By Michael Selinger
Western Australia’s proposed Work Health and Safety Bill 2019 (Bill), which is substantially based on the national model Work Health and Safety Act (model WHS Act), recently passed the Upper House and the final vote in the Lower House, with some changes.
The new laws are expected to commence once the supporting regulations are finalised early next year.
The Bill aims to:
- be substantially based on the model WHS Act, 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 reflects a lot of the model WHS Act but retains 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, the WHS Service Provider. This provider (being essentially a consultant) must ensure, so far as is reasonably practicable, that the WHS services are provided such that any relevant use of them at, or in relation to, a workplace will not put the health and safety of persons in the workplace at risk.
The Bill also picks up a Boland Review recommendation of making insurance for penalties unlawful.
Industrial manslaughter offence
The Upper House made some changes to the Bill in relation to industrial manslaughter offences.
The main change is the removal of section 30B, being ‘industrial manslaughter – simple offence’. The offence as originally drafted had elevated what was a Category 2 offence under the model WHS Act, with the added requirement that the failure to comply with the health and safety duty must ‘cause the death of an individual’. The offence was expected to be vigorously debated due to concerns that it significantly modified the structure of the model WHS Act.
The offence of industrial manslaughter – crime (section 30A) is retained. The Upper House has included that the definition of ‘industrial manslaughter’ will also apply to engaging in conduct while knowing the conduct is likely to cause death or serious harm to an individual. ‘Serious harm’ is defined as illness or injury that endangers (or is likely to endanger) the individual’s life, or results (or is likely to result) in a permanent injury or harm to the individual’s health.
The industrial manslaughter – crime offence carries the potential imprisonment term for up to 20 years and a fine up to $5 million for an individual or person conducting a business or undertaking (PCBU), and a fine of up to $10 million for a body corporate.
Category 1 offence
The Category 1 offence will be more onerous than in other jurisdictions. This is because it does not include any element of recklessness or gross negligence, which is a key element of the offence in other jurisdictions with the WHS Act.
If a PCBU fails to comply with their duty of care and this failure causes the death of, or serious harm to, an individual, then they will face a potential penalty if charged with a Category 1 offence of 5 years imprisonment and $680,000 (for an individual), or $3,500,000 penalty for a body corporate. Recklessness or gross negligence will not be relevant.
The passing of the Bill harmonises Western Australia’s work health and safety regime and brings it more in line with its Australian counterparts. Western Australia will also join Queensland, Victoria, the Northern Territory and the ACT in legislating the offence of industrial manslaughter.
Officers of organisations based in Western Australia, and those based in other jurisdictions but with operations in Western Australia, should review work health and safety policies and procedures to ensure compliance with the new legislation.