The Commonwealth Government’s Work Health & Safety Act 2011 (“WHS Act”) commenced in 2012, replacing the old occupational health and safety laws in New South Wales. In our December 2013 newsletter we introduced the new legislation and informed you of the new duties under the WHS Act and to whom they applied.
The WHS Act also created new and broad statutory enforcement powers, including the imposition of criminal offences for breach of statutory duties under the WHS Act.
The criminal offences are divided into three categories:-
Category 1 Where the director or officer, without reasonable excuse, recklessly exposes an individual to a risk of death, serious injury or illness. The maximum penalty is $600,000, 5 years imprisonment or both
Category 2 Where the director fails to comply with a duty and exposes an individual to a risk of death, serious injury or illness. The maximum penalty is $300,000.
Category 3 Where the director fails to comply with a duty. The maximum penalty is $100,000.
Actual death, serious injury or illness is not required to be found guilty of a criminal offence under the WHS Act.
Contraventions of the WHS Act will generally be prosecuted as criminal offences. Although civil penalties may be imposed instead of a criminal charge or civil penalties may be imposed after a person is found not guilty of a criminal offence under the WHS Act.
An inspector or regulator has the power to issue an improvement notice if they believe a person is contravening the WHS Act or reasonably believe a person has already contravened the WHS Act and it is likely the contravention will be repeated. Failure to comply with an improvement notice has a maximum penalty of $50,000.
An inspector or regulator under the WHS Act has the power to also issue a prohibition notice if they believe an activity in the workplace is occurring that involves a serious risk to the health or safety of a person. The prohibition notice will remain in-force until the inspector is satisfied that the risk has been remedied. An inspector may take any remedial action they believe is reasonable to make the workplace safe if a prohibition notice is not being complied with. The costs of the remedial action taken by the inspector must be paid by the person to whom the notice was issued. Failure to comply with prohibition notice incurs a maximum penalty of $100,000.
Non-compliance with an improvement notice or prohibition notice may also be used as evidence of recklessness under category 1 of the criminal offence provisions.
It is important to understand your duties and obligations under the WHS Act because there are serious penalties imposed for non-compliance. You can seek our assistance if you need further advice in your particular circumstances.