The Occupational Health and Safety and Other Legislation Amendment Act 2021 (the amendment Act) was passed by the Victorian Parliament on Thursday 16 September 2021, and amends the Occupational Health and Safety Act 2004 (Vic) (the Act).
On the first day after the end of a 6 month period, new provisions in relation to labour hire commence. Those provisions provide that:
- for the purposes of the Act, an employer of a worker is defined as including workers supplied by, recruited for or placed by a labour hire services provider, to work for the person; and
- an employer of a worker will have a duty to consult, co-operate and co-ordinate activities with other employers of the same worker.
Insurance and indemnity prohibition
The relevant part of the amendment Act concerning the insurance and indemnity prohibition comes into operation on the first day after the end of 12 months after it receives Royal Assent. Once that part of the amendment Act comes into operation the amendments make it an indictable offence to:
- without reasonable excuse, enter into, offer to enter into or be a party to a contract or arrangement that purports to insure or indemnify anyone against liability pay a pecuniary penalty under the Act; and
- receive or provide a benefit under a term or other arrangement that purports to provide this insurance or indemnity.
These offences attract penalties of 300 penalty units for a natural person and 1500 penalty units for a body corporate, which currently equate to $54,522 and $272,610 respectively.
Importantly, according to the explanatory memorandum, the amendments do not prohibit insurance or indemnification of costs incurred in defending a prosecution or court-ordered damages.
Increased powers for HSRs and authorised officers
The amendment Act also provides that, from the day after it receives Royal Assent, HSRs and authorised representatives of registered employee organisations will have the power to take photos and measurements, and make recordings and sketches of certain workplaces (other than during an interview).
For authorised representatives, these powers will be limited to circumstances where they have entered a workplace, under s 87 of the Act, due to reasonably suspecting a contravention of the Act or the Regulations. It will also be an offence for an authorised representative to provide these photos, measurements, recordings or sketches to another for a purpose not reasonably connected with the exercise of their powers on entry.
The author would like to thank Darcy Moffatt for her assistance in preparing this blog.