Chapter heading 1

119 See s.20(2) of the Vic Act; s.3 of the WA Act; s.5 of the NT Act; s.15 of the ACT Act; note also that a definition was contained in the draft NSW Bill considered by Stein.

120 See Edwards v National Coal Board [1949] 1 KB 704; R v Associated Octel Limited [1994] 4 All ER 1051; Slivak v Lurgi (Australia) Pty Ltd [2001] ALR 585; Holmes v RE Spence & Co Pty Ltd [1992] 5 VIR 119; R v Australian Char Pty Ltd [1999] 3 VR 834; R v ACR Roofing Pty Ltd [2004] 11 VR 187; Reilly v Devcon Australia Pty Ltd [2008] WASCA 84); WorkCover Authority of NSW v Cleary Bros (Bombo) Pty Ltd [2001] 110 IR 182).

121 See s.20(2) of the Vic Act.

122 See R v Associated Octel Limited [1994] 4 All ER 1051; Slivak v Lurgi (Australia) Pty Ltd [2001] ALR 585; R v ACR Roofing Pty Ltd [2004] 11 VR 187; Reilly v Devcon Australia Pty Ltd [2008] WASCA 84).

123 An example of how this may be done is the WorkSafe Victoria document ‘How WorkSafe applies the law in relation to reasonably practicable’.

124 For example in R v Associated Octel Limited [1994] 4 All ER 1051 at 1063 it was found that “…The question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work…” While in R v ACR Roofing Pty Ltd [2004] 11 VR 187 at 214] it was stated that “…it could hardly be said that ACR had no control over the siting of the crane or the method of lifting or that it was practicable for ACR to do much if anything about either of those matters…”

125 See s.23(1) of the Qld Act.

126 Vic, WA, SA and Cwth Acts.

127 Under the NT Act the term ‘worker’ is broadly defined to include contractors, casual workers, outworkers, labour hire workers and volunteers.

128 Like the NT Act, the Qld Act utilises the term ‘worker’ but it is more narrowly defined and specifically excludes persons engaged under a contract for services (for example contractors, outworkers and labour hire).

129 The ACT Act includes a broad definition of ‘worker’ but this is not used in the primary duty of care. Rather, under s.21 of the ACT Act the primary duty holder has a duty to ensure work safety: “work safety, of people, means the health, safety and wellbeing of people in relation to work.” (see s.7) The specific duties of care arising under the primary duty of care are then owed to ‘person’s’ or ‘people’ at the ‘business or undertaking’.

130 For example TWU, Submission No.227; CGU Insurance, Submission No. 80; R. Johnstone, L. Bluff & M. Quinlan, Submission No.55; QLD Government, Submission No.32; SA Government, Submission No.138.

131 Victorian Government, Submission No.139, and Western Australian Government, Submission No.112.

132 Victorian Government, Submission No.139, p.27.

133 Queensland Government, Submission No.32, p.2.

134 ACCI, Submission No. 136, p.24; ACTU, Submission No. 214, p.25; Unions NSW Submission No. 182 p.29; AiG, Submission No. 182, p.25

135 ACCI, Submission No. 136, p.25; ACTU, Submission No. 214, p.23.;Unions NSW Submission No. 182 p.29; AiG, Submission No. 182, p.29

136 ACCI, Submission No. 136, p.25; ACTU, Submission No. 214, p.25; Business Council of Australia Submissions No. 56 p.2:Unions NSW Submission No. 182 p29; AiG Submission No. 182, p.29

137 Recent amendments to the NT Act removed the specific provisions from consideration when applying the general duty of an employer and made them separate provisions.

138 See s.14 of the ACT Act.

139 AiG Submission No. 182, p28

140 Unions NSW Submission 108, p25

141 ACTU, Submission No.214 p25-6; AMWU, Submission No. 217; AiG, Submission No. 182, p29.

142 This would in effect be combining ss.21 & 23 of the Vic Act; ss.19 & 21(2) of the WA Act; s.9(1)(2) and (3) of the Tas Act; ss.19 & 22(2) of the SA Act; s.8 of the NSW Act; ss.16 & 17 of the Cwth Act.

143 Examples of this approach are s.24 of the Vic Act; s.21(2) of the WA Act; s.13 of the Tas Act; s.22 of the SA Act; s.9 of the NSW Act.

144 This would in effect be combining but modifying ss.21, 23 & 24 of the Vic Act; ss.8 & 9 of the NSW Act; ss.19 & 22(2) of the SA Act; ss.19 & 21(2) of the WA Act; ss.9 & 13 of the Tas Act.

145 This is similar to ss.28 & 29 of the Qld Act and s.55 of the NT Act. The definitions of ‘employer’ and ‘worker’ in s.4 of the NT Act provide the broad coverage of s.55 of that Act.

146 The approach taken in s.21 of the new ACT Act is similar to this, although it does not refer to the beneficiaries of the duty of care in this way.

147 For examples of the current duties of care owed to ‘persons other than employees’ see s.9 of the NSW Act; ss.23 & 24 of the Vic Act; s.21(2) of the WA Act; s.9(3) of the Tas Act; s.22(2) of the SA Act; s.17 of the Cwth Act.

148 See s.28(3) of the Qld Act, the definition of ‘business’ in s.4 of the NT Act, and s.11 of the new ACT Act (which is supported by examples provided in s.21(1)).

149 For example, s.5 of the Interpretation Act 1984 (WA), which provides that ‘person’ includes a public body, company or association or body of persons, corporate or unincorporate; s.4 of the Acts Interpretation Act 1915 (SA) which provides that ‘person’ or ‘party’ includes a body corporate; s.38 of the Interpretation of Legislation Act 1984 (Vic); s.41 of the Acts Interpretation Act 1931 (Tas) provides that ‘person’ and ‘party’ respectively shall include any body of persons, corporate or unincorporate, other than the Crown.

150 Clause 11(c) of the terms of reference expressly require us to take this into account.

151 For example, ACCI, Submission No.136; Master Builders Association (MBA), Submission No.9; Minerals Council of Australia (MCA), Submission No.201.

152 For example, SA Government, Submission No.138; ACTU, Submission No.214.

153 See R v Associated Octel Limited [1994] 4 All ER 1051; Slivak v Lurgi (Australia) Pty Ltd [2001] ALR 585; R v ACR Roofing Pty Ltd [2004] 11 VR 187; Reilly v Devcon Australia Pty Ltd [2008] WASCA 84).

154 See, for example, R v ACR Roofing Pty Ltd (unreported, Supreme Court of Victoria, 1 December 2004); Reilly v Devcon Australia Pty Ltd [2008] WASCA 84).

155 See, for example, s.8(2) & 9 of the NSW Act.

156 See, for example, Whittaker v Delmina Pty Ltd (unreported, Supreme Court of Victoria, 18 December 1998).

157 See for example the case of Workcover Authority of NSW (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] (NSWIRComm 263) in which the car-park of an RSL Club in which a contractor was shot was found to be a workplace of the defendant who engaged the contractor.

158 See, for example, the definition of ‘practicable’ in s.3 of the WA Act which refers to the ‘state of knowledge about’ various matters; and s.20(2) of the Vic Act which refers to ‘what the person concerned knows, or ought reasonably to know’. See slso, for example, the discussion in the cases of Slivak v Lurgi (Australia) Pty Ltd [2001] ALR 585; Chugg v Pacific Dunlop Ltd (unreported, Supreme Court of Victoria, 5 May 1989) and Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165.

159 See, for example, Chugg v Pacific Dunlop Ltd (unreported, Supreme Court of Victoria, 5 May 1989); Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165; Inspector Malone v Delta Electricity [2003] NSWIRComm 212; Workcover Authority of NSW v Cleary Bros (Bombo) Pty Ltd [2001] 110 IR 182.

160 Section 25 of the Qld Act and s.16 of the new ACT Act provide examples of a provision of this kind.

161 Examples are s.19 of the WA Act and s.21 of the Vic Act.

162 Section 19 of the SA Act; s.9 of the NSW Act; s.21(2) of the Vic Act; s.9 of the Tas Act; s.19 of the WA Act; s.16 of the Cwth Act

163 Section 29 of the Qld Act has similar provisions applying to an ‘employer’ conducting a business or undertaking, although it does not include all of the elements applying to an employer in other jurisdictions; the NT Act takes a different approach with an ‘employer’ being required to apply a risk management approach.

164 See the definition of ‘residential premises’ in s.23G(1)(a).

165 Western Australian Government, Submission No.112, p.15.

166 This situation may not, however, be the subject of the proposed duty of care owed by a person with the management or control of a workplace, as the residence may not be a workplace.

167 In our second report we will deal with the issue of the role of hazard and risk management. We will consider whether this section should also include provisions relating to this matter as provided in s.55(2) of the NT Act. In our second report we will also deal with other duties and obligations of the primary duty holder, including in relation to consultation, engagement or appointment of a suitably competent person to advise in relation to OHS and other obligations ordinarily imposed upon the employer.

168 See Fair Work Act 1994 (SA);

Occupational Health and Safety Amendment (Long Distance Truck Driver Fatigue) Regulation 2005 (NSW); and

P James et al, ‘Regulating supply chains for safety and health’, Industrial Law Journal, 36(2): pp.163-187, 2007; and

M Rawling, ‘A generic model of regulating supply chain outsourcing’ in C Arup et al (A. Eds) Labour Law and Labour Market Regulation, Federation Press, Sydney, pp.420-441, 2006.

169 See Occupational Health and Safety (Clothing Factory Registration) Regulation 2001; and

I Nossar et al, ‘Regulating supply-chains to address the occupational health and safety problems associated with precarious employment: The case of home-based clothing workers in Australia’, Australian Journal of Labour Law, 17(2), pp.1-24, 2004.

170 The Commonwealth does not include any duties for persons in control or occupier/owners. Instead, the employer has a duty to ensure any workplace under the employers control is safe and without risks to health. This approach is consistent with the limited coverage of the Cwth Act.

171 See ss.15B, a5C & 30 of the Qld Act.

172 This applies in NSW, Qld, WA, and Tas. Note that where the duty holder is an employer, the employees of the duty holder are owed an equivalent duty of care, imposed on the duty holder as an employer.

173 See s.10(3)(b) of the NSW Act and s.30(2) of the Qld Act.

174 See s.10(4)(b) of the NSW Act, and s.22(2) of the WA Act.

175 See ss.15B & 15C of the Qld Act.

176 NSW, Qld and Tas.

177 AiG, Submission No.182.

178 Victorian Government, Submission No.139, p.35

179 As per s.26 of the Vic Act.

180 Victorian Government, Submission No.139, p.35

181 Queensland Government, Submission No.32, p.17

182 ibid

183 See s.34D of the Qld Act.

184 Creighton, B., Rozen, P., Occupational Health and Safety Law In Victoria, The Federation Press, NSW, 2007.

185 This issue was discussed by B Sherriff in “The concept of control in determining OHS responsibilities: A need for clarity”, 2007, 35 ABLR 298.

186 Control is used variously to determine the scope of operation of the legislation, the identity of the duty holder, the subject matter of the duty, the limits of the duty, exclusions and defences.

187 See ss.15B and 15C of the Qld Act.

188 See ss.15B(2) and 15C(2) of the Qld Act.

189 See s.26 of the Vic Act.

190 For example see s.3(a) of the SA Act; s.2(1)(b) of the Vic Act; s.6(1)(b) of the ACT Act.

191 SA, WA, Tasmania and the NT apply duties collectively.

192 Maxwell Review, p. 187, para 839

193 The NSW, Tas and the NT Acts do not require any party to test plant or substances.

194 Maxwell Review, NSW WorkCover Review, NT Review and the ACT Review

195 National OHS Strategy 2002-2012, p.9

196 Maxwell Review, pp. 187-191

197 WorkCover NSW Report, p. 46

198 See s.34B of the Qld Act.

199 As recommended by the Vic Administrative Review.

200 R Johnstone, L Bluff & M Quinlan, Submission No.55, p.16

201 B. Creighton, P.Rozen, Occupational Health and Safety Law in Victoria , Federation Press, 2007, p.742

202 The Maxwell Review (p.188, para 843) recommended a wide definition of ‘use’, which we will consider in our second report.

203 Such as N Gunningham, R Johnstone and P Burritt, Safe Design Project: Review of Occupational Health and Safety Legal Requirements for Designers, Manufacturers, Suppliers, Importers and Other Relevant Obligation Bears - A report for the National Occupational Health Safety Commission, AGPS Canberra, 2000; McGregor Tan Research, NOHSC Safe Design Project - Market Research, AGPS Canberra, 2000; and NOHSC, Work-related fatalities associated with design issues involving machinery and fixed plant in Australia, 1989to 1992, AGPS Canberra, 2000.

204 ASCC, Guidance on the Principles of Safe Design for Work, AGPS, Canberra, 2006

205 ibid

206 Maxwell Review, p.188, para 844

207 Maxwell Review, (op.cit) para 846

208 WorkCover Authority of NSW v Arbor Products International (Aust) Pty Ltd (2001) 105 IR 81

209 See s.23 of the WA Act

210 Towards a Regulatory Regime for Safe Design (2002), National Research Centre for OSH Regulation, Regulatory Institutions Network

211 Inspector Ruth Buggy v Lyco Industries Pty Ltd [2005] NSWIRComm 298; although Wright, J. in the earlier case of Inspector Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 left open the issue whether supply could occur when title passed, some time after physical delivery.

212 See the definitions of supply found in s.3(1) of the WA Act; s.5(1) of the Vic Act; and in the dictionary at the end of the ACT Act.

213 Australian Finance Conference & Australian Equipment Lessors Association, Submission No.47, pp.6-7.

214 See s.11(2)(f) of the NSW Act; s.30(2) of the Vic Act.

215 See s.14B of the Tas Act.

216 For example see s.55 of the NT Act; s.21 of the ACT Act.

217 For example see ss.23 & 24 of the Vic Act.

218 For example see s.8(2) of the NSW Act.

219 Definitions will be addressed in our second report.

220 See s.61 of the SA Act.

221 See s.59C of the SA Act.

222 See s.10 of the Tas Act.

223 See .s.11 of the Tas Act.

224 See s.53 of the Tas Act.

225 See s.5 of the Vic Act, s.4 of the SA Act ,and s.4 of the NT Act.

226 See s.144 and s.145 of the Vic Act.

227 See s.26 of the NSW Act, s.167 of the Qld Act and s.53 of the Tas Act.

228 See s.144 of the Vic Act, s.55 of the WA Act, s.59C of the SA Act and s.86 of the NT Act.

229 See s.55 of the WA Act.

230 See s.144 of the Vic Act, s.86 of the NT Act, and s.59C of the SA Act.

231 Maxwell Report, p.171

232 Ibid, p.172-173

233 ACT Review, p.47

234 See s.219 of the ACT Act

235 Maxwell Report, p.174

236 Stein Inquiry, p.52

237 ACCI, Submission No. 136, p.28

238 ACTU, Submission No. 214, pp. 27-8

239 Australian Institute of Company Directors, Submission N.o 187, p.15, Business Council of Australia Submissions No. 56, p4

240;Australian Institute of Company Directors, Submission No 187, p.15.

241 ACTU, Submission No. 214, p.71

242 Maxwell Review, (761-763).

243 B. Fisse, and J Braithwaite, Corporations, Crime and Responsibility, Cambridge University Press, Cambridge, 1993.

244 McCallum, Professor R. et al (op cit).

245 See s.20(2) of the NSW Act, s.25(1)(c) of the Vic Act, s.20(3) of the WA Act, s.32(b) of the NT Act, s.27(2)(a) of the ACT Act and s.21(1)(b) of the Commonwealth Act Please note that the NT Act expresses this by requiring “A worker to be open to suggestions made by the employer on health and safety issues”

246 See s.36(a) of the QLD Act, s20(2)(a) of the WA Act, s.21(1b)(b) of the SA Act, s.16(b) of the Tas Act, s.59 (1)(b) of the NT Act and s.27 (2)(b) of the ACT Act..

247 See s.36(b) of the Qld Act, s.20(2)(b) of the WA Act, s.21(1b)(a) of the SA Act, 2.59(1)(c) of the NT Act, s.27 of the ACT Act and s.21(1)(c) of the Commonwealth Act.

248 See s.21 of the NSW Act, s.25(2) of the Vic Act, s.36(c) of the QLD Act, s.20(2)(c) of the WA Act, s.59(2)(a) of the NT Act.

249 See s.20(2)(d) of the WA Act, s.59(1)(d) of the NT Act and s.27(2)(d) of the ACT Act.

250See s.21(1b)(d) of the SA Act.

251 See s.36 of the QLD Act

252 See s.19 and s.20 of the Tas Act

253 See s.21 of the Commonwealth Act.

254 See s.37 of the Qld Act.

255 NSW WorkCover Review, p. 39.

256 Stein Inquiry, p. 109, para 12.7

257 I.e. R. Johnstone, L. Bluff, M. Quinlan; Submission No.55. p8 .

258 S.27(2)(d) of the ACT Act includes a duty to report any risk, illness and injury, connected with work, that the worker is aware of. We will examine reporting requirements for all persons in our second report and consider what provision should be made in this respect.

259 See, for example, R v Shields [1981] VR 717; R v Hodgetts and Jackson [1990] 1 Qd R 456

260 Cwth Act, Schedule 2: Civil and Criminal Proceedings – Clauses 18 and 19 of the Schedule make breaches offences if specified criteria are met (the breach causes death or serious bodily harm or the breach involves exposure to a substantial risk of such a consequence and the duty holder was reckless or negligent as to that consequence).

261 Department of Education, Employment and Workplace Relations, Submission No.57, p.7.

262Health and Safety (Offences) Act 2008 (UK)

263 ACTU, Submission No.214, p.52.

264 ACCI, Submission No.135, p.60.

265 South Australian Government, Submission No.138, p.53.

266 Such an approach is consistent with ILO Convention No.155, Occupational Safety and Health Convention, 1981 – in particular, see Articles 9 and 10.

267 R. Johnstone, ‘Rethinking OHS enforcement’ in E Bluff, N. Gunningham, R. Johnstone, (eds),