What happens when Work Health & Safety regulators step in?

In 2019, SafeWork Australia reported that there were a total of 114,435 serious workers compensations claims lodged. This number is a stark reminder that even with the most stringent Work Health & Safety (WHS) laws governing Australian workplaces that serious accidents can still happen. Whether they’re a result of human error or WHS measures that aren’t sufficient to protect employees from injury is for the regulator to determine.

When things go wrong in a workplace, WHS regulators may step in to identify and implement processes to resolve issues.

In this article, we will unpack what you can expect in the event a regulator gets steps in to resolve a workplace incident and what this means for your business.

What powers do WHS regulators have?

All WHS regulators are empowered under the model WHS laws to promote and enforce compliance with these laws and issue penalties to businesses that fail to comply with them.

These powers include, but aren’t limited to:

• advising and encouraging compliance with WHS laws;
• helping parties to resolve WHS matters;
• issuing compliance notices;
• accepting an enforceable undertaking; and
• undertaking prosecutions against any non-compliant holder of WHS duties.

Advising and encouraging compliance

It’s within the scope of a regulator’s job to provide either written or verbal advice and information on a company’s rights, duties, and responsibilities when it comes to WHS compliance.

A regulator may determine that no further action is required if a company can provide evidence that appropriate steps have been taken to resolve an issue of non-compliance.

Issuing compliance notices

If a regulator reasonably believes that a company has breached WHS laws, they can issue compliance notices. Depending on the severity of the breach, any of the below notices can be issued:

• Improvement notices: order companies to address a WHS risk that has been identified within a certain timeframe. These notices may require that training be provided on specified WHS matters.
• Infringement notices: are fines that may be issued when a breach of certain WHS laws has been identified.
• Non-disturbance notices: direct the preservation of a site or prevent the disturbance of a site so that a regulator may conduct a compliance audit.
• Prohibition notices: require businesses to stop or make changes to an activity that presents a serious risk to WHS.

Receiving such notices can be a burden on businesses, as they’re required to display a copy of the notice in a prominent place at or near the workplace. Not displaying or failing to comply with a notice is an offence.

If companies ignore the orders in a compliance notice, the regulator can apply for an injunction, whereby a court would compel a person to comply or restrain them from disobeying the notice.

It’s also possible that a regulator may decide to intervene in a workplace to ensure that effective safety measures are adhered to. In this case, the regulator may charge the business for any action taken.

Accepting an enforceable undertaking

An enforceable undertaking is a legally binding agreement between the regulator and a company. This measure acts as an alternative to legal proceedings in WHS matters. It’s an offence for a company not to comply with an enforceable undertaking.

When a company decides to enter into an enforceable undertaking agreement, this means that they agree to fulfil certain requirements or activities. SafeWork Australia provides the following examples for what may be agreed on in an enforceable undertaking:

• stopping the behaviours that led to the alleged contravention;
• sharing information about the enforceable undertaking with employees;
• engaging an external safety provider;
• delivering a presentation to the relevant industry on the WHS incident and lessons learned;
• participating in a community education program; and
• creating a safety management system.

Undertaking prosecutions

For severe WHS offences, the regulator may bring a criminal proceeding against the company in breach within six to 12 months after the incident has occurred. The process may vary between jurisdictions.

A company breaching WHS laws come with difficult and costly consequences. Therefore, it’s important to get it right the first time. Citation Safety’s qualified employment relations team includes experts in WHS requirements across all Australian jurisdictions.

Whether you’re a seasoned professional or starting to manage WHS matters, the team at Citation Safety is here to help. If you have a question about the information in this article, please reach out to us.

For Citation Safety clients, please contact our 24/7 Safety Advice Line.

Not a Citation Safety client? To learn more about how Citation Safety can support your business and streamline its WHS management, reach out to our friendly team here for a confidential, no-obligation chat.