What factors are influencing OHS offences and fines?

There are a number of important issues and trends in workplace safety offences and fines for both companies and individuals, according to the Victorian Sentencing Advisory Council.

The vast majority of defendants sentenced for OHS offences in the state were companies (83 per cent), and of the 200 individuals sentenced, the large majority of individual defendants were male (97 per cent) and only six of them were women, said Dr Paul McGorrery, CEO of the Victorian Sentencing Advisory Council.

Furthermore, the most common OHS offence sentenced was an employer breaching their health and safety duties to either employees or other persons (66 per cent of OHS offences), and he said fines were far and away the most common sentencing outcome (90 per cent of companies received a fine).

There are a number of important factors that influence sentencing for workplace safety offences, according to McGorrery, who observed that sentencing in Australia is an “incredibly complex exercise”. 

“Courts have to take into account many different factors, some of which will suggest a more severe sentence is warranted (aggravating factors) and others will suggest a less severe sentence (mitigating factors),” said McGorrery, who spoke ahead of the AIHS National Health and Safety Conference 2024, which will be held at the Melbourne Convention Centre from 21-23 May.

“The court’s job is to balance all these factors and determine an appropriate outcome that will achieve the legislated purposes of sentencing. The many differences between each case mean it’s hard to predict what factors will most influence sentencing in any given case,” he said.

However, he noted that certain factors were commonly influencing sentencing outcomes in OHS cases: 

• the level of risk involved (how likely was the risk to occur, and what were the likely consequences),
• the level of harm caused (in cases where there was an incident arising from the risk),
• the offender’s OHS history before the risk or incident was identified,
• the offender’s behaviour since the risk or incident was identified (have they already improved their practices?), and
• whether the offender pleaded guilty or not (companies received an average discount of about 30 per cent if they pleaded guilty).

“Above all else, the message here is a simple one, and it’s the same as it is everywhere else in the OHS space,” said McGorrery.

“Be proactive. Prevent risks and incidents before they happen. And be willing to respond constructively when risks are identified or incidents occur. 

“The penalties for allowing significant risks to occur can be severe, and courts sentencing an OHS offence will be closely scrutinising the steps taken after an incident or risk is identified.”

The Victorian Government asked the Council in January 2024 for its advice about possible reforms to the sentencing of workplace safety offences in Victoria. 

This included topics such as whether sentencing practices align with community expectations, whether there are ways to improve the manner in which victims and their families are included in sentencing proceedings, and how many fines imposed for OHS offences are ultimately paid.

To help answer these questions, the Council released two major documents in February. “The first was a statistical review of how OHS offences have been sentenced in Victoria since the OHS Act 2004 came into force, so it covers a full 16 years of sentencing; the second was a detailed consultation paper seeking community and stakeholder views about 19 questions on various topics,” said McGorrery.

Written submissions are open to 31 May 2024, and encouraged submissions by way of email. The Council is also hosting a short survey on the Engage Victoria website to seek community views, and the Council’s final report, with recommendations, is due 31 December 2024.

McGorrery will speak at the AIHS National Health and Safety Conference 2024, to be held at the Melbourne Convention Centre from 21-23 May. The conference will offer three days of workshops, presentations, keynote speeches, networking events and a conference dinner. Delegates will have the opportunity to learn from their peers, share knowledge and grow their professional networks. For more information, email [email protected], call (03) 8336 1995 or visit the event website.