The Law Handbook 2024

1078 Section 11: Rights, activism and fair treatment at work because he refused to work in a manner that he considered unsafe ( Patrick Stevedoring Pty Ltd v Chasser (Victorian Workcover Authority) [2011] VSC 597). As with other offences, these section 76 offences can only be enforced by WorkSafe Victoria inspectors (see ‘Enforcement of OHS law’). In addition to penalising an employer, a court that finds a charge under section 76 proved can order that the employee concerned be compensated and/or reinstated to their former position. As a result of recent amendments to the OHS Act 2004, claims of discrimination against HSRs and others can now be raised in civil proceed- ings (ss 78A–78E). A plaintiff has one year to bring a civil claim. Civil cases are easier to establish than criminal cases as it is only necessary to show that the HSR was dismissed ‘because of ’ their occupational health and safety activities. The civil standard of proof applies. It may also be possible for an employee who considers they have been targeted for raising health and safety concerns to pursue an ‘adverse action’ claim under the Fair Work Act 2009 (Cth) (‘ FW Act ’). Benefits of such an approach include the ability to obtain speedy, temporary relief pending the hearing of the case (see AFMEPKIU v Visy Packaging Pty Ltd [2011] FCA 1001). Union access to workplaces Under the OHS Act 2004 (pt 8), an employee or officer of a trade union registered under the FW Act may be issued with an entry permit by the Magistrates’ Court (s 83). A permit holder is entitled, in defined circumstances, to access certain workplaces for the purpose of investigating particular alleged contraventions of the OHS Act 2004 (s 87). A permit holder who enters a workplace in accordance with the OHS Act 2004 may exercise the powers of investigation set out in section 89. A permit holder seeking to gain entry under the OHS Act 2004 must also comply with Part 3-4 of the FW Act. Note that the requirement for a union official to hold a FW Act permit extends beyond the circumstances in which a permit under the OHS Act 2004 is needed to gain entry to a workplace (see ABCC v Powell [2017] FCAFC 89). Enforcement of OHS law Improvement and Prohibition Notices The key enforcement tools under the OHS Act 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 OHS Act 2004). A Prohibition Notice is a written direction prohibiting an activity that a WorkSafe Victoria 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 OHS Act 2004). WorkSafe Victoria 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 OHS Act 2004 or the OHS Regulations are brought by WorkSafe Victoria inspectors. Most offences against the OHS Act 2004 are indictable offences. Prosecutions may be heard summarily by the Magistrates’ Court. WorkSafe Victoria has sought to have more cases heard in the County Court. OHS Regulation offences are summary offences. Penalties The maximum penalty for OHS Regulation offences is 500 pu for corporations and 100 pu for individuals. For indictable offences (other than workplace manslaughter), the maximum penalty is 20000 pu for corporations and 1800 pu for individuals. In recent years, the penalties imposed for offences against the OHS Act 2004 have increased, which reflects the importance of deterrence. See DPP (Vic)