Offences Under the OHS Act 2004

The Occupational Health and Safety (OHS) Act plays a critical role in shaping workplace safety standards across Victoria. Under the OHS Act 2004 Victoria, employers, company officers, and organisations are held to a strict duty of care to ensure safe working environments. When this duty is breached, it’s not just a regulatory concern – it can lead to significant legal consequences, including prosecution, heavy fines, and, in serious cases, imprisonment.

As regulatory enforcement becomes more active and unforgiving, it’s critical for businesses to understand exactly where their legal responsibilities begin and end. Breaching the Act can result in serious criminal consequences, from failing to control known risks to charges of reckless conduct or even workplace manslaughter. Employers, directors, and officers must be aware of the different types of offences under the OHS Act 2004, and the severe penalties that can follow when those duties are ignored.

Breach of General Employer Duties – Section 21

Section 21 of the OHS Act 2004 outlines the general duty of employers to provide and maintain a working environment that is safe and without risks to health. This duty includes ensuring that employees are not exposed to avoidable hazards, whether through unsafe systems of work, lack of training, faulty equipment, or a failure to identify and eliminate foreseeable risks.

A breach of this duty can arise from failing to implement reasonable safety procedures or ignoring known hazards in the workplace. The Act requires employers to take action that is “reasonably practicable” to eliminate or reduce risks. While the law doesn’t demand perfection, it does require proactive safety management. Companies and individuals who fail to meet this standard may face investigation and prosecution by WorkSafe Victoria.

Breach of Duties to Others – Section 23

The obligations under the OHS Act Victoria are not limited to employees. Section 23 imposes a separate duty on employers to ensure that persons other than employees, such as contractors, visitors, and members of the public, are not exposed to health and safety risks arising from the conduct of the business.

This means that a business can be held legally responsible for hazards that affect non-staff members on site. Common examples include unsecured construction zones, insufficient signage around dangerous equipment, or failure to control environmental risks that extend beyond the immediate workplace. Breaches under this section can result in substantial penalties, and the law does not require an injury to occur for a prosecution to proceed – exposing others to risk is enough to constitute an offence.

Failure to Notify or Preserve an Incident Site – Sections 37 and 38

Following a serious workplace incident, employers have legal duties that extend beyond the immediate response. Sections 37 and 38 of the OHS Act 2004 require that notifiable incidents, such as serious injuries, fatalities, or dangerous occurrences, are reported to WorkSafe without delay. There is also a legal obligation to preserve the site of the incident until an inspector arrives unless doing so risks further harm or disrupts essential emergency work.

Failing to notify or interfering with the scene of an incident can be a prosecutable offence in its own right. Many employers are unaware of these obligations or unsure of what constitutes a “notifiable incident.” However, ignorance of the law is no defence, and failing to comply can worsen the legal position of both the company and its officers during an investigation.

Reckless Conduct – Section 32

Section 32 of the OHS Act Victoria sets out one of the most serious offences outside of workplace manslaughter. This provision makes it a criminal offence for a person to recklessly engage in conduct that places or may place another person at risk of serious injury or death.

Unlike general duty breaches, reckless conduct requires a higher threshold of culpability. It applies where there is a conscious disregard for safety or gross negligence that creates obvious and significant danger. The penalties are severe: individuals may face up to five years’ imprisonment and heavy fines. In recent years, WorkSafe has become more willing to pursue reckless conduct charges, especially where there is evidence of repeated warnings or systemic failures that have not been addressed.

Workplace Manslaughter – Section 39G

Workplace manslaughter is the most serious offence under the Occupational Health and Safety OHS Act, introduced in 2020 to strengthen accountability for preventable workplace deaths. Under Section 39G, an organisation or individual may be charged with workplace manslaughter if a person dies due to a breach of duty under the OHS Act that involves criminal negligence.

To secure a conviction, prosecutors must show that the person or organisation owed a duty under the OHS Act 2004, that the duty was breached with criminal negligence, and that the breach caused the death. Criminal negligence in this context means a great falling short of the standard of care, where the conduct involved a high risk of death or serious injury, and the accused either knew or should have known about that risk.

Workplace manslaughter charges can be brought against company directors, officers, or the organisation itself. Penalties are among the harshest in Australian safety law: individuals may face up to 25 years in prison, while corporations can be fined more than $18 million. This offence signals the growing importance of proactive, documented safety management systems and senior-level oversight.

Who Can Be Charged Under the OHS Act Victoria?

The Act makes it clear that responsibility for workplace safety extends across many roles. While companies are often the target of enforcement action, individual accountability is also central to the legislation.

Directors, senior officers, and managers who have the ability to influence workplace safety can be held personally liable for breaches. Employees with delegated safety responsibilities can also be prosecuted, particularly if they ignore hazards or fail to act on known risks. In some cases, both individuals and the corporate entity may be charged together. Courts are increasingly willing to scrutinise safety culture and leadership practices when determining liability.

What to Do If You’re Facing Allegations or Charges

If you or your business are under investigation by WorkSafe Victoria or have received notice of potential prosecution, it’s essential to seek legal advice immediately. Early engagement with an experienced criminal defence lawyer can make a significant difference to the outcome.

Legal representation can assist in navigating interviews, responding to notices, preserving legal privilege, and building a defence strategy. In many cases, the key issue will be whether the business took “reasonably practicable” steps to manage risks. A criminal lawyer with expertise in OHS matters can help assess your compliance history, advise on legal obligations, and represent you in court proceedings if necessary.

At Slades & Parsons, we understand the complexity and stress of facing criminal charges related to workplace incidents. We provide strategic, experienced, and discreet advice to employers, directors, and officers facing prosecution under the Occupational Health and Safety OHS Act. If you are facing allegations or want advice on your legal exposure, get in touch with us today for expert help.