We consider that the first option is too limited, as it maintains the link to the employment relationship as a determinant of the duty of care. As discussed in Chapter 4, the changing nature of work arrangements and relationships makes this link no longer sufficient to protect all persons engaged in work activities.
Because the duty would refer to the employment relationship as the determinant of the duty of care, another duty of care would have to be placed on self-employed persons, who are not employers. There may also be circumstances, however, where a person with active control or influence over how work is conducted, may not be an employer or a self-employed person (e.g. a trustee of a family trust undertaking unpaid activities on behalf of and for the benefit of the trust). This leaves a gap that may need to be filled by some extension of the duty.
Current OHS legislation in most jurisdictions places specific duties and obligations (e.g. for safe systems of work, safe plant, supervision) on employers. This is due to the degree of control of the employer over the activities – and therefore the ability of the employer to manage health and safety associated with those matters – and to ensure that the specific, important elements of health and safety protection are clear and enforced.
The first option would not provide the benefits of specifying those detailed requirements, unless it also provided for the continuation of the particular duties of care owed by the employer to employees (and some others in a direct contracting line, e.g. identified by extending the definition of ‘employees’ to include contractors and their employees). This approach does not, however, provide explicitly for the application of the specific elements of the duty of care to those undertaking work who are not employees.
Where the relationship between the person directing the work (‘the principal’) and a person undertaking the work is one that is akin to employment, with the principal having significant influence or direction over the activities, many or all of the specific obligations of the employer may be required to be met by the principal as part of the principal’s duty of care to ‘persons other than their employees’. We consider it is unsatisfactory for the law to require a person to infer these specific requirements, which should explicitly apply in such circumstances.
Accordingly, we do not recommend the first option.
