WorkSafe & Occupational Health and Safety Prosecutions in Victoria
Facing a WorkSafe prosecution or occupational health and safety charge can have serious consequences for a business, company, director, employer, manager or individual.
WorkSafe Victoria has significant powers to investigate workplace incidents and alleged breaches of Victoria’s occupational health and safety laws. Following an investigation, WorkSafe may commence criminal proceedings for alleged breaches of the Occupational Health and Safety Act 2004 (OHS Act) and associated regulations.
A prosecution may expose an individual or company to substantial fines, legal costs, reputational damage and, in the most serious cases, imprisonment.
If you or your business is being investigated by WorkSafe, has been charged with an OHS offence, or is required to attend court, obtaining legal advice early can be critical.
Brancato Law provides criminal defence representation for WorkSafe and occupational health and safety prosecutions across Melbourne and Victoria.
Contact us for urgent advice about a WorkSafe investigation or prosecution.
WorkSafe Defence Lawyers in Melbourne
WorkSafe prosecutions are criminal proceedings. They can arise following workplace incidents involving serious injury, death, unsafe systems of work, dangerous plant or equipment, inadequate risk controls, failures to provide appropriate training or supervision, or other alleged breaches of occupational health and safety duties.
The consequences can extend well beyond the court penalty.
For a business, a prosecution can affect its reputation, contracts, insurance, commercial relationships and ability to operate.
For a director, officer, manager or other individual, a prosecution can affect their employment, professional reputation, future career and personal finances.
The OHS Act imposes duties on a range of people and organisations, including employers, employees, self-employed persons and people who manage or control workplaces. The duties are generally expressed by reference to what is reasonably practicable in the circumstances.
WorkSafe expects that employers must, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health. This includes obligations relating to plant, systems of work, substances, workplace conditions, facilities, information, instruction, training and supervision.
Health under the Victorian OHS framework includes both physical and psychological health.
What is a WorkSafe prosecution?
A WorkSafe prosecution is a criminal prosecution arising from an alleged breach of workplace health and safety legislation.
WorkSafe may investigate a workplace incident or suspected contravention and, following its investigation, consider whether criminal charges should be filed.
WorkSafe explains that prosecutions can involve alleged breaches of the:
- Occupational Health and Safety Act 2004;
- Occupational Health and Safety Regulations 2017;
- Dangerous Goods Act 1985;
- Equipment (Public Safety) Act 1994; and
- other applicable workplace safety legislation.
Charges may be brought against individuals as well as companies, employers, labour hire businesses, suppliers or manufacturers.
WorkSafe prosecutions commence in the Magistrates’ Court. Depending on the nature and seriousness of the offence, a matter may remain in the Magistrates’ Court or proceed to the County Court or Supreme Court.
Who can be prosecuted?
A WorkSafe prosecution is not necessarily limited to the company involved in a workplace incident.
Depending on the circumstances, proceedings may involve:
- companies and employers;
- directors and officers;
- managers and supervisors;
- people who manage or control a workplace;
- self-employed persons;
- employees;
- contractors and subcontractors;
- labour hire companies;
- suppliers and manufacturers; and
- other people who have legal duties under occupational health and safety legislation.
The precise duty imposed depends on the person’s role, the workplace, the circumstances giving rise to the alleged risk and the extent of the person’s control and responsibility.
Common WorkSafe and OHS prosecutions
WorkSafe prosecutions can involve a wide range of alleged safety breaches.
Examples include:
Workplace injuries and serious incidents
A workplace injury may result in a WorkSafe investigation, particularly where the circumstances indicate a serious breach of occupational health and safety duties.
The fact that an injury occurred does not, by itself, determine whether an offence has been committed. The prosecution must establish the relevant legal elements of the charge.
Workplace deaths
A workplace death can result in a significant WorkSafe investigation and potentially serious criminal charges.
Workplace deaths may involve allegations concerning unsafe systems of work, inadequate risk controls, plant or machinery, supervision, training or other failures.
Workplace manslaughter
Victoria has specific workplace manslaughter offences for the most serious workplace conduct.
These offences carry significantly more serious consequences than ordinary OHS offences and require specialist legal representation.
If you are being investigated for conduct that may give rise to a workplace manslaughter charge, you should obtain independent legal advice immediately.
Falls from height
Falls from height are a significant area of workplace safety enforcement.
Prosecutions may involve allegations concerning inadequate fall protection, unsafe work systems, inadequate supervision, plant or equipment or failure to properly identify and control risks.
Unsafe plant and machinery
WorkSafe may investigate incidents involving machinery, plant and equipment.
Potential allegations can include inadequate guarding, unsafe systems of work, inadequate maintenance, failure to identify hazards or inadequate training and supervision.
Failure to provide a safe system of work
Employers have duties concerning the systems and methods by which work is performed.
An allegation may arise where WorkSafe considers that a business failed to adequately identify, eliminate or reduce a workplace risk.
Failure to provide training, instruction or supervision
Employers may have duties to provide employees with information, instruction, training or supervision necessary to enable them to perform work safely.
An alleged failure in this area may form part of a WorkSafe prosecution.
Dangerous goods offences
Workplace investigations can also involve alleged breaches concerning dangerous goods, storage, handling, transportation or related safety requirements.
The legislation applying to a particular incident will depend on the circumstances.
What does “reasonably practicable” mean?
In essence, this is means that employers and those who manage or control workplaces should do what they are reasonably able to do to ensure to maintain a working environment that is safe and without risks to health.
Section 20(2) of the OHS Act provides that regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety:
- the cost of eliminating or reducing the hazard or risk;
- the likelihood of the hazard or risk concerned 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.
More information about this can be found at the WorkSafe website.
What happens during a WorkSafe investigation?
A WorkSafe investigation can involve interviews, requests for documents, inspections of workplaces, examination of plant and equipment and collection of other evidence.
Investigators may seek information concerning:
- workplace policies and procedures;
- risk assessments;
- safe work method statements;
- training records;
- induction records;
- maintenance records;
- incident reports;
- emails and other communications;
- supervision arrangements;
- workplace practices;
- previous incidents or complaints; and
- the circumstances leading to the alleged offence.
An interview with a WorkSafe investigator can have significant consequences.
If you have been asked to participate in an interview or provide information as part of an investigation, obtaining legal advice before responding may assist you in understanding your obligations and protecting your legal interests.
WorkSafe charges and court proceedings
If WorkSafe decides to commence criminal proceedings, the accused person or company may receive a summons or other court documentation setting out the alleged offences.
WorkSafe prosecutions begin in the Magistrates’ Court.
The matter may then proceed through various stages, including:
- filing of charges;
- first court appearance;
- consideration of the prosecution evidence;
- disclosure;
- negotiations with the prosecution where appropriate;
- resolution by plea of guilty, where appropriate; or
- contesting the charges at a hearing or, where applicable, a higher court.
The appropriate strategy will depend on the evidence, the particular charges and the client’s objectives.
Defending a WorkSafe prosecution
Every WorkSafe prosecution should be assessed on its own facts.
Depending on the circumstances, a defence may involve examining:
- whether the prosecution can prove each element of the alleged offence;
- whether the accused owed the relevant legal duty;
- the extent of the accused’s control or responsibility;
- whether the alleged risk existed;
- whether the risk was reasonably foreseeable;
- what was reasonably practicable in the circumstances;
- the adequacy of existing safety controls;
- the reliability of witness evidence;
- the accuracy and completeness of WorkSafe’s investigation;
- expert evidence;
- causation issues where relevant; and
- whether the prosecution has complied with applicable procedural requirements.
In an appropriate case, it may be possible to negotiate the resolution of charges or challenge the prosecution’s case.
There is no single defence that applies to every OHS prosecution.
Pleading guilty to a WorkSafe charge
A guilty plea may be appropriate in some cases.
However, a guilty plea should generally only be entered after you understand:
- the charges;
- the prosecution case;
- the available sentencing options;
- the likely consequences of a conviction;
- the factual basis relied upon by the prosecution; and
- the mitigation available at sentence.
A carefully prepared plea can be important.
Mitigating material may include evidence concerning:
- the circumstances of the offending;
- the accused’s role and level of responsibility;
- prior compliance history;
- cooperation with investigators;
- remedial action;
- improvements to workplace systems;
- training undertaken;
- safety improvements implemented after the incident;
- early acceptance of responsibility;
- personal circumstances; and
- the impact of the offending and proposed penalty on the business or individual.
The objective is to present the court with an accurate and properly supported picture of the offending, the accused and the steps taken to prevent recurrence.
Penalties for WorkSafe and OHS offences
The appropriate sentence depends upon the offence, the maximum penalty available, the circumstances of the offending, the offender and other sentencing considerations.
The court will consider the particular circumstances of the offending and the offender rather than applying a fixed penalty to every prosecution.
Why early legal advice matters
WorkSafe investigations can become complex quickly.
Early legal advice can allow you to understand:
- what allegations are being investigated;
- what legal duties may apply;
- your obligations during the investigation;
- whether you should participate in an interview;
- what documents may be relevant;
- whether there are potential exposure issues for individuals as well as the company;
- whether remedial steps should be taken;
- whether an enforceable undertaking may be relevant; and
- how best to prepare for a potential prosecution.
It can be significantly harder to correct problems after charges have been filed.
Why choose Brancato Law?
WorkSafe prosecutions are criminal matters requiring a detailed understanding of criminal procedure, evidence, sentencing and the particular legislation governing occupational health and safety.
Our approach includes:
- early assessment of the allegations;
- detailed review of prosecution evidence;
- advice during WorkSafe investigations;
- representation at court;
- advice about guilty pleas and contested hearings;
- preparation of sentencing submissions;
- negotiation with prosecutors where appropriate; and
- practical advice concerning the potential personal and commercial consequences of a prosecution.
We understand that a WorkSafe prosecution can affect more than the outcome of a court case. It can affect a person’s livelihood, a director’s reputation and a business’s ability to continue operating.
Contact Brancato Law for urgent advice about your WorkSafe investigation or prosecution.