Policy for publishing details of WHS penalty notices

SafeWork NSW Licence Register

Introduction

SafeWork NSW is the state’s work health and safety regulator for non-mining workplaces. SafeWork NSW works with the NSW community to reduce work related fatalities, serious injuries and illnesses, and make it easier to do business safely.

Workers and/or businesses need to be licensed before they can carry out a range of high risk activities in NSW workplaces. SafeWork NSW administers licensing and registration under the Work Health and Safety (WHS) Act 2011, including asbestos removal and assessor licences, demolition licences, general construction induction cards (CIC), and high risk work (HRW) licences such as forklift licence, cranes, hoists etc.

Recent changes to the WHS Regulation requires SafeWork NSW to publish information about these licences and card holders on a public register.

From 31 May 2018, the SafeWork Licence Register (the Register) will publish the following information:

  • name of the licence holder
  • licence number and licence class or type
  • date of issue and current expiry date of the licence (if any)
  • details of any surrender, cancellation or suspension of the licence
  • details of any licence conditions (if any)
  • details of any WHS penalty notices, issued in connection with the licence (if any)
  • results of any prosecutions against the licence holder under the WHS Act (if any)
  • any such other particulars as the regulator thinks appropriate for inclusion in the register

ONLY the WHS penalty notices issued to licence holders and CIC card holders, on or after 1 July 2018 will be published on the SafeWork Licence Register.

Both individuals and corporations may be licence holders and as such may have their details published on the Register.

Businesses and consumers will be able to use the Register to quickly and easily verify that a SafeWork licence or training card is current and valid, improving their ability to make informed decisions regarding contractors they choose to engage with. By making this information easily accessible, the Register aims to protect both workers and consumers from unlicensed and unsafe workplaces and practices.

Purpose of the document

This document outlines the policy position of SafeWork NSW as to the publishing of details of penalty notices issued by SafeWork NSW on the Register.

SafeWork NSW approach to issuing penalty notices

As the state’s work health and safety regulator, SafeWork NSW engages with the NSW community to implement safe systems of work to prevent work related fatalities, serious injuries and illnesses. To achieve this and secure compliance with WHS laws, SafeWork NSW applies a graduated approach to compliance and enforcement.

Our approach to compliance

Penalty notices play an important role in encouraging immediate deterrence for scheduled offences. Their use is integrated as a higher level administrative sanction into the graduated compliance strategy outlined in Figure 1.0 above from our approach to WHS regulation. To assist in embedding health and safety practices in NSW’s workplaces, penalty notices are issued:

  • as a discrete influencing mechanism to prompt behavioural change of a person conducting a business or undertaking (PCBU), or individual;
  • to impose an immediate higher-level sanction for scheduled offences;
  • to send a clear and timely deterrence message that there are consequences for non-compliance with WHS requirements and exposing persons to risk of injury or death.

WHS penalty notices are generally issued where a sanction is warranted for the contravention but the nature of the contravention does not necessarily warrant a prosecution.

The criteria and process for publishing details of penalty notices

The decision-making process for publishing penalty notices reflects the legislative intent of the Register which is protection rather than punishment. Firstly, only penalty notices issued  to SafeWork licence/CIC card holders will be published. Secondly, the process considers both the nature of the offence and its impact on the safety of the licence holder and/or others as well as whether it is in the public interest that the offence is published. Offences that attract a penalty notice have been characterised as either high or low risk. High risk offences include ‘employ/direct/allow person to do licensed work without a licence’ and penalty notices for these offences will be published automatically. Penalty notices for low risk offences such as ‘fail to keep record of training as prescribed’ are administrative in nature and will generally not be published.

However, SafeWork NSW reserves the right to publish details of penalty notices issued in relation to low risk offences where there is a discernible pattern of failure to comply with work health and safety responsibilities. Where a licence holder incurs more than two (2) penalty notices for ‘low risk’ offences within a twenty four (24) month period, then all penalty notices incurred within that time period will be published automatically.

Low Risk Offences

Penalty notice information relating to the following offences, generally administrative breaches, will Not be published on the Register.

Corporation

30045, 39470, 30054, 30030, 39860, 39912, 39947, 39835, 39643, 30046, 39807, 39811, 39578

Individual

90045, 89470, 90054, 90030, 89860, 89912. 89947, 89835, 89643, 89954, 90084, 89772, 90046, 89807, 89811, 89578

Information on penalty notices incurred by SafeWork licence holders/CIC card holders for all other offences, will be published on the Register.

Length of time penalty notice details will remain on the Register

Penalty notice details published on the Register will remain on the Register for Five (5) years from the date of the offence. However, if more than two (2) penalty notices are incurred by a licence holder within a twenty-four (24) month period for a ‘low risk’ offence, then all these penalty notices will remain on the Register for five years from the date of the offence of the last penalty notice issued.

Criteria for determining the date on which details of penalty notices will be published on the Register

The following criteria will determine when details of a penalty notice will appear on the Register:

  • When the amount identified by the penalty notice is paid; or
  • When Revenue NSW commences enforcement action (i.e. at the end of the 49 day grace period by which time the licence holder has neither paid the amount of the penalty notice, nor requested a review/court hearing)

Information published following an internal review and/or court decision

A licence holder, who has been issued a penalty notice, has the option to request an internal review if there is an error on the notice or to have the matter determined by a court. In such cases, the following criteria will determine the details of the penalty notice to be published on the Register.

Following an internal review by SafeWork NSW

If the penalty notice is withdrawn

information is not published on the Register

If the penalty notice stands

information will be published on the Register

Following a Court Decision

If the Court upholds the penalty notice

the information will be published in accordance with SafeWork's prosecution policy

If the Court does not uphold the penalty notice

information is not published on the Register

Penalty notice details published on the Register

The penalty notice details published on the Register include:

  • The description of the offence
  • Offence code
  • Offence date
  • Fine amount
  • Act/Reg and Section

Penalty notice information published on the Register for expired, cancelled or surrendered licences

If a licence holder incurred a penalty notice that has subsequently expired, or been cancelled or surrendered, then that licence and the penalty notice details will remain on the Register for the period of five years from the date of the offence of the penalty notice.

Remove/suppress penalty notice information published on the Register

There is no provision in the Regulation to remove and/or suppress penalty notice information published on the Register.

Note: Under section 58 of the Privacy and Personal Information Protection Act 1998, a licence holder can request to have their personal information suppressed by demonstrating that its publication would affect their personal safety or well-being.

Changes/corrections to penalty notice information published on the Register

Individuals and businesses listed on the Register can apply to SafeWork NSW (email: contact@safework.nsw.gov.au) to correct or change penalty notice information published on the Register if a correction needs to be made due to an error or omission.

Disputing a decision

Individuals and businesses subject to decisions by SafeWork NSW can dispute them (email: contact@safework.nsw.gov.au) if they believe they have grounds to do so.

Note: Under section 58 of the Privacy and Personal Information Protection Act 1998, a licence holder can request to have their personal information suppressed by demonstrating that its publication would affect their personal safety or well-being.

Policy review

SafeWork NSW will review the Policy for publishing details of WHS penalty notices after a 12 month period to evaluate if it is achieving its intended objectives. Any changes made to the Policy will be publicly updated to ensure the public is aware of the circumstances in which details of a penalty notice will be published.

Appendix A – List of offence codes not published on the Register

Legislation

Short Title

Offence Codes

Fine

WHS Reg cl 444(1)

Fail to keep health monitoring reports confidential

30045 (Corporation)

$720

WHS Reg cl 444(2)

Disclose health monitoring report - no written consent

39470 (Corporation)

$720

WHS Reg cl 445(3)

Fail to keep record of training as prescribed

30054 (Corporation)

$720

WHS Reg cl 445(4)

Not keep record available for inspection under the Act

30030 (Corporation)

$720

WHS Reg cl 461(1)

Removalist fail to keep record of training

39860 (Corporation)

$720

WHS Reg cl 461(2)

Removalist not have training record readily accessible

39912 (Corporation)

$720

WHS Reg cl 506(1)

Fail to notify of change in information in relation to asbestos licences

39947 (Corporation)

$720

WHS Reg cl 512

Fail to return licence to regulator for amendment

39835 (Corporation)

$720

WHS Reg cl 513(1)

Fail to notify regulator lost/stolen etc asbestos licence

39643 (Corporation)

$720

WHS Reg cl 96

Fail to give written notice of change of address as required

30046  (Corporation)

$720

WHS Reg cl 97

Fail to return licence document to regulator for amendment

39807  (Corporation)

$720

WHS Reg cl 98(1)

Fail to notify regulator of lost or stolen licence document

39811  (Corporation)

$720

WHS Reg cl 111

Fail to return licence document to regulator

39578  (Corporation)

$720

WHS Reg cl 444(1)

Fail to keep health monitoring reports confidential

90045 (Individual)

$144

WHS Reg cl 444(2)

Disclose health monitoring report - no written consent

89470 (Individual)

$144

WHS Reg cl 445(3)

Fail to keep record of training as prescribed

90054 (Individual)

$144

WHS Reg cl 445(4)

Not keep record available for inspection under the Act

90030 (Individual)

$144

WHS Reg cl 461(1)

Removalist fail to keep record of training

89860 (Individual)

$144

WHS Reg cl 461(2)

Removalist not have training record readily accessible

89912 (Individual)

$144

WHS Reg cl 506(1)

Fail to notify of change in information in relation to asbestos licences

89947 (Individual)

$144

WHS Reg cl 512

Fail to return licence to regulator for amendment

89835 (Individual)

$144

WHS Reg cl 513(1)

Fail to notify regulator lost/stolen etc asbestos licence

89643 (Individual)

$144

WHS Reg cl 326(1)(a)

Worker not keep available general construction induction card for Inspection

89954 (Individual)

$144

WHS Reg cl 326(1)(b)

Worker not keep available induction training certificate

90084  (Individual)

$144

WHS Reg cl 326(2)

Card holder fail to return cancelled card to Regulator

89772 (Individual)

$144

WHS Reg cl 96

Fail to give written notice of change of address as required

90046 (Individual)

$144

WHS Reg cl 97

Fail to return licence document to regulator for amendment

89807  (Individual)

$144

WHS Reg cl 98(1)

Fail to notify regulator of lost or stolen licence document

89811 (Individual)

$144

WHS Reg cl 111

Fail to return licence document to regulator

89578  (Individual)

$144

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