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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Work Health and Safety Amendment (Review)
Bill 2020
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10 3
Schedule 2 Consequential amendments of Work Health and Safety Act 2011
No 10 9
Schedule 3 Consequential amendments of Work Health and Safety Regulation
2017 11
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2020
New South Wales
Work Health and Safety Amendment (Review)
Bill 2020
Act No , 2020
An Act to amend the Work Health and Safety Act 2011 to make miscellaneous amendments
resulting from a review of the national Model Work Health and Safety Act; and for related
purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Work Health and Safety Amendment (Review) Bill 2020 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Work Health and Safety Amendment (Review) Act 2020.
2 Commencement
This Act commences on the date of assent to this Act.
Page 2
Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
Schedule 1 Amendment of Work Health and Safety Act 2011
No 10
[1] Section 5 Meaning of "person conducting a business or undertaking"
Insert at the end of the section--
Note. A person may be both a person conducting a business or undertaking, within
the meaning of this section, and a worker within the meaning of section 7.
[2] Section 7 Meaning of "worker"
Insert at the end of the section--
Note. A person may be both a worker, within the meaning of this section, and a
person conducting a business or undertaking within the meaning of section 5.
[3] Part 2, Division 5, note
Insert after the heading to the Division--
Note. This Division sets out offences, and penalties for the offences, in relation to the
health and safety duties imposed by Divisions 2, 3 and 4 of Part 2. In certain
circumstances, the death of a person at work may also constitute manslaughter under
the Crimes Act 1900 and may be prosecuted under that Act. See section 18 of the
Crimes Act 1900, which provides for the offence of manslaughter, and section 24 of that
Act, which provides that the offence of manslaughter is punishable by imprisonment for
25 years.
[4] Section 31, heading
Omit "Reckless". Insert instead "Gross negligence or reckless".
[5] Section 31(1)(c)
Omit the paragraph. Insert instead--
(c) the person--
(i) engages in the conduct with gross negligence, or
(ii) is reckless as to the risk to an individual of death or serious injury
or illness.
[6] Section 72 Obligation to train health and safety representatives
Omit section 72(1)(c). Insert instead--
(c) chosen by the health and safety representative.
[7] Section 72(2)
Insert ", in consultation with the health and safety representative and as soon as practicable
within the period of 3 months after the request is made" after "must".
[8] Section 72(2)(a)
Omit "as soon as practicable within the period of 3 months after the request is made,".
[9] Section 72(5)
Omit "subsections (1) (c) and (2)". Insert instead "that subsection".
[10] Section 72(7)
Omit "allow a health and safety representative to attend a course decided by the inspector
and".
Page 3
Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
[11] Section 112 Civil proceedings in relation to engaging in or inducing discriminatory
or coercive conduct
Insert after section 112(3)(a)--
(a1) an order declaring that the person has engaged in conduct of a type
referred to in subsection (2)(a), (b) or (c), or
[12] Section 155B
Insert after section 155A--
155B Service of notices
(1) A written notice served on a person under section 155(2) may be served--
(a) by delivering it personally to the person or sending it by post or
electronic transmission to the person's usual or last known place of
residence or business, or
(b) by leaving it for the person at the person's usual or last known place of
residence or business with a person who appears to be over 16 years and
who appears to reside or work there, or
(c) by leaving it for the person at the workplace to which the notice relates
with a person who is or appears to be the person with management or
control of the workplace, or
(d) in a way prescribed by the regulations.
(2) The regulations may prescribe--
(a) the way of serving a notice, and
(b) the steps a person on whom a notice is served must take to bring it to the
attention of other persons.
[13] Section 171 Power to require production of documents and answers to questions
Omit "An inspector who enters a workplace under this Division may" from section 171(1).
Insert instead "If an inspector enters a workplace under this Division, or has within the last
30 days entered a workplace under this Division, the inspector or another inspector may".
[14] Section 171(1)(c)
Omit the paragraph. Insert instead--
(c) require a person at the workplace to attend before the inspector at a
stated reasonable time and place to answer questions put by the
inspector.
[15] Section 171A
Insert after section 171--
171A Giving of notices
(1) A written notice given to a person under section 171(2) may be given--
(a) by delivering it personally to the person or sending it by post or
electronic transmission to the person's usual or last known place of
residence or business, or
(b) by leaving it for the person at the person's usual or last known place of
residence or business with a person who appears to be over 16 years and
who appears to reside or work there, or
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Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(c) by leaving it for the person at the workplace to which the notice relates
with a person who is or appears to be the person with management or
control of the workplace, or
(d) in a way prescribed by the regulations.
(2) The regulations may prescribe--
(a) the way of giving a notice, and
(b) the steps a person to whom a notice is given must take to bring it to the
attention of other persons.
[16] Section 229B Procedure for offences
Omit "$50,000" from section 229B(4).
Insert instead "an amount equal to the monetary value of 650 penalty units".
[17] Section 231 Procedure if prosecution is not brought
Omit "12 months" from section 231(1)(b). Insert instead "18 months".
[18] Section 231(2A)
Insert after section 231(2)--
(2A) If, under subsection (2)(a), the regulator advises the person the investigation is
not complete, the regulator must, from the time that advice is provided and
until the investigation is complete, advise the person at least every 3 months
of the matters set out in that paragraph.
[19] Part 13, Division 2A
Insert after Division 2--
Division 2A Penalty units
242A Definitions
In this Division--
CPI means the Consumer Price Index (All Groups Index) for Sydney
published by the Australian Bureau of Statistics in the latest published series
of that index.
financial year means a period of 12 months starting on 1 July.
242B Value of penalty unit
(1) For the purposes of this Act, the value of a penalty unit is--
(a) for the financial year 2019-20--$100, and
(b) for each subsequent financial year--the amount calculated as follows--
A
$100 ----
B
where--
A is the CPI number for the March quarter in the financial year
immediately preceding the financial year for which the amount is
calculated.
B is the CPI number for the March quarter of 2019.
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Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(2) However, if the amount of a penalty unit calculated for any financial year is
less than the amount that applied in the previous financial year, then the
amount for that previous financial year applies instead.
242C Amount of penalties
(1) If, in this Act, a penalty is expressed as a number of penalty units, the monetary
value of the penalty is the number of dollars obtained by multiplying the value
of a penalty unit by the number of penalty units.
(2) However, if the monetary value of the penalty obtained under subsection (1)
is not a multiple of $1, the amount is rounded down to the nearest multiple of
$1.
242D Notice of indexed penalties
(1) As soon as practicable after the CPI number for the March quarter is published
by the Australian Statistician, the Secretary must give notice, on an
appropriate government website, of the monetary value of the penalties
applying in each financial year under this Division.
(2) Failure to give the notice does not affect the amount of the penalty applying in
a financial year.
[20] Section 271 Confidentiality of information
Insert after section 271(3)--
(3A) Without limiting subsection (3), any information or document, including the
following information or documents, lawfully obtained or accessed by a
person exercising a power or function under this Act may be disclosed or given
under subsection (3)(c)(v) to a corresponding regulator--
(a) information provided, or a document produced, under section 155 or
Part 9,
(b) information or a document that is personal information or health
information about an individual despite the Privacy and Personal
Information Protection Act 1998 or the Health Records and Information
Privacy Act 2002.
[21] Sections 272A and 272B
Insert after section 272--
272A Prohibition on certain insurance or indemnity arrangements
A person must not--
(a) without reasonable excuse, enter into a contract of insurance or other
arrangement under which the person or another person is covered for
liability for a monetary penalty under this Act, or
(b) provide insurance or a grant of indemnity for liability for a monetary
penalty under this Act, or
(c) take the benefit of--
(i) a contract of insurance or other arrangement under which the
person or another person is covered for liability for a monetary
penalty under this Act, or
(ii) a grant of indemnity for liability for a monetary penalty under this
Act.
Maximum penalty--
Page 6
Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(a) for paragraph (a)--
(i) in the case of an individual--250 penalty units, or
(ii) in the case of a body corporate--1,250 penalty units, or
(b) for paragraph (b) or (c)--
(i) in the case of an individual--500 penalty units, or
(ii) in the case of a body corporate--2,500 penalty units.
272B Liability of officers for offences by body corporate under section 272A
(1) A person commits an offence against this section if--
(a) a body corporate commits an offence against section 272A, and
(b) the person is an officer of the body corporate, and
(c) the person--
(i) aids, abets, counsels or procures the commission of the offence,
or
(ii) induces, whether by threats or promises or otherwise, the
commission of the offence, or
(iii) conspires with others to effect the commission of the offence, or
(iv) is in any other way, whether by act or omission, knowingly
concerned in, or party to, the commission of the offence.
Maximum penalty--1,250 penalty units.
(2) The prosecution bears the legal burden of proving the elements of the offence
against this section.
(3) The offence against this section can only be prosecuted by a person who can
bring a prosecution for the offence against section 272A.
(4) This section does not affect the liability of the body corporate for the offence
against section 272A, and applies whether or not the body corporate is
prosecuted for, or convicted of, an offence against that section.
(5) This section does not affect the application of any other law relating to the
criminal liability of a person, whether or not an officer of the body corporate,
who is concerned in, or party to, the commission of the offence against section
272A.
[22] Section 276 Regulation-making powers
Omit "$30,000" from section 276(3)(h).
Insert instead "an amount equal to the monetary value of 345 penalty units".
[23] Schedule 1 Application of Act to dangerous goods and high risk plant
Insert in appropriate order in clause 2--
(a1) a reference in this Act to a person conducting a business or undertaking
includes a reference to a person in control of premises where the dangerous
goods are stored or handled, and
(a2) a reference in this Act to a business or undertaking, or the conduct of a
business or undertaking, includes a reference to the storage or handling of
dangerous goods, and
(a3) a reference in this Act to a worker includes a reference to a person at the
premises at or in which the dangerous goods are stored or handled, and
Page 7
Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(b1) a reference in this Act to a work environment includes a reference to the
environment at the premises at or in which the dangerous goods are stored or
handled, and
(b2) a reference in this Act to a business address includes a reference to the address
of the premises where the dangerous goods are stored or handled, and
[24] Schedule 1, clause 4
Insert in appropriate order--
(a1) a reference in this Act to a person conducting a business or undertaking
includes a reference to a person in control of premises where the high risk plant
is operated or used, and
(a2) a reference in this Act to a business or undertaking, or the conduct of a
business or undertaking, includes a reference to the operation or use of high
risk plant, and
(a3) a reference in this Act to a worker includes a reference to a person at the
premises at or in which the high risk plant is operated or used, and
(b1) a reference in this Act to a work environment includes a reference to the
environment at the premises at or in which the high risk plant is operated or
used, and
(b2) a reference in this Act to a business address includes a reference to the address
of the premises where the high risk plant is operated or used, and
[25] Schedule 1, clause 6
Insert in alphabetical order--
premises includes a vehicle, vessel, aircraft or other mobile structure.
[26] Schedule 4 Savings, transitional and other provisions
Insert after Part 5--
Part 6 Provisions consequent on enactment of Work
Health and Safety Amendment (Review) Act 2020
27 Insurance and indemnity arrangements
(1) This clause applies in relation to a contract of insurance or other arrangement,
or a grant of indemnity for liability, (each an existing arrangement)
mentioned in section 272A that is in force immediately before the
commencement.
(2) A person does not commit an offence against section 272A for providing
insurance or a grant of indemnity under an existing arrangement, or for taking
the benefit of an existing arrangement, to the extent any payment made under
the existing arrangement is not in relation to a liability for a monetary penalty
under this Act for an incident that occurred after the commencement.
(3) In this clause--
commencement means the commencement of section 272A, as inserted by the
Work Health and Safety Amendment (Review) Act 2020.
Page 8
Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 2 Consequential amendments of Work Health and Safety Act 2011 No 10
Schedule 2 Consequential amendments of Work Health and
Safety Act 2011 No 10
[1] Whole Act
Omit "$50,000" wherever occurring in the penalty provisions.
Insert instead "575 penalty units".
[2] Whole Act
Omit "$100,000" wherever occurring in the penalty provisions.
Insert instead "1,155 penalty units".
[3] Whole Act
Omit "$10,000" wherever occurring in the penalty provisions.
Insert instead "115 penalty units".
[4] Sections 31(1)
Omit "$600,000" from the penalty provision.
Insert instead "6,925 penalty units".
[5] Section 31(1)
Omit "$3,000,000" from the penalty provision.
Insert instead "34,630 penalty units".
[6] Sections 31(1) and 32
Omit "$300,000" from the penalty provisions.
Insert instead "3,465 penalty units".
[7] Section 32
Omit "$150,000" from the penalty provision.
Insert instead "1,730 penalty units".
[8] Section 32
Omit "$1,500,000" from the penalty provision.
Insert instead "17,315 penalty units".
[9] Sections 33, 104(1), 107, 108(1), 109(1), 197
Omit "$500,000" wherever occurring in the penalty provisions.
Insert instead "5,770 penalty units".
[10] Sections 38(7), 75(1), 97(1) and (2), 150, 210(1) and (2) and 273
Omit "$5,000" wherever occurring in the penalty provisions.
Insert instead "60 penalty units".
[11] Sections 38(7), 75(1), 97(1) and (2), 150, 210(1) and (2), 273
Omit "$25,000" wherever occurring in the penalty provisions.
Insert instead "290 penalty units".
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Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 2 Consequential amendments of Work Health and Safety Act 2011 No 10
[12] Sections 41, 99(2), 190, 193, 200(1), 219 and 242(1)
Omit "$250,000" wherever occurring in the penalty provisions.
Insert instead "2,885 penalty units".
[13] Sections 42(1) and (2), 43(1) and (2), 44(1) and (2), 45, 46 and 47(1)
Omit "$20,000" wherever occurring in the penalty provisions.
Insert instead "230 penalty units".
[14] Sections 53(1) and (2), 57(1) and (2), 74(1) and 149(1)
Omit "$2,000" wherever occurring in the penalty provisions.
Insert instead "25 penalty units".
Page 10
Work Health and Safety Amendment (Review) Bill 2020 [NSW]
Schedule 3 Consequential amendments of Work Health and Safety Regulation 2017
Schedule 3 Consequential amendments of Work Health and
Safety Regulation 2017
[1] Whole Regulation
Omit "$6,000" wherever occurring in the penalty provisions.
Insert instead "70 penalty units".
[2] Whole Regulation
Omit "$30,000" wherever occurring in the penalty provisions.
Insert instead "345 penalty units".
[3] Whole Regulation
Omit "$18,000" wherever occurring in the penalty provisions.
Insert instead "210 penalty units".
[4] Whole Regulation
Omit "$3,600" wherever occurring in the penalty provisions.
Insert instead "40 penalty units".
[5] Whole Regulation
Omit "$1,250" wherever occurring in the penalty provisions.
Insert instead "15 penalty units".
Page 11
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