Key changes to enforcement
This information is designed to help WA organisations and their associated workforces (including volunteers) understand the new Work Health and Safety laws.
The new work health and safety legislation makes several important changes to enforcement practices. These changes are around offences and penalties, health and safety duty offences, WHS undertakings, and non-disturbance notices.
Offences and penalties
Proceedings for an offence against the WHS Act can only be brought by the Regulator or public service officer working in the Department of Mines, Industry Regulation and Safety. Industrial manslaughter offences may only be brought by the Director of Public Prosecutions.
Health and safety duty offences
The WHS Act provides for the following categories of criminal offences for breach of health and safety duties. The maximum penalties are different depending on the category of the offence and whether the offender is an individual (for example, a worker, or a PCBU, an officer (as defined) or a body corporate.
- Industrial manslaughter – applies to those with a WHS duty where their conduct in failing to comply with that duty caused a death. Only PCBUs and their officers can be charged with industrial manslaughter. The prosecution must establish, beyond reasonable doubt, that the person knew their conduct was likely to cause the death of, or serious harm to, an individual and they acted in disregard of that likelihood.
- Category 1 – applies to those with a WHS duty where their conduct in failing to comply with that duty caused serious harm to a person.
- Category 2 – applies to those with a WHS duty where their conduct in failing to comply with that duty exposed a person to the risk of death, injury or harm to health.
- Category 3 – applies to those with a WHS duty who failed to comply with that duty.
A person may give the Regulator an undertaking about a contravention or alleged contravention by the person, other than industrial manslaughter or a Category 1 offence. If accepted, no enforcement proceedings may be brought (or continued) against a person in relation to a matter covered in a WHS undertaking, providing the WHS undertaking has been completely discharged.
Giving a WHS undertaking is not considered to be an admission of guilt. The Regulator must consider any undertaking, taking into account guidelines published on the acceptance of WHS undertakings, and provide the person with a written notice of its decision to accept or reject it (including reasons).
A WHS undertaking takes effect and becomes enforceable when the Regulator’s decision to accept it is given to the person or as specified in the decision.
A non-disturbance notice is a written notice issued by an inspector to a person who manages or controls a workplace. The aim is to preserve a site where a ‘notifiable incident’ has occurred or, in certain instances, prevent disturbance of a particular site (including the operation of plant).
A non-disturbance notice does not prevent any action required to protect a person’s health or safety, help someone who is injured or make the site safe.
A person issued with a non-disturbance notice must comply with the notice unless they have a reasonable excuse for not doing so.
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