Wendy Thompson is a barrister at Denham Chambers with a large OHS practice. Wendy has over 21 years’ experience conducting and defending prosecutions. She spoke to CCH about the various administrative enforcement options under the model Work Health and Safety Bill (WHS Bill) and their significance to the success of the new laws.

The WHS Bill contains a number of administrative enforcement options which a regulator can utilise to supplement enforcement though criminal prosecution. According to the objects of the WHS Bill, these enforcement options are intended to secure “compliance with [the WHS Bill] through effective and appropriate compliance and enforcement measures” (s (3)(1)(e) of the WHS Bill). The administrative enforcement options may be used by a regulator instead of, or as a precursor to, commencing a prosecution to obtain compliance with the regulatory regime.

Part 10 of the WHS Bill contains provisions relating to the issuance of improvement notices, prohibition notices and non-disturbance notices. Under Part 10 of the WHS Bill, a regulator is also empowered to take other remedial action to ensure compliance and seek court injunctions where there has been non-compliance with a notice. Thompson says that, “in many ways, these enforcement options will not be new to those familiar with existing OHS legislation in the Commonwealth, states and territories.” However, before practitioners dismiss the new regime as simply more of the same, Thompson sounds a note of caution:

“The operation of improvement notices, prohibition notices and non-disturbance notices under the WHS Bill differ from the way in which these operate under the various OHS statutes at the moment, with some important ramifications. For example, the level of penalty available for non-compliance with a notice, the effect of the notices, and the appeal process available to seek review of a notice may be significantly different to what people may have been used to under their existing regime. It will be important to carefully study the new laws, especially the extent to which they deviate from existing OHS regimes.”

Another very important feature of the WHS Bill is the ability for all regulators to accept a WHS undertaking instead of commencing a prosecution where there has been a contravention or alleged contravention of the WHS Bill (except the breach of a “Category 1 offence where there has been reckless indifference to death or serious injury). Accepting a WHS undertaking will preclude a regulator from commencing a prosecution while that undertaking is in effect or has been completely discharged. According to Thompson, “the use of WHS undertakings will be a new feature for a lot of people.” At present, only the Commonwealth, ACT and Queensland systems allow regulators to accept enforceable undertakings.

Thompson thinks that WHS undertakings will be used sparingly by the regulators because they will not be suitable for all cases:

“WHS undertakings will be a costly exercise for a business because the commitments that a business will need to make to satisfy a regulator that it intends to take appropriate steps to address any shortcomings will usually be quite onerous. As such, enforceable undertakings is more likely be used by a regulator where a large corporation or government department in breach of its obligations expresses genuine contrition and commits to widespread reform of its OHS systems that will deliver benefits to industry and the broader community.”

The WHS Bill requires regulators to publish on their websites a decision to accept a WHS undertaking and reasons for the decision. Thompson believes that this will “give the process great transparency and ensure that all the different regulators are taking a consistent and fair approach to accepting enforceable undertakings.”

Finally, s 243 of the WHS Bill allows each of the various jurisdictions to establish an infringement scheme in relation to the WHS Bill. An infringement notice is an “on-the-spot” fine which an authorised party can issue for a prescribed breach of the WHS Bill. At the time of print, none of the jurisdictions had released the details of any proposed infringement scheme.

Thompson believes that regulators will need to in each particular case weigh up all the various enforcement options. “Regulators should not have a one size fits all approach to enforcement and one option should not be the instant recourse,” argues Thompson. Thompson view is that “OHS compliance is about engaging a business or industry to make meaningful long-term change that has beneficial health and safety outcomes and this will require a considered approach to enforcement.”

Once the WHS Bill comes into force on 1 January 2012, regulators will have a number of enforcement options available to work with businesses to ensure compliance with regulatory standards. Precisely how regulators will utilise the new regime to achieve these ends remains to be seen.

Please stay tuned for a future edition of Australian Occupational Health and Safety Law Tracker where Wendy Thompson provides her thoughts on the formal process for enforcement though criminal prosecution provided by the WHS Bill and how this differs from existing regimes.

CCH Australia is working with a renowned team of experts including Wendy Thompson (Denham Chambers), Cormack Dunn (Freehills), Professor Richard Johnstone (Griffith University) and Professor Ron McCallum (Sydney University) to release a new version of the Australian Occupational Health and Safety Law service in July 2011 incorporating commentary on the new laws.