Duty of care is typically understood as a legal concept — a standard of care that an organisation owes to those it employs or sends into harm's way, enforceable through negligence law in the relevant jurisdiction. This understanding is accurate as far as it goes. It significantly understates the actual scope of the obligation. For organisations operating across multiple jurisdictions, the protective obligation is not defined by a single legal standard. It travels with the person, across legal systems, each of which may apply a different but parallel obligation.
The Multi-Jurisdictional Reality
An organisation headquartered in Australia, employing a national of a third country, who is injured in a fourth country, may face legal exposure in multiple jurisdictions simultaneously. Australian corporations law and common law negligence create obligations in Australia. The employee's country of nationality may have its own labour or employment law standards that apply to their employer. The country where the injury occurred may have local tortlaw or regulatory obligations. And increasingly, international human rights frameworks are being applied by courts to corporate conduct in third countries.
Most organisations have not mapped this multi-jurisdictional exposure. Their duty of care programme is designed for the legal environment of their home jurisdiction. The assumption is that compliance with local standards covers the organisation's obligations globally. This assumption is increasingly challenged by court decisions in multiple jurisdictions that have applied extraterritorial jurisdiction over the conduct of multinational corporations.
Human Rights Due Diligence
The United Nations Guiding Principles on Business and Human Rights — the Ruggie Principles — established a framework that imposes a responsibility to respect human rights on all business enterprises, regardless of their size or sector. This is not merely a reputational standard. Mandatory human rights due diligence legislation has now been enacted in France, Germany, Norway, and Switzerland, with similar legislation in progress in multiple other jurisdictions. The European Union's Corporate Sustainability Due Diligence Directive extends these obligations further.
For organisations with global operations, supply chains in high-risk jurisdictions, or significant operations in countries with poor human rights records, the human rights due diligence dimension of the protective obligation is now a compliance matter, not just an ethical aspiration. Failure to conduct adequate due diligence, document it, and take action on findings is a legal exposure in an increasing number of jurisdictions.
The connection between duty of care and human rights due diligence is not always obvious, but it is real. Both are expressions of the same underlying obligation: that organisations that send people — or whose operations affect people — into harm's way have responsibilities that they cannot simply decline to discharge because the harm occurs in a jurisdiction with limited enforcement capability.
The Contractor and Third-Party Dimension
Duty of care obligations do not apply only to direct employees. The legal and ethical framework increasingly extends to contractors, sub-contractors, and in some contexts, the employees of suppliers and business partners. An organisation that outsources high-risk activities to a contractor does not thereby outsource its duty of care. What it may do is create a more complex obligation — one that requires adequate oversight of the contractor's own duty of care framework and a genuine understanding of the risks the contractor's employees are exposed to in performing work for the organisation.
This is particularly relevant for organisations operating in high-risk environments where local contractors are engaged for security, logistics, or operational support. The contractor's employees are in a position of risk partly as a consequence of the principal organisation's requirements. The principal organisation's protective obligation does not end at the boundary of the direct employment relationship.
What This Requires in Practice
A duty of care programme that genuinely addresses the multi-jurisdictional and extended-obligation reality requires several components that many current programmes do not include. Jurisdictional mapping — an understanding of which legal systems could apply to the organisation's operations and the obligations each creates. Third-party risk assessment that extends beyond contractual compliance to genuine understanding of the risks contractors and partners face. Human rights due diligence processes that are systematic, documented, and connected to decision-making about where and how the organisation operates. And a reporting and escalation framework that allows concerns about the wellbeing of direct and indirect workers to reach the attention of decision-makers who can act on them.
The protective obligation that travels across legal systems is not a marginal concern for a small number of organisations with unusual exposure. It is a core dimension of responsible corporate governance in a global operating environment. The organisations that understand this, and build their duty of care programmes accordingly, are both more legally protected and more genuinely protective of the people their operations affect.
Tony Ridley provides duty of care advisory, multi-jurisdictional risk assessment, and human rights due diligence consulting. Contact us to discuss your requirements.