Can Workers be prosecuted under the WHS Legislation?

The Model WHS laws establish a clear system of duty holders with clearly identified responsibilities that support the overall purpose of workplace health and safety. These duties are non-delegable, meaning that a duty holder cannot transfer or subcontract their legal liability to another party. Even if tasks are assigned to others, the original duty holder remains responsible for ensuring those tasks are performed correctly. As such, no director, manager, supervisor, or worker can entirely shift responsibility or avoid accountability for their own duties. This principle is well-recognized by SafeWork NSW and the NSW courts.

While the primary responsibility for providing a WHS management system, including the necessary facilities, resources, information, instruction, and training, lies with the business (PCBU), it is equally important for workers to adhere to their training and follow established company procedures and rules that aim to reduce risks to their own safety and the safety of others in the workplace.

Business owners and company directors are responsible for ensuring that the PCBU meets its legal obligations regarding health and safety. Supervisors and managers, who are also considered "workers" under the WHS Act, have an additional level of responsibility in overseeing the safety of those they manage.

Under Section 28 of the WHS Act, workers are required to follow reasonable instructions from their supervisors and managers. Additionally, workers are expected to consider the wellbeing of their colleagues and not do anything that puts others at risk. If a worker notices a co-worker engaging in an unsafe practice or about to do something potentially harmful, they have a duty to intervene. Sometimes supervisors may be occupied, and these situations can arise in a matter of moments, making it essential for workers to act swiftly.

When a worker's failure to fulfil their duty to ensure their own safety, or the safety of their colleagues leads to a serious incident, they may be held legally accountable and face prosecution. 

WHS Prosecutions in New South Wales

If you review the number of New South Wales WHS prosecutions published in the last few years you could easily be forgiven for thinking “it is always the PCBU that gets prosecuted.” About 90% of prosecutions are for violations of a PCBU’s Primary Duty of Care. The remaining 10% of prosecutions are for other duty holders (e.g., workers.) Within that 10%, the majority are prosecutions against workers for their failures that have cost the lives of co-workers.  

The Model WHS Laws establish proper accountability. 

WHS Prosecutions of workers

Here are some examples of serious WHS incidents where a worker was prosecuted. (Note. None of these case summaries state whether the worker prosecuted was a supervisor or manager.) They are all instances where workers were prosecuted under Section 28 of the New South Wales WHS Act.

1 May 2024

On 1 February 2021 a truck driver suffered fatal injuries while securing products on his truck when an unattended forklift rolled down backwards crushing him against the side of the truck. After a SafeWork NSW investigation the defendant, a co-worker was charged with a breach of section 32/28(b) of the Work Health and Safety Act 2011. On 1 May 2024, he was convicted by the District Court and fined $7,500.

24 April 2024

On 24 August 2020 a worker was seriously injured when he was struck by a bundle of 6 metre steel reinforcement bars being moved by a tower crane at Edmondson Park in Sydney. After a SafeWork NSW investigation the defendant, a co-worker was charged with a breach of section 28(b) of the Work Health and Safety Act 2011. On 24 April 2024, he was convicted by the District Court and fined $6,000.

14 July 2023

On 7 September 2019, a 40-year-old worker was fatally injured when he was drawn into a woodchipper whilst handfeeding branches into the woodchipper at Lindfield in Sydney. After a SafeWork NSW investigation the defendant, a co-worker was charged with a breach of section 32/28 of the Work Health and Safety Act 2011. On 14 July 2023, he was convicted by the District Court and fined $101,250.

21 December 2021

On 17 November 2018, an air-conditioning mechanic sustained fatal injuries when he fell approximately 3 metres through a second-floor void at a construction site in Green Valley. After a SafeWork NSW investigation, the two directors of the business, were respectively charged with a breach of section 32/19(1) and section 32/28(b) of the Work Health and Safety Act 2011. On 21 December 2021, the defendants, were convicted by the District Court, fined $150,000 under section 32/19(1) and $75,000 under section 32/28(b) for their respective offences. They were ordered to undertake a work health and safety project pursuant to section 238 of the WHS Act. (Note that the business was charged for a failure of its Primary Duty of Care obligations, and the two people charged were charged not as officers, but as workers of the business. Without knowing details of the case, it could be that the two people charged were supervisors or managers.) 

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066