“Saved by the Law”
Weekly WHS Article 23rd November 2023
The Model Health and Safety Laws were introduced into Australia in 2011. All Australian states and territories have adopted the Model laws as of 2023 with the exception of Victoria. Given the choice of moving to the Model laws or continuing with their own legislation, Victoria chose to remain with their existing health and safety laws which have been in place since 2004. WorkSafe Victoria continues to this day enforcing the requirements of the OHS Act (2004) and OHS Regulations (2017).
These laws, no matter what we call them, are there to protect the health and wellbeing of persons in a workplace. All health and safety laws supported by risk management with reasonable and practical strategies exist to eliminate or minimise risks to life and limb in the workplace. The “Person Conducting a Business or Undertaking” in WHS legislation or “Employer” in Victorian legislation has this ultimate responsibility. [1]
Model WHS Laws and Victoria OHS Laws
One of the major differences between the Model WHS Laws and Victorian OHS Law are the obligations placed on the officers of a business.
Officers are directors, CEOs, and other executives who can make significant decisions for the business. They are the persons who may be personally responsible for a breach if found guilty in a court of law. Officers may face large fines and jail time in serious instances.
Under the Model WHS laws, Officers of a business or organisations have specific duties to perform in ensuring the WHS management system is operational and successful. These are listed in Section 27 of the NSW WHS Act. Officers are expected to proactively exercise “due diligence” in these duties. [2]
Under Victoria OHS law there are no stated and defined actions for officers to demonstrate an equivalence of “due diligence” under the Model Act. There is only a passive obligation, and violations are heard under Civil law. This means that in Victoria, officers can only be charged for “failures,” “oversights,” and “negligence” of duty, whereas under WHS law, officers can be charged for noncompliance with specific duties stated in the WHS Act. [3]
Outcomes
So how do these two differing approaches regarding accountability and responsibility at the highest levels translate in the real world?
The 2022 calendar year saw a total of 115 prosecutions against the Victorian health and safety legislation, whilst in NSW the number of prosecutions was 59.
For Victoria this was a 20% increase from the previous year.
Comparing 2021 to 2020, Victoria saw a 54% increase in prosecutions. To be fair, during COVID the Victorian government’s lockdown penalties could be seen to have blurred the lines between COVID as a secondary risk to pre-existing health conditions and COVID as a “risk” under ordinary conditions of workplace health and safety.
Within Victoria:
96 prosecutions were recorded against the Occupational Health and Safety Act 2004 only.
18 prosecutions involved both the Occupational Health and Safety Act 2004 and the Occupational Health and Safety Regulations 2017
1 prosecution involved the Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2017; and Dangerous Goods Act 1985 [4]
Within NSW up to May 2022:
51 prosecutions were recorded against the WHS Act 2011 only.
5 prosecutions were recorded against the WHS Regulation 2017 only.
3 prosecutions involved both the WHS Act 2011 and the WHS Regulation 2017 [5]
COVID notwithstanding, NSW prosecutions have reduced over the last two calendar years.
Coincidentally, SafeWork NSW has been diligently focused on several health and safety campaigns in the last few years including emphasis on the due diligence actions required of officers under Section 27 of the NSW WHS Act.
Could this be saying something about having specific duties for officers in regard to compliance with health and safety law?
If you are interested in reviewing and validating what the officers in your business are doing to exercise due diligence in ensuring your business is in compliance with WHS law, you may find our new WHS Due Diligence for Officers course a useful tool. It’s a short course focused entirely on the specifics in the WHS Act as it applies to officers. Feel free to contact the team here at Courtenell on 02 9552 2066.
We have a limited time Christmas introductory offer on this new service. Call us now.
References
[1] Ref Section 19 WHS Act 2011
[2] Ref Section 27 WHS ACT 2011
[3] Ref Section 144 OHS Act 2004
[4] WorkSafe VIC prosecutions data: https://www.worksafe.vic.gov.au/prosecution-result-summaries-enforceable-undertakings
[5] SafeWork NSW prosecutions data: https://www.safework.nsw.gov.au/compliance-and-prosecutions/prosecutions
23rd November 2023
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