The fourth option is similar to the third option, but is shorter and is even broader in its terms. Because this option would not make any direct reference to workers, the duty could be mistaken for the current duty owed only to ‘non-employees’ and not to those in employment like arrangements.
We accordingly prefer and recommend that the third option be adopted.
RECOMMENDATION 10
The model Act should provide in a single section a primary duty of care owed by a person conducting a business or undertaking to a broad category of ‘workers’ and others.
As the discussion earlier in this chapter demonstrates, using the employment relationship as the determinant of the application of the primary duties under OHS legislation is no longer valid.
The changing nature of work organisation and relationships means that many who perform work activities do so under the effective direction or influence of someone other than a person employing them under a contract of service. The person carrying out the work:
may be employed by someone who is simply organising the provision of labour (e.g. a labour hire or placement organisation) with the effective control and direction of the work being by another (commonly known as the ‘host employer’ or principal); and
their employer may have limited ability to exercise discretion as to work systems and methods, because of the direction and requirements of another party (as may be found in some transport arrangements with the requirements of the consignor).
We consider that the model Act must provide a broader scope for the primary duty of care, to require those in effective control or influencing the way work is done to protect the health and safety of those carrying out the work.
