The Law Handbook 2024

1076 Section 11: Rights, activism and fair treatment at work an OHS Regulation is 500 penalty units (see ‘Note’, below). An employee who is injured as a result of a failure by their employer to comply with an OHS Regulation made under the OHS Act 2004 may recover damages from their employer by bringing an action for breach of statutory duty (see Deal v Father Pius Kodakkathanath [2016] HCA 31). (See Chapter 10.3: Work injuries.) NOTE From 1 July 2023 to 30 June 2024, the value of one penalty unit ( pu ) is $192.31 under Victorian state law. For more information, see ‘A note about penalty units’ at the start of this book. Compliance codes Compliance codes provide practical guidance to those who have duties or obligations under the OHS Act 2004 (e.g. employers, employees and the self-employed). These codes aim to provide easy- to-understand information on how to comply with the law. The compliance codes available include: • communicating occupational health and safety across languages*; • workplace amenities and work environment*; • confined spaces*; • first aid in the workplace*; • prevention of falls in general construction*; • foundries*; • managing asbestos in workplaces; and • removing asbestos in workplaces. * These codes replaced codes of practice approved under the Occupational Health and Safety Act 1985 (Vic). These codes are available on the WorkSafe Victoria website (www.worksafe.vic.gov.au) . Obligations under the OHS Act 2004 Employer obligations Under the OHS Act 2004, employers must (so far as is reasonably practicable) provide and maintain a safe, risk-free working environment for their employees (s 21) and independent contractors (s 21(3)). The OHS Act 2004 (s 20) provides guidance about the application of the ‘reasonably practicable’ qualifier. Under section 20(1), an employer must eliminate a risk to health and safety if it is reasonably practicable to do so. The employer is only permitted to reduce a risk to health and safety if it is not reasonably practicable to eliminate it. The application of the ‘reasonably practicable’ qualifier requires the balancing of risk with the cost of removing or reducing the risk (s 20(2)). Employers must also: • monitor employee health; • keep information and records on the health and safety of employees; • employ or engage qualified people to provide health and safety advice; • monitor workplace conditions; and • inform employees (in appropriate languages) of how, and to whom, a health and safety enquiry or complaint may be made (s 22). Employee obligations Under section 25 of the OHS Act 2004, while ‘at work’ an employee must: • take reasonable care of their own health and safety and of the health and safety of anyone else who may be affected by their acts or omissions at the workplace; and • cooperate with their employer in relation to the employer’s health and safety obligations. Management or control of a workplace Under section 26 of the OHS Act 2004, a person who manages or has control over a workplace must (so far as is reasonably practicable) ensure that the means of entering and leaving the workplace are safe and without risks to health. This duty can extend to an entity or person who holds the legal authority to carry out work at a site (see, for example, Keilor Melton Quarries v The Queen [2020] VSCA 169). Manufacturers’ and suppliers’ obligations Manufacturers and suppliers of plants for use at a workplace must ensure, as far as reasonably practicable, that the plant is designed and constructed in such a way as to be safe and without risks to health when it is used for a purpose for which it was manufactured.