Time to take 5: Proposed changes to the NSW WHS Act

What you need to know

The NSW Government has reviewed the Work Health and Safety Act 2011 (NSW) and made 11 key recommendations that are expected to be introduced in an amendment Bill later this year. The changes relate to:

• the power for the regulator to audio record interviews without an individual's consent
• new penalty notice offences 
• increased penalty amounts  
• extraterritorial powers granted to the regulator; and 
• the introduction of a stakeholder consultation forum. 

What you need to do

• This review was limited to the NSW-specific provisions in the WHS Act, rather than the provisions from the model WHS laws. Employers should monitor the passage of any amendment Bill introduced to implement the recommendations.
• In 2018, there will be a review of the model WHS law, conducted on a national basis, which will include consideration of the general duties. Employers should start to consider any submissions they may wish to make to that review.

Review of the Work Health and Safety Act 2011 (NSW) – The Department's views after the first 5 years of operation

It has now been five years since the WHS Act commenced operation in NSW. In accordance with statutory requirements to review the WHS Act's effectiveness, the Department of Finance, Services and Innovation undertook a review, and prepared the Work Health and Safety Act 2011 Statutory Review Report. The Report was tabled in the NSW Parliament on 22 June 2017.

The review focussed on NSW-specific provisions contained in the WHS Act and Regulation. It did not seek to address the provisions that are common across the harmonised laws. The Commonwealth, States and Territories have agreed to conduct a national review of the model WHS law in 2018. 

The Report found that the objects of the WHS Act remain valid and its terms generally appropriate to secure the objectives of the legislation, but made 11 recommended changes. These will be of practical relevance to all duty holders in NSW if implemented.

What do you need to know about the recommendations?

Report findings on the impact of the Act to date

The Report noted about the operation of the Act to date:

• rates of serious incidents have fallen since the introduction of the model laws
• overall, the objectives of the Act were not causing unnecessary cost for business, but additional materials, incentives and education from the Regulator would further assist businesses to reduce their costs
• no prosecutions by a secretary of a union have been commenced under the WHS Act to date, which, the Report says, may serve as an indication that the regulators are commencing prosecutions where required. This may support the calls of some that this provision should be repealed (although the Report does not go so far as to recommend the provision permitting a union to prosecute be removed)
• technical challenges to a Regulator's authorisation to bring proceedings add significant time and cost to proceedings and "only serve to distract from the core issues in contention." The Report recommends amendments to the WHS Act to address issues about the valid authorisation of proceedings;
• suggestions to introduce a "check inspector system" similar to that in coal mining. This would involve professionals from each high risk industry undertaking the SafeWork NSW Inspector training program and given additional powers as an authorised officer. This proposal will be forwarded to SafeWork NSW for consideration; and
• less time taken to determine WHS matters since WHS powers transferred from the Industrial Court to the District Court in 2013.

Authors: Trent Sebbens, Partner; Julia Sutherland, Counsel; and Louise Ritchard, Lawyer.