Submissions varied in relation to what the primary duties of care should include.
The majority of employer organisations and industry representatives reference current employer duties in the Vic, SA and WA Acts as the most appropriate models on which to base employers’ duties, with the Vic Act being the most preferred model139. There was some support for duties in the NSW Act140.
Other groups, including governments, unions and union organisations, present a variety of aspects for consideration as primary duties. The ACTU, Australian Manufacturing Workers Union (AMWU), and AiG141 in particular provide extensive lists of preferred duties. The most common aspects of ‘employers’ duties proposed include duties to:
provide a safe work environment;
provide information, instruction and training;
consult with workers and others;
provide supervision;
report injuries/illnesses and notify dangerous incidents
monitor working conditions; and
provide facilities for the welfare of employees.
Some submissions also include suggestions that the:
employer’s duty of care should be expressed in risk management terms;
employer’s duty of care should extend to providing safe and secure accommodation where it is provided in connection with employment where employees have no reasonable alternative accommodation and the accommodation is essential to the performance of the work;
outcomes of investigations by employers into hazards and injuries that have been reported by employees, should be reported back to employees; and
employers’ should be required to train management in OHS consistent with their responsibilities.
A primary duty on those who conduct a business or undertaking
In Chapter 4, we considered the optimal structure and content, at a high level, of the duties of care. We recommend that the model Act place the primary duty of care on those who conduct a business or undertaking to all persons who may be put at risk from the conduct of the business or undertaking. The objective of doing so is to move away from the emphasis on the employment relationship as the determiner of the primary duty, to provide greater health and safety protection for all persons involved in, or affected by, work activity.
