The state’s Andrews Labor Government will introduce new laws on July 1 to amend its portfolio of OHS laws enforced by its OHS agency, WorkSafe Victoria.
The omnibus WorkSafe Legislation Amendment Bill 2017, currently before state parliament, aims to “improve” Victoria’s main OHS laws – the Occupational Health and Safety Act, the workers compensation Act and the Dangerous Goods Act. There are more than 40 changes to the primary pieces of legislation that have been in place in Victoria since 1985.
The amendments will coincide with the implementation of Victoria’s revised OHS regulations that roll out from July. More changes may come after the upcoming release of the recommendations from the independent ministerial review into WorkSafe’s compliance and enforcement policies and procedures. The review was completed last October and is now with Minister Robin Scott, the minister responsible for WorkSafe Victoria.
Scott says the high level amendments are to optimise compliance and enforcement and workability of OHS in Victoria. “The government is committed to ensuring that employers and individuals in breach of OHS laws face sanctions that appropriately reflect the vital role of the legislation in protecting Victorian workers. It is important that the sanctions act as sufficient deterrents against committing these offences.”
The most significant change is to give the regulator more time to investigate and prosecute an employer over a breach of OHS law.
Under the current OHS Act, there is a two-year limit for bringing a prosecution. In the situation of a finding by a coroner that a death was a breach of OHS law and should be prosecuted, WorkSafe will now have 12 months to follow up with prosecution under its jurisdiction.
In the situation where an employer is given time by a court to improve the safety performance related to an incident (called an “enforceable undertaken”) instead of facing a potentially heavy fine, WorkSafe can now prosecute that employer if the improvement specified in the undertaking is not in place in the reasonable time.
If fact WorkSafe can now prosecute any employer for any breach beyond the nominal two-year period set in the OHS Act if WorkSafe becomes aware of new evidence.
Another significant change is the time limit has been relaxed on prosecutions related to failure by an employer to comply with directions given by a WorkSafe inspector. The OHS Act, and similar laws in other states, gives government OHS inspectors power give directions, to compel answers to questions about a breach of the law and to provide documents related to an offence. The amendment means alleged offenders cannot simple evade prosecution by stalling.
Another important amendment is that employers can no longer get away with a slap on the wrist for not reporting a notifiable incident. Employers often do not notify to avoid attention from the regulator over a breach of OHS law and to dodge their obligations to injured workers under workers compensation law. Even worse is covering up the offence by “disturbing” the site of an incident when the law states it must preserved for investigation or by making false statements or giving false documents relating to an incident.
The likelihood of employers keeping an offence quiet is also less likely as an employee can “dob in” their employer to WorkSafe. While that can be done anonymously now, in July the worker will be protected under the OHS law from discrimination if the employer becomes aware of who blew the whistle.
The Minister claims the existing low level fines for these many offences no longer reflect their gravity and the difficulties created for WorkSafe inspectors trying to enforce the law is these legal obligations are not observed by workplaces. “These obligations also enable Worksafe to identify the cause of incidents and to take action to prevent similar incidents from occurring in the future,” the Minister said.
By scaling up these offences from summary to indictable offences, and putting heavy penalties on breaking the new laws, Victorian courts have the power to impose fines that will hurt. It will be up to $200,000 for blatant breaches.
The amendments help shore up Victoria’s reputation as the more progressive and safest state in which to work. The state has resisted calls to adopt the national models laws as other states have, saying its local laws are the most contemporary and were the template for the national model Act and regulations. It has now leapt ahead through these advances and set the new benchmark for OHS enforcement for the other states to follow.