WHS regulators promote and encourage WHS compliance through a range of methods. They can also direct compliance by compelling a duty holder to remedy any identified breach or sanction a contravening duty holder.
Every Australian jurisdiction has a WHS regulator to administer WHS laws in their state or territory. Regulators may provide advice or guidance on WHS rights, duties and responsibilities, and how to comply with the WHS laws in your jurisdiction. This advice can be written or verbal.
The National Compliance and Enforcement Policy (the Policy) promotes a nationally consistent approach to compliance and enforcement of WHS laws. It does this by setting out the principles which underpin how regulator approach monitoring and enforcing compliance. While WHS regulators have their own policies and procedures, WHS regulators recognise the need for a nationally consistent approach to compliance and enforcement of WHS laws.
Regulators seek to use an effective mix of positive motivators and deterrents to encourage and secure the highest possible levels of compliance with WHS laws. In doing so, there is a need to balance a number of considerations (as outlined in the Policy). This means compliance and enforcement actions will vary in different situations depending on all the specific circumstances.
What regulators do
WHS regulators inspect workplaces, and advise on and enforce laws, including:
- encouraging and assisting compliance – this may include, providing advice and guidance, and publishing enforcement actions and outcomes
- directing compliance – issuing improvement or prohibition notices, and
- sanctioning non-compliance – this may include, regulator sanctions (e.g. infringement notices, revoking, suspending or cancelling authorisations, and enforceable undertakings) or court sanctions (e.g. civil proceedings, injunctions, and prosecutions).
For more information on these activities see the National Compliance and Enforcement Policy .
Compliance and enforcement decision making
Once there is evidence of an alleged breach, regulators consider what enforcement action, if any, should be taken. The most appropriate enforcement tool will depend on all the circumstances. Specific criteria which guide regulators in the use of each compliance tool are outlined in the National Compliance and Enforcement Policy and regulators also consider:
The breach
- Extent of the risk
- Seriousness of the breach
- Actual or potential consequences
- Culpability e.g. how far below acceptable standards conduct falls
- Any aggravating or mitigating circumstances e.g. extent duty holder contributed vs tried to control the risk
- Immediacy of risk
- If the safety issue can be fixed in the inspector’s presence or they can be satisfied with a plan to fix the breach
The duty holder
- Compliance history
- Attitude and willingness to comply
- Likelihood of reoffending
- Authorisation to undertake certain types of work
- Prior notice of the risk e.g. direct to duty holder or via educational or communication materials
The public interest
- Deterrence impact e.g. prevalence of the offence and possible industry impact
- Encouraging better WHS, continuous innovation and improvement, and building capability
- Strategic enforcement priorities
- Community expectation
- Need to support workplace parties, foster co‑operative, consultative relationships and fair and effective workplace representation (this reflects the model WHS Act object s3(1)(b))
Compliance and enforcement tools
Regulators will then start their intervention with the most appropriate tools. The below pyramid demonstrates, in a general sense, the relative volume or proportionate use of the different common tools.
As shown in the pyramid, a number of tools are available to regulators. They can be used alone or in combination. There may be minor differences in the tools available to each regulator and regulators may develop new tools to respond to emerging health and safety risks.
Compliance notices
Inspectors can issue notices where they reasonably believe there is a contravention of the WHS laws that apply in their jurisdiction:
- Improvement notices – direct a person to address an identified WHS risk in a specified time.
- Prohibition notices – stop an activity that involves a serious risk to health or safety.
- Non-disturbance notices – require a person to preserve a site or prevent the disturbance of a site.
- Infringement notices – could issue an on the spot fine for breaching certain WHS laws (depending on your state or territory).
A person who is issued a notice must display a copy of the notice, in a prominent place at or near the workplace or part of the workplace where work affected by the notice is taking place. It is an offence not to display the notice.
It is also an offence for a person not to comply with an improvement, prohibition or non-disturbance notice issued to them. If a person fails to comply with a notice, the regulator may apply to the court for an injunction compelling a person to comply with the notice or restraining them from contravening the notice.
An inspector may also take action to ensure a workplace or situation is safe where a duty holder has not complied with a prohibition notice (and recover costs for such action).
Enforceable undertakings
An enforceable undertaking is a legally binding agreement between the regulator and a person. It is given in connection to a contravention, or alleged contravention, of the WHS Act and is an alternative to prosecution. It is an offence for a person to not comply with an enforceable undertaking.
A person who enters into an enforceable undertaking agrees to complete certain activities. These activities are intended to benefit the workplace, industry or the broader community and can include:
- stopping the behaviours that led to the alleged breach
- sharing information about the enforceable undertaking with workers
- engaging an external safety provider
- presenting to the relevant industry on the WHS incident and lessons learnt
- joining a community education program
- creating a safety management system.
Prosecutions
Criminal proceedings may be brought for an alleged breach of a WHS offence provision. Generally, the regulator will bring the prosecution however, it may also be brought by an inspector who has been authorised by the regulator, or the Department of Public Prosecutions. This will vary between jurisdictions.
If no prosecution is brought after 6 months, but not later than 12 months after the incident has occurred, a person can request the regulator begin a prosecution. For further information on the requirements in your jurisdiction you should contact your WHS regulator.
Industrial manslaughter
The model WHS Act enables jurisdictions to include an offence of industrial manslaughter. The offence is in addition to the Category 1 offence (set out below) and is intended to address conduct by a person that represents a gross deviation from the reasonable standard of care resulting in a work-related fatality.
Category 1, 2 and 3 offences
There are three categories of offences under the model WHS Act for a breach of a health and safety duty.
Category 1 offence
A duty holder, without reasonable excuse, engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness. This is the most serious category.
Category 2 offence
A duty holder fails to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness.
Category 3 offence
A duty holder fails to comply with a health and safety duty.
A court will impose a penalty, such as a fine or in some cases imprisonment, on a person found guilty of one of these offences. The court may also require the offender to:
- publish the offence, its consequence and the penalty (adverse publicity order)
- remedy any matter caused by the offence (restoration order)
- undertake a specific WHS project
- do training or arrange for workers to do training.
Other offences
There are a number of other offences under the model WHS laws including:
- failing to notify the regulator of a notifiable incident
- impersonating an inspector
- undertaking work without an authorisation where one is required.