In this practice area
Acting for PCBUs, officers and workers in SafeWork NSW incident investigations, notices, enforceable undertakings and prosecutions under the Work Health and Safety Act 2011 (NSW).
What these matters involve
The Work Health and Safety Act 2011 (NSW) imposes a primary duty on persons conducting a business or undertaking (PCBUs) to ensure, so far as is reasonably practicable, the health and safety of workers and others. Officers, including directors, must exercise due diligence to ensure the PCBU complies. Workers and others at a workplace also have duties.
SafeWork NSW is the regulator. Since 1 July 2025, under the Work Health and Safety Amendment (Standalone Regulator) Act 2025, it has operated as a standalone agency led by a SafeWork Commissioner, separate from the Department of Customer Service where it previously sat. Investigations usually follow a serious injury, death, dangerous incident or complaint, and increasingly concern psychosocial hazards as well as physical ones.
The legal framework
Inspectors can enter workplaces, inspect, take samples and require information. Under section 155 the regulator may require a person to give information, produce documents or appear to answer questions. Section 172 provides that self-incrimination is not an excuse, but for individuals the answers and information are generally not admissible in criminal proceedings except in limited cases. Legal professional privilege is preserved. Inspectors may issue improvement, prohibition and non-disturbance notices, many of which can be internally and externally reviewed.
The Act creates three categories of offence for breach of a health and safety duty, with Category 1 involving reckless conduct. An industrial manslaughter offence, requiring gross negligence causing death, commenced in NSW in September 2024, with maximum penalties of 25 years' imprisonment for individuals and $20 million for bodies corporate. The regulator may accept enforceable undertakings as an alternative to prosecution for most offences, but not for Category 1 offences or industrial manslaughter. Strict limitation periods apply to prosecutions, other than industrial manslaughter.
How these matters run
After a serious incident the scene must be preserved and the regulator notified. Inspectors will attend, take photographs, seize items and speak to witnesses, often on the day. Decisions made in those first hours, including what is said and what documents are created, carry through the whole matter.
Investigations can take many months. SafeWork NSW may issue formal notices to the business and officers, interview witnesses and obtain expert reports. If it decides to prosecute, proceedings are commenced in the Local Court or the District Court depending on the offence, and more serious matters can go to the Supreme Court. Coronial inquests may run in parallel where there is a death.
How GopherWood Lawyers acts
We attend early after an incident to guide preservation, notification and communications with inspectors. We manage section 155 notices, prepare and attend with witnesses, and structure any internal investigation to protect privilege where possible.
We advise on enforceable undertakings, review of notices and whether a prosecution can be defended on the elements, including what was reasonably practicable. We defend prosecutions and act for officers whose interests differ from the business.