The fourth option (where the primary duty holder is a person conducting a business or undertaking) has the potential to meet all of the concerns noted above; subject to the specific content of the duties, which we discuss below.
The fourth option is not entirely novel, given the existence of ‘conduct of the undertaking’ type provisions in all Australian laws.87 We also note that the recently enacted NT Act and new ACT Act use broad definitions of ‘employer’ and ‘worker’ that remove the necessity for an employment relationship.88
We consider that how the duty is expressed is critical for achieving the objective of wide application.
While such a provision could simply state that the duty is owed to ‘any person’ affected by the conduct of the business or undertaking, it may not make clear that it applies to those persons carrying out the work. Referring to ‘workers’ and ‘others’ in the duty would make clear that it does apply to work relationships.
The Qld Act takes a similar approach, although there are possible difficulties arising from its definitions of employer and worker.89 These definitions operate so that the reference to ‘workers’ excludes those persons who are engaged in work under a contractual chain (by the exclusion of engagement under a ‘contract for services’). Although such persons would be covered in the Qld provision as ‘others’, that coverage may not be apparent to some duty holders. A restricted definition of ‘workers’ may therefore diminish the advantage of using that term in a primary duty provision.
An approach of this nature was proposed or supported broadly, although not universally, in the submissions and during consultation. A useful discussion of this type of approach is set out by Johnstone et al in their submission, and we agree with the following comment:90
“…We submit a far more modern and sensible approach is taken in the Queensland Act, where the duty (in section 28) is simply imposed on ‘a person who conducts a business or undertaking’. The disadvantage of this is that there may be early complications in interpreting ‘business’ and ‘undertaking’ in this context – although this has not been a problem in Queensland. In any event, the case law on whether a person is an ‘employer’ or ‘employee’ is notoriously complex. The benefits of imposing the duty on a ‘person who conducts a business or undertaking’ are that it signals that the duty is comprehensive and flexible in its approach; and that it removes an artificial step in the application of the duty. In short, it is both more transparent and accessible and applicable than the approach taken in other OHS statutes…”
The submissions and comments during consultation, and our experience, has shown that reliance on the ‘conduct of the undertaking’ duty of care, may not produce the desired health and safety protection because of ambiguity and inconsistency in interpretation. We consider this may be overcome by a code of practice or guidance material clearly explaining the scope and application of this duty of care.91
It may be argued that a broad ‘conduct of the undertaking’ duty as proposed would remove the need for specific duties (e.g. person in control of workplace, designer of plant). We consider, however, that certain specific duties should also be provided in the model Act to:
remove any doubt that particular classes of persons owe duties of care; and
enable more detailed obligations to be provided than would be appropriate for a broad duty of more general application.
The introduction in Victoria (Vic) of duties of care for designers of buildings or structures resulted in mistaken concern being expressed that architects, engineers, draftspersons and others had a new duty of care that they did not previously have. The duties of care for designers of buildings or structures, however, may go no further than the ‘conduct of the undertaking’ duties in the Vic Act.92 A benefit from the inclusion of a specific duty on a particular class of persons is to make clear that such a duty exists, while also providing clarity on its application.
This approach should best ensure that there will be maintenance or improvement in safety standards and lead to an increase in consistency in the interpretation and enforcement across jurisdictions (particularly if supported by codes of practice and guidance material that are consistent across all jurisdictions).
We see the particular benefits of the fourth option as:
It provides for a wide application of duties of care and the involvement of all persons undertaking or associated with work.
The breadth may lessen any perception of ‘pigeon holes’ or ‘loopholes’, removing any focus on avoidance of obligations and moving the focus to compliance (through prevention).
It may also make enforcement easier, as there should be less doubt as to whether a person is a duty holder or if a person is owed a duty.
By extending in the duty the identification of those who owe and are owed a duty, greater consultation or engagement by all persons involved in undertaking work would be encouraged, including those controlling or influencing how work is done or aspects of it, with those doing the work, regardless of the formal nature of the relationship. This should provide benefits to safety through better communication and more effective risk management.
The approach is consistent with and will support the principles and strategies in the National OHS Strategy93 since:
all persons involved in work will understand that they have (and cannot by various means pass to another) duties of care that are concurrent with others, and this should encourage co-operation and commitment of all to identifying OHS issues and initiating prevention action; and
through clarification and simplification of the duties, it will assist in raising OHS awareness and allowing practical guidance to be provided.
These changes should not have any material ‘start up’ delays or costs in the various jurisdictions, given the significant similarity to existing provisions allowing this to occur without supporting regulations or substantial training or public education.
There should not be any significant skill or competence requirements on duty holders, as they are already subject to similar obligations.
In recommending this option, we are accordingly proposing the development of an established approach that is not unknown to regulators and duty holders, but which we consider can be improved.
While it may take a short period of time for regulators and duty holders to understand the operation of the duties of care, with a need for training of inspectors and investigators, we do not anticipate any significant ongoing resource implications for regulators, or other levels of government.
Given that the changes we recommend are effectively a progression from existing provisions, rather than completely new concepts, this should assist in minimising the resource implications and time taken to understand the new provisions. This will hopefully also be assisted by the discussion in this report and in explanatory memoranda accompanying the Bills.
We accordingly recommend that the fourth option be adopted in the model Act.
