FAQ

FAQ OHS Act 2004 This FAQ provides a summary of key differences between the old and new OHS Acts. The FAQ is not intended as an alternative to accessing the Act itself. Links to sections of the Act and other supporting materials are indicated throughout the FAQ. The OHS Act can be downloaded via http://www.worksafe.vic.gov.au/wps/wcm/connect/WorkSafe The new Occupational Health and Safety (OHS) Act 2004 - What it means for schools and other DoE workplaces Victoria has a new Occupational Health and Safety Act. The changes will have significant impacts on schools and other DoE workplaces. This FAQ answers key questions about these impacts and how principals and managers might prepare for the changes. Why have an OHS Act? The OHS Act has been drafted in recognition of the importance of health and safety in the workplace and that employees, other persons at work and members of the public should be given the highest level of protection against risks to their health and safety so far as reasonably practicable. What’s new in the OHS Act? The Act itself maintains the key elements of the old Act – duties of employers and employees, employee representation, issue resolution and the role of inspectors. The major changes to the Act involve:  Recognition of psychological health as a health and safety issue  Greater focus on protecting students and visitors  How and when employees should be consulted  The role of health and safety representatives (HSRs)  The rights of authorised Union representatives to enter a workplace  Liability of senior officers for breaches of the Act  Penalties for breaches of the Act  Duties of designers, manufacturers and suppliers  The role and powers of WorkSafe inspectors. In establishing the new OHS Act, Cabinet also committed to transforming WorkSafe into a more transparent organisation responsive to the needs of schools and other workplaces. Each of these changes is discussed in more detail in the following questions. When will the changes come into effect? The OHS Act was passed in December 2004 and most of the provisions of the Act come into effect on July 1st 2005. How is psychological health addressed in the OHS Act and what impact will this have on schools and other DoE workplaces? Psychological health was covered implicitly in the previous OHS Act under the general references to health and welfare of employees. In the new Act ‘health’ is specifically defined to include ‘psychological health’. The inclusion of Section 5 psychological health is in recognition that the Act covers these risks. The new Act simply reaffirms that for schools and other DoE workplaces psychological health of staff must be considered an integral part of effective health and safety management. See DoE web pages on health and wellbeing for further information on supporting the psychological health of staff - eg. bullying, occupational violence, stress and morale http://www.eduweb.vic.gov.au/hrweb/ohs/health/default.htm How does the Act apply to the health and safety of students and members of the public? The protection of students and visitors to the workplace was covered under Section 22 in the previous Act. The new Act reaffirms and strengthens this protection. Students and visitors to schools and other DoE workplaces are covered as ‘persons other than employees’ in the new Act. The objects of the Act provide the same status of protection to ‘other persons at work’ as is provided to employees. The objects of the Act are (a) to secure the health, safety and welfare of employees and other persons at work; (b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and (c) to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed Section 2 persons. DoE must ensure, so far as is reasonably practicable, that students and visitors are not exposed to risks to their health or safety arising from the conduct of the workplace or operation of the school. Principals are delegated responsibility for managing occupational health and safety in schools. When should employees be consulted? The approach taken to employee consultation on health and safety matters represents a major shift from the old OHS Act. The new Act requires employers to consult with employees, so far as is reasonably practicable, on matters that directly affect them. These matters may include  Identifying, assessing or controlling hazards or risks under the employer’s control,    Making decisions about facilities which affect employee welfare Procedures for resolving OHS issues, monitoring employee health and workplace conditions or providing information and training. It should be noted that the consultation provisions apply to decisions or actions at the school or workplace level as well as at the regional or statewide levels. Section 35 How should employees be consulted? The employers must  Share information with employees  Give employees reasonable opportunity to share their views  Involve the Health and Safety Representative whether or not employees are involved. The employer can however use alternative consultation procedures to those outlined in the Act so long as they are agreed by employees. The consultation provisions will apply after 1 Jan 2006 . (In the interim period before 1 Jan 2006, the consultation requirements specified in the old Act will continue to apply.) Section 36 What is the role of the Health and Safety Representative (HSR)? The role of the HSR is essentially the same as under the old OHS Act. HSRs conduct workplace inspections, may accompany a WorkSafe inspector on an inspection, request the formation of an OHS Committee, be present at an interview relevant to OHS matters, gain access to information on hazards in the workplace), and issue provisional improvement notices. Sections 56, 60 and 67 The Employer must permit an HSR to take time to undertake their functions and attend approved OHS training. The Act includes a new requirement to permit HSRs to attend ‘refresher’ training at least once in each year after initial training. The Act provides for the election of deputy health and safety representatives who may perform the role of the HSR when he/she is not able because of absence or any other reason. Sections 57 How should health and safety issues be resolved? If an issue concerning health or safety arises at a school or other workplace — (a) the principal/manager or management nominee; and (b) the employees affected by the issue or the health and safety representative for that group— must attempt to resolve the issue in accordance with the relevant agreed procedure. See DoE’s OHS Guidelines for more information on issue resolution at http://www.eduweb.vic.gov.au/edulibrary/public/ohs/ohsguide-4.pdf Note: If the issue is not resolved within a reasonable time, any of the parties attempting to resolve it may ask WorkSafe to arrange for an inspector to attend at the workplace to enquire into the issue. Sections 73 Under what circumstances are authorised Union representatives permitted to enter schools and other DoE workplaces? The new Act enables authorised representatives (ARs) of registered employee organisations under certain circumstances to enter a school or other DoE workplace where they reasonably suspect that a contravention of the Act has occurred. A member of the committee of management of a registered employee organisation, or of a branch of such an organisation, may apply to the Magistrate’s Court for an Entry Permit. If the AR reasonably believes that a serious and immediate threat to employees exists, the AR may warn employees of the threat. If an issue between the AR and the principal or manager arises during the visit, the AR or the principal/manager may request WorkSafe to send an inspector. There are offences under the Act for abuse by ARs and for obstruction of ARs. Part 8 What is a body corporate? The ‘body corporate’ includes a body corporate of the Crown. This means Public Sector Agencies, Departments and Statutory Authorities are covered. A body corporate may also include School Councils. The body corporate is an important concept in the OHS Act as it helps to clarify how DoE, a Statutory Authority or a School Council are accountable and liable under the Act. Who is liable for prosecution for breaches of the OHS Act? In most cases, the DoE as a corporate body will be liable for breaches of the Act. However, a person who, without lawful excuse recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence and may be liable to imprisonment. If a breach of the Act is attributable to a Senior Officer of the ‘body corporate’ failing to take reasonable care then the Officer is liable for prosecution. Within DoE, the Officer liability provisions apply to the Secretary, Deputy Secretaries and other senior officers because they make or participate in the making of decisions that affect the whole or a substantial part of DoE and may have the capacity to affect significantly DoE’s financial standing. In determining whether an offence has been committed, regard must be had to what the officer knew about the matter and the ability of the officer to make decisions about the matter and whether the contravention is attributable to an act or omission of any other person. Section 32 Section 144 If School Councils are covered by the liability provisions of the Act, who on the School Council is liable for prosecution? School Council members including the School Council President are not liable for prosecution because they are working in a voluntary capacity and volunteers are specifically exempted from prosecution under the officer liability provisions. Section 5 Section 144(5) Are school principals liable for prosecution for breaches of the Act as senior officers? WorkSafe has provided advice in its Officer Liability Guideline (which has been approved by Cabinet) that school principals are not liable as Officers either in their role as DoE employees or in their Executive Officer role to School Council. What are the penalties for breaches of the Act? The maximum financial penalties for breaches of the general duty provisions of the old Act were $256,250 for a first offender corporation and $51,250 for a first offender individual. The new maximum penalty levels for a breach of the general safety duties are $922,500 (9000 penalty units) for corporations and $184,500 (1800 penalty units) for individuals. The 5 year maximum custodial sentence remains unchanged from the old Act but will apply to first time offenders in cases of high-level culpability (e.g. Where the person knew that the contravention would endanger the safety of a person). What are the duties of designers, manufacturers and suppliers of plant under the OHS Act? As in the old Act, there are specific duties for the designers, manufacturers and suppliers of plant. In summary they must ensure plant, so far as is reasonably practicable, is safe and without risks to health if it is used for its intended purpose. Information on the plant must be provided covering the purposes of the plant; any test information available regarding the safety or health risks of the plant and any conditions necessary for the safe operation of the plant. "Plant" includes Sections 27, (a) any machinery, equipment, appliance, implement and tool; and (b) any component of any of those things; and (c) anything fitted, connected or related to any of those things; Principals and managers can utilise the plant provisions in the Act to support ‘buy safe’ purchasing policies. What about architects and other designers of buildings or structures? Architects and other building designers must ensure, so far as is reasonably practicable, that the structure is designed to be safe and without risks to the health of persons (including students) using it at a workplace for a purpose for which it was designed. This provision comes into effect after 1 July 2006. Sections 27, 28, 29 and 30 Principals have responsibilities in liaising with architects during the design and building of works for the school. The new building design provisions can be used by principals to assist in ensuring health and safety requirements are adequately accommodated. What powers do WorkSafe inspectors have under the OHS Act? WorkSafe inspectors have powers to:  enter a school or other DoE workplace  require documents to be made available  take workplace/environment samples if required for analysis  apply for a search warrant from a Magistrate  may issue improvement and prohibition notices including prohibiting a specified work activity or give a direction where there is an immediate danger to health or safety of a person  may issue a non-disturbance notice (to ensure evidence in the workplace is not destroyed)  may demand a name and address of a person who is believed to have Sections 99, 100, 101, 111, committed an offence or can help with an investigation of an indictable 112, 113, 119 offence. Inspectors must produce personal identification, and must inform the person suspected of a breach that he or she may refuse or fail to answer any question if answering the question would tend to incriminate him or her. Can inspector’s decisions and other decisions made under the Act be appealed? Sections 99, Yes. There is a two level process available to persons eligible to appeal 128, 129 decisions made under the Act:  an internal review - for inspector decisions  a review process through the Victorian Civil and Administrative Tribunal for decisions made by VWA, including internal review decisions. How will WorkSafe change to support the objectives of the OHS Act? The State Government has agreed to a number of reforms that are intended to make WorkSafe a more constructive, transparent, accountable and effective regulator able to provide schools and other DoE workplaces with the advice and assistance they need to make their workplace safer and healthier. As part of this transformation, WorkSafe will develop guidance material to support healthy and safe workplaces. The new Act provides for clearer processes to govern inspections, notices, investigations and prosecutions. An improved process has been established to enable the review and appeal of decisions made by the Authority. There is provision for inspectors to work more in an advisory capacity regarding how to comply with the Act. DoE will have opportunities through WorkSafe’s Education Stakeholders Forum to influence and support the transformation of WorkSafe so that WorkSafe education initiatives and DoE’s Health Safety and Wellbeing Improvement Strategy are better aligned. See http://www.worksafe.vic.gov.au/wps/wcm/resources/file/ebcc2f435d018d0/ohs2004actguide.pdf Where can I get more information on the OHS Act and the changes? See WorkSafe web site http://www.worksafe.vic.gov.au/wps/wcm/connect/WorkSafe/Home/Forms%20and%20Publicati ons/Publications/import_Occupational%20Health%20and%20Safety%20Act%202004%20Over view also the Noel Arnold and Associates web site http://www.noel-arnold.com.au/content/risk_reviews/riskreview_article.php?relevant_id=238 and Noel Arnold and Associates’ Education team can be contacted on 98908811. DoE Employee Health Branch Contact Paul O’Halloran on 96373946