Employers and employees have safety obligations and must jointly participate in determining safe working conditions and a stop-work option. It is a criminal offence to victimise employees who are active in asserting these rights. Unions can get an entry permit from the court to inspect and investigate workplaces. Improvement or prohibition notices may be issued, and penalties apply. Other issues include bullying and chemicals at work.

Contributor

Stella Gold

Barrister

Legislation related to occupational health and safety

Last updated

1 July 2021

Work Health and Safety Act 2011 (Cth) and Comcare

The Work Health and Safety Act 2011 (Cth) applies throughout Australia to:

  • ‘workers’ and contractors of the Commonwealth; 
  • ‘workers’ and contractors of Commonwealth authorities;
  • ‘workers’ and contractors of entities that are licensed by the Commonwealth to self-insure for workers’ compensation.

Examples of such licensees include Linfox, John Holland and Cleanaway Operations.

The Commonwealth regulator is Comcare. Contact Comcare (see ‘Contacts’ at the end of this chapter) to ascertain if a private company is covered by the Work Health and Safety Act 2011 (Cth) or the Occupational Health and Safety Act 2004 (Vic).

Occupational Health and Safety Act 2004 (Vic) and WorkSafe

In Victoria, the health and safety of most employees (who are not employed by the Commonwealth or otherwise covered by the Work Health and Safety Act 2011 (Cth), see above) are regulated by the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act 2004’).

The OHS Act 2004 applies to all workplaces in Victoria and covers all workers, including:

  • contractors;
  • the self-employed;
  • out-workers; and
  • state government employees.

The OHS Act 2004 (s 2) aims to:

  • secure the health, safety and welfare of employees and other people at work;
  • ensure that the health and safety of members of the public is not placed at risk by the conduct of under­takings by employers and self-employed people;
  • eliminate risks at the source; and
  • involve employees, employers and representative associations in the formulation and implementation of health, safety and welfare standards.

Important ‘principles of health and safety protection’ are included in section 4 of the OHS Act 2004. An important principle is that employees, other people at work, and members of the public are entitled to be given ‘the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances’.

The OHS Act 2004 is administered by WorkSafe Victoria, which operates to ensure that workplace parties comply with legal requirements.

Since 2009, a national process has been underway that has led to new laws covering occupational health and safety throughout Australia, except in Victoria. The Victorian Government has stated that it will not implement these new laws as the additional costs to businesses associated with their introduction are not justified.

Occupational Health and Safety Regulations

The ‘general duties’ imposed in Part 3 of the OHS Act 2004 are supplemented by a broad range of specific duties in the OHS Regulations made under this Act.

On 18 June 2017, a new set of consolidated OHS Regulations came into operation (‘OHS Regulations 2017’). Some of these regulations apply to all workplaces, while other regulations are specific to hazards.

The wide range of hazards and risks addressed in the OHS Regulations 2017 include plant, hazardous substances, asbestos, confined spaces, manual handling, and major hazardous facilities.

Breach of an OHS Regulation is a summary offence. The maximum fine for an offence against 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.)

Penalty units

From 1 July 2021 to 30 June 2022, the value of one penalty unit (pu) is $181.74 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. 

There are many compliance codes available, including:

  • 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;
  • 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).

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