New amendments to the Work Health and Safety Act (WHS Act) in NSW will not only significantly increase penalties under the law from 1 July 2024, but also increase the likelihood of a company being successfully prosecuted for a category 1 (gross negligence) offence by allowing a court to consider the impact of its “corporate culture”.

The Work Health and Safety Amendment Bill 2023 (NSW) (Bill) was passed by the NSW Parliament on 12 October 2023 and is currently awaiting assent for it to commence operation.

Increased penalties

The Bill increases the maximum fines for category 1 WHS offences (gross negligence or reckless conduct) to the following:

• bodies corporate – from $3,992,492 to $10,424,983
• individual ‘person conducting a business or undertaking’ (PCBU) and officers of a PCBU – from $798,383 to $2,168,029 or 10 years imprisonment, or both
• officers and individuals – from $399,479 to $1,041,992 or 10 years imprisonment, or both.

This doubles the maximum jail time and more than doubles the penalty rates for these offences.

These amendments will commence on 1 July 2024.

Imputing of conduct to body corporate

Under the current WHS Act, any conduct engaged in or on behalf of a body corporate by an employee, agent or officer “within the scope of their employment or authority” is considered conduct also engaged in by the body corporate. This approach, known as imputation, reflects the traditional legal position that a corporate entity can only act through its officers and...

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