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Review Of NSW WHS Law

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An update from the Timber Trade Industrial Association about what has changed in the NSW Work Health and Safety Act 2011 (the Principal Act).

There is no doubt that for some time trade unions have been pressing for a criminal offence of “industrial manslaughter” to be inserted into all work health and safety legislation in Australia while at the same time opposing any more stringent duties and penalties for workers who breach safety requirements. The unions’ goal has been to expose employers or PCBUs and the most senior corporate officers to prosecution for industrial manslaughter where there is a workplace death or serious injury or illness or where a person has been exposed to the risk of death or serious injury or illness. The unions also want massive monetary penalties to apply to all personal and corporate offenders and 25 year gaol terms for the most senior corporate officers.

The most recent review of the model (federal) Work Health and Safety Act, on which the NSW WHS Act is based, recommended that an industrial manslaughter offence be included in the legislation, despite having indicated specifically throughout the review that there would not be such a recommendation. Following that review, the Labor governments of Victoria, Queensland and Western Australia have legislated along these lines.

What has changed in the NSW Work Health and Safety Act 2011 (the Principal Act) The NSW

Government has now passed the Work Health and Safety Amendment (Review) Bill 2020, (the Amendment Bill), but it has not included the industrial manslaughter offence. Rather, it amends the Principal Act by introducing a new fault element into the Category 1 offence in section 31. Category 1 offences are the most serious offences under the Principal Act.

A Category 1 offence is currently committed where a person (including a corporate legal person), who has a health and safety duty to an individual under the Principal Act:

  • Without reasonable excuse
  • Engages in conduct that exposes that individual to a risk of death or serious injury or illness
  • And the person with the duty is reckless as to the risk to the individual of death or serious injury or illness

However, in addition to the recklessness offence (which is said to be very hard for the prosecution to prove) the Amendment Bill now also makes it an offence (carrying the same monetary and gaol term penalties) for the person (including a person conducting a business or undertaking – PCBU) with the health and safety duty to – with gross negligence – engage in conduct that exposes the individual to a risk of death or serious injury or illness.

“Gross negligence” is not defined in the Principal Act nor the Amendment Bill, however it is well known in criminal law as:

“A conscious and voluntary act or omission performed without intent to cause death or grievous bodily harm but which involved such a great falling short of the standard of care which a reasonable person would have exercised and such a high risk that death or grievous bodily harm would follow that the act or omission merits criminal punishment”

(Nydam v The Queen [1977] VR 430).

It is anticipated that the gross negligence offence will be easier for the prosecutor to prove and, therefore, that there are likely to be more prosecutions on this score. This is likely to be so notwithstanding the very significant reduction in workplace fatalities over the last decade (down well over 50 per cent nationally).

However, the penalties in the NSW WHS legislation (the Principal Act as amended by the Amendment Bill) remain lower that in those States and Territories which have introduced industrial manslaughter offences. [See table on pages 66-67]

The revised penalties in the NSW legislation are as follows:

  • $346,500 and/or 5 years imprisonment (old penalty $300,000/5 years) for a person (other than an officer of a PCBU or an individual who is a PCBU)
  • $692,500 and/or 5 years imprisonment (old penalty $600,000/5 years) for a person who an officer of a PCBU or who is a PCBU
  • $3,463,000 (old penalty $3,000,000) for a body corporate

The Amendment Bill came into effect on June 10, 2020.

Note again that it is the risk of death or serious injury or illness that is pivotal; a death or serious injury or illness may occur, but neither is required to bring a Category 1 prosecution. Regulators will be able to prosecute duty holders who are alleged to be grossly negligent and whose workers or other people are alleged to be exposed to a risk of death or serious injury or illness whether or not a worker is killed, injured or ill.

Technically, there may not even be an accident. It is almost certain that a prosecution may be launched on the basis of an inspector’s, or an employee’s, allegation of a significant risk.

Clarification That Workplace Deaths May Be Prosecuted As Manslaughter Under The Crimes Act 1900

The Amendment Bill inserts a note in the part of the Principal Act that sets out offences and penalties to make it clear that workplace deaths may be prosecuted as manslaughter under the Crimes Act 1900. It has long been the case that a work-related death can be prosecuted as manslaughter by criminal negligence. This is an offence for which the Crimes Act imposes a maximum penalty of 25 years’ imprisonment. There have not been any such prosecutions in NSW, but they could be possible in some circumstances.

Extension Of Time In Which To Bring A Prosecution

The amendments extend the time within which a person can make a request that a regulator bring a prosecution in relation to a workplace incident involving a risk of death or serious injury or illness from 12 months to 18 months.

New Offences For Insurance Or Indemnity Arrangements Which Cover Work Health And Safety Penalties

In detailed provisions, the amendments make it an offence for a person:

  • Without reasonable excuse – to enter into or benefit from insurance or indemnity arrangements for liability for a monetary penalty under the Principal Act as amended by the Amendment Bill. If a body corporate commits the new offence, its officers may also be liable
  • To provide insurance or a grant of indemnity for liability for a monetary penalty under the Principal Act as amended.

Penalties In The Principal Act To Be Adjusted In Line With CPI

The maximum penalties for the over 70 offences in the Act have been adjusted to reflect increases in the consumer price index since 2011 and create a mechanism to automatically adjust penalties annually to reflect changes to the consumer price index in the future.

Inspectors Powers: “Streamlining” Investigations And Sharing Information

Inspectors will be able to require the production of documents and answers to questions to 30 days after they or another inspector have entered the workplace without having to re-enter the workplace.

The amendments clarify the extent of work health and safety regulators’ ability to share information with regulators in other jurisdictions if it is relevant to a workplace incident being investigated in another jurisdiction (including personal or health information). They can now serve notices by post and email, rather than by personal service.

A Person Can Be A Worker And PCBU

Notes have been inserted in the Act to make it clear that a person can be both a worker and a person conducting a business or undertaking (PCBU) at the same time. In complex, multi-contractor worksites, the Act intends that a contractor or subcontractor in a contractual chain can be both a worker owed a duty by persons conducting a business or undertaking further up the chain, and a person conducting a business or undertaking who owes duties to workers further down the chain.

Health And Safety Representatives Can Choose Their Own Training

At present, the Act provides that health and safety representatives (HSRs) can choose their course of training but must do so in consultation with persons conducting a business or undertaking. The amendments now provide that HSRs are entitled to choose their course of training and need only consult and agree on reasonable costs associated with the training.

Dangerous Goods and High-Risk Plant

The amendments strengthen regulators’ ability to take compliance action in relation to dangerous goods or high-risk plant that affects public safety. The amendments make it clear that the Act applies to dangerous goods and high-risk plant that are stored, handled, operated or used in premises that are not a workplace or for use in carrying out work.

I urge any member who does not utilise the TTIA Workplace Health and Safety Unit to contact Ken Hocking on 0418 280 335 and arrange a workplace safety check-up – a thorough safety management system and regular safety audits form a critical part of any defence in a workplace safety prosecution.

For more information, feel free to contact the TTIA office on (02) 9264 0011 if you have any further queries on this new safety bill.

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