Common business practices that can minimise workplace risks
27 April 2026
Given the constant developments in the workplace and safety rules and regulations we share some recommended business practices that can help employers avoid common pitfalls.
1. Contractor mismanagement
In all states and territories (except Victoria, which has its own legislation) a person conducting a business or undertaking (PCBU) has a primary duty, as far as reasonably practicable, to ensure the health and safety of all workers. A worker includes any person who carries out work for a PCBU in any capacity, including employees, contractors, labour hire personnel, trainees and volunteers.
It is common for employers to engage contractors and labour hire workers to supplement and cover their permanent workforce. Employers using contractors and labour hire workers need to be aware that the more control or influence they have over the work that is being performed, the greater the duty will be to ensure the contractors’ health and safety. This means at a minimum, consulting and communicating with the worker (and in the case of labour hire personnel, the labour hire company) in relation to the job requirements and the skills required of the worker, considering the health and safety risks associated with the work being performed and understanding how any risks will be managed and controlled (and by whom!).
Although WHS duties cannot be delegated or ‘contracted out’ to another party, the duties can be concurrently shared to the extent that each party has the ability to influence and control the work being performed. Considering this and confirming responsibilities prior to allowing a contractor onsite can prevent future disputes, should things go wrong.
2. Have you taken reasonably practicable steps to minimise workers exposure to hazards?
Employers (and PCBUs) must do what is reasonably practicable to eliminate, or at least minimise risks associated with those aspects of the work over which they have control. Where this arises, they must provide the highest level of protection that is both possible and reasonable in the circumstances. This includes:
- The likelihood of the risk or hazard occurring
- The degree of harm that might result from the hazard or risk
- What the employer knows, or ought to reasonably know, about the hazard or the risk and ways of eliminating the risk
- The availability and suitability of ways to eliminate, or minimise, the risk
- Whether the costs associated with minimising or eliminating the risk are grossly disproportionate to the risk, or not.
In short, the test of what is ‘reasonably practicable’ is a judgement call in light of all the facts and with the knowledge of the risk of harm or injury and means of mitigating against it.
3. Is someone fit enough to safety perform the inherent requirements of the role?
Whilst most employees are aware they have certain workplace rights, we find some employers are reticent to challenge, question or even inquire about an employee’s health for fear of offending the employee or exacerbating the employee’s condition.
Employers have a right to understand their employees’ fitness for work. Indeed, employers have a duty of care to their employees that can extend to requiring a worker to satisfy the employer that they are able to safely perform the inherent requirements of their role before allowing them to return to work.
We recommend that where employees have an extended period of personal leave or a clear medical / health issue that the employee is required to demonstrate they are capable of performing the inherent requirements of their role. This may involve the employee being directed to attend an appointment with a company doctor, or an independent medical specialist. For other situations, another approach may be required, such as liaising with the employee’s treating doctor, if the employee agrees. Ultimately, unless the employer is satisfied that the employee can safely return to their pre-illness or pre-injury duties then caution, communication and consultation is recommended.
4. Culture - Can the employer define what is acceptable (or unacceptable) workplace behaviour?
Can senior managers and executives within an organisation consistently agree on appropriate conduct in the workplace and do the managers and executives exhibit this type of conduct and behaviour within their own leadership styles?
We find it is very common for perpetrators of sexual harassment or racial discrimination to say they did not intend for the victim to feel offended, humiliated, or intimidated.
Putting aside the fact that the perpetrators’ intent is irrelevant, can the employer demonstrate to the satisfaction of a third party the culture and values of the organisation and if so, how is this communicated, supported and encouraged with employees?
Having clear guidelines on employee conduct, conducting regular training programs and providing a safe and supportive framework for people to raise concerns are all essential foundations that employers must be doing.
Since 2023, changes to the Sex Discrimination Act have imposed a positive duty on employers to actively prevent unlawful conduct from occurring in the workplace rather than reacting to conduct after it has occurred and already caused harm.
Leadership, cultural or racial differences and team dynamics – they are all critical factors that contribute positively or negatively to the workplace culture
Sparke Helmore’s Workplace team frequently assists employers with these issues (and many more). Please contact a member of the team if you require further information on any of these topics.
