The new Health and Safety at Work Act comes into force on 4 April 2016. It introduces a revamped framework for dealing with health and safety in relation to wherever work is being done – whether you are an employee, contractor, self-employed person or visitor to a workplace.
THE HIGHEST PENALTIES
One of its key features is the significant increase to penalties for breaches of certain duties. Under the previous legislation, the Health and Safety in Employment Act 1992, the highest possible penalty was $500,000 for a failure to take an action required under that Act that was reasonably likely to cause serious harm to another person.
Under the new Act, the level of penalties is divided between those that individuals (i.e. natural persons) may incur, and those that others who are not natural persons (i.e. companies or trusts) may receive. The highest possible penalty is reserved for engaging in reckless conduct that exposes others to risk of death, serious injury or illness. For individuals the result can be up to 5 years’ imprisonment and a $600,000 fine, whereas companies will be liable for a fine of up to $3 million.
OTHER HEALTH AND SAFETY PENALTIES
But that is not all there is to say about penalties. In fact, the new Act lists 38 possible categories of penalties, 22 of which are for more than $100,000 if the breach is committed by a company. (And that is nothing to say of the list of infringement offences, which are lesser penalties that can be issued by Worksafe without the need for the Court to sentence you.)
A review of these penalties gives you a good idea of the types of failures that the new regime is directed to avoid. Clearly, failures to adhere to core duties will attract significant penalties, but failing to engage your workers or trying to subvert the intent of the Act (whether by coercing or disadvantaging others, or attempting to insure against potential penalties under the Act) will also be heavily punished.
A COMPLETE LIST
With that in mind, the following is a table that briefly summarises each of the duties under the new Act that give rise to a penalty. It will be worth your while reviewing the list to understand the types of duties that should be of most concern and any you may want to get more information about.
(Note: the summary of each duty is mine, and in some cases there are key details in the relevant section that will help you understand the scope of the duty better. So always double-check what the Act actually says if you want to dig deeper.)
| Section | Duty | Max penalty for individual | Max penalty for other person (eg, a company) |
| 27 | If you are a PCBU, imposing a levy or charge on a worker (or permit a levy or charge to be imposed on a worker) for anything done, or provided, in relation to health and safety. | $5,000 | $25,000 |
| 29 | Entering into an insurance policy or a contract of insurance that indemnifies or purports to indemnify a person for the person’s liability to pay a fine or infringement fee under the Act. | $50,000 | $250,000 |
| 34 | If you are a PCBU with a duty under the Act, failing to, so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities with all other PCBUs who have a duty in relation to the same matter. | $20,000 | $100,000 |
| 47 | Without reasonable excuse, engaging in conduct that exposes any individual to whom a specified duty is owed to a risk of death or serious injury or serious illness while being reckless as to the risk to an individual of death or serious injury or serious illness. | 5 years imprisonment and $600,000 (if a PCBU or officer of a PCBU); or 5 years imprisonment and $300,000 (if not a PCBU or officer of PCBU) | $3 million |
| 48 | Failing to comply with a specified duty under the Act where such failure exposes an individual to a risk of death or serious injury or serious illness. | $300,000 (if a PCBU or officer of a PCBU); or $150,000 (if not a PCBU or officer of PCBU) | $1.5 million |
| 49 | Failing to comply with a specified duty under the Act. | $100,000 (if a PCBU or officer of a PCBU); or $50,000 (if not a PCBU or officer of PCBU) | $500,000 |
| 55 | Failing to take all reasonable steps to ensure that a site where a notifiable event occurred is not disturbed until authorised by an inspector if you are a PCBU who manages or controls a workplace at which that notifiable event has occurred. | $10,000 | $50,000 |
| 56 | If you are a PCBU, failing to notify Worksafe as soon as possible after becoming aware that a notifiable event arising out of the conduct of your business or undertaking has occurred. | $10,000 | $50,000 |
| 56 | If you are a PCBU, failing to keep a record of each notifiable event arising out of the conduct of your business or undertaking for at least 5 years from the date on which notice of the event is given to Worksafe. | $5,000 | $25,000 |
| 58 | If you are a PCBU, failing to engage with workers who carry out work for your business or undertaking and who are, or are likely to be, directly affected by a matter relating to work health or safety. | $20,000 | $100,000 |
| 61 | If you are a PCBU, failing to have practices that provide reasonable opportunities for workers who carry out work for your business or undertaking to participate effectively in improving work health and safety in your business or undertaking on an ongoing basis. | $20,000 | $100,000 |
| 62 | If you are a PCBU, failing to initiate an election within the presribed timeframe (or refuse to initiate an election within a reasonable time on specified grounds) after a worker notifies you that they wish for 1 or more health and safety representatives to be elected to represent workers who carry out work for your business or undertaking. | $5,000 | $25,000 |
| 66 | If you are a PCBU, failing to decide within two months of receiving a request to establish a health and safety committee for your business or undertaking, whether to establish such a committee. | $5,000 | $25,000 |
| 76 | If you have been issued with a provisional improvement notice failing to, as soon as practicable, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. | $5,000 | $25,000 |
| 78 | If you have been issued with a provisional improvement notice failing to comply with that notice within the time specified in the notice by remedying the contravention or avoiding any likely contravention (as the case may be). | $50,000: | $250,000 |
| 90 | Engaging in adverse conduct (such as dimissing or disadvantaging a worker) for a prohibited health and safety reason (for example, where an employee raises concerns about a health and safety issue). | $100,000 | $500,000 |
| 91 | Requesting, instructing, inducing, encouraging, authorising, or assisting someone to engage in adverse conduct for a prohibited health and safety reason. | $100,000 | $500,000 |
| 92 | Organising or taking, or threatening to organise or take, any action against another person with intent to coerce or induce the other person, or a third person, to perform or not peform a function, power or role under the Act. | $100,000 | $500,000 |
| 92 | Knowingly or recklessly making a false or misleading representation to another person about that other person’s rights or obligations under the Act. | $100,000 | $500,000 |
| 103 | If issued with an improvement notice, failing to comply with the notice within the period specified in the notice. | $50,000: | $250,000 |
| 107 | If issued with an prohition notice, failing to comply with the notice. | $100,000 | $500,000 |
| 110 | If issued with a non-disturbance notice, without reasonable excuse, refusing or failing to comply with that notice. | $50,000 | $250,000 |
| 117 | If issued with a notice, failing to, as soon as practicable, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. | $5,000 | $25,000 |
| 118 | Intentionally removing, destroying, damaging, or defacing a displayed notice while the notice is in force. | $5,000 | $25,000 |
| 126 | Contravening an enforceable undertaking while it is in force. | $50,000 | $250,000 |
| 159 | Failing to comply with a sentencing order. | $50,000 | $250,000 |
| 176 | Failing to give all reasonable assistance to enable an inspector to enter, inspect, examine, inquire, or exercise any other power. | $10,000 | $50,000 |
| 178 | Failing to provide inspector with correct name and residential address. | $10,000 | N/A |
| 179 | Hindering or obstructing an inspector in exercising his or her compliance powers, or causing or attempting to cause any other person to do so. | $10,000 | $50,000 |
| 180 | Impersonating an inspector. | $10,000 | N/A |
| 187 | Hindering or obstructing a health and safety medical practitioner in exercising his or her compliance powers, or causing or attempting to cause any other person to do so. | $10,000 | $50,000 |
| 188 | Impersonating a health and safety medical practitioner. | $10,000 | N/A |
| 204 | Conducting a business or undertaking at a workplace or directing or allowing a worker to carry out work at a workplace if the workplace must first be authorised and it is not yet authorised. | $50,000 | $250,000 |
| 205 | Using plant or a substance if the plant or substance must first be authorised and it is not yet authorised. | $20,000 | $100,000 |
| 206 | Carrying out work if the work must be carried out by, or on behalf of, someone who is authorised and you, or the person on whose behalf you are carrying out the work, are not yet authorised. | $20,000 | $100,000 |
| 207 | Carrying out work if the work must be carried out by, or supervised by, someone with specified qualifications or experience, and you, or the person supervising you, do not have those qualifications or experience. | $20,000 | $100,000 |
| 208 | Failing to comply with the conditions of any authorisation given to you. | $20,000 | $100,000 |
| 209 | Giving false or misleading information when complying with the Act. | $10,000 | $50,000 |
Note: If you cannot see the above table, please go here.