Adverse publicity orders policy

Introduction

The effectiveness of Victoria’s occupational health and safety laws depends on public awareness about:

• risks to workplace health and safety
• the consequences of failing to ensure workplace risks are eliminated or reduced.

Prosecutions under the Occupational Health & Safety Act 2004 (OHS Act) present opportunities for offenders to contribute to industry knowledge and community understanding about workplace safety.

To maintain the integrity and sustainability of the WorkSafe scheme, it is also important employers, providers and workers comply with their legal obligations under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act). Where an offence has been committed under the WIRC Act, adverse publicity orders can be used as a way of discouraging non-compliance.

A court, in sentencing an individual or body corporate for a workplace offence, has a range of sentencing options available under the Sentencing Act 1991, the WIRC Act and the OHS Act.

Sentencing powers available to a court under section 135 of the OHS Act include adverse publicity orders. Similarly, the WIRC Act also provides for adverse publicity orders under section 605 for offences under the WIRC Act.

The purpose of this policy is to inform the exercise of WorkSafe’s prosecutorial discretion regarding applications for adverse publicity orders.

About adverse publicity orders

If an individual or body corporate is found guilty of an offence against the OHS Act, the Occupational Health & Safety Regulations 2017, or the WIRC Act, the court may require the offender to:

• publicise the offence, its consequences, the penalty imposed, and other related matters
• notify specific people, or groups of people, about the offence, its consequences, the penalty imposed, and other related matters.

A court can make an adverse publicity order on its own initiative, or on the prosecutor’s application.

A court can make an adverse publicity order in addition to, or instead of, imposing a penalty (such as a conviction and/or fine) or other order.

Generally, the adverse publicity order will compel the offender to cause a notice (the Notice) to be published in a particular publication, such as an industry magazine.

Alternatively, the adverse publicity order may compel the offender to notify particular people, or groups of people (such as shareholders), about the offence in some other manner, such as direct contact through email or post.

Purpose of an adverse publicity order

The sentencing principle of general deterrence refers to the capacity of a criminal sanction to deter others from committing offences. In order to promote general deterrence, courts have an important role to play in ensuring that the results of cases become known to relevant audiences.

Adverse publicity orders are a means of achieving this. Adverse publicity orders are also punitive. They can lead to reputational damage which may impact corporate prestige in a way that a fine may not.

Adverse publicity orders can also educate the public about workplace safety, and the relevant law, and increase public confidence in the administration of occupational health and safety laws and workers’ compensation laws.

What WorkSafe will consider before seeking an adverse publicity order

Before applying for an adverse publicity order, WorkSafe will consider:

• the nature and seriousness of the offence
• the likelihood of the risk arising in other workplaces
• the prevalence of the workplace activity in which the offender was engaged
• the prevalence of the offence
• the importance of general deterrence as a sentencing consideration in the case
• the offender’s compliance with WorkSafe directions and guidance since the commission of the offence
• the likely cost to the offender of compliance with the adverse publicity order
• the intended audience for an adverse publicity order
• the views of any victims.

Identifying the intended audience is key

The audience may include:

• shareholders
• investors
• customers
• employees
• contractors
• industry peers
• the wider public.

The offending must have some relevance to the intended audience. For example, it may have relevance because:

• it will cause shareholders to disapprove of the offender
• it will cause industry peers to implement safe work systems
• it will educate employees about their rights in the workplace.

Cases will be considered according to their individual circumstances. However, WorkSafe may choose not to apply for an adverse publicity order where:

• the workplace activity is uncommon
• no suitable publications can be identified
• an adverse publicity order would not be proportionate to the offending
• there is a privacy or reputational risk to a third party (including a victim, or a new operator who has acquired the offender’s business since the offence)
• there are relevant suppression or non-publication orders, or statutory prohibitions on publication of information.

An adverse publicity order may be in the public interest if an event, or industry practice, has attracted significant public and media interest. This is consistent with the notion that public awareness of workplace health and safety risks is fundamental to the effectiveness of Victoria’s occupational health and safety laws.

Widespread media publicity about a case may not render an adverse publicity order futile. An important workplace safety message may warrant repeating. Adverse publicity orders can assist with the accuracy and effectiveness of media coverage about court outcomes.

Publishing an adverse publicity order

Once the intended audience has been identified, WorkSafe will consider how, and when, the target audience is best reached. When applying for an adverse publicity order, WorkSafe will provide the court with relevant information, and make appropriate submissions, concerning suitable publications.

This may include information and submissions regarding:

• the proposed audience for the Notice, and why that audience has been identified
• whether a print, online or broadcast medium (or a combination) is appropriate, and why
• suitable publications for the Notice
• the anticipated reach and readership of the proposed publications
• in the case of a website, whether the Notice should be prominent on the home page
• the timing and duration of the publication
• the likely cost to the offender of publishing the Notice.

A Notice published in compliance with an adverse publicity order should be noticeable and accessible by the intended audience.

Any deadline for compliance with the adverse publicity order should be realistic, having regard to the editorial deadlines of the identified publication.

Potential publication options

Potential publication options include:

• printed and online newspapers
• trade publications and industry magazines
• websites
• social media
• physical notices displayed in prominent locations
• media releases
• TV
• Radio
• direct contact with specified people or groups of people.

Timing

If WorkSafe considers it appropriate to apply for an adverse publicity order, the offender will be given written notice in advance of the plea hearing.

The notice

Where WorkSafe seeks an adverse publicity order, WorkSafe will assist the court by drafting a proposed Notice.

Drafting the Notice should ideally be a shared responsibility between the prosecution and defence. Agreement ahead of the plea hearing is desirable. However, if agreement cannot be reached, WorkSafe may still apply for an adverse publicity order.

In complying with the court order, the obligation to publish the Notice is imposed on the offender, not WorkSafe. The offender’s own explanation of the risk, and acceptance of responsibility, may send a powerful message to the intended audience. A Notice which reflects genuine remorse and contrition for a workplace incident, potentially including an apology, can send a powerful message to industry stakeholders, the community, and victims.

The Notice should ordinarily refer to matters including:

• the charges
• the incident (if any) which resulted in the charges
• the nature of any relevant workplace risk
• measures which might have reduced or eliminated the risk (if relevant)
• the nature of any fraud or non-compliance against the workers compensation scheme (if relevant)
• Pictures/images (if relevant and appropriate)
• the proceeding
• the penalty.

Clear and concise language should be used. Ideally, the Notice will be written in the first person, in the offender’s voice. Excessive formality should be avoided. The Notice should accurately and effectively convey any relevant workplace safety messages.

In appropriate cases, WorkSafe may also make submissions regarding the prominence, size and format of the proposed Notice (for example colour, occupying a full page, font size).

Compliance with an order

When a court makes an, the offender must give WorkSafe evidence that the action or actions were taken by the offender in accordance with the order. That evidence must be provided within 7 days after the end of the period specified in the order.