Under the model WHS laws, WHS regulators have a range of mechanisms to promote and encourage WHS compliance and to sanction a duty holder for non-compliance. These include:
- Providing advice on compliance and seeking voluntary compliance.
- Assisting parties to resolve certain WHS issues.
- Directing compliance by issuing notices.
- Sanctions, including
- revoking, suspending or cancelling authorisations
- infringement notices
- accepting enforceable undertakings, and
- commencing prosecutions.
Advice and information
Regulators may provide advice and information on WHS rights, duties and responsibilities, and how to comply with the WHS laws in your jurisdiction. This advice can be written or verbal.
If the regulator is satisfied that the duty holder has taken timely and satisfactory steps to remedy a breach the regulator may decide to take no further action.
Inspectors can issue notices where they reasonably believe there is a contravention of the WHS laws that apply in their jurisdiction.
Improvement notices - direct a person to address an identified WHS risk within a specified time. For example, an improvement notice may require an employer to ensure all workers undertake training on how to safely use a piece of equipment.
Prohibition notices - are issued where there is an activity that involves a serious risk to health or safety. They are a direction to stop the activity or change how the activity is done. For example, a prohibition notice may be an order to stop work that is occurring at heights without any safety equipment.
Non-disturbance notices - require a person to preserve a site or prevent the disturbance of a site. Their purpose is to assist an inspector to exercise their compliance powers.
Infringement notices - depending on which state or territory you are in, you could be issued with an on the spot fine for a breach of certain WHS laws. These fines may also be called ‘penalty notices’ or ‘expiation notices’.
A person who is issued a notice must display a copy of the notice, in a prominent place at or near the workplace or part of the workplace where work affected by the notice is taking place. It is an offence not to display the notice.
It is also an offence for a person not to comply with an improvement, prohibition or non-disturbance notice issued to them. If a person fails to comply with a notice, the regulator may apply to the court for an injunction compelling a person to comply with the notice or restraining them from contravening the notice.
An inspector may also take action to ensure a workplace or situation is safe where a duty holder has not complied with a prohibition notice (and recover costs for such action).
An enforceable undertaking is a legally binding agreement between the regulator and a person. It is given in connection to a contravention or alleged contravention of the WHS Act, and is an alternative to having a matter decided through legal proceedings. It is an offence for a person to not comply with an enforceable undertaking.
A person who enters into an enforceable undertaking agrees to complete certain activities. These activities are intended to benefit the workplace, industry or the broader community and can include:
- Stopping the behaviours that led to the alleged contravention.
- Sharing information about the enforceable undertaking with employees.
- Engaging an external safety provider.
- Delivering a presentation to the relevant industry on the WHS incident and lessons learnt.
- Participating in a community education program.
- Creating a safety management system.
Criminal proceedings may be brought for a breach of a WHS offence provision. Generally the regulator will bring the prosecution however it may also be brought by an inspector who has been authorised by the regulator, or the Department of Public Prosecutions. This will vary between jurisdictions.
If no prosecution is brought between 6 to 12 months after the incident has occurred, a person can request the regulator begin a prosecution. For further information on the requirements in your jurisdiction you should contact your WHS regulator.
Category 1, 2 and 3 offences
There are three categories of offences under the model WHS Act for a breach of a health and safety duty.
Category 1 – a duty holder, without reasonable excuse, engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness. This is the most serious category.
Category 2 – a duty holder fails to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness.
Category 3 – a duty holder fails to comply with a health and safety duty.
A court will impose a penalty, such as a fine or in some cases imprisonment, on a person found guilty of one of these offences. The court may also require the offender to:
- publish the offence, its consequence and the penalty (adverse publicity order)
- remedy any matter caused by the offence (restoration order)
- undertake a specific WHS project, and
- undertake training or arrange for workers to undertake training.
There are a number of other offences under the model WHS laws, including failing to notify the regulator of a ‘notifiable incident’, impersonating an inspector, or undertaking work without an authorisation where an authorisation is required (eg operating a forklift without a forklift licence). For further information you should contact your WHS regulator.
SWA is not a regulator and cannot advise you further about compliance and enforcement. If you need help, please contact your state or territory work health and safety regulator.