The WorkSafe Legislation Amendment Bill 2017 (Vic) (the Bill) amends the Occupational Health and Safety Act 2004 (Vic) (OHS Act), along with others including the Dangerous Goods Act 1985 (Vic). The Bill has received its second reading in the Legislative Assembly and is listed for resumed debate on 24 May 2017. If passed, the Part dealing with the OHS Act is intended (according to the explanatory memorandum) to come into operation on 1 July 2017 and the remaining provisions at least by 21 March 2018 (if not proclaimed).
The Bill’s changes include increased penalties for employers who fail to notify the Victorian WorkCover Authority (the Authority) of an incident, or fail to preserve the site of an incident. Employers who are a natural person will now face penalties of up to 240 penalty units ($38,056 from 1 July 2017) up from 60 penalty units. Body corporate employers will face penalties up to 1200 penalty units ($190,284 from 1 July 2017) up from 300 penalty units. This offence has also been amended so as to introduce a “reasonable excuse” defence.
A new offence has also been created for contravening an enforceable undertaking given by that person (under section 16 OHS Act) with penalties for a natural person of 500 penalty units ($79,285 from 1 July 2017) or 2500 penalty units ($396,425 from 1 July 2017) for a body corporate.
Section 100 OHS Act has also been amended in two ways. Firstly, an inspector who enters a workplace may require production of documents located anywhere, as the current words of limitation “…located at the place that is in the person’s possession or control” are to be deleted. Secondly, the amendments to section 100 will allow an inspector to “…do any or all of…” the following:
- requiring production of documents;
- examining document;
- requiring a person at the place to answer any questions put by the inspector.
This amendment will end any existing argument that the only questions an inspector has the power to require answers to are those relating to the documents being produced. The Authority will have 12 months to commence proceedings for a breach of section 100 OHS Act from the date the Authority becomes aware of the commission of the alleged offence, rather than from when the failure actually occurred. This is because, for example, in practice it can take some time for an inspector to review documents produced and to determine that there has been a failure to comply with the section 100 obligation without reasonable excuse.
In addition to the current limitation periods in the OHS Act (i.e. 2 years after the offence first comes to the attention of the Authority or any time with the written authorisation of the DPP), the Authority will also be able to bring a proceeding for an offence against the OHS Act or its regulations:
- within 1 year of when a coronial report was made (or inquiry or inquest ended) from which it appears an offence has been committed against the OHS Act or regulations; or
- within 6 months after an enforceable undertaking is contravened, or the Authority becomes aware of such contravention or the undertaking has been withdrawn.
Thank you to Lauren Cruickshank (Graduate) for her contribution to this article.