Casual Workers - Managing Their Health And Safety


  • Document Type: Guidance Note
    Keycode: web only
    Category: Consultation, Controlling OHS Hazards and Risks, 
    Publication Date: 09 February 2006
    Date First Published: 06 November 2002
    Summary: Guidance on obligations under OHS law in relation to casual workers

Purpose
This Guidance Note aims to assist employers fulfil their health and safety management obligations for casual workers. It deals with casual workers employed directly by an employer and also casual workers engaged via an on-hire agency. (An on-hire agency is sometimes also called a labour hire agency, but in this Guidance Note, the entity will be called an "on-hire agency" or just "agency".)

Background
There have been a number of incidents where a casual worker was injured at a workplace resulting in:

  • pain and suffering for the worker and the worker's family; and
  • prosecution of both the employer of the workplace and the on-hire agency if the casual worker has been engaged that way.

The nature of casual work makes casual workers especially vulnerable from a health and safety perspective. For example, if effective information systems are not in place, casual workers can miss out on crucial advice about newly assessed risks or new safety procedures.

This Guidance Note is developed to assist the employers who either directly employ casual workers or engage casual workers via an on-hire agency. (Separate WorkSafe Victoria guidance has been produced to assist on-hire agencies manage their particular health and safety responsibilities for workers registered with them. See Further Information for details.)

Misconceptions about legal obligations for casual workers
Some employers mistakenly believe that by engaging a casual worker they will remove or somehow lessen their health and safety legal obligations towards that worker. This misconception is more common when casual workers are engaged through an on-hire agency. Employers have very clear legal obligations for any worker under their control or management. As an employer you cannot remove any health and safety obligations by way of a contractual agreement with anyone, including an on-hire agency.

While on-hire agencies also have the same legal obligations as an employer for workers registered with them, the relationship a casual worker has with an agency has no effect on your obligations to adequately address health and safety in your workplace. You must not rely on the casual worker or the on-hire agency to have sole responsibility for, or to cater for, health and safety in your workplace in relation to the things that only you have control over. The "bottom-line" is that the duties an on-hire agency has for workers are in addition to the duties you have as an employer.

In general terms, you should treat every casual worker as if they were one of your full-time workers.

(You will find the specific legislative provisions in the Occupational Health and Safety Act that deal with these issues towards the end of this Guidance Note, under the heading "Legal responsibilities under the Occupational Health and Safety Act 2004".)

What steps should you take?
You should take the following steps to discharge your legal obligations for the health and safety of all casual workers in your workplace:

Prior to employment of any casual worker

1)

Define the work which you require the casual worker to do.

2)

Identify the hazards and assess any risks associated with the work that will impact on the health and safety of the casual worker. This process should be done with input from health and safety representatives or employees.

3)

Take action to eliminate or reduce the health and safety risks that were assessed in step 2. Again, it is always preferable to draw on the input from health and safety representatives or employees when deciding on risk control measures for the casual worker.

4)

Identify what knowledge and skills (including any licensing and certification requirements) the casual worker should possess in order to undertake the work safely.

5)

Advise the prospective casual worker and on-hire agency (if engaged via an agency) of:
- the job requirements (including health and safety requirements);
- the work environment and organisational arrangement under which the job is required to be performed;
- any health and safety risks associated with the job; and
- the knowledge and skills required for the job.

6)

Select a casual worker with appropriate knowledge and skill to undertake the work safely or select an on-hire agency that has the capacity to provide a person with this knowledge and skill.

7)

Verify that the prospective worker has the necessary knowledge and skill.
Note:
Although it's important to be clear about the knowledge and skill of a prospective casual worker, you still have an obligation to pass on any health and safety information that you would be providing to full time workers. You have no defence by saying "that the worker should have known"; it’s your duty to make sure they know. A risk to safety might be a typical one in lots of workplaces but there’s likely to be certain characteristics of your workplace and how work is done there that makes these "typical" risks unique.

8)

Finalise the contractual arrangement with the casual worker or the on-hire agency and clarify the responsibility for the provision of any equipment (including personal protective equipment) for the casual worker to use in your workplace.

9)

Have processes in place that encourage casual workers to participate in the relevant designated work group. Casual workers (including on-hired workers) participating in designated work groups is a good way to help deal with the unique health and safety issues associated with casual work. (See Note (a) below for related information about on-hired casual workers and designated work groups.)
Note (a):
The involvement of an on-hired casual worker in a designated work group should be worked out between you (the employer) and the relevant health and safety representative and employees in the designated work group. Only employees (casual or permanent workers directly employed by you) have a formal right to be part of a designated work group and to formally be eligible to vote for, or be a health and safety representative or deputy health and safety representative; on-hired casual workers do not have these formal rights. This comes about because the Act's provisions dealing with designated work groups uses the more conventional meaning of "employee". This contrasts with the broader meaning of employee used in the general safety duties of an employer in section 21 of the Act.
It may also be valuable to have on-hired casual workers participate in a health and safety committee, depending on the circumstances in the workplace. However, the on-hired worker must not be regarded as part of the committee membership allocated by the Occupational Health and Safety Act for employees ( see section 72(2) ). Any arrangements associated with getting on-hired casual workers involved in health and safety committees should be made in collaboration with health and safety representatives and employees.
If agreement cannot be reached on the composition of a designated work group, the employer or the employees may apply to the Victorian WorkCover Authority to determine the composition (section 45(1) of the Act ). In this case, the Authority would look at various factors, e.g. the number of employees, the nature of the work being performed, the nature of any hazards at the workplace etc. before making its decision.
Note (b):
The on-hire agency may have its own health and safety committees, designated work groups and health and safety representatives. However, these are health and safety consultative arrangements for the on-hire agency, not your workplace; they must not be regarded as a substitute for your own consultative arrangements.

10)

Provide necessary training, instructions and information in appropriate languages to the casual worker to enable the worker to perform the work safely. The effectiveness of the training should be thoroughly assessed (e.g. by questionnaire and demonstration). Keep a written record of the training provided to the casual worker. The training, instructions and information should be at the same standard you would be required to give a full-time worker who is doing the same jobs as the casual worker. However, you should make sure the following topics are covered in the training, instructions and information because they cover topics which often differ significantly between workplaces:
- Consultative arrangements in the workplace including designated work groups, health and safety representatives, consultative committees, personnel with health and safety responsibilities and issue resolution procedures.
- The management structure or decision making system in the workplace, including lines of communication.
- Workplace hazards relevant to the work the casual worker will be doing.
- Workplace health and safety policy and procedures.
- How to safely operate any model of equipment or machinery which the casual worker is likely to be using. (Note: A person who holds a certificate of competency to undertake certain type of work (e.g. a certified forklift operator) still requires training on hazards and specific models of equipment which are unique to your workplace.)
- Describe any jobs or equipment the casual must not do or use.
- First aid facilities and personnel.
- Workplace facilities such as lunch rooms, change-rooms etc.
- Injury/incident/hazards reporting procedures in the workplace.
- Emergency procedures and emergency personnel.


Prior to commencement of work

11)

If the casual worker brings equipment including personal protective equipment (e.g. supplied by the on-hire agency), make sure that the equipment meets adequate health and safety standards and is properly maintained before allowing the equipment to be used in your workplace. You are likely to be held legally accountable if the equipment is not adequate.

12)

Introduce the casual worker to the relevant health and safety representative and the person with health and safety management responsibilities in the area where the casual worker will be working.

13)

Verify that the casual worker fully understands the health and safety training, information, policies and procedures associated with the work before the worker commences work in your workplace.


After work has commenced

14)

Provide adequate supervision to monitor whether the work is being performed safely. Recognise that tasks performed by casual employees can sometimes require closer supervision than with full-time workers.

15)

Make sure that appropriate arrangements are in place for identifying hazards associated with the work in an ongoing way, involving your relevant health and safety representatives or employees and the casual worker. Allow the on-hire agency to participate. (See the Guidance Note Hazard identification, risk assessment and risk control in the workplace listed under the "Further information" heading for a good overview of proper hazard identification, risk assessment and risk control procedures.)

16)

When there is a change in your workplace that impacts on the health and safety of the casual worker, advise the on-hire agency and provide necessary additional training, instructions and information to the worker. Do not change the role of the casual worker until the on-hire agency is advised of the proposed change and the agency has an opportunity to respond to the proposal.

17)

Provide refresher training for the casual worker, especially if the worker is engaged for a relatively long period of time.

18)

Allow an on-hired casual worker to maintain communication with the worker's agency.


Incident management

19)

If there is an incident in your workplace involving a casual worker:
- inform the worker’s on-hire agency of the incident, and notify WorkSafe Victoria if the incident is required to be notified under the Occupational Health and Safety Act 2004 (see Part 5 of the Act).
- conduct investigation of the incident to identify all contributing factors. Allow the on-hire agency to participate in this investigation.
- develop and implement measures, in co-operation with the on-hire agency, to avoid a similar incident happening again.


Co-operation with on-hire agency

20)

Co-operate with the on-hire agency to assist the agency to meet its legal obligations under the Occupational Health and Safety Act, including allowing the agency access to the workplace and relevant documentation.

Legal responsibilities under the Occupational Health and Safety Act 2004
If you are an employer, you have legal obligations under the Occupational Health and Safety Act 2004 to:

  • provide and maintain, so far as is practicable, for your employees a working environment that is safe and without risks to health (see Section 21 of the Act). You should take particular note of section 21(3). This section refers to your employer obligations for independent contractors and the employees of the independent contractor. An on-hire agency is regarded as an independent contractor.
  • ensure, so far as is reasonably practicable, that no one (including members of the public and contractors) is exposed to a risk to their health and safety from the work done in your business, including those activities carried out by the casual worker (see Sections 23 and 24 of the Act).

 


Acts and Regulations


Acts and regulations are available from Information Victoria on 1300 366 356 or order online at www.bookshop.vic.gov.au.

View the legislation at Victorian Law Today at www.legislation.vic.gov.au.


Standards Australia


Copies of standards can be obtained by contacting Standards Australia on 1300 654 646 or by visiting the web site at www.standards.com.au.


Further information


WorkSafe Victoria
Guidance Note: Hazard identification, risk assessment and risk control in the workplace
This Guidance Note provides relatively comprehensive advice on proper systems for controlling risk in the workplace. It applies to all workers. It is downloadable from the WorkSafe Victoria website www.worksafe.vic.gov.au. See under the "Forms & Publications" heading on the website home page and follow prompts.
Guide: Placing workers in safe workplaces
Assistance is also available from your local WorkSafe Victoria office. Go to the WorkSafe Victoria website for contact details.

Note: This guidance material has been prepared using the best information available to WorkSafe Victoria. Any information about legislative obligations or responsibilities included in this material is only applicable to the circumstances described in the material. You should always check the legislation referred to in this material and make your own judgement about what action you may need to take to ensure you have complied with the law. Accordingly, the Victorian WorkCover Authority extends no warranties as to the suitability of the information for your specific circumstances.