Workplace Health and Safety

Workplace Health and Safety (WHS) is the process of protecting people from risk while they are at work, with the intent to prevent work-related accidents and injuries. In Australia, the Work Health & Safety Act 2011 mandates that all employees have a right to a healthy and safe workplace. This federal law has been adopted by all jurisdictions in Australia, apart from Victoria, which has its own health and safety legislation.

Workplace health and safety legislation

The WHS Act confers a legal duty on employers, managers, and workers to ensure that all people are kept safe in the workplace (this means not only employees, contractors, and volunteers, but also visitors, customers and members of the public). Employers have a duty of care to eliminate any risk in the workplace to a reasonably practicable degree and to minimise any other risks. Additionally, the employer has a responsibility to consult workers and others who have a duty of care when making WHS decisions.

Officers of a company, such as senior managers and directors, have a legal responsibility to exercise due diligence and ensure the business operates in compliance with WHS laws. This means taking steps to understand risk factors and potential hazards through risk assessments. Officers should also provide appropriate resources and implement procedures to minimise or eliminate risk, such as training or policies.

Duty of workers

While an employer’s WHS duty of care is widely known, it is less well known that workers themselves have a duty to take reasonable care of their own health and safety, and the health and safety of their co-workers. To comply with their duty of care, workers must comply with reasonable instructions, WHS policies and procedures, and must not take any action that is likely to harm the health and safety of others. As a consequence of this duty of care, workers also have the right to stop work if there is a serious health or safety risk, even if this involves refusing to comply with the instructions of their employer.

WHS management system

An employer should implement a WHS management system to protect the business and its employees. From a compliance perspective, a management system documents the policies and procedures that are relied upon to reduce workplace accidents and injuries. A WHS management policy should include comprehensive information about the company’s approach to:

  • risk assessment
  • safety reviews / ongoing improvements
  • safety consultation
  • training and inductions
  • safe work policies and procedures
  • emergency procedures
  • access to first aid
  • incident reporting

The employer must ensure that all employees have read and acknowledged the WHS management system.

Safe work

Safe Work Australia is the national policy body tasked with improving WHS in workplaces across Australia and developing workers’ compensation policies. Each state and territory has its own regulator that works in the community to reduce work-related illnesses, injuries, and accidents. For instance, in New South Wales the WHS regulator is SafeWork NSW, while the regulator in Victoria is WorkSafe Victoria.

Workplace injuries can be as minor as an employee cutting their hand while working in a café, to as serious as a construction worker receiving a fatal crush injury while on a job site. The most common workplace injuries, however, involve slips, falls, body stress, or being hit by moving objects.

Work-related mental health conditions, which can have a particularly protracted impact on the functionality of workers, are also on the rise. In 2023, the WHS laws were amended to impose positive duties on employers to identify and control psychosocial risks and hazards in the workplace. Psychosocial hazards can be obvious, such as exposure to traumatic materials, bullying, or violence at work, but can also be less overt, such as lack of role clarity, poor management support, and inadequate recognition and reward.

Workplace health and safety management systems

Even when an employer has excellent WHS policies in place and acts on them diligently, accidents can still happen at work. In that case, the employer and workers should follow the emergency protocol outlined in the employer’s management system. Following these documented policies means that there is no confusion over what immediate actions to take, who needs to be notified and when, who should investigate incidents, and when the employer must notify Safe Work Australia. When notified, SafeWork Australia will investigate workplace accidents and decide whether there are grounds to refer the matter for prosecution.

Case study

A defendant company was recently prosecuted for breaches of their duty of care. An employee of a manufacturing company was found deceased after being crushed by an IPM raised scissor hoist. Although there were multiple barriers preventing access to the IPM, employees occasionally used gaps in the barriers to access a limit switch that was known to sometimes fail. The company claimed that it was unaware of this fault because it was not reported or recorded.

SafeWork’s investigation found that the employer did not account for possible gaps in the barriers that employees could use to gain access. This was a breach of Section 208 of the Work Health and Safety Regulation 2011. The employer pled guilty to breaching the Act and failing to meet its work health and safety duties.

The Court fined the company $215,000, as well as professional and court costs, but did not record a conviction. The Magistrate noted that while the exact facts are unknown, it was clear that the employee gained access to the IPM when this should have been impossible. The company did not have sufficient training, instruction, or supervision of IPM operators to control identified hazards and risks. There were additional procedures the defendant could have implemented to minimise risk, which they did implement after the accident. The Magistrate noted that the defendant showed remorse, supported the deceased’s family, accepted responsibility through an early guilty plea, and implemented additional safety controls without delay.

Go To Court Lawyers can provide advice about workplace health and safety law and compliance requirements. Our employment law team can provide advice and representation during an investigation or court litigation. Please get in touch on 1300 636 846.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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