Common Law
Under Common Law the employer must take reasonable care for health and safety. If the employer does not do so, then he could be held to be negligent, and can be sued under Common Law. In Victoria, workers now once again have the right to sue under Common Law - but only in certain circumstances. Workers cannot sue for any injury or illness due to work - it must be classed as "serious". For further advice regarding this, contact your union who will either help you directly or refer you to one of their solicitors.
Statutory Law
The Occupational Health and Safety Act, 2004
The Occupational Health and Safety Act, 2004 ("the Act) is the main piece of legislation providing Victorian workers with rights in occupational health and safety. The introduction of its predecessor in Victoria in 1985 was the result of many years of hard work on the part of the union movement.
The Act clearly sets out the duties of employers, consultative mechanisms at the workplace (specifically health and safety representatives and committees, and their rights and functions), the resolution of issues, protection for both workers and their representatives, the role and function of inspectors, and more.
Responsibilities (Duties) of employers
The employer must provide a working environment that is safe and without risks to health. This includes:
- machinery, chemicals and systems of work;
- providing adequate facilities;
- providing information and training;
- monitoring the conditions at the workplace, and the health and safety of employees.
The employer has these duties to both his direct employees and the employees of any contractors on site. The relevant sections of the Act are Sections 21 & 22. Other related duties are:
- Employers (and "self employed persons") have to make sure that people other than their employees are not exposed to risks arising out of their business activities. This covers members of the public, and so on. (Section 23 & 24)
- Persons who manage or control workplaces (irrespective of whether they own the premises) must ensure that the workplace and entry and exit from the workplace are safe and without risks to health. (Section 26)
Participation of Workers
In introducing the Act, the government of the time acknowledged that health and safety is a very important issue for workers and that they have a right to have a say in what happens at the workplace. This participation is provided through the election of health and safety representatives and the establishment of joint health and safety committees. These provisions have remained in the revised OHS Act, but the provisions for consultation have been extended and improved.
The health and safety representatives have the right to take issues to management for resolution and have a range of other powers such as calling in the union or an inspector from WorkSafe, carrying out workplace inspections, stopping work in cases of immediate risk, and requesting the establishment of a health and safety committee.
The make up of the health and safety committee must be agreed between the employer and the health and safety representative who requested its establishment. At least half the members of the health and safety committee must be employees - the VTHC recommends that these be the elected reps already at the workplace. The role of the committee is to consider broad workplace issues, policies, and so on.
Protection of workers
The Act spells out the protection workers have against discrimination on the grounds they are legitimately involved in OHS activities.
If a worker is:
- a health and safety representative
- a member of the health and safety committee
- assisting or giving information to an inspector, health and safety rep or health and safety committee
- making a health and safety related complaint to the employer, a fellow employee, inspector, health and safety rep or health and safety committee, then the employer must not:
- dismiss
- damage the employment prospects of
- alter the position ofthe worker because of their involvement in those legitimate OHS activities.
If you believe the employer has taken any action against you or another worker for involvement in OHS contact your union immediately.
For more information on these and other provisions of the Act, go to the OHS Act section of this website.
Regulations and Codes of Practice
The Act empowers the Governor-in-Council to make regulations relating to occupational health and safety (Section 158). Duties under regulations are legal requirements. It is a breach of law not to comply.
The Act empowers the Minister to issue 'Compliance Codes' (Section 149). These are not law, but provide practical guidance to persons who have duties either under the Act or Regulations on how their duties may be complied with. Under the 1985 Act, a number of Codes of Practice were declared. These do not have any formal status under the 2004 Act, but are still available and contribute to the 'state of knowledge'. Until such time as Compliance Codes are declared, these remain useful for workplaces, workers and health and safety representatives.
More information on the current regulations and Codes of practice.
Other legislation:
There are a number of other pieces of legislation which set out duties for employers and other parties, provide protection for employees and have health and safety implications. These include:
- Dangerous Goods Act 1985 (and Regulations)
- Road Transport (Dangerous Goods) Act 1995 (and Regulations)
- Equipment (Public Safety) Act 1994
- Accident Compensation Act 1985
- Accident Compensation (WorkCover Insurance) Act 1993
Further, there are other Acts of parliament that are not specific to workplaces or workers, but provide duties and protection to persons generally, including at the workplace:
- Victorian Equal Opportunity Act 2010
- Racial and Religious Tolerance Act 2001
To access the full text of any piece of Victorian legislation (Acts and regulations), click here
Last amended April 2012