WorkSafe inspectors will now be able to issue infringement notices to companies and individuals for certain occupational health and safety offences.
The Occupational Health and Safety Amendment (Infringements and Miscellaneous Matters) Regulations 2021 (Vic) which amends the Occupational Health and Safety Regulations 2017 (Vic) (2017 Regulations) commenced on 31 July 2021 in Victoria.
Section 139(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) states that the regulations may provide that a person be served with an infringement notice as an alternative to prosecution for an offence (not including an indictable offence) against the Act or 2017 Regulations.
As a result of the amendments, the 2017 Regulations now specify “infringement offences” which include:
– Use of plant which is not licensed or registered if the regulations require it to be (s40(2) – (4) OHS Act);
– Work carried out by someone without prescribed qualifications or experience (s41 OHS Act);
– Failing to allow a HSR access to information relating to actual or potential hazards (s69 OHS Act);
– Failure to keep records (e.g. regulations 33, 39, 40; 64, 68, 168, 171, 175)
– Failure to keep a copy of a Safe Work Method Statement for the duration of high risk construction work (regulation 329);
– Storage and removal of asbestos contrary to various obligations; and
– Failure of licence holder to make high risk work licence available for inspection upon request (regulation 476).
The 54 offences set out in the Schedule to the 2017 Regulations are now ‘infringement offences’ and each carry differing infringement penalties. The maximum infringement penalty for natural persons is 2 penalty units while the infringement penalty for body corporates can be up to 10 penalty units. These penalties currently equate to $363.48 for individuals and $1817.40 for body corporates. By way of comparison, if proceedings were brought in relation to the specified OHS Act offences, the maximum penalty is up to 100 penalty units for a natural person and 500 penalty units for a body corporate.
The OHS Act specifies that the specified 54 offences fall within the definition of ‘infringement offence’ pursuant to the Infringements Act 2006 (Vic) (Infringement Act). The Infringement Act states that the effect of expiation (in other words, the payment of the infringement penalty within time) is that no further proceedings may be taken against the person on whom the notice was served and no conviction is taken to have been recorded. Further, the payment of the infringement penalty is not an admission of guilt in relation to the offence or an admission of liability for the purpose of any civil claim.
Interestingly, the Infringement Act states that an issuing officer may serve an official warning rather than an infringement notice if the officer is of the opinion that it is appropriate to do so. Where an official warning is given it does not affect the powers of the enforcement agency to commence proceedings, serve an infringement notice or take no action. An infringement notice may also be withdrawn (even if the penalty is paid although the penalty is refunded).
Persons can seek internal review of the decision to issue an infringement notice including if they believe the decision was contrary to law or special circumstances apply (where ‘special circumstances’ is defined by the Infringement Act and only applicable to natural persons).
The author acknowledges the contribution of John Tullio.