Obligations under the OHS Act 2004
Employer obligations
Under the OHS Act 2004, employers must (so far as is reasonably practicable) provide and maintain a safe, risk-free working environment for their employees (s 21) and independent contractors (s 21(3)).
The OHS Act 2004 (s 20) provides guidance about the application of the ‘reasonably practicable’ qualifier. Under section 20(1), an employer must eliminate a risk to health and safety if it is reasonably practicable to do so. The employer is only permitted to reduce a risk to health and safety if it is not reasonably practicable to eliminate it. The application of the ‘reasonably practicable’ qualifier requires the balancing of risk with the cost of removing or reducing the risk (s 20(2)). Employers must also:
- monitor employee health;
- keep information and records on the health and safety of employees;
- employ or engage qualified people to provide health and safety advice;
- monitor workplace conditions; and
- inform employees (in appropriate languages) of how, and to whom, a health and safety enquiry or complaint may be made (s 22).
Employee obligations
Under section 25 of the OHS Act 2004, while ‘at work’ an employee must:
- take reasonable care of their own health and safety and of the health and safety of anyone else who may be affected by their acts or omissions at the workplace; and
- cooperate with their employer in relation to the employer’s health and safety obligations.
Management or control of a workplace
Under section 26 of the OHS Act 2004, a person who manages or has control over a workplace must (so far as is reasonably practicable) ensure that the means of entering and leaving the workplace are safe and without risks to health. This duty can extend to an entity or person who holds the legal authority to carry out work at a site (see, for example, Keilor Melton Quarries v The Queen [2020] VSCA 169).
Manufacturers’ and suppliers’ obligations
Manufacturers and suppliers of plants for use at a workplace must ensure, as far as reasonably practicable, that the plant is designed and constructed in such a way as to be safe and without risks to health when it is used for a purpose for which it was manufactured.
The manufacturer must also carry out, or arrange to carry out, such testing as is necessary to ensure the plant is safe when properly used and must take appropriate action to ensure that there is information available at the workplace to ensure the safe use of the plant at the workplace (ss 29, 30 OHS Act 2004).
Similar obligations are placed on the manufacturers and suppliers of substances for use at workplaces.
Workplace manslaughter
On 1 July 2020, a new offence of workplace manslaughter was introduced into the OHS Act 2004 (pt 5A). A person must not engage in conduct that is negligent, constitutes a breach of the applicable duty to a person, and causes the death of the person to whom the duty is owed (s 39G).
The stated intention of the new offence was not to impose additional duties, but to provide a stronger deterrent to duty holders to comply with existing occupational health and safety obligations.
The new offence does not apply to volunteers.
