VIC penalties

The maximum fines for serious breaches of the OHS Act 2004 are listed, as well as alternatives to prosecutions.

Victoria’s occupational health and safety (OHS) legislation provides for a range of corrective processes and enforcement options, including provisional improvement notices issued by health and safety representatives (HSRs), improvement and prohibition notices and on-the-spot fines issued by WorkSafe Victoria’s inspectors, and prosecutions that could result in heavy fines or other penalties.
 

Provisional Improvement Notices (PINs)

 
An HSR can issue a PIN to a person if he/she believes the OHS Act is being (or has been) breached, and it is likely that the breach will be repeated or continued. The HSR must first consult with the person responsible for the breach before issuing any notice. The PIN requires the person to rectify the problem and the cause(s) of it.
 
The notice must specify a date by which the matter must be rectified, which must be at least eight days after the date of the notice. It may also state how the matter should be rectified.
 
It is an offence not to comply with a PIN, however the person can request the regulator to appoint an inspector to review the notice. The inspector can confirm, amend or cancel the PIN.
 

Inspectors – securing compliance

 
Inspectors’ powers under the OHS Act include:
 
  • entering and inspecting workplaces (permission of the employer or person managing/controlling the workplace is not essential, nor is prior notification of entry)
  • reviewing disputed PINs
  • issuing directions or notices requiring compliance with the law
  • investigating breaches of the Act and assisting with the prosecution of offences
  • requiring the production of documents, and taking samples or other things for further examination or testing.
It is an offence not to provide an inspector with reasonable assistance to perform his/her functions, but a person may refuse or fail to answer an inspector’s question if answering the question would tend to incriminate him or her, provided the inspector warns the person beforehand that this is the case.
 
It is an offence to hinder, obstruct, threaten, intimidate, or attempt to impersonate an inspector.
 

Enforcement measures


Compliance audits and inspections

WorkSafe Victoria may undertake inspections, investigations or compliance audits, and may issue a letter of caution, warning that a breach of OHS legislation has been detected.

Improvement, prohibition and non-disturbance notices

Inspectors can issue improvement or prohibition notices if they believe breaches of the Act have occurred or are occurring.
 
An improvement notice requires its recipient to remedy the contravention and/or its cause(s), and prevent contraventions from continuing or re-occurring. The notice may set out methods for remedying the situation and must set a date by which it must occur.
 
An inspector may issue a prohibition notice if he/she reasonably believes that a situation poses a serious OHS risk due to immediate or imminent exposure to a hazard. The notice generally will apply until the inspector is satisfied that the hazard, its cause(s), or the relevant circumstances have been rectified or removed. Until then, performance of the work, or its performance in a specified way, are prohibited.
 
A prohibition notice may set out methods for remedying the situation. If it is not complied with, the regulator may take ‘reasonable action’ to remedy the situation after giving written notice.
 
An inspector may also issue a non-disturbance notice if he/she reasonably believes that it is necessary to facilitate the exercise of his/her compliance powers.
 

On-the-spot fines

 
Inspectors can issue infringement notices for more minor offences that are not serious enough to warrant prosecution.
 

Enforceable undertakings

 
The Act also provides for enforceable ‘undertakings’ as a more positive and less punitive alternative to prosecutions. This means that the employer makes a written undertaking to remedy or rectify a breach of the Act, in lieu of court proceedings. However, the person can be prosecuted for breaching an undertaking. Contravention of an enforceable undertaking is an offence for which a company can be fined up to $396,425.
 

Prosecutions 

 
Where sufficient admissible evidence exists of a breach of OHS laws and prosecution would be in the public interest, WorkSafe Victoria may undertake a prosecution. However, if a prosecution has not been initiated within six months of an alleged offence, any person may request that WorkSafe commence a prosecution. WorkSafe will then investigate the allegation and advise the person as to whether it will prosecute or not. If it declines to prosecute, the person may ask for the matter to be referred to the Director of Public Prosecutions (DPP). After consideration of the DPP’s advice, WorkSafe will make its final determination whether or not to commence proceedings, and will advise the person who made the original request.
 

Fines

 
The OHS Act provides for the following maximum penalties:
 
  • for corporations is $3,171,400, and
  • for individuals is $285,426.
Fines for breaches of the OHS legislation are expressed in penalty units. Penalty units are set by the Monetary Units Act 2004 and are indexed annually to keep pace with inflation.
 
The current value (for the financial year 2017-18) of a penalty unit is $158.57. Changes to the rate occur with effect from 1 July each year.
 

Reckless endangerment

 
Section 32 of the OHS Act also provides for jail sentences for reckless endangerment. This is defined as where a person ‘recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury’. Where this can be proven, the offence is punishable by up to the maximum fine listed above, and/or five years’ imprisonment for individuals.
 

Alternative penalty options

 
In addition to fines or imprisonment, courts can impose adverse publicity orders, health and safety undertakings, or orders to undertake improvement projects.
 
[Last reviewed 26 April 2018]