The Occupational Health and Safety Act 2004
The Occupational Health and Safety Act 2004 (OHS Act) provides a broad framework for improving standards of workplace health and safety to reduce work-related injury and illness. The OHS Act states that, so far as is reasonably practicable, employees should receive the highest level of protection against risks to their health and safety.
Employees are entitled to:
- work in a safe workplace
- the information, supervision and training they need to work safely
- their employer consulting them on issues which may affect health and safety
- representation on occupational health and safety (OHS) issues in the workplace
The OHS Act also requires employees not to put themselves or others at risk at work.
Who is an employee?
You are an employee if you have a verbal or written contract of employment or a contract of training.
Those engaged by an employer who controls a workplace are also employees, including:
- an independent contractor, for example, a bricklayer on a construction site
- an employee of the contractor, for example, the bricklayer's labourer
- a sub-contractor of the contractor
- a person a labour hire or recruitment agency has provided, such as a process worker, order picker in a warehouse, temporary receptionist or an agency nurse
Who is not an employee?
Volunteers are not employees, even if they receive out-of-pocket expenses.
Duties of employees
Take reasonable care
Employees must take reasonable care for their own health and safety and the health and safety of people their work may affect. Employees should:
- not engage in behaviour that could harm people
- not take short-cuts which could reduce the level of safety
Duty to cooperate with employer
Under the OHS Act, employers have a responsibility to protect the health and safety of their employees while at work. Employers may implement procedures and work practices and provide information, training and supervision to meet that responsibility. Employees must cooperate with their employer's efforts by:
- following the workplace safety policies and procedures
- attending health and safety training and following the instructions and advice provided
- using equipment supplied by the employer, such as adjustable workstations or personal protective equipment (PPE) such as safety boots, hearing protection or high-visibility vests as instructed
Employees can help prevent risks to workplace health and safety by notifying the employer of any hazards.
Duty not to recklessly interfere or misuse
Employees must not intentionally or recklessly interfere with or misuse anything the employer has provided in the interests of workplace health, safety or welfare. For example, employees must not:
- remove or bypass machine guarding or other safety devices
- use a fire extinguisher for purposes other than putting out fires
Duties employers owe to employees
Protection from harm in the workplace
Employers have a duty to protect the health and safety of employees while at work by providing and maintaining a working environment that is safe and without risks to health.
Employers must consult with employees, as far as is reasonably practicable, on issues that may directly affect employees' health and safety, especially when:
- identifying or assessing hazards or risks
- making decisions about controlling risks
- deciding on the adequacy of facilities for employees
- developing procedures to resolve OHS issues
- developing procedures for:
- employee consultation
- monitoring employees' health and workplace conditions
- providing information and training to employees
- determining the membership of health and safety committees
- proposing changes to how work is done
- proposing changes to the workplace, plant, substances or other things used at the workplace
Consultation must involve:
- sharing information with employees about their health, safety and welfare
- giving employees a reasonable opportunity to express their views
- taking into account their views and contributions
Health and safety representation
Employees have the right to representation by health and safety representatives (HSRs) who represent a designated work group (DWG). A DWG is a grouping of employees set up in a way that best represents the employees' OHS interests and ensures access to their HSR.
If an employee asks their employer to set-up a DWG, the employer must do everything reasonable to ensure negotiations to establish the DWG start within 14 days of the request. Once established, a DWG's members can decide how to elect HSRs and who will run the election. If there is disagreement on how to run the election, WorkSafe may help by either running the election or appointing someone else to do so. A member of a DWG can be nominated as an HSR and all members of that DWG can vote.
Where the employer and employees agree, a DWG may also elect more than one HSR and one or more deputy HSRs. A deputy HSR may exercise HSR powers when the HSR cannot.
HSRs have a range of powers to perform their role, including:
- having paid time off, along with any deputy HSR, to attend training approved or conducted by WorkSafe. The employer must pay costs for HSRs to attend initial and refresher training
- having access to information about actual or potential hazards and the health and safety of DWG members
- inspecting DWG members' workplaces
- take photographs or measurements or make sketches or recordings (including audio and video) at any part of a workplace at which a member of the DWG works, except in certain situations, such as during an interview
- accompanying a WorkSafe inspector during inspection of a DWG member's workplace
- requiring the establishment of a health and safety committee
- accompanying or representing a member of their DWG at an interview about OHS, with the member's permission
- wherever necessary, seeking the assistance of any person with OHS knowledge
Employers must provide the facilities and assistance HSRs require to exercise their powers.
HSRs may act on matters that affect members of their own DWG. They may also act for another DWG when there is an immediate risk to a member of another DWG. HSRs can also act when a person in another DWG asks for help and the matter cannot be referred to the person's own HSR.
HSRs may issue a provisional improvement notice (PIN) to a person. This can occur if the HSR reasonably believes the person has breached or is breaching the OHS Act or Occupational Health and Safety Regulations 2017 (OHS Regulations) and consultation has failed to remedy the breach. If the person receiving the PIN is an employee, they must inform their employer about the notice. An employer who receives a PIN must inform all people whose work the notice affects and display the notice prominently at the location to which it applies. A person must comply with a PIN issued to them, unless WorkSafe has been asked to send an inspector to enquire into the PIN.
If an OHS issue arises which involves an immediate threat to health or safety and the agreed process for resolving issues is inappropriate, either an employer or a relevant HSR can, after consulting each other, direct employees to cease work. During a 'cease work' an employer may assign affected employees to suitable alternative work.
If the issue which led to the cease work direction is not resolved within a reasonable time, either party can ask WorkSafe to provide an inspector to enquire into the issue.
Health and safety committees
Health and safety committees help employers and employees work together to bring about safer workplaces by initiating, developing, circulating, carrying out and reviewing workplace OHS measures, standards, rules and procedures.
An employer must establish an OHS committee within three months of an HSR's request to do so. At least half the members of a health and safety committee must be employee representatives and those representatives should be HSRs and deputy HSRs, so far as is practicable. They can provide DWG members' input to meetings and report back on meeting results.
Employers and employees – through their HSR – must try to resolve issues using agreed internal procedures. If there are no established procedures, they can use a process specified in the OHS Regulations. If the parties cannot resolve the issue in a reasonable time, either party can ask WorkSafe to arrange for an inspector to enquire into the issue.
The person representing the employer in attempts to resolve OHS issues must have an appropriate level of seniority, be competent to act for the employer and must not be an HSR.
Prohibition of discrimination
Employers must not threaten, dismiss or refuse to hire a person, or otherwise adversely affect the person's employment because of action the person has taken in line with the OHS Act. This includes being a member of a safety committee, acting as an HSR or deputy HSR, assisting an inspector or raising OHS issues.
Authorised Representatives of Registered Employee Organisations
An Authorised Representatives of Registered Employee Organisations (ARREO) is a permanent employee or officer of a registered employee organisation who has satisfactorily completed a WorkSafe-approved course and holds an entry permit issued by the Magistrate's Court.
An ARREO may enter a workplace during working hours to enquire into a suspected breach of the OHS Act. Immediately on entry, the ARREO must take reasonable steps to provide the employer or their representative with:
- a notice which describes the suspected breach
- their entry permit for inspection
While at the workplace the ARREO must produce their entry permit for inspection if asked to do so. The suspected breach must relate to or affect the work being carried out or affect the person or people doing it who are:
- members of the registered employee organisation
- are subject to a certified agreement which binds the registered employee organisation
- eligible to be members of the registered employee organisation and are not subject to a certified agreement
Employers must ensure the ARREO has entry to a workplace and that ARREOs are not intentionally hindered, obstructed, intimidated or threatened while exercising their powers. To enquire into the suspected breach, an ARREO may:
- inspect any plant, substance or thing at the place
- take photographs or measurements or make sketches or recordings (including audio and video) at the workplace for the purpose of enquiring into the suspected contraventions
- observe work
- with consent, consult with one or more employees who are members or are eligible to be members of the registered employee organisation
- consult with the employer about anything relevant to the matter under enquiry
An ARREO can:
- warn an employee or employees if they believe there is an immediate risk of serious injury or death
- consult with an employee during his or her meal or other breaks
An ARREO cannot:
- exercise power in any part of a place used as a residence, except with the consent of the occupier
- enter a place to which access is limited by or under another Act
- exercise a power which would cause any work to cease, except with the consent of the employer or their representative
- intentionally use, disclose or provide information acquired in the workplace, including photographs and recordings, for a purpose not reasonably connected to the exercise of their powers as an ARREO
If an issue arises between the ARREO and the employer or their representative about the exercise of the ARREO's powers, either party can request an inspector to look into the issue.