The only way is up: What you need to know about increased penalties and other changes to NSW WHS laws

The NSW Government is clearly ‘making good’ on its election promise to review and update the NSW work health and safety (WHS) legislation to better align with the Model Work Health and Safety Laws, as well more robust obligations for persons conducting a business or undertaking (PCBU).

Penalty provisions

The most important change is an increase to the maximum penalty for ‘category one’ offences, which relate to gross negligence or reckless conduct offences. From 1 July 2024, the following maximum penalties will apply:

• for an individual, PCBU or an officer of a PCBU – penalties of up to approximately $2,168,028.45* or 10 years in prison, or both;
• for an individual, otherwise – penalties of up to approximately $1,041,991.02* or 10 years in prison, or both; or
• for a company – penalties of up to approximately $10,424,982.96*.

There will also be increased penalties for ‘category two’ and ‘category three’ offences, which relate to failures to comply with health and safety duties. For example, these penalties range between $69,981.03* and $2,089,977.12* depending on the offence category and whether the offence is by an individual, an individual, officer of a PCBU, or a company.

Imputation of conduct

From 24 October 2023:

• the conduct of a company’s officers, agents. employees as well as the board of directors can be considered as a whole in determining whether a company has committed an offence;
• where intention, knowledge or recklessness is the required state of mind of the company, it is sufficient to show that the company’s officers, agents, employees, or board of directors intentionally, knowingly, recklessly engaged in the conduct or expressly, tacitly or impliedly authorised or permitted the carrying out of the conduct; and
• it is also sufficient to show a corporate culture existed within a company that directed, encouraged, tolerated or led to the carrying out of the conduct.

If a company shows that it has taken reasonable precautions to prevent the conduct or authorisation of the conduct, this will be a defence.

Silica and asbestos provisions

From 24 October 2023, SafeWork NSW has powers to establish a ‘silica worker register’. A PCBU will be required to give SafeWork NSW information for inclusion on the register which is not publicly available. Again, there are penalty provisions for non-compliance.

From 24 April 2024, SafeWork NSW will also have enhanced powers to issue notices to direct the removal of prohibited asbestos in workplaces if it reasonably believes asbestos is present in the workplace. There will also be penalty provisions for non-compliance with a notice as follows:

• for an individual – up to approximately $139,039.74*;
• for a company – up to approximately $694,968.12*.

What employers need to be doing now to prepare

Given these changes, PCBUs should review their existing work health and safety framework including policies and risk assessments to ensure that they are compliant, as well as implementing ongoing WHS training for officers, agents, employees, and directors.

*Using penalty unit values for the current 2023/24 financial year. The value of a penalty unit increases each year in accordance with section 242B of the Work Health and Safety Act 2011 (NSW).

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Authored by:

Erin Lynch, Partner
Diana Diaz, Special Counsel
Nakita Rose, Associate