Enforcement options

The National Compliance and Enforcement Policy sets out the nationally agreed principles for monitoring and enforcing compliance with the:

• Work Health and Safety Act 2011 (the WHS Act)
• Electrical Safety Act 2002 (the ES Act)
• Safety in Recreational Water Activities Act 2011 (the SRWA Act)

As a response to the 2017 Best Practice Review of Workplace Health and Safety Queensland, the Compliance Monitoring and Enforcement Policy (the policy) has been developed. The Compliance Monitoring and Enforcement Policy (the policy) explains how the regulator uses compliance monitoring and enforcement to ensure duty holders are meeting their legislative duties, and to create credible deterrents for contravening the legislation.

Duty holders must comply with their obligations under the legislation to ensure workers and others are not exposed to unacceptable risks that may result in death, injury or illness. The regulator monitors compliance with the legislation, maintains a credible threat of detecting non-compliance and constantly improves its capacity to detect and respond to noncompliance.

Compliance Monitoring and Enforcement Policy 2018 (PDF, 0.53 MB)

The purpose of monitoring compliance and, when required, enforcing compliance, is to ensure duty holders comply with their obligations. When the inspector identifies a contravention or risk, they are required to use their powers under the legislation to address the contravention. Inspectors are empowered to direct compliance by various means. A duty holder can rectify a contravention or risk the inspector identifies in the presence of that inspector to achieve immediate compliance. Immediate rectification of contraventions will be recorded by the Inspector and noted on the employer/workplace's record. Contraventions that cannot be immediately rectified will result in a notice to remedy.

Other enforcement options include:

• seizing
• suspension or cancellation of a licence or accreditation
• prosecutions
• enforceable undertakings.

Statutory notices issued under the WHS or ES legislation must be displayed, as soon as possible, in a prominent position at the affected workplace area; e.g. on a noticeboard. The notice must remain on display while in force and not be intentionally removed, destroyed, damaged or defaced.

An injunction may be sought from a Magistrates Court to compel a person to comply with an inspector's notice or restrain a person from contravening a notice.

If you disagree with the inspector's decision to issue a statutory notice issued under the WHS or ES legislation, you can lodge a request for an internal review of the inspector's decision.

Notices

Infringement notice (On the spot fines)

Infringement notices (on the spot fines) are issued under the State Penalties Enforcement Act 1999 and may be issued by an inspector if they believe, on reasonable grounds, that a person is committing or has committed an infringement notice offence under the legislation. Infringement notices may be issued to an organisation, individual or both. There are currently 240 infringement notice offences for contraventions of the WHS and ES legislation.

A smaller number of these offences have been identified as priority areas for enforcement. An inspector will have additional focus on these areas, and if an inspector identifies a contravention of a provision determined by the regulator to be a priority, the inspector will issue an infringement notice. The provisions determined as a priority by the regulator will change periodically to reflect current and emerging risks.

Refer to penalties for more information.

Prohibition notices

A prohibition notice requires an immediate action.

It will be issued if the inspector reasonably believes that an activity is occurring, or may occur, at a workplace that involves or will involve a serious risk to the health or safety of a person from an immediate or imminent exposure to a hazard.

An inspector can give a direction to prohibit the carrying on of the activity or the carrying on of the activity in stated way until the inspector is satisfied that the risks have been remedied. The direction may be given orally initially but will be confirmed with a written notice.

The prohibition notice will state:

• the basis for the inspector's belief that grounds for the issue of the notice exist
• the activity that involves or will involve the risk and the matters that give or will give rise to the risk
• the relevant sections of the legislation contravened
• may include directions on how the risk, activities or matters can be remedied.

The prohibition notice and its directives will be followed-up. An inspector will follow-up within five days of issuing a prohibition notice. This is to ensure the activity that involves the risk and the matters that give or will give rise to the risk are still stopped. Failure to comply with a prohibition notice may result in the inspector taking other enforcement action.

Improvement notice

Inspectors will issue an improvement notice for a contravention of the legislation that does not result in the issue of a prohibition notice or ESPN, unless the contravention can be remedied while the inspector is on site.

The improvement notice will order the person receiving the notice to fix:

• the contravention
• things or operations causing the contravention
• things or operations to prevent a possible contravention from occurring in the future.

An improvement notice will:

• explain that the inspector believes the law is being broken
• specify the part of the law under question
• outline how the law is being or has been broken
• set out the action that must be taken to rectify the contravention
• state the day by which the contravention must have been remedied.

An inspector will use a range of means to check that the actions outlined in the improvement notice have been taken. Failure to comply with an improvement notice will result in the inspector issuing an infringement notice or taking other enforcement action.

Non-disturbance notices

A non-disturbance notice requires an immediate action.

A non-disturbance notice is issued to:

• preserve the site at which a notifiable incident has occurred
• prevent the disturbance of a particular site or plant, substance, structure or thing associated with the site.

The non-disturbance notice will state the:

• period for which the non-disturbance notice will apply (this will be for seven days or less)
• measures to be taken to preserve a site or prevent the disturbance of a site
• actions that can be taken even though a non-disturbance notice has been issued
• penalty for contravening the notice.

A non-disturbance notice does not prevent any actions to:

• assist injured people or remove a deceased person at the direction of the coroner
• make the site safe or prevent a further incident
• assist with a police investigation
• which an inspector has given permission.

Electrical safety protection notice (ESPN)

If an inspector believes there is or could be an immediate electrical risk to people or property, the inspector can:

• direct the person in control to stop doing something
• direct that person to stop using electrical equipment or allowing someone else to use equipment
• disconnect electrical equipment.

The direction can be given verbally but must be confirmed by a written improvement notice as soon as possible.

The ESPN and its directives will be followed-up. An inspector will follow-up within five days of issuing an ESPN. This is to ensure the activity or electrical equipment that involve the risk and the matters that give or will give rise to the risk are still stopped. Failure to comply with an ESPN may result in the inspector taking other enforcement action.

Unsafe equipment notice

An unsafe equipment notice directs the owner to make electrical equipment either harmless or incapable of operating.

Failure to comply with an unsafe equipment notice may result in the inspector taking other enforcement action.

Seizing

Inspectors have specific powers to seize things, such as plant, equipment or substances, in the following circumstances:

• to prevent loss of the evidence or use of the thing where the inspector believes the thing (including a document) is evidence of an offence against the Acts
• for the thing to be analysed, tested or examined
• if seizing the thing is consistent with the purpose of entry
• if the inspector believes the thing, workplace or part of the workplace is defective, hazardous or likely to cause an injury.

An inspector requires a search warrant to seize anything from a place that is not a workplace. In seizing a thing, the inspector can:

• move the thing from where it was seized
• leave it in place and restrict access to it
• dismantle it (e.g. if it is a structure or plant).

The inspector will normally issue a receipt for anything seized.

The owner of a seized thing may apply to WHSQ or the ESO for the seized thing to be returned after a six month period.

Suspension or cancellation of a licence or accreditation

The suspension or cancellation of a licence or other accreditation is an option that may be taken by the regulator. It is typically used for repeat offenders or where the offence was of a nature that exposed persons to serious risk or where other penalties have not resulted in changes that reduce risk.