Date last updated

Monday 11 Nov 2019

On this page

  • WorkSafe and the Occupational Health and Safety Act 2004
  • What happens during a WorkSafe investigation?
  • What are prosecutions and formal cautions?
  • What is an enforceable undertaking?

WorkSafe and the Occupational Health and Safety Act 2004

WorkSafe investigates and prosecutes offences under Victoria's Occupational Health and Safety Act 2004 (OHS Act) and other laws.

These laws are there to:

  • keep everyone in Victorian workplaces safe
  • reduce or remove or workplace health and safety risks
  • make sure the health and safety of the community is not at risk

WorkSafe may conduct an investigation following a death or serious injury in a workplace. Following an investigation, WorkSafe can issue charges against the accused (a person or company) for breaches of the OHS Act (including, employers, self-employed people, employees or suppliers or manufacturers of plant or substances).

What happens during a WorkSafe investigation?

If WorkSafe decides to investigate a serious workplace incident, a WorkSafe investigator will start the investigation where the incident happened.

During the investigation they may:

  • ask people what happened (witnesses to the incident, other employees and representatives from the employer)
  • collect evidence and talk to industry experts
  • look at employment, training and medical records

A WorkSafe investigation can take many months and we will give you as much information as possible throughout the investigation.

Making a statement

If you witnessed the incident or have important information about it, the investigator may contact you to ask you to give a signed witness statement.

This statement tells us what you saw and know about the incident.

The WorkSafe investigator will keep a record of your statement.

If charges are filed, a copy of your statement will be given to the accused's lawyers.

Later, if you are asked to give evidence in court, you'll be given a copy of your statement to refresh your memory.

Legal review

When the investigation is complete, it is sent to the WorkSafe legal team for review.

The legal team will look at all the evidence and decide whether to take enforcement action.

They use the General prosecution guide to make this decision.

WorkSafe considers:

  • if there's enough evidence to support enforcement action
  • if enforcement action is in the public interest

The legal team may work with the Director of Public Prosecutions in making this decision.

At any stage in the process:

  • proceedings may be withdrawn
  • the charges may be changed
  • only certain charges will proceed

This depends on many factors, including the evidence for each charge.

The legal team will decide if there's enough evidence to prosecute or whether WorkSafe will issue a formal caution instead.

If you think a workplace incident has happened that is an offence under the OHS Act or Occupational Health and Safety Regulations 2017, and we have not commenced a prosecution within 6 months of the offence, you may be able to ask us to investigate it under section 131 of the OHS Act. CARD

What are prosecutions and formal cautions?

WorkSafe prosecutions are criminal hearings. They are held in the same courts as other criminal matters.

Following an investigation, WorkSafe may file criminal charges that will begin in the Magistrates' Court and may proceed to the County Court or Supreme Court.

A formal caution is an alternative to prosecution.

This is a warning to the accused that the OHS Act has been broken.

It tells the accused that any further breaches may result in a prosecution

What is an enforceable undertaking?

An enforceable undertaking is a written agreement to do certain things in a set timeframe.

The accused may propose an enforceable undertaking to WorkSafe to resolve a prosecution

This commitment should seek to improve health and safety generally, and deliver benefits beyond compliance with the law.

If WorkSafe accepts this, it is a resolution of the prosecution.