The model Act should include provisions explicitly providing for the following common features applicable to all duties of care:
Duties of care are non-delegable.
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.
More than one person may concurrently have the same duty.
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.
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.
Each duty holder must consult, and co-operate and co-ordinate activities, with all persons having a duty in relation to the same matter.
In line with the principles that we recommend above, the model Act should ensure that duties of care ‘cover the field’. They should be clearly owed by all persons carrying out activities in, and specific classes of persons associated with, the undertaking of work, including those who provide things necessary for work to occur. They should be owed to all whose health and safety may be put at risk by the activities.
The model Act should clearly state the basis for imposing duties of care. These are that the duty holder provides, makes a specified contribution to or involvement in, or manages, at least one of the elements that go to work being undertaken, being:
the systems or arrangements under which the work is undertaken;
the things used in undertaking work (plant, substances, structures or components); or
the capability (training and information), instruction and supervision and welfare of those undertaking the work.
Duties must apply to the design, manufacture or supply of any of these elements.
As we noted earlier in this report, in recent years, there has been considerable change in the nature of hazards and risks (such as nanotechnology, psychosocial hazards), work organisation and work relationships. That change is continuing and concern has been expressed by many of those who made submissions, or otherwise made public comment, that the current OHS legislation in Australia cannot accommodate these changes satisfactorily.
Accordingly, we believe that the model Act should include duties of care that not only apply to current circumstances, but also are broad enough to address changed circumstances in the future.
These considerations underpin our approach to the structure and content of the duties of care.
