What is an Employer’s Duty of Care?

Author: Ian Aldridge, Progressive Legal

An Employer’s Duty of Care is an important legal concept that employers must comply with to ensure the health, safety, and well-being of their employees in the workplace. 

Employers must identify potential hazards in the workplace and take steps to mitigate those hazards to provide a safe working environment.  It is best practice to have these risks reviewed by a third party, your own health and safety professionals, and employees.  

Employees’ contributions to health and safety risk identification are easily overlooked. Yet, they are the people who are encountering those risks on a daily basis and they usually have unique insights about their job and its risks which they gain from experience.  

Employers should ensure that employees are aware of any hazards or risks in the workplace and that they know how to deal with them if they happen. This may include conducting risk assessments, implementing policies and procedures, safety protocols, and providing safety equipment, first aid kits, and training to employees.  

Employers must take steps to ensure that employees who may be at risk of harm should be trained in proper procedures, policies and use of safety equipment. Employers should ensure that their policies and procedures are regularly updated and all equipment is properly maintained and inspected. 

Australia’s Workplace Health and Safety Act

In Australia, Employer’s Duty of Care is outlined federally in the model law Workplace Health and Safety Act 2011 (“the Act”).  The Act sets out a national framework to ensure that all workers are equipped with the necessary information and training to carry out a safe and healthy work environment.  Each state and territory has its own workplace health and safety legislation and regulatory regime, based on the national model law:

Australian Capital Territory  Work Health and Safety Act 2011 

New South Wales  Work Health and Safety Act 2011 

Northern Territory  Work Health and Safety (National Uniform Legislation) Act 2011 

Queensland  Work Health and Safety Act 2011 

South Australia  Work Health and Safety Act 2012 

Tasmania  Work Health and Safety Act 2012 

Western Australia  Work Health and Safety Act 2020 

The Acts even apply to a work-from-home arrangement. If you work for yourself, it is primarily your responsibility to ensure your safety. 

Many people think that WHS obligations only apply to physical safety – it is important to know that they apply to mental and emotional safety of employees as well.   

Failure to comply with the acts or regulations can result in legal liability for the employer. 

Here are some ways employers can comply with workplace health and safety obligations: 

• Have a comprehensive induction policy to ensure that employees are made aware of policies, procedures, risks, and expectations in the workplace; 
• Ensure that an employment contract is delivered for each employee outlining their role and duties; 
• Ensure that the workplace is safe and adequately maintained, as are machinery and equipment; 
• Keep up to date with changes and potential improvements to safety measures; 
• Provide information, training, and supervision; 
• Establish and implement policies and programs to promote health and safety in the workplace; 
• Review complaints of hazards and ensure that preventative measures are implemented; 
• Make mental health care available; and 
• Consult with employees and be available to discuss concerns about their health, safety and workloads. 

Employer’s Duty of Care Coverage

Apprentices and trainees

Employers should be sure to provide adequate training and supervision to apprentices and trainees. They are just as vulnerable to risks, especially when they are transitioning to the workplace. 

Some tips to help safeguard apprentices include: 

• Have a comprehensive induction program for all new employees; 
• ensure that they are aware of their rights and laws;  
• Ensure that they are aware of company policies; and 
• assign someone to check and monitor them to help identify and understand risks they may be facing

Mental Health

Mental health is an overlooked part of Work Health and Safety obligations.  Employees’ mental health should be prioritised because it is a key factor in overall job performance and productivity. Employers should create a culture of open communication and support and access to mental health resources like counselling services.  

Employers should respect a healthy work-life balance and encourage employees to “switch off” so that they can disconnect from work and recharge.  In addition to keeping the workplace safe, this will help employees remain productive. 

Violence, Bullying, and Harassment

Employers should have a clear zero-tolerance policy for harassment, bullying, and violence and ensure that all employees are aware of it.  

There should be counselling and other supportive services for victims of harassment, discrimination, and bullying.  A confidential reporting system offered to alert management of any incidents is important to ensure that employees feel safe enough to report any incidents that they may encounter.  

Employers should also ensure that they have a comprehensive policies for complaints, investigations, disciplinary actions, and conflict resolution.  It’s important that employers take well-documented, procedurally sounds steps if an employee complains about potential harassment, discrimination, or bullying. 

Many employers may feel a knee-jerk reaction and immediately move to terminate employees accused of harassment, discrimination, and bullying.  However, employers should ensure that they stick to their documented procedures when handling these matters.   

This is a particularly delicate area of practice and we recommend seeking professional help from a lawyer.   

Special needs

Some employees may have special health and safety needs from time to time.  This may include employees recovering from injury or illness, employees with long-term needs, or people with acute and chronic needs.   

Every employee is different and employers should try to avoid a one-size-fits-all approach to managing employees with special WHS needs. The best way to minimise risk is to ask the employee what they need, how  long they think they’ll need it, and then assess if there is a workable solution.    

While it can seem onerous to have to accommodate an employee with limitations, it can pay big benefits in the long run.  Small changes can have big results, including reducing an employer’s risk of a workers’ compensation or civil claim, minimising absenteeism, and increasing productivity.   

Employer Liability

Employers can face hefty fines and even criminal sanctions for breaches of workplace health and safety laws.   

If an employer fails to take reasonable steps to keep employees safe, the employer may be held responsible.  This is becoming more common in circumstances involving harassment.  Employers who do not take reasonable steps are increasingly finding themselves named in lawsuits brought by employees.1  These employers are being found to be vicariously liable for their employees’ harassing and discriminatory conduct under the Sex Discrimination Act 1984 (Cth).  

In some cases, if an employee dies at work or because of a workplace injury and an employer is found to have been reckless or negligent about causing the death, an individual employer may face 20 years or more in prison and fines over $10,000,000 depending on the State or Territory they are in. 

Workplace Culture

It’s important to create a workplace with a culture of trust and respect. This can lead to increased employee engagement, improved morale, and higher productivity. Most importantly, creating a safe environment for employees can also reduce costs associated with illnesses, injuries, and even fatalities.  

Key takeaways

In conclusion, an employer’s duty of care is a fundamental responsibility that ensures the health, safety, and well-being of employees while they are at work. Employers must take necessary steps to identify and control potential workplace risks, provide adequate training and resources, and have policies and procedures in place to address issues such as harassment, bullying, violence, and discrimination.  

Failure to fulfill this duty can lead to serious legal, financial, and reputational consequences. Therefore, it is essential for employers to prioritise and regularly review their duty of care obligations to provide a safe and healthy work environment for their employees. 

Our team of experienced workplace and employment lawyers is here to help you navigate the complexities of workplace laws and regulations, including duty of care obligations.  

We can provide advice, support, and representation on a range of legal issues, including workplace incidents, harassment and discrimination claims, and compliance with legal obligations. Contact us today to discuss your legal needs and how we can help.