Greatest Good October 2023 Regulatory Update

NSW WHS Amendment Bill 2023

NSW Government passed the Work Health and Safety Amendment Bill 2023. The Bill changes the Work Health and Safety Regulation 2017 (NSW).

Many of the changes incorporate recent updates to the national Model WHS law published by Safe Work Australia in July 2023. There were also a range of other changes, including:

• Substantial increase to maximum penalties, effective 1 July 2024
  • Maximum offence for person conducting a business or undertaking (PCBU) will increase from $3,992,492 to $10,424,983 (penalty units increase from 34,630 to 90,424)
  • Maximum jail terms for individual increase from 5 to 10 years
  • Maximum fines for an individual who commits a category one offence will almost triple, with smaller increase for category two and three offence
• Imputing conduct and state of mind
  • The Bill also extends the existing imputation of conduct provisions. Previously conduct by individuals (officers, employees or agents of a body corporate) were taken to be conduct of the body corporate. This has been extended to include conduct by a board of directors
  • New provisions to include the state of mind of a body corporate in relation to an office will include if the board of directors was reckless, or that a “corporate culture existing within the body corporate that directed, encourages, tolerated or led to the carrying out of the conduct”
  • This will include whether the body corporate took “reasonable precautions” to prevent the conduct or the authorisation of the conduct
• New asbestos notice regime
  • SafeWork NSW will have the power to issue “prohibited notices” if it reasonable believes asbestos is present in the workplace and include directors for the safe removal
  • Penalties will apply for non-compliance with the notices
  • Changes will commence the day the Bill received Royal Assent
• Silica worker register
  • SafeWork NSW will have the power to implement a “silica worker register”, with compulsory notification to provide information for the register
  • The register is expected to be used by government, insurers, PCBUs and workers to track illness relating to silica exposure
  • Changes will commence six months after the Bill received Royal Assent
• Other changes
  • The NSW WHS Act will be aligned with the Model WHS Law, with a clarification that insurance contract terms that seek to indemnify or insure against monetary penalties under the NSW WHS Act will be void
  • Changes will commence the day the Bill received Royal Assent

NSW industrial manslaughter laws to be introduced

The NSW Government intends to introduce industrial manslaughter legislation into parliament in the first half of 2024.

SafeWork NSW will begin and extensive consultation with key stakeholders, including WHS experts, business groups, legal stakeholders and families of people who have been killed at work.

Whilst any new legislation won’t change the nature of any safety duties current owed by employers, it is expected that significant penalties will apply after a workplace death, to emphasis the requirement to take a approach to fulfilling these duties.

Disclaimer: This does not purport to be comprehensive or to render legal advice. You should not act based on any information contained in this publication without first obtaining specific professional advice. Consult your legal advisor to determine if this applies to you.