In brief

Yesterday the newly elected O’Farrell Government passed into statute the model work health and safety laws. This legislation has been developed by Safe Work Australia and is part of a national effort to introduce into all jurisdictions consistent workplace safety laws.

The passing of the Occupational Health and Safety Amendment Act 2011 (NSW) and the Work Health and Safety Act 2011 (NSW) (WHS Act) follows on from last week’s enactment of the model workplace safety laws in Queensland and the recent re-introduction of the legislation to the Parliament of South Australia.

This article examines the key changes under the WHS Act, including the amendments made by the NSW Legislative Council. This article also examines the extent to which the WHS Act differs from the Queensland Act and whether these differences pose a real risk to the goal of nationally harmonised workplace safety laws.

The key changes under the WHS Act

The key changes to existing safety NSW laws under the WHS Act are summarised below:

Changes to onus of proof

The WHS Act changes the existing requirement for the defendant to establish that they had taken all reasonably practicable steps to prevent the risk to health and safety occurring. Under the WHS Act, the obligation is upon the prosecutor to prove that the defendant did not take all reasonable steps. This change requires the prosecutor to more clearly particularise the failings of the defendant and outline, in precise terms, what the defendant could reasonably have done to prevent the risk to health and safety.

Changes to manager and director liability

The WHS Act changes key aspects of existing manager and director liability. First, it replaces the broad term of ‘directors and managers’ with the better understood term of ‘officers’, as defined by the Commonwealth Corporations Act 2001. Secondly, it replaces the term ‘all due diligence’ with ‘due diligence’ and includes a definition of due diligence. These changes place a positive duty on company officers to enquire and monitor their company’s safety performance and assist company officers to better understand their safety obligations.

In respect to all the changes under the WHS Act it is expected officers’ obligations are likely to have the most significant impact. This is because companies will need to:

  • establish appropriate governance arrangements and systems to ensure that information regarding safety matters is made available to all relevant company officers, and
  • provide training to company officers to assist them to understand how to respond appropriately to this information.

Restriction on unions’ right to prosecute and collect moiety

This change restricts the power of a secretary of an industrial organisation (e.g. union) to commence prosecutions, so that now they can only commence a prosecution for an alleged Category 1 or Category 2 safety offence when the regulator (eg WorkCover NSW) declines to take the advice of the Director of Public Prosecutions to bring proceedings. Another key change is that when such a prosecution is taken by the union and ultimately proves successful, the court no longer has the power to issue that a moiety (half of the fine) be paid to the union.

Under the model laws and the original WHS Bill passed by the NSW Legislative Assembly, unions did not have any power to prosecute for safety offences. However this limited right was included in the WHS Bill in recent days when the Bill went before the NSW Legislative Council. This amendment passed into statute when the newly amended WHS Bill was ultimately passed by the NSW Legislative Assembly.

Change to court’s jurisdiction

Another recent change initiated by the NSW Legislative Council was the re-introduction of a role for the Industrial Court of NSW. In the original WHS Bill all civil and criminal offences were to be heard in the mainstream courts, however the Bill was changed to provide the Industrial Court of NSW with jurisdiction to also hear civil offences and some less serious criminal offences.

Civil offences relate to those matters concerning discriminatory conduct and union officials failing to properly exercise their powers to enter and inspect a workplace. Civil offences are different to the substantive category 1, 2 and 3 offences which are criminal in nature and arise as a consequence of a person failing to meet their duty of care under the WHS Act.

These amendments mean that under the WHS Act the jurisdiction for category 3 offences also sits with both the Industrial Court and the Local Court. The jurisdiction for the more serious category 1 and 2 offences remains with the Local Court of NSW and the District Court of NSW. 

Despite the Industrial Court and the Local Court sharing jurisdiction for category 3 offences, it seems unlikely that any offences under the WHS Act will be heard the Local Court. This is because, unlike the Industrial Court or District Court, the Local Court is limited to imposing a maximum penalty of $50,000 and the prosecutor has the option to decide which court to bring proceedings.

These changes add an unexpected level of complexity to the prosecution of civil and criminal offences under the WHS Act which will be unique to NSW.

The table below summarises each category of offence, the maximum penalty and the responsible court.

Click here to view the table.

In addition, the NSW Legislative Council removed the right of the District Court to make guideline judgments.

Is the NSW Act consistent with the Queensland Act?

Even taking into account the recent amendments by the NSW Legislative Council, there are no material differences between the NSW WHS Act and the Queensland WHS Act. In fact the similarities of two Acts are greater than first anticipated as the Queensland WHS Act adopts the same approach taken by NSW in respect to transferring jurisdiction for criminal matters from the industrial magistrate’s court to the mainstream criminal court.

This transfer of jurisdiction is a significant development in the movement towards nationally consistent laws. This is because, after 1 January 2012, Queensland and NSW will join Victoria in hearing all safety offences in the mainstream criminal courts. This common approach will allow the decisions of each state court to be applied as persuasive authorities in other state courts and thereby greatly assist the development a body of common law which can, for the first time, be used nationally. 

Conclusion

The enactment of the model safety laws in Queensland and NSW, and the introduction of the WHS Bill into the Parliament of South Australia highlights the momentum that harmonisation has gathered.

While it is expected individual jurisdictions will maintain some elements of their pre-existing safety laws, these differences are likely to be minor, and ultimately do not go to what a person’s obligations are under the legislation, but rather to what consequences may flow from failing to meet these obligations.

Therefore, the focus should remain on preparing for the commencement of these laws and, in particular, the steps necessary so that company officers are able to meet their obligation to take proactive and appropriate measures to ensure their corporation is meeting the obligations under the legislation.