Relevant legislation

Work Health and Safety Act (Cth) and Comcare

The Work Health and Safety Act 2011 (Cth) applies throughout Australia to:

“workers” and contractors of the Commonwealth;

“workers” and contractors of Commonwealth authorities;

“workers” and contractors of entities that are licensed by the Commonwealth to self-insure for workers’ compensation.

Examples of such licensees include Linfox, John Holland and Transpacific Industries. The Commonwealth regulator is Comcare. Contact Comcare (seeContacts”) to ascertain if a private company is covered by the Work Health and Safety Act 2011 (Cth) or the Occupational Health and Safety Act 2004 (Vic).

Occupational Health and Safety Act (Vic) and WorkSafe

In Victoria, health and safety issues for most employees (who are not employed by the Commonwealth or otherwise covered by the Work Health and Safety Act 2011 (Cth), see above) are regulated by the Occupational Health and Safety Act 2004 (Vic) (“OHSA 2004”). The OHSA 2004 covers all workers, including, contractors, the self-employed, out-workers and state government employees. It applies to all workplaces in Victoria. The OHSA 2004 (s 2) aims to:

secure the health, safety and welfare of employees and other people at work;

ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed people;

eliminate risks at the source; and

involve employees and employers and representative associations in the formulation and implementation of health, safety and welfare standards.

Important “principles of health and safety protection” are in section 4 of the OHSA 2004. An important principle is that employees, other people at work, and members of the public are entitled to be given “the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances”.

The OHSA 2004 is administered by WorkSafe Victoria, which operates to ensure that workplace parties comply with legal requirements.

Since 2009, a national process has been underway that has led to new laws covering occupational health and safety throughout Australia, except in Victoria and Western Australia. The Victorian Government has stated that it will not implement these new laws as the additional costs to businesses associated with their introduction are not justified. Therefore, for all employees in Victoria (except those covered by the Commonwealth Act), the OHSA 2004 remains in effect.

Continued operation of the previous Act

The OHSA 2004 repealed and replaced the Occupational Health and Safety Act 1985 (Vic) (“OHSA 1985”). However, the OHSA 1985 remains operational in certain important respects. For example, health and safety representatives elected under the OHSA 1985 are deemed to be elected under the OHSA 2004 (s 164).

Regulations

The “general duties” imposed in part 3 of the OHSA 2004 are supplemented by a broad range of specific duties in the Regulations made under this Act.

On 18 June 2017, a new set of consolidated Regulations came into operation (“OHS Regulations 2017”). Some of these Regulations apply to all workplaces, while other Regulations are hazard-specific.

The wide range of hazards and risks addressed in the OHS Regulations 2017 include:

plant;

hazardous substances;

asbestos;

confined spaces;

manual handling; and

major hazardous facilities.

Breach of a Regulation is a summary offence. The maximum fine for an offence against a Regulation is 500 penalty units (seeNote”, below).

An employee who is injured as a result of a failure by their employer to comply with a Regulation made under the OHSA 2004 may recover damages from their employer by bringing an action for breach of statutory duty (see Deal v Father Pius Kodakkathanath [2016] HCA 31). (See Work injuries.)


NOTE

For the financial year (1 July 2017 to 30 June 2018), the value of one (1) penalty unit (pu) is $158.57. More information about penalty units can be found at the start of this book.


Compliance codes

Compliance codes provide practical guidance to those who have duties or obligations under the OHSA 2004 (e.g. employers, employees and the self-employed). These codes aim to provide easy to understand information on how to comply. There are many compliance codes available, including:

communicating occupational health and safety across languages*;

workplace amenities and work environment*;

confined spaces*;

first aid in the workplace*;

prevention of falls in general construction*;

foundries*;

managing asbestos in workplaces;

removing asbestos in workplaces.

* These codes replaced codes of practice approved under the OHSA 1985. These codes are available at www.worksafe.vic.gov.au.

As a result of the introduction of the OHS Regulations 2017, WorkSafe is reviewing many compliance codes. Full details are on the WorkSafe website.