There are key changes under the Work Health and Safety (WHS) Act to the existing safety laws in NSW.

The obligation to prove that the defendant did not take all reasonable steps is now on the prosecutor, rather than the defendant having to establish that they had taken all reasonably practicable steps to prevent the risk to health and safety occurring. The prosecutor is required to clearly identify the failings of the defendant by outlining what the defendant could reasonably have done to prevent the risk to the health and safety.

Changes to manager and director liability:

The terms “directors” and “managers” have been changed to the term “officers”, as defined by the Commonwealth Corporations Act 2001.

In addition, the term “all due diligence” has been replaced with “due diligence”, placing a positive duty on company officers to monitor safety performance for their company.

In respect of these changes officers’ obligations will require them to:

–       Establish appropriate systems to ensure information in relation to safety matters in their company is made available to officers.

–       Provide training to officers to assist them understand and respond appropriately to safety matters.

Restriction on unions’ right to prosecute and collect moiety:

This change restricts the power of a secretary of an industrial organisation to commence prosecutions.  The commencement of prosecution for an alleged (category 1 or 2) safety offence can only occur now when the regulator (e.g. WorkCover NSW) declines to take the advice of the Director of Public Prosecutions to bring proceedings.  In addition for those prosecutions taken by the union and are proven successful, the court no longer has power to issue a moiety (half of the fine) be paid to the union. 

Changes to Court’s Jurisdictions:

The reintroduction of a role for the Industrial Court of NSW was another recent change initiated by the NSW Legislative Council, for civil offences and some less criminal offences.

The amendments under the WHS Act mean the jurisdiction for category 3 offenses also now sits with both the Industrial Court and the Local Court. The jurisdiction for more serious offences (category 1 & 2) remain with the Local Court of NSW and the District Court of NSW. However, the local court is limited to imposing a maximum penalty of $50 000.00 and the prosecutor has the option to decide which court to bring proceedings.

Some of the new terms in the legislation include:

PCBU – “persons conducting a business or undertaking” has replaced the term “employers”.  A PCBU has a primary duty of care to ensure workers and others are not exposed to health and safety risks while at work in the business or undertaking.

Officers – is a broad term that applies to people who can make decisions that significantly affect a business or undertaking.  Officers must exercise due diligence to ensure health and safety obligations are being met for their business or undertaking.

Worker – A person who performs work in any capacity for a business or undertaking (i.e. labour hire staff, volunteers, contractors, sub contractors, work experienced students, trainees, apprentices etc.)

HSRs – “Health and Safety Representatives” play an important role in representing the health and safety interests of workers in a work group.

Penalties for non-compliance can be tough and officers of companies need to be diligent with ensuring compliance with the new WHS laws.

Now might be an appropriate time to undertake an audit of your Work Health and Safety practices, to assist minimise business risk and initiate a checklist to address any non-compliance.

For the latest on the new laws or how to prepare your business, visit the WorkCover  website workcover.nsw.gov.au/newlegislation2012