Western Australia set for WHS reform

The Work Health and Safety Bill 2019 (WA) received assent on November 10, 2020 (WHS Act). The WHS Act introduces the offence of industrial manslaughter and will harmonise WA’s work health and safety (WHS) laws with most other Australian states and territories. This harmonisation is long overdue in WA with the other states and territories having adopted the model WHS laws between 2011 and 2012, with the exception of Victoria which has nonetheless still amended its legislation to provide for industrial manslaughter.

The WHS Act is expected to come into full effect in the first half of 2021 once the supporting regulations are finalised. The new WHS Act will repeal and replace the Occupational Safety and Health Act 1984 and the Mines Safety and Inspection Act as well as amending safety legislation around onshore and offshore petroleum, pipeline and geothermal energy operations. The new laws are clearer, more encompassing and will be found in one comprehensive Act with regulations, rather than spanning multiple pieces of legislation and regulations.

These laws reflect the sentiment of Premier Mark McGowan when he said, “every worker has the right to come home safely from work each day.”

While the introduction of industrial manslaughter is the chief talking point of the new legislation, the new WHS laws will likely bring about major change to business’ approach to workplace health and safety, with major changes to how liability will be determined and placing greater obligations on business and their officers and directors to ensure a safe workplace. The concept of Person Conducting a Business or Undertaking (PCBU) will replace “employers” and officers of PCBUs must exercise due diligence to ensure that the PCBU complies with its duties or obligations under the WHS Act. This widens the scope of liability to those outside of direct control of the workplace.

The harmonised WHS laws will allow businesses with enterprises in other states to adopt a uniform WHS approach (excluding Victoria). This will allow for more consistency and certainty for businesses when addressing WHS issues in Western Australia and should also provide for safer workplaces.

Key amendments introduced in the new laws to keep in mind while conducting operations in Western Australia include:

1. The introduction of industrial manslaughter laws which can attract up to 20 years’ jail for individuals and a $10 million fine for a body corporate.
2. The broad concept of a "person conducting a business or undertaking" (PCBU) will replace the concept of an "employer".
3. The primary duty of care for a PCBU will be to ensure, so far as is reasonably practicable, the health and safety of workers and others who might be affected by their undertakings.
4. The broad concept of a "worker" which includes contractors, subcontractors, and the employees of contractors and subcontractors.
5. Positive obligations on officers of PCBUs (including members, directors and senior management) to conduct due diligence.
6. Generally increased penalties for WHS breaches.
7. The prohibition of insurance coverage for fines under the new Act.
8. The introduction of enforceable undertakings as an alternative to penalties.
9. The introduction of consultation requirements at the workplace and similar safeguards that are in the model WHS laws.
10. New frameworks, processes and obligations for reporting incidents, resolution of issues and enforcement including greater regulators powers of investigation and resolution of disputes.

The industrial manslaughter laws have been designed so that where an employer fails to comply with a duty and that causes a death, then they will be liable. If an employer does the right thing, complies with their duties, is alert to hazards and risks and makes intelligent choices to deal with them, they will not be at risk of these new offences.

While Western Australia was late in adopting the model WHS laws, it has given the state the opportunity to introduce the model WHS laws with the benefit of the recommendations outlined by former executive director of SafeWork South Australia, Marie Boland, in her review of the model WHS laws in 2018. For this reason, there are some distinctions between the model WHS laws and Western Australia’s new laws. For example, the WHS Act includes a provision specific to those that provide a “WHS service”, such as WHS Consultants, to ensure so far as reasonably practicable, that the WHS services are provided so that any relevant use of them will not put at risk the health and safety of others.

We recommend businesses conduct reviews of their WHS policies, familiarise themselves with the new obligations under the new laws and ensure that they are complying with them the moment they come into force.

In his second reading speech, WA’s Minister for Industrial Relations, Bill Johnston, stated, “we have serious penalties for drivers who cause death on our roads and for those who are guilty of manslaughter in the wider community; now it is time for the workplace to be treated in a similar way.” Businesses in WA will need to be ready for this new approach.