Plant and your legal duties

The law

Occupational Health and Safety Act 2004

The Occupational Health and Safety Act 2004 (OHS Act) is the main workplace health and safety law in Victoria and sets out key principles, duties and rights in relation to occupational health and safety. The OHS Act seeks to protect the health, safety and welfare of employees and other people at work, as well as ensuring work activities do not put the health and safety of the public at risk.

The OHS Act is based upon the following principles of health and safety protection:

• All people – employees and the general public – should have the highest level of protection against risks to health and safety that is reasonably practicable in the circumstances.
• Those who manage or control matters that give rise or may give rise to health and safety risks in the workplace are responsible for eliminating or reducing the risks, so far as is reasonably practicable.
• Employers and self-employed persons should be proactive in promoting health and safety in the workplace.
• Employers and employees should share information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
• Employees are entitled – and should be encouraged – to be represented in relation to health and safety issues.

The OHS Act imposes duties on persons to eliminate risks to health and safety, so far as is reasonably practicable. If it is not reasonably practicable to eliminate those risks, duty holders must reduce those risks so far as is reasonably practicable.

Occupational Health and Safety Regulations 2017

The Occupational Health and Safety Regulations 2017 (OHS Regulations) build on the OHS Act and set out how to fulfil duties, obligations and processes imposed by the OHS Act.

Part 3.5 of the OHS Regulations contains specific provisions that require duty holders, including employers, self-employed persons, employees and the designers, manufacturers and suppliers of plant, to fulfil specific legal obligations, including identifying and controlling risks associated with plant.

For information relating to the specific obligations of duty holders, see below.

Employers

Employers have a general duty under the OHS Act to provide and maintain for employees a working environment that is safe and without risks to health. This duty includes a requirement to provide or maintain plant that is, so far as reasonably practicable, safe and without risks to health.

Employers' duty also includes a responsibility to provide information, instruction, training or supervision so employees can perform their work safely, including when using plant.

Control of risk

So far as it is reasonably practicable, employers must identify all hazards associated with plant at the workplace and eliminate any risk involved. If it is not reasonably practicable to eliminate the risk, employers must reduce the risk, as far as reasonably practicable, by either:

• using plant that has a lower level of risk
• isolating the plant from people
• using engineering controls such as, for example, extraction systems, barriers and interlocked guarding
• a combination of any of these control methods

If there is still a risk associated with the plant after using these methods, employers must use administrative controls to reduce the risk, so far as is reasonably practicable. Examples of administrative controls include warning signs, ‘lock out’ systems and workplace operating procedures.

If an employer has complied with all of these risk controls and the risk associated with plant remains, the employer must reduce the risk so far as is reasonably practicable by providing appropriate personal protective equipment to those at risk.

Review of risk control measures

Employers must review and, where necessary, revise any measures to control risks associated with plant in various circumstances including:

• before any alteration to the plant or any in the way the plant is used
• if new or additional information about hazards or risks relating to the plant becomes available
• if, for any reason, risk control measures do not adequately control the risk
• after receiving a request from a health and safety representative (HSR)

When identifying hazards and deciding on control measures, employers must also, so far as is reasonably practicable, consult with employees and HSRs, if there are any HSRs in the workplace.

Employers must also comply with specific duties in relation to the control of risk associated with plant including:

• guarding
• operator controls, including emergency stop devices and warning devices
• installation and commissioning, maintenance and inspection requirements

Employers must also comply with duties associated with specific items of plant including:

• powered mobile plant, including rollover protection for tractors and industrial lift trucks
• electrical plant and electrical hazards
• plant that lifts or suspends loads, including lifts, escalators and moving walkways for moving people
• scaffolds
• providing information, instruction, training or supervision to employees

Self-employed persons

Self-employed persons have a duty under the OHS Act to ensure, so far as reasonably practicable, that persons are not exposed to risks to their health and safety arising from their business activities.

Employees

Employees have a general duty to take reasonable care for their own health and safety and to take reasonable care for the health and safety of others who may be affected by their acts or omissions at the workplace.

In addition, employees must cooperate with employers' efforts to make their workplace safe, in line with their OHS Act and OHS Regulations requirements. An employee's duty may include following workplace policies and procedures, attending health and safety training and helping to identify hazards and risks.

Designers

The safe design of plant plays a critical role in reducing risks in workplaces.

So far as is reasonably practicable, a person who designs plant for use in a workplace must:

• ensure the plant is designed to be safe and without risks to health if it is used for a purpose for which it was designed
• carry out or arrange for any testing and examination needed to ensure the plant design is safe and without risks to health if it is used for a purpose for which it was designed
• identify all hazards associated with the plant's use during the design phase and provide adequate information to any person they give the design to bring into effect

A designer of plant must also provide specific information to the manufacturer of the plant. If the manufacturer advises that there are safety issues with the design, the designer must revise the information to take account of these problems, or instruct the manufacturer in writing that such revision is not necessary and provide reasons why this is the case.

Designers of high-risk plant must also register their designs with WorkSafe.

Manufacturers

Manufacturers of plant have duties relating to the use of the safety information provided by the designer. Manufacturers must inform the designer of any hazards they identify during manufacture and ensure the hazards are not incorporated into the plant.

If it is not possible to inform the designer of the hazard, manufacturers must ensure that risks associated with those hazards are eliminated or reduced so far as is reasonably practicable.

Manufacturers also need to obtain safety information from the designer and pass this information on when supplying the plant.

Suppliers

Suppliers of plant have duties to ensure that hazards associated with the plant have been identified and that the risks have been controlled.

Suppliers also have a duty to control risks associated with the plant and to obtain safety information from the manufacturer and pass this information on when supplying the plant to someone else.

There are additional duties for suppliers who hire out plant, as well as for the supply of rollover protection for tractors. Agents who act for suppliers have a duty to obtain and pass on safety information before selling the plant.

WorkSafe's Compliance code: Plant has more information and practical guidance for those who have duties or obligations in relation to plant under the OHS Act and OHS Regulations.

Compliance and enforcement

WorkSafe applies a strategy of 'constructive compliance' – a combination of incentives and deterrents – to improve workplace health and safety.

This strategy recognises that real and sustainable improvement in workplace health and safety requires active involvement from employers and employees in identifying hazards and controlling risks.

WorkSafe inspectors have the primary role of targeting unsafe workplace activity, enforcing compliance with health and safety laws and providing guidance and advice on how to comply with those laws.