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 aims to:
- secure the health, safety and welfare of employees and other people at work
- eliminate at the source all risks to the health, safety or welfare of employees and other people at work
- ensure employers' business activities do not place members of the public at risk
- involve employers, employees and the organisations that represent them in the preparation and implementation of health, safety and welfare standards
The OHS Act regulates occupational health and safety (OHS) by making employers work proactively and take every reasonable action to ensure health and safety in their business activities.
Who is an employer?
If you have one or more employees, you are an employer. An employer can be a:
- partnership, unincorporated association, franchising operation or not-for-profit organisation
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
Volunteers are not employees, even if they receive out-of-pocket expenses.
Duties of an employer
- Protection from harm in the workplace
- Duty to monitor health and conditions
- Duty to other people
- Duty to consult employees
- Duties relating to incidents
- Prohibition of discrimination
Licences, registration, permits and other requirements
Some high-risk plant, substances and activities in workplaces require employers to have licences or other permits. An employer must not undertake any business activity without the appropriate licences and required registrations.
Employers must ensure those who carry out work requiring specialist licences, registrations, permits or certificates of competency are properly qualified, experienced and supervised.
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.
Employers need to be aware of the role and powers of ARREOs, who may enter workplaces under limited circumstances.
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 includes a description of 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. In order 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 that is 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 the attendance of an inspector to look into the issue.
Duties owed by others
People other than employers who are involved in a workplace have complementary duties, including:
- those who manage and control workplaces, such as the owner of the building a workplace occupies
- designers, manufacturers and suppliers of plant in the workplace
- manufacturers and suppliers of substances in the workplace
- people installing, erecting or commissioning plant at the workplace
Overlapping and co-existing duties
Employers continue to have duties and must take every reasonable care to maintain a safe workplace, regardless of other parties, such as contractors or building owners who have some management and control of the workplace.