Changes to WHS laws passed and industrial manslaughter laws on the horizon in NSW

Insights23 Oct 2023

By Clare Kerley, Alison Baker, Fay Calderone, David Catanese, Aaron Dearden, Kristopher Kunasingam, Rosemary Roach and Karl Rozenbergs

Increased maximum penalties for offences, an ‘asbestos notice’ regime and a silica worker registration are some of the changes proposed under the Work Health and Safety Amendment Bill 2023.

By Clare Kerley

Increased maximum penalties for offences, an ‘asbestos notice’ regime and a silica worker registration are some of the changes proposed under the Work Health and Safety Amendment Bill 2023 (Bill), passed by the NSW Parliament on 12 October 2023. The Bill makes amendments to the Work Health and Safety Act 2011 (NSW) (WHS Act) and Work Health and Safety Regulation 2017 (NSW) (WHS Regulations). The NSW Government has also flagged that it will introduce an industrial manslaughter offence in NSW.

Key changes proposed by the Bill

Increased maximum penalties

One of the most significant changes introduced by the Bill is the increase in the maximum penalties for offences under the WHS Act, effective 1 July 2024. The below table sets out the increased maximum penalties for each category of offence.

Offence	Previous Maximum Penalty	New Maximum Penalty
Category 1	Body corporate: $3,992,492.70 (34,630 penalty units)	Body corporate: $10,424,983.96 (90,424 penalty units)
	Individuals as a PCBU or officers of a PCBU: $798,383.25 (6,925 penalty units) and/or 5 years jail	Individuals as a PCBU or officers of a PCBU: $2,168,028.45 (18,805 penalty units) and/or 10 years jail
	Other individuals: $399,479.85 (3,465 penalty units) and/or 10 years jail	Other individuals: $1,041,991.02 (9,038 penalty units) and/or 10 years jail
Category 2:	Body corporate: $1,996,246.35 (17,315 penalty units)	Body corporate: $2,089,977.12 (18,128 penalty units)
	Individuals as a PCBU or officers of a PCBU: $399,479.85 (3,465 penalty units)	Individuals as a PCBU or officers of a PCBU: $418,041.54 (3,626 penalty units)
	Other individuals: $199,451.70 (1,730 penalty units)	Other individuals: $209,020.77 (1,813 penalty units)
Category 3:	Body corporate: $665,223.30 (5,770 penalty units)	Body corporate: $669,810.30 (6,070 penalty units)
	Individuals as a PCBU or officers of a PCBU: $133,159.95 (1,155 penalty units)	Individuals as a PCBU or officers of a PCBU: $139,962.06 (1,214 penalty units)
	Other individuals: $66,291.75 (575 penalty units)	Other individuals: $69,981.03 (607 penalty units)

*As at 20 October 2023, a penalty unit is $115.29. Please note the penalty unit rate is subject to change.

‘Asbestos notice’ regime

The Bill establishes the new ‘asbestos notice’ regime in NSW.

SafeWork NSW will now have the power to issue ‘prohibited asbestos notices’ if it reasonably believes prohibited asbestos is present in the workplace. The person conducting a business or undertaking (PCBU) must comply with all directions that are set out in the notice, which can include the management and safe removal of the asbestos.

The maximum penalty for not complying with such a notice is $694,968.12 for a body corporate.

These amendments come into effect six months after the Bill receives Royal Assent.

Imputation of conduct and state of mind

Clause 244 of the WHS Act currently provides that conduct engaged in by officers, employees or agents of the body corporate will be taken to be conduct of the body corporate if certain conditions are met.

The Bill extends the application of these imputation provisions to apply to the board of directors of the body corporate.

In addition, the Bill creates new provisions which state that if it is necessary to establish a state of mind of a body corporate in relation to the commission of an offence, it will be sufficient to show that:

the board of directors or authorised persons engaged in the conduct intentionally, knowingly or recklessly; or
the board of directors or authorised persons expressly, tacitly or impliedly authorised or permitted the conduct; or
a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the carrying out of the conduct.

The Bill also introduces a defence available to body corporates where they can establish that they took ‘reasonable precautions’ to prevent the conduct or prevent the authorisation of the conduct.

These amendments come into effect on the day the Bill receives Royal Assent.

Silica worker registration

The Bill also gives SafeWork NSW the ability to establish and keep a ‘silica worker register’. A PCBU must provide information to SafeWork NSW for inclusion on the silica worker register.

Only SafeWork NSW, Insurance and Care NSW or a government sector agency prescribed by the Regulations will be able to access and use the register.

These amendments come into effect on the day the Bill receives Royal Assent.

Insurance policies

The WHS Act will also now make clear that a term of an insurance contract is void to the extent it purports to cover a person for all or part of a liability for a monetary penalty under the NSW Act.

Industrial manslaughter law

In addition to the amendments proposed by the Bill, the NSW Government announced last week that it will introduce an industrial manslaughter offence in NSW.

SafeWork NSW and the NSW Government will begin the consultation process in the upcoming weeks and the NSW Government intends to introduce a Bill to Parliament in the first half of 2024.

Recommendations for PCBUs

In light of these amendments and the increased regulatory action taken by SafeWork NSW and other authorities, it is prudent for PCBUs to regularly review their existing WHS management systems and frameworks to make sure that they are fit for purpose.

Hall & Wilcox can assist you if you have any questions about the proposed changes in the Bill or require advice about complying with your work health and safety obligations.

This article was written with the assistance of Cassandra Goldman, Law Graduate.