In this September update on workplace safety in Victoria, we look at recent legislative changes impacting employers and employees. For the next article in this series, see also: Workplace safety in Victoria: Recent case law.
On-the-spot fines introduced
Occupational Health and Safety Amendment (Infringements and Miscellaneous Matters) Regulations 2021
The Victorian Government recently introduced an amendment to the Occupational Health and Safety Regulations 2017 (OHS Regulations) prescribing 54 offences under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and Regulations in relation to which WorkSafe Inspectors will be able to issue on-the-spot fines (Infringement Notices).
The introduction of these Infringement Notices, a long dormant power under the OHS Act, is being promoted by WorkSafe as an additional enforcement tool.
Infringement Notices can be issued to duty holders, including employers, self-employed persons and employees and can be issued to bodies corporate and/or natural persons.
From 31 July 2021, if a WorkSafe Inspector identifies a contravention of one of the 54 offences they will be able to issue an Infringement Notice to the person or entity believed to have committed the offence.
It should be noted that Infringement Notices cannot be issued for indictable offences (i.e. section 21 of the OHS Act).
As these are "infringement offences" within the meaning of the Infringements Act 2006 (Vic), it means that:
- Inspectors can issue an official warning instead of an Infringement Notice
- Infringement Notices can be withdrawn unconditionally by WorkSafe
- the person who has been issued the Infringement Notice can request internal review of the notice by WorkSafe on the basis that:
- the decision to issue the Infringement Notice was contrary to law
- the decision to issue the Infringement Notice involved a mistake of identity (i.e. the Infringement Notice was issued to the wrong person); or
- special circumstances apply (i.e. the person receiving the Infringement Notice has an intellectual disability, etc)
- the person receiving the Infringement Notice can elect to have the matter heard in the Magistrates' Court
- failure to pay the Infringement Notice can result in enforcement proceedings being commenced by Fines Victoria
A full list of the 54 offences is available here.
Insuring against OHS Act financial penalties to be outlawed; confirmation regarding status of labour hire employees as employees of the host
Occupational Health and Safety and Other Legislation Amendment Bill 2021
Victoria will soon join other states and territories in outlawing insurance policies that indemnify duty holders against pecuniary penalties for contraventions of the OHS Act and the Dangerous Goods Act 1985 (Vic) (Dangerous Goods Act).
If the legislation is passed, the sections relating to insurance come into effect 12 months from the date of Royal Assent.
The amendments are proposed to ensure that monetary penalties imposed for contraventions of the OHS Act, Dangerous Goods Act and their associated Regulations retain their deterrent value to, and concurrently encourage compliance by, duty holders.
The amendments to the OHS Act will void contract terms purporting to indemnify or insure a person against a financial penalty.
Further, it will be an offence to offer, enter into, receive a benefit, or provide a benefit that has the effect of indemnifying a person's liability for a pecuniary penalty. Once operative, the offences will be indictable and carry a current maximum penalty of $272,610 where the offender is a body corporate or $54,522 where the offender is a natural person.
The new sections will not void terms in contracts that insure or indemnify a person for other legal costs, such as the cost of defending an OHS prosecution or court-ordered damages.
The Bill also proposes changes that unambiguously confirm that labour hire employees are considered to be the employees of their host employers through amendments to the definitions of "employee" and "employers" in the OHS Act.
In accordance with the extended definitions, a person "is taken to be an employer of a worker if a provider of labour hire services supplies the worker to, recruits the worker for or places the worker with the person to perform work for the person. Under the extended definition, the worker is then an employee of the person."1
If passed, the amended definitions will come into effect six months from the date of Royal Assent.
The Bill recently passed the Legislative Assembly.
Read next: Workplace safety in Victoria: Recent case law.
1Occupational Health and Safety and Other Legislation Amendment Bill 2021, Explanatory Memorandum, p.2.
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