Sex work: Safety basics

Understand your role, responsibilities and rights in the sex industry

The sex industry is an industry with many different working arrangements. It's also an industry with a diverse workforce and a range of hazards and risks.

It can be difficult to work out people's roles in the sex industry. It can also be difficult to work out who has legal responsibilities and what those responsibilities are.

The following guidance may help you understand your role in the sex industry. It may also help you understand your health and safety rights and responsibilities. As well, it may help you know the role, rights and responsibilities of others.

Who has responsibilities?

Just like in any other industry, there are laws to keep people safe in the sex industry. 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.

People in the sex industry with OHS Act responsibilities include:

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

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 a reasonable person in that situation would do 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.

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.

Who's an employer in the sex industry?

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 is not the employer of a sex worker.

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

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

Your responsibilities as an employer

If you are an employer you have legal responsibilities. This includes responsibilities under the:

• OHS Act
• OHS Regulations

The following information explains some of your responsibilities as an employer.

Consultation

Involving your employees in health and safety issues can result in a safer workplace. In certain situations you must consult about health and safety issues. Consultation must include affected employees. It must also include employees who are likely to be affected. You must also consult with any health and safety representatives, also known as HSRs.

Consultation must take place so far as reasonably practicable. In other words, you must do everything that is reasonable to consult with employees and any HSRs . This includes:

• sharing information about the matter on which you are required to consult
• giving employees a reasonable opportunity to express their views about the matter, and
• taking those views into account

Risk management

A hazard is something that can cause harm. A risk is the chance of a hazard causing harm. Harm includes injury, illness and death.

As an employer, you must control the hazards and risks in your workplace. Follow these steps to manage risks:

1. Find the hazards in your workplace.
2. Assess the risks associated with those hazards.
3. Control the risks.
4. Monitor and review your risk controls. Revise the controls if they are not working.

In some cases you may have to do a formal risk assessment to work out how to control risks. But you don't have to do a formal risk assessment if there is already information about the risk and how to control it.

WorkSafe has guidance to help you control hazards and risks at work.

Health and safety legal duties

Employers have legal responsibilities to keep employees and others safe and healthy at work.

For example, you must, so far as reasonably practicable:

• provide a working environment that is safe
• keep the working environment safe
• give your employees the information, instruction, training or supervision they need to do their work safely
• ensure the way you run your business does not endanger other people, including clients

Your responsibilities also include a duty to report notifiable incidents to WorkSafe. Information about notifiable incidents is on the WorkSafe website.

More information about employers' duties is available from WorkSafe.

If you manage or control a workplace

People who manage or control workplaces have OHS Act 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 is reasonably practicable.

These duties apply only in relation to matters over which you have management or control.

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. Occupational health and safety 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.

Who's an employee in the sex industry?

You are 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. You can obtain independent advice from, for example:

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

Your rights as an employee

As an employee, your rights include the right to:

• work in a safe working environment
• the information, instruction, supervision and training you need to work safely
• be consulted on issues that will affect or are likely to affect your health and safety
• representation on occupational health and safety issues in the workplace

Your responsibilities

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.

As an employee, you must cooperate with your employer's actions to comply with:

• the OHS Act
• the OHS Regulations

More information about your rights and responsibilities at work is available from WorkSafe.

Who's a self-employed sex worker?

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

Your responsibilities as a self-employed person

Self-employed people 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 must do this so far as reasonably practicable.

Your responsibilities also include a duty to report notifiable incidents to WorkSafe. You can find more information about notifiable incidents on the WorkSafe website.

If you're not sure whether you're a self-employed person, seek independent advice. You can obtain independent advice from, for example:

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