Work health and safety (WHS) legislation provides for a range of corrective processes and enforcement options, including provisional improvement notices issued by health and safety representatives (HSRs), improvement and prohibition notices and on-the-spot fines issued by SafeWork SA’s inspectors, and prosecutions that could result in heavy fines or other penalties.
Provisional improvement notices (PINs)
An HSR can issue a PIN to a person (either the person conducting the business or undertaking – PCBU – or another person) if the HSR believes the workplace health and safety Act is being (or has been) breached and the breach will likely be repeated or continued. The HSR must first consult with the person responsible for the breach before issuing any notice. The PIN requires the person to rectify the problem and the cause(s) of it.
The notice must be in writing and specify a date by which the matter must be rectified, which must be at least eight days after the date of the notice. It may also state how the matter should be rectified.
It is an offence not to comply with a PIN. However, the person or PCBU can request the regulator to appoint an inspector to review the notice. The inspector can confirm, amend or cancel the PIN.
Inspectors – securing compliance
Inspectors’ powers under the WHS Act include:
- reviewing disputed PINs
- helping to resolve WHS issues, including matters referred by HSRs and right of entry disputes
- issuing notices requiring compliance with the law
- investigating breaches of the Act and assisting with the prosecution of offences
- entering workplaces and conducting inspections (permission of the PCBU or person managing/controlling the workplace is not essential, nor is a prior notification of entry).
It is an offence to hinder, obstruct, threaten, intimidate, or attempt to impersonate an inspector or to fail to provide an inspector with reasonable assistance to perform their functions.
Enforcement measures
Compliance audits and inspections
SafeWork SA may undertake inspections, investigations or compliance audits and may issue a letter of caution, warning that a breach of WHS legislation has been detected.
Improvement, prohibition and non-disturbance notices
Inspectors can issue improvement or prohibition notices if they believe breaches of the Act have occurred or are occurring.
An improvement notice requires its recipient to remedy the contravention and/or its cause(s) and prevent contraventions from continuing or re-occurring. The notice may set out methods for remedying the situation and set a date by which it must occur.
An inspector may issue a prohibition notice if they reasonably believe a situation poses a serious WHS risk due to immediate or imminent exposure to a hazard. The notice will generally apply until the inspector is satisfied that the hazard, cause(s), or relevant circumstances have been rectified or removed. Until then, the performance of the work, or its performance in a specified way, are prohibited.
A prohibition notice set out methods for remedying the situation. If it is not complied with, the regulator may take ‘reasonable action’ to remedy the situation after written notice.
An inspector may also issue a non-disturbance notice to prevent disturbance (for a specified period) of a site at which a notifiable incident occurred.
Court injunctions may support compliance with the requirements of notices.
On-the-spot fines
Inspectors can issue on-the-spot fines (also known as infringement notices) for certain offences prescribed in the WHS Regulations (SA). Infringement notices are issued for more minor offences that are not serious enough to warrant prosecution.
Enforceable undertakings
The Act also provides enforceable ‘WHS undertakings’ as a more positive and less punitive alternative to prosecutions. This means that the PCBU makes a written undertaking to remedy or rectify a breach of the Act instead of court proceedings. However, the person can be prosecuted for breaching an enforceable undertaking.
Prosecutions
In SA, prosecutions are usually initiated by the WHS regulator. Still, a person may ask the regulator to start a prosecution if they believe a more serious (category 1 or 2) offence has occurred. The regulator has not started a prosecution within six months. If the regulator declines to prosecute, the person may ask the regulator to refer the matter to the Director of Public Prosecutions (DPP), who must consider and advise the regulator. If the regulator declines to follow the advice of the DPP to bring proceedings, the regulator must give written reasons for the decision to the person who made the request.
Fines
The WHS Act provides for the following maximum penalties:
| Category of offence | For corporations | For individual PCBUs or officers | For individual workers or others |
| Category 1 offence | $3 million | $600,000 and/or five years imprisonment | $300,000 and/or five years imprisonment |
| Category 2 offence | $1.5 million | $300,000 | $150,000 |
| Category 3 offence | $500,000 | $100,000 | $50,000 |
The Workplace Health and Safety Regulations set out lower penalties for specific offences, e.g. for failing to keep records of high-risk work licences, the penalty for an organisation is $6000.
Categories of offences
The three categories of offences for failing to comply with a WHS duty reflect different degrees of seriousness or culpability.
Category 1 – the most serious breaches, where a duty holder recklessly exposes a person to the risk of death or serious injury.
Category 2 – failure to comply with a health and safety duty that exposes a person to the risk of death, serious injury or illness.
Category 3 – failure to comply with a health and safety duty.
Alternative penalty options
In addition to fines, courts can impose non-monetary sanctions on offenders. These include requiring them to publicise the offence (e.g. in annual reports) or notify specified persons of the offence, its consequences, and the penalties imposed. Alternatively, they may be required to undertake projects to remedy problems caused by their offence or improve WHS generally. The courts can also impose court-ordered WHS undertakings, injunctions and training orders.
Industrial manslaughter
A Bill to make industrial manslaughter a criminal offence in SA was introduced to parliament on 6 July 2023. If convicted, a person could face a maximum 20-year jail term, or a company an $18 million fine.
