The role of WorkSafe
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The Victorian WorkCover Authority (VWA) (trading as WorkSafe Victoria) (WorkSafe) is the statutory authority responsible for administering the OHS Act and its regulations. See www.worksafe.vic.gov.au. WorkSafe is assisted by an OH&S Advisory Committee (OHS Act s 19). WorkSafe’s functions (OHS Act s 7) and powers (OHS Act s 8) include:
disseminating information about the duties and rights of persons;
fostering consultative relationship between workplace stake holders; and
monitoring and enforcing compliance.
Issuing guidelines and compliance codes
WorkSafe make guidelines on how OH&S law apply to a class of persons or to a set of circumstances or how WorkSafe will exercise statutory discretions (OHS Act s 12) but guidelines do not affect statutory rights and duties (OHS Act s 15). For example, on the topical subject of ‘workplace bullying’, WorkSafe have issued guidelines including:
Workplace bullying: A guide for employers;
What to do if workplace bullying happens to you;
Pocket guide to workplace bullying & support; and
Responding to workplace bullying.
WorkSafe can provide advice to duty holders on compliance without creating duties or defences (OHS Act s 18).
The minister may also approve ‘Compliance codes’ purposed for providing practical guidance to duty holders (OHS Act s 149), without giving rise to additional civil or criminal liability (OHS Act s 150). However, as with compliance with the OHS Regulations, compliance with a compliance code has the effect of the duty holder being taken to have complied with the Act or regulations (OHS Act s 152). Examples of compliance codes include:
hazardous substances;
construction;
plant;
communicating occupational health and safety across languages;
workplace facilities and working environment;
confined spaces;
first aid in the workplace;
prevention of falls in general construction;
foundries; and
managing/removing asbestos in workplaces.
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An employer is required to consult with its employees (OHS Act s 35) (and other employers where labour hire arrangements operating (OHS Act s 35A)) about various OH&S matters before proposing changes to the workplace that may affect employees OH&S.
Employers and employees jointly participating in determining and implementing workplace health and safety is facilitated by the OHS Act establishment of ‘designated work groups’ (‘DWGs’) and ‘health and safety committees’ (‘H&S Committees’).
An employee may ask their employer to establish DWGs at one or more workplaces (OHS Act ss 43-53).
Each DWG elects an employees’ representative called the ‘health and safety representative’ (‘H&S Rep’) (OHS Act ss 54-57). The H&S Rep has functions and powers (OHS Act ss 58–60) including workplace inspection immediately in the event of an incident of injury or situation involving immediate risk to OH&S and otherwise at any time with the giving of reasonable notice (OHS Act s 58(1)(a)). H&S Reps may, after consulting the employer, issue Provisional Improvement Notices (see ‘WorkSafe enforcement of the Occupational Health and Safety Act’, below). These notices are legal directions requiring the employer to comply with an OH&S statutory provision (OHS Act s 60). It is an offence to contravene a Provisional Improvement Notice (OHS Act s 62).
Employers (including prospective employers) are prohibited from discriminating against an H&S Rep (i.e. dismissing, injuring employment, threatens to do so) and commit an indictable offence if their dominant reason for that conduct was OH&S activities of the H&S Rep (OHS Act s 76). If such conduct is charged and proven, a sentencing court may order that the employee concerned be compensated and/or reinstated to their former position (OHS Act s 78). Civil actions for discrimination of employees raising OH&S matters including as H&S Reps if (OHS Act ss 78A–78E) only require to prove on the balance of probabilities that the discriminatory conduct occurred because of’ their OH&S activities. Civil actions must be filed with the court (Industrial Division of the Magistrates’ Court) not more than one year after the plaintiff knew or ought to have known of their cause of civil action. Remedial orders include:
damages payments sufficient to appropriately compensate;
reinstatement to same or like position of position no longer available; and
employment where defendant was a prospective employer.
Employers must establish H&S Committees constituted by at least 50 per cent employees (H&S Reps) to facilitate cooperation between employers and employees in the formulation and operation of health and safety measures, procedures and standards (OHS Act s 72). The H&S Committees must attempt to resolve OH&S issues as they arise in the workplace (OHS Act s 73). The OHS Regs (pt 2.2, regs 22-25) sets out ‘Issue resolution procedures’ for parties to report and resolve OH&S issues.
Where an immediate OH&S threat exists, and the H&S Committee ‘Issue resolution process’ has failed, either the employer or the H&S Rep may direct work to stop and ‘suitable alternative work’ may then be assigned to employees during a work stoppage (OHS Act s 74). The attendance of WorkSafe inspectors may be promptly called for where workplace parties cannot resolve an OH&S issue within a reasonable time (OHS Act s 75). Inspectors may issue a Prohibition Notice (see ‘WorkSafe enforcement of the Occupational Health and Safety Act’, below) and if they determine that there was reasonable cause for concern, employees are entitled to receive wages for the period of the work stoppage. Disputes about wages can be referred to the Magistrates’ Court.
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An employee or officer of a trade union registered under the Fair Work Act 2009 (Cth) (‘FW Act’) may be issued with an entry permit by the Magistrates’ Court (FW Act s 83). A permit holder is entitled, in defined circumstances, to access certain workplaces for the purpose of investigating contraventions of the OHS Act (s 87). They may exercise statutory powers of investigation including:
inspection;
consulting with employees; and
taking photographs, measurements, making sketches and recordings (OHS Act s 89).
Limitations are imposed on the exercise of powers (OHS Act s 90) but employee representatives are not prevented from warning employees of what they reasonably believe to be an immediate and significant risk of serious injury.
WorkSafe inspectors may enter a place they reasonably believe to be a workplace at any time where they reasonably believe there exists immediate risk to OH&S or otherwise may enter during working hours (OHS Act s 98). Upon entry, an inspector can inspect and seize anything as evidence or for further examination and take photos (OHS Act s 99). Inspectors can also require production of documents and answers to questions (OHS Act s 100). Inspectors have power to issue Non Disturbance Notices (OHS Act s 110) that stop movement in a workplace (or part thereof) in order to facilitate performance of their statutory functions. It is an indictable offence not to comply with such a notice without excuse (OHS Act s 110(4)). It is an offence to obstruct an inspector in the exercise of their powers (OHS Act s 125).
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Improvement, prohibition, and infringement notices
Improvement notices are written directions issued by WorkSafe inspectors requiring a breach (or likely breach) of OH&S law to be remedied. It sets a time limit within which the improvement must be carried out (OHS Act s 111).
Prohibition notices are written directions issued by WorkSafe inspectors prohibiting an activity that they believe involves or will involve an immediate risk to the health and safety of any person (OHS Act s 112).
Notices can be appealed to the Victorian Civil and Administrative Tribunal (VCAT) (OHS Act s 129). VCAT’s powers are contained in the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Before an application is made to VCAT, WorkSafe must be asked to conduct an ‘internal review’ of the decision to issue the notice (OHS Act s 128).
A person may be served with an infringement notice as an alternative to charging and prosecuting offences that are prescribed either in the OHS Act or OHS Regs (OHS Act s 139).
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WorkSafe may accept written undertakings where there has been an alleged contravention which mandates improvement of OH&S practices delivering a far more precise and positive action than imposition of a court sentence. Upon written undertaking being entered, WorkSafe forever waive the option to formally prosecute the original breach; but if required can also enforce compliance with written undertakings thus achieving continued OH&S education and action (OHS Act ss 16–18). WorkSafe have six months to bring proceedings alleging non-compliance with an undertaking and the Director of Public Prosecutions can do so at any time (OHS Act s 132(1)(c)(d)).
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Anyone may ask WorkSafe to prosecute and WorkSafe must respond in writing to such requests (OHS Act s 131). Criminal proceedings may only be brought by the VWA; an inspector with VWA written authorisation and commenced within two years after an indictable offence comes to their attention; or by the Director of Public Prosecutions in Victoria for indictable offences at any time (OHS Act ss 130, 132). Authority to prosecute is not an offence element. If issue is taken with requisite authority, the prosecution must prove valid commencement of prosecution on the balance of probabilities.
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For workplace manslaughter, there is a maximum penalty of up to 25 years’ imprisonment for an individual or 100000 penalty units (pu) for a body corporate (OHS Act s 39G). (See ‘A note about penalty units’ at the start of this book).
For failing in duty not to recklessly endanger others in the workplace, an individual can be sentenced to five years maximum imprisonment, or fined maximum 1800 pu or 20000 pu for a body corporate (OHS Act s 32).
For indictable offences involving general duties (other than workplace manslaughter), the penalty is a fine maximum 1800 pu for individuals and officers and 20000 pu for bodies corporate.
The summary (regulation) offences the penalty is a fine maximum is 100 pu for individuals and 500 pu for bodies corporate.
There are also lesser fines imposed for breaches of notices and other statutory offences (please refer to the particular legislative provision creating them).
The court can also impose ‘adverse publicity’ orders (OHS Act s 135) and orders to undertake improvement projects (OHS Act s 136).
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The Work Health and Safety Act 2011 (Cth) applies throughout Australia to:
‘workers’ and contractors of the Commonwealth;
‘workers’ and contractors of Commonwealth authorities; and
‘workers’ and contractors of entities that are licensed by the Commonwealth to self-insure for workers’ compensation. Examples of such licensees include Linfox, John Holland and Cleanaway Operations.
The Commonwealth regulator is ‘Comcare’. Contact Comcare (see ‘Contacts’ at the end of this chapter) to ascertain if a private company is covered by the Work Health and Safety Act 2011 (Cth) or the OHS Act.
The role of WorkSafe
Chapter: 11.7: Occupational health and safety
Contributor: Bradley Newton, Barrister
Current as of: 1 September 2024
Law Handbook Page: 976
Next Section: Some workplace issues intersecting with other fields of law
