With the outbreak of COVID-19 being labelled the biggest thing to impact Australia’s workforce, employers would be forgiven for assuming that everything else has been on hold.

That is not the case and businesses need to be aware of possible legislative amendments to the New South Wales Work Health and Safety Act 2011 (the Act), made by the Work Health and Safety Amendment (Review) Bill 2019 (the Bill). The Bill, if passed, will implement a number of recommendations outlined in Ms Marie Boland’s review of work, health and safety laws (WHS).

It attempts to strike a balance between the objective of maintaining nationally consistent work health and safety regulation and the NSW Government’s goal of reducing risks to workers’ safety.

Key amendments

Category 1 offences

Currently, in order to obtain a conviction for a Category 1 offence (being recklessness), it must be established that a Person Conducting a Business or Undertaking (PCBU) made a conscious choice to take an unjustifiable risk, which resulted in an injury or death of a worker.

If the Bill is implemented, “gross negligence” will be included alongside recklessness as a fault element. This means that it is no longer necessary for a prosecutor to establish that the PCBU made a conscious choice and, consequently, it will become easier to successfully prosecute a Category 1 offence.

Insurance against WHS fines

The Bill will make it an offence, without a reasonable excuse, to provide, enter into, or benefit from an insurance or indemnity arrangement that covers liability for a monetary penalty under WHS laws. This regulates the longstanding common law public policy position that indemnity ought not be available for a criminal penalty.

There will be a transitional provision which provides that a person does not commit an offence for providing insurance or indemnity, or for taking the benefit of such insurance, if the insurance or indemnity was in force before the commencement date of the Bill and any payment made was not in relation to a penalty for an incident that occurred after the commencement date of the Bill.

Increased maximum penalties

The maximum fine for a category 1 breach will instantly increase from $3 million to $3,463,000 and from $600,000 to $692,500 for an officer (or individual who is a PCBU). This will be the first increase in the maximum penalties of WHS law in NSW since the law was harmonised from 1 January 2012.

The Bill will also increase other penalties arising under the Act, for example:

• All penalties of $50,000 will be increased to $57,500. and
• all penalties of $100,000 will be increased to $115,500.

Clarity surround manslaughter

While NSW does not appear to be following the other States in implementing specific industrial manslaughter provisions, the Bill will insert a note into Part 2 of the Act to make it clear that in certain circumstances the death of a person at work may also constitute manslaughter under the Crimes Act 1900 and may be prosecuted under that Act.

Choice of training

The Bill clarifies that health and safety representatives (HSRs) are entitled to choose their course of training and that the relevant PCBU and the HSR will consult each other about, and agree on, the reasonable costs associated with the training.

Investigative powers of workplace inspectors

The Bill will amend inspector’s powers under the Act to allow an inspector who has entered a workplace to exercise their section 171 investigative powers for up to 30 days.

Timeline for regulators to start a prosecution

The Bill will extend the time in which a person can request a regulator to bring a prosecution from 12 months to 18 months.

Application of the Act to dangerous goods and high-risk plant

The Bill will amend the Act to clarify that the Act applies to dangerous goods and high-risk plant that is stored, operated or used at premises that are not a workplace or for use in carrying out work.

When we will see these changes implemented?

As of 24 March 2020, the Bill had its first reading before the Legislative Council. However, given the uncertainty that follows COVID-19, the changes may not be implemented until late 2020.

These changes will be significant and businesses should use any down time created by the impact of COVID-19 upon their business to review their safety management systems and assess the impact of the proposed changes.

 

John Makris
Partner
+61 2 9169 8407
[email protected]

Erica Elliott
Special Counsel
+61 2 9169 8409
[email protected]

George Stent
Paralegal