The primary duty of care should not include express reference to control.
Meeting concerns about multiple, concurrent duties of care
The duty of care will apply to each of those involved in the undertaking of work or providing things for work to be undertaken. This will include multi-layered contracting arrangements and labour hire arrangements. It is appropriate that each person involved in such arrangements have a duty of care associated with their involvement.
Concern was expressed in submissions and discussions about possible problems that may arise from the concurrency of duties of care in these circumstances. The issues raised were that:
those who have a lesser or minor part to play in relation to work should not have an obligation when those with more direct influence or control are better placed to manage the risks;
the various parties may each believe that another should take action, and is likely to be the one seen to have the relevant obligations, with the result that no-one takes any action or that insufficient action is taken;
duty holders should only be responsible for the risk control measures that they are best able to carry out; that is, responsibility should be allocated between them. For example, an employer who supplies labour hire personnel would only be responsible for ensuring competent and trained persons were provided to undertake the work and that they were provided with necessary information about it. The ‘host’ would be responsible for the safety of the systems of work, plant, workplace, workplace induction, provision of workplace and task specific information and supervision;
where there are multiple duty holders with obligations over the same subject-matter, there may be a duplication of effort and accordingly a waste of resources that could be better applied to other OHS risk management measures; and
a duty-holder should be able to reasonably rely on the expertise of another person engaged to undertake specialist tasks.
In practice, each party to a work activity or project has a particular role and ability to influence or direct particular matters relevant to health and safety that others may not. We consider that it is therefore appropriate that each owe a duty of care to those who may be affected by their involvement.
The incorporation of the standard of reasonably practicable in the duty of care provides an answer to a number of the concerns listed above. In some circumstances it may be reasonably practicable to rely on:
the expertise of others, particularly where that expertise is not held by the duty holder (recognising that there may be circumstances where it is not reasonable to do so).154
another party to undertake particular activities to ensure health and safety (e.g. providing supervision or welfare facilities) in relation to the work activities with which the duty holder is associated (noting, however, that the duty holder must ensure those activities are undertaken).
Where a duty holder has a very limited involvement or very limited ability to take relevant steps in relation to managing risks, those factors will assist in determining what is reasonably practicable for them in complying with their duty of care.
Proper and effective co-ordination of activities between duty holders can overcome concerns about duplication of effort or no effort being made.
We recommend in this report that the model Act include a provision requiring co-operation and co-ordination of activities between concurrent duty holders.
The general part of the primary duty of care that we recommend refers to the duty holder being required to ensure the health and safety of workers and others. The explicit elements of the primary duty of care similarly require the duty holder to ensure certain outcomes or matters, such as the provision and maintenance of safe systems of work and plant. The primary duty does not require the duty holder to directly undertake the activities necessary for compliance with the duty – these can be done by others, whether at the instigation or direction of the duty holder or otherwise – with the duty holder only being required to ensure that the activities are undertaken and the outcomes achieved. This allows for the co-ordination of activities between duty holders and the reasonable reliance on others to facilitate compliance.
We agree with the view expressed by many who made submissions and commented during consultation, that duties of care should be non-delegable and that duty holders not be entitled to rely on others to fulfil their OHS obligations. Our recommended approach to the duty of care would not permit a delegation of the duty of care. Each duty holder would retain the non-delegable duty of care at all times. Arranging for another person to undertake activities necessary for compliance with the duty of care owed by the duty holder would not be sufficient to meet the duty so far as is reasonably practicable, unless the duty holder took steps necessary to confirm the relevant matters were appropriately attended to, and the required health and safety standards were maintained.
