One of the key terms of reference of the recent Australian National Review into Model Occupational Health and Safety Laws was to take into account the changing nature of work and employment arrangements in proposing a model national occupational health and safety (OHS) Act. Chapter 2 of the Review Panel’s First Report outlines at length the significant changes that have taken place in the Australian labour market and in the nature and organisation of work in the past 20 years, and in particular the growth in casual, part-time and temporary work, and the increased use of labour hire, outsourcing, franchising, migrant workers and home workers. The Report notes that there is now significant evidence showing that these new forms of work have an adverse impact on OHS, and that regulatory frameworks are having difficulty addressing these issues. Further, changes in work relationships and in industry structure will continually lead to changes in the kinds of hazards and risks at work.In its First Report, the Review Panel recommended that a model Australian OHS Act include a ‘primary’ general duty, imposed upon a ‘person conducting a business or an undertaking’, owed to ‘workers’ broadly defined and ‘others’, to ensure that workers and others ‘are not exposed to a risk to their health and safety arising from the conduct of the undertaking’.This paper examines this proposed ‘primary’ duty of care. It begins by outlining the changing nature of work in Australia in the past few decades, and the general duties in the Australian OHS statutes which have sought to regulate the various types of precarious and contingent workers. The paper then carefully examines the proposed ‘primary’ duty of care and evaluates the extent to which it can address the kinds of OHS issues that have arisen from precarious and contingent work. It also examines the kinds of regulations and codes of practice that will need to be developed to ensure that the ‘primary’ duty of care protects contingent and precarious workers from the range of OHS hazards they encounter.
Johnstone, Richard, 2010, WP 70 - Regulating Occupational Health and Safety for contingent and precarious workers: The proposed Australian ‘primary’ duty of care, National Research Centre for OHS Regulation, Canberra