By: Chris Spain, Laura Gavan and Petra Kolovos

At a glance

  • The Occupational Health and Safety Act 2004 (Victoria) (OH&S Act) is the primary workplace health and safety law governing Victorian workplaces. Importantly, it sets out the health and safety duties that employers owe to their employees, contractors, visitors and the public at large.
  • On 26 February 2025, the Victorian Sentencing Council (the Council) published a report looking at how OH&S offences are sentenced in Victoria. The Council concludes that there is a “significant” need to reform how OH&S offences are sentenced because they do not achieve the statutory purposes of sentencing and are out of step with community expectations.
  • The headline is a recommendation for a 400% increase in the maximum fine for the most commonly charged offences under the OH&S Act.

Background

In early 2024, the Victorian Government provided the Council with terms of reference to examine the sentencing of OH&S offences, including to make recommendations for reform. This is the first review of sentencing under the OH&S Act since it was first introduced in 2004.

After a lengthy consultation period, the Council has now published its report which includes 12 recommendations to change how OH&S offences are sentenced in Victoria.

The Council’s key recommendations

The key reforms recommended by the Council are as follows:

  • A 400% increase in maximum penalties for companies and individuals who breach their health and safety duties. This includes increasing the maximum fine for companies to over $9.8 million for the most commonly charged offences under the OH&S Act,
  • New structures to ensure that fines that are issued against companies are paid, including making some directors personally liable and making ‘phoenix companies’ accountable for fines imposed on the deregistered company that they replaced,
  • New policies that encourage WorkSafe Victoria to increase the use of health and safety undertakings (these require companies to implement certain health and safety changes) and adverse publicity orders (these require companies to publicise their offending),
  • Developing a sentencing guideline to be included in the OH&S Act. This guideline would include indicative sentencing ranges based on key factors in a case such as if a person was injured or killed. This would be a significant reform as offences under the OH&S Act are currently risk based, rather than outcome based. This means that when sentencing an offender, the court is only required to look at the nature of the breach, not the consequences (e.g. death or injury), and
  • Expanding opportunities for people impacted by OH&S offences to participate in sentencing, including broadening the eligibility for who can submit victim impact statements. Currently, this is generally limited to people directly involved in an incident and their immediate family.

What this means for employers

It remains to be seen if Parliament will implement some – or all – of the Council’s recommendations. However, where the key recommendations are implemented, we are likely to see a significant increase in the fines issued by the courts to companies and individuals who have been charged and found guilty of breaching the OH&S Act.

If implemented, this would be the second significant change to the OH&S Act in recent years, following the voiding of insurance coverage for fines from September 2021. Defence costs remain insurable under the OH&S Act.

The Council’s report is an important reminder to all employers of their duties and obligations under the OH&S Act, including making sure that they have appropriate and robust safety measures in place to avoid facing charges and prosecution.