The 2004 Act places duties on other parties. The basic duties are the same as they were under the earlier 1985 Act, but some of the duties have been separated out. There has also been an important addition, which is the duty of designers of buildings or structures (Section 28).
Section 26 Duties of persons who manage or control workplaces
This section means that it does not matter whether the employer (or 'person') owns the building or not: if they have 'to any extent' the management or control of the workplace, they must make sure that workplace and the means of entering it or leaving it are safe and without risks to health (so far as reasonably practicable*).
The level of duty is in relation to matters over which the 'person' has management or control - the higher the level of control, the higher the duty.
Section 27 Duties of designers of plant
This section places a duty on the designers of plant (who 'know or ought to know' that the plant will be used in workplaces) to:
- design it to be safe and without risks to health (so far as reasonably practicable*)
- carry out testing of the plant to ensure that it is safe and without risks to health (so far as reasonably practicable*)
- give the necessary information to those s/he supplies the design to (eg possible manufacturers) regarding the purpose fo the plant, the test results, and any conditions necessary to ensure the plant is safe (so far as reasonably practicable*).
This information must also be given, if requested, to anyone who uses or will use the plant.
Section 28 Duties of designers of buildings or structures
This section now covers what had been a gap in the earlier 1985 Act, where there was no specific duty on designers of workplaces to ensure that buildings or structures that they know, or ought reasonably to know, are to be used as workplaces must ensure so far as reasonably practicable, that these are designed to be safe and without risks to the health of people who will be using them (so far as reasonably practicable*).
WorkSafe Victoria has produced a guide Designing safer building & structures in order to assist duty holders in complying with the new requirement.
Section 29 Duties of manufacturers of plant or substances
Under this section, a person who manufactures plant or substances they know or ought reasonably know is going to be used at a workplace, must do it so the plant or substance is safe and without risk to health (so far as reasonably practicable*). This means testing and providing adequate information to those to whom the plant or substance is going to be provided to or who will use it.
Section 30 Duties of suppliers of plant or substances
Anyone supplying plant or substances they know or ought reasonably know is going to be used at a workplace must make sure that it is safe and without risks to health 'when used to the purposed for which it was designed, manufactured or supplied' (so far as reasonably practicable*) and must provide adequate information.
Section 31 Duties of persons installing, erecting or commissioning plant
These persons have a duty to ensure that nothing about the way in which plant has been installed, erected or commissioned makes its use unsafe or a risk to health (so far as reasonably practicable*).
* So far as reasonably practicable
This is a fundamental concept in the OHS Act. Section 20 of the Act states:
"regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety -
- the likelihood of the hazard or risk concerned eventuating;
- the degree of harm that would result if the hazard or risk eventuated;
- what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
- the availability and suitability of ways to eliminate or reduce the hazard or risk;
- the cost of eliminating or reducing the hazard or risk.
All of these must be taken into account in determining what is 'reasonably practicable'.
WorkSafe has produced a number of pdf publications which are available free or can be downloaded from their website:
- Information for Occupiers and those who manage or control workplaces
- Information for Manufacturers and Suppliers of Plant
- A guide for Manufacturers, Importers and Suppliers of Hazardous Substances
- A guideline (made under Section 12 of the OHS Act, 2004): How WorkSafe applies the law in relation to Reasonably Practicable which explains the concept and its application.
The 2004 Act can be downloaded (in both pdf and word format) on the Victorian government legislation repository website.
Last amended September 2015