Work Health and Safety Act Duties and Offences for Employers in Australia
Employers across Australia have a legal responsibility to protect the health and safety of workers. Most business owners understand this at a general level. However, many do not realise how broad these duties are, who they apply to, and how severe the penalties can be for non-compliance.
The Work Health and Safety Act (WHS Act) sets out strict obligations for employers, officers, workers, and others at the workplace. Importantly, breaches can lead to major fines, criminal charges, and even imprisonment.
This guide explains the key WHS duties, offence categories, and the consequences employers may face.
Work Health and Safety Duties Under the WHS Act
The WHS Act imposes responsibilities on several workplace parties. These duties aim to prevent harm before incidents occur.
Persons Conducting a Business or Undertaking (PCBU)
Section 19 of the WHS Act establishes the primary duty of care for a Person Conducting a Business or Undertaking (PCBU).
A PCBU must ensure, so far as is reasonably practicable, the health and safety of:
- workers they engage or influence
- workers carrying out work under their direction
- other people who may be affected by the business’s activities
Taking some proactive steps may not be considered enough for a PCBU to have complied with their duty under s19.
Key WHS Responsibilities of Employers
A PCBU must provide and maintain, as far as reasonably practicable:
- a work environment free from health and safety risks
- safe plant, equipment, and workplace structures
- safe systems of work
- adequate training, instruction, and supervision
- processes that protect workers and visitors from hazards
Additionally, WHS duties can extend to worker accommodation when the PCBU owns or controls it.
Sections 20 to 26 also create specific obligations for PCBUs involved in activities such as:
- managing workplace fixtures or plant
- designing or manufacturing workplace structures
- supplying or installing equipment
Because of this wide scope, employers must stay alert to their ongoing compliance duties.
Duties of Officers Under the WHS Act
The WHS Act also places personal duties on officers of a PCBU.
An officer includes:
- company directors and secretaries
- senior decision-makers who influence substantial parts of the business
Under Section 27, officers must exercise due diligence to ensure the PCBU meets its WHS obligations.
What Due Diligence Requires
Due diligence involves taking reasonable steps to:
- keep up to date with WHS laws and safety practices
- understand workplace hazards and risks
- ensure resources are available to manage safety effectively
- implement processes for incident reporting and risk response
- verify that compliance systems operate properly
In other words, officers must actively oversee workplace safety, not simply delegate responsibility.
Duties of Workers and Other People at the Workplace
The WHS Act also applies to workers and others present at a workplace.
Workers must:
- take reasonable care for their own health and safety
- avoid actions that may harm others
- follow reasonable safety instructions from the PCBU
These shared responsibilities help reduce workplace incidents and improve safety culture.
Work Health and Safety Offences and Categories
The WHS Act creates offences for breaches of health and safety duties. These offences fall into three categories depending on seriousness.
Category 3 Offence: Failure to Comply With a Duty
Section 33 covers Category 3 offences.
A person commits a Category 3 offence if they:
- have a WHS duty, and
- fail to comply with that duty
This category applies even if no serious risk occurs.
Category 2 Offence: Exposure to Serious Risk
Section 32 creates Category 2 offences.
This offence occurs when:
- a person fails to comply with a WHS duty, and
- the breach exposes someone to risk of death or serious injury or illness
Therefore, risk exposure increases the seriousness of the charge.
Category 1 Offence: Reckless or Negligent Conduct
Section 31 deals with the most serious WHS breaches.
A person commits a Category 1 offence if they:
- owe a health and safety duty
- engage in conduct exposing someone to serious risk
- act recklessly or negligently regarding that risk
Category 1 offences often result in criminal prosecution.
Industrial Manslaughter Charges
Part 2A of the WHS Act addresses Industrial Manslaughter, which applies when workplace negligence causes death.
For further details, see our related article on Industrial Manslaughter laws in Australia.
Penalties for WHS Breaches
The WHS Act imposes significant penalties for employers, officers, and corporations.
Maximum penalties include:
- Category 3: up to $161,000 for individuals and $806,000 for corporations
- Category 2: up to $483,000 for individuals and $2,419,000 for corporations
- Category 1: up to $967,000 or 5 years imprisonment for individuals
- Category 1 corporations: fines up to $4,839,000
Because penalties escalate quickly, early legal advice can make a critical difference.
Why WHS Compliance Matters for Employers
The duties under the Work Health and Safety Act are broad, strict, and actively enforced. Employers and officers must take workplace safety seriously, as breaches can lead to severe financial penalties, criminal charges, and life-changing outcomes.
If you are facing a WHS investigation, workplace incident inquiry, or charges under the WHS Act, you should seek experienced legal advice immediately.
Potts Lawyers has extensive experience defending employers, officers, and businesses facing WHS prosecutions and workplace safety investigations.
Contact our team today to discuss your situation and protect your rights before serious penalties apply.
If you need help, contact us at:
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📞 (07) 3221 4999
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📞 (07) 5532 3133
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📞 (02) 6616 2101
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