The Sentencing of OHS Offences in Victoria

admin • March 11, 2025

The Sentencing Advisory Council (SAC) has recently reviewed the sentencing of breaches of the Victorian Occupational Health and Safety Act 2004. Through their review, they discovered that there is a need to change sentencing practices in Victoria. They found that punishments were often not appropriate and not in line with community expectations, and that sentencing orders such as adverse publicity orders and health and safety orders are being underutilised. In addition, many fines are going unpaid.


Following a period of review and consultation, the SAC has recently published its’ report into the sentencing of OHS offences in Victoria.


The SAC have made 12 recommendations, divided into 3 categories:


1.     Victim related recommendations

– relating to victim impact statements and restorative justice.

2.     Sentencing Practices

– relating to enforceable undertakings/ health and safety orders, adverse publicity orders, increasing penalties for OHS breaches and the inclusion of Sentencing Guidelines in the OHS Act.

3.     Fine Payment

– relating to fines being paid to WorkSafe, reviews of fines outstanding, declared director notices and successor liability.


The recommendation to introduce Sentencing Guidelines would follow the example of the UK, where they already exist. However, Victoria will represent a world first if these guidelines are introduced as recommended – in legislation.


If implemented, this suite of changes could lead to much improved Occupational Health and Safety outcomes for Victorian workplaces.


Interested in finding out more? Take a look at: Sentencing Advisory Council Recommends Major Changes to Sentencing of Workplace Safety Offences | Sentencing Council

OHS Learnings from Judge Peter Rozen

By admin • May 6, 2025
Judge Peter Rozen is currently a Judge in the County Court of Victoria where he was appointed in 2022. His name is well known, due to his long history as an expert in Occupational Health and Safety law. Judge Rozen has been involved in a number of high-profile reviews and inquiries, and he co-authored a textbook on the subject: ‘Health and Safety Law in Victoria’. Recently, Judge Rozen presided over the case of DPP vs Energy Australia Yallourn Pty Ltd , where he gave his sentencing remarks on 27 th March 2025. This case was a pure risk prosecution relating to a fire at the power plant, which resulted in the conviction of Energy Australia for breaching section 21 of the OHS Act. The County Court broadcast the sentencing remarks on YouTube: Sentence of DPP v Energy Australia Yallourn Pty Ltd before Judge Rozen – 27 March 2025 in what was a helpful move to make access to his commentary more accessible to those wanting to learn from OHS rulings. Judge Rozen took the opportunity to explain the way in which employers must engage in risk assessment including the consideration of the likelihood of the event occurring and its’ potential consequence. He also took the time to explain that employers must provide the highest level of protection against risks to health and safety and that they must be proactive in their duty to provide a safe workplace, as well as to monitor conditions and to engage suitably qualified persons in relation to OHS. Notably, he highlighted the need for meaningful consultation and the fact that employees are entitled to be represented (by and HSR). Rozen went on to delve into the concept to ‘ reasonably practicable ’ and described how the ‘more ‘reasonably practicable’ an identified risk control measure was, all else being equal, the more egregious will be the failure to have implemented it’. Judge Rozen’s closing remarks were a strong reminder to duty holders as to their legislated responsibilities under the Law: ‘It has been stated by the Court of Appeal on more than one occasion that employers are required by the Act to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings. An employer must actively identify risks to health and safety and take all steps that are reasonably practicable to obviate those risks. Employers are not allowed under the law to take a passive approach to safety only improving safety procedures after an incident... fines in OHS cases must draw attention to the importance of workplace safety, and send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.' The full transcript is available at: sentencing-remarks-dpp-v-energy-australia-yallourn.pdf And the video can be viewed at: Sentence of DPP v Energy Australia Yallourn Pty Ltd before Judge Rozen – 27 March 2025 Any HSR, employer or person interested in OHS would benefit from listening to the comments of Judge Rozen. In particular, his educational comments which I have summarised are found at around the 11.30 mark.

SWMS, HRCW & HSRs

By admin • April 29, 2025
HSRs should be involved when a SWMS is prepared for HRCW. Who doesn’t love an acronym? Let’s start with some definitions... SWMS stands for Safe Work Method Statement. This is a document which must be prepared before any HRCW commences. It sets out how the HRCW is going to be carried out at the workplace. It includes an outline of the hazards involved and what control measures are to be put in place to control the risks. HRCW stands for High Risk Construction Work. It is defined in Regulation 322 of the Occupational Health and Safety Regulations 2017 : In this Part, "high risk construction work" means any of the following construction work— (a) where there is a risk of a person falling more than 2 metres; (b) on telecommunications towers; (c) involving demolition; (d) involving the removal or likely disturbance of asbestos; (e) involving structural alterations that require temporary support to prevent collapse; (f) involving a confined space; (g) involving a trench or shaft if the excavated depth is more than 1·5 metres; (h) involving a tunnel; (i) involving the use of explosives; (j) on or near pressurised gas distribution mains or piping; (k) on or near chemical, fuel or refrigerant lines; (l) on or near energised electrical installations or services; (m) in an area that may have a contaminated or flammable atmosphere; (n) involving tilt-up or precast concrete; (o) on or adjacent to roadways or railways used by road or rail traffic; (p) at workplaces where there is any movement of powered mobile plant; (q) in an area where there are artificial extremes of temperature; (r) in, over or adjacent to water or other liquids where there is a risk of drowning; (s) involving diving. “Construction Work” means "any work performed in connection with the construction , alteration, conversion, fitting out, commissioning, renovation, refurbishment, decommissioning, or demolition of any building or structure , or any similar activity." So, what role can HSRs play when it comes to SWMS? Health and safety representatives play a key role in the safety of their workplaces, including in relation to SWMS: As with all Health and Safety matters, the HSRs can and should be involved if the work affects their designated work group (DWG). As part of their legislated duties, the employer must consult with the employees and their HSRs. The HSR can play and important role in reviewing the SWMS and raising any concerns from their DWG. If conditions change, or if risks are not adequately controlled, then a SWMS must be reviewed. HSR’s are well placed to detect when this is the case and therefore bring this to the attention of their employer. HSRs and their workmates in their DWG are the best people to help in designing and reviewing SWMS, as they are the ones actually doing the work. They will have hands-on knowledge of how the job is done, any relevant site-specific factors, what hazards and risks are present, how best to control them and know if conditions change on-site (eg: weather). HSRs may also be able to help ensure that their co-workers fully understand the SWMS and are ready to go and do their work safely.  After all, the purpose of the SWMS is to ensure that they are safe while they do their work! For further reading, there is some great material on this topic at: Safe Work Method Statements (SWMS) | WorkSafe Victoria