Occupational Health and Safety Legislative Changes

Work Health and Safety Laws (WHS) safeguard workers’ rights. They comprise the model WHS Act, the WHS Regulations, and the Code of Practice.

Some recent Victorian Legislative Changes (OHS) that you should be aware of:

1. Victorian Workplace Safety Legislation and Other Matters Amendment Act 2022

Information about changes that became law on 16 March 2022.

Workplace Safety Legislation and Matters Amendment Act 2022 (Vic)

The Workplace Safety Legislation and Matters Amendment Act 2022 (the Act) aims to prevent and better respond to workplace safety incidents, improve outcomes for injured workers and their families, and increase Worksafe’s ability to enhance Victoria’s workers’ compensation scheme operations.

The Act makes amendments to the Accident Compensation Act 1985 (AC Act), the Dangerous Goods Act 1985 (DG Act), the Equipment (Public Safety) Act 1994 (EPS Act), the Occupational Health and Safety Act 2004 (OHS Act), and the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) to:

• Improve compensation arrangements for workers with silicosis and similar occupational diseases, and deliver on aspects of the Government’s Silica Action Plan, including an extension to eligibility for family counselling services
• Amend the threshold for issuing prohibition notices and giving directions, to better capture serious-risk activities
• Include a broader range of matters to be notifiable incidents
• Improve entitlements for families of deceased workers
• Clarify that funds collected from infringement notices are paid into the WorkCover fund
• Make technical amendments to the WIRC Act including changes to clarify the current process for awarding legal costs, contractor provisions and payments for injured workers living overseas
• Expand the Firefighters Presumptive Rights Compensation Scheme to include Country Fire Authority (CFA) and Fire Rescue Victoria (FRV) vehicle and equipment maintenance, employees

What can employers do to incorporate the legislative changes?

Review your risk program, policies and procedures in relation to the management of occupational hazards in your workplace, review your occupational hygiene plan, and conduct an evaluation of compliance review to check that the changes do not adversely impact your operations.

2. Labour Hire

Amendments to the OHS laws (health and safety legislation) will affect the Victorian Labour hire industry from 22 March 2022. The Occupational Health and Safety Act 2004 2004 (Victoria) definitions of ’employee’ and ’employer’ will undergo an amendment. These changes will apply to workers hired under labour-hire arrangements. For the first time in Victoria, the new duty imposes an express burden for multiple duty holders to consult, co-operate and coordinate their activities.

The extended definitions broaden the term ’employee,’ the ‘Workers sourced, hired, and placed by a labour-hire service to work for the host employer.

Host employers shouldn’t completely re-design their health and safety management systems due to these changes, as the existing duties should have been dealt with the various risks to the health and safety of labour-hire workers in a similar way as that of the direct employees. Any alterations will amount to prosecution for any alterations made to the duties.

The changes in the health and safety legislation aim to prevent technical defences from being mounted and to overcome the potentially narrower scope of existing duties held by employers to ‘other persons’ and the responsibilities held by persons who have management or control of workplaces.

As per the change, employers who interact with the labour-hire companies to provide a safe work environment for workers will have more health and safety obligations. Labour hire workers will cherish equal treatment like the host company’s employees when at their location, thus giving them some additional protection and rights.

A ‘worker’ is any individual hired, sourced by a labour-hire provider to perform work for a ‘host,’ where the provider is obliged to pay the individual for the activities executed.

The extended definition considers the host employer as the worker’s employer for the OHS Act duties. The primary employer duties included in s 21 of the OHS Act will now apply to host employers and the worker’s direct employer, i.e., the labour-hire provider.

The changes obligate host employers to confer, comply and coordinate with labour-hire companies for work health and safety mandates. They must share duties with them under the OHS Act. Therefore, they must create a shared consultation plan to make everyone aware of the health and safety risks, which workers they impact, and the essential control strategies to prevent or control them.

Employers must examine active processes in practice at the host company sites.

Employers working in model Work Health and Safety Act jurisdictions will recognise the terms adopted in the new undertaking. Failure to adhere to these obligations can amount to a maximum penalty of 180 penalty units ($32,709 current) for individuals and 900 penalty units ($163,548 current) for corporates.

Insurance

The OHS Act will restrict enterprises from insurance usage to compensate against liability to pay penalties for OHS breaches and offenses. This change will come into practice from 21 September 2022 onwards.

Employers must examine existing insurance provided and collaborate with their dealers to check existing policies. They must successfully execute OHS audits to find and acknowledge OHS risks as a prevention strategy arriving from September.

Role of Health and Safety Representatives

Authorised registered employee associations (ARREOs) representatives and health and safety representatives (HSRs) will have transparent rights to visit workplaces. They can take photos, recordings, or measurements when acting under the legislation.

It would be crucial for employers to update their internal policies and procedures while keeping the management in the loop.

Duty to Consult

Amendments to the definitions of ’employer’ and ’employee’ do not aim to copy the labour-hire companies and host employers’ essential obligations to comply with OHS Act duties.

The duty highlights that health and safety results are obtained when an effective, innovative, and harmonious path is adopted by all with the ability to affect the health and safety of workers.

What can employers do to incorporate the legislative changes?

Review your risk program, policies and procedures in relation to the management of occupational hazards in your workplace, host employers must create a shared consultation plan to make everyone aware of the health and safety risks, which workers they impact, and the essential control strategies to prevent or control them, conduct an evaluation of compliance review to check that the changes do not adversely impact your operations

3. Occupational Health and Safety Regulations 2017 (15^th May 2022)

Changes to obligations for crystalline silica hazard control statement, crystalline silica process records, risk management of crystalline silica processes, high-risk crystalline silica work, manufacturers and suppliers and quarrying or tunnelling.

New duties for businesses working with crystalline silica have commenced. Businesses working with silica must identify and document high-risk crystalline silica work and risk control measures and provide safety training, instruction and information to current and prospective employees who may engage in high-risk crystalline silica work. Manufacturers and suppliers of products containing crystalline silica must provide a statement with the percentage of crystalline silica in the product and information about safe handling and exposure controls.

What can employers do to incorporate the legislative changes?

· Review your policy on mental health and wellbeing, bullying and harassment, and discrimination.

· Conduct a psychosocial risk assessment.

4. ISO 45003:2021 – Occupational health and safety management — Psychological health and safety at work — Guidelines for managing psychosocial risks

The OHS (Occupational Health and Safety) Act defines ‘health’ as including psychological health. This means the duty to ensure health and safety extend to ensuring the emotional and mental health of workers.

The ISO 45003:2021 Occupational health and safety management – Psychological health and safety at work – Guidelines for managing psychosocial risks have been released.

This new standard gives guidelines for managing psychosocial risk within occupational health and safety (OH&S) management system based on ISO 45001. It enables organizations to prevent work-related injury and ill health of their workers and other interested parties, and to promote well-being at work.

It is applicable to organisations of all sizes and in all sectors, for the development, implementation, maintenance and continual improvement of healthy and safe workplaces.

 What can employers do to incorporate the legislative changes?

Employers can implement the following to incorporate the legislative changes in OHS laws (Occupational Health and Safety Legislation):

• Employers must adhere to the health and safety legislation changes and train their staff, business associates, and stakeholders about their impact.
• Conduct an audit to check for the workplace risks that will help in the gap analysis.
• Based on the findings, employers must create a roadmap to overcome the risks and fill the gap preventing their organisation from eradicating workplace incidents.

Key changes made during the revision of the Victorian OHS Regulations in 2017

Manual Handling (3.1):

a. The title has been amended to Hazardous Manual Handling;

b. The definition has been redrafted;

c. Changes in what is required for hazard identification and review of controls

Noise (3.2):

Clarification of the trigger to audiological examinations

Prevention of Falls (3.3):

Clarification that legislative obligations still apply to the risk of falls below two metres

Confined Spaces (3.4):

c. Removal of supplier duty to eliminate/reduce risk of entry into a confined space (duty of designers and manufacturers of plant remains)

d. Duty of the employer to retain ‘confined entry permit’ – removed and replaced with a requirement to retain until work is complete or for two years in the event of a notifiable incident

Plant (3.5):

f. Changes to design requirements for emergency stop devices

g. Various changes to duties of designers and manufacturers with regard to record-keeping

h. Removal of hazard identification and risk control duties of suppliers

i. Changes to employer duties for emergency stop devices

j. Addition of chairlifts to the list of plants subject to the record of inspection and maintenance requirements

k. Removal of the requirement to register the design of tower cranes, lifts or a number of amusement structures (jet packs, hoverboards, rides or devices primarily used as a form of motorsports, and hovercrafts)

High-Risk Work (3.6):

l. Explicitly providing that WorkSafe may impose terms and conditions when authorising a person to carry out assessments of competency

m. Introduction of a new licence class for reach stackers (to come into operation on 18 June 2108)

n. The removal of a requirement to hold a forklift truck operation licence to operate low-lift pallet trucks

o. A number of changes to the requirements and scope of work for the following licences:

i. The dogging licence;

ii. The bridge and gantry crane operation licence;

iii. The vehicle loading crane operation licence;

iv. The order-picking forklift licence

p. Major changes to the boiler operation licensing scheme – three classes have been consolidated and replaced with two new classes (standard and advanced), and will take effect 18 June 2018

q. An expansion to circumstances under which a boiler licence is not required

Hazardous Substances (4.1):

r. These regulations have been recast to the Globally Harmonised System of Classification and Labelling of Chemicals (GHS) terminology.

s. All references to the Approved Criteria for Classifying Hazardous Substances, Hazardous Substances Information System (HSIS) and associated terminology have been removed

t. The AgVet labelling requirements have been amended to align with the Model WHS approach which is to allow for APVMA labels but require GHS hazard and precautionary statements

u. The definition of ‘container’ has been amended to capture containers exceeding 500lts or 500kg

Scheduled Carcinogen Substances (4.2):

Clarification of the exemption to hold a licence (now at reg 174)

Asbestos (4.3):

v. Divisions 5 and 6 of this part have been varied to now cover asbestos in workplaces regardless or not of whether it is fixed or installed – such as asbestos-contaminated soil or dust. This will ensure that all asbestos in the workplace is identified and risks controlled

w. Clarification that employers notified of asbestos removal work must inform their employees

x. Removal of employer’s requirement to notify WorkSafe of details of registered medical practitioners engaged to undertake medical examinations

y. The content of the 2007 Dangerous Goods Order (on the removal of asbestos that is not fixed or installed) has been incorporated into the regulation

z. Changes to Class B asbestos removal licence holders (reg 265):

i. Can now be able to remove all non-friable asbestos (including not fixed or installed)

ii. Remove asbestos-contaminated dust (ACD):

1. If it does not exceed 10 minutes in total, and in a cumulative sense, not more than one hour in seven days; or

2. Where an independent person determines that airborne asbestos fibre levels are likely to be less than one-half of the asbestos exposure standard.

aa. Allowing a Class A removal licence holder to engage an independent contractor who operates an excavator, provided that the person is supervised by the licence holder and the asbestos removal supervisor. This information must also be included in the asbestos control plan

bb. Changes to Schedule 13 (information required in the notice of removal work)

Lead (4.4): Amendment of blood level definition to display the concentration of lead expressed in both μg/dL (micrograms per decilitre) and umol/L (micromoles per litre).

Construction (5.1):

cc. References to ‘registration’ in relation to the construction induction training requirements have been removed; the provisions refer directly to the requirement to undertake construction induction training and to hold a ‘construction induction training card’ (CI card) evidencing that training has been undertaken.

dd. Addition: Employers and self-employed persons must develop emergency procedures if there is a risk of a person becoming engulfed by soil or other material when construction work is being performed.

Major Hazard Facilities (5.2):

ee. Changes to the content requirements of a Safety Management System and the Safety Case prepared by the operator

ff. Requirement for an operator to provide a copy of the Emergency service plan to municipal councils in the area

gg. Changes and updates to materials and threshold quantities (previously Schedule 9, now schedule 14) which defines whether a facility is a ‘Major Hazard Facility’ – to reflect the current state of knowledge

hh. Changes to additional matters to be included in the safety case

Mines (5.3):

ii. Terminology aligned with WHS regulations

jj. Flexibility for young workers to be able to enter mines

kk. The requirement for ‘constant communication’ with an employee working alone has been amended to ‘effective’ means of communication

ll. Operators must ensure air is maintained at a safe level now to ‘areas in which person work or travel’ as opposed to ‘throughout the mine’

mm. Operator must provide relevant parts of the emergency plan to municipal councils

Licences (6.1):

Some changes to some conditions for some licences

Registration (6.2):

Regulations concerning registration to perform construction work in Part 6.2 of the OHS Regulations 2007 have been removed

Exemptions (7.2):

WorkSafe must provide the required document within 14 days after making the decision to give a notice (of exemption, refusal, variation or revocation)

What can employers do to incorporate the legislative changes?

Employers can implement the following to incorporate the legislative changes in OHS laws:

1) Employers must adhere to the health and safety legislation changes and train their staff, business associates, and stakeholders about their impact. They must advice them on safety measures and inform them about the WorkSafe Victoria website to keep them informed and updated on the laws.

2) Conduct an audit to check for the workplace risks

3) Based on the findings, employers must create a roadmap to address the risks.

Role of WorkSafe Victoria

WorkSafe Victoria has some key roles in safeguarding the health and safety of workplace employees and workers. This includes both physical and mental health.

1) Assess and obligate compliance with the OHS Act and regulations.

2) To provide suggestions on the OHS Act, regulations, and compliance codes to the Minister.

3) Organise discussions on Occupational health, welfare, and safety issues to make public awareness.

4) To publish regularly OHS statistics and practical guides on roles and obligations as per OHS laws.

Victorian Legislation – Regulation

What is the key aim of the Victorian OHS Legislation?

The key aim of the Victorian OHS (Occupational Health and Safety) Legislation is listed below:

1) Safeguarding the health, safety, and well-being of workers and employees handling dangerous substances like silica, asbestos etc.

2) Protecting Victorian common people from health risks caused by business activities.

3) Eradication of the source of the various workplace hazards and risks.

4) Working with the organisation, employers, traditional owners, and employees to implement the health, welfare and safety standards in Victoria.

Anitech’s Occupational Health and Safety Team can help you understand and apply health safety legislation in your workplace.

For booking an occupational health and safety professional, call us on 1300 802 163 or e-mail at –sales@anitechgroup.com.