Introduction
Australian employment service providers play a vital role in engendering a sense of hope in creating practical opportunities to improve lives for everyday Australians searching for work. Yet frontline staff face unpredictable and sometimes challenging behaviours from jobseekers. The job of employment service is not an easy task. Risks to health, safety and wellbeing are an everyday event. This raises a simple but pressing question: who bears legal liability for the risk, government or providers?
In this article, it is argued that while the Australian Government would prefer otherwise, the duty of care and liability to protect frontline employment service staff from harm is arguably shared between providers and government. We argue the Australian Government’s design and control over the system of work to deliver the employment services brings it squarely under the scope of the non-delegable statutory duty of care owed to employees and other persons that connect with the employment service programs.
In exploring this topic, we consider the legal framework of the duty of care owed to employees under the Commonwealth Work Health and Safety Act 2011 (Cth), discuss relevant case law and analyse the contractual and related arrangements with providers under the two largest employment service programs. We conclude this article with recommendations for a path forward to mitigate the risk to health and safety and to enhance the working environment in which the services are delivered.
The Duty of Care
Under state and federal work health and safety (WHS) law, employers carry the primary duty of care for the health, safety and welfare of employees.
Section 19 (1) of the WHS Act defines the primary duty of care
“A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.”
This duty cannot be delegated. It is clear that employment services providers contracting with government owe a duty of care to their employees. Although services are designed and funded by government, providers are conducting a business or undertaking and therefore are legally responsible for keeping staff safe.
The main contracts for the delivery of government funded employment services (Workforce Australia Deed and Inclusive Employment Australia Deed) reinforce this duty by requiring:
- Providers must hold their own insurance
- Providers must indemnify the Commonwealth for claims arising from their acts or omissions and
- Providers cannot present themselves as agents of the Department.
In short, the contractual arrangement with the Australian Government recognises and reinforces the duty owed by providers but purport to free the Government to the extent permitted by law, from its duty to ensure the health, safety and welfare of persons employed by providers in the system of employment services.
The question arises, how far can the Australian Government free itself from a duty and the risk of liability that is arguably a shared duty?
The Argument for a Shared Duty of Care
Several aspects of the Work Health and Safety Act 2011 (Cth) (‘the Act’) are worth consideration:
- The Act binds the Commonwealth
- A duty cannot be transferred to another person
- More than one person can concurrently have the same duty
- Each person must discharge the duty to the extent to which the person has the capacity to influence and control the matter.
The capacity to influence and control is the critical issue 1.
The “capacity to influence and control” test in the Act is essential to answering the question as to whether the Commonwealth shares a duty of care. If the Commonwealth designs the service model, sets mandatory servicing rules, and controls the flow of participants, then it arguably exerts significant control and influence over the system of work.
Consider the following facts.
While providers control the physical workplaces and supervise staff, the Commonwealth retains overarching structural control. The greater the Commonwealth’s prescriptiveness in directing how work is done, the stronger the case that duties under the Act are concurrent.
The respective Deeds for the delivery of employment services are beset with obligations imposed on providers to comply with Commonwealth policies, directions, guidelines and reporting on the servicing of jobseekers.
There are entire sections prescribing the nature and manner by which health and safety responsibilities are exercised including consultation and reporting to the relevant government department. The guidelines2 for servicing participants with challenging behaviours in the Workforce Australia program exemplifies the underlying acknowledgement of (but not admitted) shared responsibility.
The Australian Government designs and finances the program, establishes the rules, refers the clients and sets the operational procedures for the delivery of the program. Personnel employed by providers are treated for all intents and purposes as public officials. The influence and control of the Australian Government over the system of work is pervasive.
Vicarious liability
Is the Australian Government vicariously liable for the actions of providers?
Vicarious liability is the legal principle that a person may be held legally liable for the damage caused by another person, usually under their direction and control such as in an employment relationship. Courts have traditionally required a close employment-like relationship for vicarious liability.
In Hollis v. Vabu Pty Ltd (2001) 207 CLR 21, (‘Crisis Couriers’) the High Court found a bicycle courier company liable for the actions of its contractors because the company controlled how, when, and where work was performed. Applying the principle established by the High Court, all courts would ask whether employment services providers operate as truly independent businesses or as tightly controlled arms of government. The more prescriptive the Deeds and guidelines, the closer the relationship looks to agency, though the express contractual disclaimers in the Deeds make it purportedly difficult to cross that threshold.
Control
As discussed above, in determining liability, courts consistently emphasise the degree of control exercised over the work. In the employment services context, the Australian Government designs the framework, sets the rules, approves funding, and refers participants. These structural features demonstrate a high level of influence over the system of work. At the same time, providers employ their own staff, manage the day-to-day operations, and bear immediate responsibility for workplace safety.
This division between the Australian government as purchaser of services and the provider of the service blurs the lines of accountability. While operational control is vested in providers, structural control remains firmly with the Commonwealth. The tension between day-to-day management and systemic design provides a credible basis for arguing that responsibility for workplace health and safety is not borne exclusively by providers but may be shared with government i.e. the duty is shared concurrently and each person is required to discharge the duty to the extent to which the person has the capacity to influence and control the matter.
Agency
Clause 80 of the IEA Deed prohibits providers from representing themselves as agents of the Department. This wording is intended to insulate the Commonwealth from liability by framing providers as independent contractors. Yet contractual labels are not conclusive. Courts look beyond form to substance, asking whether, in practice, a provider acts “for and on behalf of” the Commonwealth or operates independently. The High Court in the Crisis Couriers case illustrates this point. Despite contracts labelling couriers as independent contractors, they were found to be employees because the company dictated their uniforms, branding, and work practices.
Applying this reasoning to employment services, the absence of agency language in the Deeds must be balanced against the reality that providers deliver Commonwealth programs, to Commonwealth-referred clients, under Commonwealth rules and policies. Providers are required to use government branding in public-facing materials, further reinforcing the impression that they are an extension of government. The more prescriptive and directive the Department becomes in regulating service delivery, the stronger the argument that the relationship bears the hallmarks of agency notwithstanding contractual disclaimers.
If a court were to conclude that the Commonwealth’s pervasive control created an agency relationship, the implications would be significant. The Commonwealth would likely be vicariously liable for providers’ acts or omissions, including WHS breaches. Staff injured in the course of service delivery could argue that systemic risks arising from program design are the joint responsibility of both the provider and the Commonwealth. In such circumstances, the Deeds’ indemnity provisions would be tested, and it is doubtful that they could exclude or contract out of statutory duties that the law treats as non-delegable.
Case law
Although there is little direct authority on Commonwealth liability in the employment services context, parallels can be drawn from broader work health and safety and public sector case law. In Comcare v Banerji [2019] HCA 23, the High Court considered the disciplinary powers of a Commonwealth agency over one of its employees in relation to political communication on social media. While the case was not about WHS, it illustrates that Commonwealth employees and contractors are subject to strict agency-level controls and that the Commonwealth cannot distance itself from responsibility where it has created and regulates the framework within which work is performed.
In Kirk v Industrial Court of New South Wales [2010] HCA 1, the High Court underscored the principle that WHS duties are broad, non-delegable, and extend to systemic risks inherent in the way work is organised. This decision makes clear that liability does not simply rest with the immediate employer. Rather, responsibility may also fall on those who design or control the system of work that gives rise to risk.
Similarly, in Comcare v PVYW [2013] HCA 41, the Court confirmed the breadth of employer responsibility where injury arises in circumstances sufficiently connected to employment, even if outside conventional workplace boundaries. The principle is that responsibility follows from the nexus between the conditions of work and the risk of harm.
Taken together, these authorities illustrate that where the Commonwealth establishes, finances, and regulates the framework of employment services, it cannot fully insulate itself from WHS liability. Even if providers retain day-to-day managerial control, the Commonwealth’s pervasive role in designing and enforcing the system of work suggests that concurrent duties may exist.
The Tension between WHS Duty to Protect Staff Versus Privacy Limits on Disclosure
A serious barrier to the exercise of genuine shared responsibility for health and safety is the tension between competing legislative obligations to jobseekers.
Providers operate under three privacy rulesets under the respective Deeds:
- Privacy Act (APPs): as a contract service provider, you’re held to agency-level APPs (APP 3/5: collect + notify with current, specific consent; APP 6: primary-purpose use; APP 9: government identifiers; APP 12/13: access/correction).
- Social Security Law: ‘Protected Information’ with criminal offences for unauthorised access/use; narrow disclosure via lawful authority or Public Interest Certificates (PICs).
- IEA regime: annual consent currency checks for sensitive info; DSS audits access and privacy training.
Managing the practical obligation of mitigating risk to health and safety is challenging. Providers face a tension between health and safety and privacy laws. WHS duty to protect staff vs privacy limits on disclosure. While government may have information about high-risk jobseekers, privacy rules can limit disclosure. This leaves providers managing risk without the information required to address the risk.
Tools such as Managed Service Plans (MSPs) are meant to assist in mitigation of risk but providers report MSPs in some instances lead to an escalation of challenging behaviour, create more work, and consequently fail to provide real safety. Too often, staff have to rely on informal workarounds like phone-only appointments rather than systemic solutions.
Providers have also reported that government policy of the day can also lead to escalating in dangerous workplaces for providers i.e. in the non-discretionary application of the Points-Based Activation System under the Deeds.
In contrast, when violence escalated in Services Australia offices, the Commonwealth funded additional security3 including:
- Funding for up to 606 security guards;
- Better security features in all service centres;
- Establishing a centralised Security Operations Centre, with live monitoring capabilities through
- upgraded CCTV;
- Better liaison with local law enforcement; and
- Enhanced service centre design for an additional 35 service centres at risk of high levels of
- customer aggression
Employment services providers face similar risks without equivalent support.
If information is withheld on the risk, due to privacy considerations, the statutory duty of care nevertheless remains. If the Commonwealth knew and didn’t disclose information that would have in likelihood enabled an employee to avoid injury from a jobseeker, is it vicariously liable? That’s an open question, and one worth testing.
The Path Forward
If, as argued in this article, the duty of care for health and safety is shared with the Commonwealth, there remains the question of what additional measures should be undertaken to mitigate the risk of work injury?
A recent amendment to the Criminal Code allows the Commonwealth to extend protections to new classes of frontline workers. Offenders can face up to 9 years imprisonment for offences against frontline workers. Employment Services provider staff could readily be included through amendment of the Criminal Code Regulations 2019. The issue is not capability but commitment: if ES staff deliver Commonwealth programs, they should have the same protections as Commonwealth employees.
Alongside regulatory change, the National Employment Services Association (‘NESA’) has called for practical support to create safer workplaces for frontline staff delivering employment services. Rather than prescriptive physical security measures, NESA indicates providers need flexible funding to implement safety solutions suited to their sites. NESA also seeks systemic responses to high-risk individuals, proposing their removal from outsourced caseloads and referral to government-funded specialist behavioural services. This would both protect staff and address the underlying causes of risk.
Without such reforms, providers remain in a Catch-22, legally responsible for staff safety but without the resources the Commonwealth provides its own workforce. Fairness and effectiveness require government to share the duty, through funding, protections, and structural solutions.
Final Word
The legal line may be contested, but the policy answer is clear. If employment services provider staff deliver Commonwealth services, they should have Commonwealth-level protection. Until then, providers must remain vigilant in meeting their obligations to protect their frontline teams.
About the Authors
Paul Maguire, Principal Lawyer and Legal Director of Maguire Legal is a trusted adviser to NESA and the Employment Services sector since 2000. Amongst his achievements has been overseeing the making of the modern Labour Market Assistance Industry Award at the Fair Work Commission in 2010 and the biennial National Survey of Remuneration and HRM Performance in Employment Services. Paul has taken a keen interest in the legal rights and obligations of Providers under the Workforce Australia and most recently, Inclusive Employment Australia service agreements. Paul is also the author of HR for small business for Dummies.
Sonia Shurti is a law graduate, associate and the Legal & Business Operations Coordinator at Maguire Legal, working within the Commercial and Corporate Law area. She holds a Bachelor of Laws (Honours) and a Bachelor of Biomedical Science (Honours), bringing a multidisciplinary approach to legal problem-solving. Sonia assists on commercial transactions, corporate structuring, intellectual property, and cybersecurity compliance, with a focus on risk management and regulatory alignment. Her dual background in law and science enables her to support clients in complex, innovation-driven industries. Passionate about governance and operational efficiency, she plays a key role in the firm’s work with start-ups, established enterprises, and cross-sector collaborations.
[1] Work Health and Safety Act 2011 (Cth) s 16 (3) (b).
[2] Australian Government ‘Workforce Australia Guidelines’, Part A: Universal Guidelines, (version 1.13, 1 April 2025) Chapter 5.
[3] See Budget announcement 3 May 2024, Minister for Social Services.