- Some new terminology.
- Applies to all States.
- A greater range of sanctions, higher penalties, restrictions on a Trade Unions right to prosecute and abolition of the reverse onus of proof are new to the NSW enforcement framework.
Prosecutors must prove all matters relating to non-compliance with duties of care, including whether the person conducting the business or undertaking failed to do what was ‘reasonably practicable’ to ensure the health and
safety of workers. This reflects the generally accepted principle that in a criminal prosecution, the onus of proof to the standard of beyond reasonable doubt normally rests on the prosecution. This is a major change in Australia.
The previous OHS legislation stated that the onus of proving that a person had done everything reasonably practicable to prevent a contravention lies with the defendant.
Provide and maintain a safe workplace and environment
A PCBU is a ‘Person in Control of a Business or Undertaking’ this includes sole traders, partnerships, corporation, designers, importers, suppliers, installers, etc.
An officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with the duty or obligation” OFFICERS “A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking”.
A worker has the right to cease or refuse to do work due to lack of safety measures. WORKERS Includes independent contractors, apprentices, outworkers, work experience, volunteers etc. OTHERS Includes clients, customers, visitors.
What is a Notifiable Incident?
- the death of a person; or
- a serious injury or illness of a person; or
- a dangerous incident.
Serious Injury or Illness: An injury or illness that reasonably could be considered to warrant:
- medical treatment within 48 hours of exposure to a substance
- immediate treatment as an in-patient in a hospital
- immediate treatment Includes serious head injuries, burns, spinal injury, eye injury, amputation and loss of bodily function
Dangerous Incident: Exposes a worker or any other person to a serious risk to their health or safety emanating from an immediate or imminent exposure to a number of risks.
- immediately by phone (Ph: 13 10 50 in NSW)
- in writing within 48 hours
- PCBU must keep a record of each notifiable incident for at least 5 years
Maximum Penalty: (for not reporting notifiable incidents)
In the case of an individual - $5,000
In the case of a body corporate - $25,000
Ensure as far as is reasonably practicable that the site is not disturbed until permitted to do so.
In the case of an individual - $10,000
In the case of a body corporate - $50,000
Three categories of penalties apply to breaches of the work health and safety duties:
Category 1 - for reckless conduct that exposes an individual to a risk of death or serious injury or illness and is engaged in without reasonable excuse,
Category 2 - failure to comply with a health and safety duty and exposing an individual to a risk of death or serious injury or illness, and
Category 3 - failure to comply with a health and safety duty. Maximum penalties are set according to the category of offence committed and the type of duty holder (i.e. individual, officer or body corporate) convicted of the offence
The size of the maximum offences for each type of duty holder has significantly increased from previous legislation.