TABLE 5: Duties for activities relating to plant, substances and structures
Jurisdiction
Activities
Items
Design
Manufacture
Supply
Import
Erect
Notes
Victoria
Plant
X
*
Manufacture includes install, erect and commission plant. Import is covered in regulations.
Substance
X
X
N/A
Structure
X
X
X
X
New South Wales
Plant
X
Import is covered in regulations.
Substance
X
N/A
Structure
X
X
X
X
X
Queensland
Plant
*
Importer has the duties of a supplier.
Substance
X
*
N/A
Structure
X
X
X
X
South Australia
Plant
Substance
X
N/A
Structure
Western Australia
Plant
Substances covered in Dangerous Goods legislation.
Substance
X
X
X
X
N/A
Structure
X
X
X
Tasmania
Plant
Substances covered in Dangerous Goods legislation.
Substance
X
X
X
X
N/A
Structure
Northern Territory
Plant
Substance
N/A
Structure
Australian Capital Territory
Plant
*
Importer to ensure duties for design and manufacture fulfilled before supply.
Substances covered in Dangerous Goods legislation.
Substance
X
X
X
X
N/A
Structure
*
Commonwealth
Plant
X
*
Manufacturer is required to ensure designs are safe. Importer has duties of a manufacturer and supplier.
Substance
X
*
N/A
Structure
X
X
X
X
X
Key: In principal OHS Act, X Not in principal Act, * Special arrangement, see note
Recent OHS reviews have particularly focused on the role of designers in ensuring safety.194 Eliminating hazards at the design stage is also a national priority under the National OHS Strategy.195 Maxwell supported imposing duties for designers of both plant and substances, and that these duties extend to the design of safe packaging for any item that is supplied to or used at a workplace.196
While the Maxwell Review and the OHS reviews in the Territories recommended imposing duties for designers of buildings that are to be used as workplaces, the NSW review did not support such a provision. This was due to concerns that a new class of duty holder would significantly extend the scope of the Act.197
Western Australia and South Australia have extended the duties for designers of buildings and structures to ensure the safety of those who construct, maintain, service or repair the buildings or structures, as well as those who use it as a workplace. The Qld Act places an obligation on a designer of a structure to ensure the design of the structure does not affect the workplace health and safety of persons during the construction and when it has been constructed and is being used for the purpose for which it was designed.198 The Vic Administrative Review supported amending the scope of the duty for designers of buildings or structures to include the construction phase.
The disposal of substances, decommissioning of plant and demolition of structures are activities that are currently not expressly covered in duties of care in principal OHS Acts.
Stakeholder views
The majority of submissions support duties of care for activities which affect health and safety, but there are different views about the extent of such duties.
Some industry associations and design professionals expressed concerns, particularly in relation to the duties of designers of buildings. It was expressed that designers are often unfamiliar with, and have no control over, building processes and that requirements to consult with all participants in the life-cycle would be unrealistic.
Submissions include suggestions that:
‘upstream’ duty holders should be required to follow a risk management process to meet their duty of care, which would obviate the need for ancillary duties in the model Act;
duty holders should have reciprocal duties to assess the suitability of products and obtain information;
clients should have a role in promoting safe construction, maintenance and use; and
duties of care of a designer should be limited to ensuring safe design for the intended purposes.
Submissions from governments supported comprehensive ‘upstream’ duties. Victoria added that it supports the inclusion of a ‘buildability’ duty on designers199, subject to there being evidence to demonstrate it has or will produce improved OHS outcomes in the design and construction of buildings and structures.
Unions and union organisations support duties of care for all parties who influence health and safety outcomes arising from the conduct of work, including designers, manufacturers, suppliers of premises, plant, systems of work and substances, those who hire products used for work, construction clients and developers.
Most submissions support defining the activity of ‘supply’ as occurring every time an item changes hands. Some submissions also noted that the duty in relation to supply should not extend to ‘passive’ financiers, being those persons who own and ‘supply’ plant or substances only for the purposes of providing finance for acquisition of the plant or substances by a client.
A single duty of care provision or separate duties for each?
Whether to combine the duties into a single statutory provision or continue to divide the duties by function is an issue we have been encouraged to consider.
There has been a tendency in recent years for jurisdictions to move towards specifying separate duty holders based on function. It was suggested in some submissions that such an approach can cause confusion for the duty holder as specified, particularly where the person has more than one duty.
In one submission, it was suggested: 200
“… distinctions between different duty holders on the basis of functions only are arbitrary…”
A concern was expressed about specifying separate duties of care based on functions because it could result in specific duties of care not existing for some functions. For example, it has been suggested that the activities of transport and storage of substances have not been caught by the Vic Act owing to a narrowing effect in the wording of the relevant duty for manufacturers of plant or substances.201
The primary duty of care that we propose be placed on all persons conducting a business or undertaking would apply to all of the various functions associated with plant, substances and structures. As a result, a failure to recognise any particular function in a specific duty of care would not mean that function would not be the subject of a duty of care.
Overall, we consider that the benefits of providing for specific duties of care in addition to the primary duty of care outweigh the concern about such specificity. We therefore recommend that the model Act provide for separate duties of care to be owed by specific classes of persons undertaking activities in relation to plant, substances and structures intended for use at work.202
