Sex work health and safety responsibilities

Protecting work health and safety

If you work in the sex industry, there are laws to keep you safe and laws you must follow to keep others safe. One of those laws is the Occupational Health and Safety Act 2004. It's known as the OHS Act. The OHS Act helps protect work health and safety. It gives people responsibilities to control risks to health and safety at work. The definition of health under the OHS Act includes psychological health.

The Occupational Health and Safety Regulations 2017 are another set of laws. Known as the OHS Regulations, they build on the OHS Act. They set out how to fulfil duties and obligations and processes that support the OHS Act.

Work health and safety is also called occupational health and safety. It's better known as OHS. The OHS Act sets out key principles, duties and rights about OHS.

The OHS Act helps keep employees and other people healthy and safe at work. It does this by setting rules to identify hazards and control risks.

Aim of the OHS Act

The aim of the OHS Act is to:

• protect the health, safety and welfare of employees and other people at work
• eliminate risks to the health, safety or welfare of employees and other people at work
• ensure the work of employers and self-employed people does not create risks to the health and safety of members of the public
• involve employees, employers and organisations representing those people in making and applying health, safety and welfare standards

OHS Act health and safety principles

The OHS Act has 5 health and safety principles. They are:

1. The health and safety of employees, other people at work and members of the public is important. Health and safety must have the highest level of protection against risks that is reasonably practicable.
2. People who control or manage matters that cause or may cause health or safety risks are responsible for eliminating or reducing those risks. They must eliminate or reduce risks so far as reasonably practicable.
3. Employers and self-employed people should be proactive to ensure health and safety at workplaces and in the conduct of their work. They have to do everything that is reasonably practicable to ensure health and safety.
4. Employers and employees should share information and ideas about risks. They should also share information and ideas about how to eliminate or reduce risks.
5. Employees have a right to be represented in health and safety issues. They should also be encouraged to be represented in health and safety issues.

The concept of reasonably practicable

'Reasonably practicable' is a legal concept and a requirement under some parts of the OHS Act and OHS Regulations. Simply, it means doing what a reasonable person in the same position would do.

The OHS Act lists 5 matters to consider when working out what is reasonably practicable. Those 5 matters are as follows:

1. How likely is it that the hazard or risk will happen?
2. If the hazard or risk happened, how much harm would it cause?
3. What does the person with a duty know, or should reasonably know, about the hazard or risk and the ways to eliminate or reduce it?
4. The availability or suitability of ways to eliminate or reduce the risk?
5. What is the cost of eliminating or reducing the hazard or risk?

The answers will help decide what is reasonably practicable. They will help work out what a reasonable person in the same position would do to control the risk.

For example, a sex work premises may have mould in rooms. The mould may be due to poor ventilation or moisture leaks. Mould can cause health problems. The presence of mould may mean the employer or person with management or control of the workplace is not fulfilling their OHS duties. They are not providing and maintaining a working environment that is safe and without risks to health.

It may not be reasonably practicable to replace the roof, ceilings and walls to solve the mould problem. However, to control the risk from mould, it may be reasonably practicable to:

• fix leaks
• install adequate ventilation, heating and insulation
• regularly clean rooms with appropriate cleaning solutions

No single matter determines what is or what was reasonably practicable. The test involves weighing up of each matter in the context of the circumstances and facts of the particular case.

More information about reasonably practicable is available on the WorkSafe website.

Eliminate risks

The OHS Act says risks to workplace health and safety have to be eliminated, so far as reasonably practicable. In other words, do everything that is reasonable to remove risks from the working environment.

Reduce risks

It may not be possible to eliminate a risk. Despite doing everything reasonably practicable to eliminate it, the risk still remains. The OHS Act says that if it is not reasonably practicable to eliminate a risk, the risk has to be reduced. This requires doing everything that is reasonably practicable to reduce the risks.

People with OHS responsibilities

The OHS Act gives people responsibilities to control risks to health and safety at work. People with OHS Act responsibilities in the sex industry include:

• employers
• people who manage or control workplaces
• employees
• self-employed people

Who's an employer?

You're an employer under the OHS Act if you employ one or more people under a contract of employment. If you already employ people, independent contractors you engage are also classified as your employees in some circumstances. This also applies to employees of the contractor.

An employer is a person, with person being defined in the OHS Act to include:

• a body corporate
• an unincorporated body or association
• a partnership

A client of a sex worker is not their employer.

If you're not sure whether you're an employer, seek independent advice from, for example:

• your legal representative
• the Federation of Community Legal Centres
• the Law Institute of Victoria's referral service

Insurance

WorkCover insurance is a service WorkSafe provides. It covers employers for certain costs if workers are injured or become ill because of their work.

WorkCover insurance is compulsory for almost all Victorian employers. Employers' contributions fund the insurance scheme and every employer pays their fair share. You can face severe penalties if you're not registered for WorkCover insurance when you should be.

Information about WorkCover is available on the WorkSafe website or call the WorkSafe advisory service on 1800 136 089.

If you manage or control a workplace?

If you're a person who has management or control of a workplace to any extent, then you have responsibilities under the OHS Act. You must ensure, so far as reasonably practicable, that:

• the workplace is safe and without risks to health
• the means of entering and leaving the workplace are safe and without risks to health

Who's an employee?

You're an employee under the OHS Act if you have a contract of employment. The contract can be a written one or a spoken one.

A sex worker is not an employee of their client.

If you're not sure whether you're an employee, seek independent advice from, for example:

• your legal representative
• the Federation of Community Legal Centres
• the Law Institute of Victoria's referral service

Support and benefits

If you are a worker, WorkCover insurance can provide you with financial support and other benefits after a work-related injury or illness. WorkCover can help if, because of your work, you:

• are unable to perform your normal duties at work
• need medical and like services
• need help to return to work
• have a permanent injury

Information about WorkCover claims and compensation is available on the WorkSafe website. You can also call the WorkSafe advisory service on 1800 136 089.

Who's a self-employed person?

You are self-employed if you work for yourself and do not have employees. You do not have contracts to work for anybody.

OHS duties of employers

Keep employees healthy and safe

If you employ one or more people under a contract of employment, you are an employer. Under the OHS Act, employers have responsibilities to keep employees and others safe and healthy at work.

This means, as an employer you must:

• provide a working environment that is safe
• keep the working environment safe
• do both of these things so far as is reasonably practicable

A safe working environment requires you to:

• provide safe systems of work and ensure the systems of work remain safe
• provide safe equipment and keep it in safe condition
• make sure equipment and substances are used, handled, stored and transported safely
• keep workplaces in a safe condition and free of risks to people's health
• provide adequate facilities for the welfare of employees
• do all these things so far as reasonably practicable

You must also provide employees with the information, instruction, training or supervision they need to work safely.

Duty to independent contractors

Employees may not be the only workers you have to keep safe and healthy at work. If you employ people and also engage independent contractors, you may have duties to those contractors and their employees.

Duty to monitor the workplace

Employers have to monitor health and safety at their workplace. This means you have to make sure the working environment is safe and stays safe. You also have to make sure employees know what is happening about health and safety at work. Importantly, you have to do the following:

• Monitor the health of employees. For example, collect and review incident and injury data.
• Monitor conditions at any workplace under your management or control. For example, monitoring workloads and fatigue.
• Give employees information about health and safety. It must be in a language the employees understand.
• Keep details about employees' health and safety to the extent that is necessary to fulfil your OHS obligations.
• Provide employees with the names of people in the organisation they can contact to make an enquiry or complaint about health and safety.
• Use qualified OHS specialists for OHS advice.
• Do all these things so far as is reasonably practicable.

Workplace is not just a building

A workplace is any place where employees or self-employed people work. It is not just a building or a structure. This means that any place where sex workers work becomes a workplace. OHS laws apply.

A workplace can be, for example, a brothel, strip club, hotel, motel, house, room, office, car or caravan. Whatever the workplace, it must be as safe as is reasonably practicable.

Duty to other people

As an employer, you have a duty to other people your work affects. You must make sure your work does not put people's health and safety at risk. You have to do everything reasonably practicable to ensure this does not happen.

People who may be affected by work activities include, for example:

• clients
• visitors
• salespeople
• delivery people
• members of the public

Duty to consult with employees

The OHS Act says employers have to consult with their employees. This means you must talk to employees about things you are doing that affect or are likely to affect employees' health and safety. You must include independent contractors and their employees in consultation.

You must consult with employees when:

• finding and investigating hazards and risks
• deciding how to control risks
• making decisions about the adequacy of facilities for employees
• working out the membership of health and safety committees
• planning changes to how work is done, if the planned changes may affect employee health and safety
• planning changes to the workplace
• planning changes to the equipment, substances or other things used at the workplace

You must also consult with employees when working out procedures for:

• resolving health and safety issues
• consultation
• monitoring employees' health
• monitoring workplace conditions
• providing information and training to employees

Consultation with employees must involve sharing information about their health, safety and welfare. You have to give employees a reasonable opportunity to share their views. You also have to take employees' views and suggestions into account.

Duties relating to incidents

Employers must notify WorkSafe immediately after becoming aware of certain incidents at work. Incidents include those that result 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:
  • amputationo serious head or eye injuries
  • separation of skin, for example, scalping
  • electric shock
  • spinal injury
  • loss of bodily functions
  • serious laceration

You must also notify WorkSafe about certain incidents that expose people to a serious risk to their health and safety. These incidents include:

• an uncontrolled escape, spillage or leakage of any substance, including dangerous goods within the meaning of the Dangerous Goods Act 1985
• an implosion, explosion or fire
• electric shock
• the fall or release from height of any plant, substance or thing
• the collapse, overturning, failure or malfunction of any plant or damage to specified plant
• the collapse or partial collapse of a building or structure

An employer is not required to notify WorkSafe if the employer is the only person in the incident who is:

• injured
• otherwise harmed
• exposed to risk

Find more information about notifiable incidents and employers' responsibilities on the WorkSafe website.

OHS duties of people who manage or control workplaces

People who manage or control workplaces have OHS duties. If you are a person with any management or control over a workplace, you must ensure:

• the workplace is safe and without risks to health
• the means of entering and leaving the workplace are safe and without risks to health

You must do this so far as reasonably practicable.

Your responsibilities as a person with management or control of a workplace include:

• the building, for example, structural soundness and protection of occupants from the weather
• its services, for example, lighting and ventilation, and fittings such as doors, windows and shelves

These duties apply only in relation to matters you manage or control.

OHS duties of employees

If you have a written or verbal contract of employment, you are an employee. Employees in the sex industry have legal obligations. As an employee, you must take reasonable care for your own health and safety. You must also take reasonable care for the health and safety of people your work may affect. You should not:

• engage in behaviour that could harm people
• take short-cuts that could reduce the level of safety

Employees must cooperate with their employer's efforts to comply with the OHS Act or regulations. You can do this by:

• following the workplace safety policies and procedures
• attending health and safety training and following the instructions and advice provided
• safely using equipment supplied by the employer

You must not intentionally or recklessly interfere with or misuse anything the employer has provided at work in the interests of workplace health, safety or welfare.

You can help prevent risks to workplace health and safety by notifying the employer of any hazards.

OHS duties of self-employed people

Self-employed people work for themselves and do not have employees. They do not have contracts to work for anybody.

Responsibilities

As a self-employed person, you have obligations under the OHS Act and OHS Regulations. You must ensure your business or work does not expose people to risks to their health or safety. You, as a self-employed person, must do this so far as is reasonably practicable.

You also have a responsibility to report notifiable incidents to WorkSafe if other people are injured, harmed or exposed to a serious risk. This means you must notify WorkSafe immediately after becoming aware of certain incidents at work. Incidents include those that result 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, for example, scalping
  • electric shock
  • spinal injury
  • loss of bodily functions
  • serious laceration

You must also notify WorkSafe about certain incidents that expose people to a serious risk to their health and safety. These incidents include:

• an uncontrolled escape, spillage or leakage of any substance, including dangerous goods within the meaning of the Dangerous Goods Act 1985
• an implosion, explosion or fire
• electric shock
• the fall or release from height of any plant, substance or thing
• the collapse, overturning, failure or malfunction of any plant or damage to any plant
• the collapse or partial collapse of a building or structure

Find more information about notifiable incidents and about employers' responsibilities on the WorkSafe website.

Workplace safety

Under the OHS Act, a workplace is any place where employees or self-employed people work. As a self-employed person, this means wherever you work becomes a workplace and OHS laws apply. Your workplace could be, for example, a room in your home, a hotel or motel, a car or a caravan. Whatever the workplace, you must ensure your work does not expose people to risks. You must do this so far as is reasonably practicable.