Employer Primary Duty of Care in Victoria (OHS Act 2004)

What it is

Victoria is the only Australian jurisdiction that has not adopted the model Work Health and Safety (WHS) Act. Victoria retains the Occupational Health and Safety Act 2004 (Vic) with its own but broadly comparable primary duty of care framework. WorkSafe Victoria administers the OHS Act.

The Victorian framework uses "employer" as the primary duty-holder rather than "PCBU". A residential building company that engages workers is an employer under section 5 of the OHS Act. The duty is set by section 21.

Section 21 employer duty

Section 21(1) of the OHS Act 2004 (Vic) requires an employer to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees.

Section 21(2) sets out specific components of the duty:

• provision and maintenance of plant and systems of work that are safe and without risks to health
• arrangements for the safe use, handling, storage and transport of plant and substances
• maintenance of each workplace under the employer's management and control in a safe condition
• provision of adequate facilities for the welfare of employees
• provision of information, instruction, training or supervision necessary to enable employees to perform their work safely and without risks to health

Section 23 duty to non-employees

Section 23 of the OHS Act extends the employer duty to persons other than employees. An employer must ensure, so far as is reasonably practicable, that persons other than employees are not exposed to risks arising from the conduct of the undertaking. That covers subcontractors' workers, visitors, delivery drivers and members of the public.

Section 23 is the closest Victorian analogue to the model WHS Act 2011 section 19(2).

The "reasonably practicable" test

Section 20 of the OHS Act defines what is reasonably practicable. The employer must have regard to:

• the likelihood of the hazard or risk eventuating
• the degree of harm that would result if the hazard or risk eventuated
• what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk
• the availability and suitability of ways to eliminate or reduce the hazard or risk
• the cost of eliminating or reducing the hazard or risk

That test is substantively the same as the model WHS Act section 18 test.

Officer accountability

Section 144 of the OHS Act imposes offences on officers of a body corporate where the corporate has committed an offence. If the officer failed to exercise due diligence to prevent the offence, the officer commits an offence. Due diligence includes taking reasonable steps to acquire and keep up to date knowledge of health and safety matters.

Officer accountability under section 144 is a growing area of prosecution in Victoria. Directors of residential building companies should not delegate OHS compliance to site supervisors and expect to avoid personal liability.

Penalties

The OHS Act uses penalty units rather than dollar figures. For the 2026-27 financial year, the Victorian penalty unit is set annually and current at the time of prosecution.

Category 1 offences (section 32 workplace manslaughter, section 39 reckless endangerment) carry the highest penalties. Workplace manslaughter for a body corporate carries a maximum penalty of $19.8 million (approximately, tied to penalty units). For an individual, up to 25 years imprisonment.

Category 2 offences carry lower penalties, and Category 3 lower again.

Workplace manslaughter (section 39G)

Section 39G workplace manslaughter offence commenced 1 July 2020. It applies where an employer or self-employed person negligently causes the death of another person by act or omission. Victoria was the second state after Queensland to enact workplace manslaughter as a specific offence.

How Victoria differs from other states

Victoria's OHS Act 2004 uses different terminology (employer rather than PCBU) but the substantive obligations are broadly comparable to the model WHS Act 2011 in every other jurisdiction. Key differences include:

• self-employed persons have separate duties under section 24 rather than being covered as PCBUs
• the section 21 duty extends specifically to safe systems of work in a way the model WHS Act rolls into section 19(3)
• workplace manslaughter under section 39G has different constituent elements from industrial manslaughter offences in other states

A residential builder operating across Victoria and other states cannot rely on WHS Act compliance to satisfy Victorian OHS Act duties. The Victorian framework needs separate compliance analysis.