By Robby Magyar
Recent reforms have been made to workplace safety, compensation and rehabilitation laws in Victoria, which increase employer obligations and the rights and protections afforded to employees.
The Occupational Health and Safety and Other Legislation Act 2021 (the Act) significantly amends multiple pieces of Victorian legislation, including:
- Improving protections for workers employed under labour-hire arrangements;
- Increasing the powers of Health and Safety Representatives (HSRs); and
- Prohibiting employers taking out insurance to mitigate their financial penalties associated with breaches of workplace health and safety laws.
Alterations to labour-hire arrangements
The Occupational Health and Safety Act 2004 (OHS Act) has been subjected to an extended definition of ‘employer’, which now includes a host employer if a labour-hire service supplies, recruits, or places labour hire workers with the host employer.
This allows labour-hire workers to access the same rights and protections as employees and places additional compliance obligations on the host employer.
Additionally, where there are shared OHS duties held by host employers and labour-hire agencies, it is expected that both parties will:
- consult and exchange any information which assists in the joint management of workplace health and safety.
- cooperate and implement any necessary health and safety arrangements during consultative processes with workers, and jointly respond to reasonable requests.
- coordinate compliance efforts to reduce gaps in health and safety measures.
These changes come into effect on Tuesday 22 March 2022.
New HSR powers
Under the amended legislation, HSRs are now able to create photographic and filmed records of hazards and potential workplace health and safety breaches to assist in evidence collecting processes.
This evidence is then able to be tabled when raising health and safety concerns and negotiating solutions with their employers and WorkSafe.
Employers are advised to inform HSRs of these new powers.
Prohibition on insurance and indemnity arrangements
Other amendments arising out of the Act void contractual terms that seek to indemnify employers of liability for financial penalties that arise because the employer has breached workplace health and safety laws.
Attempts to enter, receive, or pay a benefit through such insurance schemes is now an offence, currently carrying fines up to $54,300 for individuals and $271,000 for body corporates.
Employers can still take out insurance to cover legal costs associated with workplace law proceedings however, any penalties issued are to be covered solely by the duty holder, often the employer.
These offences come into effect on Thursday 22 September 2022 to allow businesses time to exit any such insurance schemes. However, any prohibited insurance and indemnity terms in contracts will be void and unenforceable as of Wednesday 22 September 2021.
Further changes have also been made to allow WorkSafe inspectors to issue notices electronically and to improve the way seized property is returned, disposed or destroyed.
These changes will have a significant impact on Victorian OHS obligations for employers moving forward, and businesses should familiarise themselves with and prepare for the amendments to reduce the risk of inadvertent non-compliance. This should include a review of relevant insurance policies and assessing your position in respect of any labour-hire workers you may engage or have in attendance on your sites.
HR Assured now offers businesses a comprehensive suite of services and products to manage Workplace Health & Safety (WHS) or OHS. From WHS audits and WHS management software to insurance and representation and 24/7 telephone advisory support on a wide range of WHS matters, HR Assured is here to help your business manage its WHS obligations.
Should you have any questions about these changes to Victoria’s OHS laws, please feel free to contact HR Assured.
Clients of HR Assured can contact the 24/7 Telephone Advisory Service at any time.
If your business is not an HR Assured client, we’d like to offer you a no-obligation, complimentary 30-minute consultation call. Employers can speak to our friendly workplace relations consultants and seek advice about this new legislation or an existing workplace issue. You can arrange your complimentary consultation here.
Robby Magyar is a Workplace Relations Consultant at HR Assured, who has been assisting clients across Australia from a range of industries and businesses with their work-related COVID-19 questions.