Enforcement

Enforcement and Prosecutions Worksafe

Occupational Health & Safety Act
Policies and guidelines set out how and when WorkSafe will encourage compliance with the Victoria’s OHS laws; compel dutyholders to remedy risks to occupational health and safety; and prosecute OHS offences.

Investigations and prosecutions

Investigations and prosecutions under Victoria’s OHS laws and regulations are undertaken by WorkSafe’s Legal Services & Investigations Division.

The Division consists of investigators, senior lawyers and support staff. Enforcement plays a key role in WorkSafe’s prevention activity.  The investigation and prosecution of breaches of OHS laws is fundamental to achieving safer workplaces.

WorkSafe strives to maintain the highest standards of ethical and prosecutorial behaviour in upholding the law. WorkSafe publishes criteria for commencing investigations, prosecution guidelines and a range of supplementary enforcement policies. WorkSafe also publishes all its prosecution outcomes.  

The key activities in enforcement are:

• Managing WorkSafe’s 24 hour emergency response service, with state-wide coverage by our inspectors
• Investigating incidents and alleged offences under the OHS Act, Dangerous Goods Act, Equipment Public Safety Act and their Regulations
• Conducting prosecutions of offences under the OHS Act in the courts
• Providing legal advice to WorkSafe, inspectors and the WorkSafe’s Internal Review Unit
• Conducting litigation and appeals arising from inspector and administrative decisions

WorkSafe’s uses prevention-based enforcement to target workplaces and occupations with:

• high incidences of injury or disease
• high severity risks for investigation and prosecution 

In 2008-9 WorkSafe is seeking to:

• Increase the level of investigation and prosecution activity by 10%
• Improve the timeliness of the investigation and prosecution process
• Continue to support families of workers who have been killed at work that are involved in investigations and prosecutions

Publications:

• WorkSafe Compliance and Enforcement Policy and VWA General Prosecution Guidelines

The WorkSafe Compliance and Enforcement Policy provides an overview of the legislative framework within which WorkSafe operates and sets out how WorkSafe’s ‘Constructive Compliance Strategy’ is applied to its enforcement and prosecution activities.
It also incorporates the VWA General Prosecution Guidelines, as published in the Victorian Government Gazette.

• A Summary of Compliance, Enforcement and Prosecution Policy

A six page summary of the WorkSafe Compliance and Enforcement Policy and VWA General Prosecution Guidelines.

Supplementary Enforcement and Prosecution Policies

Supplementary enforcement and prosecution policies provide details of the implementation of the principles set out in the VWA General Prosecution Guidelines.

• Enforceable Undertakings

Details WorkSafe’s approach to enforceable undertakings under OHS legislation, outlining when an undertaking may be suitable, giving examples of acceptable and unacceptable terms and explaining how an undertaking will be considered and managed.

• Forfeiture and Return of Seized Items

Details WorkSafe’s approach to what happens to items that are seized, or otherwise taken possession of, by the Authority under part 9 of the Occupational Health and Safety Act 2004 once those items are no longer required for use as evidence in criminal proceedings.

• Legal Professional Privilege

Details WorkSafe’s approach to what should occur when, on the basis of legal professional privilege, a person objects to the production of documents to WorkSafe pursuant to s 99 of the Occupational Health and Safety Act 2004, or to the seizure of documents by WorkSafe pursuant to s 100 of the Act.

• Letters of Caution (OHS Offences)

Details WorkSafe’s approach to issuing a letter of caution to an offender as an alternative to prosecution for an occupational health and safety (‘OHS’) offence.

• Liability of organisations, officers, employees, and other dutyholders

Details the Authority’s approach to prosecuting various types of dutyholders (e.g. corporations, partnerships, unincorporated associations and other bodies, officers, employees, etc.).

• Mode of Trial: Choosing the Appropriate Jurisdiction

Details WorkSafe’s approach to determining whether, in the view of WorkSafe, an indictable occupational health and safety (“OHS”) offence should be tried summarily.

• Prosecution of an Offence under an Act and/or a Regulation

Details WorkSafe’s approach to whether the prosecution of an occupational health and safety (“OHS”) offence will occur under an Act and/or an associated regulation.

• Prosecution of Victorian Government Departments

Details WorkSafe’s approach to the application of the VWA General Prosecution Guidelines to alleged offences by Victorian Government Departments under Victoria's OHS laws.

• Publishing Prosecution Outcomes and Other Enforcement Information and Data

Details WorkSafe’s approach to the publishing and utilisation of data and information arising from investigation and enforcement activities undertaken by WorkSafe, in particular, prosecution-related activities.

• Search Warrants (OHS)

Details WorkSafe’s approach to applying to the Magistrates’ Court, pursuant to Divisions 5 and 6 of Part 9 of the Occupational Health and Safety Act 2004, for a search warrant authorising entry to premises to search and seize items as part of the Authority’s compliance activity.

• Seeking an Injunction

Details WorkSafe’s approach to seeking an injunction to compel a person to comply with a non-disturbance notice, improvement notice, or prohibition notice, or to restrain a person from contravening such a notice.

• Sentencing Submissions (OHS Offences)

Details the principles adopted by WorkSafe that guide a prosecutor’s submissions to a court on sentencing.

• Dealing with allegations of discrimination related to health and safety

Details WorkSafe's approach to dealing with allegations of discrimination against an employee related to helath and safety.