A Safe and Healthy Work Environment is a Human Right.
admin • November 3, 2024
Last week, on 30th October 2024, the Australian Government ratified the International Labour Organisation (ILO) Conventions relating to Workplace Health and Safety.
This follows a landmark event in 2022, when the ILO recognised a safe and healthy work environment as a fundamental right at work. It became the 5th Workplace Human Right:
- freedom of association and the effective recognition of the right to collective bargaining;
- the elimination of all forms of forced or compulsory labour;
- the effective abolition of child labour;
- the elimination of discrimination in respect of employment and occupation; and
- a safe and healthy working environment.
Find out more about the ILO declaration and the latest changes at:
ILO Declaration on Fundamental Principles and Rights at Work | International Labour Organization
It is illegal to dismiss in employee or to discriminate against an employee if they have raised an OHS issue or concern . This is covered under Section 76 of The Occupational Health and Safety Act 2004 (The Act). This means that employees can and should raise concerns about both within and, if necessary, outside their organisation. What does discrimination mean this context? Discrimination against a person for raising an OHS issue can include: Dismissal Injury Alteration of an employee’s position, to their detriment Refusal of employment of a prospective employee or less favourable treatment of them Noting that the discrimination must have arisen due to the raising of an OHS concern as the dominant factor. The Act says that employees cannot be dismissed from employment or discriminated against if they: Are an HSR or deputy HSR (dHSR) Are a member of a Health and Safe Committee If, as an HSR, dHSR or HSC member, they exercise their powers If they are an employee who has assisted or given information to an Inspector, to WorkSafe, to a registered employee organisation (ARREO), to an HSR/ dHSR or an HSC member If they are a prospective employee who raises or has raised an issue or concern about health and safety to an Inspector, to WorkSafe, to a registered employee organisation (ARREO), to an HSR/ dHSR or an HSC member In short, any employee or prospective employee is protected under this part of The Act. Further strengthening the law is the fact that the accused bears the onus of proof (Section 77 of the OHS Act) . This means that the employer is considered to have broken the law unless they can prove that they did not dismiss or discriminate on the basis of the person raising a health and safety issue - with this being the dominant issue. If found guilty, the offence carries significant penalties under The Act . The intent of the legislation is to ensure that employees can SPEAK UP about health and safety issues, without fear of retribution. Remember, The Law states that you can speak up and protects you against discrimination.  For more information on this topic: Discrimination for OHS reasons - OHS Reps Discrimination on health and safety grounds | WorkSafe Victoria If you need help, don’t hesitate to call BeSafe on 0467 002 060 or email us on admin@besafevictoria.com.au
The Victorian Occupational Health and Safety Act 2004 requires that the employer has a duty to ensure a healthy and safe workplace. This duty must be met as far as reasonably practicable. But what does this actually mean? The following must be considered when determining what is reasonably practicable: (according to section 20(2) of The Act): (a) The likelihood the hazard or risk concerned eventuating; (b) The degree of harm that would result if the hazard eventuated; (c) What the person concerned knows, or ought to reasonably know, about the hazard or risk; (d) The availability and suitability of ways to eliminate or reduce the hazard or risk; (e) The cost of eliminating or reducing the hazard or risk. This is often an area of confusion – primarily because the test for what is ‘reasonably practicable’ is in fact objective. When we consider this, it is best to look to WorkSafe for guidance. WorkSafe Victoria provides some clarification in their Position Statement on the matter: ‘a person is to be judged by the standard of behaviour expected of a reasonable person in the duty-holder’s position who is required to comply with the same duty and is: • Committed to providing the highest level of protection for people against risks to their health and safety. • Proactive in taking measures to protect the health and safety of people.’ - WorkSafe position statement - reasonably practicable There must be a weighing up of each of the 5 points listed under section 20(2) of The Act (above), but with a clear presumption in favour of safety. This means that the likelihood of harm occurring, and the seriousness of the potential outcome, must be the most important factor. The cost must be considered to be the least important factor when deciding what is reasonably practicable. ‘If the degree of harm is significant, e.g. death or serious injury is highly likely, then it is extremely unlikely that the cost of eliminating or reducing the risk would ever be so disproportionate to the risk to justify a decision not to implement an available and suitable control measure.’ - WorkSafe position statement - reasonably practicable When considering what the person concerned should reasonably know about eliminating the hazard, the state of knowledge regarding hazards and controls must be considered and this must be applied in line with the ranking under the hierarchy of control. The definition of what is ‘reasonably practicable’ is often one which causes some contention. It is important to go back to the WorkSafe position statement to make sure that you are making decisions in line with the intentions of The Act . Of course, it is always required that the highest level of protection from a hazard is provided in order to ensure a safe workplace. To read more about this: How WorkSafe applies the law in relation to Reasonably Practicable | WorkSafe Victoria
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