Safe Work Australia develops policy for WHS and workers’ compensation to improve WHS across Australia. Safe Work Australia does not regulate or enforce WHS laws. State and territory governments regulate and enforce the WHS laws in their jurisdiction.
Check the Safe Work Australia website for WHS information and statistics.
Much of Victoria’s Occupational Health & Safety Legislation is aimed at the obligations of employers to their staff. It also sets out however obligations that employees owe whilst at work.
Specifically, whilst at work, employees must take reasonable care for their own health and safety, as well as that of persons who may be affected by their acts or omissions in the workplace. When determining whether an employee is guilty of a breach, the Court looks to what that person knew about all the relevant circumstances.
Further, employees must not intentionally or recklessly interfere with or misuse things in the workplace.
The penalties for employees breaching their obligations are monetary, and can be up to the same amount for an individual charged as an employer, being up to 1800 penalty units, or approximately $285,000.
Prosecutions against employees are less common than those against employers, but do occur. Below are some examples of employees who have been prosecuted for breaching their obligations:
- An electrician was fined $16,000 for instructing a first-year apprentice on four separate occasions to undertake tasks, which should have been performed under direct supervision of a qualified electrician, unsupervised.
- An employee at a Timber & Hardware store jokingly pointed a nail gun at another employee’s foot. The nail gun discharged, nailing his foot to the ground. He was fined $2,000.
- An employee of a retail gas seller lit a cigarette lighter within a short distance of another employee who was filling a gas cylinder. The lighting caused a ‘flash flame’. He was fined $1,000.
If you are charged as an employee, or are an employer who has an employee charged by Worksafe, please contact our office on 03 9034 7351 for a free case consultation.
You can read more about Victoria’s OH&S Legislation here.
A breach to work health and safety law in Queensland occurs either when:
- a person conducting a business or undertaking (PCBU), or a senior officers' conduct, negligently causes the death of a worker
- an action is taken that places a person at risk of injury, illness or death
- steps are not taken to avoid a risky situation from occurring
- there is a failure to comply with regulatory requirements.
If you do not fulfil your duties or obligations, you are in breach of the Work Health and Safety Act 2011 (WHS Act) or the Electrical Safety Act 2002 (ES Act) and could be prosecuted.
Examples of breaches of the WHS Act include:
- exposing workers to the risk of excessive noise
- working at heights where the risk of falling is not controlled
- allowing unlicensed operators to use specified equipment (e.g. forklifts)
- not ensuring that plant is appropriately guarded to eliminate or minimise exposure of workers to moving parts
- failing to have in place safe work method statements for work carried out in or near a confined space
- not notifying Workplace Health and Safety Queensland (WHSQ) when a notifiable serious injury or illness occurs at your workplace.
Examples of breaches of the ES Act include:
- performing unlicensed electrical work
- carrying out electrical work on energised electrical equipment when not permitted
- allowing unlicensed operators to use specified equipment (e.g. forklifts)
- not testing electrical work to ensure it is electrically safe
- not notifying the Office of Industrial Relations of a serious electrical incident (SEI) or dangerous electrical event (DEE).
Categories of offences
There are 4 categories of offences for failing to comply with a health and safety duty under the WHS Act or an electrical safety duty under the ES Act, depending on the degree of seriousness or liability involved.
Industrial manslaughter—the highest penalty under either the WHS Act or the ES Act is for industrial manslaughter where a PCBU, or a senior officer, negligently causes the death of a worker.
Where a PCBU, or senior officer, commits industrial manslaughter, a maximum penalty of 20 years imprisonment for an individual or $10 million for a body corporate applies.
Find more information and definitions of industrial manslaughter.
Category 1—the next highest penalty under either the WHS Act or the ES Act is for a category 1 offence. These are serious breaches where a duty holder recklessly endangers a person to risk of death or serious injury. Offences involving reckless conduct will be prosecuted in the District Court.
- Corporation: up to $3 million
- Individual as a person conducting a business or undertaking (PCBU) or an officer: up to $600,000/5 years jail
- Individual (e.g. a worker): up to $300,000/5 years jail.
Category 2—failure to comply with a health and safety duty or electrical safety duty that exposes a person to risk of death, serious injury or illness. Offences will be prosecuted in the Magistrates Court.
- Corporation: up to $1.5 million
- Individual as a PCBU or an officer: up to $300,000
- Individual (e.g. a worker): up to $150,000.
Category 3—failure to comply with a health and safety duty or electrical safety duty. Offences will be prosecuted in the Magistrates Court.
- Corporation: up to $500,000
- Individual as a PCBU or an officer: up to $100,000
- Individual (e.g. a worker): up to $50,000.
On-the-spot fines
An on-the-spot fine, also known as an infringement notice, is an alternative to prosecuting alleged offenders directly through court.
On-the-spot fines may be issued for work health and safety offences prescribed in the State Penalties Enforcement Regulation 2014.
Both PCBUs and workers can be issued with an on-the-spot fine. Examples of offences which can be issued with a fine include (but are not limited to):
- failure to comply with an improvement notice
- failure to record a notifiable incident (for example a work-caused serious injury or illness)
- allowing persons to carry out high risk work without seeing written evidence that the worker has the relevant high risk work licence
- failure to allow health and safety representative to exercise his/her powers or functions
- failure to use/wear personal protective equipment (PPE) provided by PCBU in accordance with information, training or reasonable instruction given by PCBU (fine issued to worker)
- failure to test electrical work
- failure to ensure electrical equipment was de-energised before carrying out electrical work.
The fine may be paid in full within 28 days or an application can be made for a payment plan if the fine is over $200. Learn more about how to make a payment.
The alleged offender can choose to contest the infringement notice in a Magistrates Court.
Failure to pay
Not paying the fine can lead to further enforcement action including:
- redirection of wages or funds from a bank account
- issuing of a warrant for the seizure and sale of property
- suspension of the debtor's driver's licence until the debt is satisfied
- registration of the debt for enforcement interstate
- issuing an arrest and imprisonment warrant.
Also consider...
- Find out more about work health and safety.
Food businesses must comply with the Act’s food safety laws. Councils have a range of enforcement options, including the ability to issue infringement notices for certain food safety or hygiene offences.
Infringement notices make it easier for councils to administer, investigate and enforce the Act.
Councils also have the authority to focus enforcement efforts on food premises that pose a greater risk to public health because of noncompliance with the Act.
Infringement notices
Offences
Councils can issue infringement notices for certain food safety or hygiene offences. This includes a range of offences regarding:
- failure to store, process, display and transport food
- lack of cleanliness and adequacy of food premises
- failure to clean and sanitise food equipment
- operating food premises without registration or notification
- failure to keep the required records on site.
The offences listed in ‘Infringement offences under the Food Act 1984’are found in Chapter 3 of the Australia New Zealand Food Standards Code.
For further information about offences, go to Safe Food Australia on the Food Standards Australia New Zealand website .
Enforcement options
When faced with an alleged breach of the legislation, council officers must consider what would be a proportionate response to the case at hand. Enforcement options include:
- providing advice or guidance to educate a proprietor of a food premises about how to comply
- issuing a warning
- issuing an infringement notice
- taking other statutory action
- commencing a prosecution.
Council officers have discretion as to whether an infringement notice ought to be issued and may do so when it is considered appropriate in the given circumstances.
The infringement notice gives councils another way to address what are less severe food safety or hygiene problems, in those cases where a warning or education are not considered sufficient.
‘On the spot’ fines
The standard framework for issuing and enforcing infringement notices across Victoria is underpinned by the Infringements Act 2006 and guidelines issued under that Act by the Attorney-General.
Infringement notices are often referred to as ‘on the spot’ fines. However, this can be misleading.
If an infringement notice is issued ‘on the spot’, the person who receives the notice has the right to request that the council review it, where that person has special or exceptional circumstances or considers the notice contrary to law.
The fine does not have to be paid ‘on the spot’.
See the ‘Infringement system’ page on the Department of Justice and Community Safety Victoria website for general information about infringement notices.
Penalties
The penalties for infringements are expressed in terms of penalty units, which are used to describe a fine. Penalty units are set and calculated according to the Monetary Units Act 2004.
Any changes to penalty unit values takes effect on 1 July each year and rates can be found on the Department of Justice and Community Safety Victoria website .