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Updates to NSW WHS Laws: A Brief Overview by Michael Byrnes and Emi­ly Capener

Michael Byrnes Part­ner and Emi­ly Capen­er Solic­i­tor, pro­vide an overview of the Work Health and Safe­ty Amend­ment (Review) Bill 2020 (the Amend­ment Bill) which on 4 June 2020, the NSW Par­lia­ment passed.

WHS Laws: A Brief Overview

On 4 June 2020, NSW Par­lia­ment passed the Work Health and Safe­ty Amend­ment (Review) Bill 2020 (the Amend­ment Bill) which intro­duced var­i­ous changes to WHS laws under the NSW Work Health and Safe­ty Act 2001 (the Act). These changes, the most sig­nif­i­cant of which are briefly out­lined in this arti­cle, will take effect once the Amend­ment Bill receives assent. 

Expan­sion of Cat­e­go­ry 1 Offence – Gross Negligence

First, the Amend­ed Bill has expand­ed Cat­e­go­ry 1 offences (the most seri­ous cat­e­go­ry) under the Act to include Per­sons Con­duct­ing a Busi­ness or Under­tak­ing (PCBU) who engage in con­duct with gross neg­li­gence. This is in addi­tion to the cur­rent test, which requires proof that a PCBU had been reck­less as to the risk of an indi­vid­ual of death, seri­ous injury or ill­ness. The gross neg­li­gence’ stan­dard will be eas­i­er for pros­e­cu­tors to estab­lish than the high­er reck­less’ stan­dard (which requires a con­scious choice to take an unac­cept­able risk). 

Pro­hi­bi­tion on Insur­ance Arrangements

Insur­ance pur­port­ing to cov­er WHS penal­ties under the Act has been the sub­ject of debate and con­tro­ver­sy. It has been argued such insur­ance prod­ucts under­mine the pol­i­cy objec­tives of the Act by remov­ing or mit­i­gat­ing the finan­cial con­se­quences for breach­es. Under the Amend­ment Bill changes, the Act now pro­hibits cer­tain insur­ance arrange­ments in rela­tion to WHS penal­ties. It is now an offence, with­out rea­son­able excuse, to enter into or ben­e­fit from a con­tract of insur­ance or oth­er indem­ni­ty arrange­ment that cov­ers lia­bil­i­ty for a mon­e­tary penal­ty under WHS laws. Sig­nif­i­cant penal­ties apply for breach­es of these sec­tions, and offi­cers of a body cor­po­rate can also be held liable for this offence. 

Increase in Penalties

The Amend­ment Bill also saw the intro­duc­tion of a penal­ty unit sys­tem indexed to CPI, mean­ing that the penal­ties for fines under the Act will increase on an annu­al basis. Addi­tion­al­ly, a num­ber of penal­ties for WHS breach­es were sig­nif­i­cant­ly increased, specifically:

  • penal­ties for cat­e­go­ry 1 offences increas­ing to $3,463,000 from $3 million;
  • penal­ties for cat­e­go­ry 2 offences increas­ing to $1,731,500 from $1.5 million;
  • penal­ties for cat­e­go­ry 3 offences increas­ing to $577,000 from $500,000.

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