Occupational Health And Safety (Ohs) (Workplace) Prosecutions
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OHS charges are generally serious in nature and a range of both internal and external factors impact them.
A number of stakeholders are involved in these charges, so seeking expert advice early is paramount.
What are OHS Laws and Who Do they Apply to?
ALL stakeholders associated with your business have a legal obligation to themselves and others (employees, customers, visitors, suppliers and contractors) to provide the safest environment possible free from risks to health and safety.
OHS practices need to be followed over the entire life of a business. OHS laws stipulate businesses need to be safe environments for employees and not place others’ health and safety at risk of harm.
A company must take the necessary precautions to avoid significant consequences and follow best practices by training all employees on OHS procedures and providing a safe equipment.
Officers and other individuals are unable to be insured or indemnified against a penalty arising from a breach of the OHS laws in Victoria.
Examples of Workplace Prosecutions
We have expertise in and can assist in defending the following for employers, duty holders and officers:
- Employers, directors and employees investigated and/or charged with committing offences pursuant to the Occupational Health & Safety Act (OHS Act 2004) in circumstances where an employee/contractor has been injured or killed in a work-related accident
- Workplace manslaughter
- Failure to comply with improvement notices and warnings
- Workplace injuries
- Workplace safety breaches
- Worksafe and WorkCover Authority prosecutions
- Failing to provide and maintain a safe working environment for employees (such as controlling entry to high-risk areas, providing systems to prevent falls from heights, ensuring fire exits are not blocked, worksites are generally tidy and guarded plant)
- Failing to eliminate/reduce health and safety risk
- Failing to monitor the health of employees and the conditions at a workplace
- Failing to provide information to employees about health and safety (and where necessary, in appropriate languages)
- Failing to ensure that people other than employees are not exposed to risks to health and safety
- Failing to monitor employees’ health (such as providing hearing tests if they are exposed to high noise levels)
- Failing to keep information and records relating to employees’ health and safety
- Failing to provide or maintain plants or systems of work that are safe and without risks to health (such as machinery and equipment)
- Failing to provide adequate amenities and facilities for the welfare of employees
- Failing to make arrangements for ensuring safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances
- Failing to provide the information, instruction, training, or supervision to employees that is necessary to enable them to perform their work in a way that is safe and without risks to health
- Hindering, obstructing, concealing evidence from an inspector or preventing a person from assisting an inspector
- Assaulting, intimidating, threatening an inspector/a person assisting an inspector
- Impersonating an inspector
- Refusal by employees to allow OHS training as specified in a WorkSafe determination
- Situations where asbestos has been removed by unqualified individuals and/or in circumstances where inadequate protective equipment and measures have been employed
- Failing to manage workplace hazards (such as toxic gases and vapours, heat, cold and confined spaces)
- Failing to make arrangements for ensuring safety and the absence of risks to health in connection with the design, manufacture, importation, supply, erection or installation of plant or substances
- Failing to meet licensing, registration and certification requirements
- Failing to provide proper management/control of a workplace via appropriate means of accessing a work site.
When WorkSafe Victoria (Victoria’s WorkCover Authority) prosecute an accused of workplace offences, negligence or breaches of certain duties, they come under a number of Victoria’s health and safety Acts and Regulations, including:
- Occupational Health and Safety Act 2004 (the main workplace health and safety law in Victoria which seeks to protect the health, safety and welfare of employees and ensures the public is not put at risk by work activities) (the OH&S Act)
- Occupational Health and Safety Regulations 2017 (this regulation builds on the OHS Act and sets out how to fulfil duties and obligations, particularly in relation to: safe operation of major hazard facilities and mines, training for high-risk work, managing and removing asbestos and licences for specific activities) (OHS Regulations)
- Crimes Act 1958
- Dangerous Goods Act 1985 (DG Act)
- Accident Compensation (WorkCover Insurance) Act 1993 (AC Act)
- Equipment (Public Safety) Act 1994 (EPS Act)
- Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act)
Most workplace offences fall under the OHS Act for failing to provide and maintain a safe working environment for employees and failing to provide the information, instruction, training, or supervision to employees that is necessary to enable them to perform their work in a way that is safe and without risks to health.
A business is generally prosecuted under one of the above Acts or Regulations where an employee has been killed/injured.
The above Acts and Regulations include offences where risk has not been sufficiently managed and controlled, even where the risk did not result in an injury/death. For instance, where an employee required medical treatment at work, the workplace has an obligation to immediately inform WorkSafe so they can investigate. It is not sufficient that only police/ambulance attended.
How to Identify, Assess and Control Workplace Risks?
All employees have a duty of care to:
- Follow risk control plans (clear guidance on workplace procedures)
- Undertake risks assessments (to identify hazards that can cause harm, death, injury or illness – this helps identify the severity of the risk, determine how urgent the action is, if control measures are effective and what action needs to be taken to control the risk).
- Control/eliminate risks
- Review control measures
- Engage in ongoing and regular training and supervision (to update safety measures)
How are OHS Matters Prosecuted?
OHS matters are prosecuted in a very similar way to criminal matters.
Workplace Manslaughter
Workplace manslaughter is a relatively new extremely serious criminal offence that has been introduced in OHS laws (under the OHS Act and OHS Regulations). This law aims to prevent workplace deaths, deterring people and businesses who owe a duty of care to comply with all OHS obligations in the workplace from breaching those duties and to reflect the severity of conduct that places a life at risk in the workplace.
This offence relates to an employer/officer of a business who breaches their duties and causes death of an employee who was owed a duty of care. They overlooked the risks by failing to take steps to mitigate an employee’s death.
Despite this law being relatively new, it is reserved for extreme cases of negligence, usually involving accused corporate entities that have past history with disregarding their obligations which has ultimately led up to a tragic event involving a death in the workplace.
Workplace manslaughter may also arise when the death of the victim occurs sometime after the conduct (for example where an employee develops an asbestos related disease some years after being exposed to a harmful substance such as asbestos).
What Needs to be Established?
In order to determine whether you can be successfully prosecuted for the offence of workplace manslaughter, prosecution must establish the following elements:
The entity charged is an employer (someone who employees 3 or more people):
- A body corporate (business) (including registered companies, organisations, incorporated associations, unincorporated bodies and associations, statutory authorities, trustees of trusts, partnerships, franchises, not-for-profits or government entities); or
- A person (director, secretary, partner or office holder who holds the highest level of authority/power) or persons who are not an employee/volunteer (self-employed persons)
The law does not apply to employees/volunteers
- The entity owed the victim a duty of Care.
- The entity breached it’s duty as a result of negligent conduct (for an employer – their act/omission must be negligent (s 39E of the OHS Act). For a business – their act/omission falls short of the standard of care a reasonable business would have taken in the circumstances (a failure to act (omission) by not adequately managing, controlling or supervising employees; not taking reasonable action to fix a dangerous situation and failing to do so causes a high risk of death, serious injury or illness)
- The breach of a duty (act/omission) (substantially, not necessarily solely) caused the death of the employee
- By breaching the duty, the entity (if a person) acted consciously and voluntarily
The Court Process
Suspected offences are investigated by WorkSafe Victoria’s new Fatalities Investigations team using existing powers under the OHS Act. WorkSafe maintain the initial conduct of a matter until trial stage, when the Office of Public Prosecutions then take carriage of a prosecution.
After appropriate negotiations, the matter will proceed accordingly. If a plea of guilty is entered in Court, the following factors will be weighed up during sentence:
- What was the nature/surrounding circumstances of the breach (what was the role of the offender – foreseeability of risk)?
- Does the accused employer/employee/company/organisation have previous convictions/safety record?
- Is the accused remorseful of their actions?
- What was the extent of harm caused to the victim/s?
- How serious do the actions breach OHS obligations?
- Did the offender take actions to remove/reduce the risk (install/upgrade safety equipment or provide training material)?
Defences
Possible defences will depend on the circumstances surrounding the alleged offending. It is very important that legal advice is obtained in order to be fully informed as to whether your business should plead guilty or proceed to trial.
Penalties
Workplace manslaughter is a serious offence. Different penalties will be imposed if an entity is convicted of a workplace death depending on whether you are an individual or body corporate.
- Individual – maximum 25 years imprisonment (equivalent to the Crimes Act offence of manslaughter)
- Body corporate (company) – maximum fine of $16.5 million
Employers, Directors and Employees Investigated and/or Charged with Committing Offences under the OHS Act in Circumstances where an Employee or Contractor has been Injured/Killed in a Work-Related Accident
What to Consider/Needs to be Established?
Employees can be charged for breaching existing duties under the OHS Act, including a failure to:
- Take reasonable care for their own and other’s in the workplace health and safety
- Cooperate with their employer regarding actions the employer takes to comply with OHS laws
- Unintentionally or recklessly interfering with or misusing equipment provided at the workplace to support health, safety and welfare
- Recklessly engaging in conduct that may place another person at a workplace in danger of serious injury
Reasonably Practicable
The law requires employees to eliminate risks so far as is ‘reasonably practicable’.
To determine what is ‘reasonably practicable’, the following factors require assessment:
- The likelihood of the risk/hazard occurring
- The harm that would result from the risk/hazard
- What a person knows (or should know) about the risk/hazard, and ways to reduce/eliminate it
- Suitability/ways to reduce/eliminate the risk/hazard
- Cost of reducing/eliminating the risk/hazard
The relevant existing duties ‘so far as reasonably practicable’ include:
- The duty of employers to provide and maintain a working environment for employees that is safe and without risks to health
- The duty of employers to monitor the health of employees and working conditions
- The duty of employers to ensure persons other than employees are not endangered by the conduct of the business (including visitors, the public and other workers)
- The duty of self-employed persons to ensure persons are not exposed to OHS risks from their undertaking
- The duty of persons with the management or control of a workplace to ensure that the workplace and the means of entering and leaving it are safe
- The duty of designers to ensure plant, and buildings and structures that are used as workplaces, are safely designed
- The duty of manufacturers and suppliers to ensure plant or substances are safely manufactured and safe to use
- The duty of a person not to recklessly engage in conduct that may place another person at a workplace in danger of serious injury
Penalties
A range of potential sentences may exist from fines to imprisonment.
In more serious cases, prosecutions can involve serving a prison sentence or being fined a substantial amount. Prison is more likely for acts that are reckless and place the offender and or others in the workplace in danger of serious injury/death.
Other penalties include:
- Substantial financial penalties/fines
- From 1 July 2023, the maximum financial penalty for a business for each breach of duty under OHS laws is $1730.790 and for individuals is $346158
- Provisional improvement notices (to improve health and safety standards)
- Formal caution/warning (puts the accused on notice that any further breaches will result in a prosecution)
- Reputational long-term damage to your business (which has flow on affects to employees (hiring/retaining staff), customers/clients (custom), livelihood, growth (particularly for small businesses in a phase of growth and development and family businesses who do not have the same level of infrastructure as large companies), securing insurance and tenders and financial stability)
- Personal struggles
WorkSafe and WorkCover Authority Prosecutions
WorkSafe is the peak body for monitoring, enforcing and investigating workplace compliance with the OHS Act and regulations in Victoria. With all breaches of the OHS Act, WorkSafe lead investigations into potential workplace manslaughter and breaches of OHS regulations that may have resulted in accidents/incidents. Even if no accident/incident, disease or death results, WorkSafe and the WorkCover Authority can still prosecute businesses due to the risks that have not been sufficiently mitigated in the workplace. WorkSafe issue notices requiring businesses to take action.
Usually, WorkSafe commence investigating a business when there is an accident/incident or after a report from an employee/former employee. WorkSafe also attend businesses for random inspections.
In some cases, the Office of Public Prosecutions may prosecute more serious offences including workplace manslaughter.
WorkSafe and the WorkCover Authority work closely with police to ensure evidence is preserved and the workplace does not pose risks to the health and safety of persons being at the workplace.
Following prosecutions, WorkSafe has many other functions under the OHS Act and include:
- Making recommendations about the OHS Act, regulations and compliance codes
- Promoting public awareness and discussion about OHS and welfare issues
- Publishing statistics and practical guidance
Circumstances WorkSafe May Commence Workplace Proceedings
- Work-related fatalities (workplace manslaughter)
- Incidents involving serious injury/immediate risk to health and safety (reckless conduct that endangers/may endanger others at work, failing to control risks despite previous risk/knowledge, repeat offending and departures from accepted safe systems of work)
- Prevention in high-risk industries and occupations (farming, transport or constructions and common musculoskeletal injuries)
- Failing to comply with a direction given by an inspector or WorkSafe (particularly if the risk still exists in the workplace, as ‘passed on’ to others without warning or was not fixed until a significant time after the date of the notice)
- Offences against inspectors (hindering, concealing or obstructing evidence from an inspector, assaulting, intimidating or threatening an inspector or impersonating an inspector)
- Offences against health and safety representatives (employees refusing OHS training as specified by WorkSafe, meeting obligations set by health and safety representatives such as interviews or information and establishing a health and safety committee)
- Offences against or by authorised representatives of registered employee organisations (hindering, obstructing, impersonating or intimidating an authorised representative)
- Discrimination/threats against employees/potential employees (for any action regarding health and safety including making/pursuing claims for compensation or giving notice of injury)
- Coercion in negotiations (regarding the establishment of designated workgroups of employees)
- Failing to notify WorkSafe of notifiable incidents (and failing to preserve incident sites)
- Offences involving substantial damage to property (such as high consequence dangerous goods, breaches of Governor-in-Council orders prohibiting dangerous goods – under the DG Act)
- Offences that breach Governor-in-Council orders that impose on prohibition with prescribed equipment (under the EPS Act)
- Offences involving dishonesty by workers, employees and health professionals
- Employers failing to comply with return-to-work obligations (failing to plan an employee’s return to work, consulting about employee’s return to work and providing employment to injured employees to the extent it is reasonable to do so – under Part VIIB of the AC Act and Part 4 of the WIRC Act)
- Employees unduly delaying/complicating employee access to entitlements or appropriate treatment (failing to make weekly payments)
- Offences that breach return to work inspectors and other persons authorised to exercise powers for WorkSafe
- Breaches by self-insurers
- Premium evasion
Issues/Questions that May Arise in WorkSafe and WorkCover Authority Prosecutions
- Who is in control of the work environment?
- Is one or are more than one parties at fault?
- What are the current trade practices, and do they have any impact?
- Was the training provided to employees adequate?
- What degree of risk and harm was suffered by the victim/s?
- Were current procedures up to date?
Criteria for Initiating Criminal Charges
WorkSafe considers a range of factors in determining whether to take action:
- There is a reasonable prospect of a guilty conviction (based on the following)?
- Nature and circumstances of the offending (seriousness of the offence)
- Characteristics of the offender (previous compliance history, age, health and intelligence)
- Risk the offender poses to others (if a victim has died as a result of a workplace health and safety breach)
- General deterrence (reducing the risk of others offending) and specific deterrence (reducing the risk of future breaches) based on the prevalence of the alleged offence
- Impact/s on the offender/others (business/financial loss)
- Maintaining public confidence in the administration of justice (level of public concern about the offence)
- Extent the offender has cooperated with investigations, acted in accordance with any advice given by WorkSafe in relation to its obligations or proactively taken steps to make up (restitution) for any loss caused
- Chance evidence will be excluded
- Possible defence/s
- Witnesses are (and forensic/medical/identification evidence is) credible, available, reliable, competent and compellable when giving evidence in court
- Conflict between eyewitnesses
- Availability and efficacy of alternatives to prosecution (including consequences of a guilty finding being harsh/oppressive and entitlement to criminal compensation, reparation or forfeiture)
If WorkSafe considers sufficient evidence supports enforcement action and the public interest (2 paramount considerations), they must bring charges under the following time limits:
- Minor/less serious offences – 12 months of the offence (with the exception of a law)
- Serious charges (under the OHS Act) – 2 years of being committed/becoming aware of an offence (DPP may authorise an extension of time)
- Offences under the WIRC and AC Acts – 3 years of the offence
If WorkSafe has not brought a prosecution within 6 months of an alleged health and safety, return to work or discrimination offence, any person may request that WorkSafe bring a prosecution. Following a request, WorkSafe must within 3 months investigate the matter and advise whether a prosecution has been or will be brought (with reasons).
Penalties
Most prosecutions are commenced against companies (not individuals) in the Magistrates Court of Victoria.
- Financial (range into the tens of thousands of dollars)
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Questions and Next Steps - What if I have been Charged with an OHS Offence?
Seek professional legal counsel. Our lawyers are experts in workplace manslaughter, WorkSafe regulatory investigations and OHS breach matters from small to serious offences, with years of experience successfully defending companies and individuals at the Magistrates, County and Supreme Courts in a range of circumstances and trading industries (including small business owners and directors of large companies across the manufacturing, building, construction, transport and logistics, just to name a few). We have helped to attain the most optimal outcomes by arguing a defence to our clients’ unique circumstances – having prosecutions withdrawn, non-convictions, charges reduced or discontinued and orders given to protect business needs, like allowing clients to continue operating, earning income and providing employment to employees whilst proceedings are ongoing.
Free Legal Advice 24/7
Being responsible for your employees’ health and safety is burdensome, particularly when issues arise. But we are here to help reduce the burden and navigate the difficulty. By partnering with our specialist legal team, we are committed to working with you through every step to reduce the devastation on your life. We understand your emotional needs and we will guide you through the legal terms, court processes, procedures, expert witnesses and implications of every step to provide you and your employees with the necessary advice, support and reassurance.
WorkSafe cannot provide any advice in relation to the merits of any proceedings.
Protect your future now by contacting our experienced team of OHS lawyers for free legal advice 24/7 on 1800 130 120 or marcus.mklawfirm.com.au.
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- 2/212 Barkly Street, St Kilda Victoria, 3182 Australia
- 1800 130 120
- marcus@mklawfirm.com.au