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As an employer, you have a duty under the model work health and safety (WHS) laws to provide a safe workplace for your employees, contractors and visitors. Each state and territory in Australia has a local workplace health and safety body that regulates and enforces compliance with WHS laws. These bodies investigate WHS complaints. Furthermore, they can issue a monetary penalty or prosecute through the courts for breaches of work health and safety duties. Finally, they also appoint inspectors who can visit workplaces to provide information and advice about work health and safety requirements and monitor compliance with laws. This article explains the work health and safety law penalties and outlines a recent case example in New South Wales.
Fines Involved in Breaches
The model WHS laws include 3 categories of offences. Furthermore, the penalties differ depending on the category of offence and whether the person being charged is a PCBU (person conducting a business or undertaking), individual or body corporate. For instance, a body corporate will be subject to increased penalties.
|
Category |
Offence |
Maximum penalties |
|
1 |
(a) the person has a health and safety duty; (b) the person, without reasonable excuse, engages in conduct that exposes an individual to a risk of death or serious injury or illness; and (c) the person is reckless as to the risk of death or serious injury or illness. |
Individual (PCBU or officer of a PCBU): $600,000 or 5 years imprisonment or both Individual (not a PCBU or officer of a PCBU): $300,000 or 5 years imprisonment or both Body corporate: $3,000,000 |
|
2 |
(a) the person has a health and safety duty; (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. |
Individual (PCBU or officer of a PCBU): $300,000 Individual (not a PCBU or officer of a PCBU): $150,000 Body corporate: $1,500,000 |
|
3 |
(a) the person has a health and safety duty; and (b) the person fails to comply with that duty. |
Individual (PCBU or officer of a PCBU): $100,000 Individual (not a PCBU or officer of a PCBU): $50,000 Body corporate: $500,000 |
All Australian states and territories have implemented the model WHS laws, except for Victoria. However, maximum penalties in the state or territory WHS laws may differ from the model WHS laws.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Case Study – Safe Work (NSW) v WGA Pty Ltd
Other Enforcement Options/Mechanisms
The model WHS laws also include other enforcement options, such as improvement notices, prohibition notices and non-disturbance notices.
Improvement Notices
An inspector can issue an improvement notice if there is a reasonable belief that you:
- are contravening a provision of the WHS laws; or
- have contravened a provision of the WHS laws and the contravention will likely continue or be repeated.
Furthermore, the improvement notice may require you to:
- remedy the contravention;
- prevent a likely contravention from occurring; or
- remedy the things or operations causing the contravention or likely contravention.
However, if you fail to comply with an improvement notice within the specified period, the maximum penalty is $50,000 for an individual and $250,000 for a body corporate.
Prohibition Notices
In addition, an inspector may issue a prohibition notice if they reasonably believe that an activity:
- is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person arising from immediate or imminent exposure to a hazard; or
- may occur at a workplace that will involve a serious risk to the health or safety of a person arising from immediate or imminent exposure to a hazard.
Consequently, the prohibition notice may prohibit you from carrying on the activity until the inspector is satisfied that you have remedied the matters that give or will give rise to the risk.
Likewise, if you fail to comply with a prohibition notice, the maximum penalty is $100,000 for an individual and $500,000 for a body corporate.
Non-Disturbance Notices
Finally, an inspector may issue a non-disturbance notice if they reasonably believe that it is necessary to facilitate the exercise of their compliance powers.
A non-disturbance notice may require you to:
- preserve the site at which a notifiable incident has occurred for a specified period; or
- prevent the disturbance of a particular site for a specified period.
However, a non-disturbance notice does not prevent any action:
- to assist an injured person;
- to remove a deceased person;
- that is essential to make the site safe or to prevent a further incident;
- that is associated with a police investigation; or
- for which an inspector has given permission.
Nevertheless, if you fail to comply with a non-disturbance notice without a reasonable excuse, the maximum penalty is $50,000 for an individual and $250,000 for a body corporate.
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Key Takeaways
In conclusion, you have obligations to ensure the health and safety of your workers and visitors to your workplace. Furthermore, workplace health and safety bodies regulate and investigate breaches of WHS laws. Therefore, if you fail to comply with your WHS duties, you are at risk of being issued fines, improvement notices, prohibition notices and non-disturbance notices.
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Frequently Asked Questions
The maximum penalties for a breach of the model WHS laws depend on the category of the offence. For example, the maximum penalties for a category 1 offence are currently $600,000 or 5 years imprisonment or both for an individual or $3,000,000 for a body corporate.
The model WHS laws include other enforcement options such as improvement notices, prohibition notices and non-disturbance notices. Failure to comply with these notices may result in a fine.
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