WorkSafe legal process
If there is a WorkSafe Victoria (WorkSafe) investigation into the incident that caused your family member’s death, it can be helpful to have an understanding of the legal process. This information sheet outlines WorkSafe’s legal processes, including the investigation, potential prosecution of the workplace and when you can write a victim impact statement. The main purpose of WorkSafe’s involvement after a fatality is to establish whether or not there was a breach of occupational health and safety (OHS) laws.
What is the purpose of OHS occupational laws?
OHS laws are a set of legal rules that are designed to: • secure the health, safety and welfare of employees and other persons in the workplace • eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work, and • ensure that the health and safety of members of the public is not placed at risk by the conduct or omissions of employers and self-employed persons.
What is the purpose of a WorkSafe investigation?
WorkSafe’s Legal Services & Investigations Division investigates the circumstances of most workplace deaths. The purpose of an investigation is to identify possible breaches of OHS laws and to consider whether prosecution may be appropriate. The focus of a WorkSafe investigation is not confined to ‘how did this happen?’. It is a broader inquiry into the adequacy of safety management at a particular workplace. WorkSafe also conducts investigations to make recommendations about injury and risk prevention for the broader workforce and community.
What happens in an investigation?
A WorkSafe investigator conducts a criminal investigation at the site where the incident occurred. The investigator interviews people who may be able to help establish the facts, such as witnesses, other employees and the employer. Occasionally, family members may be asked to make a statement to assist in the investigation process. Experts in the particular field of employment may be consulted and exhibits may be collected. Sometimes employment, training and medical records are required. A WorkSafe investigation can take several months to complete.
Edition No. 4 March 2010
What is a WorkSafe prosecution?
WorkSafe issues charges against a company or place of work (‘the defendant’) for breaches of Occupational Health and Safety (OHS) laws. A WorkSafe prosecution falls under the criminal jurisdiction and these matters are heard in the same courts as other criminal matters.
How is a decision made about whether or not to prosecute?
WorkSafe’s decision to prosecute anyone in relation to an incident is made with advice from a senior lawyer who is attached to the organisation’s Legal Services and Investigation team. The senior lawyer must consider whether there are ‘reasonable prospects’ of a conviction under the OHS laws. WorkSafe also considers public interest when recommending whether or not to charge a potential defendant. These recommendations are approved by the Executive Director (or other senior delegate of WorkSafe Victoria) who can sign an authorisation to issue charges against a person or company. If a decision is made not to prosecute a company, a family member can ask for the reasons in writing. A family member can also request a review of this decision. All the decisions taken by WorkSafe about investigations and prosecutions are made in accordance with the WorkSafe compliance and enforcement policy: incorporating WorkSafe’s general prosecution guidelines.
If there is no prosecution, can you take action against the company and claim compensation?
Regardless of whether or not WorkSafe prosecutes, you may be eligible to make a civil law claim. WorkSafe recommends that you consult a specialist legal adviser for advice regarding your options. WorkSafe is unable to provide any advice in relation to the merits of any civil proceedings. The Law Institute of Victoria can recommend a number of specialist legal advisers located in your area.
What is the court process?
The court process always begins in the Magistrates’ Court. If the prosecution progresses to trial and/or sentencing, it will most likely be heard in the County Court. There are a number of steps in the court process, some of them purely administrative (for example setting further dates) and others that are more crucial to the outcome. The flow chart on page 5 of this information sheet describes the main steps in the court process and indicates which dates may be helpful for you to attend. There is also a glossary of terms to assist you in understanding the process on page 6. Most WorkSafe prosecutions involving a fatality follow the flow chart included in this information sheet and begin at the Magistrates’ Court and end at the County Court. Occasionally, there will be variations to this process. You may also wish to talk through the process in more detail with the WorkSafe lawyer. It is important for you to be aware that the court process can be very lengthy.
Edition No. 4 March 2010
Can you attend court?
Yes, you can attend court. You may wish to familiarise yourself with the court beforehand and this can be organised by speaking with the WorkSafe Family Support Service on (03) 8663 5460.
What is a victim impact statement?
Each person who is a victim of a crime may complete a victim impact statement if a person or company is found guilty of an offence. For these purposes, victim includes family members of persons injured or killed at work. A victim impact statement is a written statement in the form of a statutory declaration which is signed by the victim and presented to the court after the finding of guilt, at the time that the defendant’s plea is heard. Once you have completed your statement, forward it to the WorkSafe lawyer allocated to your case. The statement gives the Judge or Magistrate an insight into the effect that the crime has had on victims’ lives. It may assist the Judge or Magistrate to determine the sentence given to the defendant. The law requires that the Judge or Magistrate take your victim impact statement into account when sentencing the offender. The law enables you to request that your victim impact statement be read aloud in court by the prosecutor. If you would like your victim impact statement to be read in court, please let the WorkSafe lawyer know.
How to make a victim impact statement
You may be contacted by the WorkSafe Family Support Service or another staff member from WorkSafe’s Legal Services and Investigations Division and asked if you would like to prepare a victim impact statement. Alternatively, you can inform the investigator or lawyer that you wish to make one. A victim impact statement form is available by contacting the WorkSafe Family Support Service. You can download a victim impact statement from the Department of Justice website at justice.vic.gov.au. You may choose not to make a victim impact statement.
What to include in your victim impact statement
When you prepare your victim impact statement, you should describe how the crime has affected you. This includes information about: • physical injuries • financial loss and/or • emotional trauma • property loss or damage.
You can attach medical and psychological reports if you believe they will assist the Judge or Magistrate in understanding the effect of the crime on you. You can update the information in your statement at any reasonable time before sentencing. You should only relate your statement to the crimes the defendant has been charged with. If the defendant is found guilty on some of these charges, but not others, the court will only have regard to that part of your statement that is relevant to the crime(s) for which the defendant has been found guilty. Information you put into your victim impact statement must be accurate. If the contents are untrue or incorrect, you may be charged with making a false statement.
Edition No. 4 March 2010
What to exclude from your victim impact statement
You should limit your statement to information about how the crime has affected your life. If you have engaged a lawyer, it can be a good idea to check your victim impact statement with them.
Who will keep you informed?
If you wish to be informed about the investigation and court process, please let WorkSafe’s Family Support Service know by calling (03) 8663 5460. Once your request has been registered, a member of the WorkSafe Division will keep you informed about the proceedings.
Court proceedings Matters proceeding by way of a committal and trial
These are matters that will ultimately be determined in the County Court before a Judge and a jury. n The boxes shaded grey are generally matters that are critical to the prosecution process. You may wish to attend court on these days. If you would prefer not to attend court or are unable to, but would like information about the outcome, you can contact WorkSafe’s Family Support Service on (03) 8663 5460. n The boxes shaded light blue are generally matters that are administrative to the prosecution process. n The boxes shaded yellow show action/s initiated by WorkSafe Victoria. n The boxes shaded green show possible consequences of a court hearing eg. plea. n The box shaded orange denotes the involvement of the Office of Public Prosecutions (OPP). WorkSafe continues to be involved with the case by assisting the OPP.
Edition No. 4 March 2010
Matters proceeding by way of a committal and trial
Charges served on defendant by WorkSafe Filing hearing Committal mention committal case conference Magistrates’ Court plea Is there a plea of guilty?
Is it a County Court plea or a Magistrates’ Court plea? Is evidence of sufficient weight to put before a jury?
Plea and sentence
County Court plea Defendant released from charges
Committed for trial
Matter formally in hands of OPP
Edition No. 4 March 2010
Glossary of terms
Filing hearing This court date is the first time the matter is listed before the court. There are a number of things that may happen at this court hearing: 1. A date is set for the informant (WorkSafe Investigator) to serve a copy of the brief of evidence on the court and defendant 2. A date for the committal mention is set. Committal Case Conference The Court may direct the parties to a committal proceeding to attend a committal case to be conducted by a Magistrate. Wherever practicable, a committal case conference should be conducted on the committal mention date. The purpose of a committal case conference is to assist with the effective management of the committal proceeding. The lawyers representing the informant and defendant must attend a committal case conference. This court date is when the defendant is required to indicate whether they will plead guilty or contest the charge/s. There are a number of things that may happen at this court hearing: 1. The defendant can indicate their intention to plead guilty (generally there has been some negotiations prior to this date in order to settle a plea of guilty); or 2. The matter is listed for a committal – in this case the informant needs to be able to provide unavailable dates for all witnesses in order to list a convenient date for the committal. Committal hearing This court date is when the witnesses are called to give evidence and the defendant cross-examines each witness. The Magistrate makes a decision at the end of the case as to whether there is sufficient evidence to commit the matter to trial. If the Magistrate determines that the evidence is of insufficient weight to put before a jury the Magistrate will ‘release’ the defendant in relation to the charges. If the Magistrate determines there is evidence of sufficient weight to place before a jury then the Magistrate will ‘commit’ the defendant for trial. This is an administrative procedure to see if there is any possibility of the matter resolving as a guilty plea. This is an administrative procedure to ensure all matters are in place for the trial. This court date is when the defendant either has been found guilty or enters a plea of guilty. The prosecution case is provided to the Court and submissions are made in mitigation by the defendant’s legal representatives.
Case conference Directions hearing Trial
Edition No. 4 March 2010
Glossary of terms (continued)
Plea This court date is when the defendant either has been found guilty or enters a plea of guilty. The prosecution case is provided to the court and submissions are made in mitigation by the defendant’s legal representatives. The sentence is generally delivered by the Judge after the plea of guilty hearing or a guilty finding by a jury. However, there are some cases when the Judge will postpone the matter in order to consider the sentence. In this situation the Judge will deliver the sentence on another day.
Resources: Legal, Financial and WorkSafe Services
Victorian Legal Aid Free and low cost legal services for assistance Information, referral service and on-line directories for finding a lawyer – Counselling, support and referral – Information and liaison about WorkSafe processes (03) 9269 0234 1800 677 402 (03) 9607 9311 www.liv.asn.au (03) 8663 5460
Law Institute of Victoria
WorkSafe Family Support Service
Resources: Self-help, Support Group and Support Programs
Creative Ministries Network Work Related Grief Support – Grief support for those bereaved by a workplace death – Individual and group support Industrial Deaths Support and Advocacy The Compassionate Friends Support from people who have experienced a work-related fatality in their family Meetings and support for bereaved parents and siblings (03) 9827 8322 0409 788 883 (03) 9654 3353 0414 763 143 (03) 9888 4944 www.compassionate friendsvictoria.org.au
Edition No. 4 March 2010
Advisory Service 222 Exhibition Street Melbourne 3000 Phone Toll-free Email Head Office 222 Exhibition Street Melbourne 3000 Phone Toll-free Website (03) 9641 1555 1800 136 089 worksafe.vic.gov.au (03) 9641 1444 1800 136 089 firstname.lastname@example.org
ALLIANZ Workers’ Compensation (Vic) Limited Level 26, 570 Bourke Street, Melbourne 3000 Ph: (03) 9234 3800 Fax: (03) 9234 3760 Freecall: 1800 240 335 CGU Workers Compensation (Vic) Limited 181 William Street, Melbourne 3000 Ph: (03) 8630 1000 Fax: (03) 8804 9429 Freecall: 1800 066 204 Gallagher Bassett Services Workers Compensation Vic Pty Ltd Ground Floor, 50 Queen Street, Melbourne 3000 Ph: (03) 9297 9000 Fax: (03) 9297 9010 Freecall: 1800 774 377 GIO Workers’ Compensation (Victoria) Ltd Level 14, 447 Collins Street, Melbourne 3004 Ph: 1300 133 180 Fax: 1300 765 194 Freecall: 1800 817 969 QBE Workers Compensation (Vic) Limited Level 8, 628 Bourke Street, Melbourne 3000 Ph: (03) 9246 2444 Fax: (03) 9246 2400 Freecall: 1800 817 820 Xchanging Level 10, 390 La Trobe Street, Melbourne 3001 Ph: (03) 9947 3000 Fax: (03) 9947 3005 Freecall: 1800 801 070
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WorkSafe Victoria is a trading name of the Victorian WorkCover Authority.