Occupational Health and Safety and Other Legislation Amendment Act 2021 (Vic)
Occupational Health and Safety and Other Legislation Amendment Act 2021
No. 36 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Labour hire
4Definitions
5New section 35A inserted
Part 3—Prohibition on indemnities for pecuniary penalties
Division 1—Amendment of Occupational Health and Safety Act 2004 to void indemnity provisions
6Definitions
7New Part 11A inserted
Division 2—Amendment of Occupational Health and Safety Act 2004 to include offences
8New section 148B inserted
Division 3—Amendment of Dangerous Goods Act 1985 to void indemnity provisions
9Definitions
10New Part VIIA inserted
Division 4—Amendment of Dangerous Goods Act 1985 to include offences
11New section 51E inserted
Division 5—Amendment of Equipment (Public Safety) Act 1994 to void indemnity provisions
12Definitions
13New Part 5A inserted
Division 6—Amendment of Equipment (Public Safety) Act 1994 to include offences
14New section 32B inserted
Part 4—Service of notices
Division 1—Amendment of Occupational Health and Safety Act 2004
15Provisional improvement notices
16Service of provisional improvement notice or inspector's notice
17Report to be given about entry
18Service of notices
19Infringement notices
Division 2—Amendment of Dangerous Goods Act 1985
20Definitions
21Report to be given about entry
22Service of directions and notices
23Infringement notices
Division 3—Amendment of Equipment (Public Safety) Act 1994
24Report to be given about entry
25Service of notices
26Infringement notices
Division 4—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013
27Report to be given about entry
28Issue of Return to Work improvement notice
Part 5—Powers of certain office holders
29Powers of health and safety representatives
30Powers on entry
31Offences by authorised representatives
Part 6—Seized items
Division 1—Amendment of Occupational Health and Safety Act 2004
32Return of seized things
Division 2—Amendment of Dangerous Goods Act 1985
33Return of seized things
Division 3—Amendment of Equipment (Public Safety) Act 1994
34Return of seized things
Division 4—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013
35Return of seized things
Part 7—Repeal of this Act
36Repeal of this Act
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Endnotes
1 General information
Occupational Health and Safety and Other Legislation Amendment Act 2021
No. 36 of 2021
[Assented to 21 September 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Occupational Health and Safety Act 2004 to provide additional protections in relation to labour hire; and
(b)to amend various Acts to prohibit insuring or indemnifying a person for a pecuniary penalty for an offence; and
(c)to amend various Acts in relation to notices, including in respect of issuing notices electronically; and
(d)to amend the Occupational Health and Safety Act 2004 to give additional powers to health and safety representatives and authorised representatives of registered employee organisations in relation to certain matters; and
(e)to amend various Acts to ensure that the forfeiture provisions work as intended.
2Commencement
(1)Subject to subsections (2) and (3), this Act comes into operation on the day after the day on which it receives the Royal Assent.
(2)Part 2 of this Act comes into operation on the first day after the end of the period of 6 months beginning on, and including, the day on which this Act receives the Royal Assent.
(3)Divisions 2, 4 and 6 of Part 3 of this Act come into operation on the first day after the end of the period of 12 months beginning on, and including, the day on which this Act receives the Royal Assent.
3Principal Act
In this Act, the Occupational Health and Safety Act 2004 is called the Principal Act.
Part 2—Labour hire
4Definitions
(1)In section 5(1) of the Principal Act insert the following definitions—
"labour hire services has the same meaning as it has in the Labour Hire Licensing Act 2018;
provider has the same meaning as it has in the Labour Hire Licensing Act 2018;
worker has the same meaning as it has in the Labour Hire Licensing Act 2018;".
(2)After section 5 of the Principal Act insert—
5AExtended definition of employer and employee—labour hire"
(1)For the purposes of this Act, 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.
(2)Despite subsection (1), a person is not taken to be an employer of a worker if—
(a)the person is included in a class of person prescribed by the regulations; or
(b)the person provides services prescribed by the regulations.
(3)Despite subsection (1), a worker is not taken to be an employee of an employer if—
(a)the worker is included in a class of individual prescribed by the regulations; or
(b)the worker provides services prescribed by the regulations.".
5New section 35A inserted
After section 35 of the Principal Act insert—
"35A Duty to consult with other employers in relation to duties relating to labour hire
(1)This section applies if—
(a)a person is taken to be an employer of a worker under section 5A; and
(b)as a result, the person has duties under this Act in relation to the worker; and
(c)one or more other persons have a duty in relation to the same worker, whether because the other person or persons are taken to be an employer of the worker under section 5A or because the worker is otherwise an employee of the other person or persons.
(2)Each person who has a duty in relation to the same worker must, so far as is reasonably practicable, consult, co‑operate and co‑ordinate activities with each other person who has a duty in relation to the same worker.
Penalty:180 penalty units for a natural person;
900 penalty units for a body corporate.".
Part 3—Prohibition on indemnities for pecuniary penalties
Division 1—Amendment of Occupational Health and Safety Act 2004 to void indemnity provisions
6Definitions
In section 5(1) of the Principal Act insert the following definitions—
"indemnify means indemnify wholly or partly;
insure means insure wholly or partly;".
7New Part 11A inserted
After section 148 of the Principal Act insert—
"Part 11A—Insurance and indemnity for pecuniary penalties prohibited
148ACertain insurance and indemnity arrangements void
A term of a contract or other arrangement that purports to insure or indemnify a person for the person's liability to pay a pecuniary penalty under this Act or the regulations is void to the extent that the term provides for that insurance or indemnity.".
Division 2—Amendment of Occupational Health and Safety Act 2004 to include offences
8New section 148B inserted
After section 148A of the Principal Act insert—
"148B Prohibition on insurance and indemnity for pecuniary penalties
(1)A person must not—
(a)enter into or be a party to a contract or other arrangement that purports to insure or indemnify the person for the person's liability to pay a pecuniary penalty under this Act or the regulations; or
(b)enter into, offer to enter into or be a party to a contract or other arrangement that purports to insure or indemnify another person for that other person's liability to pay a pecuniary penalty under this Act or the regulations.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(2)A person does not commit an offence against subsection (1) if the person has a reasonable excuse for entering into, offering to enter into or being a party to the contract or other arrangement.
(3)A person must not receive a benefit under a term of a contract or other arrangement that is a term which purports to insure or indemnify the person for the person's liability for a pecuniary penalty under this Act or the regulations.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(4)A person must not provide a benefit to another person under a term of a contract or other arrangement that is a term which purports to insure or indemnify that other person for that person's liability for a pecuniary penalty under this Act or the regulations.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(5)An offence against subsection (1), (3) or (4) is an indictable offence.
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).".
Division 3—Amendment of Dangerous Goods Act 1985 to void indemnity provisions
9Definitions
In section 3(1) of the Dangerous Goods Act 1985 insert the following definitions—
"indemnify means indemnify wholly or partly;
insure means insure wholly or partly;".
10New Part VIIA inserted
After section 51C of the Dangerous Goods Act 1985 insert—
"Part VIIA—Insurance and indemnity for pecuniary penalties prohibited
51DCertain insurance and indemnity arrangements void
A term of a contract or other arrangement that purports to insure or indemnify a person for the person's liability to pay a pecuniary penalty under this Act is void to the extent that the term provides for that insurance or indemnity.".
Division 4—Amendment of Dangerous Goods Act 1985 to include offences
11New section 51E inserted
After section 51D of the Dangerous Goods Act 1985 insert—
"51E Prohibition on insurance and indemnity for pecuniary penalties
(1)A person must not—
(a)enter into or be a party to a contract or other arrangement that purports to insure or indemnify the person for the person's liability to pay a pecuniary penalty under this Act; or
(b)enter into, offer to enter into or be a party to a contract or other arrangement that purports to insure or indemnify another person for that other person's liability to pay a pecuniary penalty under this Act.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(2)A person does not commit an offence against subsection (1) if the person has a reasonable excuse for entering into, offering to enter into or being a party to the contract or other arrangement.
(3)A person must not receive a benefit under a term of a contract or other arrangement that is a term which purports to insure or indemnify the person for the person's liability for a pecuniary penalty under this Act.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(4)A person must not provide a benefit to another person under a term of a contract or other arrangement that is a term which purports to insure or indemnify that other person for that person's liability for a pecuniary penalty under this Act.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(5)An offence against subsection (1), (3) or (4) is an indictable offence.
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).".
Division 5—Amendment of Equipment (Public Safety) Act 1994 to void indemnity provisions
12Definitions
In section 3(1) of the Equipment (Public Safety) Act 1994 insert the following definitions—
"indemnify means indemnify wholly or partly;
insure means insure wholly or partly;".
13New Part 5A inserted
After section 32 of the Equipment (Public Safety) Act 1994 insert—
"Part 5A—Insurance and indemnity for pecuniary penalties prohibited
32ACertain insurance and indemnity arrangements void
A term of a contract or other arrangement that purports to insure or indemnify a person for the person's liability to pay a pecuniary penalty under this Act or the regulations is void to the extent that the term provides for that insurance or indemnity.".
Division 6—Amendment of Equipment (Public Safety) Act 1994 to include offences
14New section 32B inserted
After section 32A of the Equipment (Public Safety) Act 1994 insert—
"32B Prohibition on insurance and indemnity for pecuniary penalties
(1)A person must not—
(a)enter into or be a party to a contract or other arrangement that purports to insure or indemnify the person for the person's liability to pay a pecuniary penalty under this Act or the regulations; or
(b)enter into, offer to enter into or be a party to a contract or other arrangement that purports to insure or indemnify another person for that other person's liability to pay a pecuniary penalty under this Act or the regulations.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(2)A person does not commit an offence against subsection (1) if the person has a reasonable excuse for entering into, offering to enter into or being a party to the contract or other arrangement.
(3)A person must not receive a benefit under a term of a contract or other arrangement that is a term which purports to insure or indemnify the person for the person's liability for a pecuniary penalty under this Act or the regulations.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(4)A person must not provide a benefit to another person under a term of a contract or other arrangement that is a term which purports to insure or indemnify that other person for that person's liability for a pecuniary penalty under this Act or the regulations.
Penalty:300 penalty units for a natural person;
1500 penalty units for a body corporate.
(5)An offence against subsection (1), (3) or (4) is an indictable offence.
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).".
Part 4—Service of notices
Division 1—Amendment of Occupational Health and Safety Act 2004
15Provisional improvement notices
In section 60(2) of the Principal Act, after "person" insert "or, if the person is a body corporate, an employee, agent or officer of the body corporate,".
16Service of provisional improvement notice or inspector's notice
(1)In the heading to section 64 of the Principal Act, for "Service" substitute "Issue etc.".
(2)In section 64(1)(d) of the Principal Act, for "sending" substitute "if the person to whom the notice is to be issued or given is not a body corporate, sending".
(3)For section 64(2) of the Principal Act substitute—
"(2)In addition to subsection (1), if the person to whom a notice is to be issued or given is a body corporate, the notice may be issued or given by—
(a)delivering it personally to the head office, registered office or principal place of business of the body corporate; or
(b)sending it by post to the head office, registered office or principal place of business of the body corporate; or
(c)sending it by electronic communication to an employee, agent or officer of the body corporate.".
(4)In section 64(4) of the Principal Act, for "service" substitute "the issue or giving".
17Report to be given about entry
After section 103(3) of the Principal Act insert—
"(4)The report may be given in a manner specified in section 115(1) or (1A).
(5)Section 8(1) and (2) of the Electronic Transactions (Victoria) Act 2000 do not apply to the giving of a report by electronic communication in a manner specified in section 115(1) or (1A).".
18Service of notices
(1)In the heading to section 115 of the Principal Act, for "Service" substitute "Issue".
(2)In section 115(1)(d) of the Principal Act, for "sending" substitute "if the person to whom the notice is to be issued is not a body corporate, sending".
(3)For section 115(1A) of the Principal Act substitute—
"(1A)In addition to subsection (1), if the person to whom a notice is to be issued is a body corporate, the notice may be issued by—
(a)delivering it personally to the head office, registered office or principal place of business of the body corporate; or
(b)sending it by post to the head office, registered office or principal place of business of the body corporate; or
(c)sending it by electronic communication to an employee, agent or officer of the body corporate.".
(4)In section 115(1C) of the Principal Act, for "service" substitute "the issue".
19Infringement notices
After section 139(1A) of the Principal Act insert—
"(1B)For the purposes of subsection (1), an infringement notice for an offence referred to in subsection (1) may be served in a manner specified in section 115(1) or (1A).
Note
Section 12 of the Infringements Act 2006 contains further provisions regarding service of infringement notices.
(1C)Section 8(1) and (2) of the Electronic Transactions (Victoria) Act 2000 do not apply to service of an infringement notice by electronic communication in a manner specified in section 115(1) or (1A).".
Division 2—Amendment of Dangerous Goods Act 1985
20Definitions
In section 3(1) of the Dangerous Goods Act 1985, for the definition of officer substitute—
"officer of a body corporate, unincorporated body or association or partnership has the meaning given by section 9 of the Corporations Act;".
21Report to be given about entry
After section 14A(3) of the Dangerous Goods Act 1985 insert—
"(4)The report may be given in a manner specified in section 17G(1) or (1AA).
(5)Section 8(1) and (2) of the Electronic Transactions (Victoria) Act 2000 do not apply to the giving of a report by electronic communication in a manner specified in section 17G(1) or (1AA).".
22Service of directions and notices
(1)In the heading to section 17G of the Dangerous Goods Act 1985, for "Service" substitute "Issue etc.".
(2)In section 17G(1)(ab) of the Dangerous Goods Act 1985, for "by sending" substitute "if the person to whom a notice is to be given or issued is not a body corporate, by sending".
(3)After section 17G(1) of the Dangerous Goods Act 1985 insert—
"(1AA)In addition to subsection (1), if the person to whom a notice is to be given or issued is a body corporate, the notice may be given or issued by—
(a)delivering it personally to the head office, registered office or principal place of business of the body corporate; or
(b)sending it by post to the head office, registered office or principal place of business of the body corporate; or
(c)sending it by electronic communication to an employee, agent or officer of the body corporate.".
(4)In section 17G(1B) of the Dangerous Goods Act 1985, for "service" substitute "the giving or issue".
23Infringement notices
After section 45B(1A) of the Dangerous Goods Act 1985 insert—
"(1B)For the purposes of subsection (1), an infringement notice for an offence referred to in subsection (1) may be served in a manner specified in section 17G(1) or (1AA).
Note
Section 12 of the Infringements Act 2006 contains further provisions regarding service of infringement notices.
(1C)Section 8(1) and (2) of the Electronic Transactions (Victoria) Act 2000 do not apply to service of an infringement notice by electronic communication in a manner specified in section 17G(1) or (1AA).".
Division 3—Amendment of Equipment (Public Safety) Act 1994
24Report to be given about entry
After section 15A(3) of the Equipment (Public Safety) Act 1994 insert—
"(4)The report may be given in a manner specified in section 19E(1) or (1AA).
(5)Section 8(1) and (2) of the Electronic Transactions (Victoria) Act 2000 do not apply to the giving of a report by electronic communication in a manner specified in section 19E(1) or (1AA).".
25Service of notices
(1)In the heading to section 19E of the Equipment (Public Safety) Act 1994, for "Service" substitute "Issue".
(2)In section 19E(1)(ab) of the Equipment (Public Safety) Act 1994, for "by sending" substitute "if the person to whom the notice is to be issued is not a body corporate, by sending".
(3)After section 19E(1) of the Equipment (Public Safety) Act 1994 insert—
"(1AA)In addition to subsection (1), if the person to whom a notice is to be issued is a body corporate, the notice may be issued by—
(a)delivering it personally to the head office, registered office or principal place of business of the body corporate; or
(b)sending it by post to the head office, registered office or principal place of business of the body corporate; or
(c)sending it by electronic communication to an employee, agent or officer of the body corporate.".
(4)In section 19E(1B) of the Equipment (Public Safety) Act 1994, for "service" substitute "the issue".
26Infringement notices
(1)In section 27(1) of the Equipment (Public Safety) Act 1994, after "this Act" insert "or the regulations".
(2)After section 27(1A) of the Equipment (Public Safety) Act 1994 insert—
"(1B)For the purposes of subsection (1), an infringement notice for an offence referred to in subsection (1) may be served in a manner specified in section 19E(1) or (1AA).
Note
Section 12 of the Infringements Act 2006 contains further provisions regarding service of infringement notices.
(1C)Section 8(1) and (2) of the Electronic Transactions (Victoria) Act 2000 do not apply to service of an infringement notice by electronic communication in a manner specified in section 19E(1) or (1AA).".
Division 4—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013
27Report to be given about entry
After section 132(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 insert—
"(5)The report may be given in a manner specified in section 139(1) or (1AA).
(6)Section 8(1) and (2) of the Electronic Transactions (Victoria) Act 2000 do not apply to the giving of a report by electronic communication in a manner specified in section 139(1) or (1AA).".
28Issue of Return to Work improvement notice
(1)In section 139(1)(ab) of the Workplace Injury Rehabilitation and Compensation Act 2013, for "by sending" substitute "if the employer to whom the notice is to be issued is not a body corporate, by sending".
(2)After section 139(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 insert—
"(1AA)In addition to subsection (1), if the employer to whom a notice is to be issued is a body corporate, the notice may be issued by—
(a)delivering it personally to the head office, registered office or principal place of business of the body corporate; or
(b)sending it by post to the head office, registered office or principal place of business of the body corporate; or
(c)sending it by electronic communication to an employee, agent or officer of the body corporate.".
(3)In section 139(1B) of the Workplace Injury Rehabilitation and Compensation Act 2013, for "service" substitute "the issue".
Part 5—Powers of certain office holders
29Powers of health and safety representatives
After section 58(1)(a) of the Principal Act insert—
"(ab)take photographs or measurements or make sketches or recordings at any part of a workplace at which a member of the designated work group works, other than during an interview under paragraph (d) or (e);".
30Powers on entry
After section 89(1)(b) of the Principal Act insert—
"(ba)take photographs or measurements or make sketches or recordings at the place;".
31Offences by authorised representatives
After section 91(c) of the Principal Act insert—
"(ca)intentionally use, disclose or provide to another person, for a purpose not reasonably connected with the exercise of a power under this Part, photographs or measurements taken or sketches or recordings made in the exercise of a power under section 89(1)(ba); or".
Part 6—Seized items
Division 1—Amendment of Occupational Health and Safety Act 2004
32Return of seized things
(1)After section 108(1)(b) of the Principal Act insert—
"(ba)the owner of the thing notifies the Authority in writing that the owner transfers ownership of the thing to the Authority; or
(bb)the thing is a copy made under section 124 of a document or part of a document; or".
(2)After section 108(3) of the Principal Act insert—
"(4)To avoid doubt, the Authority may destroy or dispose of a thing without giving notice to any person of the destruction or disposal if—
(a)the thing is forfeited to the Authority under section 109; or
(b)the owner of the thing has notified the Authority under subsection (1)(ba) that the owner transfers ownership of the thing to the Authority; or
(c)the thing is a copy made under section 124 of a document or part
of a document; or
(d)the Authority is otherwise authorised (by a law or court order) to destroy or dispose of the thing without giving notice to any person.".
Division 2—Amendment of Dangerous Goods Act 1985
33Return of seized things
(1)After section 16A(1)(b) of the Dangerous Goods Act 1985 insert—
"(ba)the thing is a copy made under section 19C of a document or part of a document; or".
(2)After section 16A(3) of the Dangerous Goods Act 1985 insert—
"(4)To avoid doubt, the Authority may destroy or dispose of a thing without giving notice to any person of the destruction or disposal if—
(a)the thing is forfeited to the Authority under section 16B; or
(b)the thing is a copy made under section 19C of a document or part
of a document; or
(c)the Authority is otherwise authorised (by a law or court order) to destroy or dispose of the thing without giving notice to any person.".
Division 3—Amendment of Equipment (Public Safety) Act 1994
34Return of seized things
(1)After section 18(1)(b) of the Equipment (Public Safety) Act 1994 insert—
"(ba)the owner of the thing notifies the Authority in writing that the owner transfers ownership of the thing to the Authority; or
(bb)the thing is a copy made under section 21C of a document or part of a document; or".
(2)After section 18(3) of the Equipment (Public Safety) Act 1994 insert—
"(4)To avoid doubt, the Authority may destroy or dispose of a thing without giving notice to any person of the destruction or disposal if—
(a)the thing is forfeited to the Authority under section 18A; or
(b)the owner of the thing has notified the Authority under subsection (1)(ba) that the owner transfers ownership of the thing to the Authority; or
(c)the thing is a copy made under section 21C of a document or part
of a document; or
(d)the Authority is otherwise authorised (by a law or court order) to destroy or dispose of the thing without giving notice to any person.".
Division 4—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013
35Return of seized things
(1)After section 135(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 insert—
"(ab)the owner of the thing notifies the Authority in writing that the owner transfers ownership of the thing to the Authority; or
(ac)the thing is a copy made under section 145 of a document or part of a document; or".
(2)At the end of section 135 of the Workplace Injury Rehabilitation and Compensation Act 2013 insert—
"(2)The Authority may destroy or dispose of a thing without giving notice to any person of the destruction or disposal if—
(a)the owner of the thing has notified the Authority under section 135(1)(ab) that the owner transfers ownership of the thing to the Authority; or
(b)the thing is a copy made under section 145 of a document or part
of a document; or
(c)the Authority is otherwise authorised (by a law or court order) to destroy or dispose of the thing without giving notice to any person.".
Part 7—Repeal of this Act
36Repeal of this Act
This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 23 June 2021
Legislative Council: 14 September 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Occupational Health and Safety Act 2004, the Dangerous Goods Act 1985, the Equipment (Public Safety) Act 1994 and the Workplace Injury Rehabilitation and Compensation Act 2013 in relation to labour hire arrangements, insurance and indemnities, notice requirements and the powers of certain persons and for other purposes."
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