Occ. Health & Safety Act duties: sections 23-31
Occ. Health & Safety Act: reckless endangerment
Occ. Health & Safety Regulations
Improvement & prohibition notices
Health & safety reps etc, provisional notices
Corporations etc & their officers
Sentencing breach of duty offences
Occupational Health & Safety Act 2004 (Victoria) AustLII
> Administrative authority
The reasonable practicability element
Worksafe Victoria is established under the Accident Compensation Act (section 19), by formal name Victorian Work Cover Authority, to assist employers and workers in achieving healthy and safe working environments, administer the Occupational Health and Safety Act, manage the accident compensation scheme, promote the effective occupational rehabilitation of injured workers and their early return to work, encourage the provision of suitable employment opportunities to workers who have been injured and ensure that appropriate compensation is paid.
One function is enforcement and prosecution. Prosecutions are to be brought by the Authority or by an inspector appointed and authorised pursuant to section 130: cases on similar provisions under 1985 Act are Schierholter v County Court  VSCA 262; AB Oxford Cold Storage v Arnott  VSC 452; Yamasa Seafood v Watkins  VSC 156; Davis v Grocon  VicRp 92, 2 VR 647. Powers of inspectors are set out in sections 98-101, similar provisions under 1985 Act were considered in Nelson Bros Funeral Services v VWA  VSC 456.
> Occupational health & safety duties: introduction
Occupational Health and Safety Act and various regulations define criminal law duties for bodies corporate, natural persons and some other entities. Many are stated to be indictable (i.e. open to criminal proceeding into the higher courts) but the Magistrates' Court may accept summary jurisdiction: Criminal Procedure Act Sch 2 cl 20. Indictment and prosecution in the higher courts is for DPP (Vic). Others are stated to be summary, i.e. must be heard in Magistrates' Court. There have been cases in which the courts consider the meaning of the provisions of the Act, and earlier cases which considered the previous (1985) Act. There are cases from other states of Australia and the United Kingdom, where there is comparable legislation, which are persuasive.
Issues as to necessary content and particularisation for charges are general to criminal law but have been disproportionally common with occupational health and safety offences: e.g. Baiada v VWA  VSCA 344; see further at justd.com/notes1.
Most of the duties are of employers to employees. In accordance with general principles, an employer is to be a legal person, typically a corporation existing at law or a natural person. Government and semi-government corporations are also included as is the Crown (sections 6, 146, 147, 148). A "joint venture" is not a legal person: Linfox Resources and other v R  VSCA 319. A mere business name is not a legal person. Partnerships and unincorporated associations are not legal persons, though normally it will be natural persons or corporations which comprise them and are legal persons who may be employers (general principles maintained in effect by sections 5, 145).
An "employer" means a person who employs one or more other persons under contracts of employment or contracts of training:: section 5; VWA v Horsham Rural City Council  VSC 404.
An "employee" means a person employed under a contract of employment or under a contract of training: section 5. Often the contract of employment will be for engagement in the activities of the employer though for instance with an employer the function of which is simply to hire out labour, it will be for engagement in the activities of another entity as for example (though some primarily consider civil law context): Hazeldene's Chicken Farm v VWA  VSCA 185 and (NSW) TNT Aust v Christie  NSWCA 47; WorkCover v Labour Co-operative Ltd  NSWIRComm 2; Workcover (NSW) v SWR Constructors  NSWIRComm 115; Drake Personnel v Workcover  NSWIRComm 341. The legal persons party to either side of any contract can be multiple legal persons acting jointly, and it is thus with employers to a contract of employment, as for example with the contract between the independent contractors and their employee mentioned in Stratton v Van Driel Ltd  VSC 75 or (though from civil law context) the contract of employment in Read & Read Pty v McNamara  VSC 101; often such joint contractors will be partners in the civil law sense but in principle joinder does not depend on this; nor does one partner within a partnership of the civil law sense being an employer necessarily make so another partner, illustrated by facts in NSW case Piggott v CSR Emoleum  NSWIRComm 282.
The idea of "contract of employment" draws some of its meaning from the common law distinction between employees and independent contractors. The former have "contract of service" and the latter "contract for services". A prominent factor in determining whether a person is an employee rather than independent contractor is whether there is a right to control and supervise the performance of the services by the person for whom they are provided; other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee: Hollis v Vabu Pty Ltd HCA 44, (2001) 207 CLR 21; Stevens v Brodribb Sawmilling  HCA 1, (1986) 160 CLR 16. For the section 21(1) and (2) duties, the meaning of "employee" is extended, see further below.
Actual injury or harm is not a required element of the offences; the duties may be breached even if no actual injury or harm has been suffered: DPP v Vibro-Pile (Aust) Pty Ltd  VSCA 55, (2016) 49 VR 676; R v Australian Char  VICSC 168,  3 VR 834. A consequence of actual injury or harm might manifest or demonstrate for sentencing purposes the degree of seriousness of the threat to health or safety of the breach of duty but the sentence is according to the breach not according to the consequence if any of the breach: DPP v Frewstal Pty Ltd  VSCA 266.
Many of the duties are qualified by a "reasonably practicable" element, defined thus in section 20.
(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person —
(a) to eliminate risks to health and safety so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
Proof of the reasonable practicality element is for the prosecution: Chugg v Pacific Dunlop Ltd  HCA 41, (1990) 170 CLR 249, see also (NSW) WorkCover v Kellogg  NSWIRComm 45; Slivak v Lurgi (Australia) Pty Ltd  HCA 6, (2001) CLR 304. This is objective i.e. turns on reasonableness, not state of mind of the defendant: DPP v Vibro-Pile (Aust) Pty Ltd  VSCA 55, (2016) 49 VR 676; R v Australian Char  VICSC 168,  3 VR 834. As with employer-employee civil negligence (Kondis v State Transport Authority (1984) 154 CLR 672) the duties are non-delegable, although in appropriate circumstances reliance on another can be method of acting so far as is reasonably practicable: Baiada Poultry Pty Ltd v R  VSCA 23. Though it must be taken as an elucidation of the statutory meaning of "practicability" rather than substitution for it, the following passage from Holmes v Spence (Harper J)  VicSC 227, (1992) 5 VIR 199, by R v Commercial Industrial Construction Group  VSCA 181, R v Powercor (Australia) Ltd  VSCA 163 and R v Australian Char, is well accepted:
"The act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will assist the attainment of this end by looking at the facts of each case as practical people would look at them, not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them. Remembering also that, in the main, such a responsibility can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever present reality..."
Engagement of an independent contractor may in a particular case leave the employer without a reasonably practicable means of the employer avoiding the unsafeness or risk to health: Baiada Poultry Pty Ltd v R  VSCA 23.
> Occupational Health & Safety Act duties: sections 21, 22
The reasonable practicability element
Some of the duties are defined thus by Occupational Health and Safety Act
21. Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person; 9000 penalty units for a body corporate.
(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following -
(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c) maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
Each paragraph of sub-section (2) creates separate duties and offences. The section is not concerned with a failure to keep in continuous existence the environment stipulated by sub-section (1). For an offence, it is necessary to prove some identifiable act or omission being a specific breach of sub-section (2). See R v Australian Char  VICSC 168,  3 VR 834 paras 14, 37-38; also Chugg v Pacific Dunlop Ltd  VicRp 88,  VR 411. Whether any paragraph of sub-section (2) within itself creates separate offences may not be entirely settled, but it seems at least (e) does -Esso Ruling 5  VSC 103 - and also probably (b): difficult issues of double jeopardy and of duplicity may arise, see further Notes criminal law & process 1. There is under Occupational Health and Safety Act section 53 some prosecution opportunity for duplicitous charge relating to the same factual circumstances and provision but subject to unbounded judicial discretion to disallow.
Section 21 sub-section 2 (a)
Actual injury, fatality or health damage is not a necessary element though usually it will be evidence of the lack of safety or the risks to health: R v Australian Char paras 56-57. The elements each of which needs to be proved are as follows.
(i) The accused an employer.
(ii) Plant or systems of work for employees unsafe or risk to health.
There is no requirement the accused have intention or knowledge; the meaning is objective i.e. that there was such a position and a reasonable employer, placed in the same position as the accused, would have seen it - R v Australian Char paras 48-51. A safe system of work is one that is safe for an average worker taking reasonable care for his or her own safety. It is not a system that is safe only for persons of superior skill whose attention never wanders: an employer is bound to have regard to the risk that the employee will act inadvertently, or without taking reasonable care for his or her own safety: cf Australian Char para 61.
In addition to the ordinary meaning (see above), "employee" includes an independent contractor engaged by an employer and any employees of the independent contractor: section 21(3)(a). This is an extension of direct liability based on deeming, not a vicarious liability. With employees of an independent contractor, it thus does not depend upon the independent contractor also being liable. The concept of "engagement" is not limited to privity of contract with the employer; it includes the engagement of a contractor under a contract with the employer and also the engagement of a contractor under a sub-contract with some other party: Baiada Poultry Pty Ltd v R  VSCA 23; R v ACR Roofing  VSCA 215, (2004) 11 VR 187. Typically the independent contractor will have been taken on by the employer to perform at least a portion of the employer's activity though it may be an entity which simply has hired out labour. As to engaged independent contractors and their employees, by section 21(3)(b) the duties extend only in relation to matters where the employer (i) has control or (ii) would have had control but for any agreement between the employer and the independent contractor to the contrary. Section 21 (3)(b) seems to confine the duties to persons having some analogy to true employees and not apply them for example to persons remote from the employer's kinds of activity. According to Stratton v Van Driel Ltd  VSC 75, there is section 21(3)(b) "control" at least where the employer has a legal right to direct that a person not perform the work in a particular way or where the employer sees it as within its area of authority to give such a direction and the worker would accept it and act upon it. It matters not in either situation that other persons might also have control over the same activity. This however is not an exhaustive explanation of "control" and the term is to be construed generously. For an example of the kind of directions on this point to be given at a jury trial, see R v H Waterhouse & Son Pty Ltd  VSCA 121. As to section 21(3)(b)(ii), an example postulated in Stratton v Van Driel is that it would exclude from liability a building contractor letting an air-conditioning contract to an independent contractor who undertook the manufacture off-site and there breached a duty to an employee. However, the position may be otherwise if the injury was suffered on the building site in the course of the installation of the plant where, under the terms of the sub-contract or the practice of the site or by some rule of law, safety was the responsibility of the contractor.
(iii) There existing a reasonably practicable means for the employer to avoid the unsafeness or the risk to health.
See Introduction above.
Section 21 sub-sections (2) (b), (c), (d) and (e)
These offences require an element of "employee" as for the sub-section 2 (a) offence. The section 21(3)(a) extension applies.
With sub-section (d), "facilities" encompasses for example structures or buildings, the existence of a first aid centre to administer to injured employees, and a protocol or a system to enable the facilitation of the provision of medical service to injured workers and/or the provision of medical or first aid assistance to assess their condition: AB Oxford Cold Storage v Arnott  VSC 452.
With sub-section (e) there is no reasonable practicability element: DPP v Vibro-Pile (Aust) Pty Ltd  VSCA 55, (2016) 49 VR 676; Downer EDI Works Pty Ltd v R  VSCA 27.
Some duties of employers to monitor health and conditions etc are defined thus by section 22.
> Occupational Health & Safety Act duties: sections 23-31
Section 23 defines for employers duties not to expose to risk persons other than employees. Section 24 likewise imposes duties on self-employed persons. Under the 1985 Act, section 22 was equivalent: it applied both to employers and self-employed persons. Whittaker v Delmina Pty Ltd  VSC 175 established as follows. The expression "exposed to risks" means exposure to a potential risk and whether or not persons so exposed are at the location of the relevant undertaking and the section is not restricted to risks at the workplace in relation to the health and safety of persons while at the workplace. "Undertaking" must take its meaning from the context in which it is used; it means the business or enterprise of the employer. "Conduct" refers to the activity or what is done in the course of carrying on the business or enterprise. See also VWA v Horsham Rural City Council  VSC 404 and for a comparable UK provision, R v Associated Octel Ltd, House of Lords  1 WLR 1543; R v Nelson Group  EWCA 3372 and (NSW), Mainbrace Constructions v WorkCover  NSWIRComm 239. The former section had some attention in R v Powercor (Australia) Ltd  VSCA 163 and Esso Ruling 14  VSC 296.
Duties of employees while at work: section 25; R v Irvine  VSCA 239.
Section 26 defines duties for employers who manage or control a workplace concerning the workplace and means of entering and leaving. Under the 1985 Act, section 23 was nearest equivalent.
Sections 27, 29, 30 and 31 define duties on persons who design, manufacture import or supply plant for use at a workplace. The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected: Slivak v Lurgi (Australia) Pty Ltd  HCA 6, (2001) CLR 304 (corresponding SA provision).
Duties of designers of buildings or structures: section 28.
> Occupational Health & Safety Act: reckless endangerment in workplace
Section 32. Considered in Orbit Drilling Pty Ltd v R  VSCA 82.
> Victoria Occupational Health & Safety Regulations
By Occupational Health and Safety Act s. 152, if (a) the regulations or a compliance code make provision for or with respect to a duty or obligation imposed by the Act or the regulations; and (b) a person complies with the regulations or compliance code to the extent that it makes that provision - the person is, for the purposes of the Act and the regulations, taken to have complied with the Act or the regulations in relation to that duty or obligation.
> Improvement and prohibition notices
Improvement Notices (section 111) may issue where an inspector reasonably believes that a person is contravening a provision of the Act or the regulations, or has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated. The notice requires the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention. Failure to comply is an offence.
Prohibition Notices (section 112) may issue where an inspector reasonably believes that at an activity is occurring at a workplace that involves or will involve an immediate risk to the health or safety of a person; or an activity may occur at a workplace that, if it occurs, will involve an immediate risk to the health or safety of a person. The inspector may issue to the person who has or may be reasonably presumed to have control over the activity a prohibition notice prohibiting the carrying on of the activity until an inspector certifies in writing that the matters which give or will give rise to the risk are remedied. Failure to comply is an offence.
There is entitlement to internal review by the Authority and then review by the Victorian Civil and Administrative Tribunal: sections 128, 129; Phil Fehring Engineering v VWA  VCAT 1863; Warrnambool CC v VWA  VCAT 947.
> Health and safety representatives; provisional improvement and prohibition notices
Occupational Health and Safety Act sections 58-78 deal in detail with the election and powers of employee health and safety representatives and committees, the obligations of employers concerning them and prohibition of discrimination.
The discrimination offence under s 76(2) is committed if an employer (or prospective employer): (a) engages in conduct falling within sub-s (1) and does so for one of the reasons set out in sub-s (2); and (b) that reason is the dominant reason for engaging in that conduct. The gist of the offence is that an employer acts, or threatens to act, adversely to the interests of an employee because that employee has raised ‘an issue or concern about health or safety’. It is not necessary to prove either the state of mind of the employee who raised the ‘issue or concern’ or that he/she had reasonable grounds for raising it; what must be proved is that the employee ‘raised an issue or concern about health or safety': DPP v Acme Storage Pty Ltd (a Pseudonym)  VSCA 90.
Health and safety representatives have powers to issue provisional improvement and prohibition notices. There is entitlement to internal review by the Authority and then review by the Victorian Civil and Administrative Tribunal: sections 128, 129; The Australian Workers Union v VWA  VCAT 1385; Pham v VWA  VCAT 1767.
> Corporations etc and their officers
Generally the Occupational Health and Safety Act imposes duties on employers as to employees, subject to reasonable practicability. With corporations who are employers, this manner of definition avoids attribution issues i.e. the need to have natural persons whose acts or omissions or state of mind are to count as those of the corporation, in contrast to with Crimes Act offences such as manslaughter or negligently cause serious injury: R v Commercial Industrial Construction Group  VSCA 181; (2006) 14 VR 321.
Summary procedure for corporations is dealt with by Criminal Procedure Act s.334 and other provisions.
For liability of officers etc, see Occupational Health and Safety Act sections 143, 144.
As held for the 1985 Act, it probably remains so that for the prosecution against an officer to succeed, it needs to be established that the officer was aware of the essential facts constituting the offence by the corporation and agreed or consented to the offence being committed, consent being, as defined by Stroud's Judicial Dictionary, "an act of reason, accompanied with deliberation, the mind weighing, as in balance, the good and evil on each side": AB Oxford Cold Storage v Arnott  VSC 452.
Partnerships, unincorporated bodies and associations: section 145.
> Sentencing breach of duty offences
Occupational Health and Safety Act provides the maximum penalty for each offence within the particular section concerned. For the maxima within Magistrates' Court jurisdiction: Sentencing Act sections 112A-113D.
The Sentencing Act applies, including the provisions for compensating pain and suffering: Sentencing Act s.85A-85M; DPP v Energy Brix  VSCA 116. See further DPP v Yarra Water  VSCA 279; R v Commercial Industrial Construction Group  VSCA 181, (2006) 14 VR 321; DPP v Amcor Packaging  VSCA 219, (2005) 11 VR 557; DPP v Esso  VSC 263 and justd.com/sent.
There is also provision for adverse publicity orders (section 135) and required improvement projects (section 137).
Importance of deterrence as a sentencing consideration: DPP v Coates Hire Operations Pty Ltd  VSCA 131.
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Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia
© 1998-2018 Don Just
latest 12 June 2018
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