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 (where such monitoring is required by regulations) 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 see our website.
WES legal requirements
WES are an important part of risk management for substances hazardous to health in the workplace. Where hazardous or toxic substances exist in the workplace, they may pose a risk to workers and others who are exposed to them. If a PCBU is unable to successfully eliminate exposure to hazardous or toxic substances at the workplace, they are required to minimise the risk from exposure, so far as is reasonably practicable as per s 30 of the Health and Safety at Work Act 2015.
WES are guidance values provided by WorkSafe that refer to the airborne concentration of substances at which it is believed that nearly all workers can be repeatedly exposed day after day without coming to harm.
Monitoring exposure using WES is a way for PCBUs to identify, assess or confirm risk from exposure as well as identify appropriate control measures to minimise risk. PCBUs can assess the results of their exposure monitoring in respect of particular hazardous or toxic substances against the specified WES to provide an indication of the likelihood of exposure resulting in adverse health impacts.
Prescribed exposure standards (PES)
WorkSafe also has PES which are prescribed workplace exposure standards or a biological exposure index that has the purpose of protecting persons in a workplace from harm to health. Unlike WES which are guidance values only, PES must not be exceeded and it is an offence to exceed a PES. PES are prescribed in:
- A safe work instrument, or
- the Hazardous Substances and New Organisms Act 1996 as a control under section 77 or 77A, or an exposure limit under section 77B or a group standard approval issued under section 96B.
Regulations 29, 30 and 32 of the GRWM Regulations provide that a PCBU commits an offence by exceeding a PES, failing to undertake exposure monitoring where they are uncertain on reasonable grounds about whether the concentration exceeds a PES, or where the duties relating to exposure monitoring of PES are not complied with. Those substances that have a PES (in addition to a WES) are given a PES notation.
As noted above, regulation 32 of the GRWM Regulations provides that when exposure monitoring is required, by regulations, to be carried out, certain duties must also be complied with. This includes that a PCBU must ensure that the results of exposure monitoring are readily accessible to any person at the workplace who may be, or may have been, exposed to the health hazard provided that no information that identifies, or discloses anything about an individual worker is disclosed. The Privacy Act 2020 principles apply to any personal information (information about an identifiable individual) that is collected about a worker. The individual must, among other things, be aware of the fact that the information is being collected, the purpose for collection and the intended recipients.
Regulation 8 of the GRWM Regulations requires a 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.
BEI legal requirements
BEI are another tool that can be used in managing risks to health and safety associated with substances hazardous to health in the workplace. Exposure monitoring can include the monitoring of the conditions at the workplace as well as biological monitoring of people. BEI are guidance values for assessing biological monitoring results.
Under most circumstances worker biological 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 (including consent requirements) will apply. For further information about the Code of Health and Disability Services Consumer’s Rights see the Health and Disability Commissioner website(external link).
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.
PES can also be prescribed in respect of BEI. If there is a BEI PES, regulations 29, 30 and 32 of the GRWM Regulations apply. That is, a PCBU commits an offence by exceeding a PES, failing to undertake exposure monitoring where they are uncertain on reasonable grounds about whether the concentration exceeds a PES or where the duties relating to exposure monitoring of PES are not complied with.