OHS and Other Legislation Amendment Act 2021 becomes law in Victoria

Did you know that if you are a host employer utilising labour hire services that you will be impacted by these recent changes to the Victorian Government’s Occupation Health and Safety and Other Legislation Amendment Act 2021 (the Act)?

Our industry association, the Recruitment, Consulting & Staffing Association (RCSA), outlined the changes in the article below.

On 22 September 2021, the Victorian Government’s Occupation Health and Safety and Other Legislation Amendment Act 2021 (the Act) received Royal Assent. The Act makes several amendments to the Occupational Health and Safety Act 2004, Dangerous Goods Act 1985, Workplace Injury Rehabilitation and Compensation Act 2013 and the Equipment (Public Safety) Act 1994.

Most notably for our sector, the Act expands the rights and obligations that host businesses owe to labour hire workers in Victoria and introduces new offences for business who enter into insurance and indemnity contracts against paying monetary penalties under workplace safety laws

While most of the new amendments commenced on Wednesday, 22 September 2021, the legislation offers a six month transition period in order for businesses to adapt to the new law for the labour hire provisions. As such, these provisions will commence on Tuesday, 22 March 2022. Additionally, although the prohibition on contractual terms purporting to insure or indemnify a person against their liability to pay a monetary penalty under workplace safety laws commence as of Wednesday, 22 September 2021, the associated offences will not commence until Thursday, 22 September 2022.

Under section 21(1) of the Occupational Health and Safety Act 2004, employers must, so far as reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health. Under subsection 3, a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor. The effect of this is that labour hire workers are owed the same rights as direct-hire employees when it came to the safety and absence of risks to health at the host site. However, prior to the amendments, the duty of the host to a labour hire worker was confined to section 21.

What the new legislation does is extend the definition of “employer” and “employee” in the Occupational Health and Safety Act 2004 to ensure labour hire workers are considered employees of the host beyond section 21, meaning that host businesses now owe additional obligations to labour hire workers working at their site. Labour hire workers also have new rights stemming from the amendments. Although most of these are technical amendments; RCSA members should be aware of them.

The additional duties for host businesses include:

• Monitoring the health of labour hire workers (section 22(1)(a));
• Monitoring conditions at any workplace under their management and control (section 22(1)(b));
• Providing information to labour hire employees (in such languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom an employee may make an enquiry or complaint about health and safety (section 22(1)(c));
• Keeping information and records relating to the health and safety of labour hire workers (section 22(2)(a)); and
• Employing or engaging persons who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of on-hire workers (section 22(2)(b)).

For labour hire workers, the additional rights include:

• Labour hire workers may ask his or her host business to establish designated work groups of employees of the employer at one or more workplaces (section 43);
• Host businesses will be prohibited from dismissing or altering the position of a labour hire worker, or threatening to do so, where the worker has exercised any of their rights under the Act (section 76).

The amendments also require labour hire providers and host businesses to consult and cooperate on their shared responsibility to ensure the safety of labour hire workers – with any breach of this duty punishable by fines of up to $32,713 for individuals and $163,566 for businesses. Whilst RCSA knows that this is common practice for our membership across Australia as a result of most jurisdictions having adopted the model Work Health and Safety (WHS) Laws, we are pleased see that now see the introduction of this as an offence in Victoria in the hopes that host businesses will take their shared obligations seriously now.

The amendments also prohibit labour hire providers and host businesses from entering contracts or agreements that insure or indemnify a person against their liability to pay a monetary penalty under workplace safety laws, and offers offences for those businesses that do so. This means that RCSA members, when entering into a contract prepared by the client, will need to ensure that there are no provisions indemnifying penalties under workplace health and safety laws.

More information regarding the changes can be accessed on WorkSafe Victoria’s website.

Article source: RCSA