Work Health and Safety Penalty Insurance banned in NSW

This article applies to all organisations in New South Wales.

Work Health and Safety Amendment (Review) Act 2020 (NSW)

The Work Health and Safety Amendment (Review) Act 2020 (NSW) (the Amending Act) commenced on 10 June 2020 and has amended the Work Health and Safety Act 2011 (NSW) (the Act) and the Work Health and Safety Regulation 2017 (NSW) (the Regulation) by inserting the new sections 272A and 272B into the Act and updating penalties associated with offences under the Act and the Regulation.

New provisions

The Amending Act has inserted new sections 272A and 272B into the Act. Section 272A creates an offence for entering into, providing for or benefiting from insurance arrangements, in relation to the payment of penalties for offences under the Act. Under this new provision, a person must not without reasonable excuse, enter into a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under the Act. Section 272A carries a penalty of 250 penalty units in the case of an individual (currently $27,500), or 1,250 penalty units for a body corporate (currently $137,500).

Section 272A also provides that a person must not provide insurance or a grant of indemnity for liability for a monetary penalty under the Act, or take the benefit of:

  • a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under the Act; or
  • a grant of indemnity for liability for a monetary penalty under the Act.

This new offence carries a penalty of 500 penalty units in the case of an individual (currently $55,000) and 2,500 penalty units in the case of a body corporate (currently $275,000).

Section 272B provides that an officer of a body corporate is liable for offences committed against section 272A by the body corporate. Under the new section, a person who is an officer of a body corporate commits an offence if the body corporate has committed an offence under section 272A, and the officer:

  • aids, abets, counsels or procures the commission of the offence; or
  • induces, whether by threats or promises or otherwise, the commission of the offence; or
  • conspires with others to effect the commission of the offence; or
  • is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the offence.

The new offence attracts a penalty of 1,250 penalty units (currently $137,500).

Changes to penalties

In addition to the new sections 272A and 272B, the Amending Act has amended the penalty provisions for offences in both the Act and the Regulation to increase the value of the penalties and to convert the monetary values of the penalties to penalty units.

Conclusion

Organisations in New South Wales should be aware of these new offences in the Work Health and Safety Act 2011 (NSW) and the increased penalties provided for in both the Act and the Regulation, and update their systems and policies accordingly.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

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