The primary duty of care should exclude workers and officers to the extent that they are not conducting a business or undertaking in their own right.
Alternatively, guidance material should make clear that the primary duty of care is not owed by such persons.
Meeting the challenges of changing work relationships
In considering the nature and content of duties of care, we have been particularly careful to take into account and accommodate the changing nature of work and employment arrangements.150
This issue is discussed at length earlier in this report. We consider that the duty of care of persons conducting a business or undertaking, as we recommend, would address this issue by overcoming the limitations of the current duties of care that have been identified by stakeholders and expert commentators.
Each of the persons conducting a business or undertaking involved at the various levels of contracting ‘chains’ (such as those commonly found in construction, transport and clothing) would owe duties of care in relation to their activities in the conduct of their business or undertaking, to those who are affected by what they do.
Both the labour on-hirer (direct employer of labour hire personnel) and the host employer would owe the duty of care to the labour hire personnel. The proposed reference to ensuring the provision of the various specific elements of the duty, would allow an appropriate allocation of health and safety protection activities between them, while each would retain the duty of ensuring the relevant matters were attended to.
Arrangements for the provision of labour that are not ‘employment like’ such as bartering, share fishing and share farming, would also be subject to the duty of care, either because the person carrying out work will fall within the broad definition of ‘worker’ or would fall into the residual class of ‘others’.
Some arrangements may not be directly for the provision of labour, but may be related to the conduct of a business or undertaking in which persons work. An example is franchising arrangements. The franchisor will often impose a high level of detailed requirements on the franchisee, that will affect many of the elements of work (e.g. the layout of premises and equipment to be used in fast food franchises). The franchisor may therefore affect the health and safety of the employees of the franchisee and the public – each of whom would owe the duty of care to ‘others’.
The only limiter in the duty should be that labour is provided for the purposes of, or in the course of, the conduct of a business or undertaking. All arrangements of whatever nature that meet that description would be the subject of the duty of care.
Differences in the role and ability of duty holders to direct or influence matters will be accommodated by applying the standard of ‘reasonably practicable’.
The issue of ‘control’
Whether or not control should be a part of a duty of care, to identify the duty holder or the extent of the duty, is a matter of some controversy, with a large number of comments made in submissions and consultation.
The proponents of including control in the duty of care assert that it is necessary to ensure that persons do not have duties and incur liability where they do not have control. Some have stated that it is important to include control to determine the allocation of responsibility between duty holders.151
Those who argue against including control as a determinant of the duty holder or the extent of the duty, assert that existing duties of care that include reference to control encourage a focus on avoidance of control (to avoid the duty) rather than on practical compliance measures. Reference is made to various arrangements put in place by parties to relinquish control, when they are in a better position to exercise control than those to whom they purport to pass it.152
We recommend that the primary duty of care on a person conducting a business or undertaking does not refer to ‘control’ (other than for the limited purpose of the explicit element relating to the safety of the workplace) and does not rely on ‘control’ as a determinant of the duty holder or the extent of the duty. Every person who is conducting a business or undertaking should owe a duty of care to any other person, worker or other, whose health or safety may be put at risk from the conduct of that business or undertaking.
We consider that it is not necessary to use the issue of control to determine who should have a duty or the extent of the duty. The incorporation of the standard of reasonably practicable in the duty will provide for a consideration of control, in relation to compliance.153
If a duty holder does not have control over an activity or a matter relevant to health and safety, then it cannot be reasonably practicable for the duty holder to do anything in relation to it.
If the control able to be exercised by the duty holder is limited, then that limitation will be relevant to determining what is reasonably practicable for that duty holder in the circumstances.
In this way, the duty of care is limited by the issue of control and it need not be stated in the duty.
An advantage to this approach is that any focus on control occurs when considering compliance, at which time the focus is on effective management of risk, rather than on whether a duty of care exists and the parameters of it.
