For a breach of duties, three main categories of criminal offence penalties are established under the Work Health and Safety Act 2012 (SA) (the WHS Act). They are:
- Category 1 - reckless conduct that exposes an individual to a risk of death or serious injury or illness that is engaged in without reasonable excuse
- Category 2 - failure to comply with a health and safety duty that exposes an individual to a risk of death or serious injury or illness
- Category 3 - failure to comply with a health and safety duty.
This table lists the maximum penalties, set according to the type of duty holder convicted of the offence and the category of offence. Category 1 is the most serious.
|Individual worker or other person at the workplace
||$300,000 or 5 years imprisonment
|Person Conducting a Business or Undertaking (PCBU) or Officer
||$600,000 or 5 years imprisonment
|Body corporate or government body
There is no reverse onus of proof for non-compliance offences. Prosecutors must prove all the relevant elements of the offence, including that the PCBU failed to do what was 'reasonably practicable' to ensure the health and safety of workers, and in the case of a Category 1 offence, whether the conduct was reckless and without reasonable excuse.
Individuals or organisations exempt from prosecution for certain duty of care offences include:
- volunteers (unless they failed to comply with a duty applicable to a worker or other person in the workplace)
- unincorporated associations (however officers or members of an unincorporated association may be prosecuted for a breach of officer's duties)
- Ministers of the Crown and elected Council members.
The WHS Act has a number of legislative objects, including protecting workers and others from harm to their health, safety and welfare, establishing consultation arrangements in the workplace, encouraging constructive participation in health and safety by trade unions and employer associations, and providing an effective enforcement regime.
Reflecting these objectives, the Act contains offences associated with:
SafeWork SA may also issue penalty notices without taking the offender to Court. The fine is imposed via an infringement notice and will vary subject to the offence and whether the offender is an individual, a body corporate or a public sector organisation.