OHS Act 2004 (Victoria)
Vic OHS Act 2004 is the state regime, distinct from the harmonised WHS Act. Uses employer/employee terminology. Key sections: s21, s23, s32, s37-39, s39G.
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The Occupational Health and Safety Act 2004 is Victoria’s workplace safety statute. Victoria did NOT adopt the national model Work Health and Safety Act 2011 that NSW, Qld, SA, WA, Tas, NT, and ACT adopted. As a result, Victoria uses employer / employee terminology rather than PCBU / worker. The Act is administered by WorkSafe Victoria. Key sections: s21 (employer duties to employees), s23 (duties to non-employees), s32 (reckless endangerment), s37-39 (notifiable incidents), and s39G (workplace manslaughter, from 1 July 2020). Builders moving between Victoria and other states need to know both regimes.
Why Victoria is different
In 2011-2012, the federal government and most states agreed on a harmonised WHS Act based on a national model. Victoria, along with WA at the time, chose to retain its existing OHS regime rather than adopt the model. WA later adopted a harmonised WHS Act in 2020. Victoria stayed with the OHS Act 2004.
Practical implications:
| Aspect | OHS Act 2004 (Vic) | WHS Act 2011 (other states) |
|---|---|---|
| Terminology | Employer / employee | PCBU / worker |
| Duty holder | Employer (and self-employed persons) | PCBU (Person Conducting a Business or Undertaking) |
| Categories | Different offence structure (s21 + s32 + s39G) | Cat 1, 2, 3 (ss31-33) |
| Manslaughter | s39G workplace manslaughter (from July 2020) | Qld + ACT + NSW (separate provisions); manslaughter via Criminal Code in other states |
| Regulator | WorkSafe Victoria | SafeWork NSW / WorkSafe Qld / etc. |
A construction site in Victoria operates under the OHS Act 2004 / OHS Regulations 2017 (Vic). A construction site in NSW operates under the WHS Act 2011 / WHS Regulation 2017 (NSW). The DUTIES are broadly equivalent in substance; the language and structure differ.
Key sections for builders
s21: employer’s duty to employees
The cornerstone duty. An employer must, so far as is reasonably practicable, provide and maintain:
- A safe working environment.
- Safe systems of work.
- Safe plant and structures.
- Safe handling, storage, transport of substances.
- Adequate information, instruction, training, supervision.
- Adequate welfare facilities.
Equivalent to the WHS Act 2011 s19 PCBU primary duty.
s23: duty to persons other than employees
An employer must, so far as is reasonably practicable, ensure that the conduct of the undertaking does not expose other persons (visitors, subcontractors, public, neighbours) to risk to health and safety.
This is the duty that captures chain-of-duty obligations to subcontractor workers (parallel to the WHS Act 2011 s19(2)).
s32: reckless endangerment
Criminal offence: a person commits an offence if they engage in conduct in breach of s21 or s23 AND that conduct places another person in danger of serious injury. Up to 5 years imprisonment for an individual, substantial fines for body corporates.
This is the closest analogue to model WHS Cat 1, but the framing differs.
s37-39: notifiable incidents
The Act requires immediate notification to WorkSafe of:
- Death.
- Serious injury or illness.
- Dangerous incident (specified categories).
Equivalent to the WHS Act 2011 notifiable-incident regime.
s39G: workplace manslaughter (from 1 July 2020)
The criminal offence of workplace manslaughter, attaching to negligent conduct that breaches s21 or s23 and causes death. Penalty: up to 25 years imprisonment for individuals and up to ~$16.5M (indexed) for body corporates.
See workplace manslaughter for detail.
How the OHS Act sits relative to the OHS Regulations
| Layer | Document | What it does |
|---|---|---|
| Act | OHS Act 2004 (Vic) | High-level duties, offences, enforcement powers |
| Regulations | OHS Regulations 2017 (Vic) | Operational detail: HRCW (19 categories), SWMS, induction, hazards |
| Codes of practice | WorkSafe Vic published codes | Recommended approaches; admissible in proceedings |
The Act sets the duty; the OHS Regulations 2017 set the operational detail.
Enforcement
WorkSafe Vic inspectors can issue:
| Notice | What it does |
|---|---|
| Improvement notice | Direct duty holder to fix breach within stated time |
| Prohibition notice | Stop work immediately on specific activity |
| Non-disturbance notice | Preserve a scene for incident investigation |
| Infringement notice | On-the-spot fine for specific breaches |
| Prosecution | For serious breaches under s32, s39G, etc. |
Common builder issues
- Builder operating in Vic without realising the OHS Act applies: assumes the harmonised WHS framework; uses PCBU language in WHS Management Plan; defective.
- No SWMS for HRCW (Vic OHS Reg 327): Vic has 19 HRCW categories (one more than the model). SWMS still required.
- No employer-employee distinction in documentation: Vic OHS Act uses employer/employee; sloppy documentation referring to “PCBU duties” in Vic creates evidence problems.
- s39G workplace manslaughter exposure: officers personally liable for negligent breach of s21/s23 causing death.
For builders
- If you operate in Vic, use the Vic OHS framework. Don’t import WHS terminology.
- Brief officers on s39G: criminal manslaughter is a personal liability risk.
- Engage a WHS / OHS adviser familiar with the Victorian regime if your operations cross state lines.
- Maintain incident notification protocols for s37-39: the 24-hour window is short.
- Cross-train your safety officer on both OHS Act (Vic) and WHS Act (other states) if you work interstate.
References
- OHS Act 2004 (Vic) full text: https://content.legislation.vic.gov.au (verified 2026-05-15).
- WorkSafe Victoria: https://www.worksafe.vic.gov.au (verified 2026-05-15).
Related
See also
Last updated: 2026-05-15. Verified: 2026-05-15.