Differences between Victorian OHS legislation and Harmonised WHS Legislation

Victoria is the only state in Australia which has not enacted harmonised Work Health and Safety (‘WHS’) legislation. Harmonised WHS legislation has now been enacted in all other states of Australia. This article analyses the significant differences between Victoria’s Occupational Health & Safety (‘OHS’) Act 2004 with the harmonised WHS legislation. Although harmonised WHS legislation is largely similar between the states, there are still some minor differences. For example, the harmonised WHS legislation in Western Australia deems it a notifiable incident, if a worker has been certified to be unfit by a medical practitioner to do their normal work for 10 days after an injury or illness.[1] This requirement does not exist in other harmonised states.

For the purpose of this article, comparison of Victoria’s OHS legislation has been made with the harmonised WHS legislation enacted in New South Wales (‘NSW’).

Terminology

A significant difference between the two legislations is the difference in key terminology used. The harmonised legislation refers to workplace safety, as Work Health and Safety (‘WHS’), whereas the Victorian legislation refers to it as Occupational Health & Safety (‘OHS’).

The other key difference is that the harmonised WHS legislation utilises the term of, ‘workers’ which is defined to include individuals who are employees, contractors, sub-contractors, outworker, apprentice, trainee, work experience students and volunteers.[2] Victorian OHS legislation utilises the term of employees, which includes independent contractors.[3]

Harmonised WHS legislation also utilises the term of Persons Conducting a Business or Undertaking (‘PCBU’).[4] Whereas the Victorian OHS legislation refers to these persons as employers.[5]

Duties

There are some differences in the duties between Victorian OHS legislation and harmonised WHS legislation.

PCBU and Employer

Harmonised WHS legislation specifically imposes a duty for PCBUs to ensure accommodation that is necessary for the worker’s engagement and under their control is without risks to health.[6] This specific duty is not provided by the Victorian OHS legislation but would likely be covered under the scope of the employer’s main duties to employees.[7]

Workers and Employees

Victorian OHS legislation imposes a duty on employees to not to intentionally or recklessly interfere with, or misuse anything provided at the workplace in the interests of health and safety.[8] This duty does not exist under harmonised WHS legislation.[9]

Harmonised WHS legislation requires workers to comply with any reasonable instruction by the PCBU.[10] This duty does not exist under Victorian OHS legislation.[11]

Other Persons

Harmonised WHS legislation imposes specific duties on other persons at the workplace. These duties are similar to the duties of workers and would apply to persons such as visitors to the workplace.[12] Victorian OHS legislation does not impose specific duties for other persons.

Persons with control of fixtures, fittings, plant

Harmonised WHS legislation imposes a duty on persons conducting a business or undertaking involving management or control of fixtures, fittings, or plant at workplaces.[13] Under Victorian OHS legislation, this duty does not expressly exist.

Designers

Harmonised WHS legislation imposes duties on designers of substances.[14] Victorian OHS legislation does not impose duties on designers of substances and the duties for designers are only in relation to plant and structures.[15]

Importers

Importers of plant, substances, and structures also have specific duties under harmonised WHS legislation.[16] Victorian OHS legislation does not have specific duties for importers of plant, substances and structures.

Designers, manufacturers, importers, suppliers

Harmonised WHS legislation also obliges designers, manufacturers, importers, suppliers to consider the health and safety of persons who are impacted by their product at the workplace. This includes persons, who handle the substance at a workplace, persons who store the plant or substance at a workplace and persons who construct the structure at a workplace.[17]

Victorian OHS legislation does not expressly require designers, manufacturers, suppliers to consider the health and safety of these persons.[18] However the scope of the duty would likely apply to these persons as well under Victorian OHS legislation.

Notifiable Incidents

The incident notification requirements are largely similar between Victorian OHS legislation and harmonised WHS legislation. One minor difference is that, Victorian OHS legislation deems it a notifiable incident which results in a person requiring immediate medical treatment for electric shock.[19] This incident type is not regarded as a serious injury which requires notification under harmonised WHS legislation.[20] However electric shock incidents which meet the requirements of a dangerous incident are still regarded as notifiable incidents under harmonised WHS legislation.[21]

Consultation

Consultation requirements under harmonised WHS legislation expressly requires duty holders to consult a broad range of persons compared to Victorian OHS legislation. Under harmonised WHS legislation, duty holders are required to consult workers, which includes employees, contractors, sub-contractors, outworker, apprentice, trainee, work experience students and volunteers.[22] Under Victorian OHS legislation, duty holders are only required to expressly consult employees and independent contractors.[23]

The other difference is that harmonised WHS legislation expressly requires duty holders to consult with others who have a duty in relation to the same matter.[24] This requirement does not exist under Victorian OHS legislation. However, in recent times a similar requirement now does exist specifically for labour hire workers. Employers are required to consult with other employers who share the same duties in relation to the same labour hire worker.[25] Employers are required to consult, co-operate and coordinate activities with other duty holders to comply with their duties.

Consultation under harmonised WHS legislation also requires workers to be given a reasonable opportunity to contribute to the decision making process relating to the matter and that workers consulted are advised of the outcome of the consultation in a timely manner.[26] These requirements do not exist for consultation under Victorian OHS legislation.[27]

However Victorian OHS legislation requires consultation to occur when determining the membership of any health and safety committee.[28] This requirement for consultation does not exist under harmonised WHS legislation.[29]

Health and Safety Representatives

Under Victorian OHS legislation, a Health and Safety Representative (‘HSR’) can cease to hold office if the designated work group of that HSR is varied. This requirement does not exist under WHS harmonised legislation.[30] Both legislations allow for the majority of the members of the designated work group to remove a person from the position of a HSR. However, under Victorian OHS legislation, this can only occur if the person has held office as a HSR for at least 12 months.[31]

Harmonised WHS legislation expressly confers immunity on HSR’s who are not personally liable in exercising their powers in good faith.[32]

Harmonised WHS legislation also allows for different powers and functions for HSR’s compared to Victorian OHS legislation. Under harmonised WHS legislation, HSRs have the power and function to investigate complaints from members of the work group relating to WHS and to receive information concerning WHS of workers in that work group.[33] These powers and functions do not expressly exist under Victorian OHS legislation.[34]

However Victorian OHS legislation does allow some additional powers for HSRs compared to harmonised WHS legislation, which is to take photographs, measurements, recordings, or sketches of any part of the workplace, in which a member of the designated work group works.[35]

Health & Safety Committee

Harmonised WHS legislation requires duty holders to establish a health and safety committee within 2 months after being requested to do so by a HSR or by 5 or more workers.[36] Under Victorian OHS legislation, the time frame for establishing the health and safety committee is 3 months upon being requested by a HSR. Victorian OHS legislation also does not require employers to establish a health and safety committee if requested by other employees (other than HSRs).[37]

Ceasing of Unsafe Work

Harmonised WHS legislation allows workers to refuse or cease unsafe work if there is a concern the work would expose them to an immediate or imminent exposure to a hazard.[38] This provision does not exist under Victorian OHS legislation, which relies on HSRs exercising their power to cease unsafe work.[39]

Harmonised WHS legislation also allows HSRs in high risk situations, to issue a direction to cease work without requiring to consult the duty holder first.[40] Victorian OHS legislation does not allow this power and duty holders must be consulted before a direction to cease work can be given.[41]

Harmonised WHS legislation also requires HSRs to have completed their initial HSR training in order for the direction to be valid.[42] This is different under Victorian OHS legislation, which does not require HSRs to complete their initial HSR training.[43]

Provisional Improvement Notices

Harmonised WHS legislation requires HSRs to have completed their initial HSR training prior to being able to issue a provisional improvement notice.[44] This is not a requirement under Victorian OHS legislation and HSRs can issue a provisional improvement notice without having completed their initial HSR training.[45]

Victorian OHS legislation requires a duty holder who has been issued with a provisional improvement notice to bring the notice to the attention of each person whose work is affected by the notice and to display a copy of the notice in the workplace.[46] Under harmonised WHS legislation, duty holders are only required to display the provisional improvement notice in the workplace.[47] Harmonised WHS legislation also prohibits a person from removing, destroying, damaging or defacing a provisional improvement notice that is on display.[48] This protection is not included under Victorian OHS legislation.

Harmonised WHS legislation also allows HSRs to make minor changes or cancel the provisional improvement notice once issued.[49] These modifications are not expressly provided under Victorian OHS legislation.[50]

Entry by Permit

Both legislations operate similarly to govern entry into workplaces in cases of suspected contravention(s) of OHS and WHS legislation. However, there are some differences in the powers granted.

Harmonised WHS legislation allows permit holders to inspect and make copies of relevant documents that are kept at the workplace or accessible by computer.[51] This power is not provided under Victorian OHS legislation.[52] However Victorian OHS legislation allows authorised representatives of employee organisations to take photographs, measurements, sketches, or recordings at the place for the purpose of enquiring into the suspected contravention.[53] This power is not provided under harmonised WHS legislation.[54]

Conclusion

In conclusion there are significant differences between the Victorian OHS legislation and the harmonised WHS legislation. Organisations which rely on a universal safety management system should ensure the differences are reflected in the management system to ensure compliance with both legislations. Organisations should also be vigilant for any differences in harmonised WHS legislation between the harmonised states.

 


[1] Work Health and Safety Act 2020 (WA) section 36(1)(e).

[2] ibid section 7.

[3] Occupational Health & Safety Act 2004 (Vic) section 35.

[4] Work Health and Safety Act 2011 (NSW) section 5.

[5] Occupational Health & Safety Act 2004 (Vic) section 5.

[6] Work Health and Safety Act 2011 (NSW) section 19(4).

[7] Occupational Health & Safety Act 2004 (Vic) section 21.

[8] Occupational Health & Safety Act 2004 (Vic) section 25.

[9] Work Health and Safety Act 2011 (NSW) section 28.

[10] ibid section 28(c).

[11] Occupational Health & Safety Act 2004 (Vic) section 25.

[12] Work Health and Safety Act 2011 (NSW) section 29.

[13] Work Health and Safety Act 2011 (NSW) section 21.

[14] ibid section 21.

[15] Occupational Health & Safety Act 2004 (Vic) sections 27,28.

[16] Work Health and Safety Act 2011 (NSW) section 24.

[17] ibid sections 22-25.

[18] Occupational Health & Safety Act 2004 (Vic) sections 27-30.

[19] Occupational Health & Safety Act 2004 (Vic) section 47(1)(d).

[20] Work Health and Safety Act 2011 (NSW) section 36(b).

[21] ibid section 37.

[22] ibid section 7.

[23] Occupational Health & Safety Act 2004 (Vic) section 35.

[24] ibid section 46.

[25] ibid section 35A.

[26] ibid section 48(1).

[27] Occupational Health & Safety Act 2004 (Vic) section 35.

[28] ibid section 35.

[29] Work Health and Safety Act 2011 (NSW) section 49.

[30] ibid section 64.

[31] Occupational Health & Safety Act 2004 (Vic) section 55(2).

[32] Work Health and Safety Act 2011 (NSW) section 66.

[33] ibid section 68.

[34] Occupational Health & Safety Act 2004 (Vic) section 58(2).

[35] ibid section 58(1).

[36] Work Health and Safety Act 2011 (NSW) section 75.

[37] Occupational Health & Safety Act 2004 (Vic) section 72.

[38] Work Health and Safety Act 2011 (NSW) section 84.

[39] Occupational Health & Safety Act 2004 (Vic) section 74(1).

[40] Work Health and Safety Act 2011 (NSW) section 85(3).

[41] Occupational Health & Safety Act 2004 (Vic) section 74(1).

[42] Work Health and Safety Act 2011 (NSW) section 85(6).

[43] Occupational Health & Safety Act 2004 (Vic) section 74(1).

[44] Work Health and Safety Act 2011 (NSW) section 90(4).

[45] Occupational Health & Safety Act 2004 (Vic) section 60(1).

[46] ibid 60(4).

[47] Work Health and Safety Act 2011 (NSW) section 97(1).

[48] ibid 97(2).

[49] Work Health and Safety Act 2011 (NSW) sections 94, 96.

[50] Occupational Health & Safety Act 2004 (Vic) section 60.

[51] Work Health and Safety Act 2011 (NSW) sections 118(1).

[52] Occupational Health & Safety Act 2004 (Vic) section 89(1).

[53] ibid section 89(1).

[54] Work Health and Safety Act 2011 (NSW) sections 118(1).