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NSW Work Health & Safety Act

NSW Work Health & Safety Act. Module: Enforcement. About this Module. Purpose: To explain the range of enforcement & penalty options available to ensure compliance & to penalise non compliance. . Learning Outcomes. The key learning outcomes of this module are:

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NSW Work Health & Safety Act

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  1. NSWWork Health & Safety Act WHS Act Module: Enforcement

  2. About this Module Purpose: To explain the range of enforcement & penalty options available to ensure compliance & to penalise non compliance. WHS Act

  3. Learning Outcomes WHS Act The key learning outcomes of this module are: A review of the powers of Inspectors An understanding of the graduated regime of enforcement strategies under the WHS Act Knowledge of the changes regarding the right to prosecute and the powers to issue PINS An understanding of the impact of the removal of the reverse onus of proof in NSW An understanding of the new penalty structure

  4. What is different in WHS Act about Enforcement and Penalties The WHS Act retains and builds on the enforcement framework found in the current legislation WHS Act A greater range of sanctions, higher penalties, restrictions on a Trade Unions right to procecute and abolition of the reverse onus of proof are new to the NSW enforcement framework

  5. Power of Inspectors WHS Act Remains essentially unchanged: Inspectors have power to: Enter workplaces Enter without giving prior notice Inspect, examine & make enquiries Obtain information, documents and evidence Demand name, address & ID Require persons to answer questions Confiscate things from workplace

  6. Enforcement Measures Prosecution – ultimate sanction The WHS Act provides graduated enforcement regime with civil and criminal prosecutions the ultimate sanction Penalty Notice Enforceable Undertaking Injunctions WHS Act Action Remedial Prohibition Notice Improvement Notice Non Disturbance Notice Injunctions, and enforceable undertaking are new in NSW

  7. Enforceable Undertakings WHS Act NOT Available for Category 1 Offences WorkCover may accept a WHS undertaking in connection with the matter giving rise to a contravention or an alleged contravention as an alternative to a prosecution $$ to focus on positive prevention action

  8. Enforceable Undertakings: WHS Act

  9. The Right to Prosecute The right to bring a prosecution under the WHS Act rests with WorkCover in NSW A Trade Union can bring a prosecution under the WHS Act in NSW only if: • the offence concerned is a Category 3 • the offence concerned is a Category 1 or a Category 2 offence and WorkCover has (after referral of the matter to the Director of Public Prosecutions) declined to follow the advice of the DPP to bring the proceedings WHS Act

  10. Power of HSR to issue PIN WHS Act

  11. PENALTY STRUCTURE

  12. Reverse onus of proof removed The burden of proof (beyond reasonable doubt) rests entirely upon the prosecution in matters relating to non-compliance with duties imposed by the Act Except for civil actions relation to discriminatory conduct and WHS entry permit holders WHS Act

  13. What should you do? WHS Act

  14. Assessment questions Who has the right to bring a prosecution under the WHS Act? What does the removal of the reverse onus of proof mean? What are the 3 categories of offence under the WHS Act? WHS Act

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