NSCA Foundation

Impending changes to Victorian occupational health and safety legislation


By Senior Associate Sam Jackson and Partner Nicole Fauvrelle
Thursday, 15 June, 2017

Impending changes to Victorian occupational health and safety legislation

The WorkSafe Legislation Amendment Bill 2017 (Vic.) (the Bill) will soon be passed, introducing changes to the Occupational Health & Safety Act 2004 (Vic.) (the Act) as well as other safety and compensation legislation.

The key changes include:

  • Inspectors can require a person at a workplace to answer any question put by the inspector, subject to the Act’s protections for self-incrimination and legal professional privilege. These changes attempt to remove any doubt about the interpretation of s 100(1)(c) of the Act which, on one view, only permitted inspectors to ask questions about the documents they requested under s 100(1)(a). Inspectors will also have the power to request any document regardless of its location. Finally in relation to s 100 of the Act, the Bill clarifies that the 12-month time limit for prosecuting offences against s 100 does not begin until WorkSafe is aware of the offence (rather than the date the offence was allegedly committed).
  • The definition of “medical treatment” has been updated to clarify any ambiguity and confirms that in situations where treatment is administered by a nurse, it will still be considered “medical treatment”. The definition of the term “mine” has also been amended.
  • From 1 July 2017, the penalty for failing to notify WorkSafe of “notifiable incidents” and failing to preserve a site where a “notifiable incident” has occurred will significantly increase from $9,514.20 to $47,571 for individuals and from $38,056.80 to $190,284 for companies (these figures are indexed each year on 1 July). These offences will also now be indictable, rather than summary offences, which means the accused is entitled to trial by judge and jury, rather than a magistrate alone. Acknowledging the increased seriousness of indictable offences, the Bill also introduces a “reasonable excuse” defence.
  • The service of provisional improvement notices (PIN), notices affirming or cancelling PINs, non-disturbance notices, improvement notices and prohibition notices by email is now allowed.
  • Clarification that it is an offence for an employer to discriminate against a person for raising a health and safety issue directly with WorkSafe, in addition to existing protections.
  • Under certain circumstances (such as new evidence that could not have been reasonably discovered within the relevant limitation period), prosecutions for breaches of the Act can be commenced outside the two-year time limit. Another change, in line with the approach in the Model WHS Laws jurisdictions, will allow proceedings to be commenced outside the two-year limitation period as long as it’s within one year of a coronial report, inquiry or inquest.
  • A separate offence for contraventions of enforceable undertakings entered into with WorkSafe has also been created.

 

The Bill is currently before the Victorian Parliament. Some of these changes will come into effect when the Bill receives Royal Assent, while other changes wait for a date of effect to be proclaimed.

Finally, the new Occupational Health and Safety Regulations 2017 come into effect from 18 June 2017. Detailed information about these regulations is available on WorkSafe’s website.

Senior Associate Sam Jackson and Partner Nicole Fauvrelle.

We would like to acknowledge the contribution of Lawyer Alessandra Moussa to this article.

Image credit: ©stock.adobe.com/au/alexskopje

NSCA Foundation is a member based, non-profit organisation working together with members to improve workplace health and safety throughout Australia. For more information and membership details click here
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