Chapter heading 1

RECOMMENDATION 18

To avoid the exclusion or limitation of the primary duty of care, the model Act should specifically provide that the duty should apply without limitation, notwithstanding anything provided elsewhere in the model Act (that is, more specific duties that may also apply in the circumstances should not exclude or limit the primary duty of care).

The duty to provide a safe and healthy working environment

1. 
   Some OHS legislation in Australia commonly provides for a general duty of an employer to provide and maintain a safe and healthy working environment, with more detailed and specific elements of the duty provided in a separate sub-section.¹⁶¹
   
2. 
   The reference to a ‘working environment’ is often misunderstood as being limited to the physical environment in which the work is undertaken, subject to extension to process matters (systems of work, instructions etc) provided in the subsequent sub-section. This means that the duty is sometimes (incorrectly) thought to be limited to the specific element noted.
   
3. 
   A ‘working environment’ includes all of the circumstances in which work is undertaken. This may include elements that are not specifically identified but influence the safety of the work being undertaken, such as:
   

• 
  remuneration structures (performance based remuneration may drive unsafe behaviour);
  
• 
  organisational structures and accountabilities (which may positively or adversely impact the effectiveness of safety measures, or may impact the ability of individuals to affect health and safety);
  
• 
  employment and business processes (which may give rise to or lessen the prospect of psychological harm); and
  
• 
  third party arrangements (contracts with suppliers or contractors may impact the ability to take measures to control health and safety risks).
  

112. 
     Each of these matters will be covered by the broad duty of care that we recommend. By casting the duty of care as we have recommended, the term ‘working environment’ would be redundant.
     

Explicit elements of the duty of care

1. 
   The duty of care of an employer, in each of the jurisdictions that impose a duty of care on the employer, has various specific obligations associated with it.¹⁶² These are generally consistent across the jurisdictions.¹⁶³
   
2. 
   Each of the specific elements is well known and understood and is appropriate for inclusion in the primary duty of care that we recommend be included in the model Act. Each relates to an aspect of what is required or provided for work to be undertaken and each is usually provided by, or at the direction of, or is under the control of, the person in whose business the work is being undertaken.
   
3. 
   While we propose that the primary duty of care include each of these elements, normally required to be met by an employer, there would not be any reference to an ‘employer’ in the primary duty of care. These elements would be required to be met by any person conducting a business or undertaking.