Occupational Health and Safety Act 2004 ... - WorkSafe Victoria

Occupational Health and Safety Act 2004
An Overview
Every worker has a right to a workplace that
is healthy, safe and free from injury.
Safe, healthy workplaces are more productive,
reduce WorkCover claims and lead to lower
workplace injury premiums meaning business
is more competitive.
In 2004 alone, 29 Victorians died in workplace
accidents and 32,000 lodged WorkCover claims.
The cost of this death and injury was estimated
at $8.5 billion, aside from the immeasurable
impact on affected individuals, families and
the wider community.
The new Occupational Health and Safety Act 2004
follows on from a major review of the 1985 Act
carried out for the Government by Chris Maxwell
QC. The new Act clarifies and brings Victoria’s
workplace safety laws up to date to reflect modern
workplaces and arrangements. Most sections
of the new Act come into effect on 1 July 2005.
The reforms will deliver long term benefits for
the community and business by:
• Transforming WorkSafe into a more
constructive, transparent, accountable and
effective regulator able to give more help
to employers and employees, and provide
the guidance and assistance they need
to make their workplaces safe and healthy.
• Modernising the language and layout of the
Act, making it easier to understand.
• Providing greater clarity and certainty about
the obligations of duty holders.
• Fostering increased participation by employers,
employees and their representatives in
workplace health and safety issues.
• Promoting fairness, consistency and
transparency in the enforcement of
the legislation.
• Bringing penalties broadly into line with
other jurisdictions.
WorkSafe will work with employers and employees
to ensure they have access to the information
they need, appropriate guidance and assistance
to support compliance to the Act. WorkSafe will
engage widely with the community to assist
in the development of compliance codes and
other guidance material to support the new Act.
Principles of health and safety
The new Act expressly states a number of key
principles which employers, employees and the
Authority should apply. They include:
• All people should be given the highest level
of protection against risks to their health
and safety that is reasonably practicable
in the circumstances.
• Any person who manages, owns or controls
workplaces is responsible for eliminating or
reducing those risks so far as practicable.
• Employers and self employed persons should
be proactive and take reasonably practicable
measures to ensure health and safety.
• Employers and employees should exchange
information and ideas about risks to health
and safety and the measures that can be taken
to eliminate or reduce those risks.
• Employees are entitled and should be
encouraged to be represented on health
and safety issues.

Occupational Health and Safety Act 2004
An Overview
Continuing to ensure safe workplaces
Most duties and rights contained in the 1985 Act will
continue to have substantially the same effect under
the new Act. These include the duties of employers,
employees, designers and manufacturers of plant
and manufacturers of substances.
Most determinations, appointments, powers and
actions made under the 1985 Act will also continue
to apply, including:
• Improvement notices, prohibition notices and
certain directions.
• Licenses and certificates issued.
• Proceedings for offences committed under the
1985 Act and its regulations.
Most regulations made under the 1985 Act will,
after the commencement of the new Act, continue
for two years or until revoked.
Key changes to health and safety laws
The new Act makes a number of changes that
will help people to create safer and healthier
workplaces.
Clearer accountability for duty holders
The new Act provides duty holders with more
certainty of what they need to do to build and
maintain a safe work environment.
• The Act makes it clear that the duty to ensure
health and safety requires all reasonably
practicable steps to be taken to eliminate risks
or, if they cannot be eliminated, to reduce them.
• The duty to safeguard the health of employees
now expressly covers psychological as well
as physical health.
• Compliance with a relevant compliance code
will conclusively demonstrate that the Act has
been complied with.
• Designers of buildings or structures for use
as or for a workplace will have a duty to ensure
that the buildings or structures are designed
to be safe and without risks to health.
• Owners of a workplace, who have management
or control, have a duty to ensure the workplace
is safe.
• Specific workplace incidents resulting in death
or serious injury or the threat of such incidents
must be reported to the Authority, with the site
being preserved until there is a direction made
by an Inspector. This follows the inclusion
of reporting requirements previously contained
in regulations.
• The meaning of “officer” of a corporation,
association or partnership is clearly defined.
Liability is no longer confined to offences in
which they consented or connived or which
occurred because of their wilful act of neglect.
The officer will be liable under the new Act
if the contravention arose from their failure
to take reasonable care having regard to the
officer’s knowledge, role and other matters.
Volunteers are excluded from this provision.
• The act of any employee, agent or officer acting
within the actual or apparent scope of their
employment or authority will be the act of the
corporation for the purposes of liability under
the Act.

Increasing participation in health and safety
at work
The OHS Act Review found that more could be
done to increase participation by employers
and employees in workplace health and safety
issues. To address this, the new Act makes
a number of changes to the arrangements
for consulting and representing employees.
• Employers must consult with employees
on health and safety at their workplace.
• There are detailed requirements for consultation
between employees, employee representatives
and employers.
• A system for organising designated work
groups (DWGs) between multiple employers
has been established.
• The Act provides for the election of deputy
Health and Safety Representatives (HSRs).
• Employers may be required to set up health
and safety committees, of which at least
half the members must be employees,
to facilitate cooperation and to formulate
rules and procedures.
• The Act provides clearer rights for access to
training of HSRs, including refresher training.
• Approved representatives of registered
employee organisations have been given the
right to enter certain workplaces, if OHS
breaches are reasonably suspected, in order
to inspect, observe and consult. Strict
safeguards ensure this right is exercised
appropriately. The authorised representative
may only enquire into the suspected breach.
A right of entry by authorised representatives
exists for OHS in other States and in the
Commonwealth Workplace Relations Act
1996 for industrial relations.
Clearer and more constructive enforcement
The new Act provides for clearer processes
to govern inspections, notices, investigations
and prosecutions. An improved process has
been established to enable the review and
appeal of decisions made by the Authority.
• Provision for inspectors to provide advice
on how to comply with the Act.
• People must co-operate with inspectors
when questioned. This is subject to the right
of people to refuse questions that may
be self incriminating.
• Inspectors may give binding directions at
a workplace in the face of an immediate
threat to health and safety.
• Inspectors may require certain people
to provide their name and address.
• Inspectors may obtain and execute
search warrants.
• In addition to the ability of inspectors to
issue improvement and prohibition notices,
inspectors may issue non-disturbance notices
to stop the movement of or interference with
plant and machinery or to preserve conditions
in part of a workplace.
• People can ask to have an inspectors decision
reviewed, at no cost, by WorkSafe. Appeals
against the internal review decision can be
taken to the Victorian Civil and Administrative
Tribunal (VCAT) which will be responsible for
external reviews. This new system replaces
the Magistrates’ Court processes and enables
appeals on a wider range of issues.

Bringing penalties into line
The Act brings penalties broadly into line with other
jurisdictions and closely tailors them to offences.
As a result, some existing penalties have been
reduced. The maximum penalty for a breach
of general duties will be increased to $920,250
for corporations and $184,050 for individuals.
• There is a limitation period of two years on
the charging of indictable offences, which
the Department of Public Prosecutions
may override.
• Mandatory minimum penalties have
been removed.
• New sentencing options include:
– ‘Adverse Publicity Orders’ requiring offenders
to publish information about their wrongdoings
in a form directed by the court
– Orders to undertake ‘Improvement Projects’
– ‘Bonds’ of up to two years duration subject
to the offender honouring an undertaking
to do specific things directed by the court.
• The Authority can accept an enforceable
undertaking from people who have contravened
the Act, rather than prosecute them.
Working in partnership –
other administrative changes
A number of administrative changes have been
made to assist the Authority, employers and
employees to work in partnership to improve
health and safety.
• A new Occupational Health and Safety Advisory
Committee has been created to advise the
Authority’s Board on better ways to promote
workplace safety. The Committee involves
representatives from industry, employees,
other parts of government and OHS specialists.
• The Authority is able to issue non-binding
guidelines to provide information and advice
to employers and employees on how to
comply with the new arrangements and
existing arrangements.
Further information is available at
www.worksafe.vic.gov.au or by contacting
the WorkCover Advisory Service on
1800 136 089.
The information presented in this fact sheet is intended for general use only.
It should not be viewed as a definitive guide to the law, and should be read
in conjunction with the Occupational Health and Safety Act 2004.
VWA 689/01/01.05