Occupational Health and Safety Act 2004

The Act casts a wide net. The core duty in s 21 applies to every “employer”, defined in s 5(1) as a person who employs one or more persons under a contract of employment or training. Section 5A extends that concept to labour-hire providers and host businesses: a person is taken to be an employer of a worker supplied, recruited or placed by a labour-hire provider, subject to prescribed exclusions. “Employee” is correspondingly extended. “Self-employed person” (s 5(1)) is anyone who works for gain or reward otherwise than under a contract of employment or training; they owe duties under ss 24 and 38–39.

Persons who manage or control workplaces (whether as owners or otherwise) owe duties under s 26 limited to matters within their management or control. Designers, manufacturers, suppliers and installers of plant, substances, buildings or structures are captured by ss 27–31 whenever they know or ought reasonably to know that the item will be used at a workplace. The public is protected by the s 23 duty on employers and the s 24 duty on self-employed persons to ensure that persons other than their own employees are not exposed to risks arising from the conduct of their undertakings.

Employees owe duties of reasonable care and non-interference (s 25). Officers of bodies corporate, partnerships and unincorporated associations can be personally liable under ss 144 and 145 where a breach is attributable to their failure to take reasonable care. Volunteers are excluded from certain officer and workplace-manslaughter liabilities (ss 39G(5), 144(5), 145(5)) but remain subject to the general s 25 employee duties while at work.

Health and safety representatives, deputy representatives and committee members exercise statutory powers and are protected from discrimination (Part 7 Division 9). Authorised representatives of registered employee organisations may enter workplaces (Part 8). The Authority, inspectors, the Occupational Health and Safety Advisory Committee and the Workplace Incidents Consultative Committee perform public functions. The Crown is bound in all its capacities (s 6) and is treated as a body corporate; a responsible-agency mechanism identifies the particular Crown entity to be proceeded against (s 146).

Non-WorkCover employers (defined by reference to the Workplace Injury Rehabilitation and Compensation Act 2013) must contribute to the WorkCover Authority Fund and supply returns and information (ss 151A–151F). Any person who supplies false or misleading information, obstructs an inspector or fails to comply with a notice may be prosecuted.

In practice, therefore, the Act affects every Victorian workplace, every person conducting a business or undertaking (including sole traders, partnerships, companies, government departments and not-for-profits), every worker (employees, contractors, labour-hire workers, volunteers performing paid work), every upstream supplier in the supply chain, and every officer with decision-making capacity.

The centrepiece is the employer’s duty under s 21(1). It is qualified by “so far as is reasonably practicable” and is therefore not absolute, but the s 20(2) factors make clear that cost alone will rarely justify inaction where the likelihood or severity of harm is high. The duty is supported by specific obligations to monitor health and conditions (s 22), consult (s 35), notify incidents (s 38) and preserve sites (s 39).

Employees’ rights include the right to a safe workplace, the right to be consulted before decisions that affect their health or safety (s 35), the right to elect and be represented by a health and safety representative (ss 54–59), and protection from discriminatory conduct (ss 76, 78A). A health and safety representative may inspect at any time after reasonable notice or immediately in an emergency (s 58(1)(a)), accompany inspectors (s 58(1)(b)), be present at interviews (s 58(1)(d)–(e)), issue provisional improvement notices after consultation (s 60), and direct cessation of work where there is an immediate threat that cannot be resolved through the s 73 procedure (s 74). Employers must train representatives (s 67), share costs where multiple employers are involved (s 68), provide information and facilities (s 69), and maintain a list of representatives (s 71).

Upstream duty-holders have rights to receive information from downstream users (ss 27(c)(d), 29(c)(d), 30(b)(c)) and to limit their liability to matters within their control (ss 26(2), 31(1)). Designers of buildings or structures enjoy a transitional limitation (s 162).

The Authority has power to give compliance advice (s 18), accept enforceable undertakings (s 16), issue guidelines (s 12) and approve compliance codes (s 149). Inspectors may issue non-disturbance, improvement and prohibition notices (ss 110–112) and require names and addresses (s 119). Review rights exist for most notices and inspector decisions (s 127 table items 3, 7–12). Persons affected by discriminatory conduct may seek damages or reinstatement in the Industrial Division of the Magistrates’ Court (s 78D).

The Act expressly preserves civil liability (s 34) and does not affect legal professional privilege (s 155) or the privilege against self-incrimination except in limited cases (s 154).

Penalties are graduated. The most serious indictable offences (breach of the primary employer duty under s 21(1), duties to non-employees under ss 23 and 24, and most upstream duties under ss 26–31) attract 1,800 penalty units for a natural person or 9,000 for a body corporate. Reckless endangerment under s 32 carries up to five years’ imprisonment or 1,800 penalty units (or 20,000 for a body corporate). Workplace manslaughter carries 25 years’ imprisonment for a natural person or 100,000 penalty units for a body corporate (s 39G).

Lower-tier offences (failure to consult, failure to notify incidents, obstruction) carry 180–500 penalty units. Officers who fail to exercise due diligence face the same maximum as the body corporate would have faced (s 144). Infringement notices are available for prescribed summary offences at no more than one-fifth of the court maximum (s 139(2)).

Enforcement tools are diverse. Provisional improvement notices may be issued by health and safety representatives (s 60) and, if not complied with, may be affirmed or cancelled by an inspector (s 63). Inspectors may issue improvement notices (s 111), prohibition notices (s 112) and non-disturbance notices (s 110). All notices may be reviewed internally and then by the Tribunal (Part 10). Enforceable undertakings may be accepted by the Authority (s 16) and, if breached, enforced by the Magistrates’ Court (s 17). Adverse publicity orders, improvement-project orders and release on undertakings are available on sentencing (ss 135–137). The Authority may seek injunctions for non-compliance with notices (s 118).

Proceedings may be brought only by the Authority or an authorised inspector (s 130). The limitation period for most indictable offences is two years from when the offence first comes to the Authority’s notice, one year from a coronial report or inquest, or six months after breach of an undertaking (s 132(1)). Workplace manslaughter may be prosecuted at any time (s 132(3)). The Authority must publish prosecution guidelines (s 130(4)) and report annually on requests for prosecution (s 131(6)).

The Act is administered by WorkSafe Victoria, which is also the Victorian WorkCover Authority under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA). Functions overlap; the Authority’s functions under the OHS Act are supplemented by WIRCA functions (note to s 7(1)). Contributions by non-WorkCover employers to the WorkCover Authority Fund are calculated by reference to WIRCA definitions of rateable remuneration, self-insurer and exit date (ss 5(1), 151A).

The Act binds the Crown (s 6) and interacts with the Dangerous Goods Act 1985 and Equipment (Public Safety) Act 1994 through corresponding-authority provisions (s 5(1)) and joint appointment of inspectors (s 95(2)). Offshore petroleum and greenhouse-gas-storage activities are primarily the responsibility of the Minister administering the Offshore Petroleum and Greenhouse Gas Storage Act 2010 (s 157).

Compliance codes and regulations made under the Act can incorporate documents by reference (ss 149(2), 158(2)(d)). The Interpretation of Legislation Act 1984 applies to the construction of the Act (s 161). Legal professional privilege and client legal privilege are preserved (s 155). The privilege against self-incrimination is available except for production of documents or provision of name and address (s 154).

The Act does not affect civil liability (s 34), so common-law negligence claims and actions under the Wrongs Act 1958 remain available. Discrimination provisions in Part 7 Division 9 operate alongside the Equal Opportunity Act 2010. The Fair Work (Registered Organisations) Act 2009 (Cth) supplies the definition of registered employee organisation for Part 8 entry rights.

Transitional provisions in Parts 14 and 15 ensure continuity of designated work groups, representatives, inspectors and notices issued under the 1985 Act (ss 163–170). Successive amending Acts have inserted specific transitional rules for undertakings, notification duties, limitation periods and workplace manslaughter (Part 15).

The version incorporated as at 6 August 2025 reflects amendments made by the WorkSafe Legislation Amendment Act 2017, the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019, the Crimes Amendment (Manslaughter and Related Offences) Act 2020, the Occupational Health and Safety and Other Legislation Amendment Act 2021, the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024 and the Workplace Injury Rehabilitation and Compensation Amendment Act 2025.

The 2017 amendments tightened incident-notification timeframes (s 38), clarified service of notices (ss 64, 115), extended the limitation period for prosecutions (s 132) and aligned false-and-misleading-information offences with the new limitation regime (s 153). They also introduced the Workplace Incidents Consultative Committee (Part 9A) to give victims a formal voice in policy development.

The 2019 and 2020 amendments inserted Part 5A to create workplace manslaughter as a distinct indictable offence carrying 25 years’ imprisonment. The 2019 Act defined the elements (ss 39B–39F) and made clear that the offence focuses on the conduct of the body corporate itself rather than solely on imputed liability under s 143 (s 39E(2)). The 2020 amendment adjusted the interaction with the Crimes Act 1958 to ensure the new offence sat coherently within the homicide framework.

The 2021 Act introduced the extended employer definition for labour-hire arrangements (s 5A), a parallel consultation duty (s 35A), new powers for health and safety representatives to take photographs, measurements, sketches or recordings (ss 58(1)(ab), 89(1)(ba)), and Part 11A prohibiting insurance or indemnity for pecuniary penalties (ss 148A–148B). These changes responded to the labour-hire workforce growth and to the need to prevent employers from shifting the financial burden of penalties away from those who control the risk.

The 2024 amendment added s 8AA, permitting the Authority to use information collected under the Act for any of its functions under any Act provided the use is reasonably necessary or directly related. The provision expressly preserves the Health Records Act 2001, Privacy and Data Protection Act 2014 and Victorian Data Sharing Act 2017.

The 2025 amendment expanded the membership of the Occupational Health and Safety Advisory Committee to include two persons who have been affected, directly or indirectly, by a workplace incident involving death or serious injury or illness (s 19(3)(f)). This change further embeds victim perspectives into the advisory process.

Each set of amendments has been driven by the need to close enforcement gaps, respond to changing work arrangements, increase deterrence for the most serious breaches, and give affected persons a greater role in shaping policy.

The Act itself does not record specific court challenges, but its provisions anticipate and structure litigation in several areas. The reviewable-decisions table in s 127 has been the vehicle for numerous Tribunal challenges to improvement and prohibition notices. Because a notice must state the grounds of the inspector’s belief and the provision believed to be contravened (ss 111(2), 112(2)), disputes frequently centre on whether the belief was reasonable and whether the inspector correctly identified a breach of an applicable duty. The Tribunal’s power to review the decision on the merits (s 129 and the Victorian Civil and Administrative Tribunal Act 1998) means it can substitute its own view of what is reasonably practicable.

Discrimination litigation under ss 76 and 78A–78E has tested the breadth of “prohibited reason”. The onus-shifting provision in s 77 (and its civil counterpart in s 78E(2)) places the burden on the employer to prove that the prohibited reason was not the dominant (criminal) or substantial (civil) reason for the adverse action once the employee proves the conduct and the reason alleged. Courts have had to distinguish between genuine safety concerns and other motivations. The civil action route in the Industrial Division of the Magistrates’ Court has proved attractive because it allows damages and reinstatement orders without the higher criminal standard of proof.

Workplace-manslaughter prosecutions under s 39G are still relatively new. The statutory definitions in ss 39C–39F were drafted to overcome perceived difficulties with the previous common-law manslaughter-by-criminal-negligence pathway. Controversies are likely to arise around the meaning of “negligent” for a body corporate (s 39E(2)), the relationship between the s 20 reasonably-practicable test and the “great falling short” standard, and whether conduct that complies with an approved compliance code can nevertheless be negligent. Because the offence can be committed by omission (s 39C) and applies whether or not other conduct contributed (s 39D), the reach is broad.

The prohibition on insurance and indemnity in Part 11A has generated debate about its effect on directors-and-officers policies that previously covered regulatory fines. The voiding of such terms (s 148A) and the offence provisions (s 148B) raise questions about the scope of “pecuniary penalty” and whether a term that indemnifies only legal costs (as opposed to the penalty itself) is caught.

The expanded labour-hire provisions (ss 5A, 35A) have prompted discussion about overlapping duties and the practicality of consultation between host and provider. The exclusionary regulation-making power in s 5A(2)–(3) will be important in delineating the boundary.

Finally, the Authority’s power to use information across its statutory functions (s 8AA) must be exercised consistently with privacy legislation. Any perceived over-reach is likely to be tested against the “reasonably necessary” and “directly related” limbs of that section.

Most practitioners recognise the primary duty under s 21 but underestimate how far the “reasonably practicable” qualifier travels. The s 20(2) factors are mandatory; a bare assertion that a control was too expensive will not suffice if the likelihood and severity of harm were high and cheaper controls were available. Conversely, the test is not a pure cost–benefit analysis; the availability and suitability of controls must be weighed first.

The extended labour-hire definition in s 5A is broader than many realise. A host business is taken to be an employer even if it has no direct contract with the worker, provided the provider supplies, recruits or places the worker to perform work for the host. The only exclusions are those prescribed by regulation. This creates overlapping duties that engage the s 35A obligation to consult, co-operate and co-ordinate. Failure to do so is a separate offence carrying 180 penalty units (natural person) or 900 for a body corporate.

Health and safety representatives’ power to issue provisional improvement notices (s 60) is exercised after consultation but before any inspector involvement. The notice can be issued for a past contravention that is likely to continue or be repeated. A representative who issues a notice without the requisite reasonable belief risks disqualification (s 56), yet an employer who ignores the notice without seeking inspector review (s 63) commits an indictable offence (s 62). The seven-day window to request inspector attendance is therefore critical.

The workplace-manslaughter offence looks to the conduct of the body corporate itself (s 39E(2)). Compliance with a compliance code or regulation is a defence to a general duty breach (s 152) but does not automatically negate negligence for manslaughter purposes. The “great falling short” test is higher than ordinary civil negligence; however, a systematic failure to address a known high-risk hazard can easily meet it.

Part 11A is absolute in its prohibition on insurance or indemnity for pecuniary penalties. Even a term that reimburses a penalty after it has been paid is void. The offence of providing or receiving such a benefit (s 148B) applies to natural persons and bodies corporate alike and is itself indictable. Directors should review existing policies carefully; many pre-2021 policies contain clauses that are now unenforceable.

The discrimination provisions contain an onus shift that catches unwary employers. Once the employee proves the adverse action and the prohibited reason, the employer must prove that the prohibited reason was not dominant (criminal) or substantial (civil). A contemporaneous performance-management process that happens to coincide with the employee raising a safety issue will require careful contemporaneous documentation if it is to rebut the presumption.

Finally, the Authority’s annual reporting obligation under s 131(6) and the requirement to report investigation delays to the Minister (s 131(7)) mean that public requests for prosecution are now visible. A decision not to prosecute that appears to depart from published guidelines can generate reputational as well as legal risk.

Compliance begins with a systematic risk-management process that addresses the s 20(2) factors for every foreseeable hazard. A written safety management system that identifies hazards, assesses risks, selects controls in the hierarchy of elimination, substitution, isolation, engineering, administrative controls and PPE, and reviews effectiveness is the practical manifestation of the primary duty.

Consultation must be genuine. For every matter listed in s 35(1) the employer must share relevant information, give employees a reasonable opportunity to express views, and take those views into account. Where a health and safety representative exists, that representative must be involved. Records of consultation should be kept; the Tribunal and courts treat the absence of records as strong evidence that consultation did not occur.

Designated work groups should be negotiated having regard to the s 46 matters (number of employees, nature of work, hazards, shift arrangements, language). Once formed, representatives must be elected in accordance with s 54 and trained within the time limits set by s 67. Employers must allow paid time off for initial and refresher training, pay course costs, and provide facilities and information (ss 67–69). A list of representatives must be displayed (s 71).

Incident-notification procedures must ensure that the Authority is notified immediately upon awareness of a notifiable incident (s 38). The written record must be supplied within 48 hours and kept for five years. The site must not be disturbed except to save life, aid the injured or make the site safe (s 39). A register of notifiable incidents should be maintained to demonstrate compliance.

Upstream duty-holders must provide adequate information about the intended use, test results and necessary conditions for safe use (ss 27–30). Manufacturers and suppliers should obtain declarations from customers confirming the intended workplace use.

Officers must be able to demonstrate that they took reasonable care. This includes ensuring that the organisation has appropriate resources, systems and reporting lines for safety, that risks are reviewed regularly, and that incidents are investigated and lessons learned. For labour-hire arrangements the host and provider must consult, co-operate and co-ordinate their respective control measures.

All persons should be trained in their specific duties. Employees must be instructed that they are required to take reasonable care, report hazards and follow safe-work procedures. Contractors must be inducted and their safety systems verified.

Records are critical. Training records, risk assessments, consultation minutes, maintenance logs, incident reports and audit results should be kept for at least the limitation period of potential prosecutions (two years for most matters, indefinitely for manslaughter). Electronic systems that allow retrieval in a form acceptable to an inspector satisfy the s 22 record-keeping duty.

Internal compliance audits should test whether the organisation would satisfy an inspector that risks have been eliminated or reduced so far as is reasonably practicable. Where a prohibition or improvement notice is received, it must be complied with by the stated date or an application for review lodged immediately. An internal review application does not automatically stay the notice; a separate stay application to the Authority is required (s 128(6)).

Finally, the organisation should maintain a positive safety culture. This includes encouraging the raising of safety concerns without fear of reprisal (the discrimination provisions are strictly enforced) and participating in the consultative structures created by the Act. A business that treats health and safety representatives as partners rather than adversaries, documents its decisions against the s 20(2) factors, and reviews controls after every incident will be well placed to demonstrate compliance if challenged by an inspector, the Tribunal or a court.