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Comcare - Australian Goverment
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Schedule 2 - Enforcement measures under the OHS Act 1991

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Statutory enforcement options

Following the commencement of an investigation, the Occupational Health and Safety Act 1991 (OHS Act) provides for a range of statutory enforcement measures. Statutory enforcement options can be exercised at various stages of an investigation.

Improvement Notice

An Improvement Notice is a statutory notice(14) issued by an investigator requiring a person to undertake certain action. The notice has effect as soon as it is given to a person, and the notice includes a time limit for completion. An investigator issues an Improvement Notice based on the opinion that a person is breaching a provision of the OHS Act or Regulations, or has breached a provision of the OHS Act or Regulations and it is likely that the breach will be repeated.

An Improvement Notice is used in situations which, while requiring improvement, do not warrant the additional restrictions of a Prohibition Notice. An Improvement Notice may specify action to be taken by an employer, including that an internal or expert investigation be conducted. An investigator may, by written notice, revoke or vary an Improvement Notice. the OHS Act provides for penalties for failure to comply with a notice.

Prohibition Notice

An investigator may issue a Prohibition Notice(15) that prohibits an activity that the investigator believes involves, or will involve, an immediate threat to the health and safety of any person. A Prohibition Notice has a more serious impact on the person to whom it is issued than an Improvement Notice. This is because the activity cannot be started again until adequate action has been taken to remove the threat. For this reason, an investigator must be satisfied that the threat to health and safety is immediate. An investigator may, by written notice, revoke or vary a Prohibition Notice. The OHS Act also provides for penalties in relation to non-compliance with prohibition notices.

Written request for particulars of action taken or proposed

The Act provides that a written report must be prepared following an investigation and that a copy of the report will be forwarded to the relevant employer.(16) The final report may be accompanied by a written request for an employer to provide particulars of any action that is proposed to be taken as a result of the conclusions or recommendations contained in the report. The report may also provide any action that has been, or that is proposed to be taken in relation to any Improvement or Prohibition Notice. A request for particulars of action taken or proposed may be made by a delegate or the Commission in order to assess whether there are appropriate safety measures in place to prevent or minimise future risk of injury. Where there has been a serious or systematic incident of non-compliance, the making of such a request may be accompanied by more serious enforcement action.

Revoking, suspending or cancelling authorisations

Comcare authorises certain people to undertake certain types of work and organisations to undertake certain types of undertakings, such as operating a major hazard facility.

Subject to legal requirements, Comcare may decide to revoke, suspend or cancel any authorisation in order to deal with conduct or practices identified in its investigation, inspection or audit. Such action is a protective measure and may be undertaken even where steps have been taken to remedy a contravention, or where a person has otherwise been punished (i.e. fined).

Comcare recognises that revocation, suspension or cancellation of authorisation may have serious consequences for a person and may also have serious adverse flow on effects. When making decisions about authorisations, Comcare balances these considerations with the paramount need to protect workers and other persons and ensure safety.

Public inquiry (not applicable to GBEs and non-Commonwealth licensees)

The Act provides that the Commission may conduct a public inquiry following an investigation. The Commission may hold the whole or part of an inquiry in private if it is considered to be in the public interest to do so. Following a public inquiry, a report may be provided to the Minister for Education, Employment and Workplace Relations (the Minister) and if it is, the report must be tabled in Parliament.

Report to the Minister (not applicable to GBEs and non-Commonwealth licensees)

The Commission may, in certain circumstances, prepare a report to the Minister. The circumstances in which the Commission might prepare such a report hinge on a failure or shortcoming of a duty holders response to the conclusions or recommendations contained in a report of investigation, or of the employers action or lack of action in relation to an Improvement Notice or Prohibition Notice. The Minister must cause a copy of the report to be tabled in Parliament.

Can I approach Comcare to review an investigation, inspection or audit?

Individuals and employers can request a review of the professional conduct, process, or findings of an investigation or other compliance activity. A request can be made to Comcares General Manager of Work Health and Safety or Chief Executive Officer. Comcare has an internal professional review mechanism that can assess concerns, new evidence and findings. The General Manager of Work Health and Safety considers recommendations arising from this review in deciding whether any further action is required.

What rights do I have under the OHS Act if I disagree with a decision made by an investigator?

The Act provides for certain classes of persons affected by a decision made by an investigator to lodge an appeal with Fair Work Australia (FWA).(17) FWA is the national workplace relations tribunal.

Which decisions may be appealed?

Rights of appeal against an investigators decision are described in section 48 of the Act. The following decisions made by an investigator may be appealed. The decision:

  • to take possession of plant, substances or things
  • to issue a Do Not Disturb notice, either verbally or in writing to direct that a workplace, plant, substance or thing not be disturbed
  • to confirm or vary a Provisional Improvement Notice (PIN) issued by a health and safety representative (HSR)
  • to issue, revoke or vary an Improvement Notice or Prohibition Notice
  • that an employer who has been issued with a Prohibition Notice has not taken adequate action to remove the threat to health and safety identified by the Prohibition Notice.

In addition, an employee, HSR or employee representative affected by the cancellation of a PIN, or the decision that a person named in an Improvement Notice has taken adequate action to remove the threat named in the Improvement Notice, may appeal those decisions.

Who may appeal a decision?

an employer affected by the decision

  • the HSR for a designated work group in which is included an employee affected by the decision
  • an employee representative, where requested to do so
  • the owner of the workplace or item to which a decision relates
  • a person who has been issued with an Improvement Notice or a PIN.(18)

How do I appeal a decision?

For information on how to lodge an appeal, including the required time period in which to do so, see the FWA rules at www.fwa.gov.au  

FWA may affirm or revoke the investigators decision. It may also vary the investigators decision and substitute its own decision. To do this, FWA will conduct a hearing into the matter, taking into account relevant evidence.

What happens to a notice or decision once I have lodged an appeal?

Once an appeal is lodged with FWA, the decision of the investigator, including a decision to issue a notice, remains in effect unless FWA makes an interim order to the contrary.

The operation of an Improvement Notice, however, is suspended until the appeal has been determined by FWA or it makes an interim ruling to the contrary.

Civil remedies and sanctions

Civil proceedings provide a range of remedies in response to breaches of occupational health and safety obligations,(19) as well as failure to comply with relevant powers of an investigator during the conduct of an investigation.(20) Civil proceedings can also assist prevention by deterring others from breaching their occupational health and safety obligations.

Civil remedies and sanctions include the following:

Declaration of contravention

Comcare may apply to a court (Federal or State/Territory Supreme Court) for a declaration that a person has contravened the OHS Act or Regulations.(21) This includes contravention of a reasonable request, direction or notice issued by an investigator under Part 4 of the Act. The court will apply the rules of evidence and procedure for civil matters in such proceedingsthis means that issues are decided on the balance of probabilities. A declaration by the court is conclusive evidence of the contravention.

Pecuniary penalties

If a declaration of contravention is made against a person, Comcare or an investigator may apply to the relevant court for an order that the person pay a monetary penalty to the Commonwealth.(22) The maximum penalties are set out in the OHS Act and Regulations.

Injunctions

Comcare or an investigator may apply to the relevant court for an injunction if a person has breached, is breaching, or proposes to breach the OHS Act or Regulations.(23)

The court is empowered to grant:

  • prohibitory injunctions - an order of the court that prevents a person from doing a certain act
  • mandatory injunctions - an order of the court that requires a person to take a certain action.
The court may grant an interim injunction while deciding whether to grant one of the above injunctions.

Remedial orders

If the court has made a declaration of contravention, the court may, on request, make a remedial order to fully or partly remedy a state of affairs that arose as a direct or indirect result of the contravention.(24) A remedial order requires a person to take steps the court considers necessary and appropriate to rectify the state of affairs. When making such an order, the court must consider any relevant material Comcare provides. If the court makes a remedial order it can make other consequential orders (including orders as to costs) that it considers appropriate.

Comcare endorsed enforcement option

Letter of warning

Comcare may issue a letter of warning if an investigation reveals that a duty holder is alleged to have breached the OHS Act or Regulations following an investigation. The letter gives notice to a duty holder that Comcare:

  • has detected an alleged contravention with the OHS Act or Regulations, and
  • after consideration of the enforcement criteria in the Enforcement Policy has determined that:
    • prima facie, there is sufficient evidence to commence civil proceedings
    • some form of enforcement action is warranted
    • in all the circumstances, it is not in the public interest to commence proceedings.

Note: Pages 32-35 of this Policy provide more information on Comcares policy with respect to letters of warning.

Decision to commence civil proceedings

The decision to commence civil proceedings is discretionary. Civil proceedings may be commenced at any time during the course of an investigation where, for example, a person fails to comply with an investigator's request to provide reasonable assistance in connection with an investigation.(25)

An alleged contravention, including a failure to comply with a reasonable request, direction or notice issued by an investigator may be referred to Comcare for consideration. Comcare will consider each case on its merits and apply the principles outlined in this Policy in deciding whether civil proceedings will be commenced.

Legal Services Directions

Civil litigation is conducted by Comcare in accordance with the Legal Services Directions 2005 (as amended). The Directions are a set of binding rules issued by the Attorney General about the performance of legal work for the Commonwealth (whether performed in-house, by the Australian Government Solicitor or by other external legal service providers).

In deciding whether to commence litigation, Comcare considers the prospects of success in the matter and takes into account the relevance and admissibility of any evidence, the availability of relevant witnesses and any lines of defence that might be available. In conducting litigation, Comcare adheres to the model litigant principles contained in The Commonwealth's Obligation to act as a Model Litigant, at Appendix B of the Directions.

Within what time frame must civil proceedings be commenced?

Civil proceedings must be commenced within six years of an alleged breach of the OHS Act or Regulations on which the proceedings are based.(26)

How will a decision be communicated?

Generally, a duty holder will be advised of Comcares decision to commence civil proceedings following the completion of an investigation. Comcare may, however, commence proceedings at any time and does not have to await the outcome of an investigation.(27)

The outcome of successful proceedings will be published to maximise the deterrent value and educate duty holders. Publication of cases draws attention to the consequences of poor occupational health and safety and the need for real and sustainable improvement in workplace health and safety.

Enforceable undertakings

Comcare may accept a written undertaking from a duty holder in relation to the fulfilment of an obligation under the Act. This remedy is available to encourage best practice and compliance with the requirements of the Act. If civil proceedings have commenced and Comcare accepts an undertaking, Comcare may ask the court to adjourn the proceedings that are underway.

An undertaking can only be withdrawn or varied with the consent of Comcare. If a person breaches a term of an undertaking, or withdraws or varies the undertaking without Comcares consent, Comcare will attempt to resolve the matter by consultation. If this is not successful, Comcare can seek a court order that the person complies with the undertaking and any consequential orders. Comcare could also pursue any civil proceedings or criminal prosecution that it had previously elected not to pursue; or Comcare could apply to the court to revive any proceedings that were adjourned because of the undertaking.

Criminal prosecutions

Criminal prosecution is available for specific breaches of the OHS Act that cause death or serious bodily harm, or expose a person to a substantial risk of death or serious bodily harm, through negligence or recklessness.(28) Prosecution is also available for certain breaches of Part 4 of the OHS Act (powers of investigators) and of the Regulations. Prosecution is a discretionary action to be determined by the Commonwealth Director of Public Prosecutions (CDPP) having regard to the Prosecution Policy. Not every breach of the OHS Act is automatically prosecuted.

The CDPP has the authority to determine whether or not a prosecution will proceed.(29) The Office of the CDPP administers the process of any prosecution with assistance from Comcare.

If Comcare's CEO considers that other enforcement options may not be sufficient, the matter may be referred to the CDPP. If the CEO considers that prosecution action is warranted, a brief of evidence will be supplied to the CDPP.

When and why will a decision to prosecute be made?

The decision of whether to bring a criminal prosecution for a breach of OHS laws is one of the most significant as the effect on those impacted by the decision (the defendant, worker or family of a deceased worker for instance) will be considerable.

The Australian DPPs have agreed upon a common set of principles that are used to determine the question as to whether or not a prosecution should be commenced or, if commenced, should be permitted to proceed. Although in some jurisdictions these criteria are expressed in different language, they do not differ in substance.(30)

In determining whether or not to prosecute, three criteria which are common to all jurisdictions in the DPP guidelines need to be met.
They are as follows:

  • The existence of a prima facie case - that is, whether the evidence is sufficient to justify the institution of proceedings.
  • There needs to be a reasonable prospect of conviction - that is, an evaluation of how strong the case is likely to be when presented in court. This takes into account such matters as the availability, competence and credibility of witnesses and their likely impression on the court or tribunal that will determine the matter. It also takes into account the admissibility of any confession or other evidence, and any lines of defence available to the defendant.
  • The public interest which may include (but is not limited to) the following considerations:
    • the seriousness or, conversely, the triviality of the alleged offence or whether it is only of a technical nature
    • any mitigating or aggravating circumstances
    • the characteristics of the duty holderany special infirmities, prior compliance history and background
    • the age of the alleged offence
    • the degree of culpability of the alleged offender
    • whether the prosecution would be perceived as counter-productive, that is, by bringing the law into disrepute
    • the availability and efficacy of any alternatives to prosecution
    • the prevalence of the alleged offence and the need for deterrence, both specific and general
    • whether the alleged offence is of considerable public concern.

Within what timeframe must a prosecution be brought?

Criminal prosecution against an individual for a breach of the OHS Act must be commenced within one year of the commission of an alleged offence.(31)

How will a decision be communicated?

A duty holder may be advised of Comcare's decision to refer a brief of evidence to the CDPP for consideration at any time during the course of, or following completion of an investigation.

The outcome of successful proceedings will be published to maximise the deterrent value and educate duty holders. Publication of cases draws attention to the consequences of poor occupational health and safety and the need for real and sustainable improvement in workplace health and safety.

Enforcement action against employees

In deciding whether to pursue enforcement action against an employee, Comcare takes into account the role, involvement and circumstances of each duty holder in applying the principles contained in this Policy.(32) For example, the employee's duty is complementary to an employer's duty to provide appropriate training, information, instruction and supervision to enable the employee to fulfil their general duty of care.

When determining whether an employee has failed to take reasonable care of their own or other persons safety, Comcare will pay particular regard to:

  • the systems of work in place at the workplace
  • the training, information, instruction and supervision provided to the employee
  • other action taken against the employee
  • the position and responsibilities of the employee
  • whether the employee was doing something that was in the normal course of their duties
  • whether any other employee or person was, or was potentially, placed at risk
  • whether the employee failed to have regard to relevant training and instruction concerning the performance of duties likely to impact on the health and safety of employees
  • whether the employee intentionally or recklessly interfered with, or misused anything provided in the workplace in the interests of health, safety or welfare.

Enforcement action may be pursued if the employee has:

  • failed to implement clear safety policy or instructions
  • disobeyed or ignored clear safety policy or instructions
  • failed to use or encourage the use of safety equipment
  • acted recklessly
  • been grossly negligent
  • been skylarking (in the absence of relevant training by an employer)
  • failed to prevent or attempt to prevent an incident or obvious hazard
  • wilfully ignored or failed to warn others of an obvious hazard.

Should Comcare ever decide that a criminal prosecution against an employee may be warranted, it would refer the matter to the CDPP. Comcare would consider referring a matter against an employee to the CDPP where:

  • an alleged breach causes death or serious bodily harm
  • the employee was either: negligent as to whether the breach would cause death or serious bodily harm or reckless as to whether the breach would cause death or serious bodily harm.(33)

Purpose of a letter of warning

The purpose of a letter of warning is to provide a duty holder with the opportunity to avoid proceedings. Where appropriate, it is issued as an alternative to civil proceedings.

The issuing of a letter of warning is used by Comcare to demonstrate that:

  • action has been taken
  • the alleged contravention has not gone unnoticed
  • that similar leniency may not be forthcoming in relation to a subsequent allegation of non-compliance.

Subsequent effect

A previous letter of warning:

  • may be taken into account by Comcare in deciding whether to commence proceedings in relation to any subsequent or similar contravention
  • will not be used during proceedings or sentencing for the subsequent contravention except in rebuttal of inaccurate assertions (for example, it may be relevant if the duty holders asserts that they have not previously breached the OHS Act or Regulations).

Registration of letter of warning

Comcare will maintain a register of letters of warning (the register). At the expiration of 30 days from the date of a letter of warning, Comcare will register the warning in the register unless the duty holder has exercised their entitlement to challenge the warning.

Upon registration of the letter of warning in the register as an alternative to proceedings, the matter is concluded.

The entry in the register will be valid for five years from the date of the letter of warning.

Entitlement to challenge letter of warning (30 day limit)

A duty holder in receipt of a letter of warning is entitled to challenge the warning, however, the right to challenge a warning will lapse after 30 days from the date of the letter of warning unless the duty holder notifies Comcare in writing within the 30 day period that the warning is challenged.

Where an alleged offender exercises their right to challenge a warning, Comcare will then determine what should occur instead (i.e. whether the warning should be amended and reissued; no further action should be taken; or proceedings should commence).

Process for challenging a warning and requesting alternative action

When exercising the right to challenge a warning, a duty holder should:

  • within 30 days of the date of the letter of warning, notify Comcare in writing that the warning is challenged (N.B: the right to challenge the warning lapses after 30 days)
  • submit what should occur instead (i.e. amendment of the warning OR no further action OR proceedings, and why) and provide any additional information that should be taken into account
  • If requesting that the warning be amended or that no further action be taken, indicate whether the warning should still be withdrawn if Comcare determines that, upon withdrawal of the warning, proceedings will be commenced instead.

Content of register

The register includes the following information in relation to each letter of warning entered:

Details of alleged contravention:

  • date(s) of alleged contravention
  • location of alleged contravention
  • other elements of the alleged contravention (i.e. a brief description such as failed to comply with an Improvement Notice issued by a Comcare investigator)
  • relevant section of Act or Regulation.

Details of duty holder alleged to have contravened the OHS Act or Regulations:

  • full name of duty holder
  • address of duty holder
  • other contact details of duty holder (email, phone, postal, fax)
  • where the duty holder is a corporation or other organisation, relevant registration etc. details such as ABN, ACN, trading name.

Details of letter of warning issued:

  • date of letter of warning
  • date of expiry of letter of warning.

Registration details:

  • name and position of person registering letter of warning
  • date of entry into the register.

Access to register

The register is not available for public viewing, however, a duty holder whose details are entered into the register may, by arrangement with Comcare, view the contents of the register relating to them.

Publication of letter of warning

Comcare may publish non-identifying details of the letter of warning and matters relating thereto and may incorporate this information into statistics published by Comcare. Personal information will not be published by Comcare, however the duty holder may choose to publish identifying details of the letter of warning.

Comcare will inform an employer in circumstances where a letter of warning has been issued to an employee.

The number of letters of warning issued and the alleged contravention to which they relate will be recorded in Comcares Annual Report.

Legal advice should be sought upon receipt of letter of warning

It is Comcare' s policy not to release:

  • information from the register that may identify a person who is alleged to have contravened the OHS Act or Regulations; or
  • any other identifying information in relation to the letter of warning.

Any person issued with a letter of warning should consult their legal representative about its effect.

Admission of non-compliance is not a prerequisite to a letter of warning. It is not necessary for a duty holder who is alleged to have contravened the OHS Act or Regulations to admit the allegations prior to Comcare issuing a letter of warning.

Issuing a letter of warning

Where Comcare approves and signs a letter of warning, Comcare will issue the letter of warning to a duty holder by registered mail. The letter of warning will include the flowing information:

a) Alleged contravention

Details of the alleged contravention, including:

  • the date and place of the alleged contravention
  • the other elements of the contravention
  • the relevant section of the OHS Act or Regulation that is alleged to have been breached
  • the maximum statutory penalty for the contravention.

b) Nature of letter of warning

The nature, purpose and effect of the letter of warning.

c) Registering letter of warning

That Comcare will register the letter of warning in the register.

d) Publication of letters of warning

That Comcare may publish non-identifying details of the letter of warning and matters relating thereto in official publications and the media and that the number of letters of warning issued and the contraventions to which they relate are recorded in the Comcare Annual Report.

e) Legal advice should be sought

That legal advice should be sought upon receipt of the letter of warning.

f) Right to challenge warning

The process for challenging a warning and requesting alternative action.

Issuing of a letter of warning to a corporation

Where the duty holder alleged to have contravened the OHS Act or Regulations is a corporation, the letter of warning will be sent by registered mail to the registered office of the corporation. It will be addressed to the attention of:

  • the Director of the corporation, or
  • where a corporation has more than one Director
    • the Secretary of the corporation, or
    • where there is no Secretary, the first Director listed on a current Australian Securities and Investment Commission (ASIC) search of the corporation

 

(14) Section 47 of the Act.
(15) Section 46 of the Act.
(16) Section 53 of the Act.
(17) Section 48 of the Act.
(18) Section 48 of the Act.
(19) Section 77 and Schedule 2 of the Act.
(20) See for example, sections 43 (power to require assistance and information), sections 45 and 45A (power to direct that a workplace not be disturbed), section 46 (failure to comply with a prohibition notice) and section 47 (failure to comply with an improvement notice).
(21) Schedule 2, clause 2.
(22) Schedule 2, clause 4.
(23) Schedule 2, clause 14.
(24) Schedule 2, clause 14.
(25) See for example, section 43 of the Act.
(26) Paragraphs 4.7 and 12.2 of the Legal Services Directions 2005.
(27) Section 77 of the OHS Act and see for example, section 43 of the Act.
(28) Section 11(2) and (3). Chapter 2 of the Criminal Code Act 1995 sets out the general principles of criminal responsibility, including the fault elements of negligence and recklessness.
(29) Prosecution Policy of the Commonwealth available at www.cdpp.gov.au/Publications/ProsecutionPolicy/
(30) See Prosecutorial Guidelines agreed by the Australian Directors of Public Prosecutions, as first articulated in 30 June 1993 and Prosecution Policy of the Commonwealth available at www.cdpp.gov.au/Publications/ProsecutionPolicy/
(31) Section 15B of the Crimes Act 1914 (Cth).
(32) An employees duty of care is provided for in section 21 of the Act.
(33) See Schedule 2, Part 2 paragraph 18(1) (b) and (c) of the Commonwealth Act.