On 12 October 2023, the
Work Health and Safety Amendment Bill 2023 (
the WHS Bill) passed, which amends the existing work health and safety legislation in NSW (
the WHS Act). Whilst there are a host of minor amendments, there are two key changes that all businesses in NSW should take note of:
- All maximum penalties under the WHS Act have increased for persons conducting a business or undertaking (e.g. sole trader, body corporate or employer), officers and individuals.
- There are new provisions and definitions setting out what conduct can be imputed to the body corporate (i.e. conduct engaged by another person but said to be engaged in by the body corporate for the purposes of establishing liability under the WHS Act).
An overview of both changes is set out below.
New Maximum Penalties
Most if not all businesses in NSW would be aware of the severity of the penalties under the WHS Act. The fines are steep (and deliberately so) to drive the message home: safety compliance must be a priority for persons running a business.
Moving forward the new maximum penalties for offences under the WHS Act are set out below:
Category 1 Offence:
- $10,424,983 for a body corporate (previously $3,992,492)
- $2,168,028.45 for an officer of a PCBU (previously $798,383)
- $1,041,991.02 for an individual (previously $399,479)
Additionally, the maximum sentence for imprisonment has increased from 5 years to 10 years.
Category 2 Offence:
- $2,089,977.12 for a body corporate (previously $1,996,246.35)
- $418,041.54 for an officer of a PCBU (previously $399,479.85)
- $209,020.77 for an individual (previously $199,451)
Category 3 Offence:
- $699,810.30 for a body corporate (previously $665,223)
- $139,962.06 for an officer of a PCBU (previously $133,159)
- $69,981.03 for an individual (previously $66,291)
For all other penalty provisions under the WHS Act, the maximum penalty has also been increased to be consistent with the penalties in the model WHS Act.
What conduct may be taken to be the conduct of the body corporate?
Prior to this latest amendment, imputation of conduct was covered by one short provision. That provision provided that any conduct engaged in on behalf of a body corporate by an employee, an agent, or an officer of the body corporate, was, for the purposes of establishing liability, conduct also engaged in by the body corporate – provided that person was
“acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority”.
With the passing of the WHS Bill, that section is to be replaced with a suite of provisions to make clear exactly what conduct can be attributed to the body corporate (i.e. the offence may be committed by someone else, but the body corporate can be found guilty of committing it).
The new provisions include:
1. New definitions for
“authorised person” and
“board of directors”:
- an “authorised person” is an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority; and
- a “board of directors” is a body exercising the executive authority of the body corporate.
2. Identification of the three categories of person whose conduct can be taken to be conduct committed by the body corporate:
- the body corporate’s board of directors;
- one or more authorised persons; and
- one or more persons acting at the direction of or with the express or implied agreement or consent of the body corporate’s board of directors, or an authorised person.
3. A new provision identifying three circumstances that will satisfy the
“state of mind” (or intention) requirement for a body corporate in relation to the commission of an offence:
- intent by the board of directors (e.g. was the conduct intentional, reckless or did they permit the conduct?);
- intent by an authorised person (e.g. was the conduct intentional, reckless or did they permit the conduct?); or
- a “corporate culture” existed within the body corporate that directed, encouraged, tolerated or led to the carrying out of the conduct.
The reference to
“corporate culture” is unique and a new term for the WHS Act. Corporate culture is defined as
“one or more attitudes, policies, rules, courses of conduct or practices existing within the body corporate generally or in the part of the body corporate in which the relevant activity takes place”. Factors that may contribute to a finding of relevant corporate culture for the purposes of establishing
“intent” by the body corporate to commit an offence includes:
- whether authority or permission to carry out conduct of the same or a similar character, had previously been given by a corporate officer; and
- whether the person who carried out the conduct believed on reasonable grounds, or had a reasonable expectation, that a corporate officer would have authorised or permitted the carrying out of the conduct.
This article provides a snapshot of some of the recent updates to the WHS Act. However, as with all development in safety law, it is an ideal time to schedule a safety briefing for your board, senior leadership or safety team.
If you require assistance in getting your business up to date with the latest work health and safety law, get in touch on 1300 565 846 or email
info@ablawyers.com.au.
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