New amendments to the New South Wales work health and safety laws now include gross negligence under a category one offence.
A category 1 offence is the most serious breach of responsibility by a person who has a health and safety duty, where a duty holder recklessly exposes a person to the risk of death or serious injury.
As per the legislation, category 1 offences are subject to up to a $3 million fine for corporations, $600,000 and/or five years imprisonment for an officer or individual conducting either a business or undertaking and $300,000 and/or five years’ imprisonment for individual workers.
The 2020 amendments to the Work Health and Safety Act 2011 were passed by the NSW Parliament and came to effect on June 10.
They aim to improve compliance and enforcement measures for the NSW WHS regulators.
SafeWork NSW stated that the inclusion of gross negligence under the category 1 offence makes it easier to prosecute and create a stronger incentive for duty holders to manage WHS risks.
Other amendments to the Act prohibit any insurance and indemnity arrangements to prevent duty holders from avoiding the responsibility of paying WHS fines.
The penalty for all WHS offences has also increased in the 2020 amendments, in line with the Consumer Price Index to ensure penalties retain their deterrent value.
The time in which a person can ask the WHS regulators to start a prosecution in response to a category 1 or category 2 offence has been extended from 12 to 18 months.
Category 2 offences refer to failure to comply with a health and safety duty that exposes a person to risk of death, serious injury or illness. It is punishable by a fine of $1.5 million for corporations, $300,000 for individual conducting a business or undertaking or officers and $150,000 for individual workers or others.
The Act also obliges WHS regulators to provide updates every three months to the requester until a decision to prosecute is made. This will ensure that during investigations of workplace accidents, families are kept informed and have access to an effective review mechanism for decisions not to prosecute.
Under the act, a Health and Safety Representative (HSR) can choose their course of training to avoid unnecessary delays which can affect an HSR’s ability to fulfil their role and exercise their powers.
WHS legislation provides a range of corrective processes and enforcement options, including provisional improvement notices issued by HSRs, improvement and prohibition notices and on-the-spot fines issued by the WHS regulator’s inspectors, and prosecutions that could result in heavy fines or other penalties.