On 25 February 2019, Safe Work Australia published the final report of Marie Boland’s review of the Model Work Health and Safety Laws (‘the Review‘). The Review made a number of recommendations, on which Safe Work Australia sought comment through its Consultation Regulation Impact Statement (‘CRIS‘).
The CRIS, which was completed on 5 August 2019, was published in order to assist Safe Work Australia to prepare a Decision Regulation Impact Statement for WHS Ministers.
The Decision Regulation Impact Statement is expected to be provided to the various WHS Ministers towards the end of 2019.
On 12 November 2019, the NSW Minister for State Better Regulation and Innovation, Mr. Kevin Anderson introduced the Work Health and Safety Amendment (Review) Bill 2019 (‘the Bill’) into the Lower House which seeks to amend the Work Health and Safety Act 2011 (NSW) (‘WHS Act‘) to give effect to some of the recommendations outlined in the Review, prior to any other harmonised Government introducing such legislation.
Key amendments proposed by the Bill are:
Penalty Unit System
The Bill introduces a penalty unit system to ensure that maximum penalties reflect changes to the consumer price index. The value of a penalty unit will be set at $100 for 2019-20, and will increase every year.
Consequently, the maximum fine for a Category 1 breach will increase from $3 million to $3,463,000, with the Bill introducing a maximum penalty of 34,630 penalty units for this offence.
Use of Insurance or Indemnity arrangements
The Bill proposes to make it an offence for a person to enter into, provide, or benefit from an insurance or indemnity arrangement that covers liability for penalties under the WHS Act. Additionally, officers of corporations may also be personally liable where the corporation enters into, provides or receives the benefit of an insurance policy covering liability for penalties.
Policies that provide for coverage for legal fees for safety investigation and prosecutions are not captured by the Bill, and it is not anticipated that they will be.
The Bill proposes to make it easier for SafeWork NSW to bring Category 1 prosecutions, particularly following a workplace death, by adding “gross negligence” as a fault element to the category 1 offence. At common law, a person is grossly negligent when their behaviour falls so far short of what is reasonable, and involves such a high risk of death or serious injury, that it deserves criminal punishment.
It is intended that the existing common law will provide guidance to the courts on interpreting the amended provision.
Work-related Deaths and Manslaughter
It is proposed that the WHS Act be clarified through the insertion of a note confirming that in certain circumstances, the death of a person at work can constitute manslaughter under the Crimes Act, which carries a maximum penalty of 25 years’ imprisonment.
Overall, the proposed reforms may increase the likelihood of Category 1 prosecutions being commenced in NSW, which will hopefully see a consequential reduction in the overall number of workplace deaths and injuries in NSW.
By Alicia Mataere and Lee Pike
November 26, 2019