Legal Update – Latest Reforms to Work Health and Safety Laws in NSW

The long-awaited industrial manslaughter laws are among several amendments to the Work Health and Safety Act 2011 (NSW) (WHS Act) passed by the NSW Government on 20 June 2024. The amendments coincide with an increase in maximum penalties for WHS offences and a shift towards imputing conduct to body corporates. These reforms raise the stakes for businesses and their officers.

 Key Takeaways

  1. Industrial manslaughter laws have been passed by the NSW Government and will commence in the near future. While industrial manslaughter provisions will not impose new obligations on PCBUs or officers, the significant penalties that may result from a conviction add further pressure on PCBUs and officers to comply with their health and safety duties.
  2. From 1 July 2024, maximum penalties for serious WHS offences have also increased substantially under the WHS Act. PCBUs and officers must remain aware of their health and safety duties and implement appropriate WHS management systems to protect themselves and their businesses against prosecution and resulting penalties.
  3. The re-establishment of the Industrial Court of New South Wales marks a new era for prosecutions of WHS offences.

Industrial Manslaughter Laws

The Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (Bill), which received assent on 24 June 2024, achieved its primary objective of establishing an offence of industrial manslaughter in NSW. The new offence is the result of prolonged campaigning by interest groups including the Families and Injured Workers Support and Advisory Group. The enactment of an industrial manslaughter offence brings NSW in line with all other jurisdictions in Australia (except Tasmania). Upon the commencement date, which is yet to be proclaimed, the NSW industrial manslaughter offence will carry the highest maximum penalties of all jurisdictions being a $20 million fine for body corporates and 25 years imprisonment for individual offenders.

Under the new section 34C, a Person Conducting a Business or Undertaking (PCBU) or an officer of a PCBU will commit an industrial manslaughter offence if they have a health and safety duty and engage in conduct that constitutes a failure to comply with their health and safety duty, and cause the death of a worker or another individual to whom the health and safety duty is owed, and the PCBU or officer engaged in the conduct with gross negligence. Significantly, the industrial manslaughter provisions do not impose new work health and safety duties on PCBUs or officers.

Gross Negligence

The Bill clarifies through section 244BA that gross negligence may be established on the part of a body corporate, despite no individual authorised person having engaged in conduct with gross negligence. This can be established by aggregating the conduct of more than one authorised person.

In doing so, the Court will consider whether the conduct was substantially attributable to either:

  1. Inadequate corporate management, control or supervision of the conduct of one or more authorised persons; or
  2. Failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

There will be no limitation period for commencing proceedings for an industrial manslaughter offence nor will enforceable undertakings be available as an alternative to prosecution. Category one offences will be available as a statutory alternative in circumstances where the Court or a jury is not satisfied that industrial manslaughter has been made out but is satisfied that the person is guilty of meeting the threshold for a category one offence.

Increases to Maximum Penalties

As of 1 July 2024, maximum penalties for WHS offences have increased significantly in NSW. Category one offences relating to reckless or grossly negligent conduct have more than doubled from $3,992,492 for body corporates and $798,383 and / or 5 years imprisonment for officers prior to 1 July 2024 to now being $10,424,982 for body corporates and $2,168,028 and / or 10 years imprisonment for individuals.* Category two and three maximum penalties have also increased to a lesser extent. The value of a penalty unit also increased with indexation on 1 July 2024.

Industrial Court of New South Wales Commences

On 1 July 2024, the new Industrial Court of New South Wales commenced its operations as a superior court of record with the power to hear a range of work health and safety matters, including prosecutions for summary offences, and industrial manslaughter offences for body corporates. The Court will have three judges that specialise in WHS matters. The Industrial Court was reintroduced through the Industrial Relations Amendment Bill 2023 in December 2023 as a measure to enhance access to justice by creating a “one-stop shop” for workplace matters in NSW.

Get in Touch

With the introduction of industrial manslaughter laws and increased penalties for WHS offences, it is crucial that businesses review and update their workplace health and safety practices to ensure legal compliance and protect their workers. Our team is here to support you in navigating these changes and ensuring your business meets the new regulatory requirements.

For further details or assistance navigating industrial manslaughter laws, please contact Michael Tooma, Partner and Head of ESG.


*The value of a penalty unit increased with indexation on 1 July 2024.

KEY CONTACTS

Partner, Head of ESG, Co-head of Workplace & Safety