New Era of Workplace Health and Safety for Victoria Herbert Geer

1
New Era of Workplace Health and Safety for
VictoriaHerbert Geer Rundle

• Kathryn Dalton, Partner
• Workplace Relations
• Phone [phone]
• Email kdalton_at_hgr.com.au
• June 2005

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Introduction

• The Occupational Health Safety Act 2004 takes
  effect 1 July 2005
• Maxwell Review
• Substantially the same rights and duties
• Determinations under 1985 Act continue
• Some changes for employers
• Increased penalties for non-compliance

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Major Changes

• Health includes psychological health
• General duties qualified by reasonably
  practicable
• Establish Health and Safety Committee
• Duties to consult employees
• Designated Work Groups between multiple employers
• Health and Safety Representative training
• Role of the Victorian WorkCover Authority

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Major Changes continued

• Right of entry for authorised representatives of
  registered unions
• Powers of inspectors
• Transforming WorkSafe
• Officer liability and the protection of
  volunteers
• Increase in penalties
• New sentencing options
• New offence of Reckless Endangerment

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Health Includes Psychological Health

• Protecting both physical and psychological health
• Hazards and risks to health could include
• Work related stress
• Workplace bullying
• Violence
• Employers should monitor workplace situation

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Reasonably Practicable

• Maxwell recommendations in line with other
  Australian jurisdictions.
• Matters to which regard must be paid when
  determining reasonable practicability
• Likelihood of hazard or risk eventuating
• Degree of harm if hazard or risk eventuated

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Reasonably Practicable continued

• Known or ought to have know
• Availability and suitability of ways to eliminate
  or reduce risk
• Cost of eliminating or reducing the risk

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Employer to establish Health and Safety Committee

• Must be established within three months of a
  request
• Minimum half of members must be employees
• Committee to meet every 3 months or on request
• Functions
• Facilitate cooperation in instigating/developing/c
  arrying out HS measures
• Formulating/reviewing/disseminating OHS standards

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Duty to Consult Employees and Employee
Representatives

• S35 requires employer to consult on OHS issues
• Identifying risks arising from business
  activities
• Controlling risks
• Employee facilities
• Procedures
• Membership of Health and Safety Committee
• Workplace changes

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Duty to Consult Employees and Employee
Representatives continued

• Aim to increase employee participation
• Obligation to share relevant information
• Opportunity for employees to respond
• Employers should
• Create forums for communication
• Processes to implement change

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Health and Safety Representative Training

• Allow HS Reps to attend courses
• Paid time off work to attend
• Courses to be approved by or conducted by the
  Authority
• Refusal is an offence

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Designated Work Groups between Multiple Employers

• Old Act
• HS representatives only elected for employees of
  same employer
• New Act
• Allows multiple employers and employees to
  establish designated workgroups
• Established at employees request
• Particulars to be determined by negotiation
• Only certain matters to be the subject of
  negotiation
• Clarifying overlapping duties
• Respective degrees of control

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Designated Work Groups continued

• Particulars of negotiation to include
• Grouping of convenience
• Accessibility of HS reps
• Number of HS reps
• Term of office
• Representation of independent contractors

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Factors when Negotiating Designated Work Groups

• Number of employees
• Nature of work
• Same or similar types of work
• Areas where work to be performed
• Nature of hazards
• Overtime or shifts
• Other languages

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Right of Entry for Authorised Representatives of
Registered Unions

• New Act allows application to Magistrates Court
  for entry permit
• Application to be made by registered organisation
  (union)
• Must specify the person who is to hold the entry
  permit.
• To hold a permit a person must
• Be an officer or a permanent employee of a
  registered employee organisation (union)
• Have completed an Authority approved training
  course
• Not disqualified by the Magistrates Court

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Right of Entry continued

• Entry linked to suspected contravention
• Employers should allow
• Access to plant or substance
• Observation of work being carried out
• Consultation with employees/employer
• Penalties apply for denying access/obstructing
  investigation
• Authority/employer can apply to revoke entry
  permit

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Powers of Inspectors

• Inspectors may enter any workplace
• During work hours
• Any time if they believe there is an immediate
  risk to health and safety
• Can visit non-unionised sites
• May not enter a place used as a residence except
  with the consent of the occupier
• Inspectors to announce entry
• Inspectors have wide ranging powers including
• Obtain and execute search warrants
• Issue provisional improvement notices
• Order employers to attend OHS courses

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Transforming WorkSafe

• Changes to improve operation of WorkSafe include
• A new appeals process against WorkSafe Inspectors
• Further appeal of internal review to VCAT
• new system enables appeals on wider range of
  issues

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Role of Victorian WorkCover Authority

• Make guidelines regarding application of new Act
• Guidelines not legally binding
• Expected to have practical effect for employers,
  unions and courts
• VWA can accept undertakings relating to
  contraventions.

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Officer Liability and the Protection of Volunteers

• Officer as defined under Corps Act
• To include
• Director/secretary
• Partners
• Senior management
• Financial officers
• Previously required consent or wilful neglect

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Officer Liability and the Protection of
Volunteers continued

• New Act imposes liability for a failure to take
  reasonable care with regard to
• The officers knowledge
• Role
• Breach by Body Corporate attributable
• Any other relevant matter
• An officer may be convicted even where no offence
  by Body Corporate
• Volunteer officers not liable

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Increase in Penalties

• Maximum liability increases from 256,250 to
  920,250 for companies
• From 51,250 to 184,050 for individuals

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New Sentencing Options

• Safety improvement projects
• Adverse publicity orders
• Courts to tailor penalties
• Health and safety undertaking

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New Offence

• Reckless Endangerment
• A person who places another person at risk of a
  serious injury is guilty of an indictable offence
  and liable to
• Natural person 5 years imprisonment or 1,800
  penalty units or both
• Body Corporate 9,000 penalty units

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Regulations, Guidelines and Compliance Codes

• Regulations
• VWA yet to issue regulations under 2004 Act
• Regulations under 1984 Act still apply
• Guidelines
• Authority to make guidelines regarding exercise
  of discretion
• Guidelines not to affect rights and duties
• Compliance Codes
• Provide practical guidance

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What should Employers do?

• Be aware of continuing obligations
• Review occupational health and safety training
  practices.
• Consult VWA regulations, guidelines and
  compliance codes
• Communicate with HS reps when establishing
• Designated Work Groups
• Health and Safety Committees
• Ensure ongoing consultation with employees
• Promote safe work practices

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New Era of Workplace Health and Safety for
VictoriaHerbert Geer Rundle

• Kathryn Dalton, Partner
• Workplace Relations
• Phone [phone]
• Email kdalton_at_hgr.com.au
• June 2005