COVID-19 UPDATE

Some of the changes to the NSW WHS Act include some of the recommendations made by the National Review of the Model WHS Laws.  The NSW parliament also expressly rejected introducing an industrial manslaughter offence in the WHS Act. 

The full list of changes is:

Substantive changes – to rights and obligations under the Act

• Category 1 offence – now includes gross negligence
• HSRs – choice of training 
• Penalties – increased and to be indexed 
• Insurances – to cover the cost of penalties is now illegal
• Dangerous goods and high-risk plant – when not at work or used for work

Procedural changes – for inspectors, regulators and judges

• Notices – methods of service
• Regulators - sharing of information 
• Investigators – changes to re-entry rules
• Prosecutions – extra 6 months to request a prosecution
• Prosecutions – quarterly updates required
• The courts – a new remedy

For clarity - the inclusion of notes

• Who is - a PCBU (person conducting a business or undertaking)
• Who is – a worker
• Manslaughter laws in NSW

This article below explains what those changes are and why they were made (the reasons why are extracts taken directly from the Minister’s second reading speech). 

A decision is yet to be made about the remaining recommendations made during the national review. 

SUBSTANTIVE CHANGES 

CATEGORY 1 OFFENCE – INCLUDES GROSS NEGLIGENCE: S31

Background Information 
There are three categories of offences under the WHS Act, with Category 1 being the most serious and attracting the highest penalty.  A Category 1 offence is committed when a person who owes a duty not to ‘recklessly expose’ another to ‘a risk of death or serious injury or illness’.  

What has changed? 
The Category 1 offence has been expanded to include the common law concept of ‘gross negligence’ as an alternative to ‘recklessness’.  
A person “is grossly negligent when their behaviour falls so far short of what is reasonable and involves such a high risk of death or serious injury that it deserves criminal punishment.”.

Why did it change? 
Recklessness “is too difficult to prove.”. 
This change is intended to “strengthen the deterrent power of the Act and is consistent with the risk-based preventative framework that underpins it,” and will address “issues in prosecuting and investigating workplace deaths that are currently affecting workplaces in New South Wales.”. 

What this means for business
NSW businesses should make themselves familiar with the concept of gross negligence and review their WHS systems to ensure the risk of death or serious injury from gross negligence is eliminated or reduced. 

HSR’S - CHOICE OF TRAINING: S72 & R21

Background Information 
If an HSR (health & safety representative) makes a request to attend ‘a course of training in  work health & safety’ that is both approved by the regulator (SafeWork NSW) and a course to which the HSR is entitled to attend under the regulations, then the PCBU (person in control of a business or undertaking) has an obligation to allow the HSR to attend that training (the regulations describe the entitlement as being “an initial course of training of 5 days and 1 day’s refresher training each year, with the entitlement for the first refresher training commencing 1 year after the initial training.”). 

What has changed? 
The HSR no longer needs to consult with the PCBU when choosing a training course. 

Why did it change? 
This change is to avoid “stalemates and disputes in New South Wales workplaces and delaying training… The new provision will reduce disputes by clarifying that health and safety representatives can choose their course of training. They will still need to consult with persons conducting a business or undertaking about time off to attend training and the reasonable costs associated with training. Work health and safety regulators intend to develop guidance on the reasonable costs of training in consultation with stakeholders.”.

What this means for business
If an HSR makes a request to attend training, you have no control over the choice of training (as long as it meets the statutory requirements).  However, you still need to consult with the HSR about time off work and the reasonableness of the costs of that training and this consultation has to take place within 3 months from the date of the request. 

Keep an eye out for the guidelines! 

PENALTIES – INCREASED & INDEXED: SS229B, 242A-D & 276

Background Information 
Penalties are included in the Act to deter people who owe WHS duties from engaging in unsafe behaviour and breaching those duties.

What has changed? 
The maximum penalties for over 70 offences in the Act have been increased to “reflect increases in the consumer price index since 2011," and a mechanism (using penalty units instead of a dollar amount) has been created to “ensure that the penalties will be increased annually to reflect changes to the consumer price index in the future.”. 

Why did it change? 
“The maximum penalties for work health and safety offences have not increased since the Act came into operation in 2012. This means that the penalties for non-compliance with our work health and safety laws have not kept pace with increases in the costs of compliance or with community expectations about the penalties that should apply to work health and safety offences.”

What this means for business
Businesses may wish to review their risk profile and should also be aware of the changes to insurances (see below).

INSURANCE – FOR PENALTIES IS NOW ILLEGAL: S272 A & B, PT 6

Background Information
Businesses typically take out insurance to cover unexpected business costs.

What has changed? 
It is now “an offence for a person to enter into, provide, or benefit from insurance or indemnity arrangements for liability for a monetary penalty for a work health and safety offence. If a company commits the new offence, its officers may also be liable.”. 
Transitional arrangements are also in place in relation to the policy you currently hold – as long as you don’t make a claim for any penalties. 

Why did it change? 
If people who breach work health and safety duties can then use their insurance to pay any penalty incurred by them, then penalties will no longer be a deterrent and people owing a WHS duty may take those duties less seriously.

What this means for business
NSW businesses should review their insurance policies, especially if they belong to a group of companies where insurance is arranged by another entity on behalf of the business or the renewal date is coming up soon.

DANGEROUS GOODS & HIGH-RISK PLANT – NOT AT WORK: SCH 1 

Background Information 
The Act still applies to dangerous goods and high-risk plant even if those goods and/or plant is not kept at the workplace. 

What has changed? 
The Act has been amended to make it clear that: 

• a ‘PCBU’ includes a person in control of premises where the dangerous goods are stored or handled or the high-risk plant is being operated or used;  
• a ‘business or undertaking’ or the ‘conduct of a business or undertaking’ includes a reference to the storage or handling of dangerous goods or the operation or use of high-risk plant;
• a ‘worker’ includes a reference to a person at the premises where the dangerous goods are stored or handled or the high-risk plant is operated or used;
• a ‘work environment’ includes the environment at the premises where the dangerous goods are stored or handled or the high-risk plant operated or used;
• a ‘business address’ includes the address of the premises where the dangerous goods are stored or handled or the high-risk plant operated or used; and
• ‘premises’ includes a vehicle, vessel, aircraft or other mobile structure.

Why did it change? 
Dangerous goods can be stored and handled and high-risk plant can be operated or used both outside of a workplace or for purposes other than to carry out work.  
This presents a risk to public safety.
In NSW, this amendment means SafeWork NSW will be able to take compliance action in relation to dangerous goods stored or handled or high-risk plant operated or used outside work.

What this means for business
Review your safety policies and procedures to ensure they address the risk of dangerous goods or high-risk plant belonging to the business being used outside the workplace or for non-work purposes.

PROCEDURAL CHANGES 

REGULATOR - NOTICE PROVISIONS: SS 155B & 171A

Background Information 
If a regulator suspects there has been a breach of the Act and believes a person can give information, provide documents or give evidence, then, it has to serve that person with a written notice before the person can be obliged to provide that information, documents or evidence. 

What has changed? 
Notices can now be ‘served’ on the person by post and email. 
Before, to be effective, a notice had to be personally served on the individual. 

Why did it change? 
This change is expected to reduce delays and ensure that investigations of workplace incidents in New South Wales are as efficient as possible

What this means for business.
Make sure that your contact details are kept up to date and you have business systems in place to ensure that all notices (including those sent to an old address) come to your attention.

REGULATORS - SHARING OF INFORMATION: SS271(3A)

Background Information 
The Act restricts the power of the regulator, after having obtained information or gained access to a document, from disclosing, giving access to or using that information.  

What has changed? 
Those restrictions do not apply where the information provided or document produce was 

• obtained by the regulator exercising its powers under the Act to ‘secure compliance’ (despite containing personal information or health information in relation to the respective privacy laws) and 
• disclosed or given to a ‘corresponding regulator’ (i.e. regulators in other jurisdictions). 

Why did it change? 
 “Restrictions on information sharing can impede investigations. This will streamline regulators' conduct of cross-jurisdictional investigations.”

What this means for business
Be aware of this change, especially if your business operates across borders. 

INVESTIGATORS – CHANGES TO RE-ENTRY RULES: SS171(1) 

Background Information 
Inspectors have power to enter a workplace and gather evidence (by obtaining documents or interviewing witnesses). 
However, this power is contingent upon the investigator’s entry into the workplace. 

What has changed? 
The requirement for the investigator to be physically present when obtaining evidence has been relaxed. 
The power to obtain further evidence is no longer contingent upon the inspector being physically present at the workplace at the time of the request.  
Instead, as long as the request is made (either by the inspector who entered the premises or another inspector) within 30 days from the date of entry, then the request is valid and the person required to provide the evidence must do so (as long as the time and place for answering questions is reasonable).  
The new notice provisions apply. 

Why did it change? 
This change is to streamline the investigative process, especially for regional and remote areas. 

What this means for business
If an inspector physically enters your workplace to obtain evidence, be prepared for follow up requests for evidence over the following 30 days (and diarise when that 30-day period expires). 

PROSECUTIONS – AN EXTRA 6 MONTHS TO REQUEST A PROSECUTION BE BROUGHT: SS 231(1)

Background Information 
Prosecutions for a category 1 or category 2 offence must be brought within 2 years from the date of the incident. 
A person who believes a category 1 or category 2 offence has been committed (and no prosecution has been brought), can ask the regulator to bring such a prosecution. 
However, that request must be made during the 6-month period ending on the 1st anniversary of the incident. 
This time-frame was intended to give the person enough time to have a decision reviewed before the two-year period expires, should the Director of Public Prosecutions (the DPP) decide not to prosecute. 
However, complex investigations can take longer than 12 months.  

This means the time for making a request to prosecute has often expired before the outcome of the investigation is known.

What has changed? 
The time within which a person can ask a regulator to bring a prosecution in relation to a workplace incident involving a risk of death or serious injury or illness has been extended by 6 months. 
This means that the period of time within which a person can request a matter be prosecuted now expires 18 months from the date of the incident (instead of 12 months from the date of the incident).

Why did it change? 
Extending the time to 18 months will allow for the completion of the investigation and a review by the DPP before the expiry of the two-year limitation period for offences.  

What this means for business
Although the 2-year limitation period remains, a business will now have to wait for 18 months (instead of 12 months) to find out whether someone has asked for it to be prosecuted for a workplace incident that has resulted in death or serious injury or illness. 

PROSECUTIONS –QUARTERLY UPDATES: SS231(2A) 

Background Information 
If a person asks the regulator to bring a prosecution, then within 3 months from the date of the request, the investigator must advise that person (and the person under investigation) whether or not the investigations is complete (and, if it is, whether a prosecution will or will not be brought, together with reasons). 

What has changed? 
This advice must now be given on a quarterly basis (instead of being a one-off event upon the expiry of the first 3 months of the investigation). 

Why did it change? 
The 2018 Senate inquiry  found that “the trauma experienced by families following a workplace fatality can be greatly exacerbated by prolonged investigations and a lack of information about how the investigation is proceeding.”.

What this means for business
A business being under investigation for a Category 1 or Category 2 offence will also benefit from receiving regular quarterly updates. 

THE COURTS – A NEW REMEDY: SS 112(3)(A1) 

Background Information 
The Act contains offence provisions in relation to engaging in "discriminatory, coercive and misleading conduct.". 
A person (or their representative) affected by this type of conduct can seek a court order to deal with this type of conduct. 

What has changed? 
A court can now make a declaration that someone has engaged in the conduct complained of.  
This is in addition to the types of orders that already existed under the Act. 

Why did it change? 
It gives the court “flexibility in responding to discriminatory and coercive conduct where other orders are inappropriate.”.

What this means for business
Businesses should try to keep up to date about what is ‘discriminatory, coercive and misleading conduct’ because the remedies available to a complainant have been expanded.

FOR CLARITY 

WHO IS - A PCBU: S5 

Background Information 
PCBUs and workers owe important duties to each other under the Act.  
Sometimes a person can be both a worker and a PCBU and owe both sets of duties. 

What has changed? 
A note has been placed under the definition of PCBU to clarify that, in certain circumstances, a PCBU can also be a worker (for the purposes of the Act). 

Why did it change? 
 “In complex, multi-contractor worksites, the Act intends that a contractor or subcontractor in a contractual chain can be both a worker owed a duty by persons conducting a business or undertaking further up the chain, and a person conducting a business or undertaking who owes duties to workers further down the chain. This amendment reflects the way that worksites in New South Wales are operating and makes duty holders' obligations clear.”

What this means for business
If your business operates in a multi-contractor worksite and is part of a supply chain, you need to determine whether your business is a PCBU and/or a worker and familiarise yourself with the WHS duties that apply to each of those roles. 

WHO IS - A WORKER: S7

Background Information 
PCBUs and workers owe important duties to each other under the Act. 
Sometimes a person can be both a worker and a PCBU and owe both sets of duties. 

What has changed? 
A note has been placed under the definition of worker to clarify that, in certain circumstances, a worker can also be a PCBU (for the purposes of the Act).

Why did it change? 
 “In complex, multi-contractor worksites, the Act intends that a contractor or subcontractor in a contractual chain can be both a worker owed a duty by persons conducting a business or undertaking further up the chain, and a person conducting a business or undertaking who owes duties to workers further down the chain. This amendment reflects the way that worksites in New South Wales are operating and makes duty holders' obligations clear.”

What this means for business
If your business operates in a multi-contractor worksite and is part of a supply chain, you need to determine whether your business is a PCBU and/or a worker and familiarise yourself with the WHS duties that apply to each of those roles.

MANSLAUGHTER LAWS IN NSW: PART 2, DIVISION 5

Background Information 
In NSW, workplace deaths can already be prosecuted as manslaughter under the Crimes Act 1900, including a charge for ‘manslaughter by criminal negligence’.  
One of the recommendations made by the Boland Report was to add a new offence of industrial manslaughter which would make it possible for an ‘officer’ (eg directors) of a PCBU to be prosecuted for workplace deaths.  

The NSW parliament has rejected that suggestion.

What has changed? 
A note has been inserted into the Act to "make it clear to employers, businesses, workers and the community more broadly that anyone who causes the death of a worker through negligence faces serious criminal sanction.".

Why did it change? 
The "availability of this offence to prosecute work-related deaths is not well known or well understood in the community.". 

What this means for business
Be aware that manslaughter charges can already be brought for a death at your workplace.  

On 13 May 2020, the upper house of NSW parliament made changes to one of the emergency COVID-19 bills in relation to COVID-19 and workers compensation. Effective 14 May 2020, workers who contract COVID-19 will be able to make a claim for workers compensation. In many instances, that claim will be accepted because it will be regarded as having been contracted at work.

What we know so far

The effect of the amendment (which is now law):
Trigger

• When the worker contracts COVID-19.
• A worker “is taken to have contracted” COVID-19 – when either;
  • results (as per regs) from a medical test (as per regs) are positive;
  • a medical practitioner has “classified” the worker as having COVID-19 (after having satisfied ‘epidemiological or clinical criteria’ (as per regs).
• The worker is a prescribed worker; 
  • which means employment in any of the following;
    • the retail industry (other than businesses providing only on-line retail), 
    • the health care sector, including ambulance officers and public health employees, 
    • disability and aged care facilities,
    • educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services),
    • police and emergency services (including fire brigades and rural fire services),
    • refuges, halfway houses and homeless shelters, 
    • passenger transport services,
    • libraries,
    • courts and tribunals, 
    • correctional centres and detention centres, 
    • restaurants, clubs and hotels, 
    • the construction industry,
    • places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos), 
    • the cleaning industry, 
    • any other type of employment prescribed by the regulations for the purposes of this definition.  
• includes a casual worker who has “performed casual work on 1 or more of the 21 days preceding the date of injury”.

Presumptions (unless the contrary is established):

• nexus with the workplace:
  • the disease COVID-19 was contracted by the worker in the course of employment 
  • the employment was a substantial contributing factor and or the main contributing factor to contracting the disease 
• no capacity to work - for duration of disease 

Duration of disease

• Start date:
  • diagnosis (from result)
  • date of classification
  • date of death from COVID-19 
• end date = (as per regs) or, if no regs, 7 days after the doctor certifies that the worker no longer has the disease.

The regs 
Can also:

• modify the provisions of the Act (including where a worker is permanently impaired by COVID-19)
• use of employer’s claims history for premium purposes 
• sharing of financial risk amongst insurers.

What we don't know but are trying to find out

1. What if the worker (who contracts COVID-19) works for more than one employer?
2. How can an employer ‘establish the contrary’? 
3. Will the workers compensation insurers have access to NSW Health’s data which is tracing the disease? 
4. Will that be made available to employers or will insurers have access to it and decline a claim where the data shows COVID-19 was not contracted in the workplace? 

As soon as we find out the answers to these questions, we will let you know.

If you have a problem or question that has not been addressed here, please email Elizabeth Greenwood - Policy Manager, Workers Compensation, WHS and Regulation at Elizabeth.Greenwood@BusinessNSW.com

SafeWork NSW has provided the following advice

Recognising these are challenging times  

SafeWork NSW has advised Business NSW it recognises that, despite best efforts, NSW businesses may not be able to fully meet their WHS obligations and to help NSW businesses navigate their way through this pandemic, it has been constantly updating its website to help NSW businesses navigate their way through this pandemic.

Investigation and enforcement activities 

SafeWork NSW staff will be focusing on education and warnings with reduced face-to-face contact (where possible).  Although they will still be attending work sites to respond to urgent matters.

The increased risk of musculoskeletal injuries from social distancing at work

The social distancing requirements (of 4m2 and 1.5m) are not mandatory in the workplace, but are recommended as best practice and are to be applied if reasonably practicable.

What is ‘reasonably practicable’ in the workplace

SafeWork NSW advised that: 

• a screening process could be implemented when workers return to work (if the business is concerned about workers not obeying social distancing rules),
• taking a worker’s temperature is not advised because it promotes person to person contact and social distancing issues.

How to transport workers in groups, including across borders 

Farming and transport is still considered as being essential services and controls for transporting workers in groups could include (where reasonably practicable) distancing, good hygiene and PPE.

Questions Taken by SafeWork NSW ‘On Notice’ 

SafeWork NSW will seek advice from other government agencies (and report back) on: 

• social distancing requirements at work – especially where private vehicles are being used for work purposes and it is not economical to only have two people in the vehicle (one in the front and the other in the back),
• what ‘good infection control’ looks like when cleaning products are in high demand,
• different border control rules being applied by other States and Territories.

If you have a problem or question that has not been addressed here, please email Elizabeth Greenwood - Policy Manager, Workers Compensation, WHS and Regulation at Elizabeth.Greenwood@BusinessNSW.com

SIRA has provided the following advice

Monitoring COVID-19 workers compensation claims

It is:

• collecting and publishing data for notifications and claims relating to COVID-19,
• making arrangements to include additional information (such as the context in which psychological injury is said to have been caused by the workplace).

The cost of telehealth services 

The cost of telehealth services, including the cost of consultations by telephone has been included in the most recent Fees Order for allied health providers.

Premium impacts of COVID-19 

SIRA is working with insurers about the potential impacts of COVID-19 on employers’ workers compensation premiums to be charged from 1 July 2020. 

This includes seeking feedback from the insurers about how the premium formula can be adjusted to ensure costs associated with COVID-19 claims will not affect individual employers’ premiums.

SIRA-funded programs 

SIRA-funded programs (for example, equipment and training programs) have been adjusted to help workers and employers who need extra help to manage their return to work.

The Job Cover placement program can be extended to accommodate temporary scale-back/close downs and some new programs are being designed to support employers and workers stay at work. 

More information about COVID-19 and workers compensation can be found here, on SIRA’s website. 

Enforcement Activities 

Verification visits to employers at risk of poor return to work outcomes will be conducted over the phone and enforcement activities will be adapted to take the effect of COVID-19 into account. 

Certificates of Capacity 

As of 17 April 2020, SIRA will allow second and subsequent Certificates of Capacity to be signed off by “an appropriately qualified physiotherapist or psychologist who is treating the worker for the injury”.

This measure was introduced to help make complying with your workers’ compensation obligations easier during the COVID-19 pandemic and is currently scheduled to remain in place for 12 months (until 16 April 2021). 

Questions Taken by SIRA ‘On Notice’ 

When an injured worker has been stood down 

The interplay of IR provisions and workers’ compensation provisions when an injured worker has been ‘stood down’ from work due to COVID-19.

If you have a problem or question that has not been addressed here, please email Elizabeth Greenwood - Policy Manager, Workers Compensation, WHS and Regulation at Elizabeth.Greenwood@BusinessNSW.com