Request for WorkCover NSW to commence a prosecution under the Work Health and Safety Act 2011: Fact sheet

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Work Health and Safety Act 2011 (WHS Act) – Work Health and Safety Regulation 2011 (WHS Regulation)

FACT SHEET

Request for WorkCover NSW to commence a prosecution under the Work Health and Safety Act 2011

Introduction

This fact sheet is developed to provide general information and guidance to a person who is considering making a request to WorkCover to commence a prosecution.

This fact sheet relates to a situation where a person believes a category one or two offence contrary to the WHS Act has occurred and WorkCover has not commenced a prosecution between six and 12 months of the offence occurring.

If you are seeking information or want to raise a concern about a current investigation being undertaken by WorkCover then please contact WorkCover on 13 10 50 or at workcover.nsw.gov.au

  1. What can I do if I think WorkCover should prosecute someone for a serious offence but WorkCover hasn't commenced a prosecution?

    Section 231(1) of the WHS Act allows a person who reasonably considers that a certain offence has been committed but where no prosecution has been brought, to ask WorkCover in writing to bring a prosecution. The request can only be made if no prosecution has been brought between six and twelve months after the event has occurred.
  2. Can I make a request about any offence under the Work Health and Safety Act 2011?

    No, the procedure under section 231 only applies to category one or two offences, which are the most serious criminal offences under the WHS Act. These offences are provided for under sections 31 and 32 of the WHS Act respectively.

    A category one offence occurs when a person1 has a health and safety duty, and without reasonable excuse engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and the person is reckless as to the risk to an individual of death or serious injury or illness. Prosecutions for a category one offence are expected to be fairly rare.

    A category two offence occurs where a person has a health and safety duty and fails to comply with that duty, and the failure exposes an individual to a risk of death or serious injury or illness.

    There is a further category of offence, category three, which occurs where a person has a health and safety duty and the person fails to comply with the duty. The category three offence is not covered by section 231 of the WHS Act.
  3. What information should be provided with the request?

    The request should refer to section 231 of the WHS Act and state that it is a request under that section. To assist WorkCover in assessing and progressing your request you should set out the facts of the event, including the date, place and names of the people concerned, and the nature of the offence you believe has occurred. The request should identify the person you believe committed the offence.

    The request should also include your contact details, so that WorkCover can contact you to obtain further information. In some cases WorkCover may ask you to provide a statement or other information in support of your request.
  4. How to make a request to WorkCover

    The request must be in writing and could be in the form of a letter or email. The request must be made to WorkCover after six months but not later than 12 months after the act, matter or thing has occurred.

    A form is available from WorkCover's website workcover.nsw.gov.au to assist in making a request to commence a prosecution. It is important to note that proper completion and submission of the form will allow for a timely assessment of the request by WorkCover.

    A request for WorkCover to commence a prosecution should be sent to:

    Prosecution RequestWorkCover NSWResponse Coordination and Enforceable Undertakings UnitLocked Bag 2906Lisarow 2252
  5. If I make a request will my details remain confidential?

    WorkCover will maintain confidentiality over your details to the extent required and permissible by law. Section 271 of the WHS Act titled 'confidentiality of information' outlines requirements and provisions as it relates to the protection and use of information.

    To properly investigate some matters it may be necessary to disclose to another person some of the details of the information you have provided, therefore your identity may become known.

    Section 231 of the WHS Act also requires WorkCover to tell the person who you believe committed the offence of the application and WorkCover's decision.
  6. If I make a request how long will it take for WorkCover to respond?

    WorkCover must provide a written response to a request within three months, and must advise you whether the investigation is complete, and if it is complete whether a prosecution will be brought.

    If the decision has been made not to bring a prosecution, WorkCover must tell you the reasons for that decision.
  7. What happens if I am told by WorkCover that the investigation is not complete?

    It is WorkCover's policy that if a request is made within the specified time (ie between six and 12 months of the alleged offence) and the investigation is not complete, WorkCover will advise the applicant in writing of that fact and also undertake to inform the applicant when the investigation is complete and of its decision to prosecute.
  8. What happens if I make a request to WorkCover to commence a prosecution at the time an enforceable undertaking proposal is under consideration?

    WorkCover will not enter into any proposed enforceable undertaking until such time as the request under section 231 of the WHS Act has been assessed and determined.
  9. If WorkCover has accepted an enforceable undertaking can a prosecution be commenced?

    Yes, but only if the enforceable undertaking is contravened.
  10. What can I do if WorkCover advises me that it has decided not to prosecute an offence, but I still think that there should be a prosecution?

    If WorkCover informs you that it has decided not to bring a prosecution for a category 1 or 2 offence, WorkCover must also advise you that you may ask for the matter to be referred to the Director of Public Prosecutions (DPP) for consideration. The DPP is the independent state prosecution authority.

    If you make a request in writing for WorkCover to refer the matter to the DPP, WorkCover must refer the matter to the DPP within one month of your request.
  11. How do I request WorkCover refer the matter to the Director of Public Prosecutions?

    Your request must be in writing and sent to WorkCover via mail.

    Should you be advised of WorkCover's decision not to prosecute, WorkCover will provide a form to assist you in making the request for the matter to be referred to DPP.

    A request for WorkCover to refer a matter to the DPP should be sent to:

    Prosecution Request
    WorkCover NSW
    Response Coordination and Enforceable Undertakings Unit
    Locked Bag 2906
    Lisarow 2252
  12. What will the Director of Public Prosecution do and how long will it take?

    The DPP will consider the matter and within one month advise WorkCover in writing as to whether the DPP considers that a prosecution should be brought. WorkCover must ensure that a copy of the DPP's advice is given to you and to the person you believe committed the offence.
  13. If the Director of Public Prosecution advises that a prosecution should be brought, does WorkCover have to prosecute?

    No. If WorkCover declines to follow the DPP's advice to bring proceedings, WorkCover must give written reasons for the decision. The reasons must be given to the applicant who made the request and the person who the applicant believes committed the offence.
  14. If WorkCover declines to follow the Director of Public Prosecution's advice that a prosecution should be brought, can anyone else prosecute?

    Yes. The DPP has a general power to bring proceedings for an offence against the WHS Act if it believes it is necessary.

Disclaimer

This publication may contain work health and safety and workers compensation information. It may include some of your obligations under the various legislations that WorkCover NSW administers. To ensure you comply with your legal obligations you must refer to the appropriate legislation.

Information on the latest laws can be checked by visiting the NSW legislation website (www.legislation.nsw.gov.au).

This publication does not represent a comprehensive statement of the law as it applies to particular problems or to individuals or as a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation.

© WorkCover NSW

Catalogue No. WC03777 WorkCover Publications Hotline 1300 799 003
WorkCover NSW, 92-100 Donnison Street, Gosford, NSW 2250
Locked Bag 2906, Lisarow, NSW 2252 | WorkCover Assistance Service 13 10 50
Website workcover.nsw.gov.au

ISBN 978 1 74341 109 4 © Copyright WorkCover NSW 1012

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