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Workers - WHS Duties and Rights

Who is a Worker?​

Under WHS legislation, a worker is a person who carries out work in any capacity for a PCBU.

Workers include:

  • Employees (full-time, part-time, casual)
  • Contractors and subcontractors
  • Labour hire workers
  • Apprentices and trainees
  • Work experience students
  • Volunteers working for a PCBU
  • Outworkers

[!note] Broad Definition The definition is very broad - anyone who performs work for a business or undertaking is a worker, regardless of employment status or how they are paid.

Worker Duties​

Workers have duties under section 28 of the WHS Act while at work:

1. Take Reasonable Care for Own Health and Safety​

Workers must take reasonable care that their actions or omissions do not adversely affect their own health and safety.

This means:

  • Following safe work procedures
  • Using equipment correctly
  • Not taking unnecessary risks
  • Being aware of hazards
  • Reporting unsafe conditions

Construction Examples:

  • Wearing fall protection when working at heights
  • Using tools correctly and as instructed
  • Not bypassing or removing machine guards
  • Following safe work method statements
  • Conducting pre-start checks on plant

[!important] Active Participation Required Workers cannot simply "show up" - they must actively engage in safe work practices.

2. Take Reasonable Care Not to Adversely Affect Others​

Workers must take reasonable care that their actions or omissions do not adversely affect the health and safety of other persons.

This means:

  • Considering how your work affects colleagues
  • Not creating hazards for others
  • Warning others of dangers you identify
  • Working cooperatively on shared tasks

Construction Examples:

  • Not dropping tools or materials from heights where they could hit others
  • Securing loads before crane lifts so they don't fall on others
  • Not starting equipment while others are performing maintenance
  • Warning others before starting noisy or hazardous processes
  • Maintaining clear walkways so others don't trip

3. Comply with Reasonable Instructions​

Workers must comply, so far as they are reasonably able, with any reasonable instruction given by the PCBU relating to WHS.

Reasonable instructions include:

  • Following safe work procedures
  • Attending safety briefings and training
  • Using personal protective equipment
  • Reporting incidents and hazards
  • Following site rules and emergency procedures

Construction Examples:

  • Attending site induction before starting work
  • Wearing hard hat, safety boots, and high-visibility clothing as required
  • Following sign-in procedures
  • Staying out of exclusion zones during crane lifts
  • Participating in toolbox talks

[!warning] Consequences of Non-Compliance Workers who refuse reasonable safety instructions may face disciplinary action and can be prosecuted under WHS legislation.

4. Cooperate with Policies and Procedures​

Workers must cooperate with any reasonable policy or procedure of the PCBU relating to WHS that has been notified to workers.

This includes:

  • WHS policies and procedures
  • Emergency evacuation procedures
  • Incident reporting procedures
  • Plant inspection procedures
  • Permit systems for high-risk work

Construction Examples:

  • Following the site's permit system for hot work
  • Complying with confined space entry procedures
  • Participating in emergency evacuation drills
  • Following the process for reporting hazards
  • Completing required forms and checklists

What "Reasonable" Means​

Worker duties are qualified by "reasonable" - workers must do what is reasonable in the circumstances.

Factors affecting reasonableness:

  • Worker's knowledge, skills, and experience
  • Information and training provided by the PCBU
  • Resources and equipment available
  • Time available
  • Nature of the hazard

Example - Refusing Unsafe Work: A worker is not required to comply with an instruction to work unsafely. If a supervisor instructs a worker to enter an excavation without shoring, the worker can refuse as this is not a reasonable instruction.

Worker Rights​

While workers have duties, they also have important rights:

1. Right to a Safe Workplace​

Workers have the right to a workplace that is safe and without risks to health, so far as is reasonably practicable.

The PCBU has the primary duty to provide this.

2. Right to Information, Training, and Supervision​

Workers have the right to:

  • Information about hazards and risks
  • Training to work safely
  • Instruction on safe work procedures
  • Appropriate supervision

Construction Example: Before performing formwork, workers have the right to:

  • Information about design loads and safe working loads
  • Training on formwork assembly and inspection
  • Instruction on the specific formwork system being used
  • Supervision while gaining experience

3. Right to Consultation​

Workers have the right to be consulted about:

  • Matters that directly affect their health and safety
  • Identification of hazards and assessment of risks
  • Decisions about control measures
  • Procedures for consulting on WHS matters
  • Changes that may affect their work

See Consultation, Cooperation, and Coordination for detailed requirements.

4. Right to Refuse Unsafe Work​

Workers have the right to cease or refuse work if they have a reasonable concern that continuing work would expose them or others to a serious risk to health or safety.

This right allows workers to:

  • Stop work immediately if a serious risk emerges
  • Refuse to commence work they reasonably believe is unsafe
  • Not face disciplinary action for reasonable refusals

Process for refusing unsafe work:

  1. Stop work and notify supervisor immediately
  2. Explain the safety concern
  3. Worker and supervisor discuss the concern
  4. If not resolved, escalate to senior management or WHS representative
  5. Work only recommences when the risk is controlled

Construction Example: A scaffolder arrives to erect scaffolding on a site and observes overhead power lines very close to the work area. The worker has the right to refuse to commence work until the power lines are de-energized or adequate clearances and controls are established.

[!important] Protection from Discrimination PCBUs must not discriminate against workers who reasonably cease unsafe work or raise safety concerns.

5. Health and Safety Representatives (HSRs)​

Workers at a workplace can elect Health and Safety Representatives (HSRs) to represent them on WHS matters.

HSRs have powers to:

  • Represent workers in consultation with the PCBU
  • Inspect the workplace
  • Accompany WHS inspectors during workplace visits
  • Review incident investigation findings
  • Issue Provisional Improvement Notices in certain circumstances
  • Direct unsafe work to cease (in limited circumstances)

See Health and Safety Representatives for detailed information.

Worker Penalties for Non-Compliance​

While uncommon, workers can be prosecuted for breaching their WHS duties.

Category 3 offence:

  • Fines up to $100,000 for individuals
  • Fines up to $50,000 for workers

Workers may be prosecuted for:

  • Reckless disregard for safety (e.g., intoxication, removing safety devices)
  • Refusing reasonable safety instructions
  • Creating dangers for others through negligent acts

Construction Example: A crane operator who operates the crane while intoxicated could be prosecuted for failing to take reasonable care for their own safety and the safety of others.

Balancing Duties and Rights​

Workers have both duties (to work safely) and rights (to a safe workplace).

The balance:

  • PCBUs must provide safe workplaces, information, training, and equipment
  • Workers must follow safety procedures and use provided controls
  • Both must consult and cooperate to identify and control risks

[!tip] Shared Responsibility WHS is a shared responsibility. PCBUs cannot provide safety alone - workers must actively participate. Workers cannot work safely if PCBUs don't provide safe systems and equipment.

Practical Application​

Scenario: Formwork Carpenter on Construction Site

Worker Duties:

  • Take reasonable care by following the safe work method statement for formwork erection
  • Take care not to affect others by ensuring formwork is properly braced so it doesn't collapse on colleagues
  • Comply with site rules about wearing hard hats and safety boots
  • Cooperate with site permit system for work at heights

Worker Rights:

  • Right to information about formwork design loads and capacities
  • Right to training on the specific formwork system being used
  • Right to be consulted about how formwork will be erected safely
  • Right to refuse to start work if bracing materials are missing or inadequate
  • Right to raise concerns about inadequate edge protection without fear of disciplinary action

Example of Reasonable Refusal: If formwork props specified in the design are not available and supervisor says to "just use timber props instead," the worker can reasonably refuse until proper props are provided, as substituting components could affect structural integrity.

Young Workers and New Workers​

Young and inexperienced workers face higher risks and require additional support.

PCBUs must provide:

  • Enhanced supervision for young and new workers
  • Training appropriate to their experience level
  • Clear instruction and demonstration
  • Close monitoring until competence is demonstrated

Young/new workers should:

  • Ask questions if unsure
  • Seek clarification on procedures
  • Not attempt tasks beyond their competence
  • Inform supervisors of their experience level

Construction Example: A new apprentice should not be assigned to work alone at heights or operate plant without proper training, licensing, and supervision. The apprentice has a duty to inform supervisors if given tasks beyond their competence.