Work health and safety (WHS) legislation aims to ensure the health and safety of workers at work. Essentially, the legislation places obligations on employers and workers to ensure that workers who attend work will return home with their lives, limbs and mental faculties intact.
As a person conducting a business or undertaking (PCBU) under the model Work Health Safety Act (model Act), employers have the primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers at work. Similarly, workers also have duties at work to take reasonable care for their own health and safety and that of others in the workplace.
These duties are supported by the obligations on a PCBU to consult with workers on WHS matters. The model Act provides that consultation requires that:
- workers are given information about a WHS matter;
- workers have the opportunity to give their views and to raise WHS issues in relation to the WHS matter and to contribute to the decision-making process;
- workers’ views are considered; and
workers are advised of the outcome of the consultation in a timely manner. The obligation to consult with workers is an essential part of minimising and eliminating risks to health and safety. The Safe Work Australia Work Health and Safety Consultation, Cooperation and Coordination Code of Practice identifies that WHS consultation creates greater awareness and commitment to health and safety and also leads to positive working relationships.
Employers should foster a consultative workplace with clear processes to allow workers to report WHS matters when they arise. In addition to ensuring compliance with the model Act, this will lead to a strong safety culture where workers have confidence in the responsiveness of their employer to address WHS matters without the fear of reprisal, rather than having to seek recourse with state and territory WHS regulators. Whilst WHS regulators recently encouraged employees to report WHS hazards or incidents, it is preferable for employers to address WHS matters internally.
There is always the risk that complaints made to the regulator will result in a WHS inspector coming to the workplace and could potentially lead to further investigations or enforcement measures. For example, inspection notices or improvement notices which may arise from a visit by the WHS inspector could subsequently appear in litigation to support claims that the employer did not comply with their WHS duties.
Lessons for employers
By taking a “safety first” approach, workers are educated in WHS matters, how to report WHS issues, concerns or near misses and are assured that such matters will be taken seriously.
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