We have considered the duties of care in current Australian and overseas OHS legislation, as well as the views expressed in submissions, during consultations and in the literature. We have thereby identified four options for the structure of the duties of care in a model Act.
Option one – Allocate responsibilities to specific duty holders as currently identified in legislation in most jurisdictions in Australia. The provision would operate so that:
the primary duty holder would be the employer (as traditionally defined), with
detailed requirements specified as part of a duty of care owed by the employer to the employees of that employer;
a more generally expressed duty owed to persons other than employees;
the beneficiaries of the employer’s duties to be as traditionally defined; and
with no deeming of employment in contracting arrangements; and
other specific duty holders are as currently identified (e.g. designers, manufacturers, suppliers, self-employed persons); and
a duty is owed by employees to take reasonable care for the health or safety of themselves and others affected by the acts or omissions of the employee at work; and
officers of a corporation may be liable for offences committed by the corporation that are attributable to specified conduct or omissions of the officer; and
the geographic limits of the workplace limit many duties.82
Option two – As for the first option, but with various deeming provisions, e.g. contractors and their employees deemed to be employees of the employer for the purposes of the duties of care owed by the employer, as currently provided in some states.83
Option three – As with the first two options, but with further specific duty holders and duties added to take into account changes in work and its organisation.84
Option four – Adopt an approach whereby:
the primary duty holder is identified as the person conducting a business or undertaking, whether as an employer, self-employed person, principal contractor or otherwise; and
the beneficiaries of the duty of care owed by the primary duty holder are:
‘workers’ within an expanded definition that is not limited to a contract of employment or deeming through direct engagement by contracting; and
others who may be put at a risk to their health and safety by the conduct of the business or undertaking; and
other duty holders are workers, officers, those specified in point 2 of the first option, with duties of care also imposed on volunteers and visitors; and
the primary focus of the duties of care is the undertaking of the work and what contributes to its being done, rather than the geographic limits of a workplace, with the exception of duties necessarily relating to the workplace, such as the safe condition of the workplace, fixtures, fittings or plant within it.85
