On 22 June 2021, the Victorian Government introduced the Occupational Health and Safety and Other Legislation Amendment Bill 2021. If passed, the Bill will make a number of significant amendments to the Occupational Health and Safety Act 2004 (OHS Act), some of which align quite closely with aspects of the harmonised WHS legislation in place outside of Victoria.
Extending protections for labour hire workers
The Bill extends the definition of an “employer” and “employee” to ensure that hosts of labour hire workers owe the same duties to those workers as they owe to their own employees.
The Bill adopts the definitions of “worker”, “provider” and “labour hire services” contained in the Victorian Labour Hire Licensing Act 2018.
Employers who host labour hire workers will need to review their practices to ensure that, if they are not already doing so, they exercise the same degree of care for the safety of labour hire workers as they do for their employees.
These changes will come into effect six months after the Bill receives Royal Assent.
New obligation for duty holders to consult, cooperate and coordinate regarding labour hire worker safety
The extended protections for labour hire workers will mean that labour hire providers and host employers will owe duties under the OHS Act in respect of the same workers.
The Explanatory Memorandum notes that expanding the definition of employee to include labour hire workers is not intended to require a duplication of effort by host companies and labour hire providers.
However, to encourage labour hire providers and hosts to work together to ensure that all duties owed to labour hire workers are met, the Bill proposes a new obligation – namely every person who owes a duty under the OHS Act to the same worker must, so far as is reasonably practicable, “consult, cooperate and coordinate” (CCC) activities with each other person who has a duty in relation to the same worker.
If passed, the new CCC duty will come into effect six months after the Bill receives Royal Assent.
Failure to comply with the CCC duty will be a criminal offence punishable by fines of up to 180 penalty units (approximately $32,713) for individuals or 900 penalty units (approximately $163,557) for companies.
No insurance against safety fines
The Bill also proposes to prohibit and make void any terms in a contract or other agreement which seek to insure or indemnify a person against liability to pay a pecuniary penalty under the OHS Act. If passed, this prohibition will come into effect the day after the Bill receives Royal Assent.
On and from the first anniversary of the Bill receiving Royal Assent, it will also be an offence to be party to, or enter into, a contract or other agreement of the kind described above.
Importantly, these prohibitions and offences do not extend to insurance policies which provide cover and indemnity for legal defence costs.
If these provisions are enacted, employers will need to discuss them with their insurance brokers to ensure that policies obtained going forward, including liability insurance for directors and officers, do not result in employers or their officers inadvertently committing an offence.
Broadening of powers of Health & Safety Representatives (HSRs) and union right of entry permit holders
The Bill proposes to grant new powers to HSRs and union right of entry permit holders, namely to:
- take photographs
- take measurements
- make sketches
- make recordings
Currently, these powers are only available to WorkSafe inspectors.
The Bill will make it a criminal offence for a union permit holder to intentionally use, disclose or provide to another person photos, measurements, sketches or recordings obtained while exercising right of entry, for a purpose not reasonably connected with the exercise of powers under the right of entry provisions of the OHS Act.
This proposed offence should capture the online dissemination of photos or video footage taken by union permit holders at a workplace.
If the Bill is passed, employers will need to update their right of entry policies and protocols to ensure that they take into account the above.
Please contact us if you have any questions or need assistance.