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.

Engineered Stone - Anniversary of The Ban

By admin • June 29, 2026
Today is the anniversary of the banning of Engineered Stone. On the 1 st July 2024, Engineered Stone was banned due to the high levels of silica it contained, which presented a health and safety risk to those working with it. The banning of engineered stone is a huge win for the safety and health of workers, but it does not mean that workers are safe from silica related disease. Workers can still be exposed to silica from other sources, including: Stone Asphalt Cement, mortar and grout Concrete, concrete blocks and cement products Bricks and pavers Tiles Sand These and related products still present a risk and this comes in the form of respirable crystalline silica. Small particles of silica can be produced when dust is produces through cutting, sanding or processing the materials. This can occur during manufacturing and construction, when mining or digging, and when handling waste. The silica dust can be breathed deep into the lungs and can cause serious disease., including silicosis, fibrosis, COPD, bronchitis and lung cancer. In addition, it can cause other systemic diseases including serious effects on the kidneys, immune system, eyes, etc. Employers must control the risk of exposure and workers should be aware of the risks so that they can make sure that they are safe. BeSafe is still horrified to occasionally see dry cutting by workers who may not be aware of the serious risks of this practice. Just remember, that just because engineered stone has been banned, it doesn’t mean you are safe from silica related disease. Make sure you know how to protect yourself and stay safe from this serious and deadly hazard. More information: For the general information page with resources relating to crystalline silica, take a look at: Crystalline silica | WorkSafe Victoria For information relating to how employers must identify hazards, assess risk, control the risk and review and revise controls regularly, take a look at: Preparing a crystalline silica hazard control statement for high-risk crystalline silica work | WorkSafe Victoria For a practical guide on how to safely work with engineered stone, including exemptions, take a look at Compliance code: Engineered stone | WorkSafe Victoria

Welding Fumes

By admin • June 15, 2026
Welding fumes are hazardous, and employers must control the risk of harm. Various types of welding are used in the workplace, with varying levels of welding fume production. The amount and type of fumes produced during welding will vary based on various factors including: the metals being welded, the welding process used, the composition of the welding rod/wire, the shielding gases used and any contaminants or coating on the metal, etc. There are a number of health effects which may occur due to exposure to welding fumes. These include both short-term and long-term affects Short term: eye irritation, respiratory irritation, metal fume fever (zinc oxide). Long term: siderosis (iron accumulation in the body), lung and kidney cancer, nervous system disorders, asthma, pneumonia. The likelihood of developing damaging health effects from welding will depend on the type of welding being used (and therefore the type of fumes produced), the duration and frequency of exposure, the worker’s proximity to the fumes, the ventilation of the welding area, and any controls which were utilised during the exposure. Welding fumes are a hazardous substance and must be controlled according to the hierarchy of controls. Controls may include: Eliminating the need for welding if possible, for example by using different fastening methods or prefabricated components. Substituting the welding method, for example by using a method which generates less fumes, or using automation methods. Engineering controls including mechanical ventilation such as on-torch extraction or local exhaust ventilation. PPE should be provided by the workplace and includes the use of air fed ventilators. The use of respirators such as Powered Air Purifying Respirators can be used but only in addition to a higher-order control, or if higher-order controls are not possible. Other types of respirators are available but less effective. Several different controls may need to be used and as with any controls, training must be provided on their implementation. Atmospheric monitoring may also be required to monitor exposure levels in the workplace and health monitoring must also be carried out in accordance with the OHS Regulations 2017 Part 4.1 - Hazardous Substances.  Consultation with the workforce, including any elected health and safety representatives, must take place in accordance with requirements under the Occupational Health and Safety Act 2004. For more information on welding fumes, take a look at the following links: https://youtu.be/0tvrOw18Vr0?si=oK_v3vkbGebCzuMf Controlling exposure to welding fumes | WorkSafe Victoria Compliance code: Hazardous substances | WorkSafe Victoria - Welding fumes | Safe Work Australia