Workplace health and safety is a fundamental aspect of employment law in Australia, regulated by stringent frameworks designed to protect workers’ health, safety, and welfare of employees. Australia’s Work Health and Safety (WHS) laws impose substantial responsibilities on employers, requiring them to provide a safe working environment and enforce specific policies and practices.
The Law
The primary legislation governing workplace health and safety in Australia is the Work Health and Safety Act 2011 (Cth) (WHS Act), which provides a unified framework across most states and territories. The WHS Act, supplemented by the Work Health and Safety Regulations 2011 (WHS Regulations), establishes a set of duties and responsibilities for all persons conducting a business or undertaking (PCBU), including employers.
The primary duty of care under the WHS Act mandates that PCBUs ensure, as far as reasonably practicable, the health and safety of workers and others within the workplace. This includes
(a) identifying and managing (eliminating or minimising, such as providing protective equipment) potential risks;
(b) ensuring safe systems of work, providing adequate training, and promoting a culture of safety and incident reporting by maintaining appropriate risk control measures.
Notably, risk also includes psychosocial hazards, which reflect the mental health implications of prolonged and significant workplace stress, bullying, and harassment. Psychosocial hazards include unreasonable time pressures combined with micromanagement or lack of self-control over how and when work is performed, isolation or lack of support and recognition, workplace bullying and harassment or conflict or violence, or poor workplace environment, which may result in psychological harm.
In New South Wales, WHS laws include the Work Health and Safety Act 2011 (NSW), Work Health and Safety Regulation 2017 (NSW) and NSW Codes of Practice. While most Australian jurisdictions have harmonised their laws with the WHS Act, Victoria and Western Australia operate under slightly modified frameworks, which include the Occupational Health and Safety Act 2004 (Vic) and the Occupational Safety and Health Act 1984 (WA), respectively. However, these laws closely align with the WHS Act principles.
Several states and territories, including New South Wale, Queensland, Victoria, the Australian Capital Territory, Western Australia and the Northern Territory, have introduced industrial manslaughter provisions in their WHS laws. Under these laws, employers can be held criminally liable if gross negligence leads to the death of an employee. Penalties include substantial fines and potential imprisonment.
Key WHS Obligations for Employers and Workers
The WHS Act places several key obligations on employers and workers.
Duty of Care and Risk Management
Employers (PCBU, including Officers, namely, senior staff and executives) must provide a work environment that is free from risks to health and safety, as far as reasonably practicable, including providing and maintaining safe machinery and structures.
Employers are required to systematically identify workplace hazards, assess risks, and implement control measures to manage them. This may include regular safety audits, risk assessments, routine inspections, and incident investigations.
Notably, workers, namely, anyone working for the PCBU, have the duty to ensure their own health and safety, as well as cooperate with the WHS policies of the workplace.
Consultation, Information, Training and Supervision
Employers must actively consult (formally or informally) with workers on health and safety matters. This includes involving them in decision-making processes related to hazard identification and risk management.
Employers must provide relevant safety information, training, and instruction to all employees to ensure they can work safely. This includes induction training for new employees and refresher training for existing employees, such as the safe use and handling of all equipment.
Employers are legally obligated to report certain incidents, for example, Notable Incident, which includes any workplace accidents that result in death, serious injury, or dangerous incidents. Moreover, employers are to maintain an emergency plan outlining a policy for responding to WHS incidents.
WHS Policies for Australian Workplaces
Employers must establish and maintain a set of WHS policies to guide the health and safety protocols in their organisation. Essential policies include:
WHS Policy
This policy outlines the company’s commitment to health and safety, the expectations and responsibilities of all parties, and the process for identifying, assessing, and controlling hazards and risks in the workplace.
Moreover, it ensures that incidents, near misses, and hazards are promptly reported, documented, and investigated.
Finally, it provides a framework for managing emergencies, including fire evacuations, medical emergencies, and natural disasters.
Bullying, Harassment, and Discrimination Policy
This policy aims to create a safe and inclusive work environment by addressing inappropriate workplace behaviour. It should ensure that complaints and incidents are promptly reported, documented, and investigated.
Further, it must ensure that mental health and fatigue risks are managed effectively, especially for industries with high-risk tasks or long working hours.
Consequences of Non-Compliance
Non-compliance with WHS laws can lead to serious legal consequences for employers, including fines, penalties, and, in severe cases (depending on the degree of breach and injury), criminal charges.
In addition, non-compliance can severely damage a company’s reputation and lead to decreased employee morale and productivity.
Regulatory bodies, such as Safe Work Australia (the national policy regulator responsible for model WHS laws) and state-based WHS regulators, actively monitor workplaces and enforce compliance through audits and inspections.
Best Practices for Australian Employers
To meet WHS obligations effectively, employers can adopt several best practices:
– Ensure that employees receive continuous WHS training, particularly in high-risk industries.
– Encourage open communication around safety concerns and support a workplace culture where health and safety are prioritised and apply situational and transformational leadership.
– Implement WHS software solutions for tracking incidents, risk assessments, and employee training, including implementing Safety Policies.
– Routine audits and inspections can help identify areas for improvement, address emerging risks, and maintain compliance.
– Retain The IP House Lawyers to assist and advise employers in staying informed to ensure compliance, prevent workplace incidents, and avoid legal repercussions in relation to their WHS obligation, including drafting, reviewing and improving workplace policies.
For any further information or queries on the above content, please contact us.
The Author
Jean Kallmyr | Lawyer, The IP House Lawyers | t: 0435 799 831 | e: admin@theiphouse.com.au
Key Contact
Claire Darby | Managing Director/Lawyer, The IP House Lawyers | t: 0412 998 951 | e: claire@theiphouse.com.au
Disclaimer
The information and contents of this publication do not constitute any legal or financial advice. This publication is intended only for reference purposes for The IP House Lawyers’ clients and prospective clients.
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