Worker/HSR - Legislative obligations
Further Information
Worker
The WHS Act adopts a broad definition of ‘worker’ to recognise the changing nature of work relationships and to ensure health and safety protection is extended to all types of workers.
Workers under the WHS Act include:
- employees
- independent contractors
- sub-contractors
- outworkers – e.g. home based
- apprentices
- work experience students
- trainees
- volunteers who work in employment-like setting.
What are my duties as a worker?
- As a worker, you have a duty to take reasonable care for your own health and safety while at work, and ensure your acts or omissions do not adversely affect the health and safety of other persons in your workplace.
- Your duty of care is considered in relation to what is reasonably expected, taking into account the degree of control you have over your work activities and work environment.
- You must comply with any reasonable instruction that is given to you by the person conducting a business or undertaking (PCBU) to allow the PCBU to comply with the WHS laws.
- As a worker you must cooperate with any reasonable policy or procedure of the PCBU which you have been told about, and which relates to health and safety in the workplace.
Participate in work groups
Work groups are groups of workers who can be represented by HSRs in relation to health and safety matters affecting workers.
The definition of worker is broad and can include:
- employees
- independent contractors
- sub-contractors
- outworkers – e.g. home based
- apprentices
- work experience students
- trainees
- volunteers who work in employment-like setting.
The laws do not limit the determination of work groups and the work group may be determined for workers at one or more workplaces.
The work group is to be determined by negotiation and agreement between the person conducting the business or undertaking; and the workers who will form the work group or their representative.
Right of worker to cease unsafe work
A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.
The WHS Act requires workers who cease work to notify the relevant PCBU that they have ceased unsafe work as soon as practicable after doing so. It also requires workers to remain available to carry out ‘suitable alternative work’. This would not however require workers to remain at any place that poses a serious risk to their health or safety.
PCBUs are able to re-direct workers who have ceased unsafe work to carry out suitable alternative work at the same or another workplace. The suitable alternative work must be safe and appropriate for the worker to carry out until they can resume normal duties
Duties of others
All other persons at a workplace, such as visitors or customers, have health and safety duties. They include:
- Taking reasonable care for their own safety at the workplace, and ensuring that their acts or omissions do not adversely affect the health and safety of others at the workplace.
- Complying, so far as they are reasonably able to, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the WHS laws.
Health and Safety Representative (HSR) - my role, duties and powers under the WHS laws
As a HSR you have broad powers under the WHS Act to promote the health and safety of the workers in your work group. Broadly, your powers extend to:
- Inspecting the workplace of members of a work group if: there has been a recent accident or dangerous occurrence; where there is an immediate threat of an accident or dangerous occurrence; after giving the PCBU reasonable notice of the inspection.
- Making a request to an inspector, or the regulator, that an investigation be conducted in the workplace.
- Accompany an inspector during an investigation.
- Representing the members of the work group in health and safety consultations with the PCBU.
- Initiating emergency stop-work procedures.
- Issuing provisional improvement notices (PINs).
Who has to ensure consultation takes place?
Your PCBU must ensure consultation occurs when you are, or could be, affected by matters relating to work health or safety. You have a responsibility to participate in this consultation with your PCBU, and comply with any policy or procedures put in place for your health and safety.
What’s my role in consultation?
- submit your ideas and thoughts
- become actively involved in work health and safety in your workplace
- participate in activities and programs
- keep up-to-date with changes in the laws and what they mean to you and your workplace
- be informed - view your intranet and Comcare’s website
- talk to your HSRs and employee representatives about issues and ideas for health and safety in your workplace
- lead by example.
There are a number of things that your PCBU must do when consulting you. They must:
- Share information with you about the health and safety matter.
- Give you a reasonable opportunity to ask questions and have your say.
- Take your views into account – this should happen before a final decision is made.
HSRs must be involved in any consultations whether or not you as a worker are consulted directly.
See ‘Information for employees on health and safety’ (WorkSafe Victoria).
Notifications of safety incidents
PCBUs have the overall duty to notify the regulator for certain serious injuries or illnesses that arise out of work, and dangerous incidents that occur at a workplace. A PCBU must notify immediately once they become aware of a notifiable incident by the fastest possible means.
What’s my role as a worker to report incidents?
As a worker, you need to be proactive in recognising potential hazards in the workplace and reporting that hazard to your HSR, manager or work health and safety team. Don’t wait until an incident has occurred to notify.
If you are involved in, or witness an incident in the workplace, it needs to be reported as soon as possible after it occurs to your managers. This will assist the PCBU to meet their notification duties as required by the WHS Act. Make sure you are familiar with the procedures in your workplace that outline the actions you should take when reporting an incident.
See Case study: The consequences of not reporting safety incidents.
The WHS Act
The WHS Act is not significantly different from many current work health and safety laws. Much of it is based on policies that are common to many jurisdictions.
The intention is for each jurisdiction to enact the provisions, subject to permitted minor variations that are needed to ensure the provisions are workable in each jurisdiction and interact effectively with local laws without affecting harmonisation.
When the harmonised work health and safety laws are in place across Australia, it will be easier for businesses and workers to comply with their work health and safety responsibilities because the requirements will largely be the same, regardless of how many states and territories they operate in.