The Work Health and Safety Amendment (Review) Act 2020 recently passed by the NSW Parliament has enacted the following key changes to NSW WHS laws:
- Enhancement of the Category 1 offence by including “gross negligence” as a fault element – designed to make it easier to prosecute and create a stronger incentive for duty holders to manage WHS risks.
- Prohibition of insurance and indemnity arrangements – to ensure people cannot avoid responsibility for paying WHS fines.
- Increased penalty amounts for all WHS offences in line with the Consumer Price Index – ensuring penalties retain their deterrent value in light of economic growth.
- Extension of time in which a person can ask the WHS regulators to start a prosecution in response to a Category 1 or Category 2 offence from 12 to 18 months and addition of a requirement that the WHS regulator provides updates every three months to the requester until a decision to prosecute is made. This change was made to ensure that during investigations of workplace accidents, families are kept informed and have access to an effective review mechanism for decisions not to prosecute.
- Clarification that a Health and Safety Representative (HSR) can choose their course of training – aimed at mitigating unnecessary delays which can affect an HSR’s ability to fulfil their role and exercise their powers.
These changes came into effect 10 June 2020, are designed to improve the compliance and enforcement measures available for WHS Regulators in NSW.