Provisional Improvement Notices (PINs)
An HSR can issue a PIN to a person if they believe the OHS Act is being (or has been) breached, and it is likely 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, and
- requiring the production of documents and taking samples or other things for further examination or testing.
It is an offence not to assist an inspector to perform their functions. You can refuse or fail to answer an inspector’s question if answering it would incriminate you, provided the inspector warns you beforehand that this is the case.
It is an offence to hinder, obstruct, threaten, intimidate, or attempt to impersonate an inspector.
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 they reasonably believe 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.
Inspectors can issue infringement notices for more minor offences that are not serious enough to warrant prosecution.
The Act also provides for enforceable ‘undertakings’ as a more positive alternative to prosecutions. This means an employer makes a written undertaking to remedy or rectify a breach of the Act, in lieu of court proceedings. However, you can be prosecuted for breaching an undertaking. Contravention of an enforceable undertaking is an offence for which a company can be fined.
Where adequate admissible evidence exists of a breach of OHS laws, and prosecution is 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, anyone can request that WorkSafe start 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 to start proceedings and will advise the person who made the original request.
Fines for breaches of the OHS legislation are expressed in penalty units. Penalty units are indexed annually to keep pace with inflation.
The current value of a penalty unit is $165.22 (as of 1 July 2020). Changes to the rate occur with effect from 1 July each year.
The maximum penalty for a corporation is 9000 units, and for an individual 1800 units.
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.
Under workplace manslaughter laws, employers who negligently cause a workplace death will face fines of up to $16.5 million and individuals will face up to 20 years in jail.
The offence will fall under the Occupational Health and Safety Act 2004 and will apply to employers, self-employed people and ‘officers’ of the employers.
The legislation will also apply when an employer’s negligent conduct causes the death of a member of the public.
WorkSafe Victoria will investigate the new offence using their powers under the OHS Act to ensure employers can be prosecuted.