Who owes the Primary Duty of Care and to whom? – Current Arrangements
All OHS Acts assign the primary duty of care to employers. Duties are also assigned to self-employed (except in the Commonwealth). However, in Qld the primary duty of care is more broadly assigned to ‘persons who conduct a business or undertaking, whether as employers, self-employed persons or otherwise.’125
The new ACT Act also follows the Qld model of applying the primary duty to ‘persons who conduct a business or undertaking’.
Although the NT Act uses the term employer in assigning the primary duty of care, the term is broadly defined as ‘a person who carries on a business’ (whether or not workers engaged in the business are or include employees).
The primary duty of care is typically owed to employees (i.e. persons engaged under a contract of service). Some OHS Acts also deem certain other workers to be employees.126
However, the primary duty of care is owed to an extended group of persons under the NT Act through the use of the term ‘worker’127, and under the Qld Act128 through application of the primary duty of care to ‘workers and others’. The ACT Act applies the primary duty of care to persons in relation to work.129
To provide protection to a broader class of workers as well as to members of the public, the OHS Acts in Vic, NSW, South Australia (SA), WA and Tasmania (Tas) include a separate duty for both employers and self-employed persons to ‘others’.
Table 4 below provides an overview of the primary duties of care in OHS Acts across Australia.
Recent OHS reviews have recognised the need to address changes in the modern labour market by extending protection to persons other than traditional employees. Both the Maxwell Review and the ACT Review recommended the use of the term ‘worker’ accompanied by a broad definition. The expansion of the primary duty of care provisions to include clothing outworkers was advocated by the Stein Inquiry.
