Safety Consulting Group

clayton@safetyconsultingroup.com

SAFETY RELATED PENALTIES ARE BECOMING SERIOUS!

The Model Work Health and Safety Legislation Amendment (Offences and Penalties) 2023, will introduce a significant update to the national WHS laws – aiming to reinforce accountability and enhance safety practices within corporate entities. Now approved by Australia’s WHS ministers, these amendments mark a significant step in safeguarding the health and well-being of workers.

What does the new Amendment change?

One of the key highlights of the amendment is the substantial increase in fines and jail times for category-1 offenses under section 31 of the model WHS Act.

For bodies corporate, the maximum available fines have more than tripled, rising from $3 million to an imposing $10,425,000.

Company officers face a greater deterrent with their fines soaring from $600,000 to $2,085,000, while other individuals now face penalties of up to $1,042,000, up from $300,000.

The maximum term of imprisonment for reckless or grossly negligent individuals has been doubled from five to 10 years.
The amendment adopts the recommendation of implementing the Consumer Price Index (CPI) system. This means that penalties will be adjusted annually, aligning with changes in the national CPI, thus enabling regulators and prosecutors to maintain vigilance in enforcing compliance and ensure the effectiveness and appropriateness of WHS penalties over time.

Additional Manslaughter Provision

The amendment introduces a new industrial manslaughter provision in section 30A of the Model Act. While it does not create the offense of manslaughter itself, it empowers harmonised jurisdictions to establish such offences or retain existing industrial manslaughter laws, while recommending maximum penalties of $18 million for bodies corporate and up to 20 years imprisonment for individuals.

Clarification on Officers’ Duties

To provide clarity and coherence, section 31 of the model Act has been amended to explicitly encompass company officers who, through recklessness or gross negligence, jeopardise the safety of individuals to whom the PCBU owes a health and safety duty. This clarification eliminates any ambiguity arising from an officer’s duty, expressed in section 27 of the model WHS Act, which pertains to a PCBU’s compliance with its WHS duties rather than the duty towards individuals.

The Offences and Penalties Amendment replaces section 244 (“Imputing conduct to bodies corporate”) with comprehensive clauses that clearly outline when the conduct of employees, officers, or agents of a body corporate can be attributed to the body corporate itself. This enhancement ensures a more structured approach to attributing accountability for actions within the organisation.

For a simple guide on understanding the Four Key Principles that apply to all WHS duties, SafeWork Australia recently released a useful factsheet to give an overview of the Model WHS Act. This factsheet can be found here: SafeWork – Principles that apply to WHS Duties

When will this apply to my business?

It is important to note that the amendments will only apply in harmonised jurisdictions once formally adopted by the jurisdiction. It has not yet been adopted in any state, territory or jurisdiction.

Summary

The Model Work Health and Safety Legislation Amendment (Offences and Penalties) 2023 underscores the commitment of Australian authorities to ensuring safer workplaces and holding corporate entities and individuals accountable for their actions.

By imposing substantially increased fines, extended jail terms, and providing clarity on offences, the amended laws are set to instill greater confidence in regulators and prosecutors to pursue cases involving recklessness or gross negligence.

We would recommend organisations are already taking proactive steps to implement an effective safety management system, ensuring it encompasses and acknowledges the unique risks associated with the workplace/business, and is based on a continuous improvement methodology. 

Without having pro-active safety systems and processes in place that are actively being used and monitored, the risk of serious injuries or death and subsequent negligence claims increases for Company Officers and PCBU’s (Person/s Conducting Business Undertakings).

It’s time to act and safeguard both your people AND your business!

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