Hunter Valley businesses are warned that changes are afoot to the current Work Health & Safety Act 2011 (NSW), with a bill before Parliament set to alter the WHS landscape in NSW and pose major ramifications for individual directors and their businesses.
Foremost amongst the changes, which are expected to be ratified this year, will be the addition of a new Category 1 offence of Gross Negligence in relation to the risk to an individual of death or serious injury or illness at work.
"Gross Negligence has been added to the already existing Category 1 offence of Recklessness because it is easier to prove in court and will make it easier for prosecutors to obtain a conviction," lawyer and WHS expert Jeremy Kennedy, from Newcastle law firm Roberts Legal, said.
"Although this falls short of introducing industrial manslaughter in NSW as have other states, it significantly increases the stakes in serious workplace accidents for business and company directors.
"The penalties for such offences will also be increased under the bill to five years jail and $346,500 for individuals per offence and $3,463,000 for companies per offence."
Other changes will also see the banning of insurance and indemnities for penalties and legal costs incurred as a result of WHS investigations and prosecutions.
"Currently, companies and their directors can take out policies of insurance that effectively indemnify them against legal costs and penalties relating to investigation and prosecution of Work, Health and Safety incidents," Mr Kennedy said.
"The changes will make that practice illegal and will impose penalties for doing so."
Whether you should be able to insure for what is actually a criminal penalty and offence has been a controversial question for some time.
"The answer on face value is no, because it goes against public policy and removes any deterrence factor in handing down the fines," Mr Kennedy said.
"You can't insure against financial penalties for other criminal offences like theft or assault - so why WHS?
"Those pushing for the changes believe companies need to be accountable for their practices and that there be genuine legal deterrents in place."
Moving forward Mr Kennedy warns there are serious legal implications for all businesses and individual directors.
"First and foremost, businesses will need to be proactive in getting legal advice to ensure they are compliant with the Act so they don't get put in a position where they can be prosecuted in the first place," Mr Kennedy said.
"They will also need to review their insurance program to make sure they are not paying premiums for insurance that's illegal.
"If a business or an individual had a sense that they had protection through insurance and found comfort in that, then that will no longer be the case.
"They will now need to insure they are compliant with the legislation, particularly company officers who have individual legal requirements under the Act to prove due diligence on compliance which they can't delegate to someone else.
"In the event of an incident and investigation they will need immediate legal advice because they won't be protected by insurance from prosecution nor have any limit to their liability."
Roberts Legal offers a range of compliance solutions which can ensure your legal compliance and limit the risks to your business and to you personally as an officer.
These compliance solutions include:
- Desktop Legal Compliance Review
- Director & Officer Training
- Incident Management Training
- Insurance Review
- Master Disaster Incident Management Guide & Response
Robers Legal has offices in Adamstown (274 Brunker Road) and Newcastle (Suite 2, Level 2, 317 Hunter Street) and also offers 24-7 legal assistance for companies and their officers.
- Lawyer Jeremy Kennedy is a WHS specialist at Roberts Legal with over 20 years practical experience in the field, including participation in over 50 fatality prosecutions.