Varying the Occupational Health and Safety Act 2004 (Vic) (the Act) and other legislation, the amendments introduce:
- increased powers for Health and Safety Representatives (HSRs) and Authorised Representatives of Registered Employee Organisations (Authorised Representatives);
- extended definitions of 'Employer' and 'Employee' to ensure Labour Hire Workers are also considered employees of the host under the Act and have the benefit of increased rights and safety conditions; and
- a ban of contractual arrangements which include provisions indemnifying or insuring a person against the payment of monetary penalties for work health and safety breaches.
Powers of HSRs and Authorised Representatives
Under the new laws, HSRs and Authorised Representatives are afforded increased powers to take photographs and measurements or make sketches or recordings upon exercising a right of entry permit in accordance with the Act. At present, only Inspectors of WorkSafe hold this authority, and it is anticipated that the increased powers will assist and support Authorised Representatives in fulfilling their roles under the Act.
This authority, however, is restricted to the extent that it must be for a purpose reasonably connected with the exercise of the Authorised Representatives right of entry powers under the Act. The intentional use, disclosure or dissemination of such information obtained during right of entry, for an otherwise purpose, will be considered a criminal offence.
With the aim of improving efficiency and enforcement, the Bill also enables WorkSafe Investigators to issue notices and reports electronically.
Definition of 'Employer' and 'Employee'
Usually, in tripartite labour hire arrangements, the labour hire worker is the employee of the labour hire provider. Host employers are not required to discharge safety duties to the degree owed to their own employees. The Bill addresses this comparative disadvantage by broadening the existing definitions of Employee and Employer under the Act, to include labour hire workers as employees of host employers. As a result, host employers will owe the same duties towards labour hire workers as they do towards employees at their workplace.
The Bill imposes a shared responsibility on host employers and labour hire providers to consult, cooperate and coordinate activities with each other in relation to guaranteeing the safety and protection of labour hire workers. A breach by either the host employer or labour hire provider of this collaboration obligation is an offence under the Act, punishable by fines of up to $32,713 for individuals and $163,557 for employers.
Insurance and Indemnities
These laws will prohibit any person being party to, entering into, or offering to enter into, contracts or other arrangements which purport to insure or indemnify a person against paying monetary penalties imposed under the Act. Contraventions of this offence will carry maximum penalties of up to $54,522 (for individuals) and $272,610 (for body corporates). However, those who can provide reasonable justifications for purporting to include terms of this type, may be exempt from liability. Further guidance is yet to be provided regarding the scope of this, but this offence will commence from September 2022.
Additionally, any terms in existing contracts which provide the prohibited cover, will be immediately rendered void from the date of commencement.
The Victorian Government's purpose for this legislative change is to:
- prevent employers and officers from using insurance or indemnity clauses as a shield to evade the payment of significant penalties arising from breaches under the Act;
- ensure pecuniary penalties under the Act and its Regulations maintain their deterrent value; and
- encourage compliance with duties under the Act.
It is important to note, however, that the provisions are not intended to ban the inclusion of terms in contracts or other arrangements which insure or indemnify a person against the legal costs associated with defending a prosecution or court ordered damages.
With the expectation of improving workplace safety, accountability and a more efficient enforcement process, by addressing gaps in the current legislation, the Bill passed both houses of Parliament in its draft form and received Royal Assent on 21 September 2021.
As such, it will be prudent for employers to:
- review internal right of entry protocols and policies, so that worksite management have clear instructions in relation to the entry rights and powers of Authorised Representatives;
- review existing contractual arrangements and insurance policies to determine whether in their form, they are likely to give rise to an offence, and require amending; and
- ensure host employers are aware of and apply the same work health and safety duties to labour hire workers as they do for their direct employees.
If you require further information or have any queries in relation to this legal update, please contact Matthew Smith.
We would like to acknowledge the contribution of Ashleigh O'Connor (Solicitor) to this article.