Obligations and rights under the Health and Safety at Work Act 2015 (HSWA) and Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 (GRWM Regulations).
Obligations of a person conducting a business or undertaking (PCBU)
PCBUs must ensure the health and safety of workers doing work for the PCBU and to ensure the health and safety of others whose work is influenced or directed by the PCBU.
PCBUs must also ensure that the health and safety of other persons is not put at risk from the work carried out as a part of the PCBU’s business or undertaking.
To achieve this, PCBUs must (so far as is reasonably practicable):
- identify hazards that might give rise to risks to health and safety
- eliminate risks to health and safety
- minimise risks that are not reasonably practicable to eliminate
- provide and maintain a work environment that is without risks to health and safety
- provide and maintain safe plant and structures
- provide and maintain safe systems of work
- ensure the safe use, handling and storage of substances
- provide adequate and accessible facilities for the welfare of workers doing work for the PCBU
- provide the information, training, instructions or supervision necessary to protect all persons from risks arising from work carried out as a part of the conduct of the business or undertaking
- ensure that the health of workers at the workplace is monitored
- ensure that the conditions at the workplace are monitored
- provide adequate and accessible first aid facilities for workers
- provide suitable personal protective equipment and clothing for workers and other persons and ensure that it is used
- engage with workers so workers have a reasonable opportunity to raise health and safety issues and to contribute to the decision-making process.
The obligations and rights of workers and others
Workers and other persons at a workplace are required to take reasonable care to ensure their health and safety and the health and safety of others who are there. This includes considering both the things they do and the things they omit to do (such as not using safety equipment or appropriate exposure controls). They are also required to comply with any reasonable health and safety instruction given by the PCBU.
Workers are also required to co-operate with any reasonable health or safety policy or procedure of the PCBU.
Although it is the PCBU’s overall responsibility to ensure a safe working environment, workers do have a responsibility to use the exposure controls and safety equipment provided, and to wear protective clothing as appropriate.
Workers and others should also report to the PCBU any risks or incidents they become aware of so the PCBU can investigate and put safeguards in place.
Workers are entitled to receive, free of charge, protective clothing and equipment if this is necessary to protect them from health and safety risks in the workplace.
Workers are entitled to:
- receive information, supervision, training, and instruction appropriate to the work they are doing, the plant they are using, and the substances they are handling so they can do their job in a safe and healthy manner
- wear their own suitable personal protective clothing and equipment, but the PCBU must ensure that any such clothing and equipment is suitable
- have access to the results of exposure monitoring at the workplace where they may be, or may have been exposed to the health hazard, provided that the exposure monitoring results do not contain any information that identifies or discloses anything about an individual worker
- be provided with a copy of any health monitoring report relating to health monitoring of the worker
- receive reasonable opportunities to participate in workplace health and safety
Further information on health and safety rights and responsibilities for exposure and health monitoring in the workplace
WES legal requirements
WES are an important tool for monitoring the workplace environment. Where hazardous or toxic substances exist in the same environment as workers, and the PCBU is unable to successfully eliminate these substances from working environments, they are required to minimise and monitor worker exposure.
The PCBU must also, so far as is reasonably practicable, ensure that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.
Section 36 of HSWA requires PCBUs to ensure worker health and safety ‘so far as is reasonably practicable’. That duty requires the PCBU to eliminate risks to health and safety, so far as is reasonably practicable. If it is not reasonably practicable to do so, the PCBU must minimise the risks so far as is reasonably practicable.
If a PCBU is uncertain on reasonable grounds whether the concentration of a substance exceeds the relevant prescribed exposure standard, regulation 30 of GRWM Regulations requires the PCBU to conduct exposure monitoring to determine the concentration of the substance.
Regulation 32 of the GRWM Regulations requires the PCBU to make the results of exposure monitoring available to any person in the workplace who may have been exposed to the health hazard provided that no information that identifies an individual worker is disclosed.
A prescribed exposure standard is a workplace exposure standard or a biological exposure index that has the purpose of protecting persons in a workplace from harm to health and that is prescribed in:
- Regulations
- A safe work instrument.
Regulation 8 of the GRWM Regulations requires the PCBU to review and, as necessary, revise control measures if the results of exposure monitoring carried out under regulation 30 determine that the concentration of a substance hazardous to health at the workplace exceeds a relevant prescribed exposure standard.
In workplaces where a worker is carrying out ongoing work involving a substance that is hazardous to health that is specified in a safe work instrument as requiring health monitoring, regulation 31 of the GRWM Regulations requires the PCBU to ensure that health monitoring is provided to the worker if there is a serious risk to the workers’ health because of exposure to the substance. Regulation 39 requires the PCBU to give results of health monitoring of a worker to that worker.
BEI legal requirements
Regulation 30 of the GRWM Regulations requires the PCBU to conduct exposure monitoring to determine the concentration of a substance if the PCBU is uncertain on reasonable grounds about whether the concentration exceeds the relevant prescribed exposure standard. Exposure monitoring and/or biological monitoring may be used to monitor a worker’s exposure. See Application of BEI for more information.
Under most circumstances worker health monitoring will be classed as a health service. This means the rights and duties in the Code of Health and Disability Services Consumer’s Rights(external link) (including consent requirements) will apply.
This means a PCBU needs to be proactive in seeking approval, and take responsibility for informing and encouraging workers about monitoring where appropriate. However, consent must be granted voluntarily and without any form of coercion or duress on the part of the PCBU seeking consent.
Regulation 32 of the GRWM Regulations requires the PCBU to ensure the results of exposure monitoring are made available to any person at the workplace who may be, or may have been, exposed to the health hazard. Such results must not contain any information that identifies, or discloses anything about, an individual worker.
Regulation 39 of the GRWM Regulations requires the PCBU to provide the results of health monitoring of a worker to the worker.
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