Workplace Health & Safety | Newcastle & Central Coast Lawyers

What is Workplace Health and Safety (WHS) and why is it important?

WHS is all about keeping people safe in the workplace. It includes making sure workplaces are free from hazards, providing training and information on how to safely work in a particular environment, and investigating any accidents or incidents that do occur.

Why is it important to adhere to Workplace Health and Safety Laws?

We have seen an increased focus on workplace health and safety investigations and claims made by employees about unsafe workplaces. It is important that employers are prepared with policies and procedures as well as conducting regular training and audits for your staff. If you fail in your duty of care, you could face the prospect of being fined, sued and imprisoned. Penalties for the worst breaches of WHS laws, such as gross negligence, can result in fines of $798,383.28 and/or five years imprisonment for a PCBU or $3,992,492.70 for a Corporation.

Who do work health and safety laws apply to?

Statutory duties are owed under the Work Health & Safety Act 2011 by a broad range of persons including:

• Persons conducting a business or undertaking (PCBU),
• Officers, including company directors, business owners as well as any person who can make, or participate in making, decisions that affect the whole, or a substantial part, of the business of a corporation,
• Workers, and
• Other persons at a workplace.

What are my work health and safety obligations? 

The Work Health & Safety Act 2011 sets out each duty owed by various parties which include:

• A PCBU’s primary duty is to ensure the health and safety of workers,
• An officers’ duty to exercise due diligence to ensure that PCBUs comply with their duties and obligations,
• Workers’ duties to take reasonable care for their own health and safety, the health and safety of other persons, and to comply with reasonable instructions given by a PCBU,
• Other persons’ duties at a workplace including the duty take reasonable care for their own health and safety, the health and safety of other persons, and to comply with reasonable instructions given by a PCBU, and
• If more than one person has the same duty in relation to the same matter, they have a duty to consult each other in relation to the matter.

What is primary duty of care?

A PCBU has the primary duty, so far as is reasonably practicable where the health and safety of workers engaged by the person are directed by the person to ensure that other persons are not put at risk or exposed to health and safety risks. The primary duty extends to:

• the provision and maintenance of a safe and risk-free work environment,
• the provision and maintenance of safe plant and structures,
• the provision and maintenance of safe systems of work, and
• the provision of information, training, instruction and supervision necessary to protect persons from risks.

A PCBU must consult, cooperate and coordinate with other PCBUs with whom they share duties.

Who is an officer and what is their duty to exercise due diligence?

The Work Health & Safety Act 2011 sets out that an officer includes:

• a director or secretary of a company,
• a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the company,
• a person who has influence over decisions that affect the business or undertaking of the company or entity, including financial and administrative decisions,
• a person who can instruct other officers or directors about the business or undertaking of the corporation or entity,
• a liquidator of the business or undertaking, and
• a trustee of the business or undertaking.

Due diligence is the reasonable steps that officers must take. This includes but is not limited to:

• acquiring and keeping up to date with knowledge of WHS matters,
• gaining an understanding of the PCBUs business operations and the associated hazards and risks,
• ensuring the PCBU has available for use, and uses, the appropriate resources and processes to eliminate or minimise risks to health and safety,
• ensuring the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information,
• ensuring the PCBU implements processes for complying with any duty or obligation under the WHS Act, and
• verifying the provision and use of resources and processes required for compliance.

Should I seek legal advice if my workplace/business is involved in an incident?

Yes. If an incident occurs within your workplace, there must be a record of the injury placed on the register of injuries and an investigation as to why the incident occurred. It is advisable at this time to engage a lawyer. 

If the injury is serious or there is a death, you must provide first aid and ensure the worker gets the right care, record it on the register of injuries and report the incident to your insurer and safework NSW within 48 hours. 

Following the notification of the incident, a Safework Inspector will attend the site and commence an investigation. The Inspector will make one of three determinations being, no further action to be taken, issue warnings or notices or to proceed for further investigation. Where a decision has been made to conduct further investigation into the incident, additional information gathering will generally be required. This may include:

• interviewing injured persons when they are ft to do so;
• gathering documentation, information, and records from other parties such as businesses manufacturers or suppliers, NSW Police, NSW Ambulance and health care providers;
• interviewing people who may assist us in better understanding the circumstances leading up to the incident, including witnesses, co-workers, supervisors and business representatives;
• collecting further physical evidence; and
• assistance or advice from technical experts.

What happens if Safework NSW decides to prosecute?

Safework NSW may commence proceedings in cases of breaches of the Work Health & Safety Act 2011 in the Local or District Courts. If you elect to plead not guilty, the matter will be listed for hearing which will include both parties to give evidence. If you elect to plead guilty, or are found guilty after a contested hearing, the matter will be listed for a sentencing hearing. 

Where a conviction is recorded, the Court may impose a fine and other orders such as training orders, adverse publicity orders or Court ordered safety projects. You have 28 days from the date of judgment to appeal the judgment or orders.

In some circumstances, SafeWork NSW may enter into a public and legally binding agreement with you as an alternative to prosecution, which outline specific work health and safety related strategies you will undertake. This is called an enforceable undertaking.

Given the high penalties that can be imposed for breaches of the Work Health & Safety Act 2011 it is advisable to seek legal advice and representation.

What are the penalties for breaches of the Work Health & Safety Act 2011?

Penalties under the Work Health & Safety Act 2011 the courts may impose the following penalties for breaches of the Work Health & Safety Act 2011 in the 2023/24 financial year.

Gross negligence or reckless conduct: 

Failure to: