Legal proceedings and sentencing options

Proceedings

Proceedings under the OHS Act (sections 130 & 132)

WorkSafe and its inspectors can start legal proceedings for offences under the OHS Act and the regulations. For indictable offences, the Director of Public Prosecutions (DPP) can also start legal proceedings.

Proceedings for an indictable offence must be brought within 2 years of the offence, unless the DPP agrees to more time.

Procedure if prosecution is not brought (section 131)

If a person believes that an offence under the OHS Act or regulations has occurred and no prosecution has been started within 6 months of the offence, they can ask WorkSafe to prosecute. They must ask in writing.

After receiving a request to prosecute, WorkSafe has 3 months to investigate the matter and advise if it will prosecute. If the offence is an indictable offence, WorkSafe may extend the investigation but:

• they must give a report to the person and to the Minister every 3 months until the investigation is finished
• they must investigate and decide as quickly as is reasonably practicable.

Unless it would prejudice a current investigation, WorkSafe must give reasons for a decision not to prosecute. If WorkSafe decides not to prosecute or has not started a prosecution within 9 months, WorkSafe must refer the matter to the DPP if the person requests them to. The DPP must then advise WorkSafe if it believes the offence should be prosecuted. WorkSafe must give a copy of the DPP’s advice to the person who made the request to prosecute and, if WorkSafe still does not prosecute, their reasons.

The DPP can still prosecute an indictable offence if WorkSafe does not.

Limitation period for prosecutions (section 132)

Legal proceedings for indictable offences against the OHS Act can be started:

• within 2 years of WorkSafe becoming aware of the offence
• within a year after a coroner’s finding has been made if the findings or inquest identified that there was an indictable offence committed under the OHS Act
• within 6 months after:
  • an undertaking under section 16 of the OHS Act was contravened
  • WorkSafe found out that an undertaking under section 16 of the OHS Act was contravened
  • WorkSafe has agreed to withdraw an undertaking under section 16 of the OHS Act
• at any time if the DPP authorises it
• if new evidence is found outside of the limitation period
• at any time if the offence is workplace manslaughter.

Sentencing

Penalties

Penalties can be imposed on a person found guilty of offences under the OHS Act. Different maximum penalties are set for different offences.

The payment of a penalty cannot be covered by insurance. Any contract term or arrangement that claims to insure or indemnify a person for payment of a penalty under the OHS Act or regulations is void under section 148A of the OHS Act.

As well as the penalty under each section of the OHS Act, a court may give more or different sentencing options, discussed in the following sections.

Adverse publicity orders (section 135)

If a court finds a person guilty of an offence, it may require the offender to publicise or notify certain people about the offence, outcomes and the penalty. This can be as well as or instead of giving a penalty or other order.

Within 7 days of the end of the period stated in the order, the offender must give WorkSafe evidence that they complied with the order. If they have not done what was ordered, a court can authorise WorkSafe to do it and recover costs from the offender.

Orders to undertake improvement projects (section 136)

If a court finds a person guilty of an offence, it may require the offender to do a particular project by a set date to improve occupational health, safety and welfare. This can be as well as or instead of a penalty or other order. The court can specify conditions for the project. The cost of doing the project cannot exceed the maximum monetary penalty that can be imposed for the offence.

Release on a health and safety undertaking (section 137)

If a court finds a person guilty of an offence it can adjourn proceedings for up to 2 years. It must order the offender to give an undertaking to do certain things. If the offender is an employer, they may be ordered to:

• get an approved consultant to help with OHS matters
• develop and apply an organised approach to better manage health and safety risks
• get an approved independent person to do an OHS audit of the business.

The offender must comply with any conditions imposed by the court, return to the court if called and must not commit any further offences under the OHS Act, the regulations, the Equipment (Public Safety) Act 1994 or the Dangerous Goods Act 1985 or regulations made under those Acts during the period of undertaking. If the court is satisfied at the adjourned hearing that the undertaking has been met, it must then discharge the offender.

Infringement notices (section 139)

Some regulations allow for infringement notices to be issued instead of prosecuting an offence, except indictable offences. The penalty under an infringement notice cannot be more than the lesser of 10 penalty units, or 1/5th of the maximum penalty that a court could impose for the offence.

Bodies corporate, partnerships and unincorporated bodies or associations

Duties under the OHS Act apply to officers within the meaning of the Corporations Act 2001. Officers include people who are involved in making decisions that affect the whole, or substantial part, of the business of an organisation, and people who have the capacity to affect significantly the body corporate's financial standing. So, these provisions relate to the officers at the most senior levels of organisations who could prevent breaches of the OHS Act.

An officer of a body corporate, a partnership or an unincorporated body or association who is a volunteer is exempt from prosecution under these provisions of the OHS Act.

Imputing conduct to bodies corporate (section 143)

Any conduct done for the body corporate by its employees, agents or officers acting within their real or apparent employment or authority is considered to be conduct of the body corporate.

Liability of officers of bodies corporate (section 144)

If a body corporate breaches this Act or regulations because an officer of the body corporate did not take reasonable care, the officer:

• is guilty of an offence, and
• can be fined an amount no more than the fine for an individual found guilty of the same offence.

For an officer of a body corporate to be found guilty of an offence, the court must take into account:

• what the officer knew about the matter
• the level of their ability to make, or participate in making, decisions that affect the matter
• whether the breach can be attributed to any other person, and
• any other relevant matter.

An officer of a body corporate can be convicted of an offence, even if the body corporate has not been.

Offences by partnerships and unincorporated bodies or associations (section 145)

The duties under the OHS Act can apply to a partnership, an unincorporated body or association. When the OHS Act imposes a duty on a partnership, an unincorporated body or association, the duty is imposed on each of its officers.

Where a partnership, an unincorporated body or association, has breached the OHS Act, an officer is only guilty of the offence if the offence can be directly attributed to their failure to take reasonable care. A penalty imposed on them cannot be more than the penalty for an individual found guilty of the same offence.

An officer of a partnership, an unincorporated body or association who is a volunteer cannot be prosecuted under this section of the OHS Act.

Workplace manslaughter (sections 39A-39G)

On 1 July 2020, the criminal offence of workplace manslaughter was created in the OHS Act. It applies to negligent actions or failure to act, by an employer or other duty holders or an officer of an organisation, which breaches certain duties under the OHS Act and causes the death of a person who was owed the duty.

The offence of workplace manslaughter created more severe penalties for serious breaches of duties that already existed under the OHS Act. These severe penalties aim to prevent workplace deaths, and to be a bigger deterrent for duty holders to comply with their duties under the OHS Act.

The elements of the offence of workplace manslaughter are where a person (except a volunteer) has done something that is all the following:

• Negligent.
• A breach of an applicable duty that they owed to another person.
• Has caused the death of the other person.

These same elements apply to a person who is an officer of an applicable entity, like a body corporate, an unincorporated body or association, or a partnership.

The word negligent is only used in the OHS Act for workplace manslaughter. An action or inaction is negligent if:

• there is a great shortfall from the standard of care that a reasonable person would have taken in the circumstances
• there is a high risk of death, serious injury or serious illness.

There is no statutory limitation period for workplace manslaughter. This means that a workplace manslaughter charge can be filed at any time, even years after the death.