We have recommended above that the qualifier of ‘reasonably practicable’ should be included in the primary duty of care which would and placed on a person conducting a business or undertaking. Consistent with that approach, we recommend that the duty of care of a person with management or control of a workplace should also be qualified by what is reasonably practicable.
RECOMMENDATION 27
The duty of care of a person with management or control of a workplace etc should be qualified by the standard of reasonably practicable.
Domestic premises may be a workplace if the traditional definitions (place where work is done) are applied. This may occur where a person conducts work at home as part of the business of another (as a worker), or where the person conducts a business or undertaking at the persons home. It may also be a workplace for a short time while a tradesperson undertakes work at or on the premises (e.g. a plumber), or where services are provided to persons within the premises (e.g. home help, child-minding).
A question arises whether the person with the management or control of the domestic premises should have the duty of care of a person with the management or control of a workplace.
We note that, in many of these cases, the person with the management or control of the domestic premises will not be conducting a business or undertaking and would not be subject to the primary duty of care. Whether the duty owed in relation to a workplace applies may determine whether that person has any duty of care under the model Act.
Different approaches are taken to this issue in different jurisdictions. The current provisions for persons in control of a workplace in the Vic Act189 operate without limitation or exclusion to domestic premises (although there is some exclusion that applies under the regulations). Continuation of the existing NSW position, that common areas of strata titled residential premises be excluded from such provisions, was recommended by the NSW WorkCover Review. The Qld provision for workplace areas operates to exclude only those domestic premises occupied by the person with management or control for a workplace area.
Some submissions requested that a provision for persons with management or control of a workplace not extend to domestic premises.
The scope of the primary duty of care would ensure that where the domestic premises are used as part of the conduct of a business or undertaking, the person with management or control would have a duty of care in relation to the premises anyway.
We recommend that domestic premises be excluded from the definition of a workplace for the purposes of the duty of care of the person with management or control. We recommend that the regulation making power permit the making of regulations to include specific premises or classes of premises.
