New on-the-spot fines for Victorian employers in breach of OH&S obligations
As part of the Victorian Government’s election commitment to introduce infringement notices for certain offences under occupational health and safety laws, WorkSafe inspectors are now able to issue on-the-spot fines of up to $1,817.40 to employers who put their workers' health and safety at risk.
The power for WorkSafe inspectors to issue on-the-spot fines came into effect from 31 July 2021, after the Victorian Government passed the Occupational Health and Safety Amendment (Infringements and Miscellaneous Matters) Regulations 2021 (Vic) to establish the infringement notice scheme in Victoria (Scheme).
Under the Scheme, WorkSafe inspectors have the power to issue 'on-the-spot' fines to duty holders and individuals who are found to be in breach of particular provisions of the Occupational Health and Safety Act 2004 and the Occupational Health and Safety Regulations 2017.
Importantly, the introduction of the Scheme does not change or create additional obligations for duty holders. Duty holders must continue to do everything that is reasonably practicable to provide a workplace that is free from risks to health and safety. The Scheme expands the broad suite of compliance and enforcement tools already available to WorkSafe and acts as an additional deterrent to non-compliance.
A WorkSafe inspector may issue an infringement notice if the inspector identifies that a duty holder has contravened a prescribed ‘infringement offence’.
There are 54 prescribed offences under the OHS Act and Regulations which an infringement notice can be issued for, including (but not limited to):
- allowing a person to perform work without the required license, registration, qualification, experience or supervision
- the use of equipment or substances that are not licensed or registered as required
- failing to meet various duties relating to the removal and storage of asbestos
- failing to keep various required records
- failing to allow the appropriate health and safety representative (HSR) to have access to information regarding actual or potential hazards in the workplace.
The full list of offences is set out at Schedule 20 of the Regulations (and a summary is available on WorkSafe’s website here).
Fines vary depending on the nature of the offence, ranging from up to $363.48 for an individual and up to $1,817.40 for a corporation (subject to increase on 1 July each year according to the value of a penalty unit).
Infringement notices are intended to be issued where there is some punishment warranted for the contravention, but the circumstances of the contravention do not justify prosecution. WorkSafe inspectors may also take additional remedial enforcement action, such as issuing an improvement notice, at the same time for the contravention. However, the Scheme suggests that prosecutions may be less likely to be pursued where an infringement notice will address the concerns of the regulator.
WorkSafe inspectors are also given extensive powers of entry, enquiry and investigation under the OHS Act. If a person is asked a question by an inspector for a potential contravention, it is a criminal offence to not answer that question unless an exemption applies. For example, a person may refuse to answer an inspector’s question if they can establish that answering the question would incriminate them. An infringement notice may nonetheless be issued even where the self-incrimination privilege applies.
Finally, infringement notices cannot be issued retrospectively; they can only be issued for offences arising after 31 July 2021. A WorkSafe inspector may issue an infringement notice to the duty holder at the time of a workplace inspection, or by mail following inspection.
What happens if I have been fined?
A person issued with an infringement notice may:
- pay the penalty
- seek to have the notice reviewed by WorkSafe’s Internal Review Unit
- dispute the notice and have the matter heard and determined in the Magistrates’ Court.
If a penalty is not paid by the due date, WorkSafe will register the infringement offence with Fines Victoria and the recipient is no longer able to seek internal review. Fines Victoria will take further enforcement action if the fine remains unpaid, including having a Magistrate issue an Enforcement Warrant.
What are the internal review and Magistrates' Court processes?
An application for internal review can be made any time before the due date for payment listed on the infringement notice or penalty reminder notice (or within 14 days of becoming aware of a notice). The Internal Review Unit must consider internal review requests and assess whether an application is valid for review within five business days of the application being filed. If an application for internal review is deemed to be valid, the Unit must provide a decision in writing within 90 days of the date received, unless further information is requested.
Possible outcomes of an interval review application include confirmation of the decision to issue the notice, withdrawal of the notice and issuing of an official warning, or withdrawal of the notice with no further WorkSafe action.
The grounds for seeking internal review by WorkSafe’s Internal Review Unit include where:
- exceptional circumstances existed at the time (for example, circumstances that were out of the ordinary, unavoidable or unexpected)
- the decision was contrary to law (for example, the inspector issuing the notice acted improperly or unfairly in deciding to issue the infringement notice)
- the recipient has special circumstances (which are defined in the Infringements Act 2006 (Vic)) and there is an evidentiary connection between the special circumstances and the offence
- there has been a mistake of identity (for example, the recipient is not the duty holder responsible for the circumstances leading to the offence).
Alternatively, if the recipient of an infringement notice elects to defend the notice in Court, the matter will proceed in the Magistrates’ Court. A Magistrate will hear the application and make a determination of guilt and, if found guilty, order an appropriate penalty. There are additional risks associated with electing to defend an infringement notice in Court, including the possibility of a Magistrate recording a conviction (if found guilty), imposition of a greater fine than the original infringement notice and making an order for WorkSafe’s costs to be paid.
Are you aware of important changes to the Occupational Health and Safety Act 2004 concerning labour hire arrangements and limitations on insurance coverage?
Amendments to the Occupational Health and Safety Act 2004 (Vic) expand the definitions of employer and employee
In an era dominated by uncertainty, organisations are using Maddocks to mitigate their supply chain risk.
Employer's duty of psychosocial care in the workplace examined: the Kozarov decision
By Catherine Dunlop, Amber Davis, Lyndel David & Matthew D'Angelo
High Court decision in Kozarov as a significant judgment on an employer’s duty to employees in respect of mental health