Workplace Health and Safety FAQ

A person conducting a business or undertaking. It includes corporations, sole traders, partnerships, and not-for-profits. A PCBU can be multiple parties in a supply chain or project, all owing concurrent duties to workers and others affected by the business.

To ensure, so far as is reasonably practicable, the health and safety of workers and others whose health and safety may be affected by the business. The duty is non-delegable and extends to contractors, labour hire, volunteers, and the public.

Weighing the likelihood of the risk, the degree of harm, what is known about the hazard, the availability and suitability of ways to eliminate or minimise the risk, and the cost associated with those ways. Cost alone cannot justify a disproportionate risk.

Officers must exercise due diligence to ensure the PCBU complies with its WHS duties. Due diligence requires taking reasonable steps across six specific areas (knowledge, understanding, resources, processes, information, verification).

A person who makes, or participates in making, decisions that affect the whole or a substantial part of the business of a corporation, generally aligning with the Corporations Act definition of "officer". Managers without governance-level decision-making are not officers for WHS purposes.

Industrial manslaughter is an offence introduced in most Australian jurisdictions (Qld 2017, ACT 2018, Vic 2020, NT 2020, WA 2022, NSW 2024) penalising reckless or grossly negligent conduct of a PCBU or officer that causes a worker's death. Maximum penalties include imprisonment.

Death, serious injury or illness, or a dangerous incident arising out of the conduct of the business. Categories are defined in s 35–37 of the model Act. The regulator must be notified immediately, and the site must be preserved until notified otherwise.

Immediately after becoming aware of the incident (by fastest practicable means — phone followed by written notification). Most regulators require the written notification within 48 hours. Failure to notify is an offence.

Category 1: reckless conduct (highest). Category 2: failure to comply with duty exposing a person to serious risk. Category 3: simple failure to comply. Plus industrial manslaughter where enacted. Penalties were increased in most jurisdictions in 2023–24.

Yes — officers can be prosecuted in their personal capacity for a breach of their due diligence duty. Personal conviction, penalty, and imprisonment (for Cat 1 or industrial manslaughter) are available. Directors and officers insurance has specific WHS exclusions.

Inspectors can enter workplaces without notice, seize evidence, take photos, interview workers, and require the production of documents. Section 155 notices (federal) and equivalents require answers under penalty. Legal professional privilege applies.

The right against self-incrimination is displaced for corporations and abrogated to some extent for individuals under notices to produce, with use immunity for information provided. Derivative use is also protected in most jurisdictions. Advice before answering is essential.

An alternative to prosecution — the PCBU gives the regulator a legally binding undertaking to achieve specified safety, training, or community outcomes. Not available for Cat 1 or industrial manslaughter. Commonly cost more than a successful defence but avoid conviction.

Safe Work Method Statements, risk assessments, training records, induction records, plant manuals, maintenance logs, incident reports, CCTV, witness statements, and post-incident correspondence. Privilege planning for expert reports should be established at the earliest point.

From notifiable incident to decision on prosecution: commonly 12–24 months. Simple matters can be resolved by infringement notice within weeks. Industrial manslaughter investigations regularly extend beyond 2 years to charge.

No. The model WHS Act is adopted in all jurisdictions except Victoria (OHS Act 2004) and Western Australia (which adopted a modified version in 2022). Penalty levels and industrial manslaughter provisions differ. Regulator practices vary significantly.

Since 2022–23, all Australian jurisdictions have strengthened requirements for managing psychosocial risks (bullying, harassment, workload, fatigue). Model Code of Practice on Managing Psychosocial Hazards at Work published in 2022 and progressively adopted.

Category 2 contested prosecution: $100,000–$400,000 in legal fees. Category 1 or industrial manslaughter: $500,000–$2m+. Enforceable undertaking programs often cost $500,000–$3m in total commitments. Insurance rarely covers fines but may cover defence.

Immediately on any notifiable incident (before talking to the regulator), on receipt of any notice to produce or attend interview, and on review of safety documentation after any serious near-miss. The first 24 hours largely determine the prosecution trajectory.

No. The WHS Act expressly voids any term of a contract purporting to exclude, limit, or modify the operation of a duty. Indemnities between parties remain enforceable inter-partes but do not affect the statutory duty to the regulator.