While the duty of care of employers under the 2004 OHS Act are more or less the same as what they were under the 1985 Act (although they have been slightly 're-arranged'), the definition of health has been amended. The new definition is as follows:
"health" includes psychological health
This means that the employer must address workplace hazards such as bullying, stress and fatigue.
There are a number of 'duty holders' under the OHS Act, but for employees (and others) the most important of these is the employer.
- Section 5: Definitions of employer and employee
- Section 20: The concept of ensuring health and safety
- Section 21: Duties of the employer
- Section 22: Duties of employers to monitor health and conditions, etc
- Section 23: Duties of employers to other persons
- Other employer duties
- See Also
Section 5: Definitions
- employee means a person employed under a contract of employment or contract of training;
- employer means a person who employs one or more other persons under contracts of employment or contracts of training;
In changes to the OHS Act implemented on March 22, 2022, the definition of employer and employee has been extended to provide additional protections to labour hire employees. Labour Hire workers will now be 'employees' of the 'host' employer as well as employees of the labour hire firm. Read more: WorkSafe media release
Specifically, Section 5A Extended definition of employer and employee - labour hire
For the purposes of this Act, a person is taken to be an employer of a worker, and the worker is taken to be an employee of the person, 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.
That is, a labour hire worker is treated as an 'employee' of the host employer.
Host employer – (in line with the Labour Hire Authority) people or organisations who run businesses that use labour hire workers to perform work in their business
In considering the duties of various duty holders, we must keep uppermost in our minds what the Act states in in subsequent sections.
Section 20: The concept of ensuring health and safety
- To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person -
- to eliminate risks to health and safety so far as is reasonably practicable; and
- if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
Section 21: Duties of the employer
- To provide and maintain so far as reasonably practicable .... a working environment that is safe and without risk to health.
(without in any way limiting part 1) the employer must:
- provide and maintain (so far as reasonably practicable) safe plant (machinery, tools) and systems of work
- ensure that (so far as reasonably practicable) the use, handling, storage & transport of plant and substances (chemicals) is safe & without risks to health
- ensure that (so far as reasonably practicable) the workplace under his control is safe and without risks to health
- provide adequate facilities (washrooms, toilets, lockers, dining areas, first aid, etc) again, so far as reasonably practicable
- provide as much information, instruction, training and supervision to the workers so that they can work safely, etc NOTE - this is NOT qualified by 'so far as is reasonably practicable'.
Who is an employee??
This part explains that for parts 1 & 2, if a company contracts work out to a contractor, then that contractor, and the employees of that contractor are considered to be employees of the original company.
Example: Mary works for Supercleaners, head office in St Kilda Rd. She works in the evenings at the AJ Department Store in Exhibition St in the city. Supercleaners are her employers and must provide information and training, safe & healthy equipment, protective clothing, chemicals and systems of work, etc.
But as she is working in the AJ Department Store building, AJ has the responsibility to make sure the building is safe (eg floors, lifts, exits, any equipment on site and so on).
Section 22 - Duties of employers to monitor health and conditions, etc
- An employer must, so far as is reasonably practicable:
- monitor the health of the employees; and
- monitor the conditions at the workplace under their management and control (eg heat, cold, dust levels, fumes, and so on) ; and
- provide information to employees (including in appropriate other languages) on health and safety, including the names of who to take an ohs issue/enquiry to
- An employer must, so far as is reasonably practicable:
- keep information and records on the health and safety of employees; and
- employ experts (people who are 'suitably qualified') to provide advice
Section 23: Duties of employers to other persons
Under this section an employer has a legal duty to make sure that the health and safety of OTHER people (not employees) is not put at risk from anything the employer, his business or his workers might do.
This duty also applies to self-employed persons under Section 24.
Other employer duties:
In addition, the 2004 Act sets out a number of other duties for employers, and these have been summarised on separate pages. These are:
- Part 4 - Duties of employers to consult
- Part 5 - Duties relating to notifying WorkSafe of certain incidents - this duty was previously covered under separate regulations.
- Part 7 - Obligations to health and safety reps & obligations with regard to resolution of ohs issues
- Employers, like other parties including workers, can also be charged with the new offence of 'reckless endangerment'.
- WorkSafe Victoria has produced a specific publication for employers Information for employers
- and also How WorkSafe applies the law in relation to identifying and understanding hazards and risks
The 2004 Act can be downloaded (in both pdf and word format) on the Victorian government legislation repository website.
Last amended March 2022