Introduction
In Victoria, occupational health and safety (“OHS”) in the workplace is principally regulated by the Occupational Health and Safety Act 2004 (Vic) (“the Act”) and the Occupational Health and Safety Regulations 2007 (Vic) (“the Regulations”).
The objects of the Act are:
- to secure the health, safety and welfare of employees and other persons at work; and
- to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
- to 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; and
- to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards
The Act is designed to provide a broad framework for improving standards of workplace health and safety to reduce work-related injury and illness.
The Act sets out various duties that organisations and individuals must comply with in the workplace. The general nature of the duties imposed by the Act means that they cover a very wide variety of circumstances, do not readily date and provide considerable flexibility for a duty holder to determine what needs to be done to comply.
The Act and the Regulations also create criminal offences.
WorkSafe Victoria is the regulatory agency which administers and enforces OHS legislation in Victorian workplaces.
WorkSafe Victoria may prosecute organisations and individuals that breach the Act and the duties contained therein.
Employer’s obligations
The principal duty imposed on employers under the Act is to, so far as reasonably practicable, provide and maintain for their employees a working environment that is safe and without risks to health.
Employers also owe that duty to independent contractors and the employees of independent contractors, in relation to matters over which the employer has control.
The definition of ‘health’ in the Act includes psychological health.
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.
In discharging their principal duty towards employees, employers must be able to demonstrate that they have maintained the workplace in a safe manner; provided systems of work that are safe and without health risks; ensured the safe use, handling, storage and transport of plant substances; and provided adequate facilities, information, instruction and training to enable employees to carry out tasks safely.
The obligations and duties of employers encompass the need to have effective systems in place to eliminate, and deal with, workplace bullying and violence.
The Court of Appeal described the content of duties under the Act in DPP v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 at [48]-[49] as follows:
… the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer’s active implementation of the system in the workplace. The employer’s duty will not be discharged by simply creating a safe system of work. The obligation requires the employer to ensure “that procedures and instructions are actively and positively complied with by employees”. Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.
An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety to deliberate non-compliance with the prescribed safe system of work. In R v Australian Char Pty Ltd and DPP v Amcor Packaging Pty Ltd, this Court has referred with approval to the observations of Harper J in Holmes v R.E. Spence & Co Pty Ltd that an employer’s responsibility for the safety of its workers will not be discharged unless the employer takes “an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality”.
Employees also have responsibilities under the Act.
They have a duty 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 cooperate with their employer with respect to any action taken by the employer to comply with any requirements imposed by the Act.
Manufacturers and Suppliers obligations
Under the Act, 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.
Similar obligations are placed on the manufacturers and suppliers of substances for use at a workplace.
Public safety
While the Act is focussed on the safety of employees, it has a very broad public safety component. Essentially, any health and safety hazard created as a result of work or work-related activities can be considered under the public safety scope of the Act.
Under the Act an employer must ensure, so far as is reasonably practicable, that persons other than the employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Self-employed persons also have an obligation under the Act to ensure, so far as it reasonably practicable, that persons are not exposed to risks to their health or safety arising from the conduct of the undertaking of the self-employed person.
Furthermore, as indicated above, employees also owe a duty to those persons whose health or safety may be affected by their acts or omissions in the workplace and this duty extends to members of the public.
The key enforcement tools are Improvement Notices 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.
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.
Inspectors appointed by the WorkSafe Victoria have very broad powers to investigate workplace safety and obtain information. It is an offence to obstruct an inspector in the exercise of their powers.
Most offences against the Act are indictable offences that entitle a person to a trial by a judge and jury. However, prosecutions may be heard summarily by the Magistrates' Court.
The maximum penalty for regulation offences is 500 penalty units for corporations and 100 penalty units for individuals. For an indictable offence, the maximum penalty is 9,000 penalty units for corporations and 1,800 penalty units for individuals. In the 2010/2011 financial year, the value of one penalty unit is $119.45.
The court also has a discretion to impose other penalties such as adverse publicity orders and orders to undertake improvement projects.
Officers of bodies corporate may also be convicted if they fail to take reasonable care to ensure that the body corporate meets its statutory duties.
What should employers do?
It is of the utmost importance that employers identify and manage the risk factors associated with workplace safety issues, and that a direct approach is taken to their investigation in an effort to discharge the duties established under the Act.
Employers need to take a preventive approach to workplace safety issues by identifying the risks; assessing the likelihood of those risks causing injury or illness; implementing risk control measures to eliminate the risks or, where that is not reasonably practicable, reducing risk so far as is reasonably practicable; and reviewing/improving the effectiveness of risk control measures over time.
Employers must ensure that they have adequate workplace policies and procedures in place that clearly set out the responsibilities of employees within the workplace and the methods the employer will utilise to address cases of for example workplace bullying.
In particular, employers need to ensure that employees are aware of their duty to take reasonable care for the health and safety of other employees in the workplace and to co-operate with his or employer with respect to any action taken by the employer to comply with any requirements imposed by the Act.
Nevett Ford
Nevett Ford has represented parties in occupational health and safety prosecutions that have gained significant media attention and has a special understanding of the conduct of such prosecutions.
Nevett Ford regularly assists small and large enterprises to understand their obligations/duties under occupation health and safety laws, and provides expert advice about the implementation of appropriate workplace policies and procedures.
Nevett Ford has an Employment Law & Workplace Relations work group headed by Philip Brewin, an accredited LIV Workplace Relations Specialist.
For further advice or assistance please do not hesitate to contact us.