Work Health and Safety laws (WHS) form a critical part of an employee’s rights and protections in the workplace. Along with rights under the Fair Work Act 2009 (Cth) (or your equivalent state act), WHS legislation provides important protection for our members. However, some members and their employers have little idea about this very important workplace issue. Often, WHS rights and responsibilities are only discussed when an employer has made a decision which affects employee health and safety.
WHS laws are governed by individual state jurisdictions. As our members are based all over Australia, the discussion below takes a general approach to WHS duties in the workplace. If you are seeking advice in relation to your specific state’s legislation, we suggest that you contact the Workplace Advice and Support team for detailed advice.
What duty does my employer owe to me?
Broadly speaking, your employer owes you a duty of care to provide and maintain (so far as is reasonable practicable) a working environment that is safe and without risks to health. This is a positive duty that your employer owes to you and your fellow employees. This duty also extends to contractors. Your employer is not allowed to outsource or contract out of these rights.
Part of this broader duty is the duty for your employer to consult with employees as far as reasonably practicable, in relation to WHS matters. This includes in instances such as your employer identifying a hazard, making a decision about measures or procedures, or proposing changes that may affect the health or safety of employees.
This consultation should take the following form:
- Sharing information with employees;
- Giving them a reasonable opportunity to express their views;
- Consulting with any elected health and safety representatives.
Your employer cannot just advise what will happen. Simply, your employer is not allowed to make changes that affect health and safety, without first consulting you and your fellow employees. For consultation to be proper and meaningful, it needs to be done before any proposed changes are implemented.
What kinds of decisions are health and safety decisions?
‘Health and safety matters’ are a fairly broad category, and can include matters such as:
- Identified hazards in the workplace;
- The introduction of measures to control these hazards;
- Changes to how/when work is performed;
- Changes to the workplace, to the plant or substances;
- Any issues surrounding the work facilities, including proposed changes.
This means that there is a duty to consult, no matter how minor the health and safety matter may seem to the employer.
What if my employer fails to do this?
If your employer fails to consult in relation to health and safety matters, this may be a breach of the relevant state legislation.
Once you become aware of a potential breach, you should immediately speak to your workplace health and safety representative (HSR), or your union delegate. The presence of HSRs and union delegates in a workplace is really important, to ensure that your workplace rights are being protected at all times. If you do not have either a HSR or union delegate in your workplace, please speak to Professionals Australia about this.
In the event that your employer fails to consult with employees about health and safety matters, you should immediately seek further legal advice from our Workplace Advice and Support team.
This publication is considered general information only and is not intended to be relied upon as legal advice or as a substitute for legal advice. If you require advice on your specific situation, please contact the Workplace Advice & Support team at Professionals Australia.
About the author:
Stephanie Gheller is a National Industrial Officer/Experienced Lawyer with the Workplace Advice and Support team. Stephanie joined the team in October 2014, and has a background in union organising. She provides legal and industrial representation for individuals and groups of members in various workplaces. Stephanie regularly represents members in the Fair Work Commission, and various state and federal courts. Stephanie holds a Bachelor of Arts/Bachelor of Law with Honours from the University of Adelaide, and a Graduate Diploma of Legal Practice from the Australian National University. Stephanie is also in the final stages of completing a Master of Employment and Labour Relations Law at the University of Melbourne, where her areas of academic interest include anti-discrimination law, gender issues in the workplace, and enterprise bargaining.