Speaker 1: Welcome to this presentation on the Compliance and Enforcement Approach under the Work Health and Safety Laws. My name is David Aaron and I'm a Senior Policy Officer working on the Work Health and Safety Legislation Project. The Department has agreed on seven key principles to guide the Enforcement Approach and all inspectors will follow this. The Regulator monitors compliance with the Work Health and Safety Laws in various ways and visits can be proactive or reactive in nature. This can include investigating work-related fatalities, serious injuries and dangerous incidents, checking compliance with inspectors' notices or directions, or proactive compliance initiatives. They may also use site visits to discuss important safety matters with management, supervisors and safety and health representatives. Inspectors have a range of powers but they will also seek voluntary compliance or issue verbal directions. There's a number of measures available to enforce compliance with the Work Health and Safety Laws or to penalise the duty holder in the event of a breach. The Regulator will use the approach that is most appropriate for the circumstances, which may include a combination of enforcement measures. The aim is to achieve compliance without the need to escalate things to the more serious enforcement measures. Where an inspection or investigation identifies an alleged breach of the laws, the Regulator will decide what enforcement action should be taken guided by these considerations. This includes consideration of the level of seriousness and risk, whether the duty holders have complied with their obligations, the past compliance history and the likelihood of future offences. They may also consider matters of significant community concern or strategic priorities, such as a specific health and safety issue in a particular industry sector. These are the penalties for a breach of the Work Health and Safety Duties, but there are many other penalties throughout the Work Health and Safety Laws. As you can see from this diagram, the penalty levels and categories are structured the opposite way around to the older legislation. So under the Occupational Safety and Health Act and the Mine Safety and Inspection Act, Level 4 is the highest penalty and Level 1 is the lowest. Under the Work Health and Safety Laws, Industrial Manslaughter and Category 1 are the highest and Category 3 is the lowest. Under the WHS Laws, there are no first offence and subsequent offence penalties. The penalty amounts are based on the higher subsequent offence penalty of the Occupational Safety and Health Act and the Mine Safety and Inspection Act. Industrial Manslaughter and Category 1 offences carry prison terms in addition to fines. Industrial Manslaughter is the most serious offence under the Work Health and Safety Act. For an individual, it carries a prison term of up to 5 to 20 years and a $5 million fine. For a body corporate, it carries up to a $10 million fine. Five elements must be proven beyond reasonable doubt. The key difference from a Category 1 offence is that the PCBU, or the person conducting a business or undertaking, knew and disregarded that an action was likely to cause the death or serious harm of an individual. Industrial Manslaughter is supported by families of people killed in workplace accidents and by recent government reviews, and it has been implemented by other jurisdictions. Where a notifiable incident occurs under Section 39 of the Work Health and Safety Act, the incident site is not to be disturbed until an inspector arrives at the site or at an earlier time that the inspector directs. This is similar to existing requirements in the Occupational Safety and Health Act and the Mine Safety and Inspection Act. However, the Work Health and Safety Laws also introduce a new provision. Upon arrival at the incident site, the inspector can either release the site or issue a non-disturbance notice. A non-disturbance notice takes effect immediately and is issued to prevent disturbance of the incident site or other things associated with the incident site, such as plant, substances, structures or other things. It is valid for a specified period of up to seven days, but if this is insufficient, the inspector can extend it with another notice. There is a penalty for contravening a non-disturbance notice. Work health and safety undertakings, also known as enforceable undertakings, are a legally binding agreement between the regulator and the person who proposed the undertaking to carry out specific activities. The regulator is not compelled to accept a proposed undertaking and if it is not accepted, a prosecution can still proceed. If the undertaking is accepted by the regulator, it replaces any prosecution action that is planned or underway. Work health and safety undertakings cannot be used for industrial manslaughter or Category 1 offences. Details of work health and safety undertakings are published on the department's website along with the reasons for the decision. The inspectorate will monitor compliance with the undertaking and if it is not complied with, a prosecution may be commenced. Another important change under the Work Health and Safety Act relates to the limitation period for prosecutions. Under the Occupational Safety and Health Act and the Mine Safety and Inspection Act, there is a three-year limitation from the time the offence was committed for all levels of offences. Under the Work Health and Safety laws, there are different limitations. For Category 1, 2 and 3 offences, the period is two years. But the important difference is that this is measured from the time the offence first came to the regulator's attention, rather than from the time the offence was actually committed. For Category 1, after two years, if fresh evidence is discovered that could not have been discovered during that two-year period, a prosecution can still be brought. For industrial manslaughter, there are no limitation provisions. And for work health and safety undertakings, the limitation period is six months, measured from the date of the contravention of the undertaking or from when the regulator becomes aware of the contravention. That concludes this presentation. I encourage you to stay up to date with Work Health and Safety laws and the guidance material by subscribing to our newsletters or visiting our website, Twitter or LinkedIn accounts. Thank you for watching.