On 4 June 2020, a bill to amend the Work Health and Safety Act 2011 (NSW) (Act) passed the NSW Parliament.

The Work Health and Safety Amendment (Review) Bill 2020 (Bill) is currently awaiting assent and will commence on the day it receives assent.

The changed laws are intended to implement some of the recommendations from the 2018 Review of the Model WHS laws by Marie Boland.

Despite the recommendation by Marie Boland that a separate offence for industrial manslaughter should be introduced, the Bill does not create the offence of industrial manslaughter. However, the Bill inserts a note that the death of a person at work may also constitute manslaughter under the Crimes Act 1900 in certain circumstances. Currently, a separate offence for industrial manslaughter exists in a number of other jurisdictions including the ACT, Northern Territory, Queensland and Victoria.

Some of the key changes to the Act are explained below.

Category 1 offence (section 31)

The Bill expands the Category 1 offence by including an alternative fault element. A Category 1 offence currently only refers to “reckless conduct”. As the Bill comes into force, it will include “gross negligence” as an alternative to reckless conduct, capturing those duty-holders engaging in grossly negligent conduct that exposes an individual to a risk of death or serious harm.

Fines

The Bill introduces a penalty unit system to replace monetary amounts for offences in the Act and the Work Health and Safety Regulation 2017 (NSW) (Regulation). The value of a unit is set at $100 for 2019–2020 financial year, which will be increased every year subject to the consumer price index (CPI).

While implementing the penalty unit system, the Bill increases fines in the Act and the Regulation. For example, maximum fines for Category 1, 2 and 3 offences under the Bill are as follows:

• Category 1 offence:
  • body corporate – 34,630 penalty units ($3,463,000) (currently $3,000,000);
  • individual as a person conducting a business or undertaking (PCBU) or an officer of a PCBU – 6,925 penalty units ($692,500) (currently $600,000); and
  • individual other than a PCBU or an officer of a PCBU – 3,465 penalty units ($346,500) (currently $300,000);
• Category 2 offence:
  • body corporate – 17,315 penalty units ($1,731,500) (currently $1,500,000);
  • individual as a PCBU or an officer of a PCBU – 3,465 penalty units ($346,500) (currently $300,000); and
  • individual other than a PCBU or an officer of a PCBU – 1,730 penalty units ($173,000) (currently $150,000);
• Category 3 offence:
  • body corporate – 5,770 penalty units ($577,000) (currently $500,000);
  • individual as a PCBU or an officer of a PCBU – 1,155 penalty units ($115,500) (currently $100,000); and
  • individual other than a PCBU or an officer of a PCBU – 575 penalty units ($57,500) (currently $50,000).

Insurance or indemnity arrangements

The Bill creates a new offence of entering into, providing or taking benefit of insurance or indemnity arrangements with respect to the monetary penalties for offences under the Act. Officers of a body corporate committing the offence may also be liable for the offence. This will apply to any prosecution going forward.

Powers of an inspector

The Act allows an inspector who enters a workplace to require you to produce documents and answer questions. The Bill expands this power by allowing an inspector to exercise the power not only when an inspector enters a workplace but for up to a further 30 days without having to re-enter the workplace.

However, the Bill now includes a notice requirement for any person being required to answer the inspector’s questions at a specified location. The inspector must give notice of a reasonable time and place for the person to attend to provide information.

Procedure if prosecution is not brought

Currently, a person who reasonably considers that a Category 1 or 2 offence has occurred, and no prosecution has yet been brought, may make a written request to the regulator that a prosecution be brought, no later than 12 months after the incident. The Bill extends this period to 18 months with the view that the extended timeframe would assist in reviewing the workplace incident more effectively.

The Bill imposes additional responsibility on the regulator by requiring the regulator to provide updates on the progress of the investigation to the person who has made a request at least every 3 months until the investigation is complete and a decision is made as to whether a prosecution will be brought.