Did you know that in Australia, most work-related injuries are caused by body stress, falls, slips, trips, and being hit by moving objects? And that work-related mental health conditions are on the rise, with time off work in these cases being more than four times longer than for physical injuries?
In Australia, everyone has the right to a healthy and safe workplace, so it’s essential that you’re aware of your responsibilities and obligations as an employer. Whether you’re in charge of a small business or work in a large corporation, health and safety is an area that should always be taken seriously.
To understand your workplace health and safety obligations as an employer, check out our comprehensive guide on Understanding Workplace Health and Safety.
In early 2024, employment law experts Sanam Ahmadzadeh Salmani, Legal Counsel at Employment Hero and Simon Obee, Principal Lawyer at EI Legal, shared everything you need to know about workplace health and safety. The session was followed by a Q&A at the end and we compiled the questions that weren’t answered live below. These answers contain general information only and you should seek professional advice on your own individual circumstances.
To catch up on the one-hour session, you can watch it here.
Disclaimer: The information in this webinar is relevant as at 14 March 2024, and has been prepared by Employment Hero Pty Ltd ABN (11 160 047 709) (Employment Hero). The views expressed herein are general information only and are provided in good faith to assist employers and their employees. The Information is based on data supplied by third parties. While such data is believed to be accurate, it has not been independently verified and no warranties are given that it is complete, accurate, up to date or fit for the purpose for which it is required. Employment Hero does not accept responsibility for any inaccuracy in such data and is not liable for any loss or damages arising either directly or indirectly as a result of reliance on, use of or inability to use any information provided in this webinar.
Psychosocial hazards
When consulting on psychosocial hazards, what would be a practical way to do this. Do you need to be ‘proactive’ and address all the common ones you listed earlier?
There is no “one size fits all” approach to consultation and what is appropriate in your organisation will be impacted by the size of the business, the resources it has available and the risks it faces.
Obligations under WHS laws do require you to be proactive, in the sense that the obligation to provide a safe place of work requires continual processes to identify hazards, assess risks and take steps to mitigate those risks.
One approach that you could consider if you are consulting on psychosocial hazards for the first time would be to provide your employees with information on all the common psychosocial hazards that arise in workplaces and then give employees an opportunity to comment on those that they consider are present in your workplace. You could do this through various means including by an anonymous online survey, in focus groups with small numbers of employees, or in 1:1 meetings.
Once you had compiled this data and combined it with management’s observations of the various hazards you would then be in an informed position to make decisions about which areas you needed to focus on addressing.
If there appeared to be no risk of a particular hazard ever occurring, you would not be expected to devote resources on addressing this hazard. For example, being exposed to traumatic events will not be a focus of some workplaces (whilst it will be in others).
There is a wealth of information out there on addressing psychosocial hazards – SafeWork Australia is a good starting place or you can read our blog on understanding psychosocial hazards in the workplace.
Where do psychosocial hazards sit within WHS legislation?
An employer’s duty under the model Work Health & Safety Act 2011 to ensure the health and safety of workers is expressly stated to include their physical and psychological health. Beneath the Act there are model regulations on psychosocial hazards and a model Code of Practice on Managing Psychosocial Hazards at Work, which explains how to comply with the law in this area. Learn more here.
WorkSafe Victoria has not yet implemented or legislated WHS changes dealing with psychosocial hazards, what is best practice here?
You are right that Victoria has not yet amended its WHS regulations to include specific provisions about psychosocial risks. (See: the latest version of Vic OHS reg and WorkSafe Vic’s status page on the psychosocial amendments)
But this doesn’t mean that employers can be lax about psychosocial safety – there’s still the overarching duty to provide and maintain a working environment that is safe and without risks to employee’s health (s.21 of the Occupational Health and Safety Act 2004 (Vic)). This includes physical and mental health safety.
A good starting point is implementing the measures outlined in the model code of practice on managing psychosocial risks and WorkSafe Vic’s guidelines on managing psychosocial hazards.
This will go a long way in demonstrating that your business has discharged its duties under WHS laws.
Health and safety representatives and committees
Do we have to conduct a secret ballot to ask staff if they want a WHS representative or committee and then elect them? Any advice on how to do that?
It is not mandatory for workplaces to appoint a WHS representative to represent workers, it is only where workers request that this occurs that an employer must facilitate this.
The basic process is where a request is received, the employer must negotiate with workers to form a “Work Group” made of a fair representation of workers, who will then vote on appointing a health and safety representative.
Workers in the work group can decide how the elections to appoint a health and safety representative will be conducted. There is no set procedure and this could be done, for example, with a show of hands, or they may decide a secret ballot is more appropriate. The employer will need to provide facilities to organise such a vote.
There is more information on the processes to follow when you receive a request for a WHS representative here.
It is of course possible to have more informal health and safety committees that report to leadership on safety issues, usually composed of volunteers from across the business. Such committees can be appointed outside of the requirements of WHS legislation and have terms of reference as decided upon by the company (ideally following consultation with workers).
The situation is the same in Victoria – there’s no strict requirement for an employer to form a WHS committee or appoint a WHS representative. If an employee requests to establish a WHS “designated work group”, you must ensure you do everything you reasonably can to start negotiations within 14 days after the request (s.43 of the Occupational Health & Safety Act 2004 (Vic)).
As for electing a health and safety representative, the same rules apply – only members of the designated work group can elect their health and safety representative (s.54 of the Occupational Health & Safety Act 2004 (Vic)). Again, there’s no set procedure on how the election is to be conducted, so it’s up to the members to decide how to do this (e.g., show of hands, secret ballot, etc…). If members disagree on how to conduct an election, they can ask the “Authority” (i.e., a WorkSafe Vic Inspector) to conduct an election for them (see s.54(4) of the Occupational Health & Safety Act 2004 (Vic), and this guidance).
Is having a WHS Committee a requirement or best practice? What would you recommend for a business of 20 people in an office environment?
As noted above, there is no requirement to have a WHS committee. Only where workers request a WHS representative be appointed does an employer have to establish a Work Group so that a WHS representative can be elected.
It is, however, a very useful tool to appoint a WHS committee outside of the obligations under WHS legislation. This allows the members of the committee to discuss safety issues and improvements on a regular basis and make recommendations to management.
If you have a small workforce, the committee could (for example) just be a handful of people and meet quarterly for an hour or so. This would still provide a useful feedback loop for the business.
Working from home
As an organisation with staff working from home in different states do we use the WHS legislation that applies to the state of residence of each employee?
Unfortunately there is not a straightforward answer to this question, as the extent that each state or territory’s legislation applies to workers physically located in other locations varies depending on the exact drafting of the legislation.
It will also be impacted by the extent that the worker’s work is “connected” to a different location to where they are physically located. We therefore recommend that you seek professional advice on this point and please reach out to info@eilegal.com.au if we can help.
From a practical standpoint, though, WHS duties across all state/territory statutes are framed very similarly. Any minor differences shouldn’t materially affect the way you discharge those duties. As long as you conduct a proper risk assessment, consult the affected staff and implement appropriate controls to eliminate or if not possible, reduce the risks as far as reasonably practicable, you should be in a solid position from a compliance standpoint.
How can you apply or monitor WHS when a person is working from home?
As with most WHS duties, there is a test of what is reasonably practicable for an employer to do. It would generally be accepted that an employer has less control over a worker’s environment when they are working from home compared to in a premises controlled by the employer.
However, there are still effective ways that an employer can protect and monitor employees working from home. For example you could consider:
- Providing an employee with clear instructions about setting up their workstation safely
- Requiring employees to (periodically) provide photo / video evidence of their workstation set up
- Having regular 1:1s with workers where health and safety issues are discussed
- Providing training to workers on particular health issues that might arise whilst working from home (eg those associated from being seated in one position for prolonged periods, psychosocial risks from isolation, overwork, workplace bullying, etc)
Can you direct me to a usable template for a working from home / working from the office hybrid situation, where the arrangements are not fixed (for Victoria)
If you would like to reach out to us at info@eilegal.com.au we can help you with this.
Employment Hero
Does Employment Hero have sample WHS policies?
Yes. A template WHS policy is available through the Employment Hero app or you can download one here.
Can I customise the incident report template in Employment Hero?
Not at present, however we will consider this as something we can introduce in the future.
Are you looking into improving the reporting side of incidents in Employment Hero? We currently use custom reporting, but it is very basic. Love for it to be part of the standard reporting platform.
Thanks for your feedback. We’ve recently made some enhancements to our reporting feature. We’ve created a new Build Your Own Chart feature in the new Build Your Own Report experience. Now you can level up your insights with customisable charts, improved data fields, and a dynamic visual experience, available now on Platinum and Premium subscriptions.
General questions
I am having a hard time getting my organisation to care about this – more so our CEO and Board, and a bunch of incidents happened last year that haven’t really been followed up. I have no idea what to do!
If you’d like to put your CEO in touch with us at at info@eilegal.com.au we’d be more than happy to discuss ways in which we can help.
Is there a check-list or a guide to know if you have all your policies up to date?
Given the breadth of WHS obligations, it’s difficult to cover absolutely everything in one document, but a good start would be this checklist from SafeWork Australia. You can view it here.
Please advise where to find the free assessment tool for sexual harassment. Thank you.
Where can I find the requirements for what a medium sized business (up to 60 employees) needs from WHS obligations?
Most of the information on SafeWork Australia relating to small businesses would also apply to a business of up to 60 employees. This would be a good place to start.
Please reach out to info@eilegal.com.au if you require any further assistance.
Is there a legal requirement to hire a trained health and safety professional in an organisation when your business has 20 and up staff?
No. There is no specific requirement on any sized business to have a dedicated specific health and safety role. Your obligations are to provide appropriate resources for the size and nature of your business. Whether or not you wish to hire a WHS professional internally will be impacted by what safety activities other managers and members of the leadership team are able to perform.
In an industry such as manufacturing and construction how important is hiring a health and safety officer?
As above, it is going to depend on what safety activities other managers and members of the leadership team are able to perform. There is no reason why a manager cannot be trained to perform health and safety inspections, carry out risk assessments, deliver health and safety training to staff, etc. Many larger organisations – particularly those in high risk industries like the ones you mention – do prefer to hire a dedicated health and safety office, but there is no strict requirement to do so.
If you are in a shared serviced office and they provide a First Aid Officer and you also have a first aid kit in your office, do you need to be a First Aid Officer to check the kits etc
We are not aware of a strict rule that says only designated First Aid Officers can check first aid kits. It is important in all workplaces that there is adequate access to first aid kits and there is access to an adequate number of people that can administer first aid. It is also important that first aid kits are adequately maintained, but this does not necessarily have to be done by the First Aid Officer.
We are currently struggling with aggressive clients over the phone and putting together an Occupational Violence & Aggression (OVA) policy, using the DHHS framework, however it’s still problematic given we have a health duty of care for both the client and employees. Some clients will call repeatedly to abuse the staff as there may be underlying mental health issues which we do not have expertise for. We have the zero tolerance signage, messaging etc. Can you direct us to any other resources?
SafeWork Australia have resources on this topic here.
WorkSafe Victoria also has some great resources, including a template OVA policy. The Victorian documents could easily be adapted for other jurisdictions. Learn more here.
Other things you could consider are:
- Providing training to all employees on dealing with violence or aggression (and ways to de-escalate these things) – there are a number of specialist providers that can help with this
- Making sure that employees are regularly monitored whilst at work, so that any aggression towards them can be spotted
- Ensuring that there is easy access to managers when employees need to raise the fact that they have been faced with aggression
- Having appropriate reporting mechanisms and conducting appropriate hand-over processes (eg at the end of shifts) so any cases of aggression can be identified
- Ensuring regular 1:1s and team meetings are held so employees have forums to raise issues of aggression
- Consider providing employees with access to an Employee Assistance Program (EAP), so they can raise issues with a confidential, independent, third-party
Read more: 6 tips for improving workplace health and safety in 2023.
What should a support worker do if they suspect a client is carrying illegal substances while they are driving together in the support worker’s car? What are the potential consequences for the support worker?
This sounds like a situation where you need advice on your specific situation, please contact EI Legal for further help at info@eilegl.com.au
