The primary duty of care should be supported by codes of practice or guidance material to explain the scope of its operation and what is needed to comply with the duty.
All OHS legislation in Australia places duties of care on specified classes of persons who, in the course of a business or undertaking, undertake activities that may materially affect the health and safety of persons at work. Those classes comprise persons other than the direct employer of the persons undertaking work. The duties of care relate to elements required for work to be undertaken (e.g. plant, substances, the workplace). The activities are undertaken in relation to those elements (e.g. design, manufacture, supply).
The proposed primary duty of care would apply to each of the activities, as they are undertaken as part of the conduct of a business or undertaking. It is, therefore, not necessary to provide further duties of care for specific classes of persons (other than officers, workers and others not conducting a business or undertaking). However, we consider that there are advantages to expressly providing duties for specified classes of persons. Specific provisions will:
clarify that such persons have duties; and
allow for detailed requirements to be provided that would not be appropriate in a provision with broad application, such as the primary duty.
The specific classes of persons who we consider should have duties of care under a model Act include:
Each of these classes of duty holder has the following common elements:
they all relate to the conduct of a business or undertaking; and
they are all subject to the qualifier of reasonably practicable.
There are additional duty holders, namely officers, workers and others at the workplace, whose duties of care are subject to different qualifiers. Those duty holders will be discussed in the next two chapters.
