Version No. 060 Occupational Health and Safety Act 1985 Act No. 10190/1985




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Version No. 060

Occupational Health and Safety Act 1985

Act No. 10190/1985

Version incorporating amendments as at 6 March 2003


table of provisions

Section Page



Part I—Preliminary 1

1. Short title 1

2. Commencement 1

3. Repeals, amendments and savings 1

4. Definitions 2

62. Definitions 92

63. Interpretation of Legislation Act 1984 not affected 92

64. Superseded references 92

65. Proceedings in relation to the Minister 92

66. Documents etc. issued by Minister, Secretary and Department 93

67. Information under section 9 93

68. Inspectors deemed to be inspectors appointed by Authority 93

69. Proceedings in relation to inspectors 94

70. Documents etc. issued by inspector 94

5. Act to bind Crown 6

6. Objects of Act 6



Part II—Functions and Powers 7

8. Functions of the Authority 7

9. Obtaining of information by the Authority 9

10. Restrictions on disclosure of information by the Authority 10



Part III—General Provisions Relating to Occupational Health and Safety 14

21. Duties of employers 14

22. Duties of employers and self-employed persons 16

23. Duties of occupiers of workplaces 16

24. Duties of manufacturers etc. 16

25. Duties of employees 18

26. Provisions for dealing with health and safety issues 19

27. Compliance with regulations is compliance with Part 3 21

28. Civil liability not affected by Part 3 21

Part IV—Occupational Health and Safety Representatives and Committees 22

29. Designated work groups 22

30. Election of health and safety representatives etc. 24

31. Functions etc. of health and safety representatives 25

32. Provisions concerning assistants of health and safety representatives 28

33. Provisional improvement notices 29

34. Provisional notices may include directions 31

35. Employer may require inspector to attend at workplace 31

36. Disqualification of health and safety representatives 32

37. Health and safety committees 34



Part V—Inspections 36

38. Appointment of inspectors, 36

8. Amendment of Occupational Health and Safety Act 1985 94

11. Existing proceedings 95

39. Powers of inspectors 37

40. Further provisions in relation to inspections 38

41. Employers etc. to assist inspector 40

42. Offences in relation to inspections 41



Part VI—Improvement and Prohibition Notices 43

43. Inspector may issue improvement notice 43

44. Inspector may issue prohibition notice 44

45. Notices may include directions 45

46. Appeals against notices 46

Part VII—Legal Proceedings 49

47. General 49

47A. Infringement notices 49

48. Proceedings may be brought by inspectors etc. 51

49. Procedure where prosecution is not brought 52

50. Judicial notice of signature of Minister etc. 53

51. Provisions as to certain evidence 53

52. Offences by bodies corporate 54

53. Further penalties for subsequent offences 55

Part VIII—General 56

54. Discrimination against employees etc. 56

55. Codes of practice 58

56. Use of codes of practice in proceedings 60

57. Minister may delegate powers etc. 61

59. Regulations 62

60. Transfer of responsibilities, 67

__________________ 70

SCHEDULES 71

SCHEDULE ONE 71

Subject-matter for Regulations 71

SCHEDULE TWO 76

═══════════════ 85



EndNOTES 86

1.General Information 86

2.Table of Amendments 87

3.Explanatory Details 91


Version No. 060

Occupational Health and Safety Act 1985

Act No. 10190/1985

Version incorporating amendments as at 6 March 2003


An Act to promote and improve standards for occupational health, safety and welfare, to establish the Occupational Health and Safety Commission, to repeal the Industrial Safety, Health and Welfare Act 1981 and certain other Acts, to amend certain other Acts, and for other purposes.


BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Part I—Preliminary

1. Short title

This Act may be cited as the Occupational Health and Safety Act 1985.

2. Commencement

The several provisions of this Act (including the several items in Schedule Two) shall come into operation on the day or the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.

3. Repeals, amendments and savings

(1) On the coming into operation of an item in Schedule Two, the Act referred to in that item to the extent to which it is in that item expressed to be amended or repealed shall be amended or repealed accordingly.

(2) Except as expressly or by necessary implication provided in this Act or the regulations—

(a) all persons things and circumstances appointed or created by or under any Act which is amended or repealed by this Act or existing or continuing under any such Act immediately before the commencement of the item in Schedule Two amending or repealing that Act, shall under and subject to this Act and the regulations continue to have the same status operation and effect as they respectively would have had if that Act had not been so amended or repealed;

(b) in particular and without limiting the generality of paragraph (a), the amendment or repeal shall not disturb the continuity of status operation or effect of any proclamation regulation by-law order rule application determination declaration petition direction registration licence permit certificate exemption approval nomination appointment notice fee transfer record proceeding liability or right made issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under any Act which is amended or repealed by this Act before the commencement of the item in Schedule Two amending or repealing that Act.

4. Definitions

In this Act, unless inconsistent with the context or subject-matter—


s. 4

S. 4 def. of "Authority" inserted by No. 13/1996 s. 51(a).

"Authority"1 means the Victorian WorkCover Authority established under section 18 of the Accident Compensation Act 1985;


S. 4 def. of "Commis-sion"
repealed by No. 67/1992 s. 66(1).


* * * * *


S. 4 def. of "Department" inserted by No. 67/1992
s. 66(1), repealed by No. 13/1996 s. 51(b).


* * * * *

s. 4

"designated work group" means a group of employees at a workplace determined to be a designated work group under section 29;

S. 4 def. of "employee" amended by No. 45/1990
s. 115(a).


"employee" means a person employed under a contract of employment or under a contract of training;


S. 4 def. of "Employee Relations Commission" inserted by No. 83/1992
s. 184(Sch. 6 item 15.1(a)), repealed by No. 59/1996 s. 10(Sch. 2 item 16.1).


* * * * *


S. 4 def. of "employer" amended by No. 45/1990
s. 115(b).


"employer" means a person who employs one or more other persons under contracts of employment or under contracts of training;


S. 4 def. of "Industrial Relations Commission" repealed by No. 83/1992
s. 184(Sch. 6 item 15.1(b)).


* * * * *


s. 4

"inspector" means an inspector appointed under this Act;

"occupier", in relation to a workplace, means a person who has the management or control of the workplace;

"plant" includes any machinery equipment appliance implement and tool, any component thereof and anything fitted connected or appurtenant thereto;

"practicable" means practicable having regard to—

(a) the severity of the hazard or risk in question;

(b) the state of knowledge about that hazard or risk and any ways of removing or mitigating that hazard or risk;

(c) the availability and suitability of ways to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk;

"prescribed" means prescribed by this Act or the regulations;

"self-employed person" means a person who works for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not that person employs one or more other persons;

"substance" means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour;

"supply" in relation to any plant or substance, includes supply and resupply by way of sale, exchange, lease, hire or hire-purchase, whether as principal or as agent;


S. 4 def. of "trade union" amended by Nos 47/1992 s. 25(5), 83/1992 s. 184(Sch. 6 item 15.1(c)), repealed by No. 78/1993 s. 6(2).

* * * * *
"workplace" means any place, whether or not in a building or structure, where employees or self-employed persons work.

5. Act to bind Crown

This Act binds the Crown not only in right of Victoria but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.


s. 5

6. Objects of Act

The objects of this Act are—

(a) to secure the health, safety and welfare of persons at work;

(b) to protect persons at work against risks to health or safety;

(c) to assist in securing safe and healthy work environments;

(d) to eliminate, at the source, risks to the health, safety and welfare of persons at work;

(e) to provide for the involvement of employees and employers and associations representing employees and employers in the formulation and implementation of health and safety standards.


s. 5


_______________

Pt 2 (Heading) substituted by No. 67/1992
s. 66(2)(a).

Part II—Functions and Powers2


S. 7
repealed by No. 67/1992 s. 66(2)(b).


* * * * *

8. Functions of the Authority

S. 8(1) amended by Nos 67/1992
s. 66(2)(c), 78/1993 s. 3(1), 13/1996 s. 52.


(1) The functions of the Authority under this Act are—

s. 8

(a) to inquire into and report to the Minister within the time specified by the Minister upon any matters referred to it by the Minister;

(b) to make recommendations to the Minister with respect to—

(i) the operation and administration of this Act and the regulations; and

(ii) regulations or codes of practice which it or the Minister proposes should be made or approved;

(c) to examine review and make recommendations in relation to existing and proposed registration or licensing schemes relating to occupational health safety and welfare;

(d) to provide advice to and co-operate with Government departments, public authorities, trade unions, employer organizations and other interested persons in relation to occupational health safety and welfare;

(e) to formulate standards specifications or other forms of guidance for the purpose of assisting employers self-employed persons and employees to maintain appropriate standards of occupational health safety and welfare;

(f) to promote education and training and approve courses in occupational health and safety;



s. 8

(g) to devise in co-operation with educational authorities or bodies courses in relation to occupational health safety and welfare and to recommend that such courses be integrated into programmes in educational institutions;

(h) to recommend to the Minister the establishment of public inquiries into any matter relating to occupational health and safety;

(i) to collect and disseminate information on occupational health safety and welfare; and


  1. to commission and sponsor research into occupational health safety and welfare—

and include any other functions assigned to it by or under this Act.

S. 8(2) amended by Nos 67/1992
s. 66(2)(c), 78/1995 s. 8(2), 13/1996 s. 52.


(2) The Authority shall issue for public review and comment any codes of practice with respect to which it proposes under sub-section (1)(b)(ii) to make any recommendations to the Minister.


S. 8(3) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 52.


(3) The Authority shall ensure, as far as possible, that any information it provides is in such languages and form as are appropriate for the persons to whom the information is directed.

S. 8(4) amended by No. 67/1992
s. 66(2)(c), substituted by No. 78/1993
s. 3(2), amended by No. 78/1995 s. 8(2).


(4) Sub-section (2) does not apply to codes of practice which the Minister considers, in the public interest, should be made as soon as is practicable.


S. 9
amended by Nos 67/1992 s. 66(2)(c), 13/1996 s. 53(1).


9. Obtaining of information by the Authority

The Authority may in writing require any person to furnish to it such information relating to occupational health safety and welfare as it reasonably requires for the purposes of this Act.



s. 9

10. Restrictions on disclosure of information by the Authority

S. 10(1) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(3).


(1) This section applies to and in relation to any information obtained by the Authority under section 9, being—

(a) information—

(i) furnished by any person involved in any business commercial or financial undertaking;

(ii) relating to trade secrets or other matters of a business commercial or financial nature; and

(iii) disclosure of which would be likely to expose that undertaking to competitive disadvantage; or

(b) information disclosure of which would involve the unreasonable disclosure of information relating to the personal affairs of any person.



S. 10(2) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(3).


(2) The Authority shall not except in accordance with this section disclose any information to or in relation to which this section applies.


S. 10(3) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(3).


(3) Where the Authority determines that the public interest in favour of disclosure of any information to or in relation to which this section applies outweighs considerations of competitive disadvantage to an undertaking or of privacy, it may disclose that information.

S. 10(4) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(3).


(4) In making a determination under sub-section (3), the Authority shall consider whether or not disclosure of the information is necessary for protecting or promoting occupational health and safety.

s. 10

S. 10(5) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(3).


(5) Where the Authority has determined under sub-section (3) to disclose any information, it shall give notice in writing of its determination to the person who furnished the information and subject to sub-section (7) shall not disclose that information until the expiration of 60 days after the person has received that notice.

S. 10(6) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(3), substituted by No. 52/1998
s. 311(Sch. 1 item 67.1).


(6) A person who receives a notice under sub-section (5) may apply to the Victorian Civil and Administrative Tribunal, within 60 days after receiving the notice, for review of the determination of the Authority.



S. 10(7) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(3), substituted by No. 52/1998
s. 311(Sch. 1 item 67.1).


(7) After receiving notice of an application for review, the Authority must not disclose information in respect of which the application was made before the Tribunal has determined the review.


S. 10(8) repealed by No. 52/1998
s. 311(Sch. 1 item 67.2(a)).


* * * * *



S. 10(9) amended by Nos 67/1992
s. 66(2)(c), 13/1996 s. 53(2).


(9) Any Director of the Board of Management of the Authority or officer or employee of the Authority who discloses any information to or in relation to which this section applies in a manner that is not in accordance with this section shall be guilty of an offence against this Act.

(10) In this section—



s. 10

"disclose" means divulge or communicate to any person or publish; and

S. 10(10) def. of "Tribunal" repealed by No. 52/1998
s. 311(Sch. 1 item 67.2(b)).


* * * * *


S. 10(11) inserted by No. 13/1996 s. 53(4).

(11) Section 243 of the Accident Compensation Act 1985 does not apply to any information furnished to the Authority under section 9 of this Act.

S. 11 amended by No. 50/1988
s. 93(2)(Sch. 2 Pt 2 item 41), repealed by No. 67/1992
s. 66(2)(b).


* * * * *


Ss 12–20 repealed by No. 67/1992
s. 66(2)(b).


* * * * *

_______________

Part III—General Provisions Relating to Occupational Health and Safety

21. Duties of employers

(1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.


s. 21

(2) Without in any way limiting the generality of sub-section (1), an employer contravenes that sub-section if the employer fails—

(a) to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health;

(b) to make arrangements for ensuring so far as is practicable safety and absence of risks to health in connexion with the use, handling, storage and transport of plant and substances;

(c) to maintain so far as is practicable any workplace under the control and management of the employer in a condition that is safe and without risks to health;

(d) to provide adequate facilities for the welfare of employees at any workplace under the control and management of the employer; or

(e) to provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health.


(3) For the purposes of sub-sections (1) and (2)—

(a) "employee" includes an independent contractor engaged by an employer and any employees of the independent contractor; and

(b) the duties of an employer under those sub-sections extend to such an independent contractor and the independent contractor's employees, in relation to matters over which the employer—



s. 21

(i) has control; or

(ii) would have had control but for any agreement between the employer and the independent contractor to the contrary.

(4) An employer shall so far as is practicable—

(a) monitor the health of the employees of the employer;

(b) keep information and records relating to the health and safety of the employees of the employer;

(c) employ or engage persons who being suitably qualified in relation to occupational health and safety are able to provide advice to the employer in relation to the health and safety of the employees of the employer;



S. 21(4)(ca) inserted by No. 11/1990
s. 4(1).


(ca) nominate a person with, or persons each with an appropriate level of seniority (not being a health and safety representative) to be the employer's representative or representatives under sections 26 and 31;

(d) monitor conditions at any workplace under the control and management of the employer; and

(e) provide information to the employees of the employer, in such languages as are appropriate, with respect to health and safety at the workplace, including the names of persons to whom an employee may make an inquiry or complaint in relation to health and safety.

22. Duties of employers and self-employed persons

Every employer and every self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or self-employed person) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self-employed person.


s. 22

23. Duties of occupiers of workplaces

An occupier of a workplace shall take such measures as are practicable to ensure that the workplace and the means of access to and egress from the workplace are safe and without risks to health.

24. Duties of manufacturers etc.

(1) A person who designs, manufactures, imports or supplies any plant for use at a workplace shall—

(a) ensure, so far as is practicable, that the plant is so designed and constructed as to be safe and without risks to health when properly used;

(b) carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed by paragraph (a); and

(c) take such action as is necessary to ensure that there will be available in connexion with the use of the plant at the workplace adequate information about the use for which it is designed and has been tested, and about any conditions necessary to ensure that when put to that use it will be safe and without risks to health.

(2) A person who erects or installs any plant for use at a workplace shall ensure, so far as is practicable, that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used.



s. 24

(3) A person who manufactures, imports or supplies any substance for use at a workplace shall—

(a) ensure, so far as is practicable, that the substance is safe and without risks to health when properly used;

(b) carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed by paragraph (a); and

(c) take such action as is necessary to ensure that there will be available in connexion with the use of the substance at the workplace adequate information about the results of any relevant tests which have been carried out on or in connexion with the substance and about any conditions necessary to ensure that it will be safe and without risks to health when properly used.

(4) For the purposes of this section, any plant or substance is not to be regarded as properly used where it is used without regard to any relevant information or advice that is available relating to its use.

25. Duties of employees



S. 25(1) substituted by No. 78/1993
s. 4.


(1) While at work, an employee must—

s. 25

(a) take reasonable care for his or her own health and safety and for the health and safety of anyone else who may be affected by his or her acts or omissions at the workplace; and

(b) co-operate with his or her employer with respect to any action taken by the employer to comply with any requirement imposed by or under this Act.

(2) An employee shall not—

(a) wilfully or recklessly interfere with or misuse anything provided in the interests of health safety or welfare in pursuance of any provision of this Act or the regulations; or

(b) wilfully place at risk the health or safety of any person at the workplace.

26. Provisions for dealing with health and safety issues

(1) If any issue concerning health and safety arises at a workplace—

(a) the employer or the employer's representative; and

(b) the health and safety representative for the designated work group in relation to which the issue has arisen or, if there is no such representative, the employees in that group—

shall attempt to resolve the issue in accordance with the relevant agreed procedure or, if there is no such procedure, the relevant prescribed procedure.


(2) Where the issue concerns work which involves a threat to the health and safety of any person and—

(a) the threat is immediate; and

(b) given the nature of the threat and degree of risk, it is not appropriate to adopt the processes set out in sub-section (1)—


s. 26

the employer and the health and safety representative for the designated work group in relation to which the issue has arisen may after consultation jointly direct or, if the consultation does not lead to agreement between them, either of them may direct that the work shall cease.

(3) During any period during which any work has ceased pursuant to sub-section (2), the employer may assign the employee or employees to suitable alternative work.

(4) If the issue is not resolved within a reasonable time or if there has been a direction that work shall cease, any one of the parties to the attempt at resolution may require an inspector to attend at the workplace.

(5) The inspector shall attend as soon as possible and may take such action under this Act as the inspector considers necessary.

(6) If the inspector—

(a) issues a prohibition notice; or

(b) otherwise determines that there was reasonable cause for employees to be concerned for their health and safety—

any employee who, as a result of the issue arising at the workplace, does not work for any period pending the resolution of the issue shall be entitled to be paid for that period.



S. 26(7) amended by Nos 83/1992
s. 184(Sch. 6 item 15.2), 59/1996 s. 10(Sch. 2 item 16.2).


(7) Any dispute in respect of an entitlement under sub-section (6) may be referred to the Industrial Division of the Magistrates' Court or to such other tribunal having jurisdiction in relation to the matter.
27. Compliance with regulations is compliance with Part 3

Where the regulations make provision for or in relation to any duty, obligation, act, matter or thing to which this Part applies, a person who complies with the regulations in relation to that duty, obligation, act, matter or thing shall be deemed to have complied with this Part in relation to that duty, obligation, act matter or thing.



s. 27

28. Civil liability not affected by Part 3

Nothing in this Part shall be construed as—

(a) conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part;

(b) conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings; or

(c) affecting the extent (if any) to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by the regulations.

_______________

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