Number:
Contract or Purchase Order:
Department:
Type of Work: Location of Work:
Contractor
Site Specific Safety Plan if applicable Written plan available onsite Defined responsibility for H&S Evidence of planning and review Hazard Management Hazards identified for job (green form signed and updated) Hazard appropriately controlled Hazards regularly
Dec 2006
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assessed Permit(s) to work considered/issued Lab manager contacted where work is in a laboratory Site housekeeping Training & Supervision Staff on-site appropriately trained for work Supervision of staff not adequately trained Training in all PPE, plant and chemicals used Injuries Reporting procedure in place. Serious harm reporting procedures including notification to the University. Trained First-Aider on-site Emergency Procedures Plan for all likely emergencies Allocation of responsibilities Training performed in emergency plan/s Sub Contractors Health and Safety
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standard for all contractors Monitoring of contractors performance Details where health and safety performance is not satisfactory:
Notification of Hazard Advice Issued NA/Yes
Date:
Unsafe Condition Fixed:
Date:
Assessed by: Time: Signature: Recorded in Contractor Database: Date:
Date:
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Appendix 4 : Self Employed Contractor Letter

RE: Contractor Health and Safety Control The University of Otago has established a Health and Safety Compliant Contractors List and selected contractors who have met our Health and Safety standards will be added to this list. The list will be reviewed every 2 years. As you will no doubt be aware, when we employ a Contractor to carry out a task or service for us, it becomes our responsibility to ensure that all Health and Safety issues are addressed appropriately. The University has identified you as a Self-Employed Contractor. We define a Self-Employed Contractor as a contracted individual who does not have employees. If this is incorrect, please advise us. To become a compliant contractor for the University of Otago, we need to be sure that you have suitable Health and Safety Management Systems in place. We ask that you complete the attached form (or supply a copy of your Safety Management Plan, Health and Safety Manual or similar) by 20 February 2004 as evidence that you have identified, assessed and controlled the hazards relating to the work you undertake for the University of Otago and that you are suitably trained in relation to these issues. In order to meet our requirements under the Health and Safety in Employment Act 1992, we will be requiring contractors to attend induction training on the University of Otagos Health and Safety Management Systems. We will advise you of the training schedule on receipt of the necessary health and safety information.
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SELF-EMPLOYED CONTRACTOR Self-Employed (Trading) Name: _ Address: ______ ______
Contact Person: ________________________________________________________________ Work Phone: ______________________ Trade and Type of Work Undertaken: Cell Phone: __________________________
__________________________ Training and/or Expertise to Undertake Work:
Safety Precautions/Hazard Management
Signed By :
Date :
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Consultant Letter RE: Contractor Health and safety Control The University of Otago has an established Health and Safety Compliant Contractors List and selected contractors who have met our Health and Safety standards will be added to the list. The list will be reviewed every 2 years. As you will no doubt be aware, when we employ a Contractor to carry out a task or service for us, it becomes our responsibility to ensure that all Health and Safety issues are addressed appropriately. The University has identified you as a Consultant Contractor. We define a Consultant Contractor as someone whose main purpose is to come on site to design, plan or discuss work, not for the purpose of doing physical work. If this is incorrect, please advise us. To become a compliant contractor for the University of Otago, we need to be sure that you have suitable Health and Safety management Systems in place. We ask that you complete the attached form (or supply a copy of your safety Management Plan, health and Safety Manual or similar) by .. as evidence that you have identified, assessed and controlled hazards relating to the work you undertake for the University of Otago and that you are suitably trained in relation to these issues. In order to meet our requirements under the Health and Safety in Employment Act 1992, we will be requiring contractors to attend induction training on the University of Otagos Health and Safety Systems. We will advise you of the training schedule on receipt of the necessary health & safety information. If you have any questions or concerns, please contact .. Yours sincerely
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Consultant Contractor Company : Address:
Contact person : Work Phone : Type of Work Undertaken: Cell Phone:
Training and/or Expertise to undertake work (for each employee)
Safety Precautions/Hazard management:
Signed By :
Date:
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Position:
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Appendix 4: Material and Goods Supply & delivery, and Site Visitor Letter
RE: Contractor Health & Safety Control The University of Otago has an established Health & Safety Compliant Contractors process. As you will no doubt be aware, when we employ a Contractor to carry out a service or task for us, it becomes our responsibility to ensure that all Health & Safety issues are addressed. The University has identified you as a Material, Goods Supply and Delivery Contractor which means you access University of Otago for the delivery of materials or goods only (if this is incorrect, please advise us). Your initial visit requires that you report on arrival to the University contact person and be supervised for the first visit. There will be situations where you will make repeat visits and it is not expected that you will be escorted each time. Once the area for delivery and access has been clearly defined, visits during normal working hours can be routine. To this end we have produced a pamphlet for your business with onsite safety instructions while on the University of Otago property. A copy of the pamphlet accompanies this letter. In order to meet our requirements under the Health & Safety in Employment Act 1992 we ask that you take the time to read the pamphlet and to issue it to your employees who will be on the University of Otago property. If you require further copies of the pamphlet please contact Judy Gallie, PO Box 56, Dunedin. Telephone 03) 4794026 or Mobile 0274066535.
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Appendix 4 : Contractor Letter

RE: Contractor Health and Safety Control The University of Otago has established a Health and Safety Compliant Contractors List and selected contractors who have met our Health and Safety standards will be added to this list. The list will be reviewed every 2 years. As you will no doubt be aware, when we employ a Contractor to carry out a task or service for us, it becomes our responsibility to ensure that all Health and Safety issues are addressed appropriately. The University has identified you as a Contractor. We define a Contractor as a contracting company whose employees come and work on site at the University. If this is incorrect, please advise us. To become a compliant contractor for the University of Otago, we need to be sure that your company has suitable Health and Safety Management Systems in place. We ask that you complete the attached form (or supply a copy of your Safety Management Plan, Health and Safety Manual or similar) by ------------ as evidence that you have identified, assessed and controlled the hazards relating to the work you undertake for the University of Otago and that you have your staff suitably trained in relation to these issues. In order to meet our requirements under the Health and Safety in Employment Act 1992, we will be offering contractors induction training on the University of Otagos Health and Safety Management Systems. It is a requirement of the compliant contractor status to attend this training. We will advise you of the training schedule on receipt of the necessary health and safety information. If you have any questions regarding this please contact directly .
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CONTRACTOR FOR SERVICE Company: Address: Contact Person: Work Phone: Signed By: Position: CONTRACTORS HAZARD IDENTIFICATION AND CONTROL Provide a list of hazards, which have been identified as potential or actual risks that staff may be exposed to by the work undertaken at the University of Otago. Control measures relevant to each hazard must be supplied. Hazardous Substances Cell Phone: Date: ____________________
All commonly used hazardous substances must be listed. The Contractor must undertake that appropriate training has been carried out in hazardous substances use and that the appropriate protective equipment will be worn. Hazardous Plant, Equipment and Tools
This must include all plant, equipment and tools that have the potential to pose a hazard to staff. Hazardous Processes
This must include all processes that have the potential to expose a hazard to staff. Training and Supervision
The Health and Safety in Employment Act 1992 requires that all staff are provided with adequate training and supervision to enable them to undertake the work they are being asked to do in a safe manner. We expect as minimum, evidence that you have trained your staff in relation to the hazards you have identified. There should also be evidence of
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the fact that this is an on-going process and those identified hazards are regularly reassessed. Injuries
It is a requirement of the Health and Safety in Employment Act 1992 that every business maintain a register of all injuries and near misses, those of which cause serious harm must be reported to the Occupational Safety & Health. We expect to see as a minimum, evidence of the fact that there is a procedure requiring the reporting and investigation of injuries. Emergency Procedures
It is a requirement of the Health and Safety in Employment Act 1992 that every business develop a plan to manage all likely emergency situations. We will expect as minimum, evidence that this issue has been considered and that an emergency plan has been prepared for every likely emergency. Contractors and Subcontractors
The University of Otago has potential liability for your contractors and therefore requires that you set an appropriate Health and Safety standard for all contractors that you use. We will expect to see as a minimum, evidence of a process to assess your sub-contractors Health and Safety systems.
Please Supply: A list of Identified Hazards relevant to the work undertaken at the University of Otago Documented evidence of training provided Evidence of your injury/incident reporting and investigation procedures Evidence of emergency planning Evidence of control of your contractors
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Appendix 5 :Contractor Assessment Form
Contractor Name: Phone and contact person: Assessor: Date:

Y/N Comments Action requ ired Responsibilities Defined H&S Policy or statement Defined responsibilities Planning and review
processes Hazard Management Process Systematic hazard identification process Hazard control system in place Information provided to staff Training & Supervision Provision Training system/method Induction process Supervision of staff
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Injury investigation and reporting procedures Injury and investigation reporting system Serious harm reporting Emergency Procedures Plan for identified emergencies Sub Contractors(Not Applicable in All instances) Health and Safety standard for all contractors Monitoring of contractors performance
Comments: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _____________________________________________________________ Further Information Required Re-assessment Required Second opinion requested Completed assessment satisfactory
Signed: _____________________________
Date:__________________
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Self-Employed Contractor: Assessment Form Contractor : Name and Contact Number: Assessor: Date:
Y/N Nature/type of work Injury reporting serious harm notification process Training and/or expertise defined Hazard Management Process Potential hazards for University staff/students identified and controlled High-risk activities Involved in height work, confined space, asbestos, hot work, etc. Comments: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ ____ Further Information Required Re-assessment Required Second opinion requested Comments Action requ ired
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Completed assessment satisfactory
Signed: _____________________________ Additional Comments by Assessor
Date:__________________
Further Information Required Substantially acceptable with areas of concern Re-assessment Required Second opinion requested Assessed By: _____________________________ Date:__________________
Dec 2006
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Appendix
Pre-Compliant Contractor Letter
Re: Health and Safety Requirements for Contractors Thank you, for submitting your material to Otago University. We are happy to inform you that your material has been reviewed and met the requirements of our Assessment Process and therefore your company has been identified as a pre-compliant contractor. To complete the compliant contractor status, employees that are likely to be involved in work at the University of Otago must attend the University Contractor Induction Training. A schedule of the training sessions is enclosed for your information. If you have a significant number of employees who are likely to work at the University, please contact the University, as a specific induction session may be able to be held at a suitable time. The training must be completed before a contractor identification card can be issued.
Yours Sincerely
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There will be situations where there is no response from the contractor. A follow up letter is to be forwarded if the information is not received within 4 weeks of the initial letter.
4.3
Non-Response to Initial Contractor Letter
Dear Sir / Madam You have received an earlier letter from us outlining our contractor requirements, dated . As part of these requirements we required you to return material from your Health and Safety system, to this date this has not been received. Should you for some reason not received the letter please contact us and we will forward you a replacement copy. Should you have received this material but have any problems with the requirements of this document please contact us, we will be happy to discuss any issues with you. Can you please give this your prompt attention, as it is our intention to have this process completed as soon as possible. Yours sincerely
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There will be situations where there is no response from the contractor. A follow up letter is to be forwarded if the information is not received within 4 weeks of the initial letter.
Non-Response to Initial Contractor Letter Dear Sir / Madam You have received an earlier letter from us outlining our contractor requirements, dated . As part of these requirements we required you to return material from your Health and Safety system, to this date this has not been received. Should you for some reason not received the letter please contact us and we will forward you a replacement copy. Should you have received this material but have any problems with the requirements of this document please contact us, we will be happy to discuss any issues with you. Can you please give this your prompt attention, as it is our intention to have this process completed as soon as possible. Yours sincerely
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Where the University has assessed the information from the Contract Company but is not satisfied with the compliance level, the contractor will be informed by letter advising in which area of the health and safety information is insufficient. The timeframe for rectifying the deficiencies will be included in the letter for reassessment.
4.4
Additional Information Request Letter
Dear Sir / Madam Re: Compliant Contractor System Thank you for your response to our earlier letter outlining our contractor requirements dated that you have submitted. The University has assessed the information, and additional information is sought in relation to . Please forward supporting material to verify that you are able to meet the Health and Safety in Employment Act requirements in relation to this matter. If you have any problems with the requirements of this letter please contact us, we will be happy to discuss any issues with you. Can you please give this your prompt attention, as it is our intention to have this process completed as soon as possible. Yours sincerely . We have received the information
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4.5
Compliant Contractor Acceptance Letter
Dear Sir / Madam Subject: Compliant - Contractors Health and Safety Compliance. Thank you for responding to our process of ensuring Contractor compliance. On behalf of the University of Otago and following a review of your Health and Safety material we would like to advise you that your company has been added to our Compliant Contractors List. Please find attached a list of the employees that have attended the required Contractor Induction Training and may be issued with the required identification cards (details enclosed). If contractors are not able to produce their cards, they will be asked to leave the University site. We retain the right to assess your compliance with either your own or our Health and Safety requirements at any time while you are retained by us. At any time if you have Health and Safety concerns when dealing with the University of Otago please contact Compliant contractors are subject to audit by the University of Otago at any time. The compliant status is valid for 2 years, at which time your company will be reviewed. Yours Sincerely
Dec 2006
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Process Document Final Version 2006

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University of Otago Compliant Contractor Process Documentation

COMPLIANT CONTRACTOR PROCEDURE DOCUMENT

University of Otago Compliant Contractor Process Documentation

Section 1: Policy Statement

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

1.2 Compliant Contractors Policy Document

COMPLIANT CONTRACTORS HEALTH AND SAFETY POLICY

Scope Associated Documentation

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

this is met through employee induction.

University of Otago Compliant Contractor Process Documentation

Section 2: Legal Requirements

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

HSE Amendment 2002

University of Otago Compliant Contractor Process Documentation

1. Major project contracts, and 2. Regular Contractors

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

Guest or Visiting Academics

Induction requirements based on contractor type and risk group:

University purchase order

University of Otago Compliant Contractor Process Documentation

-Services (carry out job work) -Consultants

University purchase order University purchase order or Contract for Service

Full Full Induction or employee induction (as appropriate)

High High or Low

Contract for Services

Contract for Services

Contract for Services

Contract for Services

Guest or Visiting Academics Group Three Other Employment Agency staff

Contract for Services

Contract for Services

University of Otago Compliant Contractor Process Documentation

Volunteers Proctor Students

Treat as employees Treat as employees

Employee induction Employee induction

Need for a contractor

Yes Refer to Property Services relevant Facilities Manager

Property Services Contractor Approval Processes. Property Services Database

Identify the type of contractor

Is a suitable approved contractor available? (Check web page lists)

Arrange Contract as per guidelines

Arrange induction or provision of information as appropriate

Arrange Contract as per guidelines

Contact H&S office to initiate approval process

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

Self Employed Contractor

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

Assessment of Health and Safety

Contractor Assessment Process

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

University of Otago Compliant Contractor Process Documentation

Section 5: University Contractor Induction

Section 6: Identification Cards

University of Otago Compliant Contractor Process Documentation

SELF-EMPLOYED CONTRACTOR Self-Employed (Trading) Name: _ Address: