WorkSafe and WorkCover: Learn Your Rights and Legal Options

In Victoria, workplace safety is governed by two significant frameworks–WorkSafe and WorkCover. As a business owner, it is very important to have an understanding of the details of these systems, as well as their rules and far-reaching implications. This understanding influences everyday operations, allows you to adhere to the regulations, and can even impact the long-term sustainability of your business.

If you have been accused of any breaches to workplace health and safety guidelines, the best course of action is to speak with an experienced criminal lawyer. In particular, the law firm you select should specialise in building and construction disputes. 

This article aims to give you an understanding of what your options are. Of course, we couldn’t hope to cover every detail, loophole and circumstance in this article. For a more comprehensive legal defence, be sure to employ the services of a skilled defence lawyer.

WorkSafe Investigations

In the event of OHS breaches or serious accidents and injury, the WorkSafe Enforcement Group may proceed to conduct an investigation. The decision to initiate an investigation is not made lightly. Generally, a formal investigation will be launched if the matter is of a serious nature, there is a likelihood of prosecution, and the necessary resources are available.

As stated on their website, “In some cases, the law requires that WorkSafe decide whether or not to commence a criminal prosecution.” However, this does not mean that all investigations lead to prosecution. The decision to prosecute is based on the specific details and nuances of each case. If there is not enough evidence, for example, a court case may not be viable.

If a WorkSafe investigation has been initiated against you, we recommend that you contact a law firm as soon as possible for legal advice. 

Non-Compliance: Understanding Potential Penalties

Non-compliance with WorkSafe regulations may lead to severe penalties, including hefty fines, loss of accreditation, and potential imprisonment. The severity of these penalties often depends on the nature and extent of the breach. For instance, a minor safety violation might warrant a warning or a smaller fine, while a significant violation, such as the failure to provide adequate safety equipment, can result in more substantial fines or even imprisonment.

In August 2023 alone, WorkSafe convictions resulted in close to $500,000 worth of fines, along with several tens of thousands of dollars in costs. This figure illustrates just how significant the impact of a breach in WorkSafe regulations can be.

Insurance

A crucial aspect of WorkSafe compliance is maintaining a WorkCover insurance policy. Every employer, barring certain exceptions, is required to have this policy in place. If an employer fails to maintain a WorkCover insurance policy, they may be required to reimburse the cost of any one-off or weekly payments made to an injured worker, as well as any legal costs. This reimbursement is in addition to a hefty penalty, which can put a significant financial strain on your business.

Other Implications

The implications of non-compliance extend beyond the immediate financial repercussions. Repeated violations can lead to a business gaining a negative reputation, making it harder to attract and retain employees. It can also lead to increased scrutiny from regulatory bodies, which results in more frequent inspections and audits.

In light of these potential penalties, it is essential to regularly review your compliance with WorkSafe and WorkCover regulations. This includes a thorough check to confirm that your WorkCover insurance policy is up to date and adequately covers your business. Additionally, regular safety audits, proper employee training, and a proactive approach to workplace safety can go a long way in ensuring compliance.

What is WorkSafe?

WorkSafe Victoria is the overarching regulatory body for workplace safety in Victoria; it is a pivotal institution that ensures occupational health and safety laws are upheld, and protects Victorian workers and business owners alike.

WorkSafe does not make the laws surrounding safe working environments, but rather the organisation tasked with making sure the laws are being followed. This is done through two distinct levels of supervision:

Information

• Campaigns: It’s likely you’ve seen or heard one of WorkSafe’s campaigns around work safety. These are aimed at increasing awareness among workers about reasonable workplace safety and what their rights are.
  
• Education: You can access free webinars, training programs and events to learn more about safe working practices.
  
• Guidance: WorkSafe partners with OHS experts to provide free, confidential guidance about how to meet guidelines.
  
• Inspections: WorkSafe inspectors visit workplaces and conduct inspections to check that laws and regulations are being followed.
  
• WorkSafe Agent: Each workplace should have a WorkSafe agent, responsible for ensuring the regulations and laws appropriate to the specific industry are being followed.


Legal Enforcement



• Licensing: WorkSafe issues licences to those performing potentially dangerous work. These licences help to make sure those doing these jobs are adequately experienced and protected.
  
• Cautions: If you have breached WorkSafe guidelines, you may be issued with a caution. These do not have legal consequences, but if the problems outlined are not corrected by the next inspection, you may face criminal charges.
  
• Enforceable Undertakings: These are commitments by those in charge (i.e. employers) to correct issues by a set date. These must be of a higher standard than the set minimum (for example, commitment to funding training programs or donations to OHS research).
  
• Prosecutions: If serious breaches are found, (such as injured workers or imminently dangerous working conditions), then WorkSafe will pass this information along and the offending party will be prosecuted. This doesn’t only include employers, but also employees found to be fraudulently claiming WorkCover payments.

As you can see, WorkSafe provides invaluable information and services to Victorian workplaces, all focused on keeping everyone present safe and healthy. The other main service WorkSafe provides is WorkCover.



What is WorkCover?



WorkCover serves as a safety net, a compulsory insurance scheme designed to safeguard the rights of the workforce in Australia. This system becomes active when workers become injured or sick due to their work.

WorkCover is an umbrella service which supports injured workers, preventing the financial burden from falling on either the employee or employer. This framework covers a number of supports, encapsulating including medical expenses, rehabilitation costs, and loss of earnings. These are provided in weekly payments, based on a certificate of capacity provided by a health professional. 

A certificate of capacity lays out the current details of the workers required medical treatment, current work capacity, any permanent impairments and their overall functional capacity. WorkCover also provides one-time compensation claims for acute medical treatment and other costs associated with the immediate treatment needed at the time of the injury or illness.

Ultimately, WorkCover is designed to ensure that an unforeseen incident at work does not lead to a financial disaster for the worker, offering a cushion against the often hefty medical expenses and the loss of income during the recovery process. This security is not just beneficial for the employees but is equally important for the employers, who are shielded from excessive out-of-pocket expenses in the event of a worker’s injury or sickness.










How We Can Help



The legal landscape of WorkSafe and WorkCover can be complex. You might face legal repercussions if you commit any of the following offences:

Workplace Manslaughter

Failure to comply with improvement notices and warnings

Workplace injuries

Workplace safety breaches


In these scenarios, understanding your legal options is incredibly important. For instance, if you’re faced with a claim of workplace manslaughter, a legal professional can help you navigate the intricacies of the law, establish a defence, and make sure that your rights are protected. Similarly, if you’re dealing with non-compliance issues, legal advice can assist you in understanding your obligations, rectifying the situation, and minimising potential penalties.

The court will take a number of factors into consideration, including but not limited to:

• The circumstances surrounding the case, such as the nature of the breach, and foreseeability of risk.
• Any previous convictions, related or unrelated to WorkSafe breaches
• The magnitude of the harm caused
• Your role in the breach
• The offender’s conduct following the offence, such as further offending or safety upgrades being made before being enforced
• Remorse expressed



Get Professional Legal Advice About WorkSafe Charges



Some of the ways our lawyers can help in this situation are:

• Establishing the fault (if any) of the worker, if one is injured.
• Providing personal, professional and business character reports. If you or your business are otherwise of good standing, this shows the judge you were not acting maliciously.
• Showing you took steps to rectify the issue immediately. This shows you are concerned about the welfare of your workers.
• Showing the offending was due to inadvertence not recklessness. If it was a genuine mistake and you were not provided any corrections, you had no way of knowing there was a danger present.
• That you feel genuine remorse about the injury or death resulting from the breach

Every situation is unique, and there are a number of ways a lawyer can work to reduce the impact of a prosecution.

When you’re facing a WorkSafe prosecution, it can be a daunting, upsetting and confusing time. You care deeply for your workers, and when something goes wrong, it’s natural to feel a heavy burden.

At Gallant Law, our corporate crime lawyers are focused on not only getting you the best possible outcome, but also providing compassionate and easy-to-understand guidance through what can be a difficult time. We are equally focused on protecting the reputation of your business. 

Contact Gallant Law for a free consultation to discuss how we can help you.



Disclaimer: Legal Information and Advice

The information provided on this blog is for general informational purposes only and should not be construed as legal advice. The content is not intended to create, and receipt of it does not constitute, a solicitor-client relationship. Readers should not act upon this information without seeking professional legal counsel.