As we’ve noted before, regulators and legislators have adopted a whole raft of temporary policy measures to address the COVID-19 safety crisis. Permanent reforms haven’t been neglected, though. For instance, labour hire workers’ arrangements are about to see a major overhaul in one Australian state.
Occupational Health and Safety and Other Legislation Amendment Bill 2021 to extend protections for labour hire workers
The short answer is the Victorian Government recently introduced the Occupational Health and Safety and Other Legislation Amendment Bill 2021 (Bill). If passed, the Bill would revise components of the state’s Occupational Health and Safety Act, passed in 2004.
Specifically, the Bill re-defines employer and employee, such that “third-party” labour hire workers will be considered employees of their “host” employers. For both parties, the importance of the proposed re-classification is that labour hire workers will be granted the same health and safety protections as a host employer’s “permanent” workers.
Simple enough? Not so much.
In addition to extending the host employer’s duty of care obligation, the Bill would also require those same employers to work in “horizontal consultation” with labour hire providers to ensure that the duty of care obligation is met.
Both parties, here, must co-operate and co-ordinate activities. Penalties for not doing so are steep, i.e., a failure to comply would constitute an indictable offence.
Another provision: insurance companies will be prevented from stepping in and shielding persons from the burden of monetary penalties arising from health and safety contraventions. This provision follows precedents set in New South Wales and Western Australia; and so, all other jurisdictions should be on the lookout.
Besides new labour hire arrangements, Bill will toughen industrial manslaughter sanctions
Employers will have more than new labour hire worker arrangements to contend with, though. The Bill also increases the powers of Health and Safety Representatives and Authorised Representatives to collect information (e.g., photographs, measurements, sketches, and recordings). These entities will not be allowed to use or disclose the information they collect in ways not connected with the exercise of power under safety legislation.
The big kicker, of course, are the industrial manslaughter provisions. Those come with a sticker shock.
What are they? Well, the Bill will effectively repeal existing provisions, introducing, instead, a sharp increase in maximum penalties. Those penalties will go up dramatically: from AUD 1.62 million to AUD 16.5 million for a body corporate.
What can employers do? On the labour hire front, employers need to get their ducks in a row. Start by implementing best practices in contractor life-cycle management, beginning with the pre-qualification stage.
In this phase, many employers rely on third-party prequalifying companies to handle the majority of the initial contractor vetting. Whether undertaken by the host company or a vendor, initial vetting should go beyond quantifiable data, as that vetting approach only provides a limited understanding of future need.
Employers should try to involve more stakeholders to get a broader, cross-functional look at pricing, use, and process-related costs. Getting a clear picture of the engagement during pre-qualification can also help improve efficiencies and productivity down the road.
Host companies should also manage all contractor data in a dedicated, centralised database in their safety management platform, where it can be easily shared and updated, after the engagement begins in earnest.
What phases come next? To find out more, download our guide to contractor management best work health and safety practices:
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