Chapter heading 1

RECOMMENDATION 15

The primary duty of care should be sufficiently broad so as to apply to all persons conducting a business or undertaking, even where they are doing so as part of, or together with, another business or undertaking.

Defining the persons to whom the duty of care is owed

89. 
    The definition of ‘worker’, the different contexts in which it may be used, and whether it may be different when used in different contexts, will be dealt with in the second report. The definition of the person to whom the primary duty is owed is, however, critical to understanding the scope of the duty. Accordingly we must now consider this point.
    
90. 
    We consider that the definition of ‘worker’ must be clear and sufficiently broad in application to meet the intended scope of the primary duty. A good example is provided by s.4 of the NT Act:
    

worker means:

1. 
   any person who works in the employer’s business:
   
   1. 
      as an employee; or
      
   2. 
      as an apprentice or person undergoing on-the-job training; or
      
   3. 
      as a contractor or sub-contractor; or
      
   4. 
      as an employee of a contractor or sub-contractor; or
      
   5. 
      as an employee of a labour hire company who has been assigned to work for the employer; or
      
   6. 
      as a volunteer; or
      
   7. 
      in any other capacity;
      
2. 
   if the employer is a natural person who works in the employer’s business – the employer him/herself.
   

1. 
   The use of the term ‘employer’ in this definition is subject to the extended definition in s.4 of the NT Act. This would not be necessary in the model Act because the primary duty we propose would not use the expression ‘employer’. The definition of ‘worker’ would instead refer to a person who works in a business or undertaking; and the other references to ‘employer’ instead be to ‘the person conducting the business or undertaking’.
   
2. 
   A definition of ‘worker’ should also include other specific classes, such as those persons who provide their labour as part of bartering, share fishing, share farming or other arrangements in the course of conduct of a business or undertaking by another person. Doubts exist about whether existing OHS Acts adequately cater for such arrangements.
   
3. 
   The beneficiaries of the duty of care, in addition to ‘workers’, are ‘others’. This clearly includes all other persons and no definition is required.