Changes to NSW work health and safety legislation an important reminder for organisations

Changes to NSW’s Work Health and Safety Act (WHS Act) came into effect on 1 July via the Work Health and Safety Amendment Bill 2023 (15-page / 227KB PDF), which clarifies managers’ duties and significantly increases penalties for conduct that places workers at risk.

In addition, the NSW Parliament passed the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (7-page / 217KB PDF) into law on 24 June, introducing the offence of industrial manslaughter to NSW legislation. A commencement date for the amended Act has not yet been set.

These changes highlight the NSW Government’s intention to crack down on those who breach their WHS duties by significantly increasing maximum penalties and jail sentences. NSW was the second last state to pass industrial manslaughter laws, with Tasmania now the only state remaining without industrial manslaughter legislation - though a bill has been prepared.

Changes to NSW Work Health and Safety Act

The amended NSW WHS Act removes previous ambiguity and clarifies that an officer who has a health and safety duty to a worker, can commit a Category 1 offence – that is, an offence resulting from gross negligence or reckless conduct that exposes a worker to a risk of death, serious injury or illness. This, in our view, has always been the case, but the legislation now makes it explicit.

From 1 July, there are increased penalties for failures to comply with the primary health and safety duties. In particular, the penalties for Category 1 offences have been significantly increased, with the maximum jail time for officers doubling from five to 10 years.

The new penalty increases bring NSW in line with the equivalent increases to penalties in the model Work Health and Safety Act – which was first developed by national policy body Safe Work Australia in 2011 to be used as a foundation by jurisdictions across Australia – and makes NSW one of the first jurisdictions in the country to increase its penalties in line with the model WHS Act and regulations.

Introduction of industrial manslaughter offence in NSW

The new Industrial Manslaughter legislation will allow for individuals or organisations to be held responsible for the death of an individual due to gross negligence if they had a clear health and safety duty to the individual.

Under the provision, an industrial manslaughter offence will be punishable by jail terms of up to 25 years for individuals and fines of up to AU$20 million (US$13.4 million) for organisations. The maximum jail time set out under the NSW provision is greater than that set out in the model WHS Act.

Gross negligence is already a key element of a Category 1 offence in NSW but, under the new industrial manslaughter provision, gross negligence may be evidenced by the fact that the conduct of a person conducting a business or undertaking was substantially attributable to:

• inadequate corporate management, control or supervision of the conduct of one or more authorised persons, or
• failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

The amendment does not provide a definition of authorised persons.

NSW’s new industrial manslaughter provision has some notable differences to other offences under the WHS Act and equivalent industrial manslaughter provisions in other states, including:

• for Category 1, 2 and 3 offences under the WHS Act, a regulator has two years from the date of the offence to commence proceedings, except where coronial proceedings have commenced. However, the prosecutor will not be restricted by a time limit for the industrial manslaughter charge – meaning that a prosecutor is free to bring a charge 10, 20 or 30 years after a fatality;
• volunteer workers cannot be charged with the offence of industrial manslaughter;
• a newly established specialist unit within the Office of the Director of Public Prosecutions will oversee indictable prosecutions – these being offences committed by individuals with serious penalties, including imprisonment; and
• individuals charged with industrial manslaughter will be entitled to a trial by jury.