Chapter heading 1

RECOMMENDATION 16

The model Act should include a definition for ‘worker’ that allows broad coverage of the primary duty of care. The definition of ‘worker’ should extend beyond the employment relationship to include any person who works, in any capacity, in or as part of the business or undertaking.

The duty should not be limited to ‘a workplace’

1. 
   The current duty of care of a person conducting a business or undertaking is in some jurisdictions limited to the conduct of the undertaking at a workplace of the duty holder (employer).¹⁵⁵ In other jurisdictions that limitation is neither explicit or implicit¹⁵⁶
   
2. 
   Limiting the duty of care to the workplace has led to a focus on what is ‘a workplace of the employer’ and resulted in interpretations that may not be consistent with the meaning that a person reading the duty of care may give to the expression.¹⁵⁷ That is, the expression has been interpreted in a way that goes beyond its ostensible scope.
   
3. 
   We do not consider the limitation to be appropriate or necessary. There may be circumstances in which activities are undertaken as part of the business or undertaking, at the direction of the duty holder, at a place that could not properly be considered to be a workplace of the duty holder.
   
4. 
   The consequences of activities or conduct undertaken for the duty holder may occur beyond the workplace of the duty holder (e.g. goods that were inadequately restrained may fall from a truck on an open highway, or debris from an explosion may land some distance from the workplace). We do not consider such a limitation should be included in the duty. Any concern that the duty may apply inappropriately would be addressed by the application of the standard of reasonably practicable.