Consequences of non-compliance with Health and Safety Legislation

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. If this is the case, engaging a lawyer as soon as possible is of paramount importance.

What are the most common breaches of Workplace Health and Safety laws?

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.

What are the consequences of non-compliance with WHS 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 $184.92 as of 2022, meaning that the above-mentioned fines can range between  $333,000 and $1,664,000 respectively.

Are there any other penalties for breaching Health and Safety legislation?

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 occur in cases of minor breaches.

Moreover, details of breaches of Health and Safety Legislation in Victoria are published on the Worksafe blog.

What are the consequences for major breaches of OH&S laws?

Major breaches of OH&S legislation can result in jail time if the alleged offender is found guilty of reckless endangerment within a court of law. In essence, this means that the alleged offender has engaged in behaviour or negligence that may have put a colleague at risk of death or serious injury. 

If an OH&S incident has occurred in your business, it is vital to seek representation of a solicitor who is familiar with OH&S legislation in Victoria.

Summaries of past Worksafe Prosecutions and sentences imposed by the Court can be read on the Worksafe website, and more information about Victoria’s OH&S legislation can be found here.

Tom Isaacs

Tom Isaacs

Bachelor of Laws with Honours - LLB(Hons)

Tom has been part of the firm for the past 10 years, working initially as a law clerk and now as a fully qualified Solicitor. He completed his Bachelor of Laws with Honours at Deakin University, and undertook his legal training at the Leo Cussen Insititute where he was president of his class. Tom appears regularly at Magistrates' Courts, both metropolitan and in regional Victoria.