Some submissions130 express concern that the employer/employee relationship does not provide enough coverage due to the changing nature of working arrangements, and propose that the primary duty of care be more broadly assigned to ‘persons conducting a business or undertaking’ rather than employers.
Other submissions by industry representative bodies do not support such a broad application of the primary duty of care, in that:
onerous duties upon organisers of volunteers could become a deterrent for people taking on such roles.
Government submissions regarding the primary duties are divided between those in favour of casting the primary duty of care based on the employer-employee relationship131 and those who support the broader concepts of a person conducting a business or undertaking and worker. For example, the Victorian Government states:132
“Victoria supports the framing of duties in the model OHS Act around the well understood and accepted terms ‘employee’ (a person employed under a contract of service), ‘independent contractor’, (a person engaged under a contract for services), and ‘other persons’. This would ensure the protection of all persons at a workplace, while acknowledging that employer duties need to reflect both the degree of control and the proximity of the workplace relationship.”
On the other hand, the Queensland Government states that133:
“The employer/employee relationship currently used for assigning duties in OHS legislation is inadequate to capture the complex array of modern working arrangements. To overcome the limitations of the employer/employee approach, the scope and application of the model OHS Act should be based on the concepts of ‘business or undertaking’ and ‘worker’ rather than ‘employer’ and ‘employee’. To do otherwise creates a complex and potentially unjust hierarchy of working relationships, and regulatory incentives for organisations to structure their labour requirements in a way that does not ensure the OHS of all workers.”
A number of submissions suggest that the primary duty of care should continue to be assigned to ‘employers’ as this is a readily understood concept. This view was expressed by ACCI, the ACTU, Unions NSW, and the AiG in their submissions.134 Some of these submissions also add that the duty should be owed to others beyond the employment relationship.135
There is general support from submissions136 for the primary duty to be owed to all persons engaged in work, whether paid or unpaid, or otherwise legitimately at the workplace, in particular: employees, labour hire, contractors, volunteers, outworkers, apprentices and visitors.
Migrant workers and students on placement are also specifically identified as persons who should be owed a duty of care.
