Occupational safety and health and workers’ compensation

Occupational safety and health is a key area of ethical and legal responsibility for incorporated associations. Incorporated associations generally owe an obligation under both common law (duty of care) and the Western Australian occupational safety and health law to any volunteers, employees, contractors and visitors to their workplaces, under both common law (duty of care) and the Western Australian occupational safety and health law, to provide and maintain a safe and healthy working environment. Safety and health includes addressing potential safety and health risks from the physical working environment, as well as potential psychological and emotional harm from, for example, exposure to workplace bullying or workplace violence.

Associations are also required to comply with relevant local government planning, and safety and health by-laws, and any State or Commonwealth legislation or regulations that may apply in relation to specific industries or activities such as childcare, residential care and aged care. This chapter provides a general summary of the duties of care under Western Australian legislation, the role of WorkSafe, and matters relating to workers' compensation that may be relevant for incorporated associations.

Key Points

  • Incorporated associations are required to provide a safe and healthy working environment for employees, contractors, volunteers and visitors.
  • There are a range of specific obligations for all parties under the Occupational Safety and Health Act 1984 and Regulations (the OSH Laws).
  • WorkSafe is the division of the Department of Mines, Industry Regulation and Safety that administers the OSH Laws.
  • Inspectors appointed by WorkSafe have broad powers, including entering and inspecting workplaces.
  • The WorkSafe Western Australia Commissioner must be notified of all work related injuries involving fatal and some serious injuries, and certain diseases.
  • Incorporated associations that engage workers must have workers' compensation insurance.
  • Workers’ compensation is regulated by legislation and administered by WorkCover, a State Government statutory authority.
  • Volunteers are not covered by workers' compensation insurance.
  • If a worker is injured while at work, the employer and worker are required to complete and submit prescribed documentation.

Occupational safety and health

The applicable Western Australian legislation is the Occupational Safety and Health Act 1984 and its associated Regulations (collectively referred to as the OSH Laws).

The objects of the Occupational Safety and Health Act 1984 include to:

  • promote and secure the safety and health of persons at work;
  • protect persons at work against hazards;
  • assist in securing safe and hygienic work environments;
  • reduce, eliminate and control hazards to which people are exposed at work; and  
  • foster co-operation and consultation between employers and employees in the formulation and implementation of safety and health standards.

An incorporated association is required to comply with OSH Laws by providing a safe and healthy work environment. It is important for incorporated associations to take note of the rights and duties in the OSH Laws, and to comply with the relevant provisions concerning safety requirements.

Duties of employers

In addition to a general duty to provide and maintain a safe and healthy work environment, under the OSH Laws, employers also have specific obligations.  In summary, those obligations include, so far as is practicable, to:

  • provide and maintain workplaces, plant and systems of work so that employees are not exposed to hazards;
  • provide such necessary information, instruction and training to, and supervision of, employees so that employees can perform their work safely;
  • consult and cooperate with safety and health representatives and other employees on occupational safety and health matters;
  • provide employees with adequate personal protective clothing and safety equipment, where it is not practicable to avoid the presence of hazards at the workplace;
  • ensure the safe use, cleaning, maintenance, transportation and disposal of plant in the workplace;
  • ensure that the use, handling, processing, storage, transportation and disposal of substances in the workplace is carried out, such that employees are not exposed to hazards; and
  • immediately notify the WorkSafe Western Australia Commissioner if an employee at a workplace suffers an injury that results in death, or an injury of a kind prescribed in the Regulations (e.g. fractured skull, spine or bones, some amputations and any injury that, in the opinion of a medical practitioner, is likely to prevent the employee from being able to work within ten days of when the injury occurred).  Access the Worksafe website to obtain information about the process involved.

Incorporated associations that engage contractors owe these obligations to contractors.

Under the OSH Laws, associations may also have obligations to people who are not employees or contractors at the workplace (e.g. volunteers, visitors), including ensuring that these people are not exposed to hazards.

Further obligations under the OSH Laws may apply depending on the nature of the incorporated association's activities.

Rights and duties of employees and contractors

Employees and self-employed people (contractors) have a responsibility under the OSH Laws to take reasonable care to ensure his/her own safety and health at work, and to avoid adversely affecting the safety and health of others.

Employees also have specific obligations under the OSH Laws.  In summary, these obligations include to:

  • cooperate with their employer to ensure that the workplace is safe and healthy (eg by complying with the safety procedures and guidelines);
  • comply with safety and health instructions provided by their employer;
  • use the personal protective equipment provided in the manner instructed by the employer; and
  • report hazards and injuries to their employer.

Employees also have some important rights under the OSH Laws. In particular, they have:

  • the ability to request that their employer have an election to establish safety and health representatives at the workplace. (Refer to the guidance note, Formal Consultative Processes at the Workplace, available at the Worksafe website for more details);
  • the ability to request that their employer establish a safety and health committee at the workplace. (Refer to the above mentioned guidance note for more details);
  • the right to receive adequate information, instruction, training and supervision so as to be able to work safely, under their employer’s general duty of care;
  • the right to be consulted about safety and health at the workplace, under their employer’s general duty of care; and
  • the right to refuse to undertake work if they have reasonable grounds to believe that working would expose them, or any other person, to a risk of imminent and serious injury or harm to health, and receive the normal pay and benefits they would be entitled to if working. However, their employer may give them alternative work and it is an offence to leave the workplace without the employer’s authorisation.

WorkSafe

WorkSafe is the division of the Department of Mines, Industry Regulation and Safety that administers the OSH Laws. It can provide further information on occupational safety and health matters, including educational materials.

WorkSafe has both an educative and compliance role. As part of its educative role, WorkSafe has various initiatives to promote understanding of occupational safety and health. For example you can find information about small business safety which may be relevant to associations on the Worksafe website.

As part of the compliance activities, WorkSafe investigates and prosecutes breaches under the OSH Laws and conducts compliance campaigns. Inspectors, who are appointed officers of WorkSafe, have broad powers to visit and inspect workplaces. It is an offence to interfere in the performance of an inspector's functions.

Generally, where an inspector is of the opinion that there has been, or may be, a breach of the OSH Laws, or there is activity which may occur, or is occurring, at a workplace which involves, or may involve, the risk of injury or harm to health, he or she may do a number of things.  An inspector's powers include issuing verbal directions, improvement and prohibition notices, and initiating a prosecution under the OSH Laws. Any notices issued by a WorkSafe inspector, including copies, must be displayed in a prominent place at, or near, workplaces affected by each notice.

Reporting accidents

In the first instance, all accidents and incidents (near misses) should be reported to the association (the employer) as soon as possible, via the relevant supervisor or manager. As a matter of best practice, a written report should be made, setting out all the relevant details of the accident.

The WorkSafe Western Australia Commissioner must be notified of all work related injuries that result in a death or fracture of the skull, spine, pelvis, any bone in the arm (other than in the wrists or hand) or the leg (other than a bone in the ankle or foot), some types of amputations, the loss of sight in an eye or an injury that, in the opinion of a medical practitioner, is likely to prevent the employee from being able to work within ten days of when the injury occurred. Certain infectious and occupational diseases must also be notified, including viral hepatitis. The OSH Laws deal with the notification requirements for work related injuries. Information about the processes involved is available from the WorkSafe website.

Workers' compensation

Not for profit organisations work hard to serve the community and provide help to those in need. But what happens when the people delivering those services are injured in a workplace accident?

In Western Australia, all workers must be covered by a valid workers’ compensation insurance policy. The definition of a ‘worker’ is broad and extends to any ‘contract of service’ or ‘contract for service’ between a worker and employer.

If an association is unsure whether its staff are classified as ‘workers’ or ‘volunteers,’ it should contact its insurer or insurance broker to confirm the organisation has the right coverage.

Any individual, whether paid or volunteer, who fulfils a governing role for a incorporated association can be held personally liable for the costs of an uninsured workers’ compensation claim and could face prosecution for non-compliance with the duty to insure. These costs can total hundreds of thousands of dollars, so it is simply not worth the risk.

WorkCover WA is the government agency responsible for overseeing and regulating the workers’ compensation and injury management scheme in WA. For more information contact WorkCover WA’s Advice and Assistance line on telephone 1300 570 937 or visit workcover.wa.gov.au/employers