Breaches of the Legislation

WHS Due Diligence for CEOs, Directors and Managers – NSW edition

Breaches of the Legislation

Main offences and maximum penalties

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.
A penalty unit in NSW is approximately $110

Industrial Manslaughter

Industrial manslaughter may apply if the person (individual or body corporate) engages in conduct that causes the death of a worker or another individual and the person engages in the conduct with gross negligence.

Maximum penalty:
(a) for an individual—imprisonment for 25 years, or
(b) for a body corporate—$20,000,000

Engaging in conduct with gross negligence may be evidenced by the fact the conduct was substantially attributable to:

• (a) inadequate corporate management, control or supervision of the conduct of 1 or more authorised persons, or
• (b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

Offence to get insurance cover for WHS fines and penalties

Section 272A of the Work Health and Safety Act 2011 (NSW) makes it an offence to:

• (a) enter into an insurance contract that covers one’s liability to pay a WHS fine without a reasonable excuse;
• (b) provide insurance or a grant of indemnity for a person for liability for a monetary penalty; or
• (c) benefit from an insurance contract or indemnity that covers one’s liability to pay a WHS fine.

Maximum Penalties:

• Individual
  For breach of a: Approx. $27,500 (250 penalty units).
  For breach of b or c: Approx. $66,000 (607 penalty units)
• Body Corporate:
  For breach of a: Approx. $140,500 (1,250 penalty units.
  For breach of b or c: Approx. $330,000 (3,036 penalty units)

Other Penalties

Certain other duty failures have prescribed penalty amounts in the WHS Act 2011. E.g:

Failure to consult with other duty holders: Maximum penalty: Individual – 243 penalty units (approx $27,000) Body Corporate – 1,214 penalty units (approx $132,000) Failure to consult workers: Maximum penalty: Individual – 243 penalty units (approx $27,000) Body Corporate – 1,214 penalty units (approx $132,000) Failure to notify of a notifiable incident: Maximum penalty: Individual – 121 penalty units (approx $13,000) Body Corporate – 607 penalty units (approx $67,000)

On the spot fines

The regulator may also issue on the spot fines which can be anywhere between $700 – 3,500