The Victorian Government has introduced the Occupational Health and Safety and Other Legislation Amendment Bill 2021 (Bill). The Bill captures labour hire arrangements which means employers will owe the same duties to labour hire workers as they do towards their employees, makes it an offence for a person to enter into an insurance arrangement which has the effect of indemnifying a person from paying penalties[1] and HSRs and authorised representatives will be permitted to take photographs, measurements or make sketches or recordings at the workplace.
Protection of labour hire workers
The Bill extends the definition of “employer” and “employee” under the Occupational Health and Safety Act 2004 (OHS Act) to ensure labour hire workers performing work for a host employer are taken to be the employee of their host. This means, labour hire workers are afforded the same health and safety protections as the host’s other employees at their workplace.
The Bill also creates a new duty requiring labour hire providers and host employers to work together by engaging in horizontal consultation (that is, by consulting and co-operating and co-ordinating activities) to ensure the protection of the health and safety of labour hire workers. A failure to comply with the horizontal consultation duty will be an indictable offence.
It will be an offence to enter into an insurance contract or arrangement
The Bill will prohibit any contractual term which purports to insure or indemnify a person against paying monetary penalties under the OHS Act, Dangerous Goods Act 1985 and Equipment (Public Safety) Act 1994. Under the proposed Bill, it will be an offence for a person to enter into, offer to enter into or hold such a contract or derive a benefit under such a contract, without reasonable excuse.
The Bill prevents insurance companies from stepping in and shielding persons from the burden of monetary penalties arising from health and safety contraventions. The purpose of these offences is to ensure monetary penalties retain their deterrent value to ensure businesses and individuals comply with their duties under the health and safety laws.
NSW has already enacted similar offences with penalties of up to $125,000, and WA is to introduce penalties for insurability later this year. It is no surprise that the Victorian Government is following the same course.
However, the new offences are not intended to void terms in contracts or other arrangements which cover legal expenses for the cost of court proceedings for a business defending itself against a workplace safety prosecution or for the cost of court ordered damages.
Increased powers for Health and Safety Representatives (HSRs) and Authorised Representatives of Registered Employee Organisations (authorised representatives)
Under the proposed Bill, HSRs and authorised representatives will have increased powers allowing them to take photographs or measurements or make sketches and recordings. Authorised representatives are prevented from intentionally using or disclosing information they acquire in a way not connected with the exercise of their powers under the OHS Act.
HSRs will be permitted to consult with an employee, agent or officer of the body corporate about a possible contravention under the OHS Act. This is broader than the current duty of HSRs to consult with the person about remedying the contravention or likely contravention. In our view, “an employee” cannot be any employee of the body corporate - it must be an employee who has knowledge of the activity and the risks associated with that activity in order for consultation to be effected.
The increased powers by HSRs and authorised representatives are not unfettered. The exercise of their powers will still be subject to the preconditions set out under the OHS Act. Both HSRs and authorised representatives must satisfy the reasonable belief qualifier prior to issuing a provisional improvement notices (by HSRs) or entering a workplace for a suspected contravention (authorised representatives).
Deterring work safe failings and unsafe practices
The Work Health and Safety Amendment Bill 2021 (Bill) will repeal the industrial manslaughter provisions of the Australian Capital Territory’s Crimes Act 1900. The Bill has introduced an increase in the maximum penalty for industrial manslaughter from $1.62 million to $16.5 million for a body corporate. This is in line with the current penalties in Victoria.
What do these potential health and safety amendments mean for employers?
It is now a good opportunity for businesses to ensure your safety management systems and processes are sufficiently addressing the risks associated with the operations of your business. Regardless of whether the proposed Bill will be assented or not, businesses should, from a practical compliance and as a matter of good practice:
- Review your current policy on consultation. While in Victoria there is no duty for employers to horizontally consult with other duty holders, this type of arrangement makes good business practice;
- Review your current issue resolution procedure to ensure that it is clear how consultation will be effected; and
- Ensure that prior to allowing authorised representatives to enter your workplaces that you carefully review the notice and ensure that it clearly states the basis for authorised representatives forming a reasonable belief about a suspected contravention.
[1] Under the Occupational Health and Safety Act 2004, Dangerous Goods Act 1985 and Equipment (Public Safety) Act 1994
