Take Me to Your Employer: The Organisational Reach of Occupational Health and Safety Regulation

Abstract

‘Employers’ in the OHS statutes tend to be defined contractually: an employer is a person who employs another person under a contract of employment. The OHS statutes appear to assume a single employer with considerable freedom to determine the limits of their boundaries, and responsible only under the principles of agency and vicarious liability. This article examines the way in which the general duties in the OHS statutes operate when the employer (or self-employed person) is not a sole proprietor or a single corporate entity: for example where various business organisations are linked in a contractual chain or network; where operations are run by a partnership, unincorporated association or joint venture; where the ostensible employer is an entity within a larger corporate or organisational structure; or in situations where the person or entity responsible for engaging or employing workers is different from the person or entity with control over assets and decision-making concerning OHS. In addressing the application of the OHS statutes to these different configurations of ‘the employer’, the article examines provisions in the OHS statutes that extend the reach of an employer’s duty beyond the employer’s employees (for example, provisions that deem contractors and their employees to be employees of the principal contractor; and the duty to persons who are not employees). It also shows how the new Victorian ‘shadow officer’ provisions can be applied to remove difficulties and doubt as to the liability of partners in a partnership, officers of unincorporated associations, joint venturers, and holding and subsidiary companies within corporate groups.