Legal Alert

MAJOR WHS REFORM IN WESTERN AUSTRALIA

Authors: Amy Zhang & Angela Zhang

After almost a decade of discussion, the Work Health and Safety Bill 2019 (“WHS Bill”) was recently passed by the Western Australian (“WA”) Parliament on 3 November 2020, and given royal assent. With the passing of the WHS Bill, this will leave Victoria as the only Australian state not to have adopted the national model harmonised Work Health and Safety (“WHS”) legislation.

The new WHS Act, which will likely not come into operation until early 2021, will replace the current Occupational Safety and Health Act 1984 (WA), and certain sections of both the Mines Safety and Inspection Act 1994 (WA) and the Petroleum and Geothermal Energy Safety Levies Act 2011 (WA) that relate to work health and safety.

Some key changes introduced by the new legislation are as follows:

• The replacement of the term ‘employer’ in existing WA safety laws with the broader term of a ‘person conducting a business or undertaking’ (“PCBU“);
• The replacement of the term ‘employees’ in existing WA safety laws with the broader term of ‘workers’ and other ‘people affected by the work’;
• A primary duty of care requiring 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;
• Offences of industrial manslaughter with maximum penalties of 20 years’ imprisonment and $10 million in fines for a body corporate;
• An increase in workplace penalties above those initially introduced in October 2018;
• A prohibition on individuals and corporations utilising insurance policies to cover WHS liability penalties imposed under the WHS Act;
• The involvement of WHS inspectors in resolving disputes where WHS issues cannot be resolved with reasonable efforts in a timely manner;
• A requirement for safety committees to include decision-makers with sufficient authority to act on behalf of the PCBU;
• A requirement that corporate officers of PCBUs have positive ‘due diligence’ duties, to replace the fault-based duties in existing WA safety laws and to increase accountability on decision making; and
• A new duty of care for “WHS service providers” to ensure appropriate care in the provision of WHS services.

Notably, while the new WHS Act is based substantially on the national model WHS legislation, it does possess some key differences, adopting some unique provisions not yet implemented by all other harmonised jurisdictions.

As noted above, one of these differences includes the introduction of industrial manslaughter offences, which aim to ensure that workplace deaths caused by the conduct of PCBUs are met with substantial penalties. The WHS Act includes two separate offences for industrial manslaughter. A ‘simple’ offence will arise where a person fails to comply with a health and safety duty causing the death of another. This will attract a maximum penalty of 10 years’ imprisonment and a fine of $2.5 million for an individual or $5 million for a body corporate. A ‘crime’ offence will arise where a person with a health and safety duty engages in conduct causing a workplace death, with the knowledge that the conduct is likely to result in death, and in disregard of that likelihood. This will attract a maximum penalty of 20 years’ imprisonment and a fine of $5 million for an individual or $10 million for a body corporate. Notably, officers of PCBUs may also be charged with industrial manslaughter offences—however, additional elements of the offences must be proven, including that the conduct was attributable to any neglect on behalf of the officer, or it was engaged in with the officer’s consent or connivance. Thus far, only Queensland and the Australian Capital Territory have adopted industrial manslaughter laws, while Victoria has recently introduced them to its Parliament.

Some other notable differences in the WHS Act, as already set out in the list of key changes above, include the prohibition on insurance companies to indemnify entities against liability penalties imposed under WHS laws, the involvement of WHS Inspectors in resolving workplace WHS disputes, the requirement for WHS committees to include a decision maker with sufficient authority to act on behalf of the PCBU, the new positive ‘corporate officer’ duties to replace the fault-based duties in existing WA safety laws, and a new duty of care for “WHS service providers” to ensure that appropriate care is taken in the provision of WHS services.

As this Act is expected to come into force sometime in early 2021, transitional arrangements will be in place to allow sufficient time for employers to ensure that their current health and safety systems align with the new requirements. The Department of Mines, Industry Regulation and Safety is also developing resources to aid in this transition, which will become available closer to the date the WHS laws become operational.

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