The Law Handbook 2024

Chapter 11.7: Occupational health and safety 1077 The manufacturer must also carry out, or arrange to carry out, such testing as is necessary to ensure the plant is safe when properly used and must take appropriate action to ensure that there is information available at the workplace to ensure the safe use of the plant at the workplace (ss 29, 30 OHS Act 2004). Similar obligations are placed on themanufacturers and suppliers of substances for use at workplaces. Workplace manslaughter On 1 July 2020, a new offence of workplace manslaughter was introduced into the OHS Act 2004 (pt 5A). A person must not engage in conduct that is negligent, constitutes a breach of the applicable duty to a person, and causes the death of the person to whom the duty is owed (s 39G). The stated intention of the new offence was not to impose additional duties, but to provide a stronger deterrent to duty holders to comply with existing occupational health and safety obligations. The new offence does not apply to volunteers. Implementation procedures Joint participation Employers and employees must both participate in determining and implementing safe and healthy working conditions in the workplace. To facilitate this joint participation, the OHS Act 2004 sets out the following procedures: • ‘Designated work groups’ are established in the workplace. Each of these groups elects a representative – known as the health and safety representative ( HSR ) (pt 7 OHS Act 2004) – who represents the employees’ interests. The HSR may, in certain circumstances, inspect the part of the workplace for which they are the HSR. (For other powers, see ss 58–60 OHS Act 2004.) • HSRs may, after consulting the employer, issue Provisional Improvement Notices (see ‘Enforcement of OHS law’, below). These notices are legal directions requiring the employer to comply with a provision of the OHS Act 2004 (s 60) or OHS Regulations. Failure to take the appropriate actions after receiving a notice is a criminal offence. • Health and safety committees facilitate cooperation between employers and employees in the formulation and operation of health and safety measures, procedures and standards (s 72 OHS Act 2004). • An employer is required to consult with its employees about occupational health and safety matters in a range of circumstances, including before proposing changes to the workplace that ‘may affect the health or safety of employees’ (s 35). Any consultation must be in accordance with section 36 of the OHS Act 2004. • The OHS Regulations 2017 (pt 2.2) outlines an ‘issue resolution process’ that is to be followed by employers and employees to resolve occupational health and safety issues in the workplace. The cease work option Where an immediate threat to health and safety exists, and the issue resolution process has failed, either the employer or the HSR may direct work to stop (s 74 OHS Act 2004). Suitable alternative work may be assigned to employees during a work stoppage. If a resolution cannot be reached, a WorkSafe Victoria inspector may be called in. If the inspector issues a Prohibition Notice (see ‘Enforcement of OHS law’, below) or determines 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. HSRs can also seek court orders in the Magistrates’ Court that direct an employer to allow access to the workplace to an outside person whose assistance the HSR needs to perform a function or duty (s 70). Protection of health and safety representatives Because of the vital role played by HSRs under the OHS Act 2004, section 76 makes it a criminal offence for an employer to treat an employee less favourably ‘for the dominant reason’ that the employee has been an HSR or has been otherwise active in promoting health and safety. These offences attract significant penalties under the OHS Act 2004. For example, Patrick Stevedoring Pty Ltd was convicted and fined $180000 for standing down a HSR without pay for one week