Detailed Discussion

Public awareness of Workplace Health and Safety (WHS) has increased significantly over time, and all Commonwealth, state and territory governments have enacted legislation relating to WHS. 

Despite this, many people, including many artists themselves, still think of visual arts, craft and design practice as posing minimal risks of injury and disease. The truth is very much the reverse. Almost all of the wide range of visual arts media involve substantial risks of serious injury or illness. 

The term ‘artist’ is used here to describe all types of creative practitioner.

Work Relationships

It is possible to divide artists into three categories based on their work relationship. These categories are not determined by the art medium, but by contractual issues. In each category, artists are both owed protection, and have obligations of protection to others.

For information on the difference between contractors and employees, see Contractors vs Employees.

Employers

When an artist is an employer of, for example, another artist as an assistant, then they have the same WHS obligations to their employees as any of the employers referred to in this part of the Code.

This category includes:

• teachers in art schools

• conservators and installers employed by galleries

• community arts workers employed by local government

• arts administrators

Contractors

This category includes:

• persons engaged to create commissioned works in the public and private sectors

• persons engaged to create art works as part of larger projects

Artists Without Any Legal Work Relationships

Legal work relationships are about performing work (e.g. sculpting or weaving), not about the thing produced by work (e.g. a sculpture or wall hanging). When a work is sold, the individual artist is not in a legal work relationship with the ‘end-user’ of the work. For example, the individual artist creates an art, craft, or design work in their studio, then sells the work. The legal relationship involved is one of sale. The artist is not an employee nor an independent contractor, but a vendor.

Key Issues

Risk factors in a creative workplace may include:

• substances such as clays, spray adhesives, waxes, solders, paints, photographic chemicals, fumes, glazes, acids

• environmental conditions of work, such as ventilation and air temperature, floor surfaces and lighting

• physical conditions of individual work, for example poor posture or workspace layout may lead to strains and musculoskeletal problems 

• mental health and psychosocial conditions such as unrealistic job demands, poor support, stress, poor change processes, poor organisational justice, bullying, violence and aggression and poor conflict management

The focus of WHS legislation is on legal strategies for the prevention of workplace injury and disease. Under Australian WHS legislation the parties below have a statutory obligation to ensure, as far as reasonably practicable, that the conduct of their enterprise or their work will not create a risk to the health and safety of other persons present at the workplace, including:

• employers 

• principals of independent contractors

• contractors

• employees 

• owners of workplaces 

• manufacturers of plant and substances for use at work 

The WHS legislation mandates a general standard of care in workplaces and work processes. The protection of artists under WHS legislation is determined by the existence or not of a work relationship.

National, State and Territory Requirements

The details involved in fulfilling the general responsibilities of care vary from state to state, depending on legislation. There are specific requirements concerning reporting of accidents and incidents in the legislation of all states. Additionally, NSW legislation mandates the establishment of ongoing systems of risk identification, assessment and minimisation.

For more information about these detailed requirements, contact the relevant state authorities: 

Safe Work Australia

Australian Capital Territory

New South Wales

Northern Territory

Queensland

South Australia

Tasmania

Victoria

Western Australia

Employers

Where artists work as employees, the employing body will owe obligations of care to them as their employer. That obligation will incorporate protection from all risks relating to the art, craft or design medium involved, as well as to a host of other matters which may arise from working on the premises. 

For example, there will be obligations to ensure:

• premises are structurally sound 

• provision of appropriate personal protective equipment

• temperature, ventilation and freshness of the air do not endanger health

• entrances and exits are properly lighted to protect against falls

• security from assaults by the public

• security from workplace bullying

• pressure of work does not create undue stress

• adequate risk assessments, management and mitigation strategies for hazards inherent to collections

• access provisions so d/Deaf and Disabled employees can work safely

Contractors

Where project managers have been employed their responsibilities here will be limited by the implications of ‘reasonable practicability’. For example, it would be reasonably practicable to insist that the artist wears a hard hat in a hard hat area, but not reasonably practicable to control the choice of paints, solvents or glazes, the dangers of those being matters within the artists’ particular knowledge.

Where artists are working as independent contractors on projects, the project managers will have obligations to ensure that:

• premises, construction work and activities of others employed or engaged on the project do not endanger the health and safety of the artists

• no worker or visitor on the project premises creates risks to the health and safety of anyone by their conduct at work

Artists Without Any Legal Work Relationships

While artists who are not hired by an employer, or employing others have no legal responsibilities under WHS laws, they have responsibilities under statutory occupier's liability to protect the health and safety of anyone present in their studio.

For example, there will be obligations to ensure:

• premises are structurally sound 

• temperature, ventilation and freshness of the air do not endanger health

• entrances and exits are properly lighted to protect against falls

• security from assaults by the public

• reasonable controls have been placed on the storage and use of hazardous materials

• reasonable steps taken to avoid hazardous materials being incorporated in artworks (for example, asbestos or chemical solutions that off gas or leak)

Given that the artist has primary control and responsibility for their practice and studio, it is especially important that this group be vigilant about WHS in their practices.

Risk management for health and safety in the workplace is a detailed planning process based on the steps outlined below.

1. Identify hazards: This includes hazards in the physical work environment, hazardous equipment, pollutants, materials and substances being used, work tasks and how they are performed, and the way the work is designed, managed and remediated.

2. Assess risks: Identify what might happen if someone is exposed to one of the hazards in the workplace, assess how severe that risk is and carefully consider what can be done to control the risk.

3. Control risks: Implementing risk controls - wherever possible and practical, risks should be eliminated. If risks can’t be eliminated they should be minimised. Control measures include substituting the hazard for something else, isolating people from it, designing spaces to minimise the impacts, implementing procedures and policies (such as safety procedures or anti-bullying policies), providing personal protective equipment and providing information and training.

4. Review controls: Regular assessment of risk controls and whether they are working effectively to control risk. Reviews should assess whether any hazards were missed in previous assessments and whether new hazards have developed in the workplace, or new controls have become available for managing risk. Records should be kept of all assessments and reviews.

This process is best carried out with a comprehensive guide and template. State and territory authorities provide these, including the NSW Government's Code of Practice on How to Manage Work Health and Safety Risks. 

For information on managing risks to artwork and assets, see Emergency Response and Disaster Preparedness and Exhibiting. NAVA's Risk Management factsheet also includes information on managing risk and a risk assessment template. 

Under WHS law, ‘officers’ are required to exercise ‘due dilligence’ to ensure the organisation meets its duty to protect workers and other persons against harm to health and safety.

It is good practice to develop policies to support this, including policies on: 

• workplace health and safety, including incident reporting

• discrimination and harassment

• mental health and wellbeing

Workplace Health and Safety Policy

It is good practice to document processes for risk management and incident reporting in clear and transparent policies.

For more information see Safe Work Australia’s What Does an Officer Need to Do? 

Discrimination, Harassment, Mental Health and Wellbeing Policies

Alongside policies for managing the risk of physical hazards, it is good practice for organisations to develop policies for managing mental health and bullying and harassment. 

These hazards may be managed using a risk management process, but may also require developing clear policies to set standards and provide guidelines for acceptable behaviour in the workplace. It is good practice to include professional counseling assistance to workers affected by bullying, harassment, mental health problems or other psychosocial issues. The policy should also include a complaints handling process. 

The Australian Human Rights Commission has a Workplace Discrimination and Harassment Policy template. Work Safe Victoria also has a WorkWell Toolkit that provides practical resources, tools and information for preventing mental injury in the workplace.

Artists and organisations have a responsibility to create cultural safety in the workplace. For more information, see Racial Equity and Representation.

Artists and organisations have a responsibility to provide accessible workplaces. For more information, see Access Rights for d/Deaf and Disabled People.

Artists and organisations have a responsibility to manage the risk of workplace sexual harassment between workers and from other people at the workplace, like customers and clients. For more information, see Gender Equity.