Occupational health and safety

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 occupational health and safety 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 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.
• 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.

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 occupational health and safety 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’ 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).

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 standing 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) [2011] VSC 597). As with other offences, these section 76 offences can only be enforced by WorkSafe Victoria inspectors (see ‘Enforcement of occupational health and safety law’).

In addition to penalising an employer, a court that finds a charge 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 plaintiff 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 standard of proof 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 Act 2009 (Cth). Benefits of such an approach include the ability to obtain speedy, temporary relief pending the hearing of the case (see AFMEPKIU v Visy Packaging Pty Ltd [2011] FCA 1001).

Under Part 8 of the OHS Act 2004, an employee or officer of a trade union registered under the Fair Work Act 2009 (Cth) (‘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 alleged 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 [2017] FCAFC 89).