Occupational Health and Safety Legislation (Vic)

Every Australian worker is entitled to a safe working environment, as free as possible from both physical and psychological risks. The safety of employees is not only a serious matter, but it is also a legal duty of employers. Every federal, state and territory jurisdiction has implemented workplace health and safety legislation to protect the welfare of people in the workplace. In Victoria, this system is referred to as occupational health and safety (OHS), and it has some elements that distinguish it from health and safety systems in other Australian jurisdictions.

Federal legislation

At the federal level, the primary legislation protecting the health and well-being of workers is the Work Health and Safety Act 2011 (WHS Act). The WHS Act is supported by the Work Health and Safety Regulations 2011, which provides specific guidelines and requirements for various aspects of workplace safety.

Key principles underpinning the WHS Act include the employer’s duty of care to their employees, contractors, and other persons who may be affected by their work activities. Employers are required to ensure, so far as is reasonably practicable, the health and safety of workers by providing a safe work environment, adequate training and supervision, and implementing hazard identification and risk management processes. Employees also have responsibilities under this federal legislation to cooperate with their employers on matters of health and safety, and to take reasonable care of their own health and safety.

Harmonised legislation

In addition to the federal legislation, each state and territory in Australia has its own legislation that applies to workplaces within their jurisdiction. These laws are largely consistent across the country as most jurisdictions agreed to adopt the model WHS laws, although there are some variations in specific requirements and regulations depending on the region.

National companies should ensure that management training and workplace policies account for these jurisdictional differences to ensure legal compliance.  For instance, an organisation that has operations in Western Australia should note that under the state’s Work Health and Safety Act 2020, it is a notifiable incident any time a worker is medically certified as unfit to do their normal work for 10 days after an injury or illness. There is no such requirement in other harmonised jurisdictions.

Victorian system

Victoria is the only state that chose not to adopt the model WHS laws, though it imposes similar responsibilities and duties under its Occupational Health and Safety Act 2004.

One significant difference between the harmonised WHS legislation and the Victorian OHS legislation lies in the use of terminology. The harmonised legislation refers to this field as Work Health and Safety (“WHS”), while Victorian legislation calls the field Occupational Health and Safety (“OHS”). In another terminology difference, the harmonised WHS legislation uses the term “workers” to refer to individuals who are employees, contractors and subcontractors, out-workers, trainees, apprentices and volunteers. Victorian legislation refers to these individuals as “employees” and includes independent contractors in this terminology. The harmonised WHS legislation also uses the label Persons Conducting a Business or Undertaking (“PCBU”), instead of the term “employers” as appears in Victorian OHS legislation.

One of the other major differences between the harmonised WHS legislation and the Victorian OHS scheme is that the harmonised legislation is more likely to explicitly impose responsibilities on individuals and entities. However, this does not mean that similar responsibilities are not inherent in the Victoria law, only that it is not explicitly stated. For instance, the harmonised WHS legislation requires importers, manufacturers, designers and suppliers to consider the health and safety of anyone impacted by their product in the workplace. There is no such express requirement under Victorian legislation, but the same duty likely applies to these individuals and entities under Victorian OHS legislation. Similarly, under the harmonised WHS legislation, “other persons at the workplace” (such as visitors) have similar safety responsibilities as workers, a requirement that is not made explicit in the Victorian OHS legislation.

Other differences between the two schemes relate to the rights of individuals and entities. Unlike under the Victorian OHS legislation, the harmonised WHS legislation requires workers to comply with any reasonable instruction given by their PCBU. The harmonised WHS legislation also explicitly permits workers to refuse to do unsafe work if they have concerns that the work would pose an immediate or imminent threat to their safety. Victorian OHS legislation does not explicitly allow this, and instead relies on Health and Safety Representatives exercising their power to order employees to cease unsafe work.

Regulations, codes and regulators

Each Australian jurisdiction also has delegated health and safety regulations and codes of practice. For instance, the legal framework for occupational health and safety in Victoria includes the Occupation Health and Safety Regulations 2017 and SafeWork codes of practice. These codes of practice provide practical guidance for employers on compliance with specific occupational health and safety obligations.  

Work Health and Safety regulators in each state and territory are responsible for regulating and enforcing their jurisdiction’s WHS laws. These regulators, such as WorkSafe in Victoria, enforce work health and safety laws and administer workers’ compensation schemes within the state or territory. Within the Commonwealth jurisdiction, Comcare acts as the regulatory body.

The employment law team at Go To Court Lawyers can provide guidance on occupational health and safety legislation and how it applies in the specific workplace. Please contact or call 1300 636 846 today for any legal assistance.