What are 3 responsibilities that employers have?

While the duty of care of employers under the 2004 OHS Act are more or less the same as what they were under the 1985 Act (although they have been slightly 're-arranged'), the definition of health has been amended. The new definition is as follows:

"health" includes psychological health

This means that the employer must address workplace hazards such as bullying, stress and fatigue.

There are a number of 'duty holders' under the OHS Act, but for employees (and others) the most important of these is the employer.

Page Overview:

Section 5: Definitions

• employee means a person employed under a contract of employment or contract of training;
• employer means a person who employs one or more other persons under contracts of employment or contracts of training;

In changes to the OHS Act implemented on March 22, 2022, the definition of employer and employee has been extended to provide additional protections to labour hire employees. Labour Hire workers will now be 'employees' of the 'host' employer as well as employees of the labour hire firm. Read more: WorkSafe media release 

Specifically, Section 5A Extended definition of employer and employee - labour hire

For the purposes of this Act, a person is taken to be an employer of a worker, and the worker is taken to be an employee of the person, if a provider of labour hire services supplies the worker to, recruits the worker for or places the worker with the person to perform work for the person.

That is, a labour hire worker is treated as an 'employee' of the host employer.

Host employer – (in line with the Labour Hire Authority) people or organisations who run businesses that use labour hire workers to perform work in their business

In considering the duties of various duty holders, we must keep uppermost in our minds what the Act states in Section 20:

Section 20: The concept of ensuring health and safety

1. To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person -
   
   1. to eliminate risks to health and safety so far as is reasonably practicable; and
   2. if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

Section 21: Duties of the employer

1. To provide and maintain so far as reasonably practicable .... a working environment that is safe and without risk to health.
2. (without in any way limiting part 1) the employer must:
   1. provide and maintain (so far as reasonably practicable)  safe plant (machinery, tools) and systems of work
   2. ensure that (so far as reasonably practicable) the use, handling, storage & transport of plant and substances (chemicals) is safe & without risks to health
   3. ensure that (so far as reasonably practicable) the workplace under his control is safe and without risks to health
   4. provide adequate facilities (washrooms, toilets, lockers, dining areas, first aid, etc) again, so far as reasonably practicable
   5. provide as much information, instruction, training and supervision to the workers so that they can work safely, etc NOTE - this is NOT qualified by 'so far as is reasonably practicable'.
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   WorkSafe has produced a guideline (made under Section 12 of the OHS Act, 2004): How WorkSafe applies the law in relation to Reasonably Practicable which explains the concept and its application. 
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3. Who is an employee?? This part explains that for parts 1 & 2, if a company contracts work out to a contractor, then that contractor, and the employees of that contractor are considered to be employees of the original company. Example: Mary works for Supercleaners, head office in St Kilda Rd. She works in the evenings at the AJ Department Store in Exhibition St in the city. Supercleaners are her employers and must provide information and training, safe & healthy equipment, protective clothing, chemicals and systems of work, etc.

   But as she is working in the AJ Department Store building, AJ has the responsibility to make sure the building is safe (eg floors, lifts, exits, any equipment on site and so on).

Section 22 - Duties of employers to monitor health and conditions, etc

1. An employer must, so far as is reasonably practicable:
   1. monitor the health of the employees; and
   2. monitor the conditions at the workplace under their management and control (eg heat, cold, dust levels, fumes, and so on) ; and 
   3. provide information to employees (including in appropriate other languages) on health and safety, including the names of who to take an ohs issue/enquiry to
2. An employer must, so far as is reasonably practicable:
   1. keep information and records on the health and safety of employees; and
   2. employ experts (people who are 'suitably qualified') to provide advice
   Note: There is a WorkSafe Position on Section 22(2)(b) 'suitably qualified' (made under Section 12 of the Act) which provides an explanation of what this means, and also a useful handbook for employers: Getting help to improve health and safety 

Section 23: Duties of employers to other persons

Under this section an employer has a legal duty to make sure that the health and safety of OTHER people (not employees) is not put at risk from anything the employer, his business or his workers might do.

This duty also applies to self-employed persons under Section 24.

Other employer duties:

In addition, the 2004 Act sets out a number of other duties for employers, and these have been summarised on separate pages. These are:

See Also:

The 2004 Act can be downloaded (in both pdf and word format) on the Victorian government legislation repository website.

Last amended March 2022

The WHS Act created legislation and regulations to help increase Workplace Health and Safety in Australia. With these guidelines, employers have certain rights and responsibilities, which can be confusing for businesses to keep track of.

Failure to comply with Work Health and Safety legislation can result in civil and criminal penalties not to mention increases the risk of workplace hazards. To avoid these issues, let’s explore the WHS rights and responsibilities of employers and employees in more detail.

What Are the Responsibilities of the Employer?

Among the most important responsibilities is the primary duty of care. Employers must observe all legal requirements for giving employees safe and healthy work. It is also a requirement to investigate work hazard reports and take corrective actions.

Who is responsible for the primary duty of care? The WHS responsibilities apply to all employers and businesses, which includes any person conducting a business or undertaking (PCBU).

All businesses and PCBUs have legal obligations. Besides the primary duty of care, businesses must take appropriate steps to manage risks and hazards. They also need to review their health and safety programs.

The WHS responsibilities of employers include a wide range of requirements to help ensure a safe work site. Some of the core responsibilities include:

• Providing necessary health and safety instruction, supervision & training
• Ensuring all staff understands their roles and responsibilities
• Providing necessary protective gear and equipment
• Consulting with staff regarding decisions that impact workplace safety
• Maintaining a register of all workplace injuries
• Offering return to work programs for injured workers

Employers also need to use warning signs, labels, or colour codes to warn employees of possible hazards. When an accident occurs, the employer must report hospitalizations and maintain records of the injuries.

These are not just guidelines, the Government requires businesses to offer a safe environment. For example, the WHS Act recommends that employers avoid allowing employees to work from heights unless risks are mitigated. If working from heights is required, specific risk assessment and mitigation steps need to be completed.

What Are the Rights of the Employer?

Employers have a responsibility to provide safe working conditions. However, employers also have rights.

In Australia, employers have the right to hire and dismiss workers providing they are following proper procedures. Employers also have the right to expect reasonable work performance from their staff.

The WHS Act covers more employee rights compared to employer rights. Understanding the rights of your employees also helps provide a better understanding of your responsibilities. All employees have the right to:

• A safe work environment
• Access to information related to potential hazards
• Request changes to avoid potential hazards
• Participate in workplace inspections
• Not receive discrimination for exercising work health and safety rights
• Refuse work that puts the employee in danger
• Receive necessary training for working in dangerous conditions

This is just a small list of the rights of employees. Employers have fewer rights and a lot more responsibilities, including developing and implementing effective WHS policies.

What Are WHS Policies and Procedures?

The Work Health and Safety Act includes a variety of requirements, including establishing policies and procedures to comply with the Act.
Each business needs to develop a WHS policy for any type of work that involves potential hazards. For example, you may need to develop a policy for working in confined spaces.

The steps outlined in the policies often include detailed information instruction guidelines for developing risk management processes. These processes may also include safety management systems.

A safe system of work is a procedure or policy that you create to help minimise risks. It often includes a detailed risk assessment, which can help create awareness of the risks and identify who may be at risk.

After completing a risk assessment, employers have a duty to consult with staff to increase awareness. With safe systems of work, it also becomes easier for businesses to comply with their safety policies and procedures.

How can you learn more about effective health and safety management solutions? Employers should enrol the necessary staff in the appropriate training programs, such as a HSR Training Course.

Safe work practices are not designed to make life difficult for businesses. The policies and procedures are intended to provide clear instructions for maintaining a safe working environment.

If you want to comply with the laws, ensure that your staff is up to date with the latest regulations and codes of practice as well as receive regular training.