1. www.monash.edu.au Monash OHS Conference 2014 Dr K Wheelwright What’s law got to do with it? Duty holders under the OHS Act 2004 (Vic)

2. www.monash.edu.au 2 Aims of OHS Act To prevent injuries and ill- health To identify key duty holders To provide for employee involvement To promote consultation and self- regulation To provide for legal action and penalties in serious cases To encourage duty holders to comply Key principles: s 4 The importance of H&S requires that employees.. be given the highest level of protection The persons who control or manage matters that give rise to risk are responsible for eliminating or reducing those risks Employers should be proactive

3. www.monash.edu.au 3 The employer’s duties: ss 21 – 23; s 35 The OHS Act requires Monash as an employer to: –Provide and maintain a working environment that is safe and without risks to health – this includes safe plant, equipment, substances etc –Monitor: >The H&S of employees >The conditions at any workplace the EMR controls –Provide information about H&S to employees –Consult with employees about measures to be taken

4. www.monash.edu.au 4 Reasonable practicability The obligation on the employer is to do what is “reasonably practicable”: s 20(2) In determining this, regard must be had to: – the likelihood and severity of harm –what the employer knows and ought to know about the hazard or risk –Available ways to reduce risk, and –Costs of eliminating or reducing the hazard or risk

5. www.monash.edu.au 5 SectionOwed by …Owed to … 25 27 - 28 The employee Designers of plant and structures Other employees Users & occupiers 29 – 31 32 Manufacturers of plant or Substances; installers of Plant Any person who is reckless Users at a workplace Another person who is put in danger of serious injury 5 Other duties owed under the OHS Act 2004

6. www.monash.edu.au 6 Employee’s duty: s 25 A duty to take reasonable care: – for his or her own H&S –For the H&S of persons who may be affected by the employee’s acts or omissions at the workplace –To co-operate with the employer over H &S matters Leaves supervisors and other employees open to prosecution

7. www.monash.edu.au 7 Employee representation: Part 7 Establishing Designated Work Groups Health & Safety Rep is to be elected by a DWG (3 year period): s 54 HSRs are empowered under s 58 to: –Inspect the workplace –Accompany an inspector –Require the establishment of an OHS Cttee

8. www.monash.edu.au 8 Employee representation (cont): HSR has a statutory power to issue a Provisional Improvement Notice if he or she: –Believes on reasonable grounds that the employer is in breach of the Act –Has consulted with the employer about remedying the breach, and –The breach relates to the HSR’s DWG The employer must comply, or call an inspector if there is a dispute

9. www.monash.edu.au 9 Targeted inspections, warnings Improvement, prohibition notices Prosecution Compliance Information, assistance, support Compliance

10. www.monash.edu.au 10 Maximum penalties for breaches of duty For corporate employers: 9000 penalty units For employees: 1800 penalty units For reckless endangerment: –for a body corporate: 9000 PU –for a natural person – >1800 PU OR >Max 5 years imprisonment A PU is worth about $140

11. www.monash.edu.au 11 Developing OHS issues: bullying What is workplace bullying? Is it an OHS issue? Legal mechanisms –Criminal law: Brodies’ Law –Bullying orders from the Fair Work Commission

12. www.monash.edu.au 12 Concluding remarks The law is important – it sets the framework for OHS and makes it clear who has the key responsibilities Employees have important rights and responsibilities – they are an integral part of a joint approach to good OHS Prosecution and fines are not common – but they are important when ‘gentler’ approaches do not work, or deterrence and punishment are needed eg Swanston Street wall collapse; Café Vamp bullying case