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What are the WHS Penalties for Non-Compliance?

WHS Penalties and Fines
WHS Penalties and Fines

An employer’s responsibilities are outlined with the WHS Act, Regulations and Codes of Practice and are enforced by the state WHS regulators. Breaches are typically enforced and penalties issued after a serious incident however an incident is not required for the regulator to issue an employer with a penalty.

The WHS penalties and effets non-compliance can be far-reaching, from fines and prosecution to staffing and morale issues.  In this article, we will focus primarily on the WHS penalties for WHS non-compliance. These will be categorized as:

  • Regulatory Notices,
  • WHS Offences and
  • Civil Proceedings

Regulatory Notices

Improvement Notice –

This document is issued by a government safety inspector and details a suspected contravention of the Act or Regulations. It contains information about who is required to address the issue and when it needs to be addressed. This is the least serious of the WHS penalties, however, the breach must still be rectified.

Prohibition Notice –

Like an Improvement Notice, this is issued by a government safety inspector and details a suspected contravention of the Act or Regulations, however, a prohibition notice (as the name implies) prohibits the work activity from being completed until the legislative breach is rectified.

Click here to see an example of a regulatory notice.

WHS Offences

Category 1 Offence

A person commits a category 1 offence if:

  • the person has a health and safety duty; and
  • the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and
  • the person is reckless as to the risk to an individual of death or serious injury or illness.

Category 2 Offence

A person commits a category 2 offence if:

  • the person has a health and safety duty; and
  • the person fails to comply with that duty; and
  • the failure exposes an individual to a risk of death or serious injury or illness.

Category 3 Offence

A person commits a category 3 offence if:

  • the person has a health and safety duty; and
  • the person fails to comply with that duty.

Industrial Manslaughter

A person commits industrial manslaughter if:

  • a worker—
    • dies while carrying out work for the business or undertaking; or
    • is injured while carrying out work for the business or undertaking and later dies; and
  • the person’s conduct causes the death of the worker; and
  • the person is negligent about causing the death of the worker by the conduct.

Industrial manslaughter is the most serious of WHS penalties and it carries significant jail time in cases of prosecution.

WHS Penalties for Offences

WHS Penalties Individual Officer / PCBU Body Corporate
Category 1 3,000 penalty units,

5 years imprisonment

6,000 penalty units,

5 years jail imprisonment

30,000 penalty units
Category 2 1,500 penalty units 3,000 penalty units 15,000 penalty units
Category 3 500 penalty units 1,000 penalty units 5,000 penalty units
Industrial Manslaughter 20 years imprisonment NA – see individual NA

Click here to see definitions for Individual, Officer / PCBU and Body Corporate

Click here to see the WHSQ list of prosecutions

Civil Proceedings

WHS penalties can also include civil proceedings can be brought against a business when a worker has been injured or killed and will be contested under “tort” law i.e. the law that deals with negligence. In this case, the court will determine if the damage suffered by the worker was foreseeable, if it caused a loss to the worker and if the business was negligent. The cost of these types of proceedings can often be far greater than any regulatory action with costs of over $1million not uncommon. These costs are made up of compensation payments to injured workers as well as legal fees incurred throughout the litigation process. To see some examples of civil litigation, click the following link.

Click here to see examples of civil proceedings

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