Australia

Occupational health & safety law Victoria

by Don Just barrister Melbourne

Administrative authority

The Victorian WorkCover Authority is established under the Accident Compensation Act to (section 19) 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 [2006] VSCA 262; AB Oxford Cold Storage v Arnott [2003] VSC 452; Yamasa Seafood v Watkins [2000] VSC 156; Davis v Grocon [1992] 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 [2000] VSC 456.

Occupational health & safety duties: introduction

The 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 (ie open to criminal proceeding into the higher courts) but the Magistrates' Court may accept summary jurisdiction: Criminal Procedure Act Sch 2 cl 20. Presentment and prosecution in the higher courts is for DPP (Vic). Others are stated to be summary, ie 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.

Most of the duties are of employers to employees. In accordance with general principles, an employer can 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 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 (general principles maintained in effect by sections 5, 145).

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 [2005] VSCA 185 and (NSW) TNT Aust v Christie [2003] NSWCA 47; WorkCover v Labour Co-operative Ltd [2002] NSWIRComm 2; Workcover (NSW) v SWR Constructors [2000] NSWIRComm 115; Drake Personnel v Workcover [1999] 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 [1998] VSC 75 or (though from civil law context) the contract of employment in Read & Read Pty v McNamara [1999] 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 [2003] 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 [2001] HCA 44, (2001) 207 CLR 21; Stevens v Brodribb Sawmilling [1986] HCA 1, (1986) 160 CLR 16. For the section 21(1) and (2) duties, the meaning of "employee" is extended, see further below.

The duties concern ensuring reasonable care is taken. This is more onerous than for employer-employee civil negligence which requires injury or harm being suffered: R v Australian Char [1995] VICSC 168, [1999] 3 VR 834. Many of the duties in the 2004 Act though are qualified by a "reasonably practicable" element, defined in section 20. In the 1985 Act the corresponding idea was "practicable" which was defined in words not precisely the same as in the 2004 Act. The likelihood is that courts will regard the differences as merely stylistic or as emphasis for the interpretation of meaning already reached by the courts. Proof is for the prosecution: Chugg v Pacific Dunlop Ltd [1990] HCA 41, (1990) 170 CLR 249, see also (NSW) WorkCover v Kellogg [1999] NSWIRComm 45; Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, (2001) CLR 304. This is objective (R v Australian Char [1995] VICSC 168, [1999] 3 VR 834 para 45) ie turns on reasonableness, not state of mind of the defendant. 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 practicable: Hamersley Iron v Robertson [1998] WASCA 272. 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) (1992) 5 VIR 199, by R v Commercial Industrial Construction Group [2006] VSCA 181, R v Powercor (Australia) Ltd [2005] 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..."

Occupational Health & Safety Act duties: sections 21, 22

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.

The 1985 Act had a section 21(1) and (2) differing at a few points in semantics and in that for "reasonably practicable" there was "practicable". Cases under the former section 21 continue to be important. Thus the section is not concerned with a failure to keep in continuous existence the environment stipulated by sub-section (1). Each paragraph of sub-section (2) creates separate duties and offences. 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 [1995] VICSC 168, [1999] 3 VR 834 paras 14, 37-38; also Chugg v Pacific Dunlop Ltd [1988] 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 [2001] 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 ie 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: R v ACR Roofing [2004] 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 [1998] 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 [2009] VSCA 212. 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 of avoiding the unsafeness or the risk to health.

Reasonable practicability is further defined in s.5 and cases, see above. There is no requirement the accused have knowledge of the reasonably practicable means; the meaning is objective ie that there existed such - cf R v Australian Char paras 48-51. It is clear from Australian Char that its meaning does not erode from the need to protect the employee acting inadvertently, or without taking reasonable care for his or her own safety. It has been suggested there is some overlap here with element (ii); if the happening of an event is reasonably foreseeable then it is practicable to make provision against it: cf (NSW) Kellogg v WorkCover [1999] NSWIRComm 45. On strict analysis, this is not so: practicability depends upon its defined meaning which does not refer to reasonable foreseeability. In reality though, it is difficult to imagine the two ideas producing different outcomes. See further Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, (2001) CLR 304.

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 [2003] VSC 452.

With sub-section (e) there is no reasonable practicability element specified.

Section 22

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 [1998] 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 for a comparable UK provision, R v Associated Octel Ltd, House of Lords [1996] 1 WLR 1543; R v Nelson Group [1998] EWCA 3372 and (NSW), Mainbrace Constructions v WorkCover [2000] NSWIRComm 239. The former section had some attention in R v Powercor (Australia) Ltd [2005] VSCA 163 and Esso Ruling 14 [2001] VSC 296.

Duties of employees while at work: section 25; R v Irvine [2009] 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 [2001] 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

This is created by section 32. There was no counterpart under the 1985 Act. It concerns alleged elements for which Crimes Act section 23 necessarily would also apply. Unlike that offence however, it is summary, ie must be heard in the Magistrates' Court.

Victoria Occupational Health & Safety Regulations

Improvement and prohibition notices under Occupational Health & Safety Act

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 entitlement to internal review by the Authority and then review by the Victorian Civil and Administrative Tribunal: sections 128, 129. Though under other legislation, see Whittaker v Delmina Pty Ltd [1998] VSC 175; ANR v Rutjens [1996] IRCommA 797.

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, attribution issues ie about whose acts or omissions or state of mind are to count as those of the corporation are thereby avoided, as for instance in R v Commercial Industrial Construction Group [2006] VSCA 181. Such issues however arise with offences defined to require some state of mind, such as with criminal endangerment in the workplace or offences from the general criminal law such as manslaughter and negligently causing serious injury. The rule of attribution depends on the offence and on the facts of the case: DPP Ref No 1 of 1996 [1998] 3 VR 352. Generally, "criminal liability can be sheeted home to a corporation only upon proof that what is done or omitted to be done and the mental state with which the act was done or the omission was made are within the scope of the authority conferred by the corporation upon the person or persons on whose act, omission or state of mind the corporation's criminal liability is said to depend": EPA v Caltex Refining [1993] HCA 74, (1993) CLR 477 per Mason CJ and Toohey J.

Summary proceedings against corporations are dealt with by Magistrates' Court Act section 48.

For liability of officers etc, see 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 [2003] VSC 452.

Partnerships, unincorporated bodies and associations: section 145.

Sentencing for 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: Magistrates' Court Act Sch 4 cl 53 and for bodies corporate: Sentencing Act section 113D.

The Sentencing Act applies, including the provisions for compensating pain and suffering: Sentencing Act s.85A-85M; DPP v Energy Brix [2006] VSCA 116. See further DPP v Yarra Water [2006] VSCA 279; R v Commercial Industrial Construction Group [2006] VSCA 181; DPP v Amcor Packaging [2005] VSCA 219, (2005) 11 VR 557; DPP v Esso above and www.justd.com/sent.htm.

There is also provision for adverse publicity orders (section 135) and required improvement projects (section 137).

page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

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latest 23 January 2010

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