7.9 – Occupational Health and Safety
7.9.1 – Employer Offences
7.9.1.1 – Bench Notes: Employer’s Duty to Employees1
Table of Contents
Overview of OHS Offences ................................................................. 2
Authority to Prosecute....................................................................... 2
Overview of Elements and Circumstances ............................................ 3
Elements ...................................................................................... 3
Circumstances in which s21 may be breached ................................... 3
Employers Must Take a Proactive Approach to Safety ............................ 4
Elements ......................................................................................... 5
The accused is an employer ............................................................ 5
Failure to provide and maintain a safe working environment ............... 5
Failure to take a specified measure ............................................... 5
Risk to employees’ health or safety ............................................... 6
Material contribution ................................................................. 7
Risk to employees .................................................................... 8
Working environment ............................................................... 9
Reasonable practicability.............................................................. 9
Factors relevant to “reasonably practicability” ............................ 10
Level of risk ........................................................................ 11
Reasonable foreseeability ..................................................... 11
Regulations, compliance codes and industry standards ............. 13
Use of experts and independent contractors ........................... 13
Non-Delegable Duty ..................................................................... 13
Circumstances in Which Section 21 may be Breached ......................... 14
Failing to provide and maintain safe systems of work ....................... 14
Failing to maintain a workplace in a safe condition ........................... 16
Failing to provide information, instruction or training or supervision ... 16
Independent Contractors ................................................................. 17
Scope of the duty owed to independent contractors ......................... 17
Sub-contractors ........................................................................ 18
Content of the duty owed to independent contractors ....................... 19
Employee or independent contractor?............................................. 19
Duplicity and Multiple Offences ......................................................... 20
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Last updated: 17 November 2014
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Overlap Between sections 21 and 23................................................. 21
Witness Warnings ........................................................................... 21
Overview of OHS Offences
1.
2.
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:

Failing to provide and maintain a safe working environment for
employees (s21);

Failing to monitor the health of employees or the conditions at a
workplace, or to provide information to employees about health
and safety (s22);

Failing to ensure that people other than employees are not
exposed to risks to health and safety (s23).
These Bench Notes address the offence created by s21. See
Employer’s Duty to Non-Employees for information concerning the
offence created by s23.2
Authority to Prosecute
3.
Proceedings for offences under the Act may only be brought by:

The Victorian Workcover Authority;

An inspector with the written authorisation of the Authority; or

In the case of indictable offences,3 the Director of Public
Prosecutions (OHS Act 2004 s130).
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
As the offence created by s22 is a summary offence, it is not addressed in this
Charge Book.
2
3
The offence created by s21 is an indictable offence (OHS Act 2004 s21(4)).
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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.
9.
The offence of failing to provide and maintain a safe working
environment has the following 2 elements:
i)
The accused is an employer;
ii)
The accused failed to provide and maintain for employees of the
employer a working environment that was, so far as was
reasonably practicable, safe and without risks to health (OHS
Act 2004 s21).
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] SASC 166).4
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:
i)
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Failing to provide or maintain plants or systems of work that
are, so far as is reasonably practicable, safe and without risks to
health;
However, foreseeability may be relevant to the second element: see below.
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ii)
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;
iii)
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;
iv)
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
v)
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. After setting out the general approach that employers must take to
workplace safety, these Notes examine the elements of the offence.
They then focus on specific circumstances in which the offence may
be committed.
Employers Must Take a Proactive Approach to Safety
14. Compliance with the obligation created by s21 requires employers to
be proactive in identifying and responding to risks in a workplace.
Employers must provide a safe workplace even for hasty, careless,
inattentive or unreasonable employees (Holmes v RE Spence & Co
Pty Ltd (1992) 5 VIR 119; McLean v Tedman (1984) 155 CLR 306;
Kirk v Industrial Court of NSW (2010 239 CLR 531).
15. 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. 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).
16. 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
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for and eliminate hazards (Rail Infrastructure Corporation v Page
[2008] NSWIRComm 169).
Elements
The accused is an employer
17. The first element the prosecution must prove is that the accused is
an employer (OHS Act 2004 s21).
18. 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).
Failure to provide and maintain a safe working environment
19. The second element the prosecution must prove is that the accused
failed to provide and maintain a working environment that was, so
far as was reasonably practicable, safe for their employees and
without risks to their health (OHS Act 2004 s21).
20. This requires employers to eliminate risks to their employees’ health
and safety, so far as it is reasonably practicable to do so. If that is
not possible, they must reduce the risks so far as is reasonably
practicable (OHS Act 2004 s20(1)).
21. This element places an onus on the accused to achieve a certain
result (the provision and maintenance of a safe working
environment).5 It does not simply require the accused to take certain
steps (e.g., to take reasonable precautions for the safety of their
employees) (ABC Developmental Learning Centres Pty Ltd v Wallace
(2007) 16 VR 409).
22. For this element to be satisfied, the prosecution will need to prove
two matters:
i)
The accused failed to take a specified which led to their
employees’ health or safety being placed at risk; and
ii)
The measure was reasonably practicable.
23. For the sake of clarity, the Charge treats these two matters as two
separate elements.
There is some uncertainty about whether the duty is to provide the safest
workplace that is reasonably practicable, or whether it is sufficient to provide one
of a range of reasonably practicable safe working environments (Baiada Poultry
Pty Ltd v R [2012] HCA 14).
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Failure to take a specified measure
24. The prosecution must identify, with sufficient precision, the particular
measures that it says the accused should have taken to prevent an
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 R [2011] VSCA 23).
25. The measures necessary to provide and maintain a safe working
environment 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).6
26. 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] SASC 197).
27. 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. The prosecution must generally identify the
measures the accused should have taken, or adduce evidence that
the jury will be able to use to determine whether the accused’s
conduct was adequate (Kirk v Industrial Court of NSW (2010) 239
CLR 531; John Holland v Industrial Court of NSW [2010] NSWCA
338).
28. As s21 does 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. It is sufficient to prove that the organisation
actively implemented an unsafe system of work, or allowed 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).
Risk to employees’ health or safety
29. 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).
30. There are three aspects to this requirement:
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.
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i)
The failure to take the specified measures must have materially
contributed to a risk to health or safety;
ii)
It must have been a risk to the health or safety of employees;
and
iii)
The risk must have arisen in the working environment.
Material contribution
31. The prosecution must prove that there is a substantial and significant
causal relationship between the measures it is alleged the accused
should have taken and a risk to their employees’ health and safety
(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).
32. 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.
It is sufficient to prove that the accused’s failure materially
contributed to the risk (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).
33. This requires the prosecution to prove that implementing the
suggested measures would have improved the safety environment. 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 R [2012] HCA 14).
34. The risk to employees’ health or safety may have arisen from a
single act or omission, or a combination of acts or omissions
(Diemould Tooling Services v Oaten [2008] SASC 197).
35. It is sufficient for the prosecution to prove that the failure to take the
specified measures contributed to the possibility of danger. They do
not need to prove that:

An accident occurred;

A person was injured; or

A person was actually exposed to danger at a particular time
(Theiss Pty Ltd v Industrial Court of NSW [2010] NSWCA 252;
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; Whittaker v Delmina Pty Ltd [1998] VSC 175; Orbit
Drilling Pty Ltd v R [2012] VSCA 82)
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36. However, the occurrence of a workplace accident or injuries to an
employee may provide evidence of the existence of the risk (R v
Irvine (2009) 25 VR 75; R v Australian Char Pty Ltd [1999] 3 VR
834; Whittaker v Delmina Pty Ltd [1998] VSC 175; Orbit Drilling Pty
Ltd v R [2012] VSCA 82).7
37. The prosecution must identify the general class of risk that it is
alleged that the accused created (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).
38. 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).
39. The causal question must be determined in a practical and common
sense manner (Cahill v State of New South Wales [2008]
NSWIRComm 123; WorkCover Authority of NSW v Kellogg (Aust) Pty
Ltd (No 1) [1999] NSWIRComm 453).
40. 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).
Risk to employees
41. The prosecution must prove that it was the health and safety of the
accused’s employees that was placed at risk by the accused’s failure
to take the specified measures (OHS Act 2004 s21; Linfox & Ors v R
[2010] VSCA 319).
42. Section 21(3) defines “employee” to include independent contractors
and sub-contractors. See “Independent Contractors” below.
43. Section 21 concerns the accused’s failure to protect employees as a
class. Consequently, the prosecution does not need to identify a
Where an injury does occur, the prosecution may choose to conduct its case on
a narrow basis, focussing solely on the circumstances in which the injury was
sustained. If it does so, the judge must direct the jury on the case as put forward
by the prosecution (R v Australian Char Pty Ltd [1999] 3 VR 834; Drake
Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector
Ch’ng) (1999) 90 IR 432).
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particular employee that was put at risk by the accused’s failure to
take the specified measure (Diemould Tooling Services v Oaten
[2008] SASC 197).
44. 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] SASC 197).
45. The jury must be satisfied that the accused’s employees were placed
at risk, rather than employees of some other entity (Linfox & Ors v R
[2010] VSCA 319).
Working environment
46. The risk to employees’ health or safety must have arisen in the
working environment (OHS Act 2004 s21).
47. 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).
48. A “working environment” can include:

A truck driver’s truck;

A construction site;

The location of high voltage electrical lines;

Segments of road under construction; or

The area in which a guided tour takes place (see 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).
Reasonable practicability
49. 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 (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
R [2012] HCA 14).
50. The words “so far as is reasonably practicable” define the scope of
the employer’s duty. While liability for breaching the duty is absolute,
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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).
51. 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).
52. 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 R [2012] HCA 14. But see
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).
53. 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] TASSC 30).
54. 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”
55. Determining whether a measure is reasonably practicable involves a
common sense assessment (Kirk v Industrial Court of NSW (2010)
239 CLR 531).
56. The jury must consider the following matters when determining what
is reasonably practicable:
a)
The likelihood of the hazard or risk eventuating;
b)
The degree of harm that would result if the hazard or risk
eventuated;
c)
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;
d)
The availability and suitability of ways to eliminate or reduce
the hazard or risk; and
e)
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).
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57. It seems that these matters must be determined objectively, rather
than by reference to the subjective knowledge and circumstances of
the employer (Chugg v Pacific Dunlop (No 2) [1999] 3 VR 934; C
Maxwell, Occupational Health and Safety Review (2004)).
58. Consequently, it seems that an employer cannot claim that poor
business conditions made a safety measure impractical. Cost and risk
must be balanced objectively, rather than by reference to what the
particular employer could afford (C Maxwell, Occupational Health and
Safety Review (2004)).
Level of risk
59. 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
s20(2)(a)-(b)).
60. While the prosecution does not need to prove that an accident
occurred or that anyone was injured in order to prove that the
specified measures should have been taken, the occurrence of a
workplace accident or injuries to an employee may provide evidence
of the existence and seriousness of the risk (Theiss Pty Ltd v
Industrial Court of NSW [2010] NSWCA 252; 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 R
[2012] VSCA 82).
61. 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
62. 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)).
63. 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 (2003) 123 IR 121; Marshall v
Gotham Co Ltd [1954] AC 360).
64. 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
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& Ors (2001) 23 WAR 355 per Murray J; WorkCover v Fletcher
Constructions (2003) 123 IR 121; Marshall v Gotham Co Ltd [1954]
AC 360).
65. 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).
66. 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).
67. 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).
68. The jury must also consider the risk posed to employees who act
inadvertently or carelessly in relation to their own safety.8 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).
69. 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).
70. Where an accident has occurred, the jury does not need to consider
whether that precise accident was foreseeable. The relevant question
is whether an accident of the same general kind was reasonably
foreseeable (R v Australian Char Pty Ltd [1999] 3 VR 834; Tenix
Defence Pty Ltd v MacCarron [2003] WASCA 165; Cahill v State of
New South Wales [2008] NSWIRComm 123).
71. 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
practicability (Chugg v Pacific Dunlop (1990) 170 CLR 249; Chugg v
Pacific Dunlop (No 2) [1999] 3 VR 934 per Ormiston JA; Kent v
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).
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Gunns Ltd [2009] TASSC 30).
Regulations, compliance codes and industry standards
72. 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).
73. In other cases, there will be industry standards documents or former
regulations that address the relevant area. As such documents are
not legally binding,9 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] TASSC 30; Hughes v Van Eyk [2008] NSWSC
525; Reed v Peridis [2005] SASC 136).
74. 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] TASSC 30; Hughes v Van
Eyk [2008] NSWSC 525; Reed v Peridis [2005] SASC 136).
Use of experts and independent contractors
75. The duty to provide for the health and safety of employees can
extend to independent contractors an employer has engaged. See
“Independent Contractors” below for further information.
76. However, 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] WASCA 84; Tobiassen v Reilly [2009] WASCA 26).
77. 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] WASCA 84;
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
78. The duty that is placed on employers by s21 is non-delegable (Kirk v
Industrial Court of NSW (2010) 239 CLR 531).
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This includes standards published by the Standards Association of Australia.
13
79. 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).
80. 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 (Territory Commercial Roofing Pty Ltd v Steven
Hart [2009] ACTSC 119).
Circumstances in Which Section 21 may be Breached
81. 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:
i)
Failing to provide or maintain plants or systems of work that
are, so far as is reasonably practicable, safe and without risks to
health;
ii)
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;
iii)
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;
iv)
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
v)
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.
Failing to provide and maintain safe systems of work
82. 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.
83. 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) 110 IR 57; WorkCover v Fletcher
14
Constructions (2002) 123 IR 121).
84. 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).
85. 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) 123 IR 121).
86. 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) 100 IR 23).
87. 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 (2003) 123 IR
121).
88. 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).
89. 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 (2003) 123 IR 121).
90. 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 (2003) 123 IR
15
121).
Failing to maintain a workplace in a safe condition
91. 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.
92. 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).
93. 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).10
94. 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).
95. 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).
Failing to provide information, instruction or training or
supervision
96. 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.
97. This may include appropriately disseminating safety alerts to
employees who need such information (DPP v Coates Hire Operations
Pty Ltd [2012] VSCA 131).
98. Unlike the other obligations set out in s21(2), this obligation is not
qualified by the words “so far as is reasonably practicable”. There are
currently conflicting decisions by the Court of Appeal on the
significance of this omission.
99. In R v Commercial Industrial Construction Group (2006) 14 VR 321
See “Independent Contractors” below for further information concerning an
employer’s duty in relation to such contractors.
10
16
at [44], the Court noted that the difference between section 21(2)(e)
and the remaining paragraphs of section 21(2) meant that the
obligation in paragraph (e) was absolute.
100. In contrast, the Court in R v H Waterhouse & Son Pty Ltd [2009]
VSCA 121 at [59]-[65] held that the offence under section 21 is
contingent on the proposed action being reasonably practicable and
that section 21(2)(e) does not alter that position.
101. As a matter of prudence, this Charge Book adopts the approach from
R v H Waterhouse & Son Pty Ltd that failing to provide information,
instruction, training or supervision is contingent on such action being
reasonably practicable.
Independent Contractors
102. As noted above, the offence in s21 only addresses the duties an
employer owes to its employees. An employer’s duty to nonemployees is primarily governed by s23.
103. However, 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] VSCA 131).
104. 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).
105. 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.
106. 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
107. 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)).
108. Consequently, where it is alleged that an employer breached his or
her duty to an independent contractor, it is necessary for the jury to
17
determine whether the employer had control over the matter in issue
(see, e.g., Baiada Poultry Pty Ltd v R [2011] VSCA 23).
109. An employer has control over the work of an independent contractor
where:

There is a legal right to direct the contractor; or

Where the employer considered that it had the right to direct
the contractor and the contractor would accept and act on that
direction (Stratton v Van Driel Ltd [1998] VSC 75).
110. 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 R
[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] VSCA 215).
111. 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 R [2011] VSCA 23).
112. Contractual interpretation is a mixed question of fact and law that
involves three stages:
i)
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;
ii)
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;
iii)
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 R [2011]
VSCA 23).
Sub-contractors
113. 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).
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114. 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
115. 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).
116. 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 R [2011] VSCA 23).
117. 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 R [2011] VSCA 23).
118. Determining what was reasonably practicable may depend on:

The size of the employer;

The employer’s expertise in relation to the particular task and
knowledge of the risks involved;

The nature and gravity of the risk;

The competence and expertise of the independent contractor
and its employees; and

The nature of the precautions the contractor was taking and
whether the employer was aware of any defects in the
contractor’s safety practices (R v ACR Roofing Pty Ltd (2004) 11
VR 187; R v Associated Octel Pty Ltd [1994] 4 All ER 1051;
Baiada Poultry Pty Ltd v R [2011] VSCA 23).
Employee or independent contractor?
119. 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.
120. 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
19
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).
121. 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
122. 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]
VSCA 131).
123. 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] SASC 197).
124. 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) 118 IR
401).11
125. An aggregated charge under s33 differs from a “rolled-up” charge at
common law (DPP v Coates Hire Operations Pty Ltd [2012] VSCA
131).
126. 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) 118 IR 401).
127. 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] SASC 197).
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).
11
20
Overlap Between sections 21 and 23
128. 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).
Witness Warnings
129. 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:

Any incentive to minimise the employee’s involvement in the
offending will usually be obvious to the jury; and

A witnesses’ guilt of an OH&S offence as an employee might not
affect the guilt of the employer or another employee (R v Irvine
(2009) 25 VR 75; R v Powercor (Aust) Pty Ltd [2005] VSCA
163).
21