Information for employers: Occupational Health and Safety Act 2004

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:

• person
• company
• 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

Employers have a duty to protect the health and safety of employees while at work. Employers must, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health.

Employers must eliminate or reduce risks so far as is reasonably practicable by:

• providing and maintaining safe plant so that all machinery, equipment and tools are suitable for their purpose, guarded where necessary and maintained in a safe condition
• arranging safe systems of work – for example, how work is organised, including work processes and safe operating procedures, work arrangements, the pace of work and procedures to prevent and manage fatigue, occupational stress and violence
• maintaining the workplace in a condition that is safe and without risks to health, including space, layout, security, lighting, ventilation and noise control
• implementing procedures for the safe use, handling, storage and transport of plant and substances
• providing adequate facilities for the welfare of employees, such as drinking water, toilets, eating areas and first aid
• providing employees with the information, instruction, training and supervision they need to do their jobs safely and without risks to health

Before determining what is reasonably practicable in a given situation, an employer must consider:

• the likelihood of the hazard or risk actually occurring – that is, the probability the work being done could injure or harm someone
• the degree of harm that would result if the hazard or risk occurred – for example, fatality, multiple injuries, medical or first aid treatment, long or short-term health effects
• the availability and suitability of ways to eliminate or reduce the hazard or risk
• what the employer knows, or should reasonably know, about the hazard or risk and any ways of eliminating or reducing it
• the cost of eliminating or reducing the hazard or risk – that is, employers must implement control measures unless the risk is insignificant compared with the cost of implementing the control measures

Duty to monitor health and conditions

Employers also must take whatever action is reasonably practicable to:

• monitor the health of employees – for example, collection and review of incident and injury data, regular hearing tests for employees in noisy environments and analysis of results
• monitor workplace conditions – for example, measuring air quality if work involves potential exposure to dust or fumes, monitoring workloads and fatigue
• provide information about health and safety in a way that is suitable for employees, both in terms of the language used and the style of presentation
• keep information and records on employees' health and safety
• provide employees with the names of people in the organisation they can contact to make an enquiry or complaint about health and safety
• employ or contract people with OHS qualifications to advise on employees' health and safety. For example, workplace circumstances may require a consultant hygienist to monitor lead levels or an ergonomist to advise on manual handling risks

Duty to other people

Employers also have a duty to people who are not their employees. Employers must, so far as is reasonably practicable, ensure their business activities do not put the health and safety of members of the public at risk. For example:

• People passing a building site must be protected from the risk of falling objects and from traffic entering or leaving the site.
• Visitors to a factory, including truck drivers making deliveries and customers, must be protected from exposure to hazardous areas or moving equipment.
• Patients, residents, relatives and visitors at a health care facility must be protected from infectious diseases.
• A gardening business working in a public area such as a park must ensure members of the public are not exposed to risks such as being hit by falling branches when trimming trees or flying stones when cutting grass.

Duty to consult employees

Employers must consult with employees, so far as is reasonably practicable, on issues that may directly affect their health and safety, especially when:

• identifying or assessing hazards or risks
• making decisions about controlling the risks
• deciding on the adequacy of facilities for employees
• developing procedures to resolve OHS issues
• developing procedures regarding employee consultation, the monitoring of employees' health and workplace conditions and for providing information and training to employees
• determining the membership of health and safety committees
• proposing changes to how work is done or changes to the workplace, plant, substances or other things used at the workplace

This 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 employees' views and contributions

Health and safety representation

Employees have the right to representation by health and safety representatives (HSRs) who are elected to represent a designated work group (DWG). A DWG is a grouping of employees set up in a way that best represents their OHS interests and ensures access to their HSR.

If an employee asks their employer to establish 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 be able to 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 agreed between the employer and employees, 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 is unable to.

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
• accompanying a WorkSafe inspector during an 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 necessary facilities and assistance for HSRs 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 is affected by the notice 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.

Resolving issues

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 sufficiently competent to act for the employer and must not be an HSR.

Duties relating to incidents

Notify WorkSafe following incidents

An employer must notify WorkSafe immediately after becoming aware of an incident that results in the death or serious injury of a person. Serious injuries include those that require:

• medical treatment within 48 hours of exposure to a substance
• immediate treatment in hospital as an in-patient
• immediate medical treatment for the following injuries: amputation, serious head or eye injuries, separation of skin (eg scalping), electric shock, spinal injury, loss of bodily functions or serious laceration

Employers must also notify WorkSafe of incidents that expose a person to a serious risk to their health or safety emanating from an immediate or imminent exposure to:

• an uncontrolled escape, spillage or leakage of any substance, including dangerous goods within the meaning of the Dangerous Goods Act 1985, or
• an implosion, explosion or fire, or
• electric shock, or
• the fall or release from a height of any plant, substance or thing, or
• the collapse, overturning, failure or malfunction of, or damage to, any plant, including plant in relation to a mine, that is prescribed by the Occupational Health and Safety Regulations 2017 (OHS Regulations), or the design of which must be registered in accordance with the OHS Regulations, or
• the collapse or partial collapse of a building or structure, or
• the collapse or failure of an excavation or mine or of any shoring supporting an excavation or mine, or
• the inrush of water, mud or gas in workings in a mine, underground excavation or tunnel, or
• the interruption of the main system of ventilation in a mine, underground excavation or tunnel

Within 48 hours of the notification, an employer must also give a written record of the notifiable incident to WorkSafe and retain a copy of the record for 5 years. The employer must make copies available for:

• a WorkSafe inspector
• the person affected by the incident or their representative
• the HSR for the affected DWG, if there is one
• the members of the health and safety committee, if there is one

Do not disturb an incident site

Where a notifiable incident has occurred, the site of the incident must not be disturbed until an inspector arrives or when directed by an inspector. This requirement does not apply where a site has to be disturbed to protect the health and safety of a person, to aid an injured person or to take essential action to make the site safe.

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.

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:

• employees
• 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.