On Friday 24 March, Western Bulldogs kicked off their 2016 premiership defence with a tenacious win against Collingwood. Round 1 of the 2017 AFL season also coincided with the introduction of the WorkSafe Legislation Amendment Bill 2017 (VIC).
This Bill includes changes to the rules by which WorkSafe Victoria can prosecute alleged indictable offences against the OHS Act outside the current two year limitation period.
WorkSafe is already a contender for the premiership team for enforcement action if you look at its record of successful safety prosecutions. For example, in 2013/2014 it commenced 107 prosecutions for alleged offences against workplace health and safety laws with an 88% success rate. This has gradually increased to 119 prosecutions in the 2015/2016 period with a prosecution success rate of 94% (see page 19 of the WorkSafe Annual Report 2016).
Yet WorkSafe has kicked off its 2017 enforcement year backed by impending legislation that is designed to give it even more scope to prosecute alleged indictable offences against workplace health and safety laws outside the current two year period.
We are all for cheering on teams whose purpose is to improve health and safety outcomes at Victorian workplaces. Though we query whether the proposed changes in the Bill are designed to improve the already high performing enforcement regime in Victoria, or whether they are designed to give WorkSafe a free kick if they drop the ball with an investigation?
We acknowledge there will always be limited exceptions where WorkSafe needs the ability to prosecute for alleged offences outside of the two year period. For good public policy reasons that exception already exists in the current law that enables WorkSafe to commence prosecutions out of time with the written authorisation of the Director of Public Prosecutions.
Aside from questions about the utility of yet more law to deal with situations which appear to be adequately addressed by the current law, there are broader considerations about whether the provisions in the Bill will have the desired impact. The longer a matter takes to investigate and prosecute, the less likely it is to have a successful outcome. We also see the adverse impacts of protracted safety investigations and prosecutions on the victim, their families and work colleagues.
If the 'end-game' is improving health and safety outcomes for Victorian workers, are better options available? Are the tax-payer resources required to implement these proposed legal changes better directed to funding collaborative programs where WorkSafe Inspectors engage early and effectively with employers and employees on critical WHS risks in their business with an explicit objective to promptly improve health and safety outcomes?
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