Facing a WHS Prosecution?
If you or your business is facing prosecution in relation to a work health and safety matter, obtaining legal advice from a WHS lawyer about the allegations, evidence and applicable legislation is important.
WHS Prosecutions in NSW
Work health and safety prosecutions in NSW are brought under the Work Health and Safety Act 2011 (NSW). Prosecutions may be commenced by SafeWork NSW or, in certain circumstances, by other persons. The appropriate legal response depends on the particular circumstances of the matter. Harrington Legal's lawyers can advise you about your legal position.
Who May Be Prosecuted?
WHS prosecutions may involve a range of persons and organisations, depending on the circumstances and the applicable legislation.
Businesses
Businesses that are persons conducting a business or undertaking (PCBUs) may be prosecuted for failures to comply with their WHS duties.
PCBUs
A person conducting a business or undertaking (PCBU) has primary WHS duties under the Work Health and Safety Act 2011 (NSW).
Directors
Directors may be prosecuted individually for failures to exercise due diligence in relation to the PCBU's WHS obligations.
Officers
Officers of a PCBU have a duty to exercise due diligence to ensure the PCBU complies with its WHS duties.
Managers
Managers and supervisors may be prosecuted depending on their role and the circumstances of the alleged contravention.
Workers
Workers have WHS duties and may, in certain circumstances, be prosecuted for contraventions of those duties.
Understanding the WHS Regulatory Process
There are important distinctions between the different stages of the WHS regulatory process.
Regulatory Investigation
SafeWork NSW may investigate a workplace incident, complaint or suspected contravention. An investigation does not necessarily lead to prosecution. During an investigation, SafeWork NSW inspectors may attend the workplace, request documents and interview persons. Legal advice should be obtained promptly.
Improvement and Prohibition Notices
SafeWork NSW may issue improvement notices or prohibition notices. These notices impose obligations on the recipient and must be taken seriously. Legal advice from a WHS lawyer should be obtained promptly on receipt of a notice.
Investigation Following a Workplace Incident
A serious workplace incident, including a fatality or serious injury, will typically trigger a SafeWork NSW investigation. Legal issues may arise immediately following a workplace incident, including notification obligations and the preservation of evidence.
Prosecution Proceedings
If SafeWork NSW decides to commence a prosecution, proceedings are brought in the relevant court or tribunal. The prosecution must prove the alleged contravention beyond reasonable doubt. Harrington Legal's lawyers can advise on the allegations, evidence and applicable legislation and represent clients in proceedings.
The Appropriate Legal Response
The appropriate legal response to a WHS matter depends on the particular circumstances, including the nature of the alleged contravention, the stage of the regulatory process and the applicable legislation. Harrington Legal's lawyers can advise you about your legal position and represent you in appropriate proceedings. Contact Harrington Legal to discuss your circumstances.
Speak with a WHS Lawyer
Contact Harrington Legal to discuss your work health and safety matter with one of our lawyers.