Are traffic accidents notifiable incidents under the Occupational Health and Safety Act 2004 (Vic) (the OHS Act)?
Section 38 of the OHS Act requires employers to notify the Authority immediately after becoming aware that an incident has occurred at a workplace under the management and control of the employer. Civil construction contractors will often work on road upgrades where traffic flow continues, albeit controlled by diversions and roadwork speed limits. Roadwork speed zones invariably extend well beyond the area where work is actually being undertaken. The question then arises where does the ‘workplace under the management and control of’ a civil construction contractor begin and end for the purposes of section 38 of the OHS Act? Can open carriageways alongside civil construction work areas ever be considered part of a civil construction ‘workplace’ so that a civil construction employer will have notification duties for traffic incidents that occur on them?
Cases from NSW, which have held that elevators and a utilities pipeline were constructed for purposes other than being a dedicated workplace, are important on this point. The elevators were found to exist for the purpose of being used by people within the building and similarly the pipeline was constructed for the sole purpose of conveying utilities. In both these cases the purpose of the relevant area was key to determining whether that area should be considered a workplace when no work was actually being conducted in the area.
For civil construction projects:
- the civil construction company contracted to do the works, rarely if ever, owns the carriageway that they are working on or alongside,
- the civil construction company contracted to do works does not perform those works on open areas of the carriageway,
- the civil construction company is only likely to have management and control of the open areas of carriageway to the extent that a Memorandum of Consent has been entered into with VicRoads or any other relevant road authority, and
- in relation to the cases discussed above, the purpose of a carriageway is not to act as a ‘dedicated workplace’ but is instead to operate as part of a safe and efficient road network that can be utilised for the primary purposes of travel and transport.
Civil construction works that occur on or alongside an open carriageway (as outlined above) fall within the scope of the NSW cases. Open carriageways alongside civil construction works cannot and should not be considered part of the civil construction ‘workplace’ for the purposes of section 38 of the OHS Act. This is also the only logical interpretation because otherwise civil construction contractors would owe OHS duties for any traffic accident occurring on roads they were working near regardless of whether the incident was connected with the construction works.