Employers’ OHS rights and responsibilities

Australian employers are required by law to provide a safe workplace for not only workers, but for all who visit their facilities. The following extract from a Worksafe Victoria publication outlines a succinct list of rights and responsibilities that employers have, to their workers, contractors, visitors and the workplace itself, with regard to health and safety.

Workplace Health and Safety legislation requires employers to provide a safe and healthy workplace for their workers and contractors. This includes:

• Providing and maintaining safe plant (eg, machinery and equipment) and safe systems of work (eg, controlling entry to high-risk areas, controlling work pace and frequency, and providing systems to prevent falls from heights);
• Implementing arrangements for the safe use, handling, storage and transport of chemicals (eg, dangerous goods and harmful materials);
• Maintaining the workplace in a safe condition (ensuring fire exits are not blocked, emergency equipment is serviceable and worksite is generally tidy);
• Providing workers and contractors with adequate facilities (clean toilets, cool and clean drinking water and hygienic eating areas); and
• Ensuring workers have adequate information, instruction, training and supervision to work in a safe and healthy manner.

Employers must also:

• Adequately monitor workers’ health (eg, hearing tests for workers exposed to high noise levels, blood tests for workers exposed to lead, and monitoring fatigue levels of transport workers);
• Keep information and records relevant to workers’ health and safety (biological monitoring, asbestos assessments, first-aid records and relevant medical information);
• Employ or engage people with the necessary qualifications or expertise to advise on health and safety issues affecting workers;
• Consult with employees on matters that may directly affect their health, safety or welfare. Where employees are represented by a health and safety representative (HSR), they must also be involved in the consultation;
• Nominate a senior management representative to deal with workers and their HSRs in resolving health and safety issues at the workplace; and
• Provide workers with information, in the appropriate languages, about the workplace health and safety arrangements, including names of those to whom the workers can make inquiries or complaints.

Previous injuries

When hiring new employees, they should be informed, in writing, of the nature of the work and asked if they have any pre-existing injury or illness that may be affected by the work. They should also be informed in writing that failing to notify or hiding a pre-existing injury or illness which might be affected by the nature of the proposed employment, could result in that injury or illness being ineligible for future compensation claims.

Other OHS obligations

Employers must ensure that other people (customers, visitors and general public) are not endangered by the conduct of their business (eg, providing protection from falling debris around construction sites, controlling traffic access and limiting public access within the workplace).

Additional specific obligations apply if a business involves:

• Manufacturing, importing, transporting, supplying, storaging, handling or using dangerous goods;
• Designing, manufacturing, importing, supplying, erecting or installing plant; or
• Manufacturing, importing or supplying substances.

There are also obligations to:

• Meet particular licensing, registration and certification requirements;
• Immediately notify WorkSafe of certain dangerous incidents;
• Cooperate with WorkSafe inspectors; and
• Comply with inspectors’ notices and written directions issued by WorkSafe Victoria inspectors.

Penalties

As of 1 July 2020, the maximum penalties for breaches of the OHS Act of 2004 in Victoria is $1,075,050 for a body corporate and $215,010 for individuals.

Workplace injury insurance

Employers should take out WorkSafe Injury Insurance with a WorkSafe Agent, unless annual payroll is less than $7500. If apprentices or trainees are employed, a WorkSafe policy must be in place, regardless of payroll.

The WorkSafe Agent must be notified of workplace or business activity changes (including legal business name and workplace address) that may affect classification and premium.

The annual estimate of remuneration (and claims statement) should be received from the WorkSafe Agent before the annual calculation of premium. The Agent should be notified within 28 days if the remuneration increases, or is likely to increase by 20% or more, above the last estimate of remuneration for the financial year.

Claims

• An ‘If you are injured’ poster must be displayed in every workplace where all workers can read it. Not doing so could incur a penalty of up to $35,835 for a body corporate and $7167 for an individual.
• A Register of Injuries must be kept to record work-related injuries and illnesses.
• WorkSafe must be notified of workplace incidents that cause or could have caused serious injury or death.
• When an injured worker records an injury or illness in the register, this must be acknowledged in writing to the worker.
• If required, the worker may visit a doctor, who may call the employer to discuss possible return-to-work/alternative-duties options.
• Stay in touch with the injured worker, as it can be beneficial to their recovery to feel that they haven’t been forgotten.
• Upon receipt of a compensation claim, complete the Employer section of the Worker’s Injury Claim Form and acknowledge receipt of the claim in writing as soon as reasonably practicable.
• It is an offence to dismiss or threaten to dismiss a worker from employment, alter or threaten to alter their position to their detriment, or treat them less favourably than another worker in relation to a promotion or re-employment.
• Complete an Employer’s Injury Claim Report if a Worker’s Injury Claim Form for weekly benefits, Worker’s Injury Claim Form for medical and like expenses more than employer excess, or Dependant’s Claim for Compensation, is received; and
• Forward claims to WorkSafe Agent within required timeframe.

Return to work

• All employers must ensure return-to-work information is available to workers and must consult with their workers about how that information is made available.
• A Return to Work (RTW) coordinator must be appointed and have an appropriate level of seniority and be competent to assist the employer to meet their RTW obligations.
• Employers must start planning a worker’s return to work to the extent that it is reasonable to do so, as soon as the worker provides them with a WorkSafe Medical Certificate of Capacity or claim for weekly payments, or from the date they are advised by their WorkSafe agent that they have received the same.
• Employers must consult, to the extent that it is reasonable to do so, with the injured worker, their doctor, healthcare provider or occupational rehabilitation provider during the RTW process.
• Employers must provide suitable employment once the worker has a current work capacity, and pre-injury employment once the worker no longer has an incapacity for 52 weeks (not necessarily 52 consecutive weeks) from the date a worker provides them with a WorkSafe Medical Certificate of Capacity or claim for weekly payments, or from the date they are advised by their WorkSafe Agent that they have received the same.
• Failure to comply with the RTW requirements can result in penalties of up to $107,505 for a body corporate and $21,501 for an individual.

Norton Rose Australia
www.nortonrose.com