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Are You Willing to Go to Jail for Workplace Health and Safety?

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The primary duty of care for a business owner or PCBU (person conducting a business or undertaking) is to ensure, so far as is reasonably practicable, the health and safety of their workers.

With new changes in the WHS legislation, WHS Regulators now have increased enforcement powers in the case of a breach. But what is a breach? A breach occurs when the WHS law is not upheld, exposing people to risk of death or serious injury. Some examples are exposure to excessive noise, uncontrolled working at height, unlicensed operation of a forklift and unguarded machinery to name a few.

The highest penalty in Queensland is Industrial Manslaughter, where a PCBU/ individual negligently causes the death of a worker. This carries a maximum jail term of 20 years and fines for the company of up to $10million (Yes, individual workers can be charged with industrial manslaughter!)

The next penalty is Category 1, where a duty holder recklessly endangers a person to the risk of death or serious injury. Penalties include a $3m fine for the company, $600,000 for the PCBU and 5 years in jail. In addition, individual workers can also be fined up to $300,000 with 5 years in jail.

Category 2 penalty is issued when there is a failure to comply with a duty, exposing people to risk of death or serious injury. Company fines can be as high as $1.5m, PCBU $300,000 and individual workers up to $150,000.

Category 3 penalties are issued when there is a failure to comply with a duty. Company fines can be as high as $500,000, PCBU $100,000 and individual workers up to $50,000.

There are also infringement notices for 240 different breaches of legislation. These can be issued by inspectors to the company, PCBU and/or individuals. Companies can also be issued with on-the-spot fines of between $720 – $3,600 (including not having an up-to-date Chemical Register – $3600 fine). In addition, individuals can be issued with on-the-spot fines between $144 – $720.

The big questions for YOU as a business owner / PCBU are:

  • What is the worst possible scenario for you for safety breaches in your venue?
  • Are you comfortable with accepting that risk in light of your current safety standards and systems?

If you are not confident that your current safety systems and practices will keep you out of jail, it’s time to give Michelle in our Safety & Compliance Team a call.

Michelle Pitman (michelle@dws.net.au | 0401 014 619)

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