The NSW Government has conducted a mandatory statutory review of the Work Health & Safety Act 2011 (NSW) (WHS Act) and recently published a report titled “Work Health and Safety Act 2011 Statutory Review Report – June 2017” (the Report), in which it made 11 key recommendations.
Scope of the review
The statutory review, which was to be conducted five years after the WHS Act commenced operation, was limited to those provisions in the WHS Act that are specific to NSW, as distinct from those that form the Model WHS laws.
The central question of this review was whether the NSW specific terms still achieve valid WHS purposes.
Findings and recommendations
Overall, the review concluded that those terms within the WHS Act remain valid and are generally appropriate to secure WHS objectives.
However, the review did identify a number of provisions that should be amended.
Of particular significance, the review raised concerns that the penalties associated with breaches of the WHS Act, such as those relating to heights, are not effectively deterring PCBUs from repeatedly breaching the WHS Act.
A ‘person conducting a business or undertaking’ (PCBU) is a legal term under WHS laws for individuals, businesses or organisations that are conducting business. A person who performs work for a PCBU is considered a worker.
It noted a “gap” that presently exists between the issuing of penalty notices and higher level sanctions that are only imposed after an incident has occurred.
A recommendation was made to increase penalty notice offences “to send an early signal to non-compliant PCBUs that non-compliance is unacceptable”.
In summary, the recommendations outlined in the Report that would have the most significance for employers, if implemented, are:
- The introduction of new penalty notice offences to include breaches of:
a. the requirements for authorisation of work (section 43 of the WHS Act); and
b. Part 4.4 of Chapter 4 of the WHS Regulation on “falls”.
- A review of whether any other penalty notice offences should be included.
- A review of the adequacy of the current penalty notice amounts specified in the WHS Regulation.
- An extension of the Regulator’s powers to extra-territorial application of the WHS Act, to the extent that the State’s legislative power allows, to obtain records and issue notices outside of NSW. This is similar to powers already granted in South Australia, the ACT and the Commonwealth.
- Express provision in the WHS Act that consent is not required for an interview to be recorded by an inspector, subject to the interviewee being given notice that the interview is being recorded.
- Introduction of a consultation forum in which Regulators and unions might be able to develop and share advice and assistance and also resolve issues.
- Changes to electronic communication including:
a. the service of penalty notices by electronic means; and
b. the removal of facsimile as means for accepting notifications of incidents.
- Clarification as to who is a duty holder for the storage and handling of certain dangerous goods or for the operation or use of high risk plant when not at a workplace.
- A review on technical arguments on the appointments and delegations of the Regulator in bringing WHS proceedings, which detract from the real substance of proceedings.
The Report was tabled in the NSW Parliament on 22 June 2017 and it is expected these recommendations will be accepted and implemented by the end of this year.
Employers should closely monitor the passage of these recommendations into State legislation.
In the meantime, steps should be taken by employers to review work, health and safety practices within their workplace to ensure compliance in all aspects of work, health and safety regulations – before more stringent penalties are introduced.