Compliance is enforced by a system of improvement and prohibition notices which can be appealed to VCAT. Inspectors have wide powers and upon prosecution there are heavy penalties for breaches, which are generally indictable offences.
Improvement and Prohibition Notices
The key enforcement tools under the OHSA 2004 are Improvement Notices and Prohibition Notices. These notices require employers or others to bring the work environment into compliance with the law or to stop immediate risks to health and safety.
An Improvement Notice is a written direction requiring a breach (or likely breach) of the law to be remedied. It sets a time limit within which the improvement must be carried out (s 111 OHSA 2004).
A Prohibition Notice is a written direction prohibiting an activity that a WorkSafe inspector believes involves or will involve an immediate risk to the health and safety of any person (s 112).
Notices can be appealed to the Victorian Civil and Administrative Tribunal (VCAT) (s 129). VCAT’s powers are contained in the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Before an application is made to VCAT, WorkSafe Victoria must be asked to conduct an “internal review” of the decision to issue the notice (s 128).
WorkSafe inspectors have very broad powers to investigate workplace safety and obtain information (see pt 9). It is an offence to obstruct an inspector in the exercise of their powers (s 125).
Prosecutions for offences against the OHSA 2004 or its Regulations are brought by WorkSafe inspectors. Most offences against the OHSA 2004 are indictable offences. Prosecutions may be heard summarily by the Magistrates’ Court. In recent times, WorkSafe Victoria has sought to have more cases heard in the County Court. Regulation offences are summary offences.
The maximum penalty for regulation offences is 500 pu for corporations and 100 pu for individuals. For indictable offences, the maximum penalty is 9,000 pu for corporations and 1,800 pu for individuals. In recent years, the penalties imposed for offences against the OHSA 2004 have increased, which reflects the importance of deterrence (see DPP v Coates Hire Operations Pty Ltd (2012) 36 VR 361).
The court can also impose other penalties such as adverse publicity orders (s 135) and orders to undertake improvement projects (s 136).
The offences with the heaviest maximum penalties are:
•failing to provide and maintain a safe working environment for employees (s 21);
•exposing non-employees to risks to their health and safety (s 23); and
•recklessly endangering people at workplaces (s 32).
The offence of reckless endangerment carries a maximum penalty of five years imprisonment for an individual. Such cases are rare (see Orbit Drilling Pty Ltd v R (2012) 35 VR 399).
Officers of bodies, corporate and unincorporated associations may also be convicted if they fail to take reasonable care to ensure that the body corporate or unincorporated association meets its statutory duties (ss 144, 145).
Anyone may ask WorkSafe Victoria to prosecute (for details, see s 131 OHSA 2004).