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 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.
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:
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:
The Bill includes the following important elements:
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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Work Health and Safety Bill 2019 (155 of 2019) [WA], second reading speeches and explanatory memoranda as reported in TimeBase's LawOne Service.
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