Health and safety issues for non-Commonwealth employees in Victoria are regulated by the Occupational Health and Safety Act 2004 (Vic) ("OHSA 2004"). The Act covers all workers, including, for instance, contractors, the self-employed, out-workers and state government employees. It applies to all workplaces in Victoria. Details of issues broadly covered by the OHSA 2004 are provided in Regulations and Compliance Codes (see below).
The objects of the OHSA 2004 are to:
- secure the health, safety and welfare of employees and other persons 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 persons;
- eliminate risks at the source; and
- involve employees and employers and representative associations in the formulation and implementation of health, safety and welfare standards (s.2).
Certain important "principles of health and safety protection" are set out in section 4. An important principle is that employees, other persons 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, an arm of the Victorian WorkCover Authority, which operates to ensure that workplace parties comply with legal requirements. A significant proportion of its resources is devoted to providing information, education, advice and compliance in the workplace.
The OHSA 2004 repealed and replaced the Occupational Health and Safety Act 1985 (Vic) ("OHSA 1985").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 OHSA 2004).
The "general duties" imposed under Part 3 of the OHSA 2004 are supplemented by a broad range of specific duties that are found in Regulations made under the Act.
On 1 July 2007, a new set of consolidated Regulations came into operation. These Regulations include regulations of general application to all workplaces, as well as chapters that are hazard-specific. There are chapters in the new Regulations addressing:
- plant;
- hazardous substances;
- asbestos;
- confined spaces; and
- major hazardous facilities.
Breach of a regulation is a summary offence. The maximum fine for an offence against a regulation is 500 penalty unit.
As stated above, the OHSA 2004 provides for the approval of Compliance Codes by the Minister (see: Part 12) for the purpose of providing practical guidance to employers, employees, self-employed people and others. An approved code may set out standards and rules relating to occupational health and safety.
Under the OHSA 2004 employers must provide and maintain for their employees a safe, risk-free working environment as far as is reasonably practicable (s.21). Employers also owe that duty to independent contractors and the employees of independent contractors, in relation to matters over which the employer has control (s.21(3)).
Employers must also:
- monitor employee health;
- keep information and records on the health and safety of employees;
- employ or engage qualified persons to provide health and safety advice;
- monitor workplace conditions; and
- inform employees (in appropriate languages) of how, and to whom, a health and safety enquiry or complaint may be made (s.22).
Section 25 of the OHSA 2004 imposes the following duties on an employee while "at work":
- to take reasonable care for their own health and safety and for the health and safety of anyone else who may be affected by their acts or omissions at the workplace; and
- to co-operate with their employer in relation to the employer's health and safety obligations.
A manufacturer and supplier of plant for use at a workplace must ensure, as far as reasonably practicable, that the plant is designed and constructed in such a way as to be safe and without risks to health when it is used for a purpose for which it was manufactured. The manufacturer must also carry out, or arrange to carry out, such testing as is necessary to ensure the plant is safe when properly used and must take appropriate action to ensure that there is information available at the workplace to ensure the safe use of the plant at the workplace (ss.29 and 30).
Similar obligations are placed on the manufacturers and suppliers of substances for use at a workplace.
The OHSA 2004 provides for joint participation of employers and employees in determining safe and healthy working conditions in the workplace by means of the following procedures.
- Designated Work Groups are established, with an elected representative known as the Health and Safety Representative (HSR) (Part 7 of OHSA 2004), who represents the interests of the group of employees and may, in certain circumstances, inspect that part of the workplace for which they are the HSR. (For other powers, see: ss.58–60.)
- HSRs may, after consultation with the employer concerned, issue Provisional Improvement Notices (see: "Enforcement", below), which are legal directions requiring compliance with a provision of the Act or Regulations (s.60). Failure to take the appropriate actions after receipt of a Notice is a legal offence.
- Health and Safety Committees facilitate co-operation between employers and employees in the formulation and operation of health and safety measures, procedures and standards (s.72).
Where an immediate threat to health and safety exists and the issue resolution process has failed, either the employer or the HSR may direct work to cease (s.74). Suitable alternative work may be assigned to employees during a work cessation.
Where no resolution is reached, an inspector may be called in. An entitlement to wages exists if the inspector issues a Prohibition Notice (see: "Enforcement", below) or determines that there was reasonable cause for concern.
Disputes about wages can be referred to the Magistrates' Court, which also hears applications from the HSR seeking directions that an employer must allow access to the workplace to an outside person whose assistance the HSR needs to perform a function or duty (s.70).
Because of the vital role played by HSRs under the Act, section 76 of the OHSA 2004 makes it a serious offence for an employer to treat an employee less favourably "for the dominant reason" that the employee has performed a function as an HSR or been otherwise active in the promotion of health and safety. These offences attract significant penalties under the Act.
In addition to imposing a penalty on an employer, a court which finds a charge under section 76 proved can order that the employee concerned be compensated and/or reinstated to their former position.
Under Part 8 of the OHSA 2004, an employee or officer of a trade union registered under the WRA may be issued with an entry permit by the Magistrates' Court (s.83). A permit holder is entitled, in defined circumstances, to gain access to certain workplaces for the purpose of investigating particular alleged contraventions of the OHSA 2004 (s.87). A permit holder who enters a workplace in accordance with the OHSA 2004 may exercise the powers of investigation set out in section 89. As a result of changes to federal legislation, a permit holder seeking to gain entry under the OHSA 2004 must also comply with Part 15 of the WRA.
The key enforcement tools are Improvement and Prohibition Notices. These Notices require employers or others to bring the work environment into compliance with the law or to stop immediate risks to health and safety.
An Improvement Notice is a written direction requiring remedy of a breach or likely breach of the law. It sets a time limit within which the improvement must be carried out (s.111 OHSA 2004).
A Prohibition Notice is a written direction prohibiting an activity that the inspector believes involves or will involve an immediate risk to the health and safety of any person (s.112).
Notices can be appealed to the Victorian Civil and Administrative Tribunal (VCAT) (s.129). The VCAT's powers are contained in the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Before an application is made to the VCAT, Worksafe must be asked to conduct an "internal review" of the decision to issue the notice (s.128).
Inspectors appointed by the WorkCover Authority under section 95 of the OHSA 2004 have very broad powers to investigate workplace safety and obtain information (see Part 9). It is an offence to obstruct an inspector in the exercise of their powers (s.125).
Proceedings for an offence against the OHSA 2004 or its Regulations may be brought either by the Authority itself or by an appointed inspector (s.130). In practice, all prosecution are brought by inspectors. Most offences against the OHSA 2004 are indictable offence. Prosecutions may be heard summarily by the Magistrates' Court. In recent times, the Authority has sought to have more cases heard in the County Court. Regulation offences are summary offence.
The maximum penalty for regulation offences is 500 penalty unit for corporations and 100 penalty units for individuals. For indictable offence, the maximum penalty is 9,000 penalty units for corporations and 1,800 penalty units for individuals. The court also has a discretion to impose other penalties such as adverse publicity orders (s.135) and orders to undertake improvement projects (s.136).
The offences with the heaviest maximum penalties are:
- failing to provide and maintain a safe working environment for employees (s.21);
- exposing non-employees to risks to their health and safety (s.23); and
- recklessly endangering persons at workplaces (s.32).
The offence of reckless endangerment carries a maximum penalty of imprisonment for five years for an individual.
Officers of bodies corporate and unincorporated associations may also be convicted if they fail to take reasonable care to ensure that the body corporate/unincorporated association meets its statutory duties (ss.144 & 145).
Anyone may request the Authority to bring a prosecution (see: s.131 of OHSA 2004 for details).
In 2003, the WorkCover Authority released a Guidance Note on the Prevention of Bullying and Violence at Work as part of a campaign to highlight the issue of workplace bullying. The Guidance Note provides practical guidance for employers and employees in relation to preventing workplace bullying and addressing it where it is occurring. There have been several prosecution of employers and employees in relation to workplace bullying.
In recent years, the general public has been made aware of the extremely dangerous nature of workplace chemicals such as asbestos. In response, governments throughout Australia have introduced laws regulating the handling, use and transport of chemicals to ensure that employees who are required to work with chemicals are:
- informed about the potential risks;
- instructed and trained in the means by which those risks may be removed or reduced; and
- provided with the necessary equipment including personal protective equipment.
The principal Victorian requirements are found in sections 21(2)(b) and 22 of the OHSA 2004 as well as in a range of regulations made, and compliance codes approved, under the Act.
For further information about the proper transport and use of chemicals, see: "Chemicals", in Chapter 11*1, Environmental Law.
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