OHS Prosecution on Pure Risk

admin • June 17, 2025

The Victorian Occupational Health and Safety Act 2004 is primarily a risk-based law. That is, it requires the prevention of harm.


The objects of the Act require that health and safety be secured and that risks to health and safety be eliminated at the source, with the highest level of protection against risks being provided. The employer is legally required to eliminate (as far as reasonably practicable) any risk to health and safety. It follows that the majority of offences under the Act are indeed risk-based offences.

This means that a prosecution can occur whether or not the risk has resulted in death or injury. It is enough to have simply exposed a person to the risk of harm.

The argument for this is that the OHS Act aims to prevent injury, disease and death at work.


So why do we see many prosecutions occurring after the harm has in fact materialised into an injury or death?

Perhaps it is due to a public expectation that these horrific incidents should result in some punishment of those responsible?

Perhaps it is that the ultimate evidence of the safety failure is now present – providing a compelling argument as to the egregious nature of the risk that was posed by the breach?

Perhaps there is motivation to provide general deterrence as a result of these tragic events?

It is important to note that the death or injury does not form part of the offence in these prosecutions, rather it forms part of the evidence.


But, we do see pure risk prosecutions.

The regulator can and does charge on the basis of risk only, before the safety failure has resulted in harm to anyone. This is the ultimate outcome – to prevent.

Prosecuting on the basis of risk may be for the purpose of primary prevention, or as the ultimate escalation in a hierarchy of sanctions. It may serve as specific deterrence, to effect change in an individual’s or company’s behaviour. General deterrence is often seen as very important – reinforcing to all duty holders that they are required by law to take a pro-active approach to safety.


Here are a few examples of cases of pure-risk prosecutions:

$7.5K FINE IN PURE RISK FALLS CASE - OHS Reps

$25K FINE IN AHWAZ ROOFING PURE RISK CASE - OHS Reps

CONSTRUCTION COMPANY FINED $12K IN ‘PURE RISK’ PROSECUTION - OHS Reps


The following Melbourne Law School presentation also makes for some interesting reading on this topic: CELRL-Seminar-21-May.pdf


Proceeding to prosecution on the basis of risk represents an alignment between prosecution strategies and the principles of the OHS Act. Certainly, it serves as a reminder that duty holders have a legal requirement to provide the highest level of protection and to prevent harm in the workplace.

Victoria's New Psychosocial Regulations are Imminent

By admin • September 9, 2025
It has been a long time coming, and the promised released date for Victoria's new Occupational Health and Safety (OHS) Psychological Health Regulations is imminent. These regulations, which are anticipated to be released in October and to come into effect on 1 December 2025 , aim to address the growing recognition of psychosocial hazards in the workplace. What Are Psychosocial Hazards? Psychosocial hazards refer to workplace factors that can negatively impact an individual’s mental health and well-being. These include, but are not limited to: Workplace bullying High job demands or low job control Poor workplace relationships Exposure to traumatic events Discrimination or harassment Such hazards can lead to stress, anxiety, depression, and other mental health challenges, which not only affect individuals but also reduce workplace productivity and morale. They can also lead to catastrophic consequences for some individuals. Why are new Psychosocial Regulations being introduced? The Victorian government has responded to recommendations made by the Boland Review of WHS, the Royal Commission into Victoria’s Mental Health System and the Productivity Commission Inquiry into Mental Health. There is already a legal obligation under the existing Occupational Health and Safety Act 2004 (OHS Act): employers must provide and maintain a working environment for their employees, including contractors, that is safe and without risks to health, so far as reasonably practicable. In addition, in Section 5 of the OHS Act, health is defined as including psychological health. However, there is limited guidance in Victoria as to how this should be done. The new Regulations are intended to close this gap. The new regulations are designed to ensure that employers take proactive steps to identify, assess, and manage psychosocial risks. They will dictate how an employer must identify and control psychosocial risks in the same way that they manage physical hazards. This includes a risk management approach to these hazards and how to implement measures to prevent harm and create a supportive work environment. A Compliance Code will accompany the regulations, providing practical guidance for employers on how to meet their obligations. This will include strategies for risk assessment, consultation with employees, and implementing controls. How Can You Prepare? Review your safety structures in your workplace – do you have elected Health and Safety Representative, Designated Work Groups and Health and Safety Committees - and are they working well? Ensure your reporting and consultation processes are sufficient and working well. Remember that open communication is key and that you have a legal obligation to consult with your employees on any changes which may affect their health and safety in the workplace. Review your existing policies and procedures – are there policies around bullying, harassment and workload management? Make sure your general OHS knowledge base is strong. This might mean looking at your existing training . Are workers, HSR’s, supervisors, managers and the leadership team all up to speed on their rights and obligations under the OHS Act? BeSafe Victoria can help you with HSR training, refreshers and leaders OHS training. HSR Training Courses | BeSafe | Regional Victoria Take a look at Psychological health | WorkSafe Victoria and utilise the WorkWell toolkit at WorkWell Toolkit | WorkSafe Victoria Start to plan how you will implement a training schedule once the Regulations are released. Watch this space – BeSafe will be developing a course to bring you up to speed once we have the Regulations and Compliance Code. Reach out if you are interested in being notified once this is available: HSR Training and support | BeSafe | Regional Victoria As always, if you need any help, reach out to BeSafe on 0467 002 060 or admin@besafevictoria.com.au

New apprentice supervision requirements

By admin • September 1, 2025
New electrical apprentice supervision requirements come into effect in Victoria on September 1 st 2025. It is the role of employer to supervise their apprentices, and this is vital to ensuring their safety in all industries - including electrical apprentices. There have been 5 electrical apprentice deaths in the last 10 years in Victoria alone. It is hoped that the new changes will improve safety and make an impact to prevent electrocution fatalities. The new apprentice supervision requirements will bring Victoria alignment with other states, and the changes include supervision rations and the level of supervision required when an apprentice is undertaking certain tasks. It is now mandatory for the employer to provide any person who is in a supervisory role with a copy of the supervision requirements. These requirements apply to supervision standards only while doing electrical work. The usual OHS standards apply when the apprentice is undertaking other non-electrical work on-site – keeping in mind that the OHS Act does include requirements around supervision also. The new apprentice supervision requirements mandate direct 1:1 supervision when carrying out electrical work. This means 1 supervisor to 1 apprentice and with constant visual contact when carrying out high risk tasks. It is no longer good enough to supervise 2 apprentices at once, or to be ‘within earshot’. There is a grading system for how much supervision is required, which depends on the experience of the apprentice and the tasks being undertaken. For example, 1 st year apprentices must be under 1:1 supervision at all times but will move to reduced supervision as they gain experience throughout their apprenticeship. However, high risk tasks will always require direct 1:1 visual supervision. Work on or near any live or energised equipment must not be performed by any apprentice. However, a fourth-year apprentice may perform fault finding – but only under direct 1:1 supervision. There are very prescriptive requirements which are now in place and must be followed. These changed requirements are intended to ensure the safety of the electrical industry’s most vulnerable workers. For more information, have a look at the video below, or take a look at: Requirements for the effective supervision of apprentice electricians | Energy Safe Victoria