WHS penalties – NSW

Work health and safety (WHS) legislation provides for a range of corrective processes and enforcement options, including provisional improvement notices issued by health and safety representatives (HSRs), improvement and prohibition notices and on-the-spot fines issued by the WHS regulator’s inspectors, and prosecutions that could result in heavy fines or other penalties.

Provisional improvement notices (PINs)


An HSR can issue a PIN to a person if he/she believes the WHS Act is being (or has been) breached, and it is likely that the breach will be repeated or continued. The HSR must first consult with the person responsible for the breach before issuing any notice. The PIN requires the person to rectify the problem and the cause(s) of it.

The notice must be in writing and must specify a date by which the matter must be rectified, which must be at least eight days after the date of the notice. It may also state how the matter should be rectified.

It is an offence not to comply with a PIN, however the person or PCBU can request the regulator to appoint an inspector to review the notice. The inspector can confirm, amend or cancel the PIN.

Inspectors – securing compliance


Inspectors’ powers under the WHS Act include:
  • reviewing disputed PINs
  • helping to resolve WHS issues, including matters referred by HSRs and right of entry disputes 
  • issuing notices requiring compliance with the law
  • investigating breaches of the Act and assisting with the prosecution of offences
  • entering workplaces and conducting inspections (permission of the PCBU or person managing/controlling the workplace is not essential, nor is prior notification of entry).
It is an offence not to provide an inspector with reasonable assistance to perform his/her functions. The possibility of self-incrimination cannot be used as a reason not to supply information to an inspector, provided the inspector warns the person beforehand that this is the situation.

It is an offence to hinder, obstruct, threaten, intimidate, or attempt to impersonate an inspector.

Enforcement measures


Compliance audits and inspections

WorkCover NSW may undertake inspections, investigations or compliance audits, and may issue a letter of caution, warning that a breach of WHS legislation has been detected.

Improvement, prohibition and non-disturbance notices

Inspectors can issue improvement or prohibition notices if they believe breaches of the Act have occurred or are occurring.

An improvement notice requires its recipient to remedy the contravention and/or its cause(s), and prevent contraventions from continuing or re-occurring. The notice may set out methods for remedying the situation and must set a date by which it must occur.

An inspector may issue a prohibition notice if he/she reasonably believes that a situation poses a serious WHS risk due to immediate or imminent exposure to a hazard. The notice generally will apply until the inspector is satisfied that the hazard, its cause(s), or the relevant circumstances have been rectified or removed. Until then, performance of the work, or its performance in a specified way, are prohibited.

A prohibition notice may set out methods for remedying the situation. If it is not complied with, the regulator may take ‘reasonable action’ to remedy the situation after giving written notice.

An inspector may also issue a non-disturbance notice to prevent disturbance (for a specified period) of a site at which a notifiable incident occurred.

Compliance with the requirements of notices may be supported by court injunctions.

On-the-spot fines


Known as penalty notices in NSW, these monetary fines can be issued by inspectors for more minor offences that are not serious enough to warrant prosecution.

Enforceable undertakings


The Act also provides for enforceable ‘WHS undertakings’ as a more positive and less punitive alternative to prosecutions. This means that the PCBU makes a written undertaking to remedy or rectify a breach of the Act, in lieu of court proceedings. However, the person can be prosecuted for breaching an enforceable undertaking.

Prosecutions 


Prosecutions are usually initiated by WorkCover, but in NSW, the secretary of a relevant union may also bring proceedings under certain circumstances. A prosecution may also be started by a duly authorised legal practitioner.

If a person believes a more serious (category 1 or 2) offence has occurred and a prosecution has not started within six months, the person may ask WorkCover to start a prosecution. If WorkCover declines, the person may ask WorkCover to refer the matter to the Director of Public Prosecutions (DPP), who must consider the matter and advise WorkCover. If WorkCover declines to follow the advice of the DPP to bring proceedings, WorkCover must give written reasons for the decision to the person who made the request.

Fines


The WHS Act provides for the following maximum penalties:
 
Category of offence  For corporations

For individual PCBUs or
officers

For individual workers or others

Category 1 offence $3 million $600,000 and/or five years imprisonment $300,000 and/or five years imprisonment
Category 2 offence  $1.5 million $300,000 $150,000
Category 3 offence $500,000 $100,000 $50,000

The WHS Regulation sets out lower penalties for specific offences, eg for failing to keep records of high risk work licences, the penalty for an organisation is $6000.

Categories of offences


The three categories of offences for failing to comply with a WHS duty reflect different degrees of seriousness or culpability.

Category 1 – the most serious breaches, where a duty holder recklessly exposes a person to the risk of death or serious injury.

Category 2 – failure to comply with a health and safety duty that exposes a person to risk of death, serious injury or illness.

Category 3 – failure to comply with a health and safety duty.

Alternative penalty options


In addition to fines, courts can impose non-monetary sanctions on offenders. These include requiring them to publicise the offence (eg in annual reports) or notify specified persons of the offence, its consequences, and the penalties imposed; or to undertake projects to remedy problems caused by their offence, or to improve WHS generally. The courts can also impose court-ordered WHS undertakings, injunctions and training orders.

[Last updated 25 May 2015]