Just Who is in Control?

A need for legal clarity within Australian Standards and Codes of Practice

As personal and business life seems to become increasingly dominated by bureaucracy new terms and words enter the lexicon apace providing unnecessary complexity at best and interpretive confusion at worst.

The Australian Chamber of Commerce and Industry (ACCI) has recently noted the insertion of ambiguous phrases in some draft standards and codes of practice such as those covering manual handling, workplace chemicals and construction.

According to ACCI the term ‘person in control’ is a new definition recently appearing without any background or explanation.

In an attempt to provide some clarity, ACCI issued a discussion paper after consultation with its industry network. The need for legal clarity and nationally consistent definitions is uppermost in ACCI’s considerations.

And while it may seem harmless bureau babble, according to the discussion paper the lack of clarity in use or intent of the terminology ‘person in control’ could:

• “Expand the scope of the employer’s role and responsibilities for potential for prosecution under both duties.” The ACCI believes that eliminating this duality will provide clarity in defining an employer’s responsibility.
• The terminology may also result in multi-parties being responsible for the same obligation.
• As control is a traditional concept in the employer/employee relationship, the proposed notion of ‘control’ being used in OH&S landscape where workers, including contractors, invested with particular skills will ‘inherently control’ their work. This new notion introduces a conflict that needs to be addressed.
• There is a need to delimit responsibility where there is no legal or realistic capability to risk manage.
• There is no limit to the various duty holders’ liability and therefore no reasonable chance of compliance.

ACCI recommends that the background and reasons for the introduction of the term ‘person in control’ be explained. ACCI further recommend:

• Duty holders should be identified and liability delineated.
• Employer’s not be responsible to exercise multiple duties simultaneously and potentially be exposed to multiple prosecutions.
• Duties should be finite and should not expose multiple parties to prosecution or individual parties to multiple charges.
• Meeting standards should be a defence.
• Any new notion of control should not conflict with the traditional employer/employee notion of ‘control’.
• There should be consistency across all uses and the adoption of a ‘definitions dictionary’.

“According to ACCI the term ‘person in control’ is a new definition recently appearing without any background or explanation… The need for legal clarity and nationally consistent definitions is uppermost in ACCI’s considerations.”

Two examples of a control definition are provided by ACCI:

1. Factory owned and operated by the employer: In this scenario the employer is the person in control of the workplace and is the person in control of the work undertaken by the employee. However, the employer may not always be in control of specialist work being carried out by a specialist contractor, such as an electrical contractor. Under this circumstance the electrical contractor on site is the person in control of the workplace and is the person in control of the work.
2. Transport Industry: The owner (employer) of the transport company employs drivers to undertake the work of the company. The employer is the person in control of the workplace and is the person in control of the work undertaken by the employee. However, where a contractor is commissioned by the owner of the transport company to provide both the vehicle and the driver to undertake the work, does the owner of the transport company have any duty of care other than not to demand an unreasonable delivery timetable? It would appear reasonable under these circumstances the contractor would be the person in control of the workplace and the person in control of the work. The terminology is a good example of the impact definitions of new phrases or words can have in understanding and adhering to rules, codes of conduct or legislation. The CMPA will watch this matter with interest and keep you up-to-date with information.

Tom McKenny, Roving Reporter

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