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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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