First Time in a Decade: Changes to NSW WHS Laws
2 July 2020
IN BRIEF: On 10 June 2020, the Bill to amend the Work Health and Safety Act 2011 (NSW) (Act) received assent in the NSW Parliament.
Following Marie Boland’s review of the harmonised WHS legislation, New South Wales is for the first time in 10 years making changes to its WHS legislation.
The Work Health and Safety Amendment (Review) Act 2020 (NSW) introduces new amendments to the existing Work Health and Safety Act 2011 (NSW) (WHS Act) and Work Health and Safety Regulation 2017 (NSW).
Some of the significant changes are:
- Increased WHS Act penalties.
- Expansion of category 1 offence to include “gross negligence”.
- Prohibition of certain insurance and indemnity arrangements.
The NSW Government declined to include an industrial manslaughter offence, opting instead to include an explanatory note to the legislation, stating that the death of a person at work may constitute manslaughter under the Crimes Act 1900 (NSW), punishable by imprisonment for 25 years.
Increased WHS Act Penalties
A penalty unit system will be introduced into the WHS Act, allowing for a yearly increase of the penalty unit to reflect changes to the Consumer Price Index. The maximum penalties for 2020 will be as follows:
Expansion of Category 1 offence to also include “gross negligence”
Until now, a Category 1 offence has occurred when a person conducting a business or undertaking (PCBU) has engaged in conduct that has exposed its workers or other persons to a risk of death, serious injury or illness and the PCBU is reckless as to the risk.
Under the amended Category 1 offence, a PCBU also commits a Category 1 offence if they are grossly negligent in exposing workers or other persons to a risk of death, serious injury or illness.
In contrast to “recklessness”, “gross negligence” does not require proof of any intent to disregard a risk of death or serious injury.
Insurance and indemnity arrangements prohibited
A new offence is created of entering into, providing, or benefiting from insurance or indemnity arrangements in relation to the payment of penalties incurred under the WHS Act.
It is important to note that this only prohibits contracts of insurance or arrangements indemnifying defendants for payment of a penalty – it does not render illegal contracts of insurance or arrangements indemnifying defendants for payment of legal costs associated with a potential WHS breach.
For any members who would like further information or have any questions, please contact us on 9390 5255 or email@example.com.
CCER does not give legal advice and this should not be taken as such.