The 10th of June 2025 will mark 5 years since the NSW government introduced revised WHS legislation that prohibited insurance from indemnifying penalties imposed under that law.
SUA sat down with Alicia Mataere from Holman Webb lawyers to discuss what impact this change has had.
The major change of note has been the diversification in enforcement targets; with the Regulator (SafeWork NSW) focusing more on individual Directors and Officers for their respective duties under the law. This looks to have come about due to a trend of companies being put into liquidation or administration once a prosecution was commenced.
It appears the inability to have insurance protection for any WHS penalty is driving a number of companies out of business, leaving individuals as the ‘last man standing’ to face enforcement from the Regulator. The Regulator is also directing focus to a broader pool of employees that have a duty under the law.
This focus on individuals goes beyond merely looking for company records that show documented safety procedures, but also looks at the individuals that were involved – or should have been involved – in the creation, implementation and monitoring of the required safety procedures.
There doesn’t appear to be any significant change in the number or value of WHS penalties being imposed in NSW since 2020 (aside from a reduction due to COVID-19 disruptions); but the increased complexity of regulatory investigations and the vigour of enforcement is driving up legal costs for businesses to respond.
Following an independent review of SafeWork NSW published in December 2023, the Regulator has declared its focus is expanding beyond traditional areas such as construction and manufacturing. It now includes a particular focus on the healthcare and social assistance sectors, as well as psychosocial risks across all industries.
SafeWork NSW has declared that it will be pursuing ‘compliance through enforcement’. This means that businesses in NSW can expect a more active Regulator in the WHS space over the coming 12 months and beyond.
The Regulator has also staffed its inspectorate with specialist investigators trained in psychosocial matters, and from 1 July 2024, NSW has a dedicated Industrial Court to hear WHS matters. This means the regulatory landscape from incident response and investigations, through to prosecutions and sentencing has been strengthened to assist the Regulator in meeting its stated goal of compliance through enforcement.
Listen to the podcast for the full discussion.
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