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Our criminal lawyers are experienced in WorkSafe prosecutions where we regularly represent companies and individuals charged with work health and safety matters by the Victorian WorkCover Authority (WorkSafe).
Your WorkSafe Obligations
As an employer, a company or an individual has obligations to its employees and contractors. Many directors and business owners (usually, small business owners) are unaware of the extent of their obligations not just to maintain a safe working environment but, also, to manage the risks in the workplace and maintain up to date staff training. Managing risks includes having management systems in place to ensure, as far as possible, the best possible occupational health and safety. This includes having Safe Work Method Statements prepared for the work, having risk control plans (including clear guidance about what employees are not allowed to do), ensuring that there is adequate training and supervision and ensuring ongoing and regular training so that the safety measures put in place are updated for employees.
WorkSafe is the investigative body responsible for attending workplaces to ensure compliance, investigating workplace accidents or incidents and issuing notices requiring businesses to take action. Whilst, usually, WorkSafe will only commence investigating a business when there is an incident or accident, that is not always the case. WorkSafe can commence an investigation after a report from an employee or former employee. WorkSafe can also attend workplaces for random inspections. Even if there has not been an incident, WorkSafe can prosecute businesses by virtue of the risks within the workplace that have not been sufficiently mitigated. Many people, including lawyers, are not aware that the Occupational Health and Safety legislation, and regulations, include offences where risk has not been sufficiently managed and controlled even where that risk has not eventuated in an injury.
For example, where there are not Safe Work Method Statements which employees have to access at the beginning of a project to inform them of the risks at the site or workplace and how to manage them. This, in and of itself, can lead to prosecution.
Where a person required medical treatment at work, it is mandatory that the workplace immediately inform WorkSafe so that they can investigate it. It is not enough that Police and/or Ambulance attended. The obligation is on the employer to notify WorkSafe. A failure to do so is an offence.
Occupational Health and Safety offences are usually prosecuted by the Victorian WorkCover Authority. However, on occasion, the Office of Public Prosecutions may prosecute the more serious offences, including workplace manslaughter. Workplace manslaughter became a crime on 1 July 2020 but does not apply retrospectively. That means, that any workplace related death prior to 1 July 2020 cannot be prosecuted for workplace manslaughter. Workplace manslaughter is an extremely serious crime. For individuals, the maximum penalty is 25 years imprisonment. For body corporates (companies), it a maximum fine of $16.5 million.
The majority of WorkSafe prosecutions are conducted in the Magistrates’ Court against companies, rather than individuals. The penalties are purely financial but can range into the tens of thousands of dollars. It is the company which is found guilty/convicted and fined for its conduct, rather than the individual. However, particularly, small businesses can really suffer under the weight of the extensive finds because, in reality, it is the hard working business owner who has to pay the fine. Even on a payment plan, this can be a real expense for businesses already doing it tough. In addition, there can be real ramifications for businesses in terms of insurance, the kind of tenders they can engage in and the kinds of contracts they can enter into. We are aware that some governmental organisations require companies to disclose any prior convictions, which may render them ineligible for certain work with government organisations, such as schools, parks, council offices and the like.
Our lawyers have unsurpassed experience in WorkSafe matters and regularly appear in Court on behalf of small to medium businesses facing WorkSafe prosecutions. Part of our process is to meaningfully engage with the business owners to learn more about your business; how it started and where it is heading. We also need to understand better the nature of your industry and how the WorkSafe prosecution began. We also know the law. It should go without saying. However, WorkSafe matters are unlike other criminal matters because there are certain onuses placed on the company or individual charged. There are also offences relating to managing risk that include offences for not advising an employee that they cannot do something.
For example, as much as it defies common sense, it is an offence for an employee who conducts a gutter cleaning business not to have a Safe Work Method Statement advising the employees that they cannot actually get on the roof of a premises without fall protection and safety gear. This is even in circumstances where the employee is an experienced gutter cleaner. These provisions are often confusing and can cause a lot of anxiety to those involved.
Get in Touch with Galbally Parker WorkSafe Lawyers
Our office can help by providing you with the most up to date, practical and professional advice as early as possible in the proceedings. We can prepare your matter to maximise your prospects of success and reduce the impact on your business, staff and families. If your company, or you, are facing a prosecution brought by WorkSafe, contact our office for an obligation free and affordable Initial Client Consultation to learn more about the jurisdiction and to discuss your options.