Reading time: 6 minutes

As an employer, you have a duty under the model work health and safety (WHS) laws to provide a safe workplace for your employees, contractors and visitors. Each state and territory in Australia has a local workplace health and safety body that regulates and enforces compliance with WHS laws. These bodies investigate WHS complaints. Furthermore, they can issue a monetary penalty or prosecute through the courts for breaches of work health and safety duties. Finally, they also appoint inspectors who can visit workplaces to provide information and advice about work health and safety requirements and monitor compliance with laws. This article explains the work health and safety law penalties and outlines a recent case example in New South Wales.

Fines Involved in Breaches

The model WHS laws include 3 categories of offences. Furthermore, the penalties differ depending on the category of offence and whether the person being charged is a PCBU (person conducting a business or undertaking), individual or body corporate. For instance, a body corporate will be subject to increased penalties.

Category

Offence

Maximum penalties

1

(a) the person has a health and safety duty; 

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to a risk of death or serious injury or illness; and

(c) the person is reckless as to the risk of death or serious injury or illness.

Individual (PCBU or officer of a PCBU): $600,000 or 5 years imprisonment or both

Individual (not a PCBU or officer of a PCBU): $300,000 or 5 years imprisonment or both

Body corporate: $3,000,000

2

(a) the person has a health and safety duty; 

(b) the person fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

Individual (PCBU or officer of a PCBU): $300,000

Individual (not a PCBU or officer of a PCBU): $150,000

Body corporate: $1,500,000

3

(a) the person has a health and safety duty; and

(b) the person fails to comply with that duty.

Individual (PCBU or officer of a PCBU): $100,000

Individual (not a PCBU or officer of a PCBU): $50,000

Body corporate: $500,000

All Australian states and territories have implemented the model WHS laws, except for Victoria. However, maximum penalties in the state or territory WHS laws may differ from the model WHS laws.

Employment Essentials Factsheet

As an employer, understand your essential employment obligations with this free LegalVision factsheet.

Download Now

Case Study – Safe Work (NSW) v WGA Pty Ltd

WGA Pty Ltd (WGA), a window glass company in New South Wales, was fined $1 million in 2017 for contravening WHS laws. In this case, a contractor of WGA was working on a window ledge at a residential-apartment construction site. He subsequently sustained an electric shock from nearby power lines and suffered burns to 30% of his body. Before the incident, a SafeWork NSW inspector and Sydney Trains had provided advice to WGA about working around the power lines. However, WGA did not follow the advice or take the necessary steps to protect the worker. Thus, they were subject to hefty fines.

Other Enforcement Options/Mechanisms

The model WHS laws also include other enforcement options, such as improvement notices, prohibition notices and non-disturbance notices.

Improvement Notices

An inspector can issue an improvement notice if there is a reasonable belief that you:

  • are contravening a provision of the WHS laws; or
  • have contravened a provision of the WHS laws and the contravention will likely continue or be repeated.

Furthermore, the improvement notice may require you to:

  • remedy the contravention;
  • prevent a likely contravention from occurring; or
  • remedy the things or operations causing the contravention or likely contravention.

However, if you fail to comply with an improvement notice within the specified period, the maximum penalty is $50,000 for an individual and $250,000 for a body corporate.

Prohibition Notices

In addition, an inspector may issue a prohibition notice if they reasonably believe that an activity:

  • is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person arising from immediate or imminent exposure to a hazard; or
  • may occur at a workplace that will involve a serious risk to the health or safety of a person arising from immediate or imminent exposure to a hazard.

Consequently, the prohibition notice may prohibit you from carrying on the activity until the inspector is satisfied that you have remedied the matters that give or will give rise to the risk.

Likewise, if you fail to comply with a prohibition notice, the maximum penalty is $100,000 for an individual and $500,000 for a body corporate.

Non-Disturbance Notices

Finally, an inspector may issue a non-disturbance notice if they reasonably believe that it is necessary to facilitate the exercise of their compliance powers.

A non-disturbance notice may require you to:

  • preserve the site at which a notifiable incident has occurred for a specified period; or
  • prevent the disturbance of a particular site for a specified period.

However, a non-disturbance notice does not prevent any action:

  • to assist an injured person;
  • to remove a deceased person;
  • that is essential to make the site safe or to prevent a further incident;
  • that is associated with a police investigation; or
  • for which an inspector has given permission.

Nevertheless, if you fail to comply with a non-disturbance notice without a reasonable excuse, the maximum penalty is $50,000 for an individual and $250,000 for a body corporate.

Key Takeaways

In conclusion, you have obligations to ensure the health and safety of your workers and visitors to your workplace. Furthermore, workplace health and safety bodies regulate and investigate breaches of WHS laws. Therefore, if you fail to comply with your WHS duties, you are at risk of being issued fines, improvement notices, prohibition notices and non-disturbance notices. 

If you need help with your WHS duties, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

What are the maximum penalties under the model WHS laws for a breach of WHS duties?

The maximum penalties for a breach of the model WHS laws depend on the category of the offence. For example, the maximum penalties for a category 1 offence are currently $600,000 or 5 years imprisonment or both for an individual or $3,000,000 for a body corporate.

What other enforcement options are available to workplace health and safety bodies?

The model WHS laws include other enforcement options such as improvement notices, prohibition notices and non-disturbance notices. Failure to comply with these notices may result in a fine.

Webinars

Everything You Need to Know about SaaS Agreements

Thursday 7 April | 11:00 - 11:45am

Online
Understand which contracts will protect your SaaS contract from risk, and how. Register for free today.
Register Now

What to Consider When Buying a Tech or Online Business

Wednesday 13 April | 11:00 - 11:45am

Online
Learn how to get the best deal when buying a tech or online business. Register for our free webinar today.
Register Now

Corporate Governance 101: Responsibilities for New Directors

Wednesday 27 April | 11:00 - 11:45am

Online
If you are a new company director, join our free webinar to understand your legal compliance obligations. Register today.
Register Now

Rogue Directors and Business Divorces: How to Remove a Director

Thursday 28 April | 11:00 - 11:45am

Online
Removing a board director is not simple. Join our free webinar to learn how to handle rogue directors. Register today.
Register Now

Employment Essentials for Tech Businesses

Thursday 5 May | 11:00 - 11:45am

Online
Protect your tech business and your employees by understanding your employment legal obligations. Register for our free webinar today.
Register Now

How to Protect and Enforce Your Trade Mark

Wednesday 11 May | 11:00 - 11:45am

Online
Protect your business’ brand from copycats and competitors. Register for this free webinar to learn how.
Register Now

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Online
Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer