Work Health and Safety Harmonisation Status in Western Australia


Almost seven years has passed since the Commonwealth and all Australian States and Territories entered into the Inter-Governmental Agreement for Regulatory and Operation Reform in Occupational Health and Safety (Harmonisation Agreement), where each State and Territory agreed to harmonise their occupational health and safety laws with a national model prepared by the Commonwealth.

Western Australia and Victoria have not yet passed legislation consistent with the Harmonisation Agreement.  A timeline of the WA story is provided below:

Date Action
3 July 2008 Harmonisation Agreement signed.
2012 WA Government commissioned a consultation regulation impact statement (RIS) on the Work Health and Safety (WHS) model regulations and codes of practice, recommending that amendments to the model WHS laws was advisable for WA.
23 October 2014

Minister for Commerce, the Hon Michael Mischin MLC tabled, in WA Parliament, the Work Health and Safety Bill 2014 green bill (Green WHS Bill) and announced the opening of a public comment period.

The WHS Bill contains most core provisions of the model WHS laws with some modifications to suit WA’s working environment.

The Green WHS Bill does not adopt the following key aspects of the model WHS laws:

  1. Union right of entry with WHS entry permits, as it was suggested that union right of entry is better covered by industrial relations legislation;
  2. Safety and health representatives’ capacity to direct cessation of work, as it was thought that the decision to refuse to continue working where there is a serious risk of harm should lie with the individual worker;
  3. The reverse onus of proof in discrimination matters, as it was thought that this would be contrary to the purpose of harmonising the WHS laws.

The Green WHS Bill does elect to maintain the penalties proposed under the model WHS laws.  This includes a maximum fine of $3 million for a body corporate and up to $600,000.00 and five years’ imprisonment for a person carrying on a business or undertaking (PCBU) who is convicted of reckless conduct.  This is 600% higher than the previous penalties for corporations and 240% higher for individuals.

30 January 2015

Public comment period closed.

 

The time for public comment is now over.  The Western Australian government will now review the comments and consider the best form of legislation.

The feedback from small businesses is that the new legislation with suffocate them with red tape.  This concern stems from the fact that the majority of small businesses do not have OH&S experts to assist them.  This view itself, however, has been the subject of controversy, with at least one survey (the June 2012 Sensis Business Index Sweeney research) suggesting that taxation remains the main “red tape” threat to small business.

One of the best ways for businesses to keep up to date with the progress of the model WHS laws is to subscribe to the WorkSafe email information service.

What about Mining? 

Whilst the model WHS legislation has been developed so that all workplaces in WA will be covered by the harmonised legislation, the mining industry will continue to be covered by its own Act and regulations.  The new resources legislation in WA will include some of the core provisions of the model Mines Work Health and Safety Act and regulations but also provisions more specific to Western Australia.  In essence, some “non-core” provisions will be included in order to make the legislation better suited to the WA mining industry.

In July 2014 the State Government provided approval for the Department of Mines and Petroleum (DMP) to begin development of the Resources Safety Bill which will replace the Mines Safety and Inspection Act 1994 (WA).  The legislation is expected to be in place by mid-2016.

One proposed change includes moving regulation of Major Hazard Facilities from the Dangerous Goods Safety Act 2004 (WA) to the new Resources Safety Act.  This will give the DMP full safety regulation oversight (currently worker safety is overseen by WorkSafe).

For more information on this update or any other employment and work health and safety matters please contact partner Tom Darbyshire on (08) 9321 3755.  For more information on the Managing Danger: Navigation Workplace Risk conference click here

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.