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2 Jun 11
NSW Work Health and Safety Bill passes through Parliament - the disharmony of harmonisation

The pathway towards harmonised national work health and safety legislation by 1 January 2012 took the final step in NSW with passing of the Work Health and Safety Bill 2011 (Bill) through NSW Parliament yesterday (1 June 2011).

The process in this state has however been marred by political compromise and lack of consensus given that less than one month after the NSW Government placed the Bill before Parliament, it has had to compromise on two of it’s key changes in order to push the legislation through the Upper House, where it does not hold a firm majority.

The Government needed to vote with the cross benchers on changes to the Bill in order to pass the legislation in the Legislative Council. These changes will make NSW the recalcitrant state under the harmonisation model on two key issues, being the right to allow Unions the power to prosecute for breaches and a compromise on jurisdiction, that will see the criminal courts not have sole jurisdiction and the NSW Industrial Court continuing to play a role in the enforcement of the new legislation, albeit in a far more limited capacity to that which presently exists.

On Friday 27 May 2011, the members of the Legislative Council voted (20 to 19) in favour of amendments to the Bill and the passing of the legislation.

The amended Bill was considered yesterday by the Legislative Assembly and despite expressions of disappointment by the Government was passed as amended. It will commence operation on 1 January 2012.

Under the present Occupational Health and Safety Act 2000 (NSW), Unions have enjoyed the right to prosecute companies and individuals for safety related offences, receiving a moiety (half of any penalty) for successful prosecutions.

Under the amended Bill there will be two changes to union prosecution powers as follows:

  • Unions may only prosecute a Category 1 or a Category 2 offence, and only if WorkCover have failed to do so and have declined to follow the advice of the Director of Public Prosecutions to commence any proceedings, and
  • Unions will no longer receive a portion of the penalty or a moiety.

Another change contained in the amended Bill is the inclusion of NSW Industrial Court in a shared jurisdictional arrangement with the Local Court on Category 3 offences and for Appeals from the Local Court. In the initial Bill, jurisdiction was to be completely taken away from the Industrial Court and given to the criminal courts.

Category 1 and 2 offences will be heard by the District Court, with Category 1 offences being treated as indictable offences.

Other key changes to the current Act include:

  • removal of the reverse onus of proof to make out a defence
  • removal of deemed offences for directors and persons concerned in the management of corporations
  • significantly increased penalties of up to $3 million for Corporations and $600,000 and 5 years gaol for company officers
  • strict due diligence requirements for company officers
  • increased consultation responsibilities between all duty holders
  • a wider scope of duty holders beyond just employers and employees
  • the requirement to elect health and safety representatives with powers to issue stop work orders and issue improvement notices, and
  • a primary duty of care that requires a the primary duty holder to do all that is reasonably practicable to ensure the safety of workers.

The amended Bill is currently not available via Government sources however a PDF link to the first print version and an extract document in PDF setting out the amendments to the Bill are attached:

  • first print version, and
  • extract document.

McCullough Robertson has developed a one hour briefing session on the Bill and the key areas of change for its clients as a free/value add offering either at your own site or offices or via video link conference/skype. To take advantage of this offer please contact Jeremy Kennedy, Partner on 02 4924 8900.

For up to the hour updates on developments in relation to the Work Health and Safety Legislation and Harmonisation, link in with Jeremy Kennedy on LinkedIn, subscribe to Workplace Health & Safety Lawyer discussion group on LinkedIn or follow Jeremy on Twitter @WHSLawyer.

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
 

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