On 3 September 2019, Kott Gunning reported that the WA government had committed to implementing the national Work Health & Safety (WHS) harmonisation laws. A link to this article is below.
The first step in the WA government’s WHS commitment was realised this week when the Work Health and Safety Bill 2019 (WA) was introduced into the WA Parliament on Wednesday 27 November.
About the WHS Bill
The Bill proposes a single WHS Act for Western Australian general workplaces, as well as those in the mining and petroleum sectors. The Bill contains the majority of the provisions contained in the national model WHS legislation with a few notable differences.
Notable differences include the introduction of industrial manslaughter offences, a prohibition on insurance and other indemnity to cover business or personal WHS liability penalties, involvement of WHS Inspectors in resolving workplace WHS disputes, a requirement for WHS committees to include an organisation’s decision maker with sufficient authority to act on behalf of the PCBU, and a new duty of care for WHS service providers.
Model WHS Law provisions
The key general national model WHS provisions adopted by the Bill include:
- PCBU: The term ‘employer’ in existing WA safety laws is replaced with the broader ‘person carrying on a business or undertaking,’ (‘PCBU’), capturing all types of organisations including those without employees. A PCBU can be an individual including a member of a partnership and a sole trader but will typically apply to companies and other entities. PCBU’s will owe a new ‘primary duty of care’ to ensure the health and safety of workers and others affected by the work.
- Officer Due Diligence: The Bill includes up-front positive corporate ‘officer’ due diligence duties for organisational decision makers. These new duties replace derivative, fault-based duties in existing WA safety laws and are intended to increase accountability on decision making that affects health and safety. Officers include board members, directors and senior managers, but not middle management and nature and extent of the duty will depend on all the circumstances of a person’s position and level of, or expected level of, WHS decision making involvement.
- Increased Consultation: Increased internal and external organisational WHS consultation requirements are included in the Bill. Contracting consultation obligations require PCBU’s and other duty holders with common interests, to ‘consult, cooperate and coordinate’ in relation to health and safety matters.
- Upstream Duties: Increased ‘upstream’ duties to ensure health and safety related to plant, substances and structures are also included, with WHS obligations on designers, manufacturers, constructors, suppliers, and importers.
- Duty to all people affected by the work: The type of people owed a duty under the proposed new WHS laws by PCBU’s and other duty holders, is broadened from ‘employees’ to ‘workers’ and other ‘people affected by the work’. This includes all directly employed and indirectly engaged workers. It also includes customers, patrons, residents, tenants, students, visitors, spectators, and passers-by.
- Volunteers: Volunteers are deemed to be workers under the new WHS laws and are owed a primary duty of care by a PCBU, as well as owing a worker duty of care themselves.
- Two Year Limitation Period: There is a 2-year limitation period for prosecution under the WHS laws, with serious offences able to be prosecuted beyond this time limit where fresh evidence is available. The existing WA limitation period is 3 years.
- Public request for prosecution: A person may make a request to the regulator that a prosecution be brought after 6 months, but not after 12 months, from the time of incident occurrence. If a prosecution is commenced, this time limit is intended to still enable a prosecution to occur within the 2-year limitation period.
- Enforceable Undertakings: There is an option for a negotiated Enforceable Undertaking in lieu of prosecution or criminal conviction as an enforcement option for all but the most serious of WHS offences. This may include a commitment to develop, implement or support a worthwhile and approved workplace or public WHS initiative that would be broadly equivalent to or exceeds the relevant conviction penalty for the related WHS offence.
In October 2018 the WA government increased penalties under the general and mining safety legislation to be consistent with the model harmonised legislation.
Penalties in the WHS Bill 2019 (WA) are even higher with breaches of a health and safety duty ranging from to $570,000 to $3.5 million for a corporation and for an individual $120,000 to $680,000 and imprisonment for 5 years. The proposed industrial manslaughter offences in the Bill have significantly higher penalty levels yet again.
Industrial manslaughter, while not currently contained in the Model WHS Laws, was a recommendation of the recent national review into the model laws, and a separate federal Senate enquiry into workplace fatalities.
The WHS Bill 2019 (WA) proposes two new industrial manslaughter offences for breaches of a health and safety duty involving a workplace death.
- ‘Simple’ offence: The less serious ‘industrial manslaughter – simple’ WHS offence arises where a person fails to comply with a health and safety duty causing the death of a person. Many workplace fatalities will fit into this category in circumstances where a person was killed at work and where a duty was breached causing the death of the person.
- ‘Crime’ offence: The more serious ‘industrial manslaughter – crime’ offence is a criminal offence. It arises where a person has a health and safety duty and engages in conduct that causes a workplace death, knowing that the conduct is likely to cause the death of an individual, and the person acted in disregard of that likelihood.
A PCBU can be charged with an industrial manslaughter offence, as well as an officer of the PCBU. For officers, the prosecution must prove additional elements including that the PCBU’s conduct was attributable to neglect by the officer and that the PCBU’s conduct was engaged in with the officer’s consent or connivance.
The ‘industrial manslaughter – simple’ WHS offence attracts a maximum penalty for an individual of 10 years imprisonment and a fine of $2.5 million, and for a corporation $5 million. The maximum penalty for the ‘industrial manslaughter – crime’ criminal offence for an individual is 20 years imprisonment and a fine of $5 million, and for a corporation $10 million.
Other WA provisions beyond Model WHS Laws
Other provisions of the WHS Bill 2019 (WA) that are beyond the current model harmonised WHS laws include the following:
- Prohibition on insurance and other indemnities: The Bill proposes an offence where a person either indemnifies, or offers to indemnify, another person for a WHS fine liability. An insurance policy that would otherwise indemnify a person’s liability to pay a fine for a WHS offence is invalid. Similarly, a contractual obligation or other promise by a person to pay a WHS fine liability for another person is also invalid. The penalty for a breach of the WHS indemnity provisions for a corporation is $285,000 and $55,000 for an individual.
- WHS Inspectors involvement in workplace WHS disputes: Where PCBU’s, workers and other parties cannot resolve WHS issues with reasonable efforts in a timely manner, a person at the workplace may request a WHS Inspector to assist in resolving the dispute. A WHS Inspector must make a decision within two days or seek an extension of time from the WHS Tribunal.
- WHS Committee decision maker: Where a WHS Committee exists for a workplace, the PCBU must ensure that at least one member of the WHS Committee has sufficient authority to adequately respond and address or action decisions made by the WHS Committee for WHS improvement in the workplace.
- New duty of care for WHS service providers: The Bill proposes that WHS Service providers who are PCBU’s have a duty of care to ensure that the provision of WHS services to workplaces does not put at risk the safety and health of persons who are at the workplace. WHS services will include WHS advice, WHS recommendations, training and education, and testing and analysis. Services provided by a WHS authority, emergency services personnel in emergency situations, and under legal professional privilege (LPP) are excluded.
What’s Next for the WHS Bill
Along with a new single WHS Act for WA, the government proposes to introduce a set of three WHS Regulations representing general, mining and petroleum workplaces.
A public consultation period for proposed new WHS Regulations, conducted by the Department of Mines, Industry Regulation and Safety (DMIRS), closed on 26 November 2019. The Minister will now consider the public responses to determine the content of the WHS Regulations for adopting alongside the new WHS Act.
The WHS Bill 2019 (WA) will now continue through the usual WA parliamentary process. It is anticipated that the new WHS laws will be enacted within the first half of 2020 in Western Australia, bringing a new nationally harmonised WHS regime to the State.
Western Australia has been slow to adopt national WHS harmonisation which has been occurring around the country since 2012. There is now no doubt that the WA government has got the message and is hurtling towards a new WHS regime by mid 2020.
Not only have the national WHS harmonised legislation provisions been nearly wholly adopted, the new WHS Bill proposes new obligations above and beyond model provisions including industrial manslaughter, prohibition on insurance and other indemnities and new duties for WHS service providers among others.
All WA businesses and other organisations will be affected by the new WHS laws and will need to review their WHS systems, practices and processes to ensure compliance. This includes for the organisation itself, for its officers, suppliers and contractors and workers.
Every company, partner in a partnership or sole trader (including in any Trustee capacity), doing business or involved in an “undertaking” in WA, needs to understand the soon to be introduced WHS laws including each of the identified specific WA provisions. For further information and advice in planning and preparation for the new WHS laws please contact one of the Kott Gunning workplace risk team.
The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.