Work health and safety – increased activity means employers need to be proactive

There has been a growing trend of enforcement activity within the workplace health and safety (WHS) space across Australia in recent years.

According to data collected by SafeWork Australia, 2022 saw a total of 279 successful WHS prosecutions with aggregate fines totalling over $31M and an average fine of $116,840.

Amongst these 279 prosecutions:

• Victoria had 118 successful prosecutions with an average fine of $49,700.
• New South Wales had 58 successful prosecutions with an average fine of $235,700.
• Queensland had 58 successful prosecutions with an average fine of $56,020.
• Western Australia had 22 successful prosecutions with an average fine of $246,140.
• South Australia had 17 successful prosecutions with an average fine of $161,090.
• Tasmania had 6 successful prosecutions with an average fine of $116,060.

These numbers have increased in 2023, notably across Victoria and New South Wales. Victoria saw a total of 153 successful WHS prosecutions with fines totalling just over $16M.

Further, New South Wales saw a total of 75 successful prosecutions with aggregate fines totalling $16.3M.

Both jurisdictions had a number of matters that were yet to be completed (as at the end of 2023).

WHS regulators are clearly increasing their enforcement activities and 2024 will see even higher rates of successful WHS prosecutions and larger fines imposed, based on the level of activity we are seeing.

It is also important to note the Work Health and Safety Amendment Act 2023 (NSW) that commenced in October 2023 saw a significant increase to maximum penalties across a range of offences under the Work Health and Safety Act 2011 in New South Wales, which suggests the average fine is likely to increase.

Further to this, while the average fine in Victoria is notably lower than that of other states, a current review of Victorian WHS legislation is being undertaken which looks to increase maximum penalties for WHS offences in Victoria.

Readers will also be aware of the Industrial Manslaughter provisions which have been enacted in nearly all jurisdictions.

This increased enforcement activity can be linked to the Australian Work Health and Safety Strategy 2023-2033 published by SafeWork Australia. This strategy represents a national vision for WHS, agreed to by the various state WHS regulators, which outlines targets that aim to achieve national WHS improvements and a goal of reduced worker fatalities, injuries and illnesses. One of the actions focuses on compliance and enforcement across WHS legislation and Regulations.

What does this mean for duty holders?

Duty holders must continue to be vigilant in ensuring that they are taking reasonably practicable steps to comply with their WHS responsibilities. They must be aware of the hazards and risks present at their workplace and the appropriate control measures to eliminate or reduce them. These control measures must ensure, so far as is reasonably practicable, the health and safety of their workers and other persons as to not expose them to a risk of death, serious injury or illness.

The duties extend to Officers of PCBU’s (Persons Conducting a Business or Undertaking) who must exercise due diligence to ensure that the PCBU has the appropriate systems and processes to comply with its safety duties.

Common risks that WHS Regulators are targeting include:

• Psychosocial risks
• Vulnerable workers
• Falls from height
• Falling loads or objects
• Working around moving plant
• Appropriate plant use and adequate machine guarding
• Working on or near live electricity.

Enforcement alternatives

If a duty holder finds themselves faced with an alleged WHS contravention, there are other enforcement options available, such as Enforceable Undertakings (EUs). EUs provide an opportunity for a duty holder to engage with the state safety regulator in developing an agreed proposal to address the relevant breaches and implement significant work health and safety reform at their workplace to prevent future contraventions.

While an EU is a great enforcement alternative, they are becoming increasingly difficult to get. While they are difficult to get, they are not impossible, seen by the recent EU proposal by Fortescue Limited that was accepted by WorkSafe Western Australia in December 2023, the first of its kind under the recent WA harmonised style laws.

Given the current level of enforcement and compliance activity, we strongly urge businesses and their leadership teams to review their systems and processes and satisfy themselves that they are being effectively implemented in the workplace.

John Makris is a partner at Kingston Reid in Sydney, specialising in regulatory workplace health and safety. Salim Daoura is a lawyer at Kingston Reid in Sydney, specialising in workplace safety and employment law.