WHS Regulators promote and encourage WHS compliance through a range of methods. They can also impose sanctions for non-compliance.
Every Australian jurisdiction has a WHS regulator to administer WHS laws in their state or territory. 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.
The National Compliance and Enforcement Policy (NCEP) promotes a nationally consistent approach to compliance and enforcement of WHS laws. While WHS regulators have their own policies and procedures, WHS regulators recognise the need for a nationally consistent approach to compliance and enforcement of work health and safety laws.
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.
What regulators do
WHS regulators inspect workplaces, and advise on and enforce laws, including to:
- provide advice about rights, duties and responsibilities, and complying with local laws
- assist PCBUs, workers and others to resolve WHS issues
- ensure compliance by issue notices.
They may also issue sanctions, including:
- revoking, suspending or cancelling authorisations
- giving infringement notices
- accepting enforceable undertakings
- commencing prosecutions.
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 in a specified time.
- Prohibition notices – stop an activity that involves a serious risk to health or safety.
- Non-disturbance notices – require a person to preserve a site or prevent the disturbance of a site.
- Infringement notices – could issue an on the spot fine for breaching certain WHS laws (depending on your state or territory).
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 prosecution. 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 breach
- sharing information about the enforceable undertaking with workers
- engaging an external safety provider
- presenting to the relevant industry on the WHS incident and lessons learnt
- joining 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 after 6 months, but not later than 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 offence
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 offence
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 offence
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
- do training or arrange for workers to do 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
- undertaking work without an authorisation where one is required.