Work health and safety guidance for NDIS participants
Information for NDIS participants about their role and responsibilities under NSW work health and safety (WHS) law.
This guidance is to help you understand WHS law in NSW when using your NDIS funding to exercise your choice and control of supports and services selected under the NDIS.
It is aimed at NDIS participants, their nominees or child representatives who:
- directly employ their own workers or cause a worker to be engaged in work through their NDIS plan, and/or
- receive care, support or assistance in an environment that they have management or control of, such as their home, and/or
- are directing the work of a NDIS provider or worker. This means telling the provider or worker how work tasks or activities are undertaken or completed.
On this page:
- WHS laws in NSW
- NDIS participants as PCBUs
- Shared PCBU responsibilities
- Further guidance and information
WHS laws in NSW
WHS laws aim to protect the physical and psychological health and safety of workers and others in the workplace.
A workplace is any place where work is being undertaken. When support workers operate in your home or during activities like transportation or outings, these spaces are considered workplaces. Responsibilities and obligations exist to ensure that they are safe.
The legislation (law) that applies in NSW is the Work Health and Safety Act 2011 and Work Health and Safety Regulation 2017.
WHS laws are enforced by a WHS Regulator. A WHS Regulator’s role is to provide advice and information on WHS, monitor and enforce compliance with WHS laws and work with the community to reduce workplace injuries and illnesses. The WHS Regulator in NSW is SafeWork NSW.
As a regulator we want to ensure that workers and participants are protected, workplaces are safe and people aren’t put at risk from the work being undertaken. Our belief is that safer work leads to safer care.
Understanding WHS law
Under WHS law, everyone within a workplace has a responsibility to keep themselves and others safe, so far as reasonably practicable. This means to the best of their ability and capacity.
The WHS Act places the main responsibility of managing health and safety risks at work on a ‘Person Conducting a Business or Undertaking’ (PCBU).
A person who performs work for a PCBU is called a worker. Workers also have WHS responsibilities and must conduct the work in a safe way. They must not put others at risk while completing their tasks and should speak up if they notice something unsafe.
Others in the workplace can include visitors, volunteers, customers, and contractors. They also have responsibilities to act in a safe manner while in the workplace.
NDIS participants as PCBUs
You may not run a business in a traditional sense, but depending on how you engage a NDIS provider or worker, you may be conducting an ‘undertaking’. This means you would be considered a PCBU under WHS law.
Under WHS law, you are a PCBU if:
- you are a participant, nominee or child representative who is employing your own workers or engaging sub-contractors to complete work
- you receive care, support or assistance in an environment that you have management or control of, such as your home
- you are directing or influencing the work of a NDIS provider or worker. This means telling the provider or worker how work tasks or activities are undertaken or completed.
Regardless of how your NDIS funds are managed (NDIA, plan managed or self-managed) if you meet one or more of the elements above, you are a PCBU under WHS law in NSW.
Your responsibility as a PCBU
As a PCBU you have the main responsibility to ensure the health and safety of workers and others while in the workplace. This means you need to do what you reasonably can to make sure that workers, visitors, and volunteers stay safe and healthy while work is being done.
As a PCBU, your responsibilities include:
- planning to do all work safely
- making sure that all work is conducted in a safe and healthy way
- ensuring safe use, handling, and storage of equipment and substances
- maintaining facilities, such as the toilet and kitchen, at an acceptable standard
- offering necessary information, training, and supervision for workers
- monitoring workers' health and workplace conditions
- talking (consulting) with workers about health and safety
- investigating safety risks and taking action to manage them
- making sure workers receive information about potential safety risks and incidents
- keeping an injury register. This is a written record of an injury or incident that has happened while work was being completed.
Examples of WHS risks workers may face include:
- muscular stress from manual handling tasks (including lifting or transferring a NDIS participant)
- slips, trips and falls
- working alone with a NDIS participant and in unfamiliar environments
- psychosocial risks, such as exposure to high job demands, low job control, poor support, remote or isolated work or harmful behaviours (for example harassment, conflict, violence and aggression).
Workers have WHS responsibilities to:
- work safely
- ask if they are not sure how to safely perform the work
- use personal protective equipment (PPE) correctly
- report injuries and unsafe and unhealthy situations to the person with management and control of the workplace or work activity.
- take reasonable care for their own health and safety
- take reasonable care for the health and safety of others
- follow any reasonable instructions, policies and procedure given by their employer, business or controller of the workplace.
Risk management
While being a PCBU may sound like a big task, your responsibility is measured against what you can reasonably do. For example, it may be reasonable for you to move furniture or tidy your house to let your worker work in a more comfortable position. It would not be considered reasonable for you to renovate the room to create more space.
This process is called risk management.
Risk management can be broken up into the following steps:
- Talk with the NDIS provider and workers about possible WHS risks when doing tasks or activities. Together you can look at the work environment for possible risks it may introduce. They may be able to identify issues or suggest safety improvements you haven’t thought of. SafeWork NSW’s Home Safety Checklist (PDF, 135.48 KB) or Home Safety Risk Assessment (PDF, 205.97 KB) can help you do this.
- Look at how the risk can be eliminated or minimised. You should always try to eliminate a risk first before minimising it. For example, storing items regularly used by workers at a waist-height shelf, instead of overhead, eliminating the risk of falling objects.
- Make changes to address the risk identified. Assess the changes to ensure that no new risks have been introduced and that the change is practical for the workers or yourself. If it is not safe or practical, then start the process again until you find a solution that works.
WHS should not be hard. Simple and direct ways to address WHS risks are usually the best.
If you get stuck, you can contact SafeWork NSW for assistance.
WHS in your home
Keeping your home is safe for yourself, and workers is important for:
- protecting your own health and safety. A safe home environment reduces the risk of accidents and injuries for both you and your workers
- ensuring the wellbeing of your workers. NDIS workers play a vital role in your care, support and assistance. By providing a safe working environment, you can help them to perform their duties safely and effectively. This ensures they can continue working with you into the future, providing continuity of support and services
- maintaining a positive and productive working relationship with your support workers. A focus on safety can foster a sense of trust and cooperation between you and your support workers.
You can ensure your home is safe by taking practical steps such as:
- conducting a home safety assessment. Walk through your home and identify any potential hazards. These could be slippery surfaces, tripping hazards, or unsecured furniture
- making necessary repairs and modifications. Once you have identified any hazards, take steps to repair or modify them to remove the risk
- a clean and clutter-free home. This reduces the risk of tripping and falling accidents
- providing clear instructions and training to support workers. Clearly communicate your needs and expectations to your support workers. Provide them with training on how to use any equipment or devices in your home safely
- reporting any incidents or concerns immediately. If you have any concerns about safety in your home, report them to your NDIS provider or SafeWork NSW immediately.
Shared PCBU responsibilities
You may share WHS responsibilities and obligations with the NDIS provider engaged to undertake work. This is usually the case when NDIS providers are undertaking work in your home. It is important to know that each of you still have the above WHS responsibilities and are expected to work with each other to ensure the responsibilities are met.
You must talk with your NDIS provider about the work they are undertaking, who is responsible for what and how to complete the work safely. Regular discussions with your service provider will help both of you:
- clarify your role in meeting WHS duties
- decide who is in the best position to take action to manage a particular risk, and
- stay informed of any changes that might impact the health and safety of workers or the workplace.
For example, the NDIS provider may agree to supply any required personal protective equipment (PPE), such as masks or gloves, to the workers. In this case, you would not be required to supply the PPE, but you would need to check the NDIS provider has supplied PPE to the workers as agreed.
As each workplace and NDIS participant is different, the NDIS provider must work with you to identify and manage the specific WHS risks of your situation. Confirming your service provider has processes in place to manage WHS risks, and that they are being followed, will help you to meet your own duties as a PCBU. This is something you should look for when choosing a NDIS provider.
Communicating and collaborating with your NDIS provider is needed to create a safe working environment and to ensure the continuation of support and services.
Reporting incidents to SafeWork NSW
Some serious injuries or near-misses must be reported promptly to SafeWork NSW. These are called ‘notifiable incidents’.
A notifiable incident is when:
- a person dies
- a person experiences a serious injury or illness
- a potentially dangerous incident occurs.
Examples of these incidents are available in Safe Work Australia's Incident notification information sheet.
Most often, the responsibility to notify SafeWork NSW is with the NDIS provider. However, if you employ your own workers this would be your responsibility.
When there are multiple PCBUs within the workplace, reporting a notifiable incident may be a shared responsibility. If you have engaged a sole trader, it is important to agree on who will notify SafeWork NSW if a notifiable incident occurs.
Significant penalties apply if you or the NDIS provider don’t notify SafeWork NSW of a notifiable incident. If you employ your own workers, you must also notify your insurer within 48 hours.
When you call us to report an incident, we will ask for:
- an overview of what happened, including date, time and location
- information about anyone who was injured, including their date of birth, contact details and their relationship to you (worker, site visitor, volunteer, contractor, member of the public)
- information about the injury, including treatment received and hospital details, if they were taken to hospital
- your details, including business information and contact details
- immediate action taken to make the site safe
- further safety action taken, or actions that will be taken, to prevent the incident happening again.
You must take care not to disturb the incident scene until an inspector arrives at the site, or until direction is given by an inspector. You can help an injured person and ensure safety of the site.
Incidents can be notified 24 hours a day, 7 days a week by calling 13 10 50.