In 2024, the Victorian Sentencing Advisory Council was asked to review and report on the sentencing of offences contrary to the Occupational Health and Safety Act 2004 (Vic) (OHS Act), and to make any recommendations for reform it considered appropriate.

The Council was asked to:

• examine current sentencing practices;
• consult with stakeholders and the broader Victorian community;
• consider whether current sentencing practices align with community expectations;
• consider the role of the injured workers and families in the sentencing of occupational health and safety offences; and
• examine the enforcement of sentencing orders, especially court fines.

This was the first examination of sentencing practices for occupational health and safety (OHS) offences since the Act came into operation on 1 July 2005.

In early 2025, the Council issued its report.

Findings

The Council concluded that current sentencing practices are out of alignment with community expectations, especially in cases involving larger companies.

In summary, the Council found:

• many fines imposed for OHS offences go unpaid;
• sentencing outcomes other than fines are rarely used (over 90% of sentences imposed in OHS cases are fines) but have great potential to improve safety practices; 
• fine amounts are out of step with community expectations; and
• people affected by workplace incidents are often excluded from the sentencing process.

Recommendations

The Council recommended higher fines in some cases and the use of a wider range of sentencing orders other than fines, including:

• health and safety undertakings, which can involve conditions requiring companies to do certain things; and
• adverse publicity orders, which require companies to publicise their offending, its consequences, the penalty imposed and any other relevant matter.

Among the recommendations are:

• a 500% increase in maximum penalties for companies and individuals who breach their OHS duties;
• new policies at WorkSafe Victoria that encourage prosecutors to advocate for increased use of health and safety undertakings and adverse publicity orders;
• new mechanisms to improve accountability for penalties imposed, including making more company directors personally liable for fines in appropriate circumstances, and investigating the potential introduction of successor liability in Victoria (these would mean a phoenix company could be held accountable for fines imposed on the deregistered company that it replaced); and
• issuing a sentencing guideline in the OHS Act that would provide courts with guidance on how to calibrate penalties to the relative financial circumstances of offenders, and would include ranges of indicative sentences based on key factors in the case, such as the fact that someone was killed or injured as a result of the offence.

Implications

The Victorian Government has not yet responded to the Council’s recommendations. However, if implemented, changes to the type and/or severity of sentences imposed by courts for breaches of the OHS Act can be expected, with the ultimate goal of encouraging better safety practices across Victorian workplaces.

How can you avoid penalties – anywhere in Australia?

The only way to avoid the prospect of prosecution and penalties is to comply with your work health and safety obligations. But as we can see from the proposal above, the law keeps changing. So how can you stay on top of the changes to ensure you meet your obligations?

As you may know, the Employment Law Handbook has a chapter dedicated to helping you meet your duties: Health and safety in the workplace. But depending on your workplace, you may need more guidance. So, we recommend the Health & Safety Handbook, brought to you by our colleagues and led by Editor-in-Chief Michael Selinger, Partner at Holding Redlich and nationally recognised leader of work health and safety law.

There has never been a better time to subscribe to the Health & Safety Handbook, as it is currently running a promotion offering 15% off the regular subscription price. Click here to take up this great opportunity!