As Criminal Lawyers, the majority of people we represent in Court are charged by Victoria Police or the Australian Federal Police in relation to criminal offending.
More frequently however, we are representing clients, and companies themselves, who are charged with offences brought by the Victorian workplace ombudsman, Worksafe, for breaches of the Occupational Health and Safety legislation.
Whilst Worksafe conduct a large number of work site visits, we find that most charges come after a workplace accident has occurred.
Common breaches of the OH&S act are either:
(i) failure of the employer to provide a safe working environment,
(ii) failure by the employer to provide information, instruction, training or supervision, or both.
Whether or not an employer has breached their obligations to employees can only be answered after a close examination of the evidence which is prepared by Worksafe investigators. Each workplace and set of circumstances is unique, which is why it is important to engage solicitors with experience in this area.
So, what are the consequences of non-compliance with health and safety legislation?
After an accident in the workplace, employers will often take steps to improve their plant, procedures and training of their own volition to ensure similar accidents are prevented from occurring in the future. If the Court believes additional improvements are necessary to ensure the ongoing safety of employees at the time of hearing the matter, it can make an ‘Order to undertake improvement projects’ with which the business must comply by a particular date.
Additionally, in most cases the Court will impose a monetary penalty, the severity of which is dependent upon a number of factors, but largely the seriousness of the accident and the degree of the employer’s failures. At the time of writing, charges brought under section 21 of the Occupational Health and Safety Act 2004 can carry a fine of up to 1800 penalty units for an individual, or 9000 penalty units for a company. A penalty unit, which is set at the start of each financial year, is currently $158.57, meaning that the abovementioned fines can be up to approximately $285,000 and $1,427,000 respectively.
The Court also has the power to Order that an employer publicise the offence and penalty and, separately release them on a ‘Health and Safety Undertaking’ for up to two years, during which they must attend Court when called on and not commit any further breaches. Such undertakings often come with special conditions to engage a consultant or to conduct an audit on the business, with the aim of improving compliance with Health and Safety legislation.
In certain circumstances, Worksafe may issue an Infringement Notice as an alternative to instigating a prosecution, though doing so would occurs in cases of minor breaches.