The NSW Government has followed the lead of several other jurisdictions by strengthening its workplace health and safety (WHS) laws.

Revisions to the NSW Work Health and Safety Act 2011 follow Marie Boland’s independent 2018 Review of the Model WHS Laws: Final Report, commissioned by Safe Work Australia on behalf of WHS ministers.

While NSW did not introduce an offence of industrial manslaughter, it is likely prosecutions for serious WHS breaches will be more common. The amendments also increase penalties and affect insurance availability for some WHS penalties.

Queensland introduced industrial manslaughter laws in 2017 and Victoria’s industrial manslaughter legislation came into effect from 1 July 2020.

The NSW Work Health and Safety Amendment (Review) Act 2020 No 10 came into effect on 10 June 2020.

Changes include:

Category 1 offences now include ‘gross negligence’. That means anyone grossly negligent in exposing workers or other people to a risk of death, serious injury or illness can be prosecuted. A Category 1 offence is committed when someone who owes a work health and safety duty, recklessly exposes a person to whom that duty is owed to a risk of death or serious injury or illness. The inclusion of gross negligence strengthens prosecutors’ ability to take action because gross negligence does not require prosecutors to prove an intent to disregard a risk of death, serious injury or illness.

New offences about insurance and indemnity arrangements for WHS penalties. It is now an offence for anyone to enter into, provide, or benefit from insurance or indemnity arrangements for liability for a monetary penalty for a WHS offence. However, insurers can still provide coverage for investigation and defence costs.

Maximum penalties under the Act are increased.

The time frame within which people can request a regulator to launch a prosecution for a workplace incident involving a risk of death, serious injury or illness has increased from 12 to 18 months.

Regulators must update victims and their families on the progress of investigations every three months.

It is important for organisations in all jurisdictions, not just NSW, to ensure they are familiar with the relevant WHS legislation. Entities need to ensure their WHS systems and processes are strong and compliant.

Companies need to review, in association with their insurance broker, insurance arrangements, including directors & officers’ liability and management liability, to ensure their policies are compliant with the law. Remember, while your policy will no longer cover fines or penalties, investigation and defence costs are still covered.

To discuss your risk management and insurance requirements, please contact:

John Davaine          T 02 9478 0835          E jdavaine@jmdross.com.au
John G Duncan       T 02 9478 0814          E jgduncan@jmdross.com.au
Tim Ross                  T 02 9478 0808          E tross@jmdross.com.au

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