WorkSafe functions and powers

Functions of WorkSafe (section 7)

WorkSafe has a range of functions designed to improve occupational health and safety (OHS), including:

• to monitor and enforce compliance with the OHS Act and the Occupational Health and Safety Regulations 2017 (the regulations)
• to make recommendations to the Minister on regulations and compliance codes
• to tell employers and employees about their duties, obligations and rights
• to promote education and training on OHS
• to encourage and support employers and employees to cooperate on OHS issues
• to cooperate with, and give OHS advice and information to:
  • relevant authorities
  • registered employee organisations (Part 8) and other organisations representing employers or employees
  • other interested people
• to promote public awareness and discussion of all issues affecting OHS
• to develop and implement programs that encourage employers to eliminate or reduce OHS risks
• to engage in, promote and co-ordinate the sharing of information to achieve the objectives of the OHS Act
• to initiate and encourage research to identify strategies to improve OHS
• to collect and publish statistics on OHS.

Power to use information (section 8AA)

WorkSafe has the power to use information collected under the OHS Act and regulations to perform its functions and exercise its powers under any Act. The use of information must be reasonably necessary to perform a function or exercise a power WorkSafe has under an Act. It must also be directly related to the function or power. This section does not affect the operation of the:

• Health Records Act 2001
• Privacy and Data protection Act 2014
• Victorian Data Sharing Act 2017.

Power to obtain information and restrictions on disclosure (sections 9–11)

WorkSafe has the power to require a person to give them information or documents that are in that person’s custody or control. This power can only be used for deciding whether the OHS Act or Regulations have been complied with or to investigate a suspected breach.

A person must give WorkSafe the information or documents it requires, unless the person has a reasonable excuse. A natural person is not required to answer questions if it could incriminate them.

It is an offence not to comply with this section and penalties apply.

WorkSafe, or people it has authorised to act on its behalf, can only make a record, disclose or use information to the extent that they need to, to perform their official duties. This does not stop them from producing documents or disclosing information:

• in court or tribunal proceedings
• to relevant government authorities, departments or parliamentary committees, or as otherwise required or allowed by an Act of Parliament.

Guidelines and advice (sections 12–15 & 18)

To help duty holders to comply with the OHS Act, WorkSafe may make guidelines to explain how it applies the OHS Act and how it uses discretion on provisions of the OHS Act.

WorkSafe, including an inspector or other authorised person, may give advice on how to comply with duties under the OHS Act or regulations.

WorkSafe’s guidelines and advice do not create:

• any extra right, duty or requirement on a person
• any extra defence for a person
• any liability or claim against WorkSafe.

Accepting and enforcing undertakings (sections 16–17)

If a person has, or is alleged to have, contravened the OHS Act, WorkSafe may choose to accept written undertakings from the person instead of going ahead with a prosecution.

An undertaking is a commitment to make certain health and safety improvements within a specified timeframe. While the undertaking is in place, proceedings cannot start for an offence related to the undertaking. The person can withdraw or vary the undertaking at any time if WorkSafe agrees in writing.

However, if WorkSafe believes the undertaking has not been complied with, it can apply to the Magistrates’ Court to have the undertaking enforced. It is an offence not to comply with an enforceable undertaking.

Occupational Health and Safety Advisory Committee (section 19)

The OHS Act creates an OHS Advisory Committee (OHSAC). The OHSAC advises WorkSafe’s Board on:

• promoting healthy and safe work environments
• the operation and administration of the OHS Act.

Its membership includes:

• WorkSafe
• employers
• employees
• the Victorian Government
• OHS specialists.

Workplace Incidents Consultative Committee (section 126A)

The OHS Act creates a Workplace Incidents Consultative Committee (WICC). The WICC gives advice and recommendations to the Minister about:

• the needs of people who are affected, directly or indirectly, by workplace incidents that involve death, serious injury or serious illness
• the development, review and improvement of policies, practices, strategies and systems regarding those incidents and OHS more generally.