When taking enforcement action, our inspectors will explain to the PCBU:
- the reason for taking such action on any notices issued
- any evidence they have based their decision on
- what you should do to comply with any actions
- where you can get guidance on complying
- the date you need to comply by for any notices issued.
The National Compliance and Enforcement Policy (external link) sets out the nationally agreed principles for monitoring and enforcing compliance with the Work Health and Safety Act 2012.
If you fail to meet or breach your duty under this Act, inspectors may use a range of compliance and enforcement measures:
- advice and information
- on-the-spot fines
- seizing things
- enforceable or WHS undertakings.
Advice and information
Inspectors may provide advice and information on what could or should be done to control risks from hazards.
Inspectors may express an opinion or make recommendations about what is required to achieve voluntarily compliance with the legislation. This advice can be written or verbal.
You may choose to take action based on these recommendations or opinions expressed.
If an inspector forms a reasonable belief that sections of the Act have been contravened, are being contravened, or could be contravened, they can issue a written notice.
You must display this notice:
- as soon as possible
- in a prominent position at the affected workplace area (for example, on a noticeboard)
- while in force - it must not intentionally be removed, destroyed, damaged or defaced.
An injunction may be sought from the Magistrates Court to compel compliance with an inspector’s notice or restrain a person from contravening the notice.
A non-disturbance notice requires an immediate action.
It is issued to:
- preserve the site where a notifiable incident has occurred
- prevent the disturbance of a particular site or plant, substance, structure or thing associated with the workplace.
The non-disturbance notice will state:
- the period the non-disturbance notice will apply for (7 days or less)
- the measures to be taken to preserve a site or prevent the disturbance of a site
- the actions that can be taken even though a non-disturbance notice has been issued
- the penalty for contravening the notice.
A non-disturbance notice does not prevent any actions:
- to help injured people or remove a deceased person at the direction of the coroner
- to make the site safe or prevent a further incident
- to assist with a police investigation
- that an inspector has given permission for.
An infringement notice imposes a financial penalty for an offence against the legislation which is readily identifiable. In most cases, it will be issued together with other notices.
Both PCBUs and workers can be issued with an on-the-spot fine.
Examples of offences which can be issued with an on-the-spot fine include failing to:
- comply with an improvement notice
- report a notifiable incident (such as a work-caused serious injury or illness)
- allow health and safety representatives (HSRs) to exercise their powers or functions
- use/wear PPE provided by the PCBU according to the information, training or reasonable instruction being given
- test electrical work
- ensure electrical equipment was de-energized before carrying out electrical work.
Another example includes allowing people to carry out high risk work without seeing written evidence that the worker has the relevant high risk work licence
You must pay the fine in full within 28 days. Failing to do so will result in:
- your wages or funds from a bank account being redirected
- a warrant being issues for the seizure and sale of property
- your driver’s licence and/or vehicle registration being suspended until the debt is satisfied
- registration of the debt for enforcement interstate
Inspectors have specific powers to seize things, such as plant, equipment or substances:
- to prevent loss of evidence or use of a thing where the inspector believes the thing (including a document) is evidence of an offence against the Work Health and Safety Act 2012
- for it to be analysed, tested or examined
- if seizing it is consistent with the purpose of entry to the workplace
- if the inspector believes the thing, workplace or part of the workplace is defective, hazardous or likely to cause an injury.
Inspectors require a search warrant to seize anything from a place that is not a workplace.
In seizing a thing, the inspector can:
- move it from where it was seized
- leave it in place and restrict access to it
- dismantle it (for example, if it’s a structure or plant).
The inspector will issue a receipt for anything seized.
You may apply to WorkSafe Tasmania for the seized thing to be returned.
The decision to bring a prosecution for a breach of the Work Health and Safety Act 2012 is a significant one. The effect of this decision on those impacted (the defendant, injured worker, the family of a deceased worker) is likely to be considerable.
When deciding to initiate or proceed with a prosecution, WorkSafe Tasmania applies guidelines, from the Office of the Director of Public Prosecution. In applying these guidelines, WorkSafe Tasmania requires the highest standard of integrity to be applied to prosecutorial decision-making.
A common set of principles that are generally used in all prosecutorial decision-making are:
- the existence of a prima facie case: is the evidence sufficient to justify the institution of proceedings?
- the reasonable prospect of conviction: is the case likely to succeed when presented in court taking into consideration such matters as the availability, competence and credibility of witnesses and their likely impression on the court, the admissibility of any confession or other evidence, and any lines of defence available to the defendant?
- the public interest test.
The public interest test may include considering:
- the seriousness or otherwise of the alleged offence
- any mitigating or aggravating circumstances
- the characteristics of the obligation holder: prior compliance history and background
- the age of the alleged offence
- the degree of culpability of the alleged offender
- whether the prosecution would be perceived as counter-productive
- the availability and efficacy of any alternatives to prosecution
- the prevalence of the alleged offence and the need for specific and general deterrence
- whether the alleged offence is of considerable public concern.
Time limits for proceedings
For offences under the Work Health and Safety Act 2012, the time permitted for initiating court proceedings is limited. Proceedings for a criminal offence may be brought:
- within two years after the offence first comes to WorkSafe Tasmania’s attention
- within one year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against the Work Health and Safety Act 2012
- within six months of a contravention of an enforceable undertaking (or within six months of WorkSafe Tasmania becoming aware that the undertaking has been contravened)
- if an offence relates to reckless conduct that creates a risk of death or serious injury/illness, at any time afterwards if fresh evidence is discovered that could not reasonably have been discovered within the limitation period.
Proceedings for a contravention of a civil penalty provision may be brought within two years after the regulator first becomes aware of the contravention. Under the Work Health and Safety Act 2012, civil penalties only apply to provisions associated with WHS entry permit holders — discriminatory or coercive conduct.
Enforceable or WHS undertakings
A work health and safety (WHS) undertaking, also known as an enforceable undertaking, operates as an alternative to a court imposed sanction for an alleged contravention of the Work Health and Safety Act 2012.
- It takes the form of a written, legally binding commitment to implement effective WHS initiatives. These initiatives are designed to deliver tangible benefits for workers, industry, and the community as a whole.
- It cannot be accepted for an alleged contravention that is a category 1 offence.
- Only the regulator can accept an enforceable undertaking.