WA Bill to Modernise Work Health and Safety Laws

Thursday 12 December 2019 @ 1.37 p.m. | Corporate & Regulatory | Legal Research

On 27 November 2019, Mr W J Johnston, Minister for Industrial Relations (the Minister) introduced the Work Health and Safety Bill 2019 (the Bill) into the WA Parliament. While introducing the Bill the Minister said:

“The Bill before the house today represents the long overdue modernisation of Western Australia’s work health and safety laws. It brings work health and safety of all workplaces, including mines and petroleum, under the same laws to provide for more effective administration and greater consistency.”

The introduction of the Bill sees WA joining with the national Work Health and Safety (WHS) harmonisation laws. This follows much debate and several attempts since 2012 to join the process. The WA Premier Mark McGowan announced the proposed introduction of the new laws at the State ALP Conference in August 2019. 

Other than WA and until recently Victoria, all States, both Territories and the Commonwealth have adopted the model WHS laws. New Zealand has also updated its safety and health laws based on the model WHS Bill.  WA will now follow the other States and Territories in implementing the harmonised model WHS Act, Regulations and other subsidiary legislation.

The Bill also proposes to introduce “corporate manslaughter laws” as part of the WHS law reform attracting the maximum penalties of a $10 million fine and 20 years jail.

Background

The Premier announced that work was to commence on the development of modernised work health and safety (WHS) laws for Western Australia on 12 July 2017. The new laws would:

  • be substantially based on the national model Work Health and Safety Bill (the model WHS Bill), to improve consistency with the rest of Australia;
  • provide the primary legislation for workplace safety and health across all Western Australian industries; and
  • be supported by a number of industry specific regulations to suit the State's unique conditions, enabling the resources sector to continue to use a risk-based approach, and
  • continuing to support the safety-case approach for petroleum and major hazard facilities.

About “Harmonisation”

The model WHS Bill was developed under the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA). It is intended to underpin a harmonised WHS framework in Australia. The harmonisation of WHS laws forms part of the Council of Australian Governments’ National Reform Agenda which is aimed at reducing regulatory burdens and creating a “seamless national economy”. The objects of harmonising WHS laws through a model framework are:

  • protection of the health and safety of workers
  • improvement of safety outcomes in workplaces
  • reduction of compliance costs for business, and
  • improvement of efficiency for regulatory agencies.

Over view of the Bill

The Bill includes the following important elements:

  • a primary duty of care requiring persons conducting a business or undertaking (PCBUs) to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work;
  • duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work, including the providers of WHS services;
  • a requirement that “officers” exercise “due diligence” to ensure compliance;
  • reporting requirements for “notifiable incidents” such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking;
  • a framework to establish a general scheme for authorisations such as licences, permits and registrations (for example, for persons engaged in high risk work or users of certain plant or substances) including provisions for automated authorisations;
  • provision for consultation on WHS matters, participation and representation provisions;
  • provision for the resolution of WHS issues;
  • protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Bill;
  • provision for enforcement and compliance including a compliance role for WHS inspectors; and
  • the continuation of Western Australia’s peak tripartite consultative bodies, re-established as the Work Health and Safety Commission (WHSC) and the Mining and Petroleum Advisory Committee (MAPAC).

Some Key Reforms Not Part of the Model WHS

Industrial Manslaughter: The Bill proposes to introduce the offence of “industrial manslaughter” to ensure that deaths at the workplace, caused by the conduct of PCBUs and officers of PCBUs, are met with substantial penalties. The Bill includes two separate offences for industrial manslaughter:

(1)    Industrial manslaughter – crime which provides for the highest penalties for WHS offences, including imprisonment of 20 years and a fine of $5,000,000 for an individual PCBU, or a fine of $10,000,000 for a body corporate. Because of the offences seriousness it will be heard in the District Court and may only be prosecuted by the Director of Public Prosecutions (DPP). It will also require high standards of proof including a requirement for the prosecution to establish the person engaged in the conduct that “. . . caused the death of an individual knowing the conduct was likely to result in death, and in disregard of the likelihood”.

(2)    Industrial manslaughter – simple offence which provides lesser penalties but has “correspondingly simpler elements of proof” and is to be tried in the Magistrate’s Court as a simple offence. The maximum penalties for a PCBU convicted on industrial manslaughter – simple offence are 10 years and a fine of $2,500,000 for an individual PCBU, or $5,000,000 for a body corporate. For Industrial manslaughter – simple offence the prosecution must prove “the person failed to comply with a health and safety duty that caused the death of an individual”.

WHS Issue Resolution: The Bill proposes that an inspector must make a decision within two days

Prohibition on insurance for monetary penalties: The Bill proposes a prohibition on insurance against fines imposed providing that an “. . .  insurance policy is of no effect to the extent that, apart from this subsection, it would indemnify a person for the person’s liability to pay a fine for an offence against this Bill”.
Inclusion of a new duty of care for WHS service providers: A specific duty of care for the providers of WHS services has been included in the Bill.

The Bill is currently at second reading stage in the WA Assembly and not likely to be debated until 2020. The Bill represents major change and requires employers to understand the new laws; consider the impacts on their activities and operations; and to update their WHS management systems, processes and practices to comply.

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