After lengthy and intense debate, the Work Health and Safety Bill 2019 (WA) (WHS Bill) was passed by the Western Australian Parliament, on 3 November 2020. It is anticipated the WHS Bill will receive royal assent shortly. However it is expected that most provisions of the WHS Bill will not come into effect until the second half of 2021 or possibly even 2022.
This Insight focuses on the key changes under the WHS Bill compared to the existing Occupational Safety and Health Act 1984 (WA) (OSH Act), Mines Safety and Inspection Act 1994 (WA) (MSI Act) and other safety legislation, and provides some practical tips for businesses in WA in preparation for the new laws.
Overview and key changes
The WHS Bill will consolidate workplace safety under a single act covering all WA workplaces, replacing the OSH and MSI Acts. It largely adopts the Model WHS Law that is now in place, with minor variations, at the Commonwealth level and all States and Territories apart from Victoria. So many businesses operating nationally will be familiar with the key concepts.
Industrial Relations Minister Bill Johnston (the Minister) has said that the WHS Bill “reflects the social obligations and responsibilities the community now expects from companies and their senior management, including that mental health and wellbeing needs to be considered alongside physical safety”.
Among the key changes introduced by the WHS Bill are:
- Duty of care: broader duty of care imposed on a PCBU (Person Conducting Business or Undertaking) replacing the concept of an ‘employer’. A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers of the PCBU and those who are influenced or directed by the PCBU. PCBU is defined to include organisations other than traditional corporations, such as sole traders, charities, partnerships, and other entities.
- Duty to ’Workers’: the concept of ‘worker’ is broader than ‘employee’ and extends to volunteers, contractors, subcontractors, apprentices, labour hire and secondees. In practice the existing legislation covers most of those ‘non-employee’ categories, but the broader concept of ’worker’ means there is now no doubt a business will have duties to all people working ‘in’ or ‘for’ it, regardless of how their work is structured.
- Duty to consult, co-operate and co-ordinate: a PCBU must consult, co-operate and co-ordinate with other PCBUs who also have a duty in relation to the same activities. For example, a wide range of business relationships, such as principal contractor to sub-contractor relationships, mining operators and their service providers, joint ventures, supply of equipment or materials, and other business arrangements must ensure all parties engage in this consultation.
A model of a larger business (e.g. a mining operator) simply directing a smaller business (e.g. a maintenance contractor) to comply with certain safety systems or procedures will not be adequate, if this means there is no genuine consultation, co-operation etc between those businesses.
- Consultation with workers: a PCBU must consult workers who carry out work for the business or undertaking and who are directly affected by health and safety matters. With the broad definition of worker, this means that a PCBU must consult with anyone who carries out work for the business or undertaking, whether this be contractors, subcontractors and their employees.
- Officers’ due diligence duty: the introduction of a positive due diligence duty applying to officers. An officer has a positive duty to exercise due diligence to ensure the PCBU (i.e. the business they work for) meets its safety duties. Officers may include directors, company secretaries, and any person who has capacity to affect the company’s financial standing or who makes or participates in decisions affecting the whole or a substantial party of the business. Any person in senior management is likely to be an officer for this purpose. This requires senior managers to demonstrate a proactive and inquisitive approach to safety issues, rather than being simply reactive or waiting for safety issues to be communicated to them, or delegating this responsibility to someone else.
- Penalties: a further increase in workplace penalties from those introduced by the Government in October 2018. For example, the maximum penalty for ‘Category 1’ offences (e.g. an offence causing ‘serious harm’ or death) will be $3.5 million.
- Introduction of industrial manslaughter offences: new offences for breach of a duty causing death, discussed in further detail below.
- Duties to ensure psychological health: a broader definition of health in the WHS Bill which includes psychological health and wellbeing. PCBUs have a duty to protect workers from psychological risks to health, and the duty covers psychosocial risks such as stress, fatigue and bullying. This reflects an increased trend that we have observed in practice, for Worksafe WA to take mental health risks very seriously and to prioritise this in compliance activities.
- Increased safety inspector powers: WHS inspectors will have expanded powers during investigations and will be expressly permitted to record interviews.
- No insurance: A prohibition on insurance to cover fines for WHS offences.
Industrial manslaughter provisions were subject to intense parliamentary and public debate; as a result the final provisions are modified from what was originally proposed by the Government.
The provision now provides that a PCBU may commit the crime of industrial manslaughter if:
- they engage in conduct that is in breach of their WHS duty;
- knowing, and disregarding the risk that their conduct is likely to cause the death of, or serious harm to, an individual; and
- their conduct results in the death of an individual.
The maximum penalty for a company committing this criminal offence will be a fine of up to $10 million.
An individual officer of a PCBU may also commit the crime of industrial manslaughter if:
- the PCBU that they are an officer of engages in conduct that is in breach of their WHS duty;
- this conduct causes a death;
- the conduct was attributable to the neglect, consent or connivance of the officer; and
- the officer knew that their conduct was likely to cause serious harm or death, and they disregarded that risk.
An officer will face a maximum penalty of up to 20 years imprisonment or a fine of $5 million for this offence. Alternative convictions for less serious WHS offences may be determined by a court, depending on its assessment of the evidence.
These provisions were controversial and it remains to be seen what practical difference to WHS standards they lead to. However, it is clear that Western Australia is not out of step in this regard. An increased trend towards a punitive and criminalised approach to WHS, including the introduction of an industrial manslaughter type offence, has developed in many Australian jurisdictions in recent years.
What should businesses do now?
Before the WHS Bill can be put into effect, there will need to be extensive variations to the current OSH and MSI Act regulations. These have not been fully drafted. The Minister has confirmed that it is hoped to have this drafting completed by July 2021, but this is an ambitious timeline.
On this basis, we anticipate that the WHS Bill is likely to become operational mid to late 2021, or possibly even in 2022. Therefore, businesses in WA still have some time to ensure they are meeting their obligations under the proposed law.
Practically, businesses who already adopt best practice in safety management are unlikely to need to radically change their approach to WHS. However, it is likely that some businesses who are not operating at this standard will be required to update safety policies and procedures.
We recommend in the interim that businesses should:
- Ensure senior managers can demonstrate that they are meeting due diligence obligations. For example, be in a position to show that senior managers are receiving adequate training and support to meet the due diligence requirement.
- Plan for ongoing consultation to be a feature in all dealings with contractors, suppliers and other business partners in relation to how health and safety is being managed in the workplace. Consultation on WHS matters should commence at the formation of contracts and be incorporated as an ongoing activity that is recorded and reported on continuously.
- Ensure that the workplace has best practice policies and procedures about mental health issues. For example, by having a clear policy on how employees can report and manage bullying, harassment, fatigue, overwork and stress issues, and ensure managers and supervisors are well trained to manage and to identify these risks.
This article was originally co-authored by Nicholas Ellery.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.