Chapter 4: Principles, Common Features and Structure
Reference
1
The model Act should contain a set of principles including, amongst other things, the following to guide duty holders, regulators and the courts on the interpretation and application of the duties of care:
a) Duties of care are imposed on those who are involved in, materially affect, or are materially affected by, the performance of work.
b) All duty holders (other than workers, officers and others at the workplace) must eliminate or reduce hazards or risks so far as is reasonably practicable.
c) Workers and other individuals at the workplace must co-operate with persons conducting businesses or undertakings at the workplace, to assist in achievement of the objective of elimination or reduction of hazards or risks and must take reasonable care for themselves and others.
d) Officers must proactively take steps to ensure the objective of elimination or reduction of hazards or risks is achieved within their organisation.
Note: Recommendations relating to principles other than those relating to the interpretation of the duties of care will be dealt with in our second report.
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2
The model Act should include provisions explicitly providing for the following common features applicable to all duties of care:
Duties of care are non-delegable.
A person can have more than one duty by virtue of being in more than one class of duty holder and no duty restricts another.
More than one person may concurrently have the same duty.
Each duty holder must comply with an applicable duty to the required standard (reasonably practicable, due diligence or reasonable care) notwithstanding that another duty holder has the same duty.
Each duty holder must comply with an applicable duty to the extent to which the duty holder has control over relevant matters, or would have had control if not for an agreement or arrangement purporting to limit or remove that control.
Each duty holder must consult, and co-operate and co-ordinate activities, with all persons having a duty in relation to the same matter.
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3
The model Act should adopt an approach whereby:
the duty of care provisions together impose duties on all persons who by their conduct may cause, or contribute in a specified way, to risks to the health or safety of any person from the conduct of a business or undertaking;
the duties of care are focused on the undertaking of work and activities that contribute to its being done, and are not limited to the workplace (except where a duty relates specifically to the workplace or things within it, or the limitation is needed to place reasonable limits on the duty – e.g. the duty of care of a worker or visitor);
there is a primary (general) duty of care imposed on the person conducting a business or undertaking (whether as an employer, self-employed person, principal contractor or otherwise) for the health and safety of:
‘workers’ within an expanded definition; and
others who may be put at a risk to their health or safety by the conduct of the business or undertaking; and
even though many of the following persons will be covered by the primary duty of care of a person conducting a business or undertaking, for certainty and to provide guidance through more detailed requirements, duties of care should be imposed on specified classes of duty holders who are involved in the undertaking of work or activities that contribute to it being done, or are present when work is being done. These are:
those with management or control of workplace areas;
