By Michael Selinger and Chloe Hamer -
Snapshot
- The Work Health and Safety Amendment Bill 2023 was passed in October 2023. The Bill increases the maximum penalty for work health and safety offences from 1 July 2024.
- The District Court recently examined the primary duties of an organisation or person conducting a business or undertaking pursuant to the Work Health and Safety legislation.
- The decision demonstrates the importance of adopting a rigorous risk assessment approach in the workplace, especially where work patterns or processes evolve over time.
Organisations are increasingly being required to take more active steps to ensure the physical and psychological health and safety of their workforce. With the recent introduction of new safety laws in New South Wales, there has never been a more important time for employers to understand and comply with their obligations under the Work Health and Safety (‘WHS’) legislation.
In this article, we:
- provide background to the recent legislative changes in NSW, outline the key WHS duties and potential liability for employers;
- examine the recent decision of SafeWork NSW v JBS Australia Pty Ltd (No 3) [2023] NSWDC 382 (‘SafeWork NSW v JBS’) as an example of how courts in NSW decide whether organisations have breached their WHS duties; and
- outline the practical steps of a WHS prosecution.
Recent focus on WHS
A 2018 independent review of the WHS laws operating in Australia precipitated the move to introduce significant changes to the WHS legislation. The review of those laws, which are largely uniform across all jurisdictions except for Victoria, was conducted by the former Executive Director of SafeWork SA (and now CEO of Safe Work Australia), Marie Boland (‘Review’).
The Review proposed 43 recommendations including:
- implement regulations dealing with psychosocial risks;
- increase penalty levels;
- introduce industrial manslaughter offences; and
- prohibit insurance for WHS penalties.
