Managing people

Does the Fair Work Act address health and safety?

State and territory laws are the principal source of WHS rules and requirements. But the Fair Work Act also plays its part.

Several aspects of the Fair Work Act are relevant to health and safety, such as dismissal and discrimination laws, right of entry and workplace bullying.

Union right of entry

Under most state and territory WHS laws, union officials have the right to enter workplaces for WHS purposes. But they must have a valid and current entry permit from the Fair Work Commission (FWC).

Right of entry can be exercised only during working hours and an official must comply with any notice requirements under the relevant state or territory legislation. If an official wants to inspect or access employee records as part of the entry, the official must give the employer at least 24 hours’ notice. 

Industrial action

The FWC may suspend or terminate protected industrial action if the action threatens or endangers life, personal safety or the health and welfare of the population.

Refusing unsafe work

The Fair Work Act reflects the common law principle that a person may refuse to perform unsafe work.

Under the Act, refusing unsafe work is not classified as industrial action if:

  • the action was based on an employee’s reasonable concern about an imminent risk to his or her health or safety, and 
  • the employee did not unreasonably fail to comply with a direction to perform other available work that was safe and appropriate for the employee, whether at the same or another workplace.

The Act does not give employees a general right to refuse any work and should not be read as if it condones unreasonable refusals to work.

If an employee unreasonably fails to comply with an employer’s direction to perform other safe and appropriate work — whether at the same or another workplace —the employee’s actions will constitute industrial action.  

Standards

The National Employment Standards (NES), which fall under the Fair Work Act, stipulate that an employee can work a maximum average of 38 ordinary hours, plus reasonable additional hours.

In assessing whether additional hours are reasonable, the potential risk to employee health and safety needs to be considered.

The NES also provides minimum conditions with respect to pregnancy. If a pregnant employee’s health and safety is at risk at work, an employer must transfer them to a safe job if available. If not, the employer must provide ‘no safe job leave’ to the employee. 

If the employee is entitled to unpaid parental leave, the ‘no safe job leave’ must be paid at the base rate of pay. If the employee is not entitled to unpaid parental leave, the ‘no safe job leave’ is unpaid.

Dismissals and discrimination

In unfair dismissal claims, the FWC considers a dismissed employee’s conduct and whether it affected the safety and welfare of other employees. Such conduct could be a serious breach of an employer’s WHS requirements.

It is also an offence to take adverse action against an employee, prospective employee or independent contractor for exercising a right or responsibility under WHS law. Adverse action includes dismissal, discrimination, refusing to employ a person or prejudicially altering the person’s position.

Bullying at work

The Fair Work Act (s 789FD) defines bullying at work as occurring when a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work, and the behaviour creates a risk to health and safety. Bullying does not include reasonable management action carried out in a reasonable manner.

A worker in a constitutionally covered business can apply to the FWC for an order to stop bullying. 

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