Newsflash: Labour Hire Amendments

March 2022

Labour Hire Amendments

From 22 March 2022, changes to the Occupational Health and Safety Act 2004 (OHS Act) in Victoria will mean that labour hire workers will be considered employees of their host employer for the purposes of the OHS Act. Host employers will owe the same duties towards labour hire workers as they do towards their direct employees.

The changes include a new duty for labour hire providers and host employers to consult, cooperate and coordinate activities with each other where they both owe OHS Act duties to the same worker, so far as reasonably practicable.

Reasons for change?

Formerly, a host employer owed some health and safety duties to labour hire workers under the OHS Act, however they did not owe all of the employer duties to the worker. This created a disadvantage for labour hire workers, which these changes will address.

The objective of the requirement for labour hire providers and host employers to consult, cooperate and coordinate activities is to:

New Definitions

The definitions of “labour hire services”, “provider” and “worker” have been extended in the OHS Act and reflect the same meaning as they do in the Labour Hire Licensing Act 2018.

A host employer will now be considered the ‘employer” where the provider of labour hire services:

Additional Duties Owed by Host Employers

The key additional duties now shared by host employers and labour hire providers are to:

Duty

Section

Monitor the health of employees.

s22(1)(a)

Provide information to employees about health and safety, including in other languages as appropriate.

s22(1)(c)

Keep information and records relating to health and safety of employees.

s22(2)(a)

Employ or engage persons suitably qualified to provide advice on health and safety of employees.

s22(2)(b)

Consult with employees when doing certain things related to OHS (including identifying and controlling hazards and risks, making decisions about the adequacy of facilities and making changes that may affect the health and safety of employees).

s35

Do everything reasonable to ensure negotiations on the establishment of a Designated Work Group (DWG) within 14 days after receiving a request from an employee.

s43

An employer (or prospective employer) is guilty of an indictable offence if they discriminate against an employee (or prospective employee) on the basis the employee does specific things permitted by the OHS Act.

s76


Duty to Consult, Cooperate and Coordinate

A newly created duty (s35A): labour hire providers and hosts who have duties towards labour hire workers must, so far as is reasonably practicable, consult, cooperate and coordinate with each person who has a duty in relation to the same worker.

Consult

Means the exchange of information that allows labour hire providers and host employers to jointly manage health and safety. It includes providing reasonable opportunity to express views and taking those views into account when deciding how to meet shared responsibilities. It also includes documenting expectations and how each will cooperate and coordinate with each other.

Cooperation

Means implementation of health and safety arrangements identified as necessary during the consultation process. This includes reasonable requests from any other person who has a shared responsibility towards the same worker and to not obstruct communication with them.

Coordination

Means working together to meet shared duties without leaving gaps in health and safety for the labour hire worker and should involve identifying and planning activities together, ensuring any control measures work together effectively and ensuring all health and safety matters are addressed and all OHS duties are met.

Who does it apply to?

This requirement for consultation, cooperation and coordination only applies to labour hire providers and host employers, it does not apply outside of labour hire arrangements. Employers already have an existing duty to consult with employees, including independent contractors and labour hire workers, under s35 of the OHS Act.

When should it take place?

Consultation, cooperation and coordination activity should start before the labour hire worker is placed at the workplace and should be ongoing throughout the term of the contractual period.

Further consultations are likely to be required if circumstances change, e.g. work location or roles changes.

What are the shared responsibilities?

The labour hire provider and host employer should consult, cooperate and coordinate activities on:

  • The nature of work to be carried out and any associated hazards or risks.
  • Risk control measures and who is responsible for each control measure, including the provision of personal protective equipment and other equipment where required.
  • Reviewing risk control measures, particularly if there are any changes to the nature of the roles or workplace.
  • The roles of each duty holder in responding to an incident.
  • Providing for and maintaining a working environment that is safe and without risks to health.
  • Providing information and training.
  • Monitoring the health of labour hire workers.
  • Consulting with labour hire workers.
  • Ensuring the labour hire worker is capable of undertaking the work and is provided with everything needed to do the job safely.


Notifiable Incidents

The duty to notify WorkSafe of incidents remains unchanged and remains the duty of the employer with management and control of the workplace where the incident happened. This will typically be the host employer in labour hire arrangements although these arrangements should be confirmed through consultation, cooperation and coordination activities.

Refusal to Consult, Cooperate or Coordinate

The maximum penalty for breach of this duty is 180 penalty units ($32,713) for a natural person and 900 penalty units ($163,566) for a body corporate. Note that penalty unit values change each financial year so these figures are current until 30 June 2022 only.

Workers Compensation Arrangements

There are no changes to the existing workers compensation legislation as a result of these changes to the OHS Act.

Further Information

WorkSafe Victoria has issued guidance on the duties of both employers and employees.

There is also a comparative table of duties (PDF 60 KB) before and after the amendments for easy reference.

WorkSafe is also preparing additional information to support the labour hire amendments when they commence, including updates to existing guidance and new case studies.