By Kelly Godfrey
On 10 June 2020, amendments to the Work Health and Safety Act 2011 (NSW) (WHS Act) came into effect. The amendments expanded the category of offences to include an act of “gross negligence”. This makes it an offence for a duty-holder to be grossly negligent in exposing workers to a risk of serious illness or injury or death. This amendment is significant, as unlike the concept of “recklessness”, “gross negligence” does not require proof of any intent to disregard a risk of serious illness, injury or death. This will make it easier to prosecute duty-holders for WHS Act breaches.
A duty-holder includes a corporation, a person conducting a business, an officer of the business (which may include a broad range of persons involved in the business) and other workplace participants.
Tips to reduce your risk
It is important for duty-holders to:
- remember they have an ongoing obligation to ensure the health, welfare and safety of workers, and that the obligation extends to the risk of physical and psychological injuries;
- embed into the workforce a culture of work health and safety (WHS) compliance, and fluid conversation about WHS in the workplace;
- continually review risk assessments and WHS procedures, and update WHS operations as required;
- ensure there are appropriate WHS policies, procedures and safe work method statements in the workplace;
- ensure that workers have been trained in the relevant policies, procedures and safe work practices;
- ensure there is a method for reporting breaches and disciplining workers who are not compliant;
- ensure all reasonable and practicable steps are taken to eliminate risk;
- be adaptable when implementing appropriate WHS measures, as workforce technology changes;
- where accidents or near misses (small or large) occur, analyse and work towards eliminating these risks, and if elimination is not possible, reducing them to the maximum extent possible;
- ensure any repairs to workplace equipment are properly carried out and the equipment is not used in the interim;
- ensure rosters and work hours (including overtime) do not expose workers to fatigue; and
- ensure bullying, harassment and discrimination is not tolerated in the workplace, and if it occurs, is immediately addressed and appropriate action taken.