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WHS legislation: Understanding the ramifications of noncompliance

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Maintaining compliance with industry standards and regulations has always been an important responsibility for Australian businesses. And in 2011, when Safe Work Australia developed the model Work Health and Safety Act (WHS Act), that challenge became all the more critical.

 

Today, organisations of all shapes and sizes are still coming to terms with the legislation and identifying the best way to ensure they are meeting all the requirements. From healthcare providers to government offices to construction companies, all employers are required by the WHS Act to maintain safe work practices and safeguard employees from injury and risk in the workplace.

Achieving that goal is hard enough as it is, but relying on outdated, manual or paper-based procedures is even harder. In this guide, we’ll walk you through your WHS obligations and how you might be impacted if you’re found to be non-compliant.

The WHS Act: An overview of Workplace Health and Safety
Before 2011, Australian health and safety standards were fragmented. Known at the time as Occupational Health and Safety (OHS), laws were determined on a state-by-state basis.

The WHS Act harmonised laws under a single nationwide set of guidelines. Although legislation still varies by some degree in each state, the WHS Act established the model WHS laws on which they’re created.

The primary purpose of WHS legislation is to ensure that all Australian businesses are actively minimising any workplace risk that could jeopardise the health and safety of anyone on the premises.

However, the responsibility of maintaining WHS compliance falls on everybody’s shoulders — employer and employee included. According to the Australian government, the WHS obligations of an employer include the following:

Providing a safe work environment.
Performing regular maintenance of critical equipment.
Providing safety training, supervision and personal protective equipment.
Promoting safe work practices and procedures wherever possible.
Maintaining adequate working conditions and safe facilities.
Monitoring the health of workers and conditions of the workplace.

Employees, on the other hand, are subject to the following requirements:

Taking care of one’s own health and safety.
Considering the health and safety of others.
Following WHS information and instructions as provided by the employer.
Adhering to the workplace’s WHS policy and procedures.

The WHS procedures outlined above are just a sample of the many responsibilities and expectations that help maintain compliance with WHS legislation.

The ramifications of WHS noncompliance
It’s often easier to navigate WHS compliance when you know what not to do in the workplace. Although specific violations will vary from industry to industry, here are a few examples of actions that might put your business in breach of your WHS obligations:

Exposing workers to excessive amounts of noise.
Working at heights where the risk of falling isn’t controlled.
Unlicensed operation of dangerous equipment, such as a forklift or crane.
Not taking steps to remedy or fix a potential workplace hazard.
Not reporting a serious injury or illness that occurs in the workplace.

These mistakes are typically easier to make when you’re relying on pen-and-paper recordkeeping and basic spreadsheets. Why? Because it’s more difficult to disseminate WHS information, report a potential hazard, track inspections, log training or manage documentation. And if that’s the case, you may be in breach of the WHS Act. Even worse, you could be putting lives at risk.

When an organisation violates health and safety laws, they trigger a series of actions and potential penalties that may leave long-lasting consequences on the business, including:

Provisional improvement notices (PINs)
When a health and safety representative issues a PIN, they’re essentially requiring the alleged offender to rectify the risk in a given amount of time. Choosing not to comply with a PIN is itself a breach of WHS legislation.

Prohibition notices
An inspector can issue a prohibition notice when they reasonably believe WHS laws are being violated. This type of enforcement action allows an inspector to forcibly stop a specific activity that is posing a serious risk to health and safety.

On-the-spot fines
Also referred to as an infringement notice, inspectors can impose an on-the-spot fine if they determine an alleged offence isn’t serious enough to warrant prosecution. Both employers and employees are subject to spot fines, and the fine must be paid in full within a designated period. In the state of Queensland, for example, inspectors may issue a fine if an improvement notice is ignored, if an incident isn’t reported or if a health and safety representative isn’t allowed to exercise their powers in the workplace.


Failure to pay can result in a redirection of wages or funds, suspension of driver’s licence or even arrest and imprisonment.

Enforceable undertakings
Sometimes an enforcement action is a legally binding agreement between a regulator and an individual — an enforceable undertaking. In this case, an individual agrees to complete certain activities, such as stopping behaviours that caused their breach of compliance or engaging an external safety provider. Failure to comply with an undertaking may result in prosecution.

Alternative consequences
There are also a number of other ramifications you may face for violating WHS legislation, such as court-imposed training orders, injunctions or the public disclosure of an offence.

In any case, breaching the WHS Act can have lingering consequences on you or your business, including:

Substantial legal fees.
Rising insurance premiums.
Worker’s compensation claims.
Work stoppages and loss of productivity.
Worker absenteeism.
Reputational damage.
Low employee morale.

And that’s just a small fraction of the penalties applicable under WHS legislation. To truly understand the penalty of non-compliance, it’s important to comprehend how offences are categorised.

The 4 types of WHS offences
Simply put, each category corresponds to a specific type of offence. However, the applicable penalty for each alleged offence differs depending on the stakeholder involved.

In other words, the penalty delivered to a worker is not the same as one that would be applied to an employer, and neither would be the same as that pertaining to a body corporate. Let’s break each category down, starting with the most serious down to the least.

Industrial manslaughter: The most serious penalty under the WHS Act is applied to an incident wherein a person conducting a business or undertaking (PCBU) negligently causes the death of a worker. The maximum penalty, according to the Work Health and Safety Amendment Bill 2021, is 20 years imprisonment for an individual, or a $10 million fine for a body corporate.


Category 1 - Reckless conduct: The next highest penalty under WHS legislation is for a category 1 offence. Such a breach occurs when a duty holder recklessly endangers a person to the risk of death or serious injury. Incidents involving reckless conduct can result in a $300,000 fine, five years imprisonment for the alleged offender, or both. If the category 1 offence is committed by a PCBU, the maximum penalty is $600,000, five years imprisonment or both. The maximum fine paid by a body corporate is $3 million.


Category 2 - Failure to comply with health and safety duty: A category 2 offence occurs when a duty holder fails to comply with their WHS obligations and exposes an individual to a risk of death or serious injury. Under the WHS Act, the maximum fine applied to an individual is $150,000. If the alleged offender is a senior officer or PCBU, the maximum penalty is $3000,000, whereas the maximum fine for a body corporate is $1.5 million.


Category 3 - Failure to comply with health and safety duty: Category 3 offences differ from category 2 in that the alleged offence does not create a risk of death or serious injury. Individual employees may face fines up to $50,000. PCBUs may be fined twice that, whereas a body corporate may pay a maximum fine of $500,000.

Supporting health and safety with a digital solution
If there’s anything that each category of offence has in common, it’s that all are avoidable with the right WHS management system. But if you’re still using manual processes and paper methods, it’s only a matter of time before something falls through the cracks.

A digital approach to WHS is simpler, faster and more effective. With a cloud-based HSEQ management platform, you can streamline your procedures and make compliance a breeze. How? It’s all empowered by a few key advantages:

On-the-spot risk detection: Your employees don’t always sit behind desks, and neither does a potential workplace hazard. Mobile deployments empower workers to spot risk on the job site, streamline reporting and accelerate mitigation efforts tremendously.


Proactive incident management: With the ability to file a report, log a risk, or check off a list of WHS activities, your workers can go from being reactive to having a more proactive approach. No longer do they need to wait around to respond to risk — they can seek it out and eliminate it efficiently.


Simplified reporting: Documentation is key to compliance. By digitising your procedures you inherently create a digital paper trail that can serve as proof of compliance during the reporting process. And with all of your high-quality health and safety data in one comprehensive dashboard, you can make better decisions about the well-being of your workplace and easily navigate laws as they change.

That’s what a cloud-based HSEQ management system like Lucidity can provide your business. But that’s not where it stops: Our 20-plus years of experience in the health and safety industry have helped us build a solution with the tools you need to ensure your work environment is as safe and compliant as can be.

With hundreds of features, Lucidity can provide a solution to your WHS problems. Better yet, we’ll make sure you’re set up to maximise the power of the platform according to your needs.

 

To learn more about how Lucidity can help you manage safety in your workplace, contact our team or schedule a free demo today.