By TOM HAYES
FOLLOWING an extensive reviewing and reporting phase lasting about 12 months, the Sentencing Advisory Council has published 12 recommendations for sentencing regarding occupational health and safety (OHS) offences.
From the 12 recommendations, three related to the victims and affected people, a further three related to fine payment, and six were in relation to sentencing practices.
“The results of our analysis and consultations suggested that there were important areas in need of reform,” the report read.
“Many fines for OHS offences go unpaid, especially in cases involving companies that have been deregistered.
“Sentencing outcomes other than fines are very rarely used but have great potential to improve safety practices.
“Fine amounts imposed in some cases are out of step with community expectations. And people affected by workplace incidents are often excluded from the sentencing process.”
The final report was delivered to the Attorney-General, the Minister for WorkSafe, and the TAC before December 31, 2024.
Recommendations for victims and affected persons
RECOMMENDATION 1 is in regard to victims and affected people is for the state government to amend the OHS Act to create framework to allow victims to make impact statements in sentencing proceedings.
Essentially, they recommend that there should be more opportunities for affected people to participate in the sentencing.
Recommendations 2 and 3 relate to the victims and affected people revolve around the introduction of a framework for restorative justice conferences and trialling its use in OHS cases, ensuring a system be in place for feedback.
“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,” Sentencing Advisory Council Director, Stan Winford said.
“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.”
Recommendations for sentencing practices
IN its report, the Sentencing Advisory Council recommended the state government to amend a number of sections in the OHS Act.
Recommendation 4 repealed section 136 which includes orders to undertake improvement projects.
The recommendation also includes the revision of sections 137 by removing the need for offenders to give an undertaking, ‘renaming them health and safety orders’; section 137 (1) allowing health and safety orders to run for up to five years; section 137 (3) clarifying special conditions can be imposed on any offenders, not just employers; section 137 (3) again, to include a further special condition ‘to undertake a specified project for the general improvement of occupational health, safety and welfare within the period specified in the order’, and; section 138C specifying that the maximum penalty for contravening a health and safety order be 2500 penalty units for a corporate body and 500 units for an individual.
Next, in Recommendations 5 and 6, the Sentencing Advisory Council believes that WorkSafe Victoria should develop a policy relating to health and safety undertaking pursuant to section 137 of the OHS Act and a policy relating to adverse publicity orders pursuant to section 135 of the OHS Act.
These amendments may encourage prosecutors to advocate for increased use of health and safety undertaking and adverse publicity orders.
Recommendation 7 refers to the state government increasing the maximum penalties for breaches of the health and safety duties in the OHS Act.
The recommended parameters was a maximum of 50,000 penalty units for corporate bodies for offences relating to sections 21, 23, 26, 27, 28, 29, 30, and 31 of the OHS Act. For individuals, a maximum of 10,000 penalty units was recommended for sections 21, 23, 24, 25 (1), 25 (2), 26, 27, 28, 29, 30, and 31 of the OHS Act.
Currently, one penalty unit (Level 12 offence) is equivalent to $197.59, while 3000 penalty units (Level 2 offence) is equivalent to $592,770.
Recommendation 8 encourages the state government to replace section 32 of the OHS Act with a provision specifying a maximum penalty of 10 years’ imprisonment, in addition to, or instead of the revised maximum of 10,000 penalty units for individuals that place another person in danger of death, serious injury, or serious illness.
The penalty unit recommendation would be a fivefold increase in maximum penalties for companies and individuals who breach their health and safety duties, while the imprisonment recommendation is almost unheard of in reference to the OHS Act.
The Sentencing Advisory Council has encouraged the state government to ask them to develop and consult on a draft sentencing guideline for the OHS Act as Recommendation 9.
Key features of the guideline would include:
– The guideline would apply to all breach of duty offences (sections 21 and 31), reckless endangerment (section 32), and workplace manslaughter (section 39G);
– The guideline would apply to all offences sentenced after enactment;
– The guideline would provide a range of sentencing outcomes based on various characteristics of the offending and the offender;
– For the purpose of section 5 (2)(B) of the Sentencing Act 1991 (Vic), courts applying the guideline would only be permitted to have regard to sentences imposed for an OHS offence pursuant to that guideline;
– Courts would be required to follow the guideline but would be permitted to depart from the guideline if following it would be contrary to the interests of justice, and they explain their reasons for doing so, and;
– The guideline would include guidance about howe courts should approach specific factors in sentencing OHS offences, such as the offender’s culpability, the objective seriousness of the offence, the offender’s financial circumstances, any injury, illness, or harm caused by the offence, and the offender’s character.
The guidelines above would provide courts with guidance on how to calibrate penalties to the relative financial circumstances of offenders, including ranges of indicative sentences based on factors within the case, such as if someone was killed or injured due to the offence.
“During our substantial consultations on the government reference, there was a strong consensus that more effective sentencing for OHS offences will make workplaces safer,” Mr 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.”
Recommendations for fine payment
RECOMMENDATION 10 identified unpaid fines as a major issue, with the Sentencing Advisory Council recommending that the state government should amend the OHS Act to clearly specify that all court fines be paid into the WorkCover Authority Fund.
The Sentencing Advisory Council also mentioned in Recommendation 11 that Fines Victoria should initially and annually review all unpaid fines imposed under the OHS Act, considering whether to serve a declared director notice on anyone who doesn’t pay.
Recommendation 12 said that the state government should provide the Victorian Law Reform Commission with terms of reference seeking its advice about whether to introduce a legislative framework for successor liability for corporations and other legal entities in Victoria, as well as what the key features should be.
Background
IN January 2024, the state government called on the Sentencing Advisory Council to review, report, and make recommendations in regard to sentencing via the Occupational Health and Safety Act 2004 (OHS Act).
During the review, the Sentencing Advisory Council was asked to:
– Examine current sentencing practices for OHS offences in Victoria;
– Consult with stakeholders and the broader Victorian community in relation to any issues associated with the sentencing of OHS offences;
– Consider whether current sentencing practices align with community expectations;
– Consider the role of injured workers and the families of deceased workers in the sentencing of OHS offences, and;
– Examine the enforcement of sentencing orders, especially court fines.
In the past 12 months, the Sentencing Advisory Council has consulted with dozens of stakeholders as well as people affected by incidents to gain a better understanding of key issues.
Court data on sentencing outcomes in Victoria was reviewed, dating back to when the OHS Act came into operation in July 2025. Also examined was data on fine payments for OHS offences.
Comprehensive reviews of relevant case law and research was undertaken, all while publishing statistical reports and consultation papers, inviting written submission from the public on key issues.
The Sentencing Advisory Council also travelled the state last year to host community consultation events, including one in Morwell, gaining the perspective of the public based on real-life OHS cases, as well as releasing an online community survey.
For the entire report, visit: sentencingcouncil.vic.gov.au/publications/sentencing-occupational-health-and-safety-offences-in-victoria-report-and-recommendations
IN November 2023, Morwell business Dennis Jones Engineering and its director, Dennis Jones, was handed one of the biggest fines in WorkSafe history for an incident involving a Hazelwood North apprentice.
The business was fined $2.1 million, and Jones $140,000 alongside a five-year Community Corrections Orders which included 600 hours of unpaid community service.
The total fine of $2.24 million was the second largest in WorkSafe history for a workplace incident under Section 32 of the OHS Act.
The Express understand that Jones has appealed the sentence. The first appeal hearing was scheduled last Thursday (March 27).
Other OHS offences that occurred in the Latrobe Valley include:
– Fowlers Asphalting received a good behaviour order (with a condition to pay $10,000 to the Court Fund) for inadequate traffic management controls near a storm water drain replacement in June 2023;
– In February 2023, EnergyAustralia Yallourn received a $1.5 million fine for an incident that resulted in a workplace fatality;
– AGL Loy Yang received a $50,000 fine in November 2022, for an incident that resulted in a mine fire, and;
– Peter Stoitse Transport received a $490,000 fine in June 2022, for an incident in which a truck rolled over and killed the driver.
