In May 2025 Grazia Legal secured a judgment in favour of their client after successfully defending a criminal charge under OHS laws against WorkSafe Victoria.

In May 2025 Grazia Legal secured a judgment in favour of their client after successfully defending a criminal charge under OHS laws against WorkSafe Victoria.

The charge was brought against our client, the employer under section 21(1) of the Occupational Health and Safety Act 2004 (Vic) in relation to failing to provide and maintain a safe working environment for employees installing solar panels on a residential roof. Section 21(1) imposes a duty onto an employer to eliminate and reduce risks so far as reasonably practicable. [1]

Counsel for our client, Mitch Brodgen,  argued that the employer took all reasonably practicable steps to ensure the workers’ safety by providing the appropriate equipment to their employees, paying for safety training courses for all employees including subcontractors, subcontracting an A Grade qualified electrician to undertake the works, ensuring that their employees completing relevant Safe Work Method Statements (SWMS) and ensuring employees had not only read and signed the SWMS but that they had the capabilities to install the relevant protective measures. Grazia Legal successfully argued that their client did in fact take all reasonably practicable steps to ensure compliance with the OHS Act and  that the works could be carried out safely.

During the trial, the prosecution called 5 witnesses for WorkSafe. Following the examination of 5 witnesses and the parties making their closing arguments at the end of a 2-day trial, Magistrate Kilias handed down a decision in favour of our client, dismissing all charges against our client. In his reasoning, Magistrate Kilias stated that on the evidence before him, our client paid for training in areas of safety and protection against falls, provided fall protection equipment and that the failure to deploy the safety equipment and maintain a safe worksite was perpetrated by the subcontractor, who WorkSafe did not call to give evidence. On this reasoning, the decision was made that the Court could not be satisfied beyond reasonable doubt that the prosecution had made its case.

This victory meant that our client was entitled to recover 85% of legal costs incurred to be paid by WorkSafe.

The Grazia Legal team, led by Principal Lawyer Grazia Guida alongside Barrister Mitch Brogden are delighted to have succeeded in defending their client. This outcome reinforces Grazia Legal’s ongoing commitment to achieving the best result for their clients.

Dealing with WorkSafe charges in the Criminal Jurisdiction

WorkSafe can prosecute companies and individuals for breaches of the Occupational Health and Safety Act 2004 (OHS Act) in relation to workplace incidents and death. This includes cases where there is a failure from an employer to reduce risks to employees’ health and safety. [2] Aside from industrial manslaughter laws, indictable offences under the OHS Act have a two-year limitation period.

As a consequence of OHS laws being indictable offences, WorkSafe prosecute employers within the confines of criminal procedures and the high threshold requirements of the criminal burden and standard of proof. This means to successfully prosecute, WorkSafe carries the onus of proving beyond reasonable doubt.  In our case, this meant proving beyond reasonable doubt that the employer did not do everything reasonably practicable to provide their workers with a safe work environment.

Does the Punishment Fit the Crime?

In our experience, the punishment very rarely fits the crime. The purpose of OHS matters being dealt with in the criminal law system is in efforts to effect deterrence, seriousness of harm, and accountability on employers.  However, the practicality of running these cases suggests that the criminal system is an improper place to hear majority of OHS matters. The core issue is that, aside from traditionalcriminal offences exacting harm, injury or death, the reality is that WorkSafe’s jurisdiction is quasi-criminal. [3]

In 2022, the Labor Government proposed reforms to work health and safety laws including the idea of reversing the onus of proof. This means that the burden of proof would shift to employers to prove that they did everything reasonably practicable to provide a safe and risk-free work environment, instead of the prosecution having to prove that they did not as the law currently stands. The current use of the criminal system to impose penalties for OHS breaches creates an unnecessary burden on both WorkSafe and the employer and places further pressure on the Courts adding yet another matter to its already backlogged case load, causing  lengthy and costly delays for the parties respectively. Despite handing out over 10,000 improvement notices on worksites in the 2022-23 year, only 151 cases were brought to prosecution suggesting that the burdensome procedure of the criminal system unsuitably failed WorkSafe’s ability to bring claims to court. [4]

There is a serious and warranted connection between OHS cases and an employer’s role in causing industrial death or injury. As traditional criminal offences there is a responsibility for these contraventions to carry greater levels of accountability, denunciation, punishment and prevention making them rightfully criminal in nature. [5]

The use of the criminal system to bring offences of the OHS Act to trial poses an interesting debate about whether its use of resources and time is a necessary or worthwhile exercise to effect what might be the same outcome in a civil jurisdiction. Aside from instances of what takes the form of ‘traditional criminal offences’ like industrial manslaughter for an employer’s role in causing death or injury of employees, is there a rightful place for OHS in the criminal jurisdiction? [6]

If you have been contacted or charged by WorkSafe in relation to any offence, we can support you. Please call Grazia Legal or visit our website to submit an enquiry.

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[1] Occupational Health and Safety Act 2004 (Vic) s 21(1).

[2] WorkSafe, ‘WorkSafe Prosecutions’, WorkSafe (Web Page).

[3] Andy Hall & Richard Johnstone, ‘Exploring the Re-Criminalising of OHS Breaches in the Context of Industrial Death’ (2005) 8(1) Flinders Journal of Law Reform 57.

[4] WorkSafe, WorkSafe Annual Report 2022-23 (Annual Report).

[5] Andy Hall & Richard Johnstone, ‘Exploring the Re-Criminalising of OHS Breaches in the Context of Industrial Death’ (2005) 8(1) Flinders Journal of Law Reform 57; Richard Johnstone, ‘Harmonising Occupational Health and Safety Regulation in Australia: The First Report of the National OHS Review’, (2008) Journal of Applied law and Policy 35, 54.

[6] Andy Hall & Richard Johnstone, ‘Exploring the Re-Criminalising of OHS Breaches in the Context of Industrial Death’ (2005) 8(1) Flinders Journal of Law Reform 57.