Changes to OHS Act 2004

WorkSafe Inspector Powers – Victoria

Under the Workplace Safety Legislation and Other Matters Amendment Act 2022 (Vic), WorkSafe inspectors have the power to issue a prohibition notice or give directions relating to a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

Prior to this amendment, an inspector could only issue a prohibition notice under section 112 of the Occupational Health and Safety Act 2004 (OHS Act) if they reasonably believe an activity is or may occur that involves or will involve an “immediate risk” to the health or safety of a person. Now an Inspector may issue a prohibition notice if they reasonably believe that an activity is occurring, or may occur, at a workplace that involves or will involve a “serious risk” to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

The incident notification provisions have been amended to include a broader range of matters – an incident that exposes a person to a “serious risk” to the person’s health or safety emanating from an immediate or imminent exposure.

This changes the threshold for notification from immediacy of risk and vicinity to seriousness of risk emanating from immediacy or imminence of exposure. The substituted provision more closely aligns with the dangerous incident provisions under section 37 of the model Work Health and Safety Act.

Labour hire in Victoria – extended “employer” definition applies to host employer

The Occupational Health and Safety and Other Legislation Amendment Act 2021 (Vic) extends the definitions of ‘employer’ and ‘employee’ under the OHS Act to capture labour hire arrangements such that a labour hire worker is an employee of the host employer, unless excluded by the regulations. Host employers owe the same duties towards labour hire workers as they do towards their direct employees under these amendments.

The labour hire provider and host employer both owe safety duties to the labour hire worker.

The Explanatory Memorandum to the Occupational Health and Safety and Other Legislation Amendment Bill 2021 provides guidance, noting it ‘is not intended to require labour hire providers and host employers to duplicate effort. Instead, it is expected that labour hire providers and host employers will work together to ensure that all duties to labour hire workers are met.’

Prohibition on insurance indemnity for pecuniary penalties

The following amendment comes into effect from 22 September 2022.

The Occupational Health and Safety and Other Legislation Amendment Act 2021 (Vic) provides that a term of a contract or other arrangement (e.g., contract of insurance or contract of indemnity) that purports to insure or indemnify a person for the person’s liability to pay a pecuniary penalty under the OHS Act or its regulations is void to the extent that the term provides for that insurance or indemnity.

Contract terms or other arrangements which provide for insurance or indemnity for legal expenses of defending a prosecution or court ordered damages are not void.

Psychological health – Victorian OHS Regulations

The Victorian Government’s proposed Occupational Health and Safety Amendment (Psychological Health) Regulations, providing employers with a framework to identify psychological hazards and control risks associated with psychological hazards, were scheduled to be introduced on 1 July 2022, but have not yet been finalised.

Key aspects of these proposed regulations include:

• identify psychological hazards e.g., bullying, sexual harassment, aggression or violence, exposure to traumatic events or content, job demands, low job control, poor support, lack of role clarity, poor organisational change management, inadequate reward and recognition, remote or isolated work;

• control risks associated with psychological hazards e.g., alter management of work, plant, systems of work, work design, or workplace environment and information, instruction and training;
• review and revise risk control measures;
• requirement to have a written prevention plan for certain psychosocial hazards (aggression or violence, bullying, exposure to traumatic content or events, high job demands or sexual harassment); and
• for employers with 50 or more employees, a duty for biannual reports to WorkSafe on “reportable psychological complaints” (i.e., complaints involving aggression or violence, bullying or sexual harassment). These reports must be kept for five years.

Whilst awaiting developments on the introduction of these regulations, it is important to keep in mind that employers must so far as is reasonably practicable provide and maintain a safe work environment without risks to health (both physical and psychological).

Employers have a duty to identify psychological hazards and implement appropriate control measures to manage the risks associated with psychological hazards and review and revise such measures to ensure that are effective in managing the risks.

Safe Work Australia has recently released the Model code of practice: Managing psychosocial hazards at work which provides guidance on how to manage psychosocial hazards at work.

Information extracted from www.lexology.com

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