WorkSafe inspectors and enforcement: Occupational Health and Safety Act 2004
This guidance explains Part 9 of the Occupational Health and Safety Act 2004, Inspectors and enforcement. The information will benefit employers and others with duties and responsibilities to health and safety in the workplace.
This guidance is currently being updated to reflect changes made by the Workplace Safety Legislation and Other Matters Amendment Act 2022, the Occupational Health and Safety and Other Legislation Amendment Act 2021, and the Occupational Health and Safety Amendment (Infringements and Miscellaneous Matters) Regulations 2021. Some contents may not reflect the current state of the legislation.
WorkSafe is the key regulator and enforcer of occupational health and safety (OHS) laws in Victoria. It aims to reduce work-related incidents, injuries, disease and death through 'constructive compliance', a prevention strategy that balances positive motivation with strong deterrents. WorkSafe's inspectors target unsafe workplace activity, respond to notifiable incidents and deal with alleged health and safety issues and breaches of health and safety laws. Inspectors also provide guidance and advice on how to comply with health and safety laws and encourage cooperative and consultative relationships between employers and employees and their representatives.
Health and safety laws
WorkSafe administers Victoria’s health and safety laws, which include the following Acts and corresponding regulations:
- Occupational Health and Safety Act 2004 (OHS Act)
- Dangerous Goods Act 1985 (DG Act)
- Equipment (Public Safety) Act 1994 (EPS Act)
These Acts set out key principles, duties and rights relating to health and safety. They also allow for the appointment of inspectors and give them the powers to inspect, give advice, investigate and enforce health and safety laws.
Protecting employees and others
In general terms Victoria's health and safety laws aim to:
- secure the health, safety and welfare of employees and other people at work
- eliminate risks to the health, safety and welfare of employees, including contractors, and the public
- ensure the activities of employers and self-employed persons do not place risks on the health and safety of members of the public
- involve employers and employees and their representatives in workplace health and safety issues
- promote and protect the safety of all people from risks associated with dangerous goods, hazardous substances and high-risk plant and equipment
Role of WorkSafe inspectors
The primary role of WorkSafe inspectors is to ensure employers and other duty holders comply with health and safety laws. Inspectors do this by:
- conducting strategically targeted inspections or in response to reported health and safety issues
- providing practical, helpful information and guidance to duty holders about how to fulfil their duties and obligations
- enforcing Victoria's health and safety laws by:
- making duty holders take action to fix health and safety breaches
- recommending comprehensive investigations to decide whether a breach of health and safety laws has occurred requiring prosecution or other action
- gathering data that can help prevent future OHS breaches
Commitment to health and safety
WorkSafe's inspectors encourage:
- duty holders' commitment to a planned approach to health and safety
- duty holders' commitment to continuous improvement of health and safety
- effective workplace communication and meaningful employee involvement at all levels
- control of risks at their source
- appropriate provision of training, information, instruction and supervision
- workplaces to make health and safety considerations a core part of their operations
When do inspections occur?
An inspector will inspect a workplace to ensure it is complying Victoria's OHS laws in the following circumstances:
Under the OHS Act, DG Act, and the EPS Act, an employer, occupier or self-employed person has a duty to inform WorkSafe when a 'notiﬁable incident' occurs at a workplace under their management and control. Duty holders must also try to preserve the scene as much as possible until an inspector arrives at the scene or gives further directions. Examples of notifiable incidents include death at a workplace, major chemical spills, explosion, fire, plant overturning and electric shock
Depending on the nature and circumstances of the notified incident, inspectors may be required to attend the scene of the incident.
You can find more information on the WorkSafe website about how to report an incident and the incidents duty holders must report to WorkSafe.
Programs of inspection
Strategic inspections can occur as part of WorkSafe's ongoing inspection programs focusing on poor-performing industry sectors and organisations, specific hazards that pose serious risks and the causes of common injuries.
Inspectors may initiate inspections in response to observations or information. For example, an inspector may investigate after passing a construction site and observing a workplace activity that poses an immediate risk, such as working on a roof without risk controls to prevent a fall from a height or not wearing a seatbelt when operating a forklift.
Attendance in response to requests under the OHS Act
Under the OHS Act, WorkSafe must send an inspector to attend a workplace in response to requests in relation to:
- a provisional improvement notice (PIN) that requires an inspector to review the PIN and either confirm or cancel it
- an unresolved OHS issue or direction to stop work because of a health and safety issue
- an unresolved issue between an employer and authorised representative of a registered employee organisation
- unresolved matters regarding employee representation
An inspector may also inspect the premises while attending a workplace in response to a request.
Attendance in response to other requests
A member of the public or employee in a workplace can ask WorkSafe to send an inspector to attend a workplace to enquire into an alleged failure to follow Victoria's OHS laws. The nature and circumstances of the request may determine whether an inspector will attend.
WorkSafe inspectors have a range of powers to ensure employers and other duty holders comply with health and safety laws:
Power of entry
WorkSafe inspectors have legislated powers to enter a place they reasonably believe is a workplace to assess whether the workplace is complying with health and safety laws. A workplace includes a building or structure, car, truck, ship, boat, airplane or any other vehicle.
Inspectors can enter a workplace anytime during working hours or when they have a reasonable belief there is an immediate risk to health and safety.
However, an inspector must not enter any part of a place used as a residence, except with the consent of its occupier or the authority of a search warrant.
Powers upon entering
Upon entering a place, an inspector may:
- inspect, examine and make enquiries
- inspect and examine any thing, including a document
- bring any required equipment or materials
- seize any thing, including a document, that may be evidence of an offence
- seize any thing that needs to be taken off site for further examination or testing
- take photographs or measurements or make sketches or recordings
- exercise any other power the inspector has under the OHS Act or regulations
- do any other thing that is reasonably necessary for the inspector to perform their function or exercise their powers
WorkSafe inspectors can call on other people such as technical experts, interpreters or police officers to help with an inspection and these people must be allowed access to the workplace during an inspection.
An inspector can also:
- review a PIN issued by a Health and Safety Representative (HSR) and confirm the PIN, with or without modifications, or cancel the PIN
- review a decision to stop work because of a health and safety issue
- issue directions
- issue improvement notices, prohibition notices and non-disturbance notices
An inspector may apply to a magistrate for a warrant to search a place if the inspector reasonably believes there is or that within the next 72 hours there may be evidence of a breach of the OHS Act or regulations. This warrant allows an inspector and any necessary assistants to enter the place to search for the thing described in the warrant.
Before using a search warrant to enter a place, inspectors must announce that they are authorised to enter. They must give any person at the place a chance to allow entry, unless the inspector reasonably believes they require immediate entry for the safety of any person or to ensure effective execution of the warrant. If the occupier is present, inspectors must identify themselves by producing their identification and provide a copy of the warrant.
Power to require documents and ask questions
An inspector may require a person to produce documents for examination and to answer questions. This would include taking affidavits, making copies of documents and taking extracts from documents. The person must comply, unless they have a reasonable excuse.
Power to require name and address
An inspector may ask for a person's name and address if the inspector reasonably believes the person may help them investigate an offence or if the person has committed or is about to commit an offence. The inspector must inform the person of the grounds for their belief, making sure the person understands the nature of the offence. The person must provide their correct name and address.
Assistance to inspectors
To help them carry out their role, inspectors may seek assistance from an occupier, apparent occupier, employer or employee at the workplace. Assistance must be provided unless there is a reasonable excuse for not assisting. Inspectors may also bring people with them to provide necessary assistance. An employer or occupier must not refuse entry to these people.
Hindering an inspection
A person must not intentionally:
- hinder or obstruct an inspector, or seek to have others do so
- hide anything from an inspector
- attempt to prevent anyone else from helping an inspector
It is an offence to assault, threaten or intimidate an inspector or a person assisting them, or to attempt to do so.
Power to take samples
An inspector may take samples for further analysis from a place they have entered. Before taking the sample, the inspector must tell the employer and the relevant HSR. Upon request, and if it is safe to do so, the inspector must provide part of the sample to the employer and to the HSR.
Things that have been seized
Anything seized at a workplace must be returned to the workplace as soon as possible, unless:
- it is needed as evidence in legal proceedings
- its return may cause further offences
- it cannot be returned to the owner despite reasonable efforts
- WorkSafe is otherwise authorised to keep, dispose of or destroy the thing
WorkSafe may impose conditions on the return of a thing, and the owner must comply with these conditions.
Power to issue directions
An inspector may issue directions to anyone at the workplace if the inspector reasonably believes the directions are necessary because of an immediate risk to anyone's health or safety. A person must follow these directions unless they have a reasonable excuse.
WorkSafe inspectors have obligations they must fulfil when performing their duties:
WorkSafe inspectors carry an official identification card and must show their identification:
- if asked to do so
- when performing a function or exercising a power
- when the relevant legislation requires them to do so
Entering a workplace
As soon as inspectors enter a workplace they must take all reasonable steps to advise of their entry and show their identification card to the occupier and any HSR who may be affected by the visit. However, inspectors do not have to advise of their entry and show identification if doing so would defeat the purpose of their visit, cause unreasonable delay or if either the occupier or HSR has already received advance notice of the visit.
HSRs can speak to the inspector and take part in the inspection. An inspector may talk to several HSRs if the inspection crosses different designated work groups (DWGs) at the workplace.
As they are leaving, or as soon as practicable after leaving the workplace, WorkSafe inspectors must detail their findings in a written report to the workplace's employer or occupier and relevant HSRs. If there is no HSR, inspectors will give a copy of the report to an employee who is a member of the health and safety committee, if there is one.
Health and safety legislation sets out what is in the entry report, including:
- times of entry and departure
- purpose of the visit
- description of what the inspector has done
- summary of what the inspector has observed
- powers the inspector has used
- whether photographs, sketches or recordings were made and, if so, where these are available
- the procedures for obtaining further details from WorkSafe
- procedure for internal review of the inspector's decision
Before deciding whether to take enforcement action, the inspector will make enquiries with the duty holder or their nominated representative, appropriate HSRs and other relevant parties.
The inspector should also enquire into the duty holder's overall systems of work and consider whether the identiﬁed breach happened because of a failure of these systems. The inspector should take action to address identiﬁed faults in the duty holder's systems of work.
Inspectors will take an escalating approach, both in using corrective tools to make sure duty holders comply with the law, and in deciding whether to take action for failure to comply. In deciding the most appropriate action, inspectors will pay careful attention to WorkSafe's regulatory model and consider:
- the nature and circumstances of the alleged breach
- the characteristics of the duty holder
- other relevant requirements
Where inspectors detect a failure to comply with health and safety laws they will generally issue a notice or direction for the duty holder to address the non-compliance.
Inspectors can use the following enforcement measures to resolve an alleged breach:
- issue an improvement notice requiring the breach to be fixed by a certain date
- issue a prohibition notice where there is an immediate risk and the activity must stop until the risk is removed
- direct that a certain action be taken where an immediate risk exists or if the inspector deems the action appropriate
- confirmation of a PIN or a direction to stop work
Inspectors will generally issue a prohibition notice if they have a reasonable belief that there is an immediate risk to health or safety.
An improvement notice will generally be appropriate where an inspector considers an activity does not involve an immediate risk but requires corrective steps to comply with OHS laws. Both notices carry the same penalty for failure to comply.
Inspectors may also issue a non-disturbance notice, where appropriate.
Referrals for investigations
Before deciding whether to prosecute against an alleged offender, WorkSafe will carry out a comprehensive investigation. The purpose of the investigation is to confirm whether an offence has occurred that requires prosecution or alternative enforcement action.
Information from a range of sources can result in WorkSafe deciding to conduct a comprehensive investigation, including:
- investigations referred from inspectors, usually from planned inspection programs and projects. Some referrals also arise from incident responses and inspector responses to service requests
- fatalities, serious injuries and other notifiable incidents reported to WorkSafe
- applications under section 131 of the OHS Act, Procedure if prosecution not brought
- referrals and requests from external agencies, including the Environment Protection Authority, ﬁreﬁghting agencies, the Victoria Police, the Australian Federal Police and the State Coroner
Inspectors will generally recommend a comprehensive investigation when they consider an investigation is appropriate, taking into account:
- when other avenues for achieving compliance have failed or are insufﬁcient
- whether in some cases simply achieving compliance is insufﬁcient and further action may be appropriate
- the seriousness of the incident
Criteria for a comprehensive investigation
When considering whether to carry out a comprehensive investigation, WorkSafe must consider its OHS compliance and enforcement policy, general prosecution guidelines and strategic enforcement priorities.
Monitoring and reviewing inspectors' decisions
A range of systems ensure inspectors appropriately exercise their powers under health and safety laws and in line with WorkSafe's policies and guidelines:
WorkSafe regularly audits inspector reports, notices and directions to ensure that inspectors are complying with the legislative requirements of their role and following WorkSafe's own policies and procedures. The process includes auditing matters that have not been referred for comprehensive investigation.
Internal and external reviews
Certain decisions made by inspectors under health and safety laws are 'reviewable decisions'. Upon application by an 'eligible person', such decisions are subject to a WorkSafe internal review. An eligible person may also seek review of the decision in the Victorian Civil and Administrative Tribunal.
Section 127 of the OHS Act, section 20 of the DG Act and section 24 of the EPS Act list reviewable decisions and specify who is an eligible person in relation to the decisions.
For more information about internal reviews, see WorkSafe's Internal review of an OHS inspector's decision application form. Information on how to apply for an internal review also appears on every notice and entry report that inspectors issue.