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 general courts.

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 criminal jurisdiction.

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 'ensure':

  • The health, safety and welfare of employees while they are at work
  • 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 practicable'.

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 matters
  • 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 on officers.

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 proceedings.

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 minimise risk.

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.