February, 2005   Occupational Health & Safety Act 2004 The Victorian Government undertook the first major review of our Occupational Health and Safety Act nearly 20 years after its introduction in 1985. The review was carried out by Chris Maxwell, QC, with wide consultation. The Minister for WorkSafe promised to implement as many of the recommendations as possible. The Victorian Government passed new health and safety laws in December 2004 with most of the provisions of the new Act coming into effect on July 1, 2005. The new Act delivers a number of new provisions that are to improve occupational health and safety for workers. These include stronger consultation requirements, increased protection of and training for OHS reps, the right of entry of authorised union officials to enter workplaces and new duties for designers of workplaces. These new provisions - include: 1. NEW DUTY ON DESIGNERS OF WORKPLACES The Occupational Health and Safety Act (1985) placed duties on the designers of plant and equipment, but none on the designers of workplaces - an omission that has been picked up here. The provision in the new Act sets out duties of designers of buildings or structures to be used as workplaces.   Controlling risks at their source is the most effective way to prevent work-related injury, disease and death. Poor design of buildings and structures has contributed to both deaths and injuries in the past. An example is that the design of shopping centres can mean that meatworkers have to lump meat upstairs and around corners in narrow corridors leading to serious manual handling injuries. The duty is intended to ensure that hazards and risks in the design of a workplace are eliminated or reduced at the design stage. 2. INCREASED DUTY ON EMPLOYERS TO CONSULT The Act recognises that health and safety improves when the employer consults with elected health and safety representatives. The new Act puts the employer's duty to consult up-front. There is now a separate part called 'Duty Of Employers To Consult'. This lists the circumstances in which the employer is required to consult with workers, through their elected OHS reps if they have them. The employer must consult when: ·         Identifying, assessing and controlling hazards or risks; ·         Making decisions about workplace facilities; ·         Making decisions regarding resolving OHS issues, consultation, monitoring the health of workers, and providing information and training; ·         Deciding on the membership of the OHS committee; and ·         Planning changes to the workplace, the plant, the substances or the conduct of the work. Employers will also have to consult not only with direct employees in the above circumstances, but also with independent contractors and workers who are employed through a Labour Hire firm. The Act describes how the employer must consult the reps and workers - by sharing information, by giving them a 'reasonable opportunity to express their views' and by taking those views into account.   3. INTRODUCTION OF DEPUTY REPS In recognition that there are times when an elected representative is not able to carry out his or her functions (e.g. the rep is off sick or on leave) the Act now provides for the election of deputy health and safety representatives. 4. INCREASED TRAINING FOR OHS REPS AND DEPUTIES The new Act makes it clear that the employer must allow elected reps and deputy reps to attend an initial course of training AND a refresher course at least once each year that they 'hold office'.   Under this provision, the rep has the right to choose which course to attend (as long as it is either approved or conducted by the Authority and is relevant to the work of the designated work group or the role of the rep). Remember, the AMIEU course is approved, and the most relevant to the meat industry. This must be done 'in consultation with the employer'. However if the employer either refuses to allow a rep to attend a course of his or her choice or cannot agree to the course of choice, then the rep can call on the VWA to assist. The government has clarified that the only cause for allowing an employer to refuse a particular course is if that course does not comply with either of the prerequisites.   It is important that reps be aware that they have the right to attend the course of their choice, and not allow the employer to choose the course they will attend. The provision also makes it a duty for the employer to allow the rep (or deputy) time off work and pay as if the rep were at work, and also to pay for any costs associated with the course (e.g. cost of the course and accommodation). 5. INCREASE IN PROTECTION FOR REPS AGAINST DISCRIMINATION AND 'HARM' The provisions protecting OHS reps and other workers from discrimination by the employer have been strengthened. While the previous Act attempted to provide protection, the wording of those provisions meant that it was very difficult to bring successful prosecutions against employers. The new provisions are clearer and will make it easier for WorkCover to prosecute employers who seek to harm workers or reps raising issues of concern or carrying out their functions. The new provisions cover not only an actual dismissal or 'injury' but also the threat of such action.   6. INTRODUCTION OF RIGHT OF ENTRY TO WORKPLACES FOR 'AUTHORISED REPRESENTATIVES OF EMPLOYEE ORGANISATIONS' The unions put to the Review of the Act that the new Act should provide for a right of entry for union officials into workplaces for health and safety purposes. Chris Maxwell agreed that some workers would benefit from the introduction of this right. Unions in some other states have had this right for a long time and the overwhelming evidence is that it is useful and not misused.   Under the new Act, 'authorised representatives of employee organisations' will have the right to enter a workplace if they reasonably suspect there is a contravention of the OHS legislation. Reps will be entitled to enter workplaces where workers at that workplace are eligible to be members as well as where there is a union member, or the workplace is covered by a certified agreement (EBA). The Union Official must hold a permit, and must have completed WorkSafe approved training. They will not have an enforcement role, nor will they be able to issues provisional improvement notices or direct work to cease. However, they will have the right to consult with workers, the employer or call in a WorkSafe inspector. 7. INTRODUCTION OF REVIEW OF DECISIONS Under the 1985 Act, only employers could appeal Inspectors' decisions. The new Act now sets out what could be reviewed and who can ask for a review. Initially the decisions are reviewed internally, and then can be taken to the Victorian Civil and Administration Tribunal. The decisions that may be reviewed include determinations of DWGs, decisions on PINs, Improvement and Prohibition notices, and more. Among those eligible to ask for a review are health and safety reps. 8. CHANGES TO POSSIBLE PENALTIES The new Act gives the courts more options in sentencing - as well as fines, the court can now make enforceable undertakings; 'adverse publicity orders'; order that a person (or company) carry out improvement projects; or request that the convicted person/company give a 'health and safety undertaking'. Maximum fines have been substantially increased. and there are other sentencing alternatives, there is a totally new duty under the Act which is the duty to 'not recklessly endanger persons at workplaces'. A person who recklessly engages in conduct which could put another person in danger of serious injury could receive a prison sentence of up to 5 years, or fined. This applies to serious offences and applies to anyone in a workplace - the company, the director, the employer, workers and other people.   Before the changes to the Act take effect on 1 July, the AMIEU will run information sessions in Melbourne and in the regions. Contact your Union Health and Safety Unit - Gwynnyth Evans and Paul Conway - for more information about the changes to the Act.