By Michael Selinger
The Western Australian parliament is debating the proposed new Work Health & Safety Bill 2019 (the Bill), which is intended to make the State’s WHS laws more consistent with the rest of Australia.
The laws will largely adopt the Model WHS Act as well as implement some recommendations from the Boland Review, including industrial manslaughter laws and making insurance for penalties unlawful.
The Explanatory Memorandum sets the context for the Bill. It states that on 12 July 2017, the Premier announced that work would commence to develop modernised work health and safety (WHS) laws for Western Australia. The new laws were said to be aimed to:
- be substantially based on the national model Work Health and Safety Bill (the model WHS Bill), to improve consistency with the rest of Australia;
- provide the primary legislation for workplace safety and health across all Western Australian industries; and
- be supported by a number of industry specific regulations to suit the State’s unique conditions, enabling the resources sector to continue to use a risk-based approach, and continuing to support the safety-case approach for petroleum and major hazard facilities.
As a whole, the Bill does reflect a lot of the model WHS Bill, while retaining some jurisdictional aspects such as the management of WHS permit holders under the industrial relations laws.
It also seeks to introduce a new duty holder being the WHS Service provider. The WHS Service Provider (being essentially a consultant) must ensure, so far as is reasonably practicable, that the WHS services are provided so that any relevant use of them at, or in relation to, a workplace will not put at risk the health and safety of persons who are at the workplace.
The Bill gives examples of where a WHS Service Provider may owe a duty of care, including if they are involved in the testing of plant but fail to identify risks, or if the recommendations they give on eliminating risks is are inadequate.
This duty holder provision was abandoned by the other States and Territories when it was originally proposed in 2011 so it will be interesting to see whether it remains. The Bill also picks up a Boland Review recommendation of making insurance for penalties unlawful.
This article will focus on the charges being proposed to the offences.
As with Queensland, Victoria and the ACT, the Bill introduces offences of industrial manslaughter following the recommendations of the Boland Review.
Unlike Queensland, Victoria and the ACT, however, the Bill includes two separate offences for industrial manslaughter.
The first offence, known as ‘Industrial manslaughter – crime’ provides for the highest penalties for WHS offences, including imprisonment of 20 years and a fine of $5,000,000 for an individual PCBU, or a fine of $10,000,000 for a body corporate.
The second offence, known as ‘Industrial manslaughter – simple offence’ provides maximum penalties of 10 years’ imprisonment and a fine of $2,500,000 for an individual PCBU, or $5,000,000 for a body corporate.
Officers may also be charged with either or both industrial manslaughter offences with the same penalties for an individual PCBU.
For an officer to be guilty of an offence, the prosecutor must establish that the PCBU’s conduct was attributable to any neglect on behalf of the officer, or it was engaged in with the officer’s consent or connivance.
This wording reflects the current provisions for officer liability in section 55 of the Occupational Safety and Health Act 1984. Given the seriousness of the offence, the prosecutor must also prove that the officer knew the PCBU’s conduct was likely to cause the death, and, the conduct was in disregard of that likelihood.
Concerns with manslaughter laws
The Bill is likely to be vigorously debated in the WA Legislative Council in March, including concerns about the two industrial manslaughter offences.
Under the model WHS laws, there are three categories of offence and, in Queensland, Victoria and the ACT, there is a single industrial manslaughter offence (in the ACT this is contained in separate legislation).
However, the offences the Bill introduces, including the new Industrial Manslaughter – simple offence, modifies significantly the structure of the model WHS Bill.
The Industrial Manslaughter – crime offence is less controversial and seeks to replicate the traditional industrial manslaughter offence. A PCBU is guilty of the offence if:
- the person must have a health and safety duty as a PCBU;
- the person must have engaged in conduct (an act or omission) that causes the death of an individual;
- the conduct constitutes a failure to comply with the person’s health and safety duty;
- the person engages in the conduct knowing that the conduct is likely to cause the death of the individual; and
- the person engages in the conduct in disregard of the likelihood of death.
The standard of proof that the PCBU knows that the conduct is likely to cause the death is high.
The Industrial Manslaughter – simple offence, however, appears to go to a much lower standard of proof while retaining significant penalties. This offence appears to elevate what was a Category 2 offence under the model WHS Bill with the added requirement that the failure to comply with the health and safety duty must cause the death of an individual.
However, no element of recklessness or disregard of the likelihood of death is required to be proven. Simply that there was a breach of a duty of care that caused the death, following which a PCBU and individual is exposed to significant penalties – 10 years’ imprisonment and a fine of $2,500,000 for an individual PCBU, or $5,000,000 for a body corporate.
The Bill then proceeds to remove from Category 1 any conduct not resulting in actual harm. A Category 1 offence under the WHS Bill extends to where a PCBU or individual recklessly engages in conduct that exposes an individual to a risk of death or serious injury or illness, without reasonable excuse.
This broad offence is restricted under the Bill as there must be serious harm actually caused to an individual. Therefore, this offence cannot be prosecuted if no serious harm occurred, even if there was a real risk of it occurring. But it can be brought if harm is caused, even in the absence of recklessness.
By way of example, if a PCBU exposed its workers to hazardous substances because of a failure to maintain plant or equipment and those workers died or suffered serious harm, then the PCBU could be fined up to $3,500,000 and an officer could face 5 years in jail and/or be fined $680,000.
This would be the case irrespective of whether the PCBU knew the conduct was likely to cause the death of the workers. If no actual harm was caused, however, then there is no offence in this category.
It is only under Category 2 that the reference to a risk of exposure becomes relevant again and a PCBU can be charged even if no harm occurs, so long as to the exposure to risk can be proven. So in the above example, if the hazardous substances could not be proved to have harmed the workers, then a charge could still be brought under this category. And Category 3 remains the same as the model WHS Bill, being a simple failure to comply with a duty of care.
It will be important to watch the debate regarding the proposed Bill, particularly in respect of the industrial manslaughter laws. This will particularly be the case for officers of organisations based in other jurisdictions with operations in Western Australia.