The Occupational Health and Safety Act 2004 (OHS Act) is the main workplace health and safety law in Victoria. If you employ anyone in Victoria, it applies to you. This post explains what it requires, who it applies to, and what the legal standard means in practice.
The primary duty: section 21
Section 21 is the core of the OHS Act. It requires an employer to provide and maintain, so far as is reasonably practicable, a working environment for employees that is safe and without risks to health. That includes both physical and psychological health.
The duty covers:
- A safe working environment, including safe systems of work
- Safe plant and equipment
- Safe use, handling, storage, and transport of substances
- Adequate facilities for the welfare of employees
- Information, instruction, training, and supervision necessary for employees to do their work safely
This is not a vague aspiration. It is a legal obligation with penalties attached. A breach of section 21 can result in prosecution, and the penalties for a body corporate can exceed $3 million for the most serious offences under the OHS Act.
"So far as is reasonably practicable". What does that mean?
This phrase appears throughout the OHS Act and it is the legal standard you will be judged against. Section 20 of the OHS Act defines it. It means you must weigh:
- The likelihood of the hazard or risk occurring
- The degree of harm that would result if it did occur
- What the person concerned knows, or ought reasonably to know, about the hazard and ways of managing it
- The availability and suitability of ways to eliminate or reduce the risk
- The cost of eliminating or reducing the risk
The key word is "reasonably." You are not required to bankrupt your business eliminating every conceivable risk. But you are required to do what a reasonable person in your position, with your knowledge, would do. If a control is available, effective, and not disproportionately costly relative to the risk, you're expected to implement it.
Courts have interpreted this standard consistently: the greater the risk, the more you must do. Low-cost, high-impact controls are almost always reasonably practicable.
Who else has duties?
The OHS Act does not only impose duties on employers. It also places duties on:
Employees (section 25). Workers must take reasonable care for their own health and safety and the health and safety of others. They must cooperate with their employer's safety measures and must not intentionally or recklessly interfere with anything provided for health and safety.
Self-employed persons (section 24). Self-employed people must ensure their own work does not create risks to the health or safety of others.
Persons who manage or control a workplace (section 26). If you control a workplace, even if you're not the employer of the people working there, you have duties to ensure the workplace is safe for anyone who might be affected.
Designers, manufacturers, importers, and suppliers of plant and substances (sections 27–30). These parties have duties to ensure that the things they design, make, import, or supply are safe when used for their intended purpose.
Officers (section 144). Officers of a body corporate, directors, partners, people who participate in making decisions that affect the whole or a substantial part of the business, must exercise due diligence to ensure the body corporate complies with the OHS Act. This is a personal duty. An officer can be prosecuted individually, not just the company.
The duty to consult: sections 35–39
Employers must, so far as is reasonably practicable, consult with employees about matters that directly affect or are likely to directly affect their health and safety. Consultation means giving employees an opportunity to contribute to decisions, not just informing them of decisions already made.
You must consult about:
- Identifying or assessing hazards or risks
- Making decisions about measures to control risks
- Making decisions about the adequacy of facilities for employee welfare
- Making decisions about procedures for resolving OHS issues
- Making decisions about the monitoring of employee health or workplace conditions
- Providing information or training
If employees are represented by an HSR or are members of a health and safety committee, consultation must include those representatives.
Notifiable incidents: section 38
Certain incidents must be reported to WorkSafe immediately. These include:
- The death of any person
- A person requiring immediate treatment as an in-patient in a hospital
- A person requiring immediate medical treatment for amputation, serious head or eye injury, serious burn, separation of skin from underlying tissue, spinal injury, loss of a bodily function, or serious laceration
In addition, certain "dangerous occurrences" must be notified. Events such as the collapse of a crane, an uncontrolled explosion, an electrical incident, or exposure to a hazardous substance.
After notifying WorkSafe, you must preserve the incident scene until an inspector tells you otherwise, or for a reasonable period if no inspector attends.
What does compliance actually look like?
The OHS Act does not prescribe specific steps for every hazard. It sets performance-based duties. It tells you the outcome you must achieve, a safe working environment, and leaves you to determine how to get there.
In practice, compliance means having a systematic approach to health and safety that includes:
- Identifying hazards in your workplace, both physical and psychosocial
- Assessing the risks those hazards create
- Implementing controls to eliminate or reduce those risks, in line with the hierarchy of control
- Consulting with workers throughout the process
- Monitoring and reviewing whether your controls are working
- Keeping records of what you've done and why
If WorkSafe or a court ever asks you to account for your safety management, you need to be able to explain what you did, when, and why. If you cannot demonstrate your reasoning, the fact that nothing went wrong won't save you. The duty is proactive, not reactive.