While definitions are to be addressed in our second report, the concept of ‘worker’ is fundamental to the duty of care, and therefore we comment on it at this point.
Traditionally, labour law and with it OHS law has been based on permanent employment with a single employer and the contract of employment as the centrepiece. In this way, it was easy to identify who was an employee and the relationship of the employee to the employer and other employees.
As we note earlier, in Australia, as overseas, there has been substantial growth in flexible forms of employment.
Various patterns of work have developed and continue to develop outside of the traditional form of employment.
These patterns of work were conveniently described as including:
casual (or temporary) workers, engaged on a short term (usually hourly or daily) where each period of work is a distinct period of service and there is no continuity of service or expectation of permanent employment;
short-term fixed contract workers engaged under contracts of less than 12 months’ duration;
labour hire or leased workers, supplied by labour hire firms or agencies to work for client employers on a temporary basis – usually there is no contractual relationship between the worker and the client;
own-account self-employed workers operating a business without employees and who supply labour service to clients;
teleworking by workers at a location remote from the employer’s premises (for example, at the worker’s home, at alternating locations, or entirely mobile) using telecommunication technology such as on-line computer networks;
part-time work, where the worker usually works fixed or variable hours less than a full-time worker (normally between 35 and 38 hours a week);
home-based work carried out at the worker’s home (including but not restricted to telework) rather than at the employer’s premises – home-based workers might be employees or independent contractors, and some home-based workers might spend some of their working time working at the employer’s premises.257
It is widely recognised that the traditional definition of employee, and the associated duty of care of an employee, is no longer valid for all work arrangements. Our preliminary view is, therefore, to adopt a broad definition of ‘worker’ to cover all who carry out work activities as part of a business or undertaking. This is similar to the approach in the NT Act. We indicated in Chapter 6 who should be considered ‘workers’ for the purposes of the primary duty of care and we adopt the same approach for the duty of care of workers.
