Safework NSW does not automatically prosecute every breach of WHS legislation. It is one of the options available to them.
This article looks at the matters that motivate SafeWork to decide to prosecute. Knowing this, a PCBU and its Officers and Managers can consider and focus on any priority actions they must take in their workplace to avoid the risk of prosecution.
SafeWork's Decision to Prosecute
If SafeWork NSW discovered that your workplace has breached WHS legislation they will be more likely to prosecute your PCBU, and possibly others involved in the breach, in situations such as those listed below:
- Someone was seriously injured or killed
- The potential risk of injury or death is high
- SafeWork has detected other uncontrolled hazards in your workplace indicating that the workplace safety management system is not effective.
- There has been one or more prior breaches of WHS legislation in your workplace
- Your workplace has failed to comply with one or more improvement or prohibition notices
- It is in the public interest to prosecute and there is sufficient evidence to win the case in court
“The dominant factor in the exercise of the discretion to prosecute or not to prosecute is the public interest.” (Section 5.3 Compliance Policy and Prosecution Guidelines – March 2012)
Safework NSW, through prosecution “aims to change the behaviour of the offender and deter future offenders. Prosecution in appropriate circumstances sends a message to the community that failures of legislative responsibilities will be enforced through the Courts.” (Section 5.4 Compliance Policy and Prosecution Guidelines – March 2012)
See SafeWork NSW’s website