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Changes to Vic Compliance Codes

Posted by Deirdre McConn

There have been minor amendments to 11 compliance codes made under the Occupational Health and Safety Act 2004 approved by the Minister for Workplace Safety, Jill Hennessy, which came into effect from the 19th December 2019.

The updates were undertaken to:

  • reflect amendments to section 35 and 36 of the OHS Act by the Treasury and Finance Legislation Amendment Act 2018,
  • improve style and branding consistency across the existing codes.

Employers must keep up to date with changes in compliance , if an organisation fails to comply with the latest regulations, then there may be serious consequences for the business. While the majority of amendments to the OHS Act 2004 were mainly relate to technical issues and branding updates, there was changes regarding the safety consultation obligations that is important for employers to be aware.

Safety Consultation Update:

The changes to the section 35 and 36 of the OHS Act 2004 with Section 36 (on involving HSRs in consultation) has now been consolidated into section 35. Therefore within the codes when Section 35 was stated – “Employers who are required to consult on a matter must share information about the matter with employees, including relevant contractors and HSRs, give them a reasonable opportunity to express their views, and take those views into account before making a decision”. Now has the added the statement  “If employees are represented by an HSR, the consultation must involve that HSR (with or without the involvement of the employees directly). If the employer and the employees have agreed to procedures for undertaking consultation, the consultation must be undertaken in accordance with those procedures.”

This adjustment has the effect of clarifying that a failure to undertake the consultation process to involve HSRs amounts to a failure to consult under section 35, and is an offence under the Act. An employer can be prosecuted for failing to consult with employees and contractors, as well as for a failure to consult in the manner described by the former s 36.  

The former s 36—now s 35(3)—provides that employers that are required to consult with employees and independent contractors under s 35(1) must do so by:

  • sharing information about the matter on which the employer is required to consult
  • giving employees and independent contractors a reasonable opportunity to express their views about the matter, and
  • taking those views into account.

The changes do not go so far as to impose a requirement that consultation must lead to agreement, but do reinforce the importance of safety consultation, including the manner in which it is undertaken.

The amended Compliance codes are:

  • Confined spaces
  • Demolition
  • Excavation
  • Hazardous manual handling
  • Hazardous substances
  • Noise
  • Plant
  • Prevention of falls in general construction
  • Prevention of falls in housing construction
  • Managing asbestos in workplaces
  • Removing asbestos in workplaces

The amendments to the OHS Act serve as a timely reminder to all employers to ensure they are complying with the obligation to consult, including the manner of that consultation. Any failure to do so in the manner outlined in the OHS Act may lead to investigation and prosecution.

Workplace Injury Rehabilitation and Compensation Updates:

The Minister also approved amendments to four compliance codes made under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act). The WIRC Act codes were amended to reflect WorkSafe’s current brand and head office address

The amended codes are:

  • Providing employment, planning and consultation about return to work (Compliance code 1 of 4)
  • Return to work Coordinators (Compliance code 2 of 4)
  • Return to work information (Compliance code 3 of 4)
  • Cooperating with labour hire employees about return to work (Compliance code 4 of 4)

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By Deirdre McConn - OHS Consultant

Topics: Safety coaching