The NSW Government is clearly ‘making good’ on its election promise to review and update the NSW work health and safety (WHS) legislation to better align with the Model Work Health and Safety Laws, as well more robust obligations for persons conducting a business or undertaking (PCBU).
The most important change is an increase to the maximum penalty for ‘category one’ offences, which relate to gross negligence or reckless conduct offences. From 1 July 2024, the following maximum penalties will apply:
There will also be increased penalties for ‘category two’ and ‘category three’ offences, which relate to failures to comply with health and safety duties. For example, these penalties range between $69,981.03* and $2,089,977.12* depending on the offence category and whether the offence is by an individual, an individual, officer of a PCBU, or a company.
From 24 October 2023:
If a company shows that it has taken reasonable precautions to prevent the conduct or authorisation of the conduct, this will be a defence.
From 24 October 2023, SafeWork NSW has powers to establish a ‘silica worker register’. A PCBU will be required to give SafeWork NSW information for inclusion on the register which is not publicly available. Again, there are penalty provisions for non-compliance.
From 24 April 2024, SafeWork NSW will also have enhanced powers to issue notices to direct the removal of prohibited asbestos in workplaces if it reasonably believes asbestos is present in the workplace. There will also be penalty provisions for non-compliance with a notice as follows:
Given these changes, PCBUs should review their existing work health and safety framework including policies and risk assessments to ensure that they are compliant, as well as implementing ongoing WHS training for officers, agents, employees, and directors.
*Using penalty unit values for the current 2023/24 financial year. The value of a penalty unit increases each year in accordance with section 242B of the Work Health and Safety Act 2011 (NSW).
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Erin Lynch, Partner
Diana Diaz, Special Counsel
Nakita Rose, Associate