Health and safety responsibilities

The objects of the OHS Act are to:

• protect the health, safety and welfare of employees and other people at work
• eliminate, at the source, risks to the health, safety and 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.

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. Their 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 should do everything that is reasonably practicable to ensure health and safety.
4. Employers and employees should share information and ideas about risks to health and safety. They should also share information and ideas about how to eliminate or reduce those 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.

'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:

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. What is 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.

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

How WorkSafe applies the law in relation to Reasonably Practicable

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

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

You're an employer under the OHS Act if you employ one or more people under a contract of employment or training.

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.

Additionally, you will be considered an employer of labour hire workers placed with you by a labour hire company.

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.

If you're not sure whether you're an employer, seek independent legal advice.

If you're a person who has management or control of a workplace to any extent, then you have duties under the OHS Act.

A person who manages or controls a workplace, sometimes known as 'the occupier', can include:

• an employer
• the building or site owner
• the property management or tenant of a building or site where there is a workplace.

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. If you’re engaged by a labour hire company and placed with a host employer, you are taken to be an employee of the host employer.

If you're not sure whether you're an employee, seek independent legal advice.

You’re self-employed if you work for yourself and do not have employees. You do not perform your work under a contract of employment or training.

If you employ one or more people under a contract of employment, you are an employer. Under the OHS Act, employers must provide and maintain a working environment that is safe and without risks to health, 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.

Employers owe the same duty to:

• independent contractors working at the workplace
• contractors' employees

This duty applies only for matters over which the employer has, or should have, control.

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

A 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 office work happens is likely to be a workplace. OHS laws apply.

A workplace can be, for example:

• a room
• an office
• a car
• a home office
• a caravan.

Whatever the workplace, it must be as safe as is reasonably practicable.

As an employer, you have a duty to other people your work affects. You must make sure your work or the work carried out by your business does not put people's health and safety at risk. You must 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.

The OHS Act says employers must consult with their employees about things you are doing that directly affect, or are likely to directly affect, employees' health and safety. You must do this so far as is reasonably practicable.

If the workplace has any health and safety representatives (HSRs), they must be consulted as part of this process.

Your employees may include:

• independent contractors
• the employees of independent contractors
• labour hire workers.

You must consult when:

• finding and assessing hazards and risks
• deciding how to control risks
• making decisions about the adequacy of facilities for the welfare of 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 when working out procedures for:

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

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

The OHS Regulations (r.21) say how employers must involve HSRs in consultation where it is required under the OHS Act or Regulations. This includes employers:

• giving HSRs the same information that they provide, or intend to provide, to the employees
• giving that information to HSRs a reasonable time before the employees, unless it is not reasonably practicable to do so
• inviting HSRs to meet, and meeting to consult on matters
• giving HSRs a reasonable opportunity to express views about the matter
• considering the HSRs’ views about the matter.

Find out more about consulting with HSRs.

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:  
  • amputation
  • serious head or eye injuries
  • separation of skin; for example, scalping or degloving
  • electric shock
  • spinal injury
  • loss of a bodily function
  • serious laceration.

Employers 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.

Notifiable incidents and employers' responsibilities.

Keeping a register of injuries

The Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) is another set of laws that addresses what happens when a Victorian employee is injured or killed. It covers:

• insurance
• workers compensation
• claims
• rehabilitation
• return to work
• dispute resolution.

The WIRC Act requires employers to keep a register of injuries. Under the WIRC Act, a worker or person acting on a worker’s behalf may enter workplace particulars of an injury in the register (WIRC Act s17(2)).

If employers become aware of a workplace injury not in the register, they must enter workplace particulars about the injury, as far as is reasonably practicable (WIRC Act s17(3)). Employers should check the injury register, first aid reports and workers compensation claim forms for information about the:

• work tasks
• area in which work is performed
• activity being undertaken at the time of injury.

They should also check the factors thought to be related to the incident and the type of symptoms or injury reported.

Employers should check particularly for:

• reports of pain in the back, neck, shoulders and upper limbs
• cuts or bruising
• trips and falls
• headache and vision problems
• reports or symptoms of stress.

Under the OHS Act, a workplace is any place where employees or self-employed people work. As a self-employed person, wherever you work becomes a workplace and OHS laws apply. Your workplace could be, for example, a:

• home office
• car
• 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.