Chapter heading 1

RECOMMENDATION 23

The model Act should include a specific duty of care owed by a person with management or control of the workplace, fixtures, fittings or plant within it to ensure that the workplace, the means of entering and exiting the workplace, and any fixtures, fittings and plant within the workplace are safe and without risks to health and safety.

What is meant by ‘management or control’?

30. 
    The question of what is meant by ‘management or control’ is central to determining who owes the duty of care and in relation to what.
    
31. 
    The approaches and findings of the courts on the issue of ‘control’ have been inconsistent and resulted in confusion.¹⁸⁵ This inconsistency has to some degree resulted from the many uses to which ‘control’ is put in current OHS legislation.¹⁸⁶
    
32. 
    We consider that the model Act should define ‘management or control’, either in the duty of care provision or in the definition section. We recommend that ‘control’ not be used in the model Act other than in the duty of care placed on a person with management or control of the workplace etc. This should assist in defining this term clearly and in a way that is directed only to this particular use.
    
33. 
    While we will deal with the definition of ‘management or control’ in our second report, we note the Qld Act is an example of providing certainty by defining the term. The Qld Act provides clarity about who has ‘management or control’ by deeming the owner of the workplace etc to be that person.¹⁸⁷ That Act does, however, recognise common commercial arrangements for long-term, exclusive occupation and use of a workplace etc, providing that a person who has effective and sustained control over the workplace etc pursuant to a lease, contract or other arrangement is the duty holder.¹⁸⁸