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OHS: are your clients safe?

Feature Articles

Cite as: (2005) 79(11) LIJ, p. 38

The Occupational Health and Safety Act 2004 introduces more onerous obligations for OHS, and practitioners should urgently advise their clients to review current practices and procedures to ensure strict compliance.

By Amie Saunders

The much-anticipated Occupational Health and Safety Act 2004 (the Act) has now commenced in Victoria. This means all duty holders should give urgent consideration to their systems and procedures to ensure compliance with their new obligations and responsibilities. Significant resources may be required to undertake such a review and also to train staff in relation to the Act, but substantially increased penalties for health and safety breaches will surely encourage clients to do so.

This article highlights the major changes to the Act and provides guidance to lawyers who are asked to give advice about compliance with the new provisions.

“Reasonably practicable” test
The Act modifies the general standard to be applied to ensure occupational health and safety (OHS). It changes the test from “as far as is practicable” (in the 1985 Act) to “as far as is reasonably practicable”. A duty holder under the Act is now expected to avoid risks to health and safety by implementing “reasonably practicable” measures, which are determined against what a “reasonable person” would have done in the same circumstances.

Employers who complied with the previous standard should also meet the requirements of the new standard. If this is not the case, clients should be advised to urgently conduct a full risk-assessment of their systems and procedures or to engage an independent expert to conduct one on their behalf.

Psychological health
The definition of “health” in the Act specifically includes both physical and psychological health. The express inclusion of psychological health indicates that an even greater focus will now be placed on psycho-social hazards in the workplace such as discrimination, bullying, fatigue, violence and stress. This is in line with many recent decisions, particularly in the area of workplace bullying, which have recognised the seriousness of these workplace hazards. Clients should be urged to implement systems to train employees about workplace behaviour and formulate procedures to deal with complaints of this nature.

Broader duties

Duty to consult
The Act imposes a general duty on employers to consult with employees. This duty does not come into effect until 1 January 2006 (or when the Victorian WorkCover Authority (WorkSafe) guidelines are released) but it would be advisable for employers to prepare a written consultation procedure prior to this date.

To discharge their duty to consult, employers must formally discuss health and safety issues with employees.

This includes:

  • identifying hazards and assessing and controlling risks in the workplace;
  • deciding on measures to control these risks;
  • assessing the adequacy of employee facilities;
  • reviewing and instigating procedures to resolve issues, monitoring health and providing information to employees on health and safety;
  • reviewing the activities and membership of the OHS committee; and
  • initiating changes that may improve workplace health and safety.

The duty to consult extends to contractors in relation to matters over which the employer has control. Employers should therefore consider their relationship with contractors to clarify the extent of their obligations.

Managers and controllers
Under the Act, managers or controllers of a workplace must ensure the workplace is safe and without risk to health or safety. This includes ensuring that the entrance to and exit from a workplace is clear of hazards. The duty may apply to an employer, a building or site owner, a property manager or a lessee of a building or site which is used as a workplace.

Since the decision in R v ACR Roofing Pty Ltd,[1] the definition of “control” has been significantly expanded in the context of independent contractors and, in certain circumstances, will extend to situations of sub-contractors and sub-sub-contractors.

Lawyers should caution clients who fall within any of these categories to take immediate steps to assess the safety of the workplace or ensure someone is assessing any risks associated with a site, and any identified risks are acted on.

Reckless endangerment
The Act also creates a new offence of “reckless endangerment” of persons at workplaces, making it an offence for a person to recklessly endanger another person or place them at risk of serious injury in the workplace. This duty applies to companies, directors, employers and employees as well as any other individual in the workplace. Lawyers should ensure their clients fully appreciate the serious criminal sanctions they may be liable for if they breach this duty, including a financial penalty or imprisonment for up to five years.

Widening of powers

Powers of inspection
An inspector authorised by WorkSafe has the power to enter a workplace at any time during working hours. Further, an inspector may enter any place at any time if they reasonably believe that there is an immediate risk to the health or safety of workers or the general public.

Employers should be informed about the wide powers of entry of inspectors, including their powers to:

  • make inquiries;
  • inspect and examine the workplace and anything in the workplace;
  • require production of documents;
  • copy documents;
  • take samples, photographs, measurements;
  • make sketches or recordings;
  • seize anything that may provide evidence of an offence;
  • issue search warrants;
  • require names and addresses from people;
  • give directions; and
  • take affidavits.

Employers who restrict or interfere with an inspector’s activities may find themselves liable for the offence of obstructing or hindering an inspector and may be subject to a financial penalty.

Power to issue notices
While inspectors still have the power to issue improvement notices and prohibition notices, they now also have the power to issue non-disturbance notices.

A non-disturbance notice requires the occupier of the workplace to stop using, moving, disturbing or interfering with a specified plant, substance or other thing, or the area in which these things are located. A non-disturbance notice remains in force for seven days, but subsequent notices may be issued in relation to the same issue.

Jurisdiction of VCAT
From 1 July 2005, many decisions made by WorkSafe can be subjected to external review by the Victorian Civil and Administrative Tribunal (VCAT). All applications for external review will be heard by VCAT’s Occupational and Business Regulation List. This replaces the old avenue of appeal of certain decisions to the Industrial Division of the Magistrates’ Court.

Before making an application to VCAT for external review of a decision, the decision must have been subject to internal review by WorkSafe. However, in some instances – such as granting injunctions or stay applications – VCAT may exercise its original jurisdiction.

The types of decisions which may be reviewed by VCAT include:

  • an appointment by an inspector of a person to conduct the election of a health and safety representative;
  • a decision to affirm or cancel a provisional improvement notice;
  • a determination that there was reasonable cause for employees to be concerned for their health and safety;
  • the forfeiture of seized items;
  • the issue of an improvement notice, non-disturbance notice of prohibition notice;
  • the variation or cancellation of an improvement notice, non-disturbance notice or prohibition notice.

An application which relates to a decision by WorkSafe to forfeit an item (such as a document) must be made within 28 days of the decision coming to the applicant’s notice. All other applications must be made within 14 days.

Guidance and advice
Under the Act, an inspector may be asked to provide advice as to how the employer can comply with a notice and prevent further breaches of the Act. Clients should be encouraged to exercise this right, as the advice may later become relevant for determining whether or not the employer has done what is “reasonably practicable” in the circumstances.

To further assist employers in understanding and complying with their obligations under the Act, WorkSafe has the power to issue guidance material on the Act’s operation and enforcement. WorkSafe’s website at http://www.workcover.vic.gov.au is a useful source of information and provides guidance material which may be relevant to their specific industry.

Union right of entry
The provision of most concern to employers is the one providing for union right of entry. The Act allows for the appointment of Authorised Representatives (ARs) from a union, who may be issued with an “entry permit” to enter a workplace if they reasonably suspect a contravention of the Act.

Lawyers should ensure their clients clearly understand the extent of an AR’s powers of entry.

This will empower employers to prevent ARs from using their powers unlawfully and also prevent the employer from being held liable for obstructing an AR in the proper exercise of their duties. Similarly, employers should be encouraged to train any other employees who may deal with ARs about their specific powers of entry if an AR turns up at their workplace.

Under the Act, an AR can only enter a workplace if:

  • he/she reasonably suspects that a contravention of the Act or regulations has occurred or is occurring;
  • the suspected contravention relates to or affects work being carried out by:
    • a member of the union
    • a person whose employment is subject to a certified agreement that binds the union, or
    • a person eligible to be a member of the union, even if they are not a member; and
  • he or she has obtained an “entry permit” from the Magistrates’ Court.

On entry, an AR must immediately produce the entry permit for inspection and must also produce a notice setting out the alleged contravention of the Act. The notice must be in a specific form approved by WorkSafe.

Having lawfully entered a workplace, an AR can only make inquiries about the suspected contravention listed in the entry permit. An AR is not entitled to cause work to stop and cannot seize documents or other items, take photographs, copy documents or require people to answer questions or produce documents. An AR is also not permitted to exercise any powers in residential areas or any other part of a workplace to which access is limited under the Act (i.e. security or quarantine).

If an issue arises with an AR about the AR’s exercise of powers, either the employer or the AR may request WorkSafe to send out an Inspector to resolve the issue. However, in addition to resolving issues between an employer and an AR, an Inspector may investigate any other health and safety issue which comes to their attention while in the workplace.

In certain circumstances, an employer may also apply to have the AR’s permit revoked. If an AR is found to have abused their power and an employer or other individual suffers significant loss or damage as a result, the employer or individual may also recover damages from the AR’s union.

Senior officer liability
Under the Act, if a company is found in breach of the Act and the failure can be attributed to an officer not taking reasonable care, the officer may be personally liable for an offence.

The term “officer” includes any person who makes or participates in the making of decisions that affect the whole or a substantial part of the company’s business and a person who has the capacity to significantly affect the company’s financial standing.

In light of the seriousness of this offence, officers, or employees who could come under the definition, should be trained about their specific obligations and also urged to assume a greater involvement in health and safety issues in the workplace.

Safety should also be made a standard board agenda item. This will ensure an increased awareness of any potential risks and hazards and the opportunity to provide adequate training to those who they have a responsibility to protect.

Increased penalties
The Act provides for a substantial increase in penalties which are more in line with the penalties now in force in NSW and the ACT. The penalties are now $922,500 for a body corporate (as compared with $256,250) and $184,500 for an individual (as compared with $51,250).

There is a jurisdictional limit of $100,000 in the Magistrates’ Court, which may affect an employer’s decision in relation to which court a matter should be heard in.

However, WorkSafe’s general policy is to bring all matters involving a fatality in the County Court.

The Act does not, however, impose additional fines for subsequent breaches, as seen in some other jurisdictions. Further, two or more breaches of one provision of the Act which arise out of the same facts can be charged as a single offence. This means the offence will attract just one penalty rather than multiple penalties.

Wider sentencing options
In addition to increased penalties, the Act also provides for a broader range of alternative sentencing options, including:

  • adverse publicity orders (which require offenders to publish information about their wrongdoing as directed by the court);
  • orders to undertake improvement projects; and
  • health and safety undertakings.

These options give the court greater flexibility to tailor penalties to individual offences and circumstances.

Enforceable undertakings
As an alternative to prosecution, WorkSafe may accept a “written undertaking” from a person in relation to a contravention or alleged contravention of the Act. In such circumstances, neither WorkSafe nor an inspector may bring any further proceedings in relation to the contravention to which the undertaking relates.

Conclusion
The Act imposes onerous obligations on employers and other individuals in relation to workplace health and safety. At the same time, it strengthens the rights and powers of WorkCover and unions to monitor and investigate alleged breaches of the Act.

The government’s view is that employers who complied with the 1985 Act will continue to comply with most of the new provisions in the Act. However, given the substantial increases in penalties and broader obligations, all duty holders should be advised to carefully and immediately review their current practices and procedures to ensure strict compliance with the Act.

Employers must also understand the obligations and powers of others to help them clarify their own duties and empower them to enforce their own legal rights under the new health and safety regime.


AMIE SAUNDERS is a lawyer at Lander & Rogers Lawyers. She is a member of the Young Lawyers’ and Workplace Relations Sections of the LIV and is also a member of Victorian Women Lawyers.


[1] [2004] VSCA 215.

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