Beginner’s Guide to the Work Health and Safety Act: What Happens If You’re Found In Breach?

Over a series of posts, Pegasus has been unpacking the Work Health and Safety Act 2011. It’s an essential piece of legislation that underpins business operations across Australia.

But 233 pages of legislative words is a lot to digest.

We’ve been seeking to explain the Act and what it means for you and your business – in simple, practical terms to help you better understand your obligations.

Part one looked at what it is, part two your duties, part three how you enact it, and part four how the Act is upheld. In the final post today, we look at what happens when you’re found in breach.

It’s important to remember this post does not constitute legal advice, and shouldn’t be relied upon as such. Compliance with this post doesn’t mean your business will have satisfied all WHS requirements.

Part Five: The Legalities – What Happens If You’re Found In Breach?

In a nutshell

The obligations laid out in the Act aren’t suggestions—they’re requirements. If you’re found to be doing the wrong thing, not only will you be facing a monetary fine, you might even be looking at jail time.

Let’s take a look

You understand that the WHS Act is crucial to follow. You have policies and procedures in place to make sure your workforce remains compliant. Appropriate training is offered and Health and Safety Representatives exist to ‘police’ the situation in your workplace.

So what happens if an incident occurs and you’re found in breach?

Under the Act, the regulators promote and encourage work health and safety compliance, and issue sanctions for non-compliance. This can look like:

• Providing advice on compliance
• Seeking voluntary compliance
• Helping with issue resolution
• Issuing notices
• Sanctions, including:
  • Revoking, suspending or cancelling authorisations
  • Infringement notices
  • Accepting enforceable undertakings, and
  • Commencing prosecutions

More than simply enforcing the Act, the regulators want to help you comply with your duties. They can provide you with specialised information on your rights, duties and responsibilities, alongside showing how you can comply.

When a breach occurs, if the regulator feels the duty holder has taken appropriate steps to remedy the breach, they can decide to not pursue further disciplinary action.

 

Compliance Notices

If an inspector has reason to believe you aren’t complying with the Act, there are a variety of notices you might be issued. Let’s take a look at what they are:

Improvement notices

These are handed out in relation to an identified risk within a specific time frame. An example might be requiring employees to undergo specific training on how to safely use some equipment.

Prohibition notices

These are given when there is a serious risk to health or safety. A prohibition notice is a direction to stop a certain activity, or change how the activity is carried out.

Non-disturbance notices

If you get one of these, you are required to preserve or prevent the disturbance of a site. These notices assist the inspectors in exercising their powers.

Infringement notices

These are ‘on the spot’ fines if you’re found in breach of the Act. Also known as: penalty notices, expiation notices.

What happens if you receive a notice?

Firstly, you must prominently display a copy of it at or near where the work affected by the notice takes place. It is an offence not to display a notice and you face a penalty of $5,000 for the individual, $25,000 for body corporate.

It’s important for everyone to comply with notices handed down by an inspector. Failure to do so may see the inspector applying to court for an injunction.

The safety of the workplace what matters most to the inspector. It’s why their job exists. This means they are ready to take action to make sure your workplace is safe if they believe you haven’t complied with a prohibition notice.

Enforceable undertakings

What’s this? A legally binding agreement between the regulator and a person. It’s an alternative to legal proceedings when a person agrees to complete certain activities set out by the regulator to ensure workplace safety.

These activities can include, but aren’t limited to:

• Stopping behaviours in breach of the Act
• Sharing information about the undertaking with employees
• Engaging an external safety provider
• Demonstrating knowledge of the incident and lessons learn in a presentation
• Participating in a community education program
• Creating a safety management system

An undertaking cannot be accepted for a contravention or alleged contravention that is a Category 1 offence.

What is a Category 1 Offence?

Reckless conduct that exposes an individual (worker, visitor, or volunteer) to a risk of death or serious injury or illness that is engaged in without reasonable excuse.

Penalty for Category 1 Offences:

The maximum penalty is $300,000, five years’ imprisonment or both for an individual; $600,000, five years’ imprisonment or both for a person conducting a business or undertaking (PCBU); or $3,000,000 for a body corporate.

What is a Category 2 Offence?

Failure to comply with a health and safety duty (which we covered in part two) which exposes an individual to a risk of death of serious injury or illness.

Penalty for Category 2 Offences:

The maximum penalty is $150,000 for an individual; $300,000 for a person conducting a business or undertaking (PCBU); or $1,500,000 for a body corporate.

What is a Category 3 Offence?

Failure to comply with a health and safety duty (also covered in part two).

Penalty for Category 3 Offences:

The maximum penalty is $50,000 for an individual; $100,000 for a person conducting a business or undertaking (PCBU); or $500,000 for a body corporate.

What are other offences under the Act?

There are a number of other offences including, but not limited to:

• False and misleading information
• Discriminatory, coercive, and misleading conduct
• Failure to notify regulator of a notifiable incident
• Impersonating an inspector
• Undertaking work without authorisation (when authorisation is needed)

The exception

There are exceptions to every rule. In relation to offences against the WHS Act, volunteers, unincorporated associations, ministers of a state, territory and the Commonwealth, and elected members of local authorities can’t be prosecuted under the model WHS bill.

Okay, now I have a better understanding of the Act. Why should I follow it?

Apart from the legal reasons outlined above, the safety of your employees is critical to the operation of your business. The duties outlined in the Act benefit your business:

• Protecting the health and safety of your workers
• Improving safety outcomes in your workplace
• Reducing compliance costs for your business
• Improving efficiencies for regulatory agencies

What do I do if I need WHS advice?

For specific advice about compliance and enforcement, we strongly recommend contacting your state or territory work health and safety regulator (listed here).

Can Pegasus help my business in relation to the Act?

Yes, we can! A safe workforce is our mandate. We have decades of industry experience in helping our clients (you) stay on the right side of the rules. Pegasus has developed products and services that work in conjunction with your WHS system, policies and procedures. These products were designed to give you peace of mind that you’ve met your obligations, and ensuring all workers are qualified to work on your sites.

Bringing it right back to the beginning, in our experience, all organisations benefit from having risk management procedures and hazard reduction initiatives. It helps you meet your legal requirements under the Act, and assists in making your business run as smoothly as possible.

You can read more about the services we offer here.

Where to start though?

Through a structured approach, the Pegasus WHS Auditing and Consultation team helps you manage your risk and reach compliance, using proven audit tools and stay up-to-date with industry standards and legislation. The Pegasus team is trusted by industry leaders like Woolworths and Schindler Lifts to complete full-service audits during Company Pre-Qualification. We give our valued partners:

• Impartial results measured against an agreed audit tool, allowing for quick response
• Regular and ongoing consultation to make the most of our partnership
• Help to identify areas of concern and guidance to respond with corrective actions and timeframes
• Regular audit and statistical results to see where you stand and where you can improve
• Benchmarks and percentage pass-marks set for a full picture of you (or your contractor’s) safety standards
• A professional audit report with agreed weightings matched to your safety priorities

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It’s been quite the journey as we’ve unpacked the WHS Act and what it means for you and your business. We hope you’ve found this high-level overview helpful. For specific advice, please speak to a legal expert.

Revisit the other posts in this series here:

• Part One
• Part Two
• Part Three
• Part Four