Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Hansard source

The government opposes both sets of amendments proposed by the opposition in relation to primary duty of care. Consistent with the model act, this bill broadens the duty of care provisions beyond the traditional employer-employee relationship so that all persons who conduct a business or undertaking owe a duty of care to all persons who may be put at risk by the conduct of the business or undertaking. Importantly, this includes workers whose activities in carrying out work are influenced or directed by such persons. The primary duty of care in the bill requires persons conducting a business or undertaking to ensure the health and safety of workers and other persons so far as is reasonably predictable. It is not an absolute requirement—the person conducting the business or undertaking need only do what can be reasonably done in the circumstances to comply with the duty.

The National Review into Model Occupational Health and Safety Laws recommended, and workplace relations ministers agreed and have maintained such agreement, that control should not be a separate element used to limit the extent of the primary duty of care or be expressly included in the definition of what is reasonably practicable, for two key reasons. Firstly, the inclusion of 'control' in the primary duty of care can result in the focus being on whether or not a duty applies rather than on what needs to be done to ensure the health and safety of workers. In other words, a control test might encourage arrangements to avoid control in order to avoid the duty. Secondly, the case law provides that control is relevant in determining what is reasonably practicable in the circumstances. An inability to control relevant matters must necessarily imply that it is either not possible for duty holders to do anything or not reasonable to expect them to do so.

This is not to say that the concept of control is not contained in the bill. The bill includes specific duties for persons with management or control of workplaces and persons with management or control of fixtures, fittings or plant at workplaces. Further, the duties in clause 19(4), which the opposition is seeking to amend to include reference to 'control', only apply where the person conducting the business or undertaking has management, or control, of the accommodation. At best amendments (3) and (4) add nothing to the provision as drafted; at worst, they simply confuse the provision. It is on this basis that the government opposes the amendments.