OHS Prosecution on Pure Risk

admin • June 17, 2025

The Victorian Occupational Health and Safety Act 2004 is primarily a risk-based law. That is, it requires the prevention of harm.


The objects of the Act require that health and safety be secured and that risks to health and safety be eliminated at the source, with the highest level of protection against risks being provided. The employer is legally required to eliminate (as far as reasonably practicable) any risk to health and safety. It follows that the majority of offences under the Act are indeed risk-based offences.

This means that a prosecution can occur whether or not the risk has resulted in death or injury. It is enough to have simply exposed a person to the risk of harm.

The argument for this is that the OHS Act aims to prevent injury, disease and death at work.


So why do we see many prosecutions occurring after the harm has in fact materialised into an injury or death?

Perhaps it is due to a public expectation that these horrific incidents should result in some punishment of those responsible?

Perhaps it is that the ultimate evidence of the safety failure is now present – providing a compelling argument as to the egregious nature of the risk that was posed by the breach?

Perhaps there is motivation to provide general deterrence as a result of these tragic events?

It is important to note that the death or injury does not form part of the offence in these prosecutions, rather it forms part of the evidence.


But, we do see pure risk prosecutions.

The regulator can and does charge on the basis of risk only, before the safety failure has resulted in harm to anyone. This is the ultimate outcome – to prevent.

Prosecuting on the basis of risk may be for the purpose of primary prevention, or as the ultimate escalation in a hierarchy of sanctions. It may serve as specific deterrence, to effect change in an individual’s or company’s behaviour. General deterrence is often seen as very important – reinforcing to all duty holders that they are required by law to take a pro-active approach to safety.


Here are a few examples of cases of pure-risk prosecutions:

$7.5K FINE IN PURE RISK FALLS CASE - OHS Reps

$25K FINE IN AHWAZ ROOFING PURE RISK CASE - OHS Reps

CONSTRUCTION COMPANY FINED $12K IN ‘PURE RISK’ PROSECUTION - OHS Reps


The following Melbourne Law School presentation also makes for some interesting reading on this topic: CELRL-Seminar-21-May.pdf


Proceeding to prosecution on the basis of risk represents an alignment between prosecution strategies and the principles of the OHS Act. Certainly, it serves as a reminder that duty holders have a legal requirement to provide the highest level of protection and to prevent harm in the workplace.

NEW HSR Refresher OHS Training Course - Aggression or Violence

By admin • August 10, 2026
BeSafe Victoria is pleased to announce the upcoming delivery of a new Health and Safety Representative (HSR) Refresher OHS Training Course focused on Aggression and Violence in the workplace . This is a brand new WorkSafe developed training course, which equips HSRs with practical knowledge and skills to address one of the most significant psychosocial hazards facing Victorian workplaces today. Workplace aggression and violence can occur in any industry and the impacts can be both physical and psychological, not only affecting the person directly involved but also those who witness or are exposed to these incidents. Impacts also extend beyond the workplace to affect family and community. The new course explores aggression and violence through a risk management lens, building skills in hazard identification, assessing risks, finding effective controls and in contributing to effective workplace consultation. The training aligns with the growing emphasis on managing psychosocial hazards and reflects contemporary workplace health and safety expectations, including the management of aggression and violence as a workplace risk. The knowledge gained is important in ensuring that legal obligations, including those relating to the Psychological Health Regulations, are met and that workplaces are safe. As always, BeSafe Victoria is committed to providing engaging, practical and relevant training. This new refresher course offers an excellent opportunity for participants to strengthen their knowledge, build confidence in addressing workplace risks and return to their workplaces with practical strategies for supporting safer work environments. Bookings for this new HSR Refresher OHS Training Course on Aggression and Violence will be available soon. To register your interest, go to HSR Training and support | BeSafe | Regional Victoria or email us at info@besafevictoria.com.au  We look forward to helping you create safer, healthier and more respectful workplaces across Victoria.

Working in the cold

By admin • July 27, 2026
When Winter sweeps across Victoria, temperatures can drop sharply, especially in regional areas and early mornings. For outdoor workers, or those in cold storage and refrigerated environments, these conditions aren’t just uncomfortable, they can be dangerous if not managed properly. Working in a cold environment can lead to: Hypothermia : when body temperature drops below safe levels. Frostbite : damage to skin and tissue from freezing. Reduced dexterity : making tasks harder and increasing risk of incidents. Slips and falls : from ice, frost, or wet surfaces. Fatigue : as the body works harder to stay warm. Increase in prevalence of other conditions: such as arthritis and bronchitis. Under the Victorian Occupational Health and Safety Act 2004 (The Act), employers must provide a safe working environment. This includes: Identifying cold-related hazards. Implementing control measures to eliminate or reduce the risk as far as reasonably practicable. Follow a risk management process in relation to the hazard. Consult with your workforce throughout the process. When you have identified that you have a cold hazard in your workplace, you must control the risk as far as reasonably practicable. As, always this means working through the Hierarchy of Control from top to bottom. Here are some ways you could think about controlling the cold hazard in your workplace: Eliminate: Think about changing work scheduling if weather is extreme. Substitute: Think about whether you could move the work to another location. Isolate: Protect the workers from the cold, for example by providing shelter. Engineer: Can you provide heating or insulation in this work situation? Administrative controls: Could include changes to the workflow or rosters. Training must be provided, including training in the signs of cold stress and treatment. PPE: Such as weatherproof clothing, hats, face covers, boots, and allowing for drying or replacement of gear.  Don’t forget that, under The Act, Consultation must be undertaken at every step of the process. Monitoring of the controls must also occur, especially as conditions change. Frosts and wind chill factor should be taken into account, as well as seasonal or unexpected weather changes. Cold conditions in Victoria can be managed with the right planning, clothing, and awareness. Employers and workers share the responsibility to ensure everyone stays safe, warm, and healthy through the winter months. Health and safety representatives are a key part of the co-operative process required to create safe workplaces. For more information on this topic, take a look at: Cold - OHS Reps Extreme cold | Comcare For specific guidance regarding cold storage facilities: Safe operation of cold storage facilities: A handbook for workplaces | WorkSafe Victoria