NSW Act to Implement Changes to Work Health and Safety Laws

On 12 November 2019, the New South Wales Minister for Better Regulation and Innovation, Kevin Anderson, introduced the Work Health and Safety Amendment (Review) Bill 2020 (NSW) (“the Bill”) into the Legislative Assembly. The Bill passed the lower house with amendments on 26 February 2020, before passing the upper house on 4 June 2020. The Bill was assented on 4 June 2020.

The Work Health and Safety Amendment (Review) Act 2020 (NSW) (“the Act”) commenced on 10 June 2020. The Act amends the Work Health and Safety Act 2011 (NSW) (“the 2011 Act”) and the Work Health and Safety Regulation 2017 (NSW) in order to implement some of the recommendations made from a review of the national Model Work Health and Safety Act.

In 2018, an independent reviewer, Ms Marie Boland, on behalf of Safe Work Australia conducted a review of the model work health and safety laws (“the 2018 Review”). The 2018 Review received over 100 submissions and held consultations in every capital city and in regional centres. It contained a total of 34 recommendations in order to improve the operation of current work health and safety laws.

Keyu Amendments

The Act makes amendments around prosecution of category 1 work health and safety offences. A category 1 offence is committed when a person who owes a work health and safety duty recklessly exposes a person, to whom that duty is owed, to a risk of death, serious injury, or illness. The 2018 Review found that prosecution of these offences were hampered as the fault element of the offence was too difficult to prove. Previously the fault element was recklessness, which required actual knowledge of the risk and a conscious disregard for it.

Under the recommendation of the 2018 Review, the Act introduces gross negligence as an additional fault element to category 1 offences. At common law, gross negligence can be shown where the defendant’s behaviour falls so short of what is reasonable and involves such a high risk of death or serious injury that it deserves criminal punishment. This amendment is aimed to strengthen the risk-based preventative framework of the 2011 Act. The Act also increases the penalties associated to these offences, with an individual now liable to imprisonment of up to 5 years, and/or a fine of up to $346,500. A corporation can be liable for a fine of up to $3,463,000.

The Act also makes amendments in regards to investigations following workplace incidents, in order to better support victims of workplace accidents and their families. Firstly, the Act will extend the time within which a person can make a request that a regulator bring a prosecution in relation to a workplace incident from 12 months to 18 months. The workplace incident must be one involving risk of death, serious injury, or illness. The Act also introduces a requirement for regulators to provide updates every 3 months to the person who has made a request, whilst the investigation is ongoing.

The Act also includes amendments that clarify that a person can be both a worker and a person conducting a business or undertaking at the same time. This amendment is aimed to address multi-contractor worksites. Under these changes, a contractor or subcontractor in a contractual chain can be both a worker who is owed a duty by persons conducting a business up the chain; whilst also being a person conducting a business who owes a duty to workers down the chain.

Other amendments made under the Act include:

• Clarification that work-related deaths can be prosecuted as manslaughter by criminal negligence under the Crimes Act 1900 (NSW)
• Notices can be served by regulators conducting investigations through post and email, rather than strictly be personal service
• Clarification that in cases of discriminatory or coercive conduct, NSW Courts are allowed to grant declaratory relief

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Work Health and Safety Amendment (Review) Act 2020 (NSW) and Work Health and Safety Amendment (Review) Bill 2020 (NSW), including supporting documents available from TimeBase's LawOne Service