As noted, the second option is similar to the first option, but contains the duty of care for both employers and self-employed persons in one section. The same problems exist as those identified for the first option and we do not recommend the second option.
The third option
The third option makes it clear that all persons who are carrying out work activities as part of the conduct of the business or undertaking are owed a duty of care by the person who is conducting that business or undertaking.
This broadens who owes a duty and to whom it is owed. It places the duty on anyone who is conducting a business or undertaking, regardless of the capacity in which it is being done. The duty of care is owed to anyone who is performing work in the business or undertaking and to all who may be affected by the conduct of the business or undertaking (e.g. visitors and passers-by, other parties carrying out work activities at the same place).
Option three requires everyone carrying out work activities to be defined in a definition of ‘worker’ to that effect (as, for example, found in s.4 of the NT Act).
While persons coming within the definition of ‘worker’ would be covered by the duty of care referred to in the fourth option without such an explicit reference, the particular reference to ‘workers’ in the third option would make clear that those persons are intended to be covered and that the duty of care was not just the equivalent of the current duties owed to ‘persons other than employees’.147
We consider that option three provides the best basis for achieving health and safety protection into the future, allowing for broad coverage and flexibility. We discuss further in this chapter various considerations concerning, and elements of, the third option. The discussion is relevant to each of the options, but in it we demonstrate the benefits of adopting option three, while explaining the scope and operation of the proposed duty of care.
