Introducing occupational health and safety law

1 Feb

Workplaces are active environments where goods and services are produced by and around people. Economic activity simultaneously produces risks to the health and safety of those people working in or around workplaces and/or to people affected by workplaces. The likelihood of these risks eventuating and the magnitude of the consequences for human health and safety is unique to each particular workplace and circumstances set existing within them at a given moment in time. Risk eventuation in workplaces too often results in death and serious injury. Metal, toxic substances or materials (e.g. asbestos), dangerous heights, weights, weather conditions, electrical currents, extreme temperatures, operating machinery alike demonstrate no compassion for human life. Prevention by identifying and eliminating or reducing those risks in the workplace is always the best cure.

The principle object of occupational, health and safety (OH&S) legislation is to secure human health and safety by imposing on all employers, workplace managers/controllers, designers, manufacturers, suppliers, installers and employees broad general duties to eliminate or reduce those risks so far as is reasonably practicable. These duties can overlap, and are non-transferable. These duties are owed to employees and other humans affected by the safety of the workplace. Duty breaches constitute criminal offences. Consistent with preventative aim, and unlike most other criminal legislation, most offences contained in OH&S legislation can be committed whether or not an actual workplace accident and/or injury occurs. Accident occurrence is of evidentiary significance only (potentially demonstrating a system of work was unsafe). In other words, most OH&S criminal offences are ‘risk based’ and not ‘outcome based’.

The Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’) regulates the health and safety of people at work including:
- employees;
- contractors;
- the self-employed;
- out-workers and Victorian Government employees; and
- people otherwise affected by workplace safety in Victoria (other than those employed by the Commonwealth or otherwise covered by the Work Health and Safety Act 2011 (Cth); see below).
‘Workplace’ (OHS Act s 3) is defined broadly to mean a place where employees or self-employed persons work whether in a building or structure or not. ‘Places’ include land, sea and air vehicles. ‘Health’ includes psychological health. Statutory definitions for ‘employee’, ‘employer’ and ‘self-employed person’ are wide. An extended definition of employee (OHS Act s 21(3)) extends employer duties to common law employees, independent contractors and the employees of independent contractors in relation to matters in the control of the employer. Extended employer and employee definitions apply for labour hire arrangements (OHS Act s 5A) such that a person is taken to be an employer of a worker, and a worker is taken to be an employee of that person if a provider of labour hire services supplies the worker to or recruits the worker for, or places the worker with that person.
The OHS Act objects (s 2) include:
- securing and ensuring OH&S;
- eliminating risks at their source; and
- involving employers and employees and their respective organisations in OH&S standards formulation and implementation.
These objects are informed by principles (OHS Act s 4) including OH&S importance requiring the highest protection levels against OH&S risks that is reasonably practicable; that those controlling/managing matters giving rise to risks be responsible for and proactive in reducing if not eliminating those risks as far as is reasonably practicable; and encouraging employers and employees to share information and ideas eliminating or reducing risks.
To achieve these objects, part 3 of the OHS Act contains ‘general duties’ on nominated ‘duty holders’ and any breach of them is an indictable offence. ‘Specific duties’ are provided for in the Occupational Health & Safety Regulations 2017 (Vic) (‘OHS Regs’) and any breach of them is a summary offence.