Chapter 6: The Primary Duty of Care
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Reference
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10
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The model Act should provide in a single section a primary duty of care owed by a person conducting a business or undertaking to a broad category of ‘workers’ and others.
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Page 47
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11
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To ensure that the primary duty of care continues to be responsive to changes in the nature of work and work relationships and arrangements, the duty should not be limited to employment relationships. The duty holder is any person conducting the business or undertaking.
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Page 48
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12
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The primary duty of care should clearly provide, directly or through defined terms, that it applies to any person conducting a business or undertaking, whether as:
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an employer, or
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a self-employed person, or
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the Crown in any capacity, or
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a person in any other capacity;
and whether or not the business or undertaking is conducted for gain or reward.
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Page 49
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13
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The primary duty of care should exclude workers and officers to the extent that they are not conducting a business or undertaking in their own right.
Alternatively, guidance material should make clear that the primary duty of care is not owed by such persons.
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Page 50
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14
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The primary duty of care should not include express reference to control.
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Page 51
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15
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The primary duty of care should be sufficiently broad so as to apply to all persons conducting a business or undertaking, even where they are doing so as part of, or together with, another business or undertaking.
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Page 53
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16
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The model Act should include a definition for ‘worker’ that allows broad coverage of the primary duty of care. The definition of ‘worker’ should extend beyond the employment relationship to include any person who works, in any capacity, in or as part of the business or undertaking.
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Page 54
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17
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The primary duty of care should not be limited to the workplace, but apply to any work activity and work consequences, wherever they may occur, resulting from the conduct of the business or undertaking.
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Page 55
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18
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To avoid the exclusion or limitation of the primary duty of care, the model Act should specifically provide that the duty should apply without limitation, notwithstanding anything provided elsewhere in the model Act (that is, more specific duties that may also apply in the circumstances should not exclude or limit the primary duty of care).
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Page 56
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19
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The primary duty of care should include specific obligations, namely ensuring so far as is reasonably practicable:
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the provision and maintenance of plant and systems of work as are necessary for the work to be performed without risk to the health or safety of any person;
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the provision and maintenance of arrangements for the safe use, handling, storage and transport of plant and substances;
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each workplace under the control or management of the business operator is maintained in a condition that is safe and without risks to health;
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the provision of adequate welfare facilities; and
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the provision of such information, training, instruction and supervision as necessary to protect all persons from risks to their safety and health from the conduct of the business or undertaking.
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Page 57
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20
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The model Act should extend the primary duty of care to circumstances where the primary duty holder provides accommodation to a worker, in circumstances where it is necessary to do so to enable the worker to undertake work in the business or undertaking (along the lines of that currently found in Part III, Division 4 of the WA Act). Detailed requirements and the specified scope should be contained in regulations.
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Page 58
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21
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In giving effect to the recommendations relating to the primary duty of care, the proposed model clause at paragraph 6.125 should be taken into account.
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Page 60
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22
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The primary duty of care should be supported by codes of practice or guidance material to explain the scope of its operation and what is needed to comply with the duty.
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Page 60
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