Three Categories of WHS Offences and a Table of NSW Penalty Units (2024)

The NSW WHS Act 2011 has recently been amended. These amendments have included an increase in the penalty provisions for WHS breaches. Penalty rates are calculated against the Australian Consumer Price Index (CPI.)

As stated in Section 242B of the Act:

242B   Value of penalty unit

(1)  For the purposes of this Act, the value of a penalty unit is—

(a)  for the financial year 2019–20—$100, and

(b)  for each subsequent financial year—the amount calculated as follows—

$100 x A over B

where—

A is the CPI number for the March quarter in the financial year immediately preceding the financial year for which the amount is calculated.

B is the CPI number for the March quarter of 2019.

(2)  However, if the amount of a penalty unit calculated for any financial year is less than the amount that applied in the previous financial year, then the amount for that previous financial year applies instead.

Editorial note—

Fee unit amount calculated under this section—

Financial year	Fee unit amount
2020–21	$102.00
2021–22	$102.95
2022–23	$107.47
2023–24	$115.29

There are three categories of WHS offences identified in the WHS Act:

Section 31   Gross negligence or reckless conduct—Category 1

Section 32   Failure to comply with health and safety duty—Category 2

Section 33   Failure to comply with health and safety duty—Category 3

The following table depicts the dollar value associated with each of the penalty provisions for the three offense categories as applies to a PCBU (business, organisation, corporation), company directors and business owners (as officers of a PCBU), and individuals (as workers or "others.")

The definition of "officer" can be found in Section 9 of the Corporations Act 2001.

Generally, if you are a business owner, company director, or an executive who can make significant decisions for your business, you are an officer. Officers have specific duties under Section 27 of the WHS Act. Violations of these duties may result in fines or jail time, depending on the category of offence.

Employees, as "workers" have WHS duties to uphold under Section 28 of the WHS Act. This includes supervisors and managers. People visiting or working at your premises or any of your sites have WHS duties under Section 29 of the WHS Act while they are at your workplace. Workers and visitors can be charged with a failure to comply with a WHS duty.

Here are the current penalties as of 1 July, 2024 (move the slider at the bottom of the chart to see the full chart):

31(1) – individual and	$300,000	3465	$399,479 (imprisonment 5 years)	9038 (imprisonment 10 years)	$1,088,355
31(1) – Individual as a PCBU or officer of a PCBU	$600,000	6925	$798,383 (imprisonment 5 years)	18805 (imprisonment 10 years)	$2,264,498
31(1) – Body corporate	$3,000,000	34630	$3,992,492	90424	$10,888,858
32 – individual	$150,000	1730	$199,451	1813	$218,321
32 – PCBU or officer of PCBU	$300,000	3465	$399,479	3626	$436,642
32 – body corporate	$1,500,000	17315	$1,996,246	18128	$2,182,973
33 – individual	$50,000	575	$73,094	607	$73,094
33 – individual as a PCBU or officer of a PCBU	$100,000	1155	$133,159	1214	$146,189
33 – body corporate	$500,000	5770	$665,223	6070	$730,949

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

6 August 2024

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