New Work Health & Safety Regulator in NSW

As of 1 September 2015, the WorkCover Authority of NSW (WorkCover) has been abolished.

Under the State Insurance and Care Governance Act 2015 (NSW), WorkCover has been replaced by the following three bodies:

  1. Insurance and Care NSW (ICARE);
  2. State Insurance Regulatory Authority (SIRA); and
  3. SafeWork NSW.

SafeWork NSW is now the responsible body for regulating WHS laws in NSW.

LEAD-UP TO THE CHANGES

The NSW Government, as part of its election promises, committed to reviewing the financial position of the workers compensation scheme.[1]  On 4 August 2015, the Minister for Finance, Services and Property (Minister) announced the ‘Workers Compensation Reforms’ which involve restoring $1 billion in benefits to injured workers, reducing premiums for businesses as well as establishing three separate and independent bodies for carrying out the various roles of WorkCover.[2]

The conflicts of interest between its various roles were previously acknowledged in a review by the NSW Legislative Council – Standing Committee on Law and Justice.[3] In this review, the conflicts of interest identified were:

  1. management of the workers compensation insurance fund (Nominal Insurer Function) yet also acting as the regulator for the workers compensation scheme and reviewer of work capacity assessments (Insurance Regulator and Work Capacity Functions); and
  2. advising businesses on WHS matters yet was also acting as the regulator for the WHS laws.

Whilst measures were in place within WorkCover to address these conflicts, the changes establish three new bodies essentially dividing the above functions:

  • the Nominal Insurer Function will be ICARE’s responsibility;
  • the Insurance Regulator and Work Capacity Functions will be the SIRA’s responsibility; and
  • the WHS functions will be SafeWork NSW’s responsibility, despite the conflict.[4]

ROLE OF SAFEWORK NSW

The ‘regulator’ under the Work Health and Safety Act 2011 (NSW) is now SafeWork NSW. Notably, there has not just been a swapping of names – instead, the previous definition of ‘regulator’ has been removed and replaced with a new definition which includes a subtle, yet interesting change confirming that SafeWork NSW is subject to the control and direction of the Minister, except in relation to:[5]

  1. any decision that relates to proceedings for offences under the WHS laws; or
  2. any decision that relates to a WHS enforceable undertaking.[6]

The reasons for this change are not known, other than to confirm the independence of the regulator.

The functions of the regulator have not changed and all WHS functions have been transferred to SafeWork NSW. All proceedings, investigations and other enforcement action commenced by or on behalf of WorkCover are now taken as having been commenced by or on behalf of SafeWork NSW.[7]

SafeWork NSW’s website (still under construction) can be viewed by clicking here.


[1] Legislative Assembly Second Reading Speech (5 August 2015).

[2] Media Release, Minister for Finance, Services and Property (4 August 2015).

[3] Review of the exercise of the functions of the WorkCover Authority (Report 54 – September 2014).

[4] A second piece of legislation relevant to the ‘Workers Compensation Reforms’ is the Workers Compensation Amendment Act 2015 (NSW), part of which is waiting for a commencement date to be announced.

[5] Section 4A has been removed and replaced with clause 1 of Schedule 2 to the Work Health and Safety Act 2011 (NSW).

[6] The exception also extends to any advice, report or recommendation given to the Minister, however this existed under the now removed sections of the Workplace Injury Management and Workers Compensation Act 1988 (NSW).

[7] Clause 3, Division 1, Part 2 of Schedule 4 to the State Insurance and Care Governance Act 2015 (NSW). 


The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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