Victorian OHS Act changes regarding consultation and other issues26 September 2018
On the final sitting day for the current Victorian Government, Parliament passed the Treasury and Finance Legislation Amendment Bill 2018 (Vic) (Amending Bill). It was subsequently enacted on 26 September 2018, bringing about a number of amendments to the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and to the Dangerous Goods Act 1985 (Vic) (Dangerous Goods Act).
The Amending Bill also made a number of amendments to the Transport Accident Act 1986 (Vic), the Equipment (Public Safety) Act 1994 (Vic), the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and the Accident Compensation Act 1985 (Vic) (not covered in this update).
Although the amendments to the OHS Act mainly relate to procedural issues, it is important for employers to be aware of the changes, particularly regarding the safety consultation obligations. Furthermore, any employers with management or control of a workplace with asbestos installed after 31 December 2003 must carefully review the amendments to the Dangerous Goods Act and ensure they comply.
The amendments consolidate the safety consultation provisions into one section to bring non-compliance with all of the provisions into the coverage of the offence created by s 35. Following the changes, a newly consolidated s 35 makes it clear that an employer can be prosecuted for failing to consult with employees and independent contractors (as has always been the case), as well as for a failure to consult in the manner described by the former s 36.
The former s 36—now s 35(3)—provides that employers that are required to consult with employees and independent contractors under s 35(1) must do so by:
- sharing information about the matter on which the employer is required to consult
- giving employees and independent contractors a reasonable opportunity to express their views about the matter, and
- taking those views into account.
The changes do not go so far as to impose a requirement that consultation must lead to agreement, but do reinforce the importance of safety consultation, including the manner in which it is undertaken.
Failure to comply with these provisions is a summary offence, with a maximum penalty of $145,071 (per charge for a body corporate, indexed 1 July each year).
Service of notices
The amendments also make further changes to the provisions regarding provisional improvement notices, notices issued by Inspectors (such as improvement notices) and other notices to make it clear they can be provided or served on persons via email without the recipient consenting to receiving them in that manner. These changes confirm existing changes made to the notice provisions in November 2017.
Requests to prosecute
The amendments make a number of changes to the procedure WorkSafe Victoria (WorkSafe) must follow when a formal request is made for WorkSafe to prosecute a matter under s 131. The amendments create separate processes for requests to prosecute summary offences and indictable offences, and impose further obligations on WorkSafe to report its progress investigating matters to the person who made a request and to the Minister.
The changes follow the recommendations of the Fiskville Inquiry into the CFA Training College at Fiskville, Victoria and the Compliance and Enforcement Review of the OHS Act completed in 2016. The changes are also in line with the significant pressure being placed on safety regulators across the country following a number of high profile failures by safety regulators to prosecute employers and other persons involved in serious safety incidents, including in South Australia and Queensland.
- provide that any request to prosecute must be resolved within three months of receiving the request (with the option to extend the time if WorkSafe’s investigation is ongoing)
- clarify that for a less serious summary offence, WorkSafe does not need to provide written reasons why a prosecution will or will not be brought if WorkSafe is of the view that the reasons will prejudice its investigation into a more serious indictable offence
- impose an obligation on WorkSafe to commence and complete reports regarding requests “in as timely a manner as is reasonably practicable”, and
- impose an obligation on WorkSafe to refer a request to the Director of Public Prosecutions if:
- WorkSafe declines to prosecute, or
- WorkSafe does not prosecute an employer within nine months of the person making the request.
Asbestos removal or management
The manufacture, use, reuse, importation, transport, storage and sale of asbestos have all been prohibited in Australia since 31 December 2003. In passing the Amending Bill, the Government stated that despite these prohibitions, there have been a number of examples of materials containing asbestos being imported, supplied and installed in Victoria since 1 January 2004. In addition, there is a perceived uncertainty about whether, and in what circumstances, a duty holder is compelled to remove asbestos installed after the prohibitions were introduced. The amendments to the Dangerous Goods Act attempt to remove this uncertainty by setting out a “clear framework” for the removal or control of asbestos that has been installed after 31 December 2003.
The Amending Bill amends the Dangerous Goods Act to insert a provision requiring that any asbestos installed after the prohibitions must be removed in accordance with a removal plan approved by WorkSafe or controlled in accordance with a management plan approved by WorkSafe. Critically, the changes require WorkSafe to be satisfied that any management plan will ensure a level of health and safety at least equivalent to that which would be achieved by removing the asbestos.
Failure to comply with these provisions is an indictable offence, with a maximum penalty of $402,975 (per charge for a body corporate, indexed 1 July each year).
Where to from here?
The amendments to the OHS Act serve as a timely reminder to all employers to ensure they are complying with the obligation to consult, including the manner of that consultation. Any failure to do so in the manner outlined in the OHS Act may lead to investigation and prosecution.
The amendments to the Dangerous Goods Act impose important obligations for any employer who may have management or control of a workplace with asbestos present that was installed after the prohibitions commenced on 1 January 2004.