The submissions that address the issue of persons in control, such as that from the AiG177 indicate dissatisfaction with current legislative provisions, citing a lack of clarity around who owes the duty, when and to whom it is owed, and what is meant by ‘control’ and by ‘workplace’ (temporary or otherwise).
Many of the submissions from companies provided examples to illustrate issues with control for:
owners and tenants of workspaces;
company management of an employees home workplace arrangements;
company management of ‘vehicle workplaces’; and
contracting arrangements with owners, property managers, commissioner of contractors, contractors.
The Property Council of Australia requested that the model Act not be prescriptive, but that it be supported by extensive examples illustrating the extent of control in these situations.
Section 22 of the WA Act was nominated by ACCI as an appropriately clear and confined description of duties for persons in control of a workplace.
The Victorian Government does not support inclusion of duties for persons in control of items or areas in the model Act, because such duties “could effectively reduce the general duties to delegable duties and create confusion in the workplace about who actually has the duty.”178
Instead the Victorian Government advocates the use of one broad duty for any person who has to any extent, the management or control of a workplace.179 This expression of the duty would “ensure that it covers owners and occupiers and a broad range of contemporary business arrangements such as franchising, contracting out and ‘proprietor’ arrangements.”180
The Queensland Government suggested that its treatment of person in control is similar to that adopted by the courts in that it addresses the critical issue of ‘capacity to control’.181 On this basis the Queensland Government proposes that its approach (i.e. a hierarchy of duties combined with a measure to allow control to pass via contract in certain circumstances) be adopted in the model Act.182
