Safety and health

Contributed by Clare Ozich and current to 1 September 2005

At common law, there is a general duty on employers to ensure the safety and health of their employees during the course of their employment.

In addition to this, there is legislation in Western Australia which is specifically concerned with occupational safety and health: the Occupational Safety and Health Act 1984 (WA) and the Mines Safety and Inspection Act 1984 (WA) (and the Regulations to each of these Acts). Other legislation also provides standards that must be obeyed to ensure occupational health and safety, such as the Radiation Safety Act 1975 (WA), the Poisons Act 1964 (WA) the Explosives and Dangerous Goods Act 1961 (WA) and the Criminal Code (WA).

EMPLOYER RESPONSIBILITIES

Under occupational health and safety legislation, employers have a duty to provide and maintain a working environment in which employees are not exposed to hazards. The employer’s duty of care includes:

• providing and maintaining plant and systems of work so they are hazard free;
• providing information, instruction, training and supervision to employees to enable them to perform their work in such a manner that they are not exposed to hazards;
• consulting and co-operating with employees on health and safety matters;
• making arrangements for ensuring that plant is cleaned, maintained, transported and disposed of so employees are not exposed to hazards; and
• ensuring that substances in the workplace are used, handled, processed, stored, transported and disposed of so employees are not exposed to hazards.

Bullying in the workplace

Bullying is an example of a growing occupational, health and safety issue in WA workplaces. Workplace bullying is defined as repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise at the place of work or in the course of employment which could reasonably be considered as undermining a person’s dignity. Bullying may consist of actual harm or intimidation, threatening, offensive, degrading or humiliating behaviour. Employers have a duty under the occupational health and safety legislation to ensure that bullying does not occur in their workplaces, and if it does, to stop it happening. Bullying may also give rise to discrimination or workers’ compensation claims. Worksafe has recently issued a Guidance Note on Workplace Bullying which is available at www.safetyline.wa.gov.au .

EMPLOYEE RESPONSIBILITIES

Employees have a legal responsibility to ensure that they take reasonable care to ensure their own health and safety and also that any act or omission on their part should not adversely affect the health and safety of any other persons at the workplace. To satisfy their duty, employees must comply with all reasonable instructions given by the employer; use protective equipment about which they have been properly instructed; not damage or misuse any equipment provided in the interests of health and safety; and also to report any hazardous situation or accident in the workplace to the employer.

SELF-EMPLOYED OCCUPIERS AND OTHERS

Self-employed persons, occupiers and persons who have control of workplaces must take reasonable care to ensure their own safety and health at work and must also provide workplaces that are free of hazards for all persons, not just employees.

A body corporate which does not employ anyone but which undertakes work or directs work to be undertaken also has a duty to ensure the health and safety of persons is not adversely affected by that work.

Contract work arrangements and labour-hire arrangements are also covered by the provisions of the Occupational Safety and Health Act 1984 (WA).

PENALTIES

There are serious penalties for breaching provisions of the Occupational Safety and Health Act 1984 including imprisonment in circumstances of gross negligence.

WORKPLACE HEALTH AND SAFETY REPRESENTATIVES AND COMMITTEES

Employees are entitled to elect representatives to look after their interests in the workplace. The role of these representatives is to be involved in inspections of the workplace; to continue flow of information from the employer to the employees about safety and health issues; and to consult with employers on behalf of, or with, employees.

Employees are also entitled to representation on health and safety committees at the workplace that decide on important changes to the workplace and set overall policies for the workplace.

ENFORCEMENT

While the emphasis and intent of the legislation is based on workplace co-operation, WorkSafe Western Australia has an enforcement role if and when consultation has taken place and the issue cannot be resolved.

The Inspectorate enforcing the Act does this by either issuing improvement notices or prohibition notices. Health and safety representatives who have completed relevant training can also issue Provisional Improvement Notices (PINS) which have similar effect to improvement notices issued by the Inspectorate. Employers can ask that PINS be reviewed by an inspector. Failure to comply with such notices will lead to prosecution of the employer under occupational health and safety legislation, for which the employer will face serious penalties.

Any employee who has concerns regarding health and safety at the workplace should discuss them with their health and safety representatives. It is also to be noted that employees are under law to report potential hazards at the workplace to their employer. There is protection under occupational health and safety legislation for employees who may be discriminated against for being a health and safety representative or raising any health and safety issue.

The Occupational Safety and Health Tribunal has jurisdiction to determine matters relating to health and safety representatives and committees and improvement and prohibition notices. It is to be noted that any other health and safety breaches at work may result in prosecution under other legislation. For instance, an employer whose negligence leads to the serious injury or death of an employee may face criminal charges.