New Labour Hire Protections in Victoria

This article applies to all organisations.

Occupational Health and Safety and Other Legislation Amendment Bill 2021 (Vic)

Please be advised that the Occupational Health and Safety and Other Legislation Amendment Bill 2021 (Vic) (the Bill) passed Parliament on 16 September 2021 and received Royal Assent on 21 September 2021.

The Bill amends the Occupational Health and Safety Act 2004 (Vic) (the Act) to expand the definition of employer and employee to capture labour hire arrangements. This will result in additional protections for workers under labour hire arrangements and additional responsibilities for employers who host labour hire workers.

Further, the Bill amends various legislation to make it an offence for organisations to insure or indemnify against penalties under certain work health and safety laws.

Extended definition of employer and employee

Previously the Act defined an employee or employer as someone employed under, or who employers a person under, a contract of employment or a contract of training. Notably, this meant that labour hire workers were not considered an employee of their host employer and therefore their host employer did not owe them the same health and safety duties as they do their own staff.

The Bill expands these definitions to capture labour hire arrangements. The new definition states that a person is taken to be an employer of a worker, and the worker is taken to be an employee of the person, if a provider of labour hire services supplies the worker to, recruits the worker for or places the worker with the person to perform work for the person.

This means that employers will owe labour hire workers the same duties they owe their own employees under the Act (e.g., duty provide and maintain a working environment that is safe and free from risks to health, etc.).

The Bill allows for regulations to prescribe classes of employees or employers exempt from the new definition, however, as of the time of writing this Alert, no classes of employees or employers have been prescribed.

Please note that this change will commence 6 months after the day on which the Bill receives Royal Assent.

Duty to cooperate

Due to the extended definition of employee and employer, some employers and labour hire providers will have overlapping duties. As a result, the Bill inserts a new duty to require each person that holds a duty for a worker, so far as reasonably practicable, to cooperate, consult, and coordinate activities with each other person who holds a duty in relation to the same worker.

The failure to comply with this new duty carries a penalty of 180 penalty units (currently, $32,713) for an individual and 900 penalty units (currently $163,566) for a body corporate.

Please note that this change will commence 6 months after the day on which the Bill receives Royal Assent.

Insurance and indemnity

The Bill also prohibits persons from entering into, providing a benefit under, or benefiting from an arrangement that insures or indemnifies a person against panalties imposed under the Act, the Dangerous Goods Act 1985 (Vic), or the Equipment (Public Safety) Act 1994 (Vic). Failure to comply with these obligations carries a penalty of 300 penalty units (currently, $54,522) for an individual and 1,500 penalty units (currently, $272,610) for a body corporate.

These changes are designed to prevent employers from being able to avoid liability under work health and safety laws. To this end, the Bill also states that any term of a contract or other arrangement that purports to insure or indemnify a person against penalties imposed under the above-mentioned legislation is void.

Please note that this change will commence 12 months after the day on which the Bill receives Royal Assent.

Please click here to access the full Bill.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

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