Work Health and Safety Act 2011 No 10

Currency

As amended to Statute Law (Miscellaneous Provisions) Act 2019 (No 1). Commenced 1 July 2019. Current to 1 July 2019.

Criminal proceedings

The legislation sets out a range of duties in Divs 2, 3 and 4 of Pt 2 (ss 19–29) known as health and safety duties: s 30. Offences and penalties in respect of the breach of a health and safety duty are set out in Div 5 of Pt 2. Broadly, there are 3 classes of offence, in order of seriousness:

  • Category 1: Reckless conduct by a person with a health and safety duty that exposes a person to a risk of death or serious injury or illness.

  • Category 2: Failure to comply with a health and safety duty that exposes a person to a risk of death or serious injury or illness.

  • Category 3: Failure to comply with a health and safety duty.

Section 229B(1): Proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Local Court, or before the District Court in its summary jurisdiction.

Section 229B(3): Proceedings for a Category 1 offence committed by an individual are to be taken on indictment.

Section 229B(4): The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is $50,000, despite any higher maximum monetary penalty provided in respect of the offence.

Offences to come before the Local Court include:

SECTION DESCRIPTION PENALTY (MAX)
32 Failure to comply with health and safety duty — Category 2 Indiv: $50,000* [$150,000]

Officer: $50,000* [$300,000]

Corp: $50,000* [$1,500,000]

33 Failure to comply with a health and safety duty — Category 3 Indiv: $50,000
Officer: $50,000*
[$100,00]
Corp: $50,000*
[$500,000]
38(1) Failure to immediately notify regulator of notifiable incident Indiv: $10,000
Corp: $50,000
39(1) Failure to keep notifiable incident site undisturbed Indiv: $10,000
Corp: $50,000
43(1) Carry out work when not authorised Indiv: $20,000
Corp: $50,000;

[$100,000]

46 Failure to consult, co-operate and co-ordinate activities Indiv: $20,000
Corp: $50,000*

[$100,000]

155(5) Failure to comply with requirement of regulator Indiv: $10,000
Corp: $50,000
190 Assault, threaten or intimidate inspector Indiv: $50,000 and/or 2 yrs
corp: $50,000*;

[$250,000]

Note:

* Maximum penalty imposed by the Local Court: s 229B(4).

Sentencing for offences

Under Div 2 of Pt 13, various orders are available to the court in the event that a person is convicted or found guilty of an offence under the Act. These include:

  • Adverse publicity orders: Requiring the offender to publicise or give notice of the offence, its consequences, the penalty imposed and anything else relevant: s 236,

  • Orders for restoration: For the offender to remedy a matter caused by the offence, if it is within the offender’s power to do so: s 237,

  • Work health and safety project orders: Requiring the offender to undertake a specified project to improve work health and safety: s 238,

  • Court-ordered WHS undertaking: Proceedings may be adjourned for up to 2 years and the offender released upon giving an undertaking to appear before the court if required and not commit any further offences against the Act during that period: s 239,

  • Injunctions: Requiring the offender to cease contravening the Act: s 240,

  • Training orders: Requiring the offender to undertake a specified course of training: s 241.

Civil proceedings

Section 255 — proceedings for contravention of WHS civil penalty provisions

Under s 255, the Local Court (or the District Court) has jurisdiction to determine contraventions of a WHS civil penalty provisions as identified in the Act. Contravention of a WHS civil penalty provision is not an offence: s 257. A two-year limitation period for the bringing of civil proceedings applies: s 261.

The WHS civil penalty provisions are located in Pt 7, which relates to workplace entry by WHS permit holders (that is, union officials who have applied for and obtained a permit). The regulations may set out further WHS civil penalty provisions.

Under s 258, the rules of evidence and civil procedure rules apply to the hearing of contraventions of WHS civil penalty provisions.

Interaction with criminal proceedings

Section 264 provides that civil proceedings in respect of a WHS civil penalty provision are stayed if criminal proceedings are commenced against a person in respect of substantially the same conduct as alleged in the civil proceedings. Once the person is convicted or found not guilty in the criminal proceedings, the civil proceedings may be resumed or dismissed.

Section 265 provides that the imposition of a penalty against a person in civil proceedings is not a barrier to the commencement of criminal proceedings against the person in respect of substantially the same conduct as that constituting the civil contravention.