WHS


What is WHS?
Complying with a WHS duty
Legislation
Regulations
Common law duties
Duties of workers
Contractors
Working with WHS documents
WHS and contracts of employment
Related links: WHS authorities

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.

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
  • inspectors
  • regulations
  • enforcement.

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.

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
  • adequate supervision
  • 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.

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Legislation

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 has said it will introduce legislation 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.

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Regulations

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. A good place to start for employers in the harmonised jurisdictions is the Safe Work Australia website which has a comprehensive list of these.

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Common law duties

Employers 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.

This common law obligation is in addition to the legislative requirements outlined above.
In essence, 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.

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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.

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Contractors

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 PCU 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.

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Working with WHS documents

The following general points apply to working with the WHS documents on HR Advance:

  • Effective WHS policies and procedures are needed for legal requirements and to promote WHS good practice generally.
  • Commitment to WHS in the workplace can only be generated by involving everyone in the process. This commitment must be driven by management - successful health and safety strategies are dependent on management involvement, and most significantly, demonstrated leadership.
  • There is a legal requirement in each State in Australia to provide training in work health and safety.
  • There are countless hazards in the workplace. Managing WHS involves identifying, eliminating or controlling these hazards.
  • Risk management is essential for all businesses, regardless of their size. It involves identifying the hazards and then developing a plan to eliminate, isolate or minimise them.
  • Consultation is an important — and in some States, mandatory — aspect of managing health and safety. Employers should consult with all stake-holders over how risks are managed.
  • Requirements for first aid kits and facilities are set out in WHS regulations, advisory standards and codes of practice around Australia.
  • Periodic checks: The types of WHS-related activities that should be periodically checked include policies, procedures, management audit of WHS system performance, physical WHS inspections, consultation on WHS with employees, checking of injury register, workstation ergonomics, first aid kits and PPE, training of first aid officers and reviewing any legislation that has changed.

State and federal government websites – see the links below – can assist you with materials and advice in complying with WHS and workers' responsibilities.

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WHS and contracts of employment

Unlike many other employment-related matters, WHS is not usually covered in Contracts of Employment or in Awards or Agreements.

However, note that a Contract of Employment contains an implied term that the employer will not act negligently towards its employees. An implied term is an unwritten one.

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Related links: WHS authorities