Short-staffed, unsafe or injured at work? What the agreement and the law say.

1. The primary duty: a person conducting a business or undertaking "must ensure, so far as is reasonably practicable, the health and safety of" its workers (WHS Act s 19(1)), including safe systems of work (s 19(3)).
2. Consultation: it must, so far as reasonably practicable, consult workers who are or are likely to be directly affected by a health or safety matter (s 47(1)).
3. Psychosocial hazards: a psychosocial hazard is one that arises from, or relates to, the design or management of work, a work environment, plant at a workplace, or "workplace interactions or behaviours", and may cause psychological harm (Work Health and Safety (General) Regulations 2022 r 55A). The employer must manage psychosocial risks (r 55C), and must eliminate them so far as reasonably practicable or, if that is not reasonably practicable, minimise them so far as reasonably practicable (r 55D(1)). In choosing control measures it must have regard to all relevant matters, including (r 55D(2)):
   • (a) "the duration, frequency and severity of the exposure" of workers and others to the hazards;
   • (c) "the design of work, including job demands and tasks";
   • (d) "the systems of work, including how work is managed, organised and supported";
   • (h) "workplace interactions or behaviours".

Because these rules apply to every employer, they are a route for raising chronic understaffing and excessive workload as a safety issue, even though no ratio applies.

Industrial manslaughter is a crime (s 30A).

1. Any worker may ask the employer to facilitate an election of health and safety representatives (s 50).
2. In WA Health, the employer must "proactively facilitate" training: an initial course of up to five days within three months of a representative's election, and a refresher of up to one day a year after that (WAH043 cl 74.3), with paid time off at full pay for training and for the time reasonably necessary to perform the role (cl 74.5).
3. The agreement's dispute procedure "in no way limits the rights of the Employer, employees and the HSUWA under the WHS Act or other related legislation" (WAH043 cl 75.1(b)).

1. A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that it would expose the worker or anyone else "to a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard" (WHS Act s 84(1)).
2. A trained health and safety representative may direct a worker in the work group to cease work on the same kind of concern, but only if the matter is not resolved after consulting the employer and attempting to resolve it as a work health and safety issue, unless the risk is so serious and immediate or imminent that it is not reasonable to consult first (s 85(1)–(3), (6)).
3. A worker who ceases work must, as soon as practicable, notify the employer (unless the worker ceased under a representative's direction) and remain available for suitable alternative work (s 86). Ceasing work under these provisions does not affect continuity of engagement for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work that was safe and appropriate (s 88).

A trained representative who reasonably believes the Act is being contravened may, after consulting the person responsible, issue a provisional improvement notice requiring it to be remedied (s 90). The person given the notice may ask the regulator to have an inspector review it within 7 days (s 100(1)).

A person must not dismiss a worker, or alter the worker's position to the worker's detriment, for a prohibited reason (ss 104(1), 105(1)). The prohibited reasons include being or acting as a health and safety representative, and raising or proposing to raise "an issue or concern about work health and safety" (s 106). In the Fair Work system, adverse action because you made a complaint or inquiry about your employment may also found a general protections claim (FW Act ss 340, 341(1)(c)(ii)).

1. A personal injury by accident is an injury from employment if it "arises out of or in the course of the employment or while the worker is acting under the employer's instructions" (WCIM Act s 6(2)).
2. A disease, or the recurrence, aggravation or acceleration of a pre-existing disease, is an injury from employment if it was contracted or suffered in the course of the employment and "the employment contributed to a significant degree" (s 6(3)). The factors include the duration of the employment, its nature and tasks, the likelihood of the disease occurring anyway, hereditary factors, your health generally and activities outside work (s 6(4)).

A psychological injury is claimed under the ordinary test in s 6(3), with one important exclusion. A psychological or psychiatric disorder is not an injury from employment if it results "wholly or predominantly" from (s 7(2)):

1. administrative action, "not being administrative action that is unreasonable and harsh on the part of the employer"; or
2. your expectation of administrative action, or of a decision about it.

"Administrative action" includes a performance appraisal, suspension action, disciplinary action, anything done in connection with them, and anything done in connection with your "demotion, dismissal or retrenchment", or your "failure to obtain a promotion, reclassification, transfer or other benefit" (s 7(1)). So a disorder resulting wholly or predominantly from a disciplinary investigation, a substandard performance process or a refused reclassification is not compensable, unless the action was "unreasonable and harsh on the part of the employer". The exclusion does not refer to workload, occupational violence or traumatic events at work.

A presumption shifts the burden: if you have a prescribed disease and work, or have worked, in the prescribed employment for it, the injury is taken to be from that employment unless the employer proves otherwise (WCIM Act s 10(2)). The diseases and employment are in Schedule 1 of the Workers Compensation and Injury Management Regulations 2024 (r 5).

No PTSD presumption. PTSD is prescribed only for paramedics, ambulance officers, ambulance emergency communications officers, Crown firefighters and communications systems officers (r 10). A mental health clinician, social worker or forensic scientist with PTSD claims under the ordinary test.

COVID-19.

1. Prescribed employment is "employment as a health professional", "employment, of any kind, in a hospital, medical practice, clinic or facility where persons attend for health-related screening, testing or treatment", and employment as an ambulance officer (r 9(2)). A clerk, scientist or security officer working in a hospital is within the second limb.
2. The Act defines "health professional" as a person registered under the Health Practitioner Regulation National Law (Western Australia) to practise a health profession (WCIM Act s 5), so a registered pharmacist, physiotherapist, psychologist or medical radiation practitioner employed as one is within the first limb wherever they work (National Law (WA) s 5, "health profession").
3. Laboratory scientists are not a registered profession, so, on our reading of r 9(2), a scientist in a laboratory that patients do not attend is covered only if that laboratory is a "facility where persons attend for health-related screening, testing or treatment", which the regulation does not explain.
4. The diagnosis must rest on a test by a NATA-accredited laboratory, and the presumption applies only if the injury is taken to have been suffered (the day of diagnosis) on or after 16 February 2020 and you were in prescribed employment on that day (r 9(3)–(5)).

Other diseases whose prescribed employment names health or laboratory work (Schedule 1, column 2, quoted):

Schedule 1 also lists diseases tied to an exposure rather than an occupation. These matter for imaging, nuclear medicine, radiation therapy, mortuary, pharmacy and laboratory staff, but whether your work involved the listed exposure is a question of fact:

1. ionising radiation: primary leukaemia and non-Hodgkin lymphoma after at least 2 years' exposure (items 15, 36), and cancers of the bladder, bone, brain, female breast, colon or rectum, kidney, lung, nasal cavity or paranasal sinuses, oesophagus, salivary gland, skin (non-melanoma), stomach and thyroid after at least 5 years (items 17–21, 23, 26, 27, 29, 31, 33–35);
2. cyclophosphamide (a cytotoxic drug): primary leukaemia after at least 2 years' exposure, and bladder cancer after at least 5 years (items 15, 17);
3. formaldehyde: primary leukaemia after at least 2 years' exposure, and cancer of the nasopharynx after at least 5 years (items 15, 28);
4. occupational asthma after at least 4 weeks' exposure to sensitising agents or irritants, including latex, aldehydes, ethylene oxide and "sensitising drugs" (item 42), and contact dermatitis after at least 4 weeks' exposure to sensitising agents or irritants (item 46).

Conditions that apply to these presumptions:

1. where Schedule 1 sets a period of employment, it must be completed, in one period or several, by the day the injury is taken to have been suffered (r 6);
2. the injury is taken to have been suffered on the day of first diagnosis by a medical practitioner (r 7);
3. except for COVID-19 and PTSD, the presumption applies only to an injury taken to have been suffered on or after 1 July 2024 (r 8);
4. the employer can defeat the presumption by proving the injury was not from the employment (s 10(2));
5. if the presumption does not apply, you can still prove the claim under the ordinary test.

1. See a doctor and get a certificate of capacity.
2. Give your employer a completed claim form in the approved form and the certificate. That is when the claim is "made" (WCIM Act s 25(2)). The authority to release medical information on the form is optional (s 25(4)).
3. Claim within 12 months after the injury occurs (s 25(1)). A late or defective claim is not invalid if the failure came from mistake, absence from the State or another reasonable cause, or would not prejudice the employer's defence (s 25(5)).
4. An insured employer must give the claim to its insurer within 7 days (s 26(1)).
5. Within 14 days after the claim is given to it, the insurer or self-insurer must give a liability decision notice (accepting liability, accepting it with liability questions, or not accepting it) or a notice that the decision is deferred (s 28(1), (2), (4)).

Where an injury within the meaning of the WCIM Act keeps you away from work, personal leave with pay is granted to the extent of your credits, and if the claim is decided in your favour the personal leave credit is reinstated and the absence is treated as leave without pay (WAH043 cl 43.38). During leave without pay for which you receive workers' compensation, you keep accruing annual leave, long service leave and sick leave (cl 44.7). Clause 43.38 cites s 5 of the Act for "injury"; s 5 says the term has the meaning given in s 6.

1. For 12 months from the day you first have an incapacity for work, your employer must give you your pre-injury position or, if that is not reasonably practicable or you cannot do it, a suitable position most comparable in status and pay (WCIM Act s 166(1)–(2)). This does not apply if you are lawfully dismissed (s 166(3)).
2. During those 12 months the employer must not dismiss you solely or mainly because you are incapacitated, and must not dismiss you for any reason without first giving you at least 28 days' notice of intention to dismiss in the approved form (s 168(2)–(4)). Each is an offence with a fine of up to $10,000.
3. In WA Health, a termination on the ground that, on medical evidence, you cannot perform the inherent requirements of your position is on four weeks' notice or pay in lieu (five weeks if you are more than 45 and have at least two years' continuous service) (WAH043 cl 10.8(b)). Challenging it is covered on our discipline and dismissal page.

A common law claim for damages against your employer needs a permanent whole of person impairment assessed at 15% or more, recorded by the Director, and a registered election to keep the right to sue (WCIM Act s 421(1)).