WHS Fines in New South Wales

WHS penalties in New South Wales are expressed in penalty units rather than fixed dollar amounts. The value of a penalty unit is adjusted annually by the NSW Attorney General in line with the Consumer Price Index. For the 2025-26 financial year, one penalty unit equals $123.31. When legislation states that an offence carries a maximum penalty of 10,000 penalty units for a body corporate, the actual maximum fine is $1,233,100. This indexing mechanism means that the real-dollar value of WHS penalties increases every year without the need for legislative amendment. PCBUs and officers must check the current penalty unit value each financial year to understand their true exposure. SafeWork NSW publishes the updated value in the NSW Government Gazette before 1 July each year. Courts have discretion to impose any penalty up to the statutory maximum, and they consider factors including the severity of the risk, the degree of culpability, the offender's safety record, cooperation with investigators, and capacity to pay. Early guilty pleas typically attract a discount of up to 25 per cent.

The WHS Act establishes three categories of duty offence, each reflecting a different level of culpability. Category 1, defined under section 31, applies where a person engages in conduct without reasonable excuse that exposes an individual to a risk of death or serious injury or illness, and the person is reckless as to that risk. Maximum penalties are $3,085,500 for an individual and $18,513,000 for a body corporate. Category 2, under section 32, covers failures to comply with a health and safety duty that expose a person to a risk of death, serious injury, or serious illness. Recklessness is not required — mere failure is sufficient. Maximum penalties are $346,300 for an individual and $1,731,500 for a body corporate. Category 3, under section 33, addresses failures to comply with a health and safety duty without the requirement that any person was actually exposed to risk. Maximum penalties are $86,575 for an individual and $346,300 for a body corporate. Industrial manslaughter, introduced under section 34C of the WHS Act 2011 (NSW), applies where negligent conduct by a PCBU or officer causes the death of a worker. The maximum penalty is $20,000,000 for a body corporate and 25 years' imprisonment for an individual.

Section 272A of the WHS Act 2011 (NSW), which commenced on 10 June 2020, prohibits any person from entering into, providing, or benefiting from a contract of insurance or indemnity that covers liability for a monetary penalty under the Act. This provision applies to all WHS penalties — not just Category 1. It means that directors and officers liability policies, general liability policies, and any other insurance arrangement cannot lawfully indemnify a business or individual against a WHS fine. The prohibition extends to arrangements where a related entity or parent company reimburses the penalty through intercompany transfers. Breach of the insurance prohibition is itself an offence carrying significant penalties. The practical consequence is straightforward: every dollar of every WHS fine in NSW comes directly from the business or the individual. For small and medium businesses operating on tight margins, even a Category 3 penalty of $346,300 can threaten commercial viability. For officers, a Category 1 penalty of $3,085,500 represents personal financial exposure that cannot be transferred. The only effective protection is a properly implemented safety management system that demonstrates due diligence.

Recent prosecutions in New South Wales demonstrate the regulator's willingness to pursue penalties across all industry sectors. Rahme Civil Pty Ltd was fined $400,000 in 2024 for safety failures on a civil infrastructure project involving inadequate excavation controls. Orica Limited paid $1,200,000 following a chemical release incident at its Kooragang Island facility where workers were exposed to hexavalent chromium without adequate controls. Hilltop Meats Pty Ltd was penalised $750,000 after a worker suffered serious injuries from unguarded plant in a meat processing facility. These cases share common themes — inadequate risk assessment, missing or non-compliant SWMS, failure to implement controls specified in codes of practice, and insufficient supervision of high-risk work. In each case, the court noted that the risks were foreseeable and the required controls were well-established in industry guidance. The message from the judiciary is consistent: businesses that fail to implement basic WHS management systems will be penalised heavily, and ignorance of regulatory requirements is not a defence.