Occupational Health and Safety and Other Legislation Amendment Act 2021
Information about changes in the Occupational Health and Safety and Other Legislation Amendment Act 2021 which became law on Wednesday 22 September 2021.
What are the changes?
The Occupational Health and Safety and Other Legislation Amendment Act 2021 (the Act) amends the Occupational Health and Safety Act 2004 (OHS Act), Dangerous Goods Act 1985 (DG Act), Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) and the Equipment (Public Safety) Act 1994 (EPS Act) to:
provide additional rights and protections for labour hire workers under the OHS Act
prohibit businesses from using insurance or indemnity arrangements to avoid liability to pay monetary penalties for offences under certain Acts and Regulations administered by WorkSafe
streamline provisions for electronic delivery of certain notices and reports, and allow infringement notices to be served electronically
give authorised representatives of registered employee associations (ARREOs) and health and safety representatives (HSRs) additional powers to take photos or measurements or make sketches or recordings when they are exercising their functions under the OHS Act
simplify procedures for disposing of or destroying property that has been seized by WorkSafe, where the owner of the property does not want or need the property returned
Changes to labour hire arrangements
The Act extends the definitions of 'employer' and 'employee' in the OHS Act to state that a host employer is taken to be an 'employer' of a labour hire 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, a labour hire worker is treated as an 'employee' of the host employer for the purposes of the OHS Act. This means that if a host employer owes a duty under the OHS Act to an employee, they will now also owe it to a labour hire worker.
These changes ensure that labour hire workers now have the same rights and protections at their host employer’s workplace as employees of the host.
The Act also inserts a new duty into the OHS Act requiring labour hire agencies and host employers to, so far as is reasonably practicable, consult, coordinate and cooperate with each other where they share OHS duties to labour hire workers. In this context:
consultation means that duty holders who share duties towards labour hire workers will exchange information that allows the duty holders to jointly manage health and safety
cooperation means that duty holders should implement health and safety arrangements identified as being necessary during the consultation process. It also means that duty holders will respond to reasonable requests from other duty holders and not obstruct communication with them
coordination means that duty holders work together so that each person can meet their duties without leaving gaps in health and safety
The labour hire amendments came into effect on Tuesday 22 March 2022.
Prohibition of certain insurance and indemnity arrangements
The Act amends the OHS Act, DG Act and EPS Act to state that a term of a contract or other arrangement that purports to insure or indemnify a person for their liability to pay a monetary penalty is void.
The Act also makes it an offence under the OHS Act, DG Act and the EPS Act to:
enter into, offer to enter into or be a party to a contract or other arrangement that purports to insure or indemnify a person for liability for a monetary penalty under the OHS Act, DG Act, EPS Act or regulations made under any of those Acts
receive a benefit under a term of a contract or other arrangement that purports to insure or indemnify a person's liability to pay a monetary penalty under the relevant acts or regulations
pay a benefit under a term of a contract or other arrangement that purports to insure or indemnify a person’s liability to pay a monetary penalty under the relevant Acts or Regulations
A person does not commit an offence against (1) above if the person has a reasonable excuse for entering into, offering to enter into or being a party to the contract or other arrangement.
These new offences do not prohibit insurance or indemnity arrangements that cover legal expenses, such as insurance that covers the cost of court proceedings.
The prohibition of certain insurance and indemnity arrangements ensures that the deterrent effect of penalties under Victorian workplace health and safety laws is not undermined by allowing duty holders to claim on insurance or indemnity arrangements to pay fines after they break the law.
The maximum penalty for these offences is 300 penalty units (approximately $55,500) for an individual and 1500 penalty units (approximately $277,400) for a body corporate.
Any contract terms that purport to provide the prohibited cover became void and unenforceable from the date the Act became law, on Wednesday 22 September 2021.
The offences commence on Thursday 22 September 2022, giving businesses 12 months to adapt to the changes.
Electronic delivery of notices and reports
The Act introduces a range of amendments that aim to streamline the procedure for issuing notices across the OHS Act, DG Act, EPS Act and WIRC Act and ensure the effective and efficient electronic service of infringement notices and entry reports.
The Act amends the OHS Act, DG Act, EPS Act and WIRC Act to enable inspectors to issue entry reports to a person electronically (ie via email), without first obtaining their consent. Similarly, the Act also makes amendments to enable inspectors to issue infringement notices electronically to a person without first obtaining their consent.
Additionally, the Act makes a number of amendments regarding the issuing of notices to a body corporate under the OHS Act, DG Act, EPS Act and WIRC Act, including to specify that an inspector can issue a notice or report to a body corporate by sending it by electronic communication to an employee, agent or officer of the body corporate.
The Act also amends the OHS Act to state that a HSR has effectively consulted with a body corporate before issuing a provisional improvement notice if they have consulted with an employee, officer or agent of that body corporate.
The amendments related to electronic delivery of notices and reports came into effect on Wednesday 22 September 2021.
ARREO and HSR powers to take photos and measurements and make sketches and recordings
The OHS Act has been amended to give HSRs and ARREOs the power to take photographs or measurements or make sketches or recordings for the purpose of exercising their functions under the OHS Act.
HSRs can now take photographs or measurements, or make sketches or recordings (either audio or video) at any part of a workplace at which a member of their designated work group (DWG) works, but not during an interview of a kind mentioned in section 58(1)(d) or (e) of the OHS Act.
ARREOs can now take photographs or measurements, or make sketches or recordings (either audio or video) after they have gained entry to the workplace and to the extent that it is reasonable for the purpose of enquiring into the suspected contravention as set out in the ARREO’s notice of entry.
The amendments to HSR and ARREO powers allow ARREOs and HSRs to record evidence of OHS hazards or suspected contraventions of workplace health and safety law. This evidence can then be used to help raise health and safety concerns with their employer and negotiate a solution, or provided to WorkSafe, which may consider whether further investigation is required.
The OHS Act contains a number of provisions that limit how ARREOs and HSRs can use their powers. These limitations will apply to the new powers to take photographs or measurements, or make sketches and recordings.
The offences at section 91 of the OHS Act have been amended to clarify that the intentional use, disclosure or provision to another person of photographs, measurements, sketches or recordings made under section 89(1) for a purpose not reasonably connected with the exercise of an ARREO's power is not permitted. The maximum penalty for committing any offence under section 91 is 60 penalty units (approximately $11,110).
The ARREO and HSR amendments came into effect on Wednesday 22 September 2021.
Return, disposal and destruction of seized items
The Act amends the OHS Act, WIRC Act and the EPS Act to:
In addition, the DG Act has been amended to specify that WorkSafe does not need to return a copy of a document or part of a document taken by an inspector, and clarifies that in a number of situations where WorkSafe does not need to return items to their owner, WorkSafe may dispose of or destroy those items without giving notice to any person.
specify that WorkSafe does not need to return a copy of a document taken by an inspector to the owner of the document, or return anything (including a document) seized by an inspector if the owner of the thing transfers ownership to WorkSafe
clarify that, in a number of situations where WorkSafe does not need to return items to their owner, WorkSafe may dispose of or destroy those items without giving notice to any person
The amendments related to the return, disposal and destruction of seized items came into effect on Wednesday 22 September 2021.