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Recent Cases and Law Updates
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Legislative Amendments

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The Work Health and Safety Act (WHS Act) in New South Wales (NSW) is undergoing significant changes which are set to take effect on July 1, 2024,

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These amendments bring about higher penalties and introduce a new approach in considering a company's "corporate culture" when prosecuting category 1 (gross negligence) offenses.

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Here are the key points to note:

 

Increased Penalties:

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The Bill increases the maximum fines for category 1 WHS offences, including gross negligence or reckless conduct, as follows

  • ​​Individual 'persons conducting a business or undertaking' (PCBU) and officers of a PCBU: The maximum fine increases from $798,383 to $2,168,029, and individuals may also face up to 10 years of imprisonment or both.

  • ​Officers and individuals: The maximum fine increases from $399,479 to $1,041,992, and individuals may also face up to 10 years of imprisonment or both​

  • This doubles the maximum jail time and more than doubles the penalty rates for these offenses.

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Bodies corporate: The maximum fine increases from $3,992,492 to a staggering $10,424,983

  • Imputing Conduct to Body Corporate: The Bill expands the concept of imputation, where conduct on behalf of a body corporate by employees, agents, or officers can be attributed to the company. This expansion allows for the consideration of the company's "corporate culture" as evidence of reckless or negligent behavior. This move aims to address the public expectation that companies should be held accountable for work health and safety duties, similar to individuals.

    Under the Bill, individuals whose conduct can now be imputed to the company include:

    The Bill outlines criteria for establishing a corporate culture, considering factors such as prior authorization for similar conduct and reasonable belief that a corporate officer would have permitted such conduct.

    • The board of directors.

    • Officers, employees, or agents acting within the scope of their employment or authority (authorized persons).

    • Persons acting under the direction, agreement, or consent of the board of directors or authorized persons.

  • Banning Insurance for WHS Penalties: The Bill strengthens the prohibition on insurance contracts or arrangements covering liability for WHS penalties. Such contracts are not only considered offenses but are also rendered void.

  • Prohibited Asbestos Orders and Silica Register: SafeWork NSW is now authorized to issue 'prohibited asbestos notices' if prohibited asbestos is suspected in a workplace. These notices include directions for asbestos management and removal, becoming effective six months after the Bill's assent. SafeWork NSW is also empowered to establish a silica register.

  • Police Power for WHS Enforcement: The Bill amends regulations to grant police officers the authority to enforce compliance and issue penalty notices to food delivery drivers for breaches of their duties, such as failing to wear high-visibility personal protective equipment or provide training verification records for inspection. This amendment takes effect upon the Bill's assent.

  • These amendments represent a significant shift in WHS regulations in NSW, with stricter penalties and an enhanced focus on a company's corporate culture when determining liability for offenses. It is crucial for businesses and individuals to familiarize themselves with these changes to ensure compliance with the new legal landscape.

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