We previously looked at the offences and penalties that are now included in the new Health and Safety at Work Act 2015, now time for enforcement. It is important to focus on undertaking health and safety in a proactive and positive manner so that the concern of breaches is lessened.
A WorkSafe inspector has a number of options under the HSW Act to issue notices, without an incident having taken place. The inspector can issue:
- an improvement notice, requiring a PCBU to take steps to prevent a breach of the legislation or to remedy a current breach, non-compliance with which can result in a fine of up to $250,000 for a company or $50,000 for an individual;
- a prohibition notice, prohibiting the carrying on of an activity that involves a serious risk to a person’s health and safety, where non-compliance can result in a fine of up to $500,000 for a company or $100,000 for an individual; and
- a non-disturbance notice, requiring a site to be preserved, both where a notifiable event has occurred and in other circumstances, where a company can be fined up to $250,000 and an individual up to $50,000 for non-compliance.
For more serious breaches of the legislation, WorkSafe may prosecute a duty holder. Private prosecutions are also an option, although they can only be commenced once WorkSafe has advised that they are not intending to bring a prosecution, or with permission from the court.
Penalties arising from Enforcement
If a prosecution for a breach is successful, the court can impose a range of penalties, including:
- fines, which can vary depending on the actual breach, up to a maximum of $300,000 for an individual, $600,000 for an officer, and $3,000,000 for a PCBU;
- reparation payable to a person injured by a breach;
- costs payable to WorkSafe;
- adverse publicity orders;
- orders for restoration, to require an offender to take specified steps to fix a problem;
- project orders, requiring the offender to undertake a specified project to improve health and safety;
- injunctions, to either stop or require specific conduct of the offender; and
- training orders.
A PCBU cannot obtain insurance for any fine ordered to be paid under the HSW Act, although statutory liability cover remains available for any order of reparation.