Occupational Health and Safety Harmonisation Bares its Teeth in New South Wales

31 March 2017

Since Safe Work Australia’s 2008 commitment to ‘harmonise’ Australian Occupational Health & Safety Laws (‘OHS’), the so-called ‘model legislation’, the Work Health and Safety Act 2011 (‘WHS Act’), has gone from strength to strength. As it currently stands, the WHS Act has been passed in near identical form across all Australian jurisdictions except for Victoria and Western Australia.

Proving that the new WHS Act’s bark is as harsh as its bite, charges under section 31 of that Act were recently brought in New South Wales by the NSW Resources Regulator against an employer and two workers whose non-compliant electrical work led to the death of a non-worker.

Section 31 provides for what it terms ‘category 1’ proceedings, or reckless conduct proceedings, which creates a criminal offence where a worker or employer has a health and safety duty, and by breaching it, causes the death, serious injury or illness of an individual. The scope of this section means that employers and their workers ought to ensure, more than ever, that every possible step is taken to ensure that their work is held to the highest standards of OHS scrutiny.

The willingness of the Courts to entertain charges brought under this section, not only in New South Wales but also in the Australian Capital Territory and South Australia, go a long way in demonstrating the strength of this new legislation. For employers and business-owners in the hold-out states of Victoria and Western Australia, the gradual spread and enforcement of these laws across Australia seem to indicate that WHS clones in these states are less of an ‘if’, but more of a ‘when’ – given this, efforts should be made to begin the process of ensuring compliance, to ease the growing pains of expanded employer responsibilities.

Timothy Ashton of Hentys Lawyers has over 25 years of experience in workers compensation and industrial relations, and has worked with a number of multi-national companies and household names. Please contact Timothy for advice by sending an email to hjk@hentys.com.au.