Occupational Health And Safety Prosecutions
Prosecutions by Victoria’s Workcover Authority, or ‘WorkSafe’ can be brought against an employer under a number of Acts or Regulations. They often prosecute in cases where an employee has been injured or killed whilst at work. The Acts and Regulations are:
- Accident Compensation Act 1985
- Crimes Act 1958
- Dangerous Goods Act 1985
- Occupational Health and Safety Act 2004
- Occupational Health and Safety Regulations 2007
Most prosecutions are brought under the Occupational Health and Safety Act 2004, particularly the failure of an employer to provide safe systems of work, sufficient supervision or instruction and training.
Additionally WorkSafe makes approximately 40,000 workplace visits per year. Prosecutions can arise after an inspection where the authority deems appropriate. Industries which are a major focus for Inspectors are construction, manufacturing, retail trade, wholesale trade and transport and warehousing.
The Victorian Workcover Authority also has a dedicated psychosocial practice team which makes more than 500 Victorian workplaces per year. It responded to requests for assistance, and delivered advice and tools to help employers identify and manage mental wellbeing issues in their workplaces.
Businesses and companies face significant fines and in extreme cases imprisonment, meaning that it is extremely important to be represented by solicitor who is familiar with the legislation and WorkSafe prosecutions.
Often defendants will ultimately plead guilty to charges brought against them. After proper negotiations with the prosecuting authority, the matter will proceed as a plea. When hearing a plea, the Court will take into consideration the following factors:
- The surrounding circumstances of the incident (eg the nature of the breach, foreseeability of risk etc)
- Whether the individual or company has any previous convictions.
- The extent of the risk and harm suffered by the victim(s)
- The role of the offender and the seriousness in their breach of OH&S obligations.
- Any post offence conduct (eg installation of safety equipment, introduction / upgrading of training material etc)
- Demonstrations of remorse by the offender
OH&S matters are prosecuted in a very similar manner to criminal matters in Victoria. We are experienced in defending both individuals and companies who have been charges by WorkSafe, and are able to act and negotiate on your behalf to obtain the best result possible.
There are many issues which can arise in WorkSafe prosecution. Some of questions for example might include:
- Is one party entirely at fault, or does more than one party bear liability?
- What are current trade practices and do they have any impact?
- Was the training provided to employees adequate? Were current procedures up to date?
- Who is in control of a worksite?
Call us for a free and honest assessment of your case.