Advisory council recommends a ‘fivefold increase’ in penalties for health and safety breaches

An advisory council has listed 12 recommendations that would have major changes to the sentencing of workplace safety offences – including a sharp increase in penalties for perpetrators.

The Victorian Sentencing Advisory Council has published a report underlining 12 varying recommendations that would severely impact the contemporary standards and sentencing for health and safety (OHS) offences across the state.

The report tabled on Wednesday (26 February) aims to “enhance the role of victims in sentencing, change sentencing practices, and improve payment rates for fines imposed on companies”.

“The council’s work over the last two years leads to the inescapable conclusion that the current approach to sentencing for workplace health and safety breaches in Victoria needs to change,” advisory council director Stan Winford said.

Last year, the Victorian government requested advice from the advisory council about whether the sentencing for OHS breaches needed to be amended – leading to the first review of the Occupational Health and Safety Act 2004 (Vic) since its inception almost 20 years ago.

After looking into the research and consultations, the advisory concluded that significant reform is needed for the sentencing of OHS offences – with the council drafting up 12 total recommendations that would change the current structures.

Some of the stand-out recommendations included:

• A fivefold increase in maximum penalties for companies and individuals who breach their health and safety duties.
• New policies at WorkSafe Victoria that encourage prosecutors to advocate for increased use of health and safety undertakings and adverse publicity orders.
• Expanding the opportunities for people affected by OHS offences to participate in sentencing – including broadening the eligibility for who can submit an “impact statement” telling the court about how an offence has affected them.
• Developing a world-first legislated sentencing guideline to include in the OHS Act.

“Injured workers and their families, and other people affected by an OHS offence, should be able to tell a court how they have been affected by the offending,” Winford said.

The belief among the council after crafting the report is that the wide range of recommendations will lead to safer workplaces throughout Victoria. With injured workers and their families being able to explain their experiences pertaining to workplace injuries, it limits the silencing of workers while creating an environment that emboldens transparency around health and safety.

A key finding in the report also noted that almost $2.5 million of fines for OHS offences in the state go unpaid annually as companies often deregister shortly after committing a breach in a last-ditch effort to avoid copping the penalties.

This was addressed by a recommendation that proposed the potential introduction of successor liability, which would mean a phoenix company could be held accountable for fines imposed on the deregistered company that it replaced.

“During our substantial consultations on this government reference, there was a strong consensus that more effective sentencing for OHS offences will make workplaces safer,” Winford said.

“The council’s proposed legislated sentencing guideline can achieve this aim by ensuring that employers are appropriately punished when they fail in their duties to protect employees and others from risks. Even more importantly, these sentencing reforms have the potential to encourage better safety practices in all Victorian workplaces.”