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’), which are legal directions requiring the employer to comply with a provision of the OHS Act 2004 (s 60) or regulations. Failure to take the appropriate actions after receiving a notice is a criminal A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)..
- 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.
- Part 2.2 of the OHS Regulations 2017 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 A safety notice that bans some activity that could be a risk to workers or others at a workplace. (see ‘Enforcement of OHS law’) 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’ An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate..
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 $180 000 for The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi. down a HSR without pay for one week because he refused to work in a manner that he considered unsafe (Patrick Stevedoring Pty Ltd v Chasser (Victorian Workcover Authority)  VSC 597). As with other offences, these section 76 offences can only be enforced by WorkSafe Victoria inspectors (see ‘Enforcement of OHS law’).
In addition to penalising an employer, a court that finds a (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. under section 76 proved can order that the employee concerned be compensated and/or reinstated to their former position.
As a result of recent amendments to the OHS Act 2004, claims of discrimination against HSRs and others can now be raised in civil proceedings (ss 78A–78E). A A person who begins a civil action against another person. has one year to bring a civil claim. Civil cases are easier to establish than criminal cases as it is only necessary to show that the HSR was dismissed ‘because of’ their occupational health and safety activities. The civil The level of proof required level to prove a case in court. In criminal cases the prosecution must prove its case beyond reasonable doubt. In civil (non-criminal) cases, the plaintiff must prove that their argument is more likely to be true than false. This is known as proof on the balance of probabilities. applies.
It may also be possible for an employee who considers they have been targeted for raising health and safety concerns to pursue an ‘adverse action’ claim under the Fair Work A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2009 (Cth) (‘FW Act’). Benefits of such an approach include the ability to obtain speedy, temporary relief pending the The time and place at which a court or tribunal hears the parties argue their case and makes a decision. of the case (see AFMEPKIU v Visy Packaging Pty Ltd  FCA 1001).
Union access to workplaces
Under Part 8 of the OHS Act 2004, an employee or officer of a trade union registered under the FW Act may be issued with an entry permit by the Magistrates’ Court (s 83). A permit holder is entitled, in defined circumstances, to access certain workplaces for the purpose of investigating particular Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. contraventions of the OHS Act 2004 (s 87). A permit holder who enters a workplace in accordance with the OHS Act 2004 may exercise the powers of investigation set out in section 89. A permit holder seeking to gain entry under the OHS Act 2004 must also comply with Part 3–4 of the FW Act.
Note that the requirement for a union official to hold a FW Act permit extends beyond the circumstances in which a permit under the OHS Act 2004 is needed to gain entry to a workplace (see ABCC v Powell  FCAFC 89).