The model Act should exclude passive financiers from the application of the duty of care of a supplier.
Note: Passive financiers are persons who may own the plant, structure or substance concerned only for the purpose of financing its acquisition.
The Provision of Occupational Health and Safety Services
Some submissions raised the of issue whether people or organisations who provide OHS information, advice or OHS services (including the provision of safety management systems) to the workplace should be subject to a duty of care under the model Act.
The justification for placing a duty of care on providers of OHS services is that these persons may, in providing the services, materially influence health or safety by directing or influencing things done or provided for health or safety. That influence may be direct, or indirect through influencing downstream design of systems, workplaces or plant. The service providers may influence decisions that are critical to health and safety in relation to a specific activity, or across an organisation (e.g. advising on governance structures, safety policies or systems).
Tasmania is the only jurisdiction that currently directly places a duty of care on a ‘service provider’.215
Arguably, a number of current provisions in OHS legislation relating to the conduct of a business or undertaking would apply to a service provider,216 although some are limited to where the person undertaking the business or undertaking is an employer or self employed person,217 and some may only apply to persons at the place of work of the service provider (employer).218
The primary duty of care that we propose be placed on a person conducting a business or undertaking would apply to persons providing OHS services as part of the business or undertaking. As noted above, we consider, however, that there are advantages to providing a separate duty of care for specific classes of persons. We accordingly recommend that the model Act place a duty of care on service providers.
In recommending that the model Act impose a duty of care on service providers, we note that this should not require them to do more than they ought be doing under other current laws. The service providers would owe duties of care at common law and owe obligations under the Trade Practices Act 1974 and other consumer protection legislation. They would also owe a duty of care under the primary duty of care that we recommend be placed on a person conducting a business or undertaking.
