To ensure that the primary duty of care continues to be responsive to changes in the nature of work and work relationships and arrangements, the duty should not be limited to employment relationships. The duty holder is any person conducting the business or undertaking.
Defining the ‘person who conducts a business or undertaking’ and ‘business’
We note that definitions are to be dealt with in our second report. The definition of the duty holder is, however, critical to an understanding of the scope of the duty. We accordingly consider this at this point.
The commonly used expression ‘person who conducts a business or undertaking’ might not be readily understood by all who are intended to be subject to the duty of care.
Whether or not an alternative expression is used and defined, we consider that it is important that the section containing the duty of care clearly demonstrates that the duty holder’s obligation is not limited to any particular relationships. We also consider that the duty of care should apply to all forms of businesses or undertakings, whether or not they are carried on for gain or reward. This is expressly provided in some current legislation.148
An advantage of the approach taken in the Qld Act is that it makes clear in s.28 those by whom the duty is owed and the breadth of circumstances in which it is owed, without the need to go to the definition section.
We consider the use of the term ‘employer’ in the duty, even where it is defined as broadly as it is in the NT Act, to be less than ideal. Although the definition clearly goes beyond the ordinary meaning of employer, the use of the term ‘employer’ in the section may, without reference to the definition, give an impression of a more restricted scope of the duty than is intended. It is preferable that the key terms that are used are those whose ordinary meaning is the closest to the intended meaning. If a different meaning is to be applied than the ordinary meaning of a term, which should preferably be provided in the section in which the term is used.
The duty provision should make clear (in the section and/or through definitions) that it covers all activities that are undertaken other than those that are clearly undertaken only for private or social reasons. They cover ‘businesses’ in the usually understood sense of commercial, for profit, enterprises and also undertakings which may be not for profit or are more socially oriented in their focus. Government and local government activities are included.
We prefer the content of the NT Act definitions (although not the use of the term ‘employer’), operating together, to the Queensland provision. We prefer that definitions that are critical to the scope of the duty of care be included within the section in which the duty is provided. The primary duty of care provision should therefore include a sub-section along the lines of s.28(3) of the Qld Act, but including the elements of the NT Act definitions of ‘business’.
