What is WHS?
Work health and safety (WHS) legislation in Australia aims to prevent injury and disease to persons in the workplace. State, Territory or Commonwealth legislation applies.
Importantly, a number of Australian jurisdictions have ‘harmonised’ their legislation from 2012. Harmonised legislation means that each jurisdiction enacts its own legislation, but the legislation is as much alike as possible in its provisions. Read more about legislation below
Common to all WHS legislation in Australia are the following features:
support for WHS in the workplace
provision of systems of work that are safe and without risk to health
prevention of injury and disease through the elimination or minimisation of risks
protection of the general public’s safety and health
workplace representation, consultation, co-operation and issue resolution
Probably the most important principle in the harmonised legislation, from an employment-related perspective, are the ‘duties’ which are placed on ‘persons conducting a business or undertaking’ (PCBU) to provide a safe place of work for workers and other persons, so that they are not put at risk from work carried out as part of the conduct of the business or undertaking. In the non-harmonised jurisdictions this duty is primarily upon the employer and not the broader category of ‘PCBU’.
The term ‘PCBU’ includes a broader category of entities, including sole traders, principal contractors, unincorporated associations, partnerships and franchisees as well as those traditionally considered to be employers. Self-employed people and volunteer organisations that employ people are also PCBUs under the WHS legislation. The PCBU is the business entity conducting the activities of the business or undertaking, rather than individuals employed by that entity to undertake certain tasks. Thus, senior managers and directors would generally be considered 'officers' under the WHS laws, rather than PCBUs.
PCBUs ‘involved in the management and control of workplaces’ also have duties under the WHS Act, as well as PCBUs ‘with management or control of fixtures, fittings or plant’ at a workplace. PCBUs who design, manufacture, import or supply products also have duties, as do PCBUs who install, construct or commission plant or structures.
Employers also have an underlying common law obligation to protect their workers from disease and injury at work. Failure to do so results in the common law tort of negligence.
Complying with a WHS duty
Generally, compliance with a safety duty to workers and others will include:
proper training of all workers, including advice, information, education and formal training
identifying, assessing and controlling (by removal, isolation, substitution or risk reduction) all potential hazards and risks at the workplace — this includes work processes and work systems and is widely referred to as ‘risk management’
safe and appropriate work equipment
developing and issuing WHS policies that promote safe practices generally and encourage a ‘safety culture’ at work
regular inspections and audits of the workplace, preferably in consultation with employees.
Work health and safety is primarily the role of the States and Territories. The Commonwealth is responsible for the health and safety and workers compensation of its own employees and it also jointly funds the independent statutory agency Safe Work Australia with the state and territory governments.
Most of the States and Territories have harmonised their legislation. The harmonised jurisdictions are: NSW, QLD, SA, TAS, the ACT, the NT and the Commonwealth. WA is likely to introduce legislation in 2013, to commence in 2014, but Victoria has no legislation planned.
Despite some differences even in the harmonised legislation, the basic provisions are essentially the same. The content of the legislation is comprehensive and the following provisions appear in each one:
duties to provide a safe and healthy workplace for all workers and other people who attend the workplace
work systems that are safe and without risk to health
training of workers to work in a safe and competent manner
requirements to take steps to prevent injury, illness and disease
requirements to consult with employees and their representatives over WHS matters
provisions for workplace inspectors to visit workplaces, investigate accidents and enforce provisions of the legislation.
The Acts are backed up with comprehensive Regulations and Codes of Practice that cover specific aspects of WHS in detail, such as first-aid requirements, protective clothing and equipment, consultation with employees, formation of WHS committees and appointment of WHS representatives, a wide range of specific hazards (such as hazardous chemicals, manual handling, spray painting, demolition work, handling asbestos, etc), competency requirements (eg for operation of certain equipment or performance of certain types of work), employee training, notification of accidents and incidents, and WHS record-keeping.
This list is not exhaustive, and you should check for a list of all Regulations and Codes of Practice that may apply to your business.
You should also check awards and agreements that cover employees, as these sometimes contain WHS provisions.
Common law duties
As well as the legislative requirements outlined above, employers have a common law duty to manage all foreseeable risks of injury at work and to provide:
competent staff (which means attention to training them and ensuring they have permits/certificates to use certain equipment or machinery where they are required)
sufficient workers to perform the work safely
a safe place to work and safe work systems/methods, and
proper and safe work plant, equipment and resources.
Duties of workers
Not all WHS responsibilities rest with the PCBU. The harmonised legislation requires workers to take reasonable care of their own safety and health (and that of others), to work safely and follow safety procedures and rules, to report any WHS hazards or other problems to the PCBU, and to cooperate with WHS inspections, investigations and training.
‘Other persons’ are not necessarily other workers — they can be contractors, members of the public or any person who is present at or near the workplace.
Under harmonised work health and safety laws, contractors engaged to undertake work for a business or undertaking are considered to be workers of the person conducting the business or undertaking (PCBU). PCBUs therefore have the same duties toward contractors (and employees of contractors) as they have towards their own employees and other workers at their business or undertaking.
Because a contractor is a PCBU to his or her own workers, a contractor’s duties to those workers are the same as the PCBU’s duties to workers.
Individuals may have more than one role, for example, a contractor could be a PCBU to his or her staff and a worker for another PCBU. Similarly, more than one PCBU could have obligations regarding the health and safety of particular workers, for example, labour-hire workers could be owed health and safety obligations by both the labour-hire company and the host employer.
Penalties against employers for breaches of WHS legislation have tended to increase sharply in recent years and the maximum fines are now very high.