For a breach of duties the main categories of criminal offence penalties under the Work Health and Safety Act 2012 (SA) (the WHS Act) are:
- Category 1 - reckless conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury or illness that is engaged in without reasonable excuse
- Category 2 - failure to comply with a health and safety duty that exposes an individual to a risk of death or serious injury or illness
- Category 3 - failure to comply with a health and safety duty.
|Duty holder||Category 1||Category 2||Category 3|
|Individual worker or other person at the workplace||$300,000 or 5 years imprisonment or both||$150,000||$50,000|
|Person conducting a business or undertaking (PCBU) or officer of a PCBU||$600,000 or 5 years imprisonment or both||$300,000||$100,000|
|Body corporate or government body||$3,000,000||$1,500,000||$500,000|
Prosecutors must prove the relevant elements of the offence and in the case of a Category 1 offence, that the conduct was reckless and without reasonable excuse.
Exemptions under the Act from prosecution for certain duty of care offences are:
- volunteers (unless they failed to comply with a duty applicable to a worker or other person in the workplace)
- unincorporated associations (however officers or members of an unincorporated association may be liable for a failure to comply with a duty)
- Ministers of the Crown and an elected member of a local authority.
The WHS Act has a number of legislative objects, including:
- protecting workers and others from harm to their health, safety and welfare
- establishing consultation arrangements in the workplace
- encouraging constructive participation in health and safety by unions and employer organisations
- providing an effective enforcement regime.
Reflecting these objectives, the Act contains offences associated with:
- notification of workplace incidents to SafeWork SA
- work licensing requirements
- workplace consultation arrangements
- workplace entry by entry permit holders
- failure to comply with powers exercised by SafeWork SA Inspectors
- enforceable undertakings
- misuse of information, including providing false or misleading information and disclosure of confidential information.
We may also issue an expiation notice without taking the offender to Court.