Recent NSW Work Health & Safety Law Reforms

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The NSW Work Health and Safety Act 2011 was amended on 10 June 2020 [Amendment (Review) Bill 2020 (NSW)], with a number of significant reforms introduced.

 The key changes to the WHS Act include:

  • The introduction of a “gross negligence” offence was added in to the Act as a Category 1 Offence (in addition to the existing “reckless conduct” offence).
  • Increased WHS Act penalties
  • Prohibition of certain insurance arrangements

Gross Negligence

Gross negligence is defined under common law as ‘such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment’.

What does this mean in workplace terms? Anyone in your workplace who has a health and safety duty but, without a reasonable excuse, exposes an individual to a risk of death, serious injury or serious illness through an act of gross negligence.

This term was added to the existing “reckless conduct” offence, which applies to anyone who recklessly engages in conduct that exposes an individual, to whom they owe a health and safety duty, to a risk of death, serious injury or serious illness. Prosecution under this kind of conduct requires evidence of some foresight of the risk.

It is expected that the amendment will make it easier to prosecute Category 1 offences for the most serious safety shortcomings, which previously (in most circumstances) required proof of a conscious choice to take an unjustified risk.

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Increased WHS Act Penalties

At the time of legislation, a penalty unit has the monetary value of $100 (AUD) but will increase on 1 July each year in accordance with the Consumer Price Index (CPI).

The maximum penalties now available under the WHS Act for Category 1, 2 and 3 are:

Maximum Penalties in NSW under the WHS Act

                                                                       [One Penalty Unit = $100]

Category of Offence Individuals

PCBUs

(as an Individual or an officer of a PCBU)

PCBUs

(Body Corporate)

Category 1

[Section 31 of Act]

Gross Negligence or

Reckless Conduct.

3,465 penalty units or

5 Yrs imprisonment – or both

6,925 penalty units or 5 Yrs imprisonment – or both 34,630 penalty units

Category 2

[Section 32 of Act]

Failure to comply with a health and safety duty that exposes an individual to a risk.

1,730 penalty units 3,465 penalty units 17,315 penalty units

Category 3

[Section 33 of Act]

Failure to comply with a health and safety duty.

575 penalty units 1,155 penalty units 5,770 penalty units

Prohibition of Certain Insurance Arrangements

An amendment to section 272A of the WHS Act now prohibits insurers and insureds from entering into insurance contracts that indemnify an insured for monetary penalties under the WHS Act.

How can TigerFleet help?

The changes implemented under the Amendment (Review) Bill 2020 (NSW) mean that it is more important than ever for General Managers, Chief Executive Officers and other senior managers to ensure that they are exercising due diligence in their daily activities and ensure that their organisation has comprehensive safety management systems in place and quality assurance processes that verify the ongoing effectiveness of those systems and overall compliance with Work Health & Safety laws.

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For the full version of the Work Health and Safety Act 2011 No 10 visit NSW Legislation or copy and paste https://www.legislation.nsw.gov.au/#/view/act/2011/10/full into your browser

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Coronavirus Detection and Prevention

Symptoms of COVID-19

Symptoms of COVID-19 include fever, cough, runny nose and shortness of breath.

In more severe cases, infection can cause pneumonia with severe acute respiratory distress.

How COVID-19 is spread

    Human coronaviruses are spread from someone infected with COVID-19 to other people in close contact

    • through contaminated droplets spread by coughing or sneezing, or
    • by contact with contaminated hands, surfaces or objects.

    When COVID-19 symptoms appear

      The time between exposure to the virus and the first appearance of symptoms is typically 5 to 6 days, although it may range from 2 to 14 days.

      For this reason, people who might have been in contact with someone confirmed to have COVID-19 are being asked to self-isolate for 14 days.

      To help prevent the spread of COVID-19 (or the flu):

      • wash your hands frequently with soap and water, before and after eating, and after going to the toilet
      • cough into your elbow or into a tissue and immediately put the tissue in the bin, and
      • if unwell, avoid contact with others (stay more than 1.5 metres from people).

      When to get tested for COVID-19

        Testing for COVID-19 is recommended for:

        • anyone returning from overseas travel who develops symptoms within 14 days of return
        • people who have been in close contact with someone confirmed to have COVID-19 and develop symptoms within 14 days of last contact  
        • people admitted to hospital with severe respiratory infection, even if they haven’t returned from overseas travel.

        How COVID-19 is diagnosed

          Infection with COVID-19 is diagnosed by finding evidence of the virus in respiratory samples such as swabs from the back of the nose and throat or fluid from the lungs.

          Samples for testing can be taken:

          • directly by GPs, or
          • at private pathology sites across NSW suitable for collection of COVID-19, or
          • at public hospitals across NSW.

          How COVID-19 compares with the flu

          The Five Steps to Kicking Out Caronavirus (from the World Health Organisation)

          The World Health Organisation has advised that the five most important things you can do to protect yourself, other staff and the public are:

           

          • wash your HANDS regularly
            • using soap and water (at least 40 seconds is recommended)
            • using an alcohol-based handrub, particularly if hands are not visibly soiled, (a minimum 20 seconds is recommended) – on road operators and drivers should carry additional handrub.
          • practice good respiratory hygiene/etiquette. cover your mouth while coughing or sneezing with a tissue or inside of ELBOW, and dispose of tissue immediately into a sealed container or biohazard bin
            • wash your hands after coughing or sneezing, or handling contaminated tissues
            • turn your head away from others when coughing or sneezing
          • avoid touching your FACE, particularly your eyes, nose and mouth (even if wearing gloves)
          • maintain a DISTANCE of at least 1 metre from other people
          • stay at home if you FEEL unwell or have symptoms of acute respiratory infection, wear a surgical face mask when in the presence of others who may be at risk, and seek medical care if you exhibit respiratory distress

          Keep Yourself Updated with the Facts (not everything you read on the internet is true!)

          We urge everyone to take steps to maintain their health and wellbeing, and to help Stop the Spread of coronavirus (COVID-19). The health authorities are continually updating advice on the impact of coronavirus (COVID-19), and we recommend that you all keep yourselves updated with the information on the Australian Government Department of Health website – www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert