The Australia WHS Act: Implications of Non-Compliance
Workplace safety is critical for high-risk industries such as oil and gas, chemicals, mining, manufacturing, and construction. In Australia, the Work Health and Safety Act 2011 (WHS Act) establishes the legal framework for safeguarding workers and others from harm. Businesses must comply with the WHS Act—this is a legal obligation, not an option. Failing to do so can have severe consequences for both people and the business.
WHO MUST COMPLY WITH THE WHS ACT?
The WHS Act applies broadly across all workplaces. The primary duty of care is placed on the Person Conducting a Business or Undertaking (PCBU). This includes companies, business owners, and self-employed individuals. PCBUs must identify hazards, assess and manage risks, and implement safety controls to ensure the health and safety of workers and others affected by their operations.
Company officers, including directors and senior executives, have an additional “due diligence” duty to ensure the organisation meets its WHS obligations. Workers, contractors, and visitors are also required to take reasonable care of their own and others’ safety, follow safety instructions, and report hazards.
KEY DUTIES AND RESPONSIBILITIES
PCBU Responsibilities:
- Provide and maintain a safe working environment through appropriate systems, policies, and training.
- Consult with workers on health and safety matters, enabling participation in decision-making.
- Monitor workplace conditions and workers’ health to prevent incidents.
Worker Responsibilities:
- Take reasonable care for their own safety and that of others.
- Comply with lawful and reasonable safety instructions, policies, and procedures.
- Report hazards and unsafe conditions.
CONSEQUENCES OF IGNORING THE WHS ACT
Failure to comply with the WHS Act exposes businesses and individuals to penalties, including substantial fines and possible imprisonment.
Fines and Penalties
Minor breaches may result in on-the-spot fines. As an example, fines may start from approximately $360 for individuals and $1,090 for corporations (varying by state and nature of the offence).
For major contraventions, maximum penalties are much higher:
- Industrial manslaughter: up to $18 million for corporations, and up to 20 years imprisonment for individuals.
- Category 1 offence (reckless conduct): up to $11.5 million for a corporation and $1 million or up to 5 years imprisonment for individuals.
LEGAL PROCEEDINGS AND ENFORCEMENT
Serious breaches may trigger regulatory investigations and legal action. State and territory WHS regulators (such as SafeWork NSW or WorkSafe Victoria) have the authority to enter workplaces, conduct investigations, issue notices, and prosecute offences in court. Offending businesses may face improvement notices, prohibition notices, fines, or court summons leading to prosecution.
Beyond Financial Penalties: Business and Reputational Risks
Non-compliance with WHS law frequently results in operational disruptions—such as mandatory shutdowns during investigations—loss of contracts, increased insurance premiums, and costly litigation. Major incidents attract public and media attention, which can irreparably damage reputation, impact workforce morale, and hinder recruitment and retention.
REAL-WORLD EXAMPLE
In 2021, a tragic fatality occurred at a Somerton, Victoria worksite when a subcontractor was struck and killed by a forklift. The investigation by WorkSafe found the company, LH Holding Management Pty Ltd, had failed to enforce basic safety procedures. This led to Victoria’s first workplace manslaughter conviction, with the company fined $1.3 million and the sole director placed under a two-year Community Correction Order.
REGULATORY INVESTIGATION PROCESS
WHS breaches are handled by state and territory WHS regulators, like SafeWork NSW or WorkSafe Victoria. These regulators have the power to investigate workplaces, issue fines, and take legal action.
WHS breaches are typically identified through regulatory inspections or after notifiable incidents.
Inspectors may:
- Visit and assess the workplace;
- Interview personnel;
- Secure evidence;
- Issue improvement or prohibition notices;
- Impose fines or initiate prosecution for severe breaches.
PRACTICAL COMPLIANCE MEASURES
To ensure compliance and protect people, businesses should adopt the following actions:
- Proactively identify hazards: Conduct frequent workplace inspections to identify potential hazards, risk assessments, and implement controls.
- Invest in training: Ensure all personnel, including contractors, receive relevant safety training and understand procedures.
- Conduct internal audits: Regular reviews help verify that WHS systems remain effective and any gaps are addressed.
- Access reliable resources: Use guides and tools supplied by Safe Work Australia and your local WHS authority to remain up to date with requirements.
A PROACTIVE APPROACH TO WORKPLACE SAFETY
Failure to comply with the WHS Act presents genuine legal, financial, and reputational risks. To support your compliance efforts, refer to our downloadable WHS compliance checklist.
FREQUENTLY ASKED QUESTIONS
What are the penalties for not following WHS procedures?
Penalties range from on-the-spot fines for minor breaches to significant fines and imprisonment for serious offences. Non-compliance can also result in business disruptions, reputational damage, increased insurance costs, and possible closure.
What are the consequences for breaching WHS legislation in Australia?
Breaching the WHS Act may result in fines up to $18 million for corporations, personal fines or imprisonment for individuals, and additional civil litigation.
Are only employees required to comply with the WHS Act?
No. The WHS Act places duties on PCBUs (businesses), officers (executives and directors), workers, contractors, and others at the workplace. Everyone has a role in maintaining a safe work environment.
What risks beyond legal penalties arise from non-compliance?
Beyond legal consequences, non-compliance may cause lost business opportunities, increased insurance costs, employee turnover, and irreparable reputational harm. Civil damages claims from injured parties are also possible.
