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Changes to NSW work health and safety laws

July 08, 2020

The NSW Government passed a range of changes to work, health and safety (WHS) laws which came into effect on 10 June 2020.

The following is a summary of the key changes to NSW WHS laws:

Change to the most serious category of offence

It is now easier to prosecute a PCBU for exposing an individual to the risk of death or serious injury or illness.

Before the change SafeWork NSW had to prove that the PCBU actually intended to expose an individual to that risk, or had a reckless disregard in exposing an individual to the risk.

By adding the words “gross negligence” to the most serious category of offence (category 1) the threshold has been lowered, so that there is no longer a need to prove an intention to breach a work, health and safety duty, the fact that a PCBU has breached their duty may be enough to be charged with a category 1 offence.

Clarifying who duty holders are

Notes inserted into the WHS Act now make it clear that a worker can also be a duty holder. The change points out that SafeWork NSW is able to prosecute individual workers and subcontractors if they breach their duty.

Insurance for monetary penalties no longer allowed 

It is now an offence to provide or enter into, or benefit from, insurance or indemnity arrangements for liability for a monetary penalty for an offence. Before it was possible for companies and their officers to take out insurance for breaches of WHS laws. Now, this will be illegal.

Penalties have been increased

Fixed dollar amounts have been replaced by penalty units and a formula for indexing the amount of a penalty unit will be used. The indexing is fixed to increases in Consumer Price Index. The actual dollar amounts will be published on a government website. There will be an initial increase of 15% to most penalties. For example, the maximum penalty for a PCBU convicted of a breach of the most serious category 1 offence will increase from $3,000,000 to $3,463,000. The lesser categories of offences (categories 2 and 3) have increased from $1,500,000 to $1,731,500 and $500,000 to $577,000 respectively. A breach of the new insurance prohibitions carries a maximum penalty of $250,000 for a PCBU and $50,000 for an individual.

Training for Health and Safety Representatives (HSR) 

Health and Safety Representative (HSR) can now choose their course of training. HIA opposed this, arguing that the PCBU, at first instance, will have no say over the location, quality, relevance or reasonable costs of that training and will instead have to escalate the matter to a dispute for the Regulator to deal with.

Contact HIA for more on new laws