top of page
Search
  • Writer's pictureGeoff Harrison

Workplace Prosecutions

Updated: Nov 3, 2023



Best Barrister, Best Lawyer, Best Solicitor, Best Criminal Barrister, Criminal Lawyer, Criminal Barrister, Criminal Solicitor, Workplace Prosecutions, WorkCover, Work Cover
Best Barrister, Best Lawyer, Best Solicitor, Best Criminal Barrister, Criminal Solicitor, Criminal Barrister, Criminal Lawyer, Workplace Prosectuion, Work Cover, Workcover









Published by Geoff Harrison | 18 October 2023


Prosecutions under the Work Health and Safety Act 2011 ('the Act') relate to breaches of an employer's duty of care under s19 of the Act. The relevant offence prosecuted under either ss31, 32 or 33 depends upon the seriousness of the breach or category of breach, which is dependent upon the level of risk an individual has been exposed to eg.

  • s31 - relates to conduct with gross negligence or conduct that is reckless as to the risk of death, serious injury or illness.

  • s32 - relates to a breach of duty that exposes an individual to a risk of death, serious injury or illness.

  • s33 - relates to the failure to comply with a duty.

The relevant legislation and penalties are set out below. In the decision of Saunders Civilbuild Pty Ltd v Safework NSW, Walton J sets out the elements of the offence under s32 of the Act at [150].


Other Sources:

Cases:


________________________________________________________________________

Extracted Legislation:


WORK HEALTH AND SAFETY ACT 2011 - SECT 13

Principles that apply to duties


This Subdivision sets out the principles that apply to all duties that persons have under this Act.


Note : The principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation.


WORK HEALTH AND SAFETY ACT 2011 - SECT 14

Duties not transferrable


A duty cannot be transferred to another person.


WORK HEALTH AND SAFETY ACT 2011 - SECT 15

Person may have more than one duty


A person can have more than one duty by virtue of being in more than one class of duty holder.


WORK HEALTH AND SAFETY ACT 2011 - SECT 16

More than one person can have a duty


(1) More than one person can concurrently have the same duty.


(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.


(3) If more than one person has a duty for the same matter, each person--

(a) retains responsibility for the person's duty in relation to the matter, and

(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.


WORK HEALTH AND SAFETY ACT 2011 - SECT 17

Management of risks


A duty imposed on a person to ensure health and safety requires the person--


(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.


WORK HEALTH AND SAFETY ACT 2011 - SECT 19

Primary duty of care


(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of--

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.


(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable--

(a) the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe plant and structures, and

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.


(4) If--

(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and

(b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available,

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.


(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

Note : A self-employed person is also a person conducting a business or undertaking for the purposes of this section.


WORK HEALTH AND SAFETY ACT 2011 - SECT 30

Health and safety duty


In this Division,

"health and safety duty" means a duty imposed under Division 2, 3 or 4 of this Part.


WORK HEALTH AND SAFETY ACT 2011 - SECT 31

Gross negligence or reckless conduct--Category 1


(1) A person commits a Category 1 offence if--

(a) the person has a health and safety duty, and

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and

(c) the person--

(i) engages in the conduct with gross negligence, or

(ii) is reckless as to the risk to an individual of death or serious injury or illness.

Maximum penalty--

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)--3,465 penalty units or 5 years imprisonment or both, or

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking--6,925 penalty units or 5 years imprisonment or both, or

(c) in the case of an offence committed by a body corporate--34,630 penalty units.


(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.


WORK HEALTH AND SAFETY ACT 2011 - SECT 32

Failure to comply with health and safety duty--Category 2


A person commits a Category 2 offence if--


(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty--

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)--1,730 penalty units, or

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking--3,465 penalty units, or

(c) in the case of an offence committed by a body corporate--17,315 penalty units.


WORK HEALTH AND SAFETY ACT 2011 - SECT 33

Failure to comply with health and safety duty--Category 3


A person commits a Category 3 offence if--


(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty.

Maximum penalty--

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)--575 penalty units, or

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking--1,155 penalty units, or

(c) in the case of an offence committed by a body corporate--5,770 penalty units.


WORK HEALTH AND SAFETY ACT 2011 - SECT 34

Exceptions


(1) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.


(2) An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.


(3) However--

(a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27, and

(b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.


________________________________________________________________________



10 views0 comments

Recent Posts

See All

Comments

Rated 0 out of 5 stars.
No ratings yet

Add a rating
bottom of page