| RECOMMENDATION 1
The model Act should contain a set of principles including, amongst other things, the following to guide duty holders, regulators and the courts on the interpretation and application of the duties of care:
a) Duties of care are imposed on those who are involved in, materially affect, or are materially affected by, the performance of work.
b) All duty holders (other than workers, officers and others at the workplace) must eliminate or reduce hazards or risks so far as is reasonably practicable.
c) Workers and other individuals at the workplace must co-operate with persons conducting businesses or undertakings at the workplace, to assist in achievement of the objective of elimination or reduction of hazards or risks and must take reasonable care for themselves and others.
d) Officers must proactively take steps to ensure the objective of elimination or reduction of hazards or risks is achieved within their organisation.
Note: Recommendations relating to principles other than those relating to the interpretation of the duties of care will be dealt with in our second report.
Common features of all duties of care
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Duties of care are imposed on duty holders because they influence one or more of the elements that go to the performance of work, and in doing so may affect the health or safety of themselves or others. Duties of care require duty holders to ensure that, in their role and by their conduct, they do not adversely affect health or safety.
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The model Act must make clear that all duty holders must at all times accept their responsibility for health or safety and ensure that the duties of care are met. The provisions of the model Act should not permit or encourage, directly or indirectly, any duty holders to avoid their health and safety responsibilities.
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We share the view that has been expressed in a number of submissions and during consultation that the model Act should not allow any duty holders to relinquish or pass on their duties to anyone else. To allow this to occur may result in:
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a focus on passing on or relinquishing duties rather than focusing on achieving the protection of health and safety; and/or
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confusion as to who has the responsibility to provide for the protection of health and safety, which may result in no-one doing so.
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The model Act should, therefore, include a number of matters to apply to all of the duties of care. These are that:
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Duties of care are non-delegable.
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A person can have more than one duty by virtue of being in more than one class of duty holder and no duty restricts another.
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More than one person may concurrently have the same duty.
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Each duty holder must comply with an applicable duty to the required standard (reasonably practicable, due diligence or reasonable care) notwithstanding that another duty holder has the same duty.
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Each duty holder must comply with an applicable duty to the extent to which the duty holder has control over relevant matters, or would have had control if not for an agreement or arrangement purporting to limit or remove that control.
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Each duty holder must consult, and co-operate and co-ordinate activities, with all persons having a duty in relation to the same matter.
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These principles are not novel. Each of these matters is clearly recognised in decided OHS cases across the jurisdictions. Our experience is, however, that they are not universally understood. We consider that they are so important that they should be stated clearly in the model Act.
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The provisions of s.24(3) and s.25 of the Queensland (Qld) Act and s.16 and s.17 of the recently passed ACT Act are examples of how these matters may be dealt with in the model Act. We believe that the common features set out above are wider in scope and clearer.
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Each of these matters will be the subject of further discussion and specific recommendations in our second report.
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