The 2017 Regulation is principally the same as the 2011 Regulation but for a few minor changes (including corrections to typographical errors and formatting).
What does this mean for employers?
While there are no significant changes, employers and other persons conducting a business or undertaking (PCBUs) must ensure their safe systems of work comply with the requirements of the 2017 Regulation.
In addition, employers should ensure that any reference to the 2011 Regulation in its work health and safety policies and procedures is replaced by a reference to the 2017 Regulation.
Noteworthy changes
SafeWork NSW has released a table outlining the main changes between the 2011 Regulation and 2017 Regulation.
Some of the more noteworthy changes include:
1. 702A (Penalty notice offences and penalties) and Schedule 18A (Penalty notice offences)
- 702A(1) of the 2011 Regulation has been relocated to Schedule 18A in the 2017 Regulation under the heading 'Schedule 18A Penalty notice offences'.
- There has been a slight amendment to the wording of the previous 702A(1). The wording in the 2017 Regulation provides penalty notices are 'issued' rather than 'served' – this is to ensure consistency with the wording in the Fines Act 1996 (NSW).
- 702A(2) of the 2011 Regulation (which deals with whether a provision is a prescribed offence in particular circumstances) has been removed and is not included in the 2017 Regulation.
- The new 702A of the 2017 Regulation provides that any act, matter or thing that, immediately before the repeal of the 2011 Regulation, had effect under the 2011 Regulation, continues to have effect under the 2017 Regulation. The new provision also includes a note that states the savings and transitional provisions contained in Schedule 18B of the 2011 Regulation continue to have effect under the 2017 Regulation by operation of section 30(2)(d) (Effect of amendment or repeal of Acts and statutory rules) of the Interpretation Act 1987 (NSW).
2. Removal of Schedule 18B (Savings and transitional provisions)
- Schedule 18B of the 2011 Regulation (which deals with transitional provisions) has been removed and is not included in the 2017 Regulation.
- Notes have been inserted into clauses 143 (Demolition work required to be licensed) and 702A (Savings) of the 2017 Regulation which provide that Schedule 18B of the 2011 Regulation continues to have effect by operation of section 30(2)(d) of the Interpretation Act 1987 (NSW).
What's to come?
On 1 November 2017, the Work Health and Safety Amendment (Penalty Notices) Regulation 2017 (NSW) will commence operation.
In short, Schedule 18A (Penalty Notices) of the 2017 Regulation has been further amended to allow SafeWork NSW inspectors to issue penalty notices of $720 for individuals and $3,600 for corporations for breaches of:
- Section 43 (Requirements for authorisation of work) of the Work Health and Safety Act 2011 (NSW) – essentially, working at a workplace without authorisation; or
- Sections 78 – 80 of the 2017 Regulations, which relate to managing risks of falls at workplaces and emergency and rescue procedures relating to fall arrest systems.
The amendments have been introduced in response to the high number of incidents SafeWork NSW has attended involving falls from heights.
