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7.7.1 – Employer’s Duty to Employees and non-Employees

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Overview of OHS Offences

  1. Division 2 of Part 3 of the Occupational Health and Safety Act 2004 (“OHS Act 2004”) creates three offences that an employer may be charged with:
  2. This topic concerns the first and third of these offences.

    Authority to Prosecute

  3. Proceedings for offences under the Act may only be brought by:
  4. Authority to prosecute is not an element of an offence. Consequently, if the accused does not raise the issue, the presumption of regularity applies and the court may presume the prosecution was validly commenced (AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; AB Oxford Cold Storage Co v Arnott (2003) 8 VR 288).
  5. Where the accused raises an issue regarding authorisation, the prosecution must prove that the prosecution was validly commenced on the balance of probabilities (AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; AB Oxford Cold Storage Co v Arnott (2003) 8 VR 288).
  6. Difficulties may arise where the Victorian Workcover Authority only authorises an inspector to prosecute in a particular case (rather than providing an inspector with a general power to prosecute). Such an authorisation is not put in doubt simply because it does not, on its face, identify the specific prosecution commenced. There is a rebuttable presumption that an authorisation which is capable of applying to a proceeding does apply. To rebut the presumption, the accused must show that the apparent authorisation does not apply (AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; Berwin v Donohoe (1915) 21 CLR 1).
  7. To determine whether an inspector had the necessary authority to prosecute, the court will need to examine the wording of the written authorisation, in conjunction with the charge-sheet or indictment (AB Oxford Cold Storage Co v Arnott (2005) 11 VR 298; Berwin v Donohoe (1915) 21 CLR 1).

    Overview of Elements and Circumstances

    Elements

  8. The offences under ss 21 and 23 both have the following 4 elements:
    1. the accused was an employer at the relevant time;
    2. there was a risk to health and safety;
    3. the accused failed to take an identified measure which would have eliminated or reduced the risk (as the case may be);
    4. it was ‘reasonably practicable’ in the circumstances for the employer to have taken those measures (DPP v Vibro-Pile (2016) 49 VR 676 at [6]; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [25]).
  9. There is no need to prove mens rea, and no defence of honest and reasonable mistake of fact or “due diligence” (R v Commercial Industrial Construction Group (2006) 14 VR 321; ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409).
  10. There is also no need to prove any of the elements of negligence, such as duty of care, loss or foreseeability (Dinko Tuna Farmers v Markos (2007) 98 SASR 96).[2]

    Circumstances in which s21 may be breached

  11. Without limiting the general obligation in s21(1) to provide and maintain a safe working environment for employees, section 21(2) specifies five circumstances in which an employer breaches s21:
    1. failing to provide or maintain plants or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
    2. failing to make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
    3. failing to maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;
    4. failing to provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the employer’s management and control; and
    5. failing to provide the information, instruction, training or supervision to employees that is necessary to enable them to perform their work in a way that is safe and without risks to health.
  12. This list is not exhaustive of the ways in which s21 may be breached (Kirk v Industrial Court of NSW (2010) 239 CLR 531).
  13. While this list does not directly apply to charges under s23, these circumstances inform the assessment of whether an employer has breached its duty to non-employees (DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [23]).
  14. After setting out the general approach that employers must take to workplace safety, this commentary examines the elements of the offence and then the operation of the deemed breach circumstances.

    Duty to eliminate or reduce

  15. The duties in ss21 and 23 require the employer to eliminate risks to health and safety, so far as is reasonably practicable. If it is not reasonably practicable to eliminate risks, then the employer must reduce the risks so far as is reasonably practicable (OHS Act 2004 s20(1)).

    Employers Must Take a Proactive Approach to Safety

  16. Compliance with the obligations created by ss21 and 23 requires employers to be proactive in identifying and responding to risks in a workplace (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119).
  17. In providing a working environment that is safe and without risks to health, employers must account for employees who are hasty, careless, inattentive or who fail to take reasonable care for their own safety or who fail to comply with a prescribed safe system of work (R v Commercial Industrial Construction Group (2006) 14 VR 321 at [49]. See also McLean v Tedman (1984) 155 CLR 306; Workcover Authority (NSW) (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd [2001] NSWIRComm 50; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 per Dixon CJ; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [51]).
  18. The jury must not consider the accused’s acts or omissions with the benefit of hindsight, but with an understanding that one of the chief responsibilities of an employer is the safety of their employees and non-employees. The Act requires employers to adopt an active, imaginative and flexible approach to potential dangers in the workplace, while recognising that human frailty is an ever-present reality (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80; R v Commercial Industrial Construction Group (2006) 14 VR 321; R v Australian Char Pty Ltd [1999] 3 VR 834; Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557).
  19. From time to time employers must search for and address hazards that may exist in the workplace. The degree of vigilance required in searching for hazards depends in part on the degree of harm that may result from those hazards. It is especially important that employers responsible for inherently dangerous workplaces search for and eliminate hazards (Rail Infrastructure Corporation v Page [2008] NSWIRComm 169).

    Elements

    The accused is an employer

  20. The first element the prosecution must prove is that the accused is an employer (OHS Act 2004 s21).
  21. An employer is defined as a person who employs one or more people under contracts of employment or contracts of training (OHS Act 2004 s5).

    A risk to health and safety

  22. The second element is that there is a risk to health and safety.
  23. This element operates differently for the offences under ss21 and 23.
  24. For s21, the prosecution must prove that there was a risk in the working environment to employee health and safety.
  25. For s23, the prosecution must prove that there was a risk from the conduct of the employer’s undertaking to the health and safety of non-employees.

    Section 21 – Duty to employees

  26. The prosecution must prove that the accused’s failure to take the identified measures led to their employees’ health or safety being placed at risk (OHS Act 2004 s21; Cahill v State of New South Wales [2008] NSWIRComm 123; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453).
  27. There are three aspects to this requirement:
    1. there must be a risk;
    2. it must have been a risk to the health or safety of employees; and
    3. the risk must have arisen in the working environment.

    Risk

  28. The first part of this element requires the prosecution to identify a particular risk which is said to exist.
  29. Proof of the existence of that risk provides the factual framework against which the third and fourth elements are assessed.
  30. The prosecution does not need to show that the accused created the risk to their employees’ health and safety, or that the risk was caused solely by the accused’s failure to take the specified measures (O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361; State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd (No 1) [1999] NSWIRComm 453).
  31. The risk may arise from a single act or omission, or a combination of acts or omissions (Diemould Tooling Services v Oaten (2008) 101 SASR 339).
  32. The prosecution must identify the general class of risk that it is alleged existed (State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303; O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361).
  33. The court must not artificially confine the alleged class of risk. For example, it may not be appropriate to attempt to distinguish between a risk of harm resulting from deliberate conduct and a risk of harm arising from negligent conduct (State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303; Cahill v State of New South Wales [2008] NSWIRComm 123; O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361).
  34. When describing workplace risks, the judge should avoid the term “potential risk”, as that may refer to a risk that does not yet exist. The Act does not require employers to address non-existent risks (Morrison v Powercoal Pty Ltd (2004) 137 IR 253; Newcastle Wallsend Coal Company v McMartin [2006] NSWIRComm 339).
  35. In determining whether a risk exists (and whether a measure is necessary to reduce or eliminate that risk), the employer is not entitled to assume that employees are highly trained and experienced (DPP v Vibro-Pile (2016) 49 VR 676 at [59]).

    Employees

  36. The prosecution must prove that it was the health and safety of the accused’s employees that was placed at risk (OHS Act 2004 s21; Linfox & Ors v The Queen (2010) 30 VR 507).
  37. Section 21(3) defines “employee” to include independent contractors and sub-contractors. See “Independent Contractors” below.
  38. Section 21 concerns the accused’s failure to protect employees as a class. Consequently, the prosecution does not need to identify a particular employee that was put at risk by the accused’s failure to take the specified measure (Diemould Tooling Services v Oaten (2008) 101 SASR 339).
  39. However, it will sometimes be necessary to specify (in the particulars to the offence) which people it is alleged were exposed to the risk, in order to identify the relevant class of employees (Diemould Tooling Services v Oaten (2008) 101 SASR 339).
  40. The jury must be satisfied that the accused’s employees were placed at risk, rather than employees of some other entity (Linfox & Ors v the Queen (2010) 30 VR 507).
  41. However, in the case of a work-site involving employees of several entities, each employer will have separate duties to their employees. This is especially relevant in relation to labour-hire companies, which are responsible for the safety of their employees even when the company does not control the employee’s work site (DPP v Vibro-Pile (2016) 49 VR 676 at [151]).
  42. In particular, a labour-hire company will need to take steps to take positive steps to ensure the safety of their employees and provide appropriate supervision and monitoring to ensure a safe working environment (DPP v Vibro-Pile (2016) 49 VR 676 at [151]).

    Working environment

  43. The risk to employees’ health or safety must have arisen in the working environment (OHS Act 2004 s21).
  44. The concept of the “working environment” is not confined to permanent premises or environments with clear physical boundaries. It covers any environment where an employee may be expected to work, and may move with the employee based on the nature of the work (see, e.g., TTS Pty Ltd v Griffiths (1991) 105 FLR 255; Gough v National Coal Board [1959] AC 698; Whittaker v Delmina Pty Ltd [1998] VSC 175; DPP v Vibro-Pile (2016) 49 VR 676).
  45. A “working environment” can include:

    Section 23 – Duty to non-employees

  46. For a charge under s23, the prosecution must prove that the conduct of the employer’s undertaking created a risk to the health and safety of non-employees. There are the three aspects of this element:
    1. The employer conducted an undertaking;
    2. The employer’s undertaking created a risk;
    3. The risk was to the health or safety of non-employees.

    Employer’s undertaking

  47. The employer’s undertaking is the employer’s enterprise or business (R v Associated Octel Co Ltd [1994] 4 All ER 1051; DPP v Vibro-Pile (2016) 49 VR 676; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50).
  48. The undertaking is not limited to the employer’s normal place of work, or where the employer is in control of the workplace. It is assessed based on the nature of the employer’s business (DPP v Vibro-Pile (2016) 49 VR 676, [175]-[177]; Whittaker v Delmina Pty Ltd [1998] VSC 175).

    Non-employees

  49. For the s23 offence, the person placed at risk must have been a non-employee.
  50. For the purpose of this offence, the deeming provision that extends the definition of employees to certain independent contractors (See “Independent Contractors” below) does not apply. As a result, where the case involves a risk to an independent contractor, the prosecution may choose to bring the charge either under s21, and rely on the deeming provision, or under s23 where there is no deeming provision (Muscat v Magistrates’ Court of Victoria [2018] VSC 650 at [45]).

    Failure to take an identified measure which would have eliminated or reduced the risk

  51. The Act requires that employers “provide and maintain … a working environment that is safe and without risks to health” or “ensure … that persons other than employees are not exposed to risks to their health or safety”. This is an obligation to achieve a result (that is, the provision and maintenance of a safe environment) (ABC Development Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [24]).
  52. However, as a matter of practice, the prosecution must identify, with sufficient precision, the particular measures that it says the accused should have taken to prevent the identified risk from eventuating (Kirk v Industrial Court of NSW (2010) 239 CLR 531; John Holland v Industrial Court of NSW [2010] NSWCA 338. See also Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23).
  53. The prosecution must identify, as part of the particulars of the offence, the measure or measures which it claims were necessary to eliminate or reduce the risk. These must be identified before the trial begins, as the adequacy of particulars does not depend on the evidence which is presented (DPP v Vibro-Pile (2016) 49 VR 676 at [131]).
  54. It is not sufficient to make generic allegations that the accused failed to “guarantee” or “ensure” that a workplace was safe, or failed to take “adequate” steps (Kirk v Industrial Court of NSW (2010) 239 CLR 531; John Holland v Industrial Court of NSW [2010] NSWCA 338).
  55. The degree of specificity required will depend on the issues in the case, and whether the particulars identify the act or omission that constitutes the offence (Baida Poultry Pty Ltd v Glenister [2015] VSCA 344 at [49]; DPP v Vibro-Pile (2016) 49 VR 676 at [134]).
  56. The prosecution does not, however, need to provide particulars that show the proposed actions were ‘reasonably practicable’ or, in the case of a charge involving s21(2)(e), that the actions were ‘necessary’. The question of ‘reasonably practicable’ or ‘necessity’ is a broad jury question that involves a consideration of all of the evidence (Baida Poultry v Inspector Glenister [2015] VSCA 344; Downer EDI Works Pty Ltd v The Queen (2017) 53 VR 1 at [28]-[33]). 
  57. The measures necessary will depend on the circumstances prevailing at the workplace, the activities undertaken, the skills of the employees and the plant or substances in use (Kirk v Industrial Court of NSW (2010) 239 CLR 531; DPP v Vibro-Pile (2016) 49 VR 676 at [51]; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [40]).[3]
  58. In determining whether a measure is necessary, the employer is not entitled to assume that employees are highly trained and experienced (DPP v Vibro-Pile (2016) 49 VR 676 at [59]).
  59. It may be alleged that the accused failed to take one specific measure or a number of identified measures (Diemould Tooling Services v Oaten (2008) 101 SASR 339).
  60. As ss21 and 23 do not rely on principles of attribution or vicarious liability, it is not necessary to identify at what level within an organisation the alleged failure occurred. The focus instead is on whether the employer has failed to take all reasonably practicable measures, either by actively implemented an unsafe system of work, or allowing an unsafe system of work to continue (R v Commercial Industrial Construction Group (2006) 14 VR 321; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110; ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; R v Gateway Foodmarkets Ltd [1997] 3 All ER 78; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [39], [47]).
  61. The section does not create a system of vicarious criminal liability where a failure by an employee on a single occasion to follow safe processes necessarily constitutes a failure to maintain a safe system of work (DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [45]).
  62. While it is not necessary to identify the level at which the alleged failure occurred, failures by employees to follow safe systems of work may raise the question of precisely what the duty required in the circumstances. Where the prosecution alleges a failure to maintain a safe system, the jury will need to examine the whole system, including the experience, skill, knowledge and training of employees within that system. The prosecution will also need to show that there was a reasonably practicable step the employer failed to take to maintain its system (DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [41]-[43]).
  63. The prosecution must prove that the proposed measure would have eliminated or reduced the risk. It is insufficient to establish that the measure might have improved workplace safety (Kirk v Industrial Court of NSW (2010) 239 CLR 531; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92).

    Measures and Accidents (Causation not required)

  64. It is commonly the case that OH&S prosecutions occur after an incident has occurred that has demonstrated a system of work was unsafe. In such cases, the parties and the judge must maintain a clear understanding of how the accident may be relevant to proof of the offence.
  65. The prosecution does not need to show that the accident was caused by the accused’s failure to take the necessary steps. The occurrence of an accident is of evidentiary significance only (DPP v Vibro-Pile (2016) 49 VR 676 at [10]; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [24]).
  66. As evidence, the occurrence of an accident may help the prosecution show:
  67. In cases where the prosecution relies on an accident for evidentiary purposes:
    1. the jury should be specifically directed that it is not necessary to show that the relevant measure would have prevented the accident. Further, that any exploration of the circumstances of the accident is only for the purpose of showing or rebutting its evidentiary significance (DPP v Vibro-Pile (2016) 49 VR 676 at [89], [99]);
    2. it is best to avoid the language of causation in directions to the jury. References to an act or omission causing or producing a risk is apt to mislead the jury to think that the prosecution must show that the act or omission caused an accident or injury (DPP v Vibro-Pile (2016) 49 VR 676 at [83]);
    3. an undue focus on the accident will also lead to an unnecessary narrowing of the relevant risk (DPP v Vibro-Pile (2016) 49 VR 676 at [86]);
    4. a judge must be careful to ensure that any directions on the permissible use of evidence of an accident does not mislead the jury into thinking that they need to determine whether the failure to take the prescribed steps caused the accident (DPP v Vibro-Pile (2016) 49 VR 676 at [91]).

    Reasonable practicability

  68. The fourth element the prosecution must prove is that it was reasonably practicable for the accused to take the specified measures (OHSA 2004 s21; DPP v Vibro-Pile (2016) 49 VR 676 at [6]).
  69. Employers are not required to ensure that accidents never happen. Their obligation is to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to health, or ensure, so far as is reasonably practicable, that persons other than employees are not exposed to risks to their health and safety (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119. See also R v Australian Char Pty Ltd [1999] 3 VR 834; R v Commercial Industrial Construction Group (2006) 14 VR 321; Western Power Corporation v Shepherd [2004] WASCA 233; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [24]).
  70. The words “so far as is reasonably practicable” define the scope of the employer’s duty. While liability for breaching the duty is absolute, the content of the obligation is not (ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; TTS Pty Ltd v Griffiths (1991) 105 FLR 255).
  71. The content of the obligation to take reasonably practicable steps may vary over time, due to changes in knowledge about risks, the means available to address risks, and the availability, suitability and cost of remedial action (Western Power Corporation v Shepherd [2004] WASCA 233).
  72. The question of what is reasonably practicable must be determined objectively, having regard to all sources of knowledge, including those in the particular trade or industry of the employer (DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [28]).
  73. The burden is on the prosecution to prove that the specified measures were reasonably practicable. It is not sufficient to demonstrate that a measure could have been taken and that, if taken, it might have had some effect on the safety of a working environment (Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92. But see Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).
  74. An obligation to take “reasonably practicable” measures is less onerous than an obligation to take “practical”, “physically possible” or “feasible” measures (Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 per Gaudron J; Kent v Gunns Ltd (2009) 18 Tas R 454).
  75. The words “so far as is reasonably practicable” do not introduce an element of intention or negligence into the offence (ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; TTS Pty Ltd v Griffiths (1991) 105 FLR 255).

    Factors relevant to “reasonably practicability”

  76. Determining whether a measure is reasonably practicable involves a common sense assessment (Kirk v Industrial Court of NSW (2010) 239 CLR 531).
  77. The jury must consider the following matters when determining what is reasonably practicable:
    1. the likelihood of the hazard or risk eventuating;
    2. the degree of harm that would result if the hazard or risk eventuated;
    3. what the accused knows or reasonably ought to know about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
    4. the availability and suitability of ways to eliminate or reduce the hazard or risk; and
    5. the cost of eliminating or reducing the hazard or risk (OHS Act 2004 s20(2). See also Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165; Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; R v Australian Char Pty Ltd [1999] 3 VR 834).
  78. These considerations direct attention to the state of affairs at the accused’s workplace at the relevant time (DPP v Vibro-Pile (2016) 49 VR 676 at [51]).
  79. For example, the fact that there is a formal system in place may not be sufficient if that system is not followed. Instead, it may be necessary and reasonably practicable to implement a system which is followed, including a requirement to read, understand and follow relevant instructions (see, e.g., DPP v Vibro-Pile (2016) 49 VR 676 at [53]).

    Level of risk

  80. Two of the factors that are relevant to the jury’s determination of reasonable practicability are the likelihood of the risk eventuating, and the degree of harm that would result if it did eventuate (OHS Act 2004 s20(2)(a)-(b)).
  81. As noted above under ‘Measures and Accidents (Causation not required)’, the prosecution does not need to prove that an accident occurred or that anyone was injured. However, the occurrence of an accident may provide evidence of the existence and seriousness of an existing risk (Theiss Pty Ltd v Industrial Court of NSW (2010) 78 NSWLR 94; Kirk v Industrial Court of NSW (2010) 239 CLR 531; R v Irvine (2009) 25 VR 75 at [41]; R v Australian Char Pty Ltd [1999] 3 VR 834; Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399). See also Measures and Accidents (Causation not required), above.
  82. In some cases minor and less obvious risks may pose a greater danger than major and obvious risks. Where relevant, the jury should be reminded of this fact (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; R v Australian Char Pty Ltd [1999] 3 VR 834; Western Power Corporation v Shepherd [2004] WASCA 233).

    Reasonable foreseeability

  83. Another factor that is relevant to the jury’s determination of reasonable practicability is whether the accused knew, or reasonably ought to have known, about the risk and ways of reducing that risk (OHS Act 2004 s20(2)(c)).
  84. Foreseeability of risk is related to reasonable practicability because it is not reasonably practicable to protect against unforeseeable risks (R v Powercor (Aust) [2005] VSCA 163; MacCarron v Coles Supermarkets Australia Pty Ltd & Ors (2001) 23 WAR 355 per Murray J; WorkCover v Fletcher Constructions [2002] NSWIRComm 316; Marshall v Gotham Co Ltd [1954] AC 360).
  85. It is therefore not sufficient for the prosecution to simply identify a risk in hindsight. They must show that the accused either knew of the risk in advance, or ought to have known of that risk (and thus should have taken the specified measure) (R v Powercor (Aust) [2005] VSCA 163; MacCarron v Coles Supermarkets Australia Pty Ltd & Ors (2001) 23 WAR 355 per Murray J; WorkCover v Fletcher Constructions [2002] NSWIRComm 316; Marshall v Gotham Co Ltd [1954] AC 360).
  86. A risk will have been reasonably foreseeable if a reasonable employer in the accused’s position could have foreseen the risk (R v Powercor (Aust) [2005] VSCA 163).
  87. The reasonable foreseeability test is objective. The fact that the accused did not foresee the risk in question may be relevant to whether or not the risk was foreseeable, but it will not be conclusive (R v Australian Char Pty Ltd [1999] 3 VR 834).
  88. In considering whether a risk was reasonably foreseeable, the jury must take into account the general state of knowledge about that risk, as well as any specific knowledge that was available within a relevant industry (Chugg v Pacific Dunlop (No 2) [1999] 3 VR 934 per Ormiston JA; Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156; Silent Vector v Shepherd [2003] WASCA 315).
  89. The jury must also consider the risk posed to employees who act inadvertently or carelessly in relation to their own safety.[4] The range of behaviour that is reasonably foreseeable is not limited to behaviour that is reasonable (R v Australian Char Pty Ltd [1999] 3 VR 834; Smithwick v National Coal Board (1950) 2 KB 335; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [51]).
  90. The jury must weigh the chance of spontaneous carelessness against the practicality of taking measures to address the risk of human error (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; R v Australian Char Pty Ltd [1999] 3 VR 834; Western Power Corporation v Shepherd [2004] WASCA 233).
  91. Where an accident has occurred, the jury does not need to consider whether that precise accident was foreseeable. Instead, the question is whether the risk, which manifested in the accident, was reasonably foreseeable. However, the accident may provide evidence that informs whether the risk was reasonably foreseeable (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; DPP v Vibro-Pile (2016) 49 VR 676 at [56]).
  92. While foreseeability of risk is relevant to the jury’s determination of whether the accused took all reasonably practicable measures, it is not an element of the offence. It is therefore not appropriate to substitute a test of foreseeability for the statutory test of “reasonably practicable” (see Chugg v Pacific Dunlop (1990) 170 CLR 249; Chugg v Pacific Dunlop (No 2) [1999] 3 VR 934 per Ormiston JA; Kent v Gunns Ltd (2009) 18 Tas R 454).

    Regulations, compliance codes and industry standards

  93. In some cases, there will be a regulation or a compliance code that contains a provision regarding an employer’s duty in certain circumstances. If the employer has complied with the regulation or code, no offence will have been committed (OHS Act 2004 s152).
  94. In other cases, there will be industry standards documents or former regulations that address the relevant area. As such documents are not legally binding,[5] compliance does not constitute a defence. However, the court may consider such standards, in conjunction with expert evidence, when determining whether the accused took all reasonably practicable steps to provide a safe working environment (Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156; Kent v Gunns Ltd (2009) 18 Tas R 454; Hughes v Van Eyk [2008] NSWSC 525; Reed v Peridis [2005] SASC 136).
  95. When standards or former regulations are used in this manner, they are not substituted for the elements of the offence. They merely provide a guide to whether the accused has taken all reasonably practicable steps (Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156; Kent v Gunns Ltd (2009) 18 Tas R 454; Hughes v Van Eyk [2008] NSWSC 525; Reed v Peridis [2005] SASC 136).

    Foreseeability, experts and independent contractors

  96. Where the employer engages a specialist contractor to perform a task, the employer is not expected to foresee dangers known only within the specialist contractor’s field of expertise (Reilly v Devcon (2008) 36 WAR 492; Tobiassen v Reilly [2009] WASCA 26).
  97. It is difficult to establish that an employer has breached the Act where it relies on a specialist contractor to perform a task outside the employer’s expertise, and the contractor appears to perform its task carefully and safely (Reilly v Devcon (2008) 36 WAR 492; Hamersley Iron Pty Ltd v Robertson, WASC 2/10/1998; Tobiassen v Reilly [2009] WASCA 26; Complete Scaffolding Services v Adelaide Brighton Cement [2001] SASC 199).

    Non-Delegable Duty

  98. The duty that is placed on employers by ss21 and 23 is non-delegable (Kirk v Industrial Court of NSW (2010) 239 CLR 531).
  99. Consequently, where a worksite is shared by several employers, the fact that other employers have an obligation to take all reasonably practicable measures to protect the health and safety of their employees will be of little relevance to the case against the accused employer (Territory Commercial Roofing Pty Ltd v Steven Hart [2009] ACTSC 119).
  100. However, evidence that other employers have undertaken various safety measures may be relevant to demonstrating whether the accused has taken all reasonably practicable steps to provide a safe working environment or to eliminate risks to health and safety (Territory Commercial Roofing Pty Ltd v Steven Hart [2009] ACTSC 119).

    Circumstances in Which Section 21 may be Breached

  101. Without limiting the general obligation in s21(1) to provide and maintain a safe working environment for employees, section 21(2) specifies five circumstances in which an employer breaches s21:
    1. failing to provide or maintain plants or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
    2. failing to make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
    3. failing to maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;
    4. failing to provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the employer’s management and control; and
    5. failing to provide the information, instruction, training or supervision to employees that is necessary to enable them to perform their work in a way that is safe and without risks to health.
  102. These subparagraphs are self-contained. Where the accused’s conduct meets the description in any one paragraph, then that will, by itself, constitute a breach of s21(1) (DPP v Vibro-Pile (2016) 49 VR 676 at [106], [108]).
  103. These subparagraphs do not apply to risks to non-employees which lead to a charge under s23. However, the failures and measures described in the subparagraphs will inform the assessment of whether an employer has breached the s23 duty (DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50, [23]).
  104. To reflect the deeming and self-contained nature of s21(2), the following sections provide modified statements of elements for use in cases where the prosecution relies on a deemed breach under s21(2).

    Failing to provide and maintain safe systems of work

  105. Section 21(2)(a) imposes an obligation to provide and maintain systems of work that are, so far as is reasonably practicable, safe and without risks to health.
  106. To meet the statutory obligation to provide and maintain a safe system of work, a system must be sufficiently systematic or comprehensive and contain appropriate detail. Employees must also be sufficiently trained to implement that system (Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) [2001] NSWIRComm 267; WorkCover v Fletcher Constructions [2002] NSWIRComm 316).
  107. The phrase “system of work” describes the regularly adopted method of carrying on the employer’s business. Isolated day to day acts by an employee, in contravention of general practice or procedures, do not form part of a system of work (Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; English v Wilsons and Clyde Coal Co Ltd [1936] SC 883).
  108. Not every procedure that forms part of a system of work needs to be documented. The need for documentation depends on the particular circumstances and the nature of the work environment (WorkCover v Fletcher Constructions [2002] NSWIRComm 316).
  109. Because employers must actively manage risks in the workplace, they must monitor the implementation of systems of work. A “paper system” that is not implemented or enforced is not sufficient (Inspector Campbell v Hitchcock [2004] NSWIRComm 87; R v Commercial Industrial Construction Group (2006) 14 VR 321; WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] [2000] NSWIRComm 99).
  110. Consequently, in determining whether an employer has failed to provide or maintain safe systems of work, the jury should also look at the employer’s methods for checking whether their procedures are complied with (WorkCover v Fletcher Constructions [2002] NSWIRComm 316).
  111. A system of work may break down due to employees becoming lax through routine or over-familiarity. Employers may also need to take steps to protect against this danger (Rail Infrastructure Corporation v Page [2008] NSWIRComm 169; R v Commercial Industrial Construction Group (2006) 14 VR 321; R v Australian Char Pty Ltd [1999] 3 VR 834).
  112. It will generally not be sufficient for an employer to simply assign responsibility for safety issues to a supervisor or manager. They must ensure that the supervisor or manager effectively implements the employer’s safe system of work. This may require the employer to monitor the supervisor or manager (Rail Infrastructure Corporation v Page [2008] NSWIRComm 169; R v Commercial Industrial Construction Group (2006) 14 VR 321; WorkCover v Fletcher Constructions [2002] NSWIRComm 316).
  113. Where an employer sets up and properly implements a safe system of work, the mere fact that the system is not complied with does not, of itself, establish that s21(2)(a) has been breached. The prosecution must prove that it was reasonably practicable for the employer to have taken further steps to guard against the breach of an established and properly implemented system. This may depend on whether the breach of the existing system of work was reasonably foreseeable (WorkCover v Fletcher Constructions [2002] NSWIRComm 316. See also DPP v JCS Fabrications Pty Ltd & Anor [2019] VSCA 50).
  114. In cases where the prosecution relies on s21(2)(a), the judge should modify the charge to refer to the following four elements:
    1. the accused is an employer;
    2. there was a risk in the working environment to employee health and safety;
    3. the accused failed to provide or maintain plant or systems of work that would have eliminated or reduced the risk (as the case may be);
    4. it was ‘reasonably practicable’ in the circumstances for the employer to have provided or maintained that plant or systems of work (DPP v Vibro-Pile (2016) 49 VR 676 at [6], [106]).

    Failing to maintain a workplace in a safe condition

  115. Section 21(2)(c) requires employers, as far as is reasonably practicable, to maintain workplaces under their management and control in a condition that is safe and without risks to health.
  116. A person may have control over a workplace without having control over every activity engaged in at the workplace (Tobiassen v Reilly [2009] WASCA 26).
  117. Consequently, the fact that an employer generally cannot control the specific manner in which a specialist contractor performs a task does not mean that the employer does not have control over the workplace where the contractor performs that task (Tobiassen v Reilly [2009] WASCA 26).[6]
  118. Where a work site is shared by two or more employers, the fact that one employer has assumed control or authority over the workplace does not diminish the duty of the other employer to ensure the health and safety of its employees (Morrison v Waratah Engineering [2005] NSWIRComm 63).
  119. An employer only has management and control of a site when it has the ability to address risks to health. The employer’s absence from a site, such as a workplace that is shut down on a weekend, may mean that the employer does not have management or control of the site during that absence (Markos v Commercial and General Projects Pty Ltd [2009] SAIRC 45).
  120. In cases where the prosecution relies on s21(2)(c), the judge should modify the charge to refer to the following four elements:
    1. the accused is an employer;
    2. there was a risk in the working environment to employee health and safety;
    3. the accused failed to maintain the condition of each workplace under the employer’s management and control so as to eliminate or reduce the risk (as the case may be);
    4. it was ‘reasonably practicable’ in the circumstances for the employer to maintain each workplace in this manner (DPP v Vibro-Pile (2016) 49 VR 676 at [6], [106]).

    Failing to provide information, instruction or training or supervision

  121. Under s21(2)(e) employers must provide the information, instruction, training and supervision necessary to enable employees to work safely and without risks to health.
  122. This may include appropriately disseminating safety alerts to employees who need such information (DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361).
  123. Under this sub-paragraph, the question of fact for the jury is to consider what training (or information, instruction or supervision) is necessary to perform the work safely and without risks to health. This will be fact-dependent and involve consideration of the nature of the risks and the available options. It may, for instance, involve practical, hands-on, training (see, e.g., DPP v Vibro-Pile (2016) 49 VR 676 at [119] and [124]).
  124. However, as noted above under ‘Measures and Accidents (Causation not required)', where the case involves an accident, it is not necessary to show that the lack of training caused the accident (DPP v Vibro-Pile (2016) 49 VR 676 at [128]).
  125. Unlike the other obligations set out in s21(2), this obligation is not qualified by the words “so far as is reasonably practicable”. The obligation is, under this subparagraph, absolute (R v Commercial Industrial Construction Group (2006) 14 VR 321 at [44]; DPP v Vibro-Pile (2016) 49 VR 676 at [104]; c.f. R v H Waterhouse & Son Pty Ltd [2009] VSCA 121 at [59]-[65]).
  126. In cases where the prosecution relies on s21(2)(e), the judge should modify the charge to only refer to three elements:
    1. the accused is an employer;
    2. there was a risk in the working environment to employee health and safety;
    3. the accused failed to provide such information, instruction, training or supervision as is necessary to eliminate or reduce the risk (see DPP v Vibro-Pile (2016) 49 VR 676 at [6], [104]).
  127. Despite the absence of the requirement of ‘so far as is reasonably practicable’ for proof of the offence under this limb of s21(2), the statement of the charge in the indictment may be drafted as follows:

    [The accused, at a named place and date] being an employer, failed so far as was reasonably practicable to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health (Downer EDI Works Pty Ltd v The Queen (2017) 53 VR 1 at [12]).

  128. This style of drafting reflects the fact that the offence provision is s21(1) and complies with the requirement in Criminal Procedure Act 2009 Schedule 1, clause 1 to ‘state the offence that the accused is alleged to have committed’ (Downer EDI Works Pty Ltd v The Queen (2017) 53 VR 1 at [19]. See also Criminal Procedure Act 2009 Schedule 1, clauses 1, 3).

    Independent Contractors

  129. As noted above, the offence in s21 only addresses the duties an employer owes to its employees. An employer’s duty to non-employees is primarily governed by s23.
  130. While the duty to independent contractors under s21 depends on whether the employer controls the conduct of the contractor, the duty under s23 does not. Section 23 can therefore apply to an independent contractor, whether or not that contractor is also treated as an employee for the purpose of section 21 (Muscat v Magistrates’ Court of Victoria [2018] VSC 650 at [45]).
  131. The following discussion should not be transposed to a case involving s23 (see DPP v Vibro-Pile (2016) 49 VR 676 at [170]-[173]).
  132. Independent contractors engaged by an employer are considered to be employees for the purpose of s21, as are the employees of those independent contractors (OHS Act 2004 s21(3); DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361).
  133. To be included within the scope of s21(3), an independent contractor must have been “engaged by” the employer. It is for the judge to determine the meaning of the word “engaged”. He or she must instruct the jury on its meaning, as well as the facts necessary to establish engagement (R v ACR Roofing Pty Ltd (2004) 11 VR 187).
  134. The term “engaged by” is complex and can be factually dependent. The judge should therefore invite the prosecution to identify at the start of the trial the particular matters that give rise to engagement.
  135. Engagement of a contractor exists in relation to any matters over which the employer has control, whether by privity of contract or arising from a contract between the contractor and another person. This covers direct contracts, sub-contracts and any further layers of contractual relations (R v ACR Roofing Pty Ltd (2004) 11 VR 187).

    Scope of the duty owed to independent contractors

  136. While independent contractors engaged by an employer are considered to be employees for the purpose of s21, the duties owed to independent contractors are more limited than the duties owed to other employees. An employer only owes a duty to an independent contractor “in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control” (s21(3)(b)).
  137. Consequently, where it is alleged that an employer breached his or her duty to an independent contractor, it is necessary for the jury to determine whether the employer had control over the matter in issue (see, e.g., Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23).
  138. An employer has control over the work of an independent contractor where:
  139. While employers are unlikely to have control over certain matters (such as the way expert contractors performs the specific tasks they are engaged to perform), they may nonetheless retain control over other matters (such as where the work is to be undertaken or the safety measures that must be observed) (Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23; Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492; R v Associated Octel Ltd [1994] 4 All ER 1051; R v ACR Roofing Pty Ltd (2004) 11 VR 187; [2004] VSCA 215).
  140. To determine whether an employer has control over a matter, the court will look at the details of the contractual relationship between the employer and the contractor, as well as any other indications that the employer had the right to direct the contractor in the performance of its work (Stratton v Van Driel Ltd [1998] VSC 75; Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23).
  141. Contractual interpretation is a mixed question of fact and law that involves three stages:
    1. the judge must determine, as a question of law, whether the words used in the contract have a legal meaning, a technical meaning or their ordinary meaning;
    2. if the words have a legal meaning, the judge must explain that meaning to the jury. If the words have their ordinary meaning or a technical meaning, the judge must instruct the jury to determine, as a question of fact, what that meaning is;
    3. the judge must direct the jury about the legal effect of the relevant contractual provisions, depending on the jury’s findings of fact at the second stage (Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23).

    Sub-contractors

  142. Employers do not only owe duties to those contractors they have directly engaged. They also owe duties to the employees of those contractors, in relation to matters over which the employer has control (or would have control if not for any agreement purporting to limit or remove that control) (OHS Act 2004 s21(3); R v ACR Roofing Pty Ltd (2004) 11 VR 187).
  143. Where the prosecution relies on principles of agency to establish that the accused had control over the sub-contractor, the judge must explain the relevant principles and relate them to the evidence (R v ACR Roofing Pty Ltd (2004) 11 VR 187).

    Content of the duty owed to independent contractors

  144. The prosecution must prove that the accused did not, so far as is reasonably practicable, provide and maintain a working environment that was safe and without risks to the health of those independent contractors or sub-contractors who fall within the scope of s21(3).
  145. As noted above (see “Use of experts and independent contractors”), an employer who lacks the expertise necessary to safely complete a task may fulfil its duties under s21 by relying on an external expert. Consequently, the prosecution will need to prove that engaging the relevant contractor was not sufficient to discharge its obligations under the Act (Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23).
  146. This may depend on whether it was reasonably practicable for the employer to have directed the independent contractor to undertake their task in a certain way. This will be a matter of fact and degree (Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23).
  147. Determining what was reasonably practicable may depend on:

    Employee or independent contractor?

  148. Because the scope and content of the duty owed to employees and independent contractors differs slightly, it may be important to determine whether a particular individual was an employee or an independent contractor.
  149. Determining whether a person is an employee or an independent contractor is a matter of substance, not form. It depends on the rights and obligations under the relevant contract between the employer and the other party, and not on the labels used by the parties or their subjective views (Tobiassen v Reilly [2009] WASCA 26; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16).
  150. One factor that is relevant to determining whether a person is an employee or an independent contractor is whether the employer has the right to control the performance of the person’s work. Control of work is a characteristic of an employer-employee relationship (Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561; Tobiassen v Reilly [2009] WASCA 26).

    Duplicity and Multiple Offences

  151. While s21(1) creates a single offence, the specific types of breaches identified in s21(2) may each be charged as separate offences (Newcastle Wallsend Coal Company v Inspector McMartin [2006] NSWIRComm 339; DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361).
  152. Alternatively, if the breaches arose out of the same factual circumstances, they may be charged as a single offence (subject to any contrary court order) (OHS Act 2004 s33. See also John Holland v Industrial Court of NSW [2010] NSWCA 338 at [66]; Diemould Tooling Services v Oaten (2008) 101 SASR 339).
  153. Section 33 is a facilitative provision that overrides the common law prohibition on duplicity (See John Holland v Industrial Court of NSW [2010] NSWCA 338; Coombs v Patrick Stevedores [2002] NSWIRComm 215).[7]
  154. An aggregated charge under s33 differs from a “rolled-up” charge at common law (DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361).
  155. For s33 to apply, the court must find that the alleged contraventions arose out of the same factual circumstances (See John Holland v Industrial Court of NSW [2010] NSWCA 338; Coombs v Patrick Stevedores [2002] NSWIRComm 215).
  156. The same factual circumstances will only exist where the relevant act or omission constituting the offence is the same. Common factual circumstances do not exist merely because there is an accident caused by multiple breaches of workplace safety (DPP v Vibro-Pile (2016) 49 VR 676 at [144]).
  157. While s33 alleviates the strictness of the rule against duplicity, there are risks associated with this provision and the prosecution should be selective in its use. First, a jury verdict to a s33 charge will be inscrutable, and this may present problems for sentencing. Second, errors in relation to one part of a case under a s33 charge may leave the charge vulnerable on appeal, even if there were other paths to conviction which were free of error (DPP v Vibro-Pile (2016) 49 VR 676 at [137], [143]).
  158. Because of these risks, the prosecution should not use s33 where the allegations involve different factual or legal issues, or where the question of reasonable practicability may be different for different allegations (DPP v Vibro-Pile (2016) 49 VR 676 at [141]).
  159. The prosecution cannot lay separate charges for each employee who is exposed to a risk of harm from a single incident. However, where there are multiple acts or omissions giving rise to risks of harm to different employees, the prosecution may bring separate charges for each separate failure to provide a safe working environment (Diemould Tooling Services v Oaten (2008) 101 SASR 339).

    Overlap Between sections 21 and 23

  160. In some cases, the accused’s failure to take a certain measure may give rise to a risk to both employees and non-employees. A jury may return a verdict of guilty on charges under both s21 and s23 of the Act (Director of Public Prosecutions Reference (No 1 of 1992) [1992] 2 VR 405).
  161. Where a risk is posed to an independent contractor in relation to matters over which the employer has control, a prosecutor can choose to bring charges under either section 21 or 23 (Muscat v Magistrates’ Court of Victoria [2018] VSC 650 at [52]-[54]).

    Witness Warnings

  162. Where an employee is called to give evidence against their employer, it may be necessary to give a criminally concerned witness warning or a Faure warning. However, this will usually not be necessary, as:

Last updated: 27 March 2019

Notes

[1] The offences created by ss21 and 23 are an indictable offence (OHS Act 2004 ss21(4), 23(2)).

[2] However, foreseeability may be relevant to the fourth element: see below.

[3] A non-exhaustive list of ways in which an employer may breach the obligation to provide and maintain a safe working environment is contained in s21(2): see “Circumstances in which section 21 may be breached” below.

[4] Although employees are obliged to take reasonable care for their own safety and the safety of others (OHS Act 2004 s25), this does not limit the scope or nature of the duty placed on employers by s21 (ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409).

[5] This includes standards published by the Standards Association of Australia.

[6] See “Independent Contractors” below for further information concerning an employer’s duty in relation to such contractors.

[7] The section reverses the position that existed under the OHS Act 1985, which held that each factual matter giving rise to a breach of the employer’s duty to provide a safe working environment needed to be separately charged (See R v Australian Char Pty Ltd [1999] 3 VR 834; Chugg v Pacific Dunlop Ltd [1988] VR 411).

In This Section

7.7.1.1 – Charge: Employer’s Duty to Employees

7.7.1.2 - Checklist: Employer's Duty to Employees

7.7.1.3 - Charge: Employer’s Duty to Non-Employees

7.7.1.4 – Checklist: Employer’s duty to non-employees

See Also

7.7 – Occupational Health and Safety

7.7.2 – Discrimination offence