top of page

“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 business owners, company directors, and CEOs. These are people who make significant decisions for the business. Officers may be personally liable for a health and safety breach if found guilty in a court of law. Officers may face large fines and jail time in serious instances such as if someone is killed or seriously injured.


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]


Conversely, under Victoria OHS law there are no stated and specific 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 for negligence in taking "reasonable care." 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 their 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?



References

[1] Ref Section 19 WHS Act 2011

[2] Ref Section 27 WHS ACT 2011

[3] Ref Section 144 OHS Act 2004



For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.



23rd November 2023



Copyright © 2023 Courtenell. All rights reserved.

Comments

Recent Posts
bottom of page