Western Australia - Parliament harmonises WHS legislation

After more than a decade of agreeing to introduce harmonised WHS legislation, the WA Parliament has finally begun to yield. On 21 October 2020, the Legislative Council passed the Work Health and Safety Bill 2019, taking it one-step closer to achieving this.

The Bill is anticipated to receive royal assent soon after consideration of amendments by the Legislative Assembly in November.

About the WHS Bill

The new Work Health and Safety Act 2019 (WHS Act) will:

• replace the current Occupational Safety and Health Act 1984 (WA) (OSH Act);27861
• replace elements of the Mines Safety and Inspection Act 1994 (WA) (MSI Act);
• replace elements of the Petroleum and Geothermal Energy Safety Levies Act 2011 ( WA) that relate to work health and safety.

The new laws will offer greater protection to WA workers, capturing modern employment relationships not just the classic employer/employee relationship. In particular, they will introduce the term ‘person conducting a business or undertaking’ (PCBU). The Bill contains the majority of the provisions contained in the national model WHS legislation, we explore some important elements of the bill below.

Meaning of 'worker'

The WHS Bill adopts a broad definition of ‘worker’ to recognise the changing nature of employment relationships and to ensure that the protections in the legislation extend to all types of workers. It sets out a non-exhaustive list of persons who would meet the definition of ‘worker’, including employees, contractors/sub-contractors, labour hire company employees, apprentices, work experience students and volunteers.

A 'person conduction a business or undertaking' (PCBU)

The term ‘employer’ in existing WA safety laws will be replaced with the broader ‘person carrying on a business or undertaking,’ (PCBU) encompassing 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. The duties imposed by the WHS Bill mirror the duties imposed by the current law, such as ensuring the health and safety of other persons is not put at risk from work carried out; the provision and maintenance of a work environment without health and safety risks; and the provision and maintenance of safe structures and plant etc.

Reminder: Employers should pay extra attention to the broad definition of worker to ensure that the corporation’s safety procedures and measures adequately protect those persons to whom the corporation owes a duty.

Officer’s liability and due diligence

The WHS Bill provides that an officer of a PCBU must ensure that the PCBU complies with its duties and obligations under the WHS Bill. An officer’s duty is a personal duty, therefore officers must exercise due diligence in ensuring compliance. Officers may receive assistance from others but the duty cannot be transferred or delegated.

The duty of due diligence placed on officers is a “positive and continuous” one that operates separately to the duties imposed on PCBUs. This is different to the position under current OHS legislation where an officer may be deemed to have contravened safety legislation but only if there has been a contravention by the employer.

Industrial Manslaughter

The WHS Bill provides two new industrial manslaughter offences for breaches of a duty involving a death. The offence is not currently included in the model WHS laws however some states have recently introduced it into their legislation.

1. ‘Industrial Manslaughter – simple offence’ arises when a PCBU owes a health and safety duty but fails to comply with the duty and the failure causes the death of an individual.
   
   The simple offence attracts a penalty of 10 years imprisonment and a fine of $2,500,000 for an individual or a fine of $5,000,000 for a body corporate.
   
   
2. ‘Industrial Manslaughter – crime’ is the more serious offence which arises when a PCBU has a health and safety duty and engages in conduct that causes the death of an individual (therefore failing to comply with the duty) and the conduct is engaged in knowing that the conduct is likely to cause the death of an individual, or with disregard of that likelihood. Proceedings in respect of this offence may only be commenced by the Director of Public Prosecutions.
   
   The criminal offence attracts a penalty of 20 years imprisonment and a $5,000,000 fine for an individual or a fine of $10,000,000 for a body corporate.

An officer of a PCBU may also be charged with industrial manslaughter offences but additional elements of the offence must be proven. This includes establishing that the PCBU’s conduct was attributable to any neglect on the part of the officer, or if the conduct was engaged in with the officer’s consent or involvement. The implication of this is that a company and an individual officer could be charged with industrial manslaughter.

It is also important to note that an amendment was implemented recently following debate which involved merging section 30B ("Industrial manslaughter – simple offence") with section 31 ("Failure to comply with health and safety duty – Category 1") and reducing the maximum term of imprisonment for a "simple offence" from 10 to 5 years.

Insurability

The Bill also prohibits insurance and indemnity against monetary penalties imposed under WHS law. Penalties can be imposed for a breach of this prohibition.

Penalties

Previously in 2018, the WA Government passed legislation to increase workplace safety and health offence penalties, under the OSH Act and the MSI Act to better align with the penalties under model WHS laws. Notable changes included:

• Level 1 penalties increasing from $50,000 to a $450,000 maximum;
• Level 4 penalties increasing from $500,000 to a maximum $2.7 million; and
• increasing the maximum term of imprisonment for those convicted of a level 4 offence from 2 years to 5 years.

The WHS Bill has increased penalties further: