The Occupational Health and Safety Amendment Bill 2011 (NSW)
('OHS Amendment Bill') and the Work Health
and Safety Bill 2011 (NSW) ('WHS Bill')
were introduced to Parliament on 5 May 2011. Since that time the
bills have been the subject of considerable debate publicly and in
the Parliament and the final amended WHS Bill has now been passed
on 27 May 2011.
The WHS Bill will enact the Federal Government's proposed
national Model Work Health and Safety Bill and takes over from the
current Occupational Health and Safety Act 2000 (NSW)
('OHS Act') on 1 January 2012.
The OHS Amendment Bill has also been introduced to Parliament
and it will alter the provisions of the current OHS Act to reflect
the core changes contained in the WHS Bill and the
'harmonised' legislation to essentially 'phase in'
the new, national system.
Work Health and Safety Bill
The effect of the Bill and the most recent amendments will be to
transfer much of the jurisdiction from the NSW Industrial Court
('IRC') to the criminal divisions of the
Under the amended WHS Bill that was passed on 27 May 2011 the
IRC will maintain its jurisdiction over Category 3 offences, that
is those where a person has a health and safety duty and the person
fails to comply with that duty. The Category 1 offences (reckless
conduct which exposes a person to death serious injury or illness)
and Category 2 offences (where a person has a health and safety
duty and the person fails to comply with that duty and the failure
exposes a person to a risk of death, serious injury or illness)
that will move to the District and Supreme Court under their
Occupational Health and Safety Amendment Bill: Core changes
under the harmonised scheme
Duties of employers
The current OHS Act imposes a duty on employers to
The health, safety and welfare of employees while they are at
The health, safety and welfare of other persons as a result of
the employer's business.
This duty has been interpreted by the courts as being an
absolute duty, with employers carrying the burden of proving one of
the following two defences:
It was not 'reasonably practicable' for the employer to
comply with its duty
The breach of the employer's duty was caused by factors
outside the employer's control and it was impracticable for the
employer to take preventative measures against these factors.
This reverse onus sets the burden squarely on the shoulders of
employers and presents great difficulty for employers attempting to
establish a defence.
The OHS Amendment Bill will modify the employer's duty so it
becomes a duty to ensure 'so far as is reasonably
practicable' the health, safety and welfare of their employees
and others affected by their operations. This will thereby require
WorkCover to prove what was reasonably practicable and will remove
the need for the employer to establish that it was not reasonably
practicable to comply with the duty.
It is important for employers to note that 'so far as
reasonably practicable' refers not only to eliminating safety
risks, but if a risk can't be eliminated then it must be
minimised – 'so far as reasonably
The liability of Directors and 'Concerned Persons'
The proposed WHS Bill removes the deemed liability of directors.
Instead, company officers will be required to exercise due
diligence to ensure their business is OHS compliant. Company
officers will be required to:
Acquire up-to-date knowledge of work health and safety
Understand the safety hazards and risks associated with the
operations of the business
Ensure the business has appropriate processes and sufficient
resources to comply with its duty.
The 'due diligence' required by the Bill is not a
defence, as it is under the current law, but rather a positive duty
Union Powers to Initiate Prosecutions
Under the recent amendments to the Bill, unions will only be
able to initiate prosecutions for safety breaches when WorkCover
declines to do so. The union must firstly seek a review by the
Director of Public Prosecutions and if the prosecution has merit
and WorkCover again declines to proceed the union may initiate the
What will these changes mean for employers?
Potentially greater uniformity in occupational health and
safety regulation across Australia
Employers have a duty to ensure health and safety as far as is
'reasonably practicable' in the circumstances and any
breach must be proved by the prosecutor
A streamlined and legislated formula for the definition of
'reasonable practicable' to assist employees in satisfying
their duties and taking adequate steps to either eliminate or
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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