WorkSafe confirmed updated enforcement policies in February 2026 that change how the regulator responds when an investigation finds a health and safety breach. The headline change is a clear expectation that WorkSafe actively considers alternatives before recommending prosecution — and two of those alternatives, formal warnings and pre-charge enforceable undertakings, now sit much earlier in the enforcement pathway than they used to.
For business owners this is not a softening of the rules. The duties under the Health and Safety at Work Act 2015 are unchanged, and the maximum penalties are unchanged. What has changed is the range of outcomes available after an incident, and how much your own conduct in the weeks following an incident influences which outcome you get.
What Actually Changed
Historically, WorkSafe operated with a narrow set of enforcement tools. Where an investigation found a serious breach, prosecution was often the default. The updated policies formalise a graduated approach with several intermediate steps.
| Enforcement tool | When it applies | Practical effect |
|---|---|---|
| Improvement notice | A contravention is occurring or likely to recur | Fix the issue by a stated date; no penalty if complied with |
| Prohibition notice | Immediate risk of serious harm | Work stops until the risk is controlled |
| Formal warning | Investigation finds compliance concerns but prosecution is not in the public interest | Written warning on record; no conviction, no fine |
| Pre-charge enforceable undertaking | Duty holder accepts responsibility and proposes remedial commitments before charges are laid | Legally binding programme of work; charges not filed if delivered |
| Prosecution | Negligent or significant disregard, repeated non-compliance, or serious harm requiring deterrence | Conviction, fine, reparation, adverse publicity |
Enforceable undertakings are voluntary to enter into but legally binding once accepted. They typically commit a business to a package of measures — systems improvements, independent audits, industry-wide safety initiatives, and payments to the injured person — that go well beyond what a fine alone would deliver.
Why This Matters for Liability Exposure
The important point for anyone reviewing their insurance is that none of these enforcement outcomes remove your civil exposure. A formal warning or an enforceable undertaking resolves the regulatory question. It does not resolve a claim from a member of the public who was injured, or from a neighbouring property owner whose building was damaged.
Those two exposures run on separate tracks:
- Regulatory track — WorkSafe investigation, notices, warnings, undertakings or prosecution. Fines under the Health and Safety at Work Act cannot be insured. Reparation orders and legal defence costs can often be covered under a statutory liability policy.
- Civil track — Claims by third parties for property damage or, in limited circumstances, loss outside the ACC bar. This is what public liability insurance responds to.
An incident that triggers a WorkSafe investigation frequently triggers a third party claim as well. A scaffold collapse injures a passer-by and damages a parked vehicle. A hot works job causes a fire that spreads to the adjoining tenancy. In each case the regulator and the claimant arrive at roughly the same time, and you need both covers working together. Our coverage guide sets out where the boundaries between the two sit.
How Your Post-Incident Conduct Now Affects the Outcome
Because WorkSafe must now consider alternatives before recommending prosecution, what a business does in the first weeks after an incident carries more weight than it used to. The factors that push an outcome toward a warning or an undertaking rather than a charge are broadly:
- Prompt notification of the notifiable event — within the required timeframe, not after a follow-up call from an inspector
- The scene preserved and records produced without delay or dispute
- Acceptance of responsibility rather than early defensive positioning
- A documented remedial plan already underway before the investigation concludes
- No pattern of prior non-compliance or ignored notices
Conversely, prosecution remains very likely where there has been repeated non-compliance, where negligence contributed to the event, or where someone died. Those thresholds have not moved.
The Insurance Notification Trap
There is a tension worth flagging. Most liability policies require you to notify the insurer of any circumstance likely to give rise to a claim, and most also contain a condition prohibiting you from admitting liability without the insurer's consent. Meanwhile the enforcement framework rewards businesses that accept responsibility early.
These are reconcilable, but not by accident. Cooperating fully with WorkSafe, notifying an event, and fixing the underlying hazard are not admissions of civil liability. Signing a statement that characterises your conduct in legal terms may be. The practical rule is to notify your broker on the same day you notify WorkSafe, and take advice before signing anything that goes beyond the factual account of what happened.
A Post-Incident Checklist
| Timing | Action |
|---|---|
| Immediately | Make the area safe; provide first aid; do not disturb the scene beyond what safety requires |
| Same day | Notify WorkSafe if the event is notifiable; notify your broker or insurer; start a written timeline |
| Within 48 hours | Secure records — training logs, plant maintenance, SWMS, site inductions, subcontractor agreements, photographs |
| Within a week | Complete an internal review; document the corrective actions and the dates they were implemented |
| Ongoing | Take advice before signing statements; keep the broker updated as the investigation develops |
Cover Levels Worth Reviewing
Businesses in higher-consequence sectors should treat the enforcement update as a prompt to check two things: whether the public liability limit still matches the worst realistic outcome of the work being done, and whether statutory liability cover is in place at all. Statutory liability is frequently absent from packages sold on price alone, and it is the section that funds legal representation during a WorkSafe investigation.
| Business type | Common PLI limit | Statutory liability worth carrying |
|---|---|---|
| Sole trader, low-risk services | $1M | $500k |
| Trade contractor, residential | $2M | $1M |
| Commercial construction or civil | $5M–$10M | $1M–$2M |
| Manufacturing, plant-heavy operations | $5M–$20M | $2M |
| Events, hospitality, high public footfall | $2M–$5M | $1M |
Next Steps
Read the updated enforcement policies on the WorkSafe website so you understand the criteria the regulator applies, then check your own policy schedule for a statutory liability section and its limit. If the schedule shows public liability only, or a limit set years ago when the business was smaller, it is worth revisiting.
Get a Quote and one of our referred advisers will review your current limits against the work you actually do, and confirm whether your programme covers both the regulatory and the civil side of an incident.