WHS Due Diligence for CEOs, Directors and Managers – TAS edition
Breaches of the Legislation
Main offences and maximum penalties
| Category 1 Reckless Conduct The person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and the person is reckless as to the risk to an individual of death or serious injury or illness |
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| Category 2 Failure to comply with health and safety duty This applies to those with a WHS duty where their conduct in failing to comply with that duty exposed a person to the risk of death, serious injury or illness. |
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| Category 3 Failure to comply with health and safety duty This applies to those with a WHS duty who failed to comply with that duty. (No level of risk resulting from the duty breach specified) |
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Note: An injury does not necessarily have to occur for these penalties to apply.
Penalties can already be triggered by a serious risk that may exist.
Industrial Manslaughter
Industrial manslaughter applies to those with a WHS duty where their conduct in failing to comply with that duty caused a death.
Only PCBUs or officers can be charged with industrial manslaughter. The prosecution must establish, beyond reasonable doubt, that the person is negligent in causing the death of an individual and the person is reckless as to the risk to the individual of death or serious injury or illness.
Maximum penalty:
(a) for an individual—imprisonment for 21 years, or
(b) for a body corporate—$18,000,000
Other Penalties
Certain other duty failures have prescribed penalty amounts in the WHS Act. E.g:
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On the spot fines
The regulator may also issue on the spot fines which can be anywhere between $700 – 3,500