Frequently Asked Questions

Workplace Health and Safety

Q. Who is responsible for administering WHS/making sure organisations comply with WHS laws in an organisation?

The following people have compliance obligations under the WHS laws:

  1. The "person conducting the business or undertaking" (PCBU) has the primary duty of care for ensuring the health and safety of workers and other persons who may be affected by the business or undertaking;
  2. Officers of the PCBU must exercise due diligence to ensure that the PCBU complies with its WHS duties and obligations; and
  3. Workers and other persons at workplaces (e.g. visitors) also have duties to take reasonable care for their own health and safety and that their actions do not adversely affect the health and safety of other persons.

Q. What is HR's role to play in WHS?

The scope of HR's role will be affected by whether or not the organisation employs a dedicated WHS officer. If not, HR will likely be responsible for monitoring the organisation's safety performance, including by ensuring that workers are complying with the organisation's WHS policies and procedures. HR may also be required to report on the organisation's safety performance to its officers, so as to help them satisfy their due diligence obligations.

Q. What is a 'PCBU'? Is a PCBU a person?

A PCBU is any physical person or organisation or other legal entity conducting a business or undertaking. This may be an individual employer, a corporation, an association, a partnership, a sole trader, or a volunteer organisation (if it employs any person to perform work).

Q. Who are "officers" of PCBUS?

An officer is a person who makes decisions, or participates in making decisions that affect the whole, or a substantial part, of a business or undertaking and has the capacity to significantly affect the financial standing of the business or undertaking. Common examples are directors, CEOs, CFOs. Senior managers may also be considered officers if, in the particular circumstances of the business or undertaking, they satisfy the aforementioned definition.

Q. Are HR managers officers of PCBUS? If not, what is their role in administering WHS requirements?

Generally, HR managers will not be considered officers, but they could be if, in the particular circumstances of the business or undertaking, they satisfy the above definition. HR's role with respect to WHS is set out in the response to Q2 above.

Q. I am a Victorian employer, what are the main differences between the model WHS legislation and the Victorian OHS Act?

The Victorian legislation is very similar to the model WHS legislation. The key differences are that the model WHS legislation has introduced the following:

  1. (The term "PCBU" as opposed to "employer" – The WHS legislation is broader as it focuses on the work arrangements and relationships in place to carry out the work and not only the place of work of the employer;
  2. The term "worker" as opposed to "employee" – The WHS legislation is broader as it includes contractors, employees of contractors, work experience students, volunteers etc;
  3. Positive duty on officers to exercise due diligence as opposed to failing to take reasonable care;
  4. Consultation obligations in respect of concurrent duty holders but the removal of the obligation to employ a dedicated safety officer for the business;
  5. Broader powers given to elected health and safety representatives and introduction of "issue resolution" processes; and
  6. Larger penalties for breaches and greater sentencing options.

Q. I am a Western Australian employer, what are the main differences between the model WHS legislation and the Western Australian OSH Act?

The key differences are that the model WHS legislation has introduced the following: 

  1. The term "PCBU" as opposed to "employer" – The WHS legislation is broader as it focuses on the work arrangements and relationships in place to carry out the work and not only the place of work of the employer; 
  2. The term "worker" as opposed to "employee" – The WHS legislation is broader as it includes contractors, employees of contractors, work experience students, volunteers etc; 
  3. Positive duty on officers to exercise due diligence as opposed to potential deemed liability where body corporate guilty of an offence; 
  4. Consultation obligations in respect of employees and concurrent duty holders. Further, there is a requirement for the formation of work groups; 
  5. Broader powers given to elected health and safety representatives including the ability to direct that unsafe work cease and introduction of "issue resolution" processes; and 
  6. Larger penalties for breaches and greater sentencing options such as enforceable undertakings. There will also be a requirement to preserve a site after a workplace incident.

Q. If I am an employer in Western Australia or Victoria, can I use the model codes of practice as a guide of best practice for my business? Are there equivalent guides for my state?

Yes, you should look to the model Codes for guidance. Western Australia and Victoria do have guides in relation to some WHS issues, but the model Codes address a broader range of WHS issues and are also more likely up-to-date and therefore reflect current best practice. Having said that, only endorsed Codes in your jurisdiction can be statutorily relied on by the regulator in any prosecution.

Q. I'm allowed to monitor my employee's health under legislation; does that mean that we can ask job candidates about their medical history to determine whether they are going to take a lot of sick leave? Or claim workers compensation in the future?

As an employer, you have obligations to ensure the health and safety of your workers, as well as others affected by your work. This means that you must be satisfied that people you employ can carry out their job safely. Accordingly, it may be necessary to ask whether a prospective employee has any pre-existing injury or illness if it is directly relevant to the role for which they are applying. However, you should be careful not to ask questions about a person's medical status or history that are not relevant to the inherent requirements of the role, as an unsuccessful applicant could potentially argue that they were discriminated against on the basis of their medical status.

Q. Can we ask current employees about their health concerns once they have started?

If you have reasonable grounds to believe that an existing employee has an injury or illness that is affecting his/her work performance, you could ask him/her about it. Further, you may direct an employee to undergo an independent medical examination to determine if the employee is able to perform the inherent requirements of the job (if such a direction is reasonable in the circumstances). If the health concern is not relevant to the employee's performance of the role, you should not raise it with the employee.

Q. An employee has tripped; what should I do?

If the person has suffered a minor injury, you should apply first aid as appropriate. If the injury is more serious, you should contact a doctor or call an ambulance. If there is any risk of a spinal injury, you must not move the injured person. You must notify your insurer and the safety regulator of the incident with 48 hours.

Q. Our employees can work from home if they want, do we have to provide them with a first aid kit?

You must ensure that an employee who regularly works from home has appropriate first aid facilities. A prudent employer would provide a first aid kit to such an employee, unless you have taken reasonable steps to satisfy yourself that the employee already has appropriate first aid facilities in his/her home.

Q. What are my OHS obligations for employees that work from home from a regular / irregular basis?

You have the same general duty to ensure the health and safety (so far as reasonably practicable) of those employees that work from home. If you have a worker who regularly works from home, you must ensure that they have a safe working environment, they can communicate effectively with you, and they have an emergency plan and appropriate first aid facilities.

Q. Is it compulsory to have a sick bay at work?

No. Although it is clearly very good practice to have some sort of facility like a sick bay, particularly if you employ a large number of people.

Q. What should we do if an employee has injured themselves at work, but insists on continuing to work despite being in pain?

You should not allow the employee to continue to work while injured, as this presents a WHS risk to the employee and potentially other workers. You should direct the employee to undergo a medical examination to determine the extent of the injury and whether he/she is able to perform his/her role. You should then be guided by the medical practitioner as to whether the employee should not attend work, should continue to work in his/her current role, or should perform different duties that are suitable in light of the injury.

Q. We suspect that an employee may have falsified a claim that they injured themselves at work (there were no witnesses and no other evidence of this event) – what do we do?

You should direct the employee to undergo an independent medical examination to determine the nature and extent of the injury. Unfortunately, in many cases it will be very difficult to prove that the injury did not occur in the way that an employee claims. There may be other forms of investigation that will reveal the truth of the incident. These include reviewing other evidence to see whether it corroborates the employee's version or not, for example, phone records to identify the location of the worker at the time of the incident.

Q. How can we reject a staff members flexible work request, and minimize a discrimination complaint?

As per the Fair Work website an employer is  able to refuse the request on reasonable grounds, examples of reasonable grounds are listed in the link provided. Alternatively, you may wish to negotiate what changes could occur, i.e. change in hours, that would be suitable for both the employee and you as the employer.

Q. We are considering implementing random drug and alcohol testing for our staff. Is there any specific issues i need to be aware of?

There are many issues to consider when implementing a Drug and Alcohol Policy. These include:

  • Protection of employee's privacy;
  • Fair and reasonable treatment of employees who are alleged to have breached the drug/alcohol policy;
  • Whether the drug/alcohol screening will be tested on-site or off site;
  • Whether the drug/alcohol testing will be conducted on urine or saliva;
  • Victimisation and the selection of 'random' individuals for drug/alcohol testing;
  • Consent of employees; and The nature of the work being performed and whether there is a clear justification for this.

Ultimately, random drug/alcohol testing needs to be connected to a clear health and safety concern for workers arising out of potential impairment. It will therefore heavily depend on the type of work the workers are undertaking, the environment and whether it is reasonable to conduct random testing.

Q. What are the rules about an employee coming to work when an employee has provided you with a doctor’s certificate stating they are unfit to work?

If an employee has submitted a medical certificate advising that they are unfit for work but continues to work against their doctor's advice, you should direct the employee to go home until they can provide evidence that they are fit for work. This is because you have an obligation to provide a safe and healthy working environment for employees, so to allow them to remain in the workplace whilst ill or injured may jeopardise their own health and the health/safety of others.