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 OHS Act 2004).
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. Regulation offences are summary offences.
The maximum penalty for Regulation offences is 500 pu for corporations and 100 pu for individuals. For indictable offences (other than workplace manslaughter), the maximum penalty is 20 000 pu for corporations and 1800 pu for individuals.
For the financial year 1 July 2021 to 30 July 2022, the value of one penalty unit (pu) is $181.74.
In recent years, the penalties imposed for offences against the OHS Act 2004 have increased, which reflects the importance of deterrence; see the following cases:
- DPP (Vic) v Coates Hire Operations Pty Ltd  VSCA 131;
- DPP v Vibro-Pile (Aust) Pty Ltd  VSCA 55; and
- DPP v Hazelwood Power Corporation Pty Ltd (Sentence) 2020 VSC 278 (the total penalty for 10 offences in this case amounted to $1.56 million).
The court can also impose other penalties, such as adverse publicity orders (s 135 OHS Act 2004) and orders to undertake improvement projects (s 136).
The heaviest maximum penalties are for:
- failing to provide and maintain a safe working environment for employees (s 21 OHS Act 2004);
- exposing non-employees to risks to their health and safety (s 23);
- recklessly endangering people at workplaces (s 32); and
- workplace manslaughter (s 39G).
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 The Queen  VSCA 82).
Officers of corporations and unincorporated associations can be convicted if they fail to take reasonable care to ensure that the corporation or unincorporated association meets its statutory duties (ss 144, 145 OHS Act 2004).
For workplace manslaughter, there is a maximum penalty of up to 25 years’ imprisonment for an individual or 100 000 pu for a body corporate (s 39G OHS Act 2004).
Anyone may ask WorkSafe Victoria to prosecute; WorkSafe Victoria must respond in writing to such requests (for details, see s 131 OHSA 2004).