In June the NSW Parliament passed the Work Health and Safety (Review) Bill 2020 (‘the Bill’). The Bill created several changes to the Work Health and Safety Act 2011 (NSW) (‘the Act’), which are now in force. Despite a recommendation from Safe Work Australia’s independent reviewer that a separate offence for industrial manslaughter be introduced, as it exists in several other states, the Bill did not create such an offence. However, the Bill did insert a note into the Act to state that ‘in certain circumstances, the death of a person at work may also constitute manslaughter under the Crimes Act 1900.’ Another significant change was the expansion of the fault element for a Category 1 offence, under section 31 of the Act, to include not only “reckless conduct” but also “gross negligence.” The Bill also introduced a new penalty unit system, replacing monetary amounts as fines. For the 19-20 financial year, a unit is valued at $100, however this will be subject to annual increase in accordance with CPI. The fines have also increased for several offences. For example, a category 1 offence by a body corporate now carries 34,630 penalty units (equivalent to $3,463,000), rather than the previous $3,000,000 fine.

Other changes include creation of a new offence for entering, providing, or taking benefit of insurance or indemnity arrangements to cover monetary penalties under the Act. The Bill also expands inspectors powers under the Act. Inspectors can now require people in a workplace to produce documents and answer questions for 30 days after the inspector enters the workplace. However, inspectors must provide any person required to answer questions with notice of a reasonable time and place. Finally, the process for requesting prosecution by a regulator has changed. Previously, where no prosecution has been brought, a person who reasonably considers that a Category 1 or 2 offence has occurred could submit a written request to the regulator for prosecution to be brought within a 12 month period after the incident occurred. This timeframe has been extended to 18 months. In addition, the regulator has an obligation to provide progress updates at least every three months until the completion of the investigation.

Contact M+E for more information on how these changes could impact your business.

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