The primary duty of care should include specific obligations, namely ensuring so far as is reasonably practicable:
the provision and maintenance of plant and systems of work as are necessary for the work to be performed without risk to the health or safety of any person;
the provision and maintenance of arrangements for the safe use, handling, storage and transport of plant and substances;
each workplace under the control or management of the business operator is maintained in a condition that is safe and without risks to health;
the provision of such information, training, instruction and supervision as necessary to protect all persons from risks to their safety and health from the conduct of the business or undertaking.
In our consultations, we were asked to consider how a particular provision of the WA Act might be provided for in the model Act. Division 4 of Part III of the WA Act provides a duty of care of an employer for the safety of residential premises occupied by an employee in certain circumstances. The duty of care only relates to circumstances where:
the premises are owned by or under the control of the employer; and
the occupancy by the employee is necessary for the purposes of the employment, because other accommodation is not reasonably available in the area.
The duty is only owed to employees (which includes apprentices and trainees) and not to other persons. It does not apply where the occupancy is pursuant to a written agreement containing terms that might reasonably apply to letting the premises to a tenant. It is deliberately limited to remote areas.164
This duty in the WA Act is to provide for circumstances, such as in a remote mining camp or town, where the only accommodation available to an employee is that provided by the employer. The submission by the Western Australian Government165 recommends that a duty of this nature, with the limitations noted, be included in the model Act, but extended to cover requirements for reasonable improvements, in addition to maintenance.
We do not consider that a separate duty of care of this nature would be required to be included in the model Act, as it would be effectively provided for by the primary duty of care owed by a person conducting a business or undertaking.166
The provision of accommodation would be part of the conduct of the business or undertaking. The duty of care owed by the duty holder to workers and others would extend to ensuring so far as is reasonably practicable that the accommodation is safe and without risks to health. We consider that to be appropriate. We do not consider that the duty should be owed only to employees, but should extend to workers (as more broadly defined) and others (e.g. family members residing with the worker).
The model Act should not place a positive duty on a person conducting a business or undertaking to provide accommodation. We do, however, consider that if the duty holder does so, where the accommodation is provided to enable a worker to be located conveniently to undertake work as part of the business of the duty holder, the duty holder should owe a duty of care related to the safety of the accommodation.
We note that the WA Act is deliberately restricted to remote areas, including through reference to certain other state Acts. The scope might need to be varied from time to time and the local references to legislation may change in a particular jurisdiction, or be inappropriate. This kind of detail would be appropriate for regulations.
The occupation of the residential premises would not be during the undertaking of work by the worker and the premises would therefore not be a workplace. The occupation of residential premises would not be covered by the explicit part of the primary duty of care that requires the duty holder to ensure that a workplace under its management or control is without risk to health and safety. It will, therefore, be necessary for a separate, specific duty of care to be included. An example is provided in the next section.
