Work Health And Safety (WHS) Laws (NSW)
Work Health and Safety (WHS) laws are designed to protect the health, safety and welfare of all workers at work. WHS in New South Wales is governed by the Work Health and Safety Act 2011.
Aims of WHS laws
WHS laws aim to secure the health and safety of workers and workplaces in many ways. These include:
- eliminating risks arising from work or certain types of substances or equipment by providing the highest level of protection that is reasonably practicable;
- providing fair and effective workplace representation, consultation, co-operation and issue resolution;
- encouraging unions and employer organisations to promote better work practices and help businesses achieve safer and healthier workplaces;
- promoting the provision of WHS advice, information, education and training;
- ensuring effective and appropriate WHS compliance and enforcement measures;
- ensuring appropriate scrutiny and review of WHS actions;
- providing a framework for continuous WHS improvement and higher standards;
- helping to facilitate, maintain and strengthen a consistent national approach to WHS.
“Worker” means a person who performs work in any capacity, including an employee, contractor, subcontractor, outworker, apprentice, trainee student on work experience, or volunteer.
“Workplace” means a place where work is carried out for a business or undertaking, and includes any place a worker goes, or is likely to be, while at work. It could be a vehicle, boat, plane or other transport, and any waters or installation on land or water.
Offences under the Act are considered strict liability offences, where no intention is needed to prove guilt.
A person conducting a business or undertaking has a legal responsibility to ensure the health and safety of workers, so far as this is reasonably practicable. This “primary duty of care” includes:
- a working environment free of risks to health and safety;
- safe equipment and structures;
- safe systems of work;
- safe use, handling and storage of equipment, structures and substances;
- adequate facilities for the welfare of workers;
- provision of information, training instruction and supervision needed to protect the health and safety of workers;
- monitoring of worker health and workplace conditions to prevent illness or injury to workers.
WHS duties also apply to other people involved in the business, such as those who build, import or supply equipment to the business.
Workers have a duty to take reasonable care for their own health and safety. They also must ensure their acts or omissions do not adversely affect the health and safety of others. They must comply with reasonable instructions given by the business to comply with WHS laws, and co-operate with any reasonable WHS policy or procedure at their workplace.
The Work Health and Safety Regulation 2017 sets out the requirements for specific hazards and risks, such as noise, machinery and manual handling. There are also Codes of Practice for specific work practices such as construction, demolition, and asbestos removal, as well as for managing risks involved in such work practices as electrical work, stevedoring, and the use of hazardous chemicals.
SafeWork NSW is the WHS regulator for the state, administering acts and regulations related to WHS, including the Work Health and Safety Act 2011, Dangerous Goods (Road and Rail Transport) Act 2008, and the Explosives Act 2003.
This agency offers advice, provides licensing and registration for potentially dangerous work, inspects workplaces, and investigates workplace incidents.
If an employer fails to act on a WHS complaint, a complaint can also be lodged with this agency, which has the power to penalise breaches of an act and take remedial action. Action is taken by the agency on behalf of the employee so the employee is not responsible for the costs.
Workers’ compensation is regulated by the State Insurance Regulatory Authority (NSW).
WHS offences fall into 3 categories and hefty penalties apply.
A Category 3 offence occurs when a person who owes a health a safety duty to workers fails to comply with the duty. The maximum penalty for a person is 575 penalty units ($63,250), for a company officer 1155 penalty units ($127,050), and for a business 5770 penalty units ($634,700).
A Category 2 offence occurs when the failure to comply with the duty exposes a worker to a risk of death or serious injury or illness. The maximum penalty for a person is 1730 penalty units ($190,300), for a company officer 3465 penalty units ($381,150), and for a business 17,315 penalty units ($1,094,650).
If there is no reasonable excuse for the conduct that exposes the worker to the risk, and if the person’s conduct is grossly negligent, or if the person is reckless as to the risk to the worker, the offence is a Category 1 offence. The maximum penalty for a person is 3465 penalty units ($381,150) or 5 years imprisonment or both. For a company officer, it is 6925 penalty units ($761,750) or 5 years imprisonment or both. For a business it is 34,630 penalty units ($3,809,300). The prosecution has the burden of proving there was no reasonable excuse for the conduct.
For advice or representation in any legal matter, please contact Armstrong Legal.