In this case study we discuss a recent case our firm was involved in where our client, a body was charged with several offences under the Occupational Health and Safety Act (Vic) 2004 (The Act).
Table of Contents
Client Background
Our client was a residential building company. The company would often enter into sub-contracts for larger building companies. Ten people were employed by the company including a few apprentices. It was very much a small family business.
The Contract and Incident
In April 2022, our client was contracted by a larger construction company to carry out carpentry on a large construction project involving multiple townhouses in Footscray.
Our client had developed a Safe Work Method Statement (SWMS) which outlined the occupational workplace health and safety risks that were to be mitigated by staff working on-site, including the risk of working at heights.
Violation and Investigation
In late April 2022, a WorkSafe Investigator noticed two of our client's employees working on the first floor of the townhouses under construction without appropriate fall protection (guard rails). The two employees were promptly directed to stop work by the Inspector.
When interviewed, the employees admitted they had been 'chalking' lines to designate the placement of walls and that two days before they had also assisted in the installation of flooring on the first floor of the townhouse. Consequently, there were two occasions when work was carried out on the first floor without fall protection having been installed.
The Inspector caused all work on-site to stop, pending rectification of the issues he identified.
For a deeper understanding of the legal implications of workplace safety, read our article on the Legal Repercussions of Disregarding Workplace Safety in Victoria, which outlines the strict obligations employers face and the potential consequences of non-compliance.
Remedial Actions and Compliance
Following on-site re-education of all of our client's employees and the installation of fall protection, work was permitted to continue and the construction work was concluded.
In late October 2022, our client as the Director of his company was interviewed by a WorkSafe Investigator into multiple breaches failing to provide his employees with a safe working environment contrary to section 21 of the Act.
Interview and Admission
The Director, as the representative of the company, was candid in the interview with the investigator. On an earlier occasion, we had given the director detailed advice on how to handle the interview, and it was pleasing that he adhered to this advice.
He made it clear to the investigator that although he did not direct his employees to perform the work and was not at any stage notified that fall protection had not been installed, he appropriately conceded that the offences had occurred due to insufficient supervision of his staff. The lack of communication to and from his staff on-site was a contributing factor to the breaches of the compliance code.
He informed the investigator that in months preceding the interview, he had already implemented improvements which included updating the SWMS and ensuring each of his employees complied with the SWMS and the WorkSafe compliance codes.
Charges and Legal Context
Several months after the interview, the Company was charged with six (6) offences contrary to section 21 of the Act, alleging a variety of breaches for the incident in late April 2022.
Maximum Penalties and Sentencing Purpose for OH&S Offences
For the prosecution of occupational health and safety offences in Victoria, general deterrence is a dominant sentencing purpose (DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676). Often a Magistrate or Judge will endorse the requirement of addressing general deterrence in the sentencing process by recording a conviction.
Case law has also established that the gravity of offending is not assessed purely on whether an adverse outcome occurred (i.e. death or serious injury), rather serious penalties that underlie the offences are based on a risk-based assessment (DPP v Frewstal Pty Ltd (2015) 47 VR 660). The strong emphasis the law in this area places on general deterrence is reflected in the steep maximum penalties that apply for breaches of section 21.
For a corporate accused: 9000 penalty units.
For a natural person: 1800 penalty units.
For the period 1/7/24 - 30/6/25 the value of a single penalty unit is $197.59 (refer to the Victorian Government website: Department of Justice and Community Safety, Penalties and Values).
Client Priorities and Legal Strategy
Our client was proud that he had operated his business for several years successfully and had not previously been charged with any criminal offence (as a natural person or his company).
Whilst his business was successful he was keen to ensure that any fine imposed by the Court was not crushing so as to ensure his business remained viable.
He was also concerned as to the impact a conviction may have for future tenders for potentially lucrative government contracts.
We identified that there was considerable overlap between the offences (6) our client had been charged with and were able to negotiate for the gravamen of the offending to be encapsulated in two rather than six offences.
Detailed personal and financial instructions were taken from our client which later informed our written submissions to the Court.
Court Hearing and Outcome
During the hearing, we carefully explained to the presiding Magistrate the circumstances of the offences, and emphasised the very proactive and constructive steps our client had taken prior to the interview. In our submission, our client had demonstrated genuine resolve to ensure lessons were learnt and that the same mistakes were not repeated.
Despite the prosecution's urging that a conviction was warranted, several comparable cases all involving without conviction outcomes were submitted to the Court to counter their submissions.
After hearing submissions, the Magistrate accepted our argument that a without conviction outcome was clearly within range having regard to all of the circumstances of the case and that the Court could moderate any financial penalty in recognition of the company's current financial position.
The Magistrate ordered the company to pay an aggregate fine of $15,000 plus costs in the amount of $3,713. Importantly, the Court did not record a conviction for the two offences.
Need Expert Guidance on Occupational Health & Safety Offences?
For expert legal assistance and guidance on Occupational Health & Safety Offences, contact Pascoe Criminal Law today. Our experienced team is ready to support you through every step of the process. Reach out now for a consultation and let us help you achieve the best possible outcome for your case.
