OHS REPS @ WORK

The Victorian Government undertook the first major review of our health and safety Act nearly 20 years after its introduction in 1985. The review was done by Chris Maxwell, QC, with wide consultation with and submissions from unions, employer groups, law firms, and many other groups and individuals. The Government gave an undertaking that it would implement as many of the recommendations as possible.

The new Act delivers a number of new provisions which will help to improve occupational health and safety for workers. These include stronger consultation requirements, increased protection of and training for OHS reps, the right of entry to authorised union officials to enter workplaces with suspected breaches of OHS regulation and new duties for designers of workplaces.

The new Act provides for a number of new rights and entitlements for worker, elected OHS reps and union officials. Some of the major changes include:

1. Definition of 'health' specifically includes 'psychological health'
2. New duty on designers of workplaces
3. Increased duty on employers to consult
4. Duty to notify incidents
5. Introduction of deputy reps
6. Increased training for OHS reps and deputies
7. Increase in protection for reps against discrimination and 'harm'
8. Introduction of right of entry to workplaces for 'Authorised Representatives of Employee Organisations'
9. Introduction of review of decisions
10. Alternative sentencing options, increased penalties, and introduction of potential prison sentences

Click on each of the links for a brief explanation of the new provision. For more detailed information on these and other sections of the Act go to this section of the website.

The new Act is now available (in both pdf and Word format) on the Victorian government legislation repository website.

1 - Definition of 'health' now specifically includes 'psychological health'

Because the definition of 'health' now specifically includes 'psychological health', increasingly 'emerging' hazards such as bullying, stress, fatigue and so on, are clearly covered by the Act.  Section 21(1) of the Act, Duties of employer to employees is as follows: 

An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

2 - New duty on designers of workplaces (S 28)

The Occupational Health and Safety Act (1985) placed duties on the designers of plant and equipment, but none on the design of workplaces - an omission that has been picked up here. The provision in the new Act sets out duties of designers of buildings or structures to be used as workplaces. A person who knows, or 'ought to have reasonably known' that the building, or structure, or part is to be used as a workplace is designed to be safe and without risks to health.

Controlling risks at their source is the most effective way to prevent work-related injury, disease and death. Poor design of buildings and structures has contributed to both deaths and injuries in the past - for example, many buildings are designed and erected without consideration for safe cleaning of windows, requiring window cleaners to use highly risky work methods. There are many more examples of poor building design. The duty is intended to ensure that hazards and risks in the design of a workplace are eliminated or reduced at the design stage.

3 - Increased duty on employers to consult (S 35 & 36)

Workplace health and safety improves when workers elect health and safety representatives, and when the employer consults with these reps properly and effectively.

The new Act puts the employer's duty to consult up-front and deals with it separately in Part 4: DUTY OF EMPLOYERS TO CONSULT. Section 35 lists the circumstances in which the employer is required to consult with workers, through their elected OHS reps if they have them. The employer must consult when:

• Identifying, assessing and controlling hazards or risks;
• Making decisions about workplace facilities;
• Making decisions regarding resolving OHS issues, how to consult, monitoring the health of workers, and providing information and training;
• Deciding on the membership of the OHS committee; and
• Proposing changes to the workplace, the plant or substances, the conduct of the work.

Employers will also have to consult not only with direct employees in the above circumstances, but also with independent contractors and their employees.

Section 36 describes how the employer must consult the reps and workers - by sharing information, by giving them a 'reasonable opportunity to express their views' and by taking those views into account.

This Part of the Act does not come into effect until January 2006, but in the meantime, the employer must comply with the current duty to consult.

4 - Duty to notify incidents (S  37 - 39)

Previously, employers had a duty under the Incident Notification Regulations to notify certain incidents to the WorkCover Authority. This new provision transfers this duty to the Act, and also requires employers to preserve the site of the incident and ensure that it is not disturbed.

5 - Introduction of deputy reps (S 57 & 58)

In recognition that there are times when an elected representative may be unable to carry out his or her functions ('because of absence or for any other reason') the Act now provides for the election of deputy health and safety representatives, if agreed in negotiations with the employer. The new Act also provides for agreement that some or all of the Designated Work Groups can have more than one elected representative [S 44(1)(b)]. 

6 - Increased training for OHS reps and deputies (S 67)

Under the new Act the employer must allow any elected reps and deputy reps to attend an initial course of training AND a refresher course at least once each year that they 'hold office'.

Under this provision, the rep has the right to choose which course to attend (as long as it is either approved or conducted by the Authority and is relevant to the work of the DWG or the role of the rep). However, this must be done 'in consultation with the employer'. If the employer either refuses to allow a rep to attend a course of his or her choice or cannot agree to the course of choice, then the rep can call on the VWA to assist. The VWA has clarified that the only cause for allowing an employer to refuse a particular course is if that course does not comply with either of the prerequisites.

It is important that reps be aware that they have the right to attend the course of their choice, and not allow the employer to choose the course they will attend. The provision also makes it a duty for the employer to allow the rep (or deputy) time off work and pay as if the rep were at work, and also to pay for any costs associated with the course (eg cost of the course).

7 - Increase in protection for reps against discrimination and 'harm' (S 76 - 78)

The provisions protecting OHS reps and other workers from discrimination by the employer have been strengthened. While the previous Act attempted to provide protection, the wording of those provisions meant that it was very difficult to bring successful prosecutions against employers. The new provisions are clearer and will make it easier for WorkCover to prosecute employers who seek to harm workers or reps for raising issues of concern or carrying out their functions. The new provisions cover not only an actual dismissal or 'injury' but also the threat of such action.

8 - Introduction of right of entry to workplaces for 'Authorised Representatives of Employee Organisations' (S 79 - 94)

The VTHC and unions put to the OHS Act Review that the new Act should provide for a right of entry for union officials into workplaces for health and safety purposes. Chris Maxwell agreed that some workers were isolated, unaware or fearful of raising concerns about workplace risks and would benefit from the introduction of this right. Unions in some other states have had this right for a long time and the overwhelming evidence is that it is useful and not misused.

Under the new Act, 'authorised representatives of employee organisations' (ARREOs) have the right to enter a workplace if they reasonably suspect there is a contravention of the OHS Act or regulations. ARREOs are entitled to enter workplaces where there is a union member, or the workplace is covered by a certified agreement (EBA) or workers at that workplace are eligible to be members. ARREOs must hold a permit, and must have completed WorkSafe approved training. They do  not have an enforcement role, nor are they be able to issues provisional improvement notices or direct work to cease. However, they have the right to consult with workers, the employer or call in a WorkSafe inspector.

9 - Introduction of review of decisions (S 127 - 129)

Under previous legislation, only employers were able to appeal decisions made by inspectors. The new Act now sets out which decisions made under the Act are reviewable and who is able to ask for a review. Initially the decisions are reviewed internally, and then can be taken to the Victorian Civil and Administration Tribunal. The decisions include determinations of DWGs, decisions on PINs, Improvement and Prohibition notices, and more. Among those eligible to ask for a review are health and safety reps.

10 - Alternative sentencing options, increased penalties, and introduction of potential prison sentences (S 16 - 17, S 32, S 135 - 142)

The new Act gives the courts more options in sentencing - as well as fines, the court can now make enforceable undertakings; 'adverse publicity orders'; order that a person (or company) carry out improvement projects; or request that the convicted person/company give a 'health and safety undertaking'. As in the 1985 Act, there are provisions in the new Act for 'infringement notices' - basically 'on the spot fines'. The VTHC and affiliates will be pursuing the introduction of infringement notices. Maximum fines have been substantially increased.

In addition to fines and the other sentencing alternatives, there is a totally new duty under the Act which is the duty to 'not recklessly endanger persons at workplaces'. A person who recklessly engages in conduct which could put another person in danger of serious injury could receive a prison sentence of up to 5 years, or fined. This applies to serious offences and applies to anyone in a workplace - the company, the director, the employer, workers and other people.

See Also:

WorkSafe Victoria has also produced the following information on the new OHS Act:

• More detailed information on the most important sections of the Act, on this website.
• A 40 page Summary of the Act [pdf] (which replaces the old 'Guide') and
• a comprehensive powerpoint presentation on the Act, which can be downloaded from the Authority's OHS Act webpage.  Other booklets and leaflets can also be accessed from this page.