Increased Penalties under the Workplace Health and Safety Act 2011
The Workplace Health and Safety Act 2011 (‘WHS Act’)introduces a variety of changes to the scope of persons who hold health and safety duties and the content of those duties. It is important, however, that employers view changes to these obligations in light of the penalty regime that has been introduced by the WHS Act.
Under the Workplace Health and Safety Act 1995 (‘the old Act’), which will cease to operate once the WHS Act commences on 1 January 2012, maximum penalties range according to the extent of harm which is caused by a breach of duty. The maximum penalty under the old Act for causing multiple deaths - the most serious category of breach - is $1,000,000 for a corporation and $200,000 or 3 years’ imprisonment for an individual. Offences causing bodily harm under the old Act carry a maximum monetary penalty of $75,000 or 1 year imprisonment for individuals and $375,000 for corporations.
The WHS Act, however, changes both the way in which maximum penalties are categorized and the severity of those penalties. Under the WHS Act, there are three categories of offences for failure to comply with a duty. The most serious of these is category 1, which applies where a duty holder recklessly endangers a person to risk of death or serious injury. A breach under this category carries a maximum penalty of $3,000,000 for corporations, $600,000 or 5 years’ jail for a ‘person conducting a business or undertaking’ (‘PCBU’) and $150,000 or five years’ jail for other individuals such as workers. Therefore, reckless endangerment to risk of death under the WHS Act carries a maximum penalty that is essentially three times higher than the maximum for causing multiple deaths under the old Act.
Not only does the WHS Act have much higher maximum penalties but it refers to breaches which cause exposure or risk of harm, rather than actually causing harm. For instance, Category 2 offences under the WHS Act occur where non-compliance with a health and safety duty exposes a person to risk of death, serious injury or illness (with a maximum penalty of $1,500,000 for corporations and up to $300,000 for individuals).
The categories of maximum penalties under the WHS Act make clear that a breach of a health and safety duty is a mistake that neither corporations nor individuals can afford to make, and reinforces the importance of properly preparing for the changes on 1 January 2012.
If you would like to know more about workplace health and safety penalties or about how you can ensure compliance with your obligations under the new laws, please don’t hesitate to contact your Livingstones consultant.
