The dawning of the new financial year brought with it the introduction of the Occupational Health and Safety Act 2004 (new Act) in Victoria. With it also came the much publicised transformation of character of Worksafe Victoria, mixing advice with enforcement.
The changes brought about by the new Act continue the trend in safety regulation in Australia—with more detailed requirements and dramatically increased penalties.
The new Act does not change the fundamentals of safety obligations, but does add to the ways in which safety is to be promoted and enforced. Many of the changes bring Victoria into line with other states, while some have it again leading the field.
My experience in recent months in many training workshops and brainstorming sessions with numerous clients has been that there is a surprisingly low level of understanding of what the law and good risk management practice has already required. The changes may prove in practice to be less important in themselves than for instigating a higher level of enquiry and focus on OHS.
Suffice to say, the new Act represents the current approach of increasing the focus on effective safety risk management—or else.
The new Act is more than twice as long as the 1985 Act and in many ways far more complex. Space does not permit an in depth review of the changes, but it is more important to understand the effect of the changes.
The main changes brought about in the new Act are:
- Re-wording and more clearly stating existing duties of care.
- Bringing the potential liability of officers into line with that of employees, by applying the same standard of ‘reasonable care’ to them.
- Increasing penalties approximately four-fold with maximum (indexed) penalties likely to exceed $1 million per offence for a company and $200,000 for an individual within two years. Interestingly, there is less opportunity to jail an individual under the new Act than under the previous Act.
- Imposing more extensive obligations on an employer for consultation, about more things and with not only health and safety representatives but also employees and contractors.
- Broadening the potential numbers and ‘coverage’ of health and safety representatives (HSRs).
- Providing (limited) opportunity for union right of entry to workplaces, without notice, for the investigation of suspected safety breaches—increasing the potential for enforcement.
- Increasing the powers of inspectors and watering down legal rights of duty holders (eg by removing the availability of the privilege against self-incrimination for a company or for documents).
- Providing for increased accountability of inspectors for their conduct, and for review of their decisions.
- In what is perhaps the most significant ‘sleeper’ in the new Act, requiring non-disturbance of a site upon the happening of any incident that is notifiable to Worksafe under the Act, or on a written direction by an inspector. This may significantly impact the operations of a company.
Same Duties, Higher Stakes
While there are some apparent changes to the duties of care, these are more by way of clarification than actual change. For example, the ‘new’ duty of a designer of a workplace to ensure that it is designed to be safe for its intended use, has in the past existed as part of the general duty owed by an employer to ensure that non-employees are not put to a risk from the way they run their business.
While the duties of care may not have changed significantly, the imperatives for compliance are now greater than ever. Not only have the penalties increased significantly, there is also more opportunity for third parties to intervene in the workplace and enforce the obligations.
Guidance, Not Just Enforcement
The changes in the regulatory environment are however not restricted to the ‘big stick’.
There is now:
- a greater emphasis on the role of Worksafe in providing guidance on compliance and risk management, and
- broader obligations for workplace consultation about safety,
that are intended to enhance the information available to duty holders when they are undertaking the risk management process of hazard identification, risk assessment and risk control.
What Should You Do?
As with any form of risk management, the way to get the best from this legislation and avoid the worst is to:
- understand what it means,
- identify what must and can be done, and
- implement protocols and procedures to meet the changed circumstances.
You should start by reviewing the effectiveness of risk management systems, evaluating and improving the safety culture of the organisation, enhancing competencies and understanding at all levels of management, and ensuring appropriate monitoring and documentation. The key element of accountability should be confirmed—in practice not just on paper.
The OHS strategy and action plans for the business (on the assumption you have them) should be revisited and progressed.
Procedures should be refined or developed to ensure that all stakeholders act properly, within power, and in a way that does not compromise safety or the operations of the business. These should deal with:
- consultation with employees and contractors, including issue resolution
- incident notification, investigation and non-disturbance of site
- review of inspectors’ decisions (notices, directions, determinations)
- union entry to the workplace as a permit holder or assisting a HSR.
With the increased focus on stakeholder engagement, should come more effort on effectively managing relationships.
This article was first published in the September edition ofCorporate Risk Magazine.
*Barry Sherriff is the lead OHS partner in the Employee Relations group of Freehills, based in Melbourne and is the author of OHS in Practice — A Guide to Legislation in Victoria (Anstat, Melbourne, 2005). Barry represented industry associations in consulting with the Victorian Government on the drafting of the Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.