Fail to Comply With an Improvement Notice

Interview

This offence is serious and can lead to large financial penalties. Due to the seriousness of this offence, it is important to seek legal advice from an experienced criminal lawyer before taking part in an interview. We can assist you by speaking with the investigator to get as much information as possible, discuss any advantages and disadvantages in making a comment.

Going to an interview is stressful and we can also accompany you to the interview.

Pleading Not Guilty

Just because you have been charged with this offence does not mean you should plead guilty. It is important to speak to an experienced lawyer who can assess all the evidence against you before you decide on how you want your case to proceed.

Our experienced lawyers regularly deal with these types of complex matters and can go through this charge and the evidence with you. If you plead not guilty we can develop a strategy for your case and have experienced lawyers represent you in court.

Pleading Guilty

You may decide that the best outcome for you will be pleading guilty to this charge. Given its serious nature, it is important to engage a lawyer to represent you.

We conduct pleas on behalf of our clients every day. We will be able to assist you in trying to receive the best possible outcome by closely considering the facts of your case, advising you of strategies you can implement to reduce the penalty.

Which court will the case be heard in?

As an indictable offence, this charge is ordinarily heard in the County Court.¹ However, as this is an ‘indictable offence triable summarily’, this offence may also be heard in the Magistrates’ Court.²

What is the legal definition of Fail to Comply With an Improvement Notice?

The legal definition of this offence is:

1. If an inspector reasonably believes that a person—
   1. is contravening a provision of this Act or the regulations; or
   2. has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated—
   the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention.

2. An improvement notice must—
   1. state the basis for the inspector’s belief on which the issue of the notice is based; and
   2. specify the provision of this Act or the regulations that the inspector considers has been or is likely to be contravened; and
   3. specify a date (with or without a time) by which the person is required to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention, that the inspector considers is reasonable having regard to the severity of the risk to the health or safety of any person and the nature of the contravention or likely contravention; and
   4. set out the penalty for contravening the notice; and
   5. state how the person may seek review of the issue of the notice; and
   6. include a statement of the effect of section 117 (proceedings for offences not affected by notices).
3. An improvement notice may include directions concerning the measures to be taken to remedy the contravention or likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates and may, in particular, include—
   1. a direction that if the person has not remedied the contravention, likely contravention, matters or activities (as the case may be) by the date and time (if any) specified in the notice, an activity to which the notice relates is to cease until an inspector has certified in writing that the contravention, likely contravention, matters or activities have been remedied; and
   2. interim directions, or interim conditions on the carrying on of any activities to which the notice relates, that the inspector considers necessary to minimise risks to the health or safety of a person.
4. A person to whom an improvement notice is issued must comply with the notice.
5. An offence against subsection (4) is an indictable offence.
   Note
   However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).
6. If an application for review of a decision under this section has been made under Part 10, an inspector must not give a notice regarding ceasing certain activities in relation to the improvement notice concerned until after the review ends.

Examples of Fail to Comply With an Improvement Notice

• An Occupational Health and Safety (OHS) inspector issues a body corporate with a properly detailed improvement notice for improperly storing warehoused stock. The company fails to act on the improvement notice within the specified time frame.
• An OHS inspector issues a person with a properly detailed improvement notice for failing to consult with employees. The company fails to act on the improvement notice within the specified time frame.
• An OHS inspector issues a body corporate with a properly detailed improvement notice for failing to safely store hazardous chemicals. The company fails to act on the improvement notice within the specified time frame

Legislation

The relevant legislation for this offence is section 111(4) of Occupational Health and Safety Act 2004.

Elements of the offence

The prosecution must prove:

1. That the accused person or body corporate was issued with an improvement notice in accordance with the Act;
2. The improvement notice contained the relevant particulars; and
3. The accused person or body corporate did not comply with the improvement notice within the specified timeframe.

Element 1: The accused person or body corporate was issued with an improvement notice in accordance with the Act
An accused person or body corporate must be issued with an improvement notice in accordance with the Act to satisfy the first element of this offence.

Only an OHS inspector appointed under Part 9 of the Act may issue an improvement notice.³ The inspector may issue an improvement notice if they reasonably believe that a person or body corporate is contravening a provision of the Act or the regulations; or has contravened such a provision in circumstances that make it likely that the contravention will continue or reoccur.⁴

Element 2: The notice contained the relevant particulars
An improvement notice must contain the relevant particulars to satisfy the second element of the offence. An improvement notice must⁵:

1. state the basis for the inspector’s belief on which the issue of the notice is based; and
2. specify the provision of this Act or the regulations that the inspector considers has been or is likely to be contravened; and
3. specify a date (with or without a time) by which the person is required to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention, that the inspector considers is reasonable having regard to the severity of the risk to the health or safety of any person and the nature of the contravention or likely contravention; and
4. set out the penalty for contravening the notice; and
5. state how the person may seek review of the issue of the notice; and
6. include a statement of the effect of section 117 (proceedings for offences not affected by notices).

An improvement notice may also include directions as to the measures to be taken to remedy the contravention or likely contravention and the matters or activities causing the contravention or likely contravention.⁶ The notice might also include requirements as to ceasing certain activities within a certain time frame⁷ and interim directions.⁸

Element 3: The accused person or body corporate did not comply with the improvement notice within the specified timeframe
To satisfy the third and final element of this offence, the accused person or body corporate must have failed to comply with the improvement notice within the specified time period.⁹

The decision to issue an improvement notice is a ‘reviewable decision’ and may be appealed to the Victorian WorkCover Authority.¹⁰ An application for a review of a decision to issue an improvement notice must be made within 14 days of the decision to issue the improvement notice.¹¹

If an application for review of a decision under this section has been made under Part 10 of the Act, an inspector must not give a notice regarding ceasing certain under section 111(3)(a) until after the review ends.¹²

Defences

Defences to this charge will ordinarily be based on some element of the offence not being made out. These defences include:

• The improvement notice did not contain the required particulars;
• The time period within which the person or body corporate must comply with the improvement has not yet expired;
• The accused person or body corporate has complied with the improvement notice within the specified time period.

Another defence to this charge is honest and reasonable mistake.

Questions in cases like this

• Was the person who issued the improvement notice an inspector within the meaning of the Act?
• Did the improvement notice contain the required particulars?
• Has the accused person or body corporate failed to comply with the improvement notice within the specified time period?

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

Maximum penalty and court that deals with this charge

A body corporate
The offence of Fail to Comply With an Improvement Notice (s111(4) of Occupational Health and Safety Act 2004) carries a maximum penalty of 2500 penalty units (a $402,975 fine) for a body corporate.¹³

A natural person
This offence carries a maximum penalty of 500 penalty units (an $80,595 fine) for a natural person.¹⁴

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.¹⁵ As such, the maximum fine for this offence is liable to change.

Other important resources

• OHS Penalties in Victoria
• OHS: Enforcement Measures

_{[1] Occupational Health and Safety Act 2004 (Vic) s 111(5).
[2] Occupational Health and Safety Act 2004 (Vic) s 111(5).
[3] Occupational Health and Safety Act 2004 (Vic) s 111(4) s 3, Part 9.
[4] Occupational Health and Safety Act 2004 (Vic) s 111(1).
[5] Occupational Health and Safety Act 2004 (Vic) s 111(2).
[6] Occupational Health and Safety Act 2004 (Vic) s 111(3).
[7] Occupational Health and Safety Act 2004 (Vic) s 111(3)(a).
[8] Occupational Health and Safety Act 2004 (Vic) s 111(3)(b).
[9] Occupational Health and Safety Act 2004 (Vic) s 111(4).
[10] Occupational Health and Safety Act 2004 (Vic) s 127.
[11] Occupational Health and Safety Act 2004 (Vic) s 128.
[12] Occupational Health and Safety Act 2004 (Vic) s 111(6).
[13] Occupational Health and Safety Act 2004 (Vic) s 111(4).
[14] Occupational Health and Safety Act 2004 (Vic) s 111(4).
[15] See http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/}