WA WHS Green Bill released for 3-month consultation period - Health & Safety

THE GREEN BILL

The Minister for Commerce, the Hon Michael Mischin MLC, has introduced the WHS Green Bill into State Parliament.

The Green Bill represents the Western Australian version of the model Workplace Health and Safety (WHS) Bill, and contains a number of proposed changes to the Occupational Safety and Health Act 1984 (WA) which currently applies to Western Australian workplaces.

A copy of the Green Bill is available here.

WHAT DOES THE GREEN BILL COVER?

In summary, the Green Bill adopts the core provisions of the model WHS Bill with some minor amendments.

Importantly, amongst other elements, the Green Bill (as it is currently drafted) adopts the model WHS Bill's:

definitions and obligations relating to a Person Conducting a Business or Undertaking and Workers;
the increased penalties ($300,000 and 2 years imprisonment for individuals, $600,000 or 5 years imprisonment for Officers and $3 million for a body corporate); and
the proactive obligations for directors, namely the duty of 'due diligence'.

A RECAP OF THE KEY CHANGES

We set out a summary of the key provisions below:

Primary duty of organisations

Under the Green Bill, the primary duty holder is no longer an Employer or a Principal, but the broader concept of a Person Conducting a Business or Undertaking (PCBU).

The PCBU's primary duty is to ensure, so far as is reasonably practicable, the health and safety of workers while they are at work.

Similarly to the current obligations under the Occupational Safety and Health Act, this primary obligation specifically includes duties to provide a work environment without risk; safe work systems; and information, training, instruction and supervision necessary to protect all persons from risks to health and safety arising from work carried out.

However, the application of this obligation has been expanded to include all workers. The definition of 'worker', in accordance with the model WHS bill, is very broad and relevantly includes employees; contractors or subcontractors; employees of subcontractors or contractors and apprentices or trainees and students gaining work experience. Notably, volunteers have been removed from this definition.

Personal obligations of Officers

The Green Bill, follows the model WHS Bill and introduces a proactive obligation to Directors and Officers.

The Green Bill requires that Officers exercise 'due diligence' and take active steps to ensure that their PCBU complies with its obligations under the Green Bill.

As previously reported, this requirement is far more onerous than the existing obligation on officers in WA (which can be satisfied by proving that a company's offence did not occur with the consent or connivance of, and was not attributable to the neglect of, an officer).

The Green Bill requires that Officers, at minimum, take reasonable steps to:

acquire and keep up-to-date knowledge of work health and safety matters;
have an understanding of the nature of the operations of their organisation and generally of the hazards and risks associated with those operations;
ensure that their organisation has available for use, and uses appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the business;
ensure that their organisation has appropriate resources for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
ensure that their organisation has in place and implements processes for complying with any duty or obligation it has under the Green Bill; and
verify the provision and use of the resources and processes referred to in paragraphs 3 to 5 above.

Penalties

Despite previous assertions that the WA Government would not accept the model WHS bill penalty scheme, the Green Bill has adopted the model WHS bill penalty levels.

If enacted as law, the penalties under the Green Bill will more than quadruple current OSH penalties for a body corporate from a current maximum of $625,000 to $3 million.

Penalty level	PCBU	Officer
Level 3 penalty	$500,000	$50,000
Level 2 penalty	$1.5M	$300,000
Level 1 penalty	$3M	$600,000 and/or imprisonment for 5 years

Interestingly, the Green Bill does not contain provisions relating to enforceable undertakings.

Enforceable undertakings are essentially a legally binding agreement between the regulator and a person charged with an offence which enables them to undertake and invest in activities intended to improve health and safety (in the workplace and throughout the broader community) in lieu of a prosecution and a fine.

The application of enforceable undertakings in the model WHS law jurisdictions has proven successful. Therefore, we anticipate that its exclusion will provoke submissions relating to the appropriateness of allowing for enforceable undertakings in WA.

WHAT HAPPENS NOW?

The Green Bill has been released for public consultation for three months until 30 January 2015.

Further amendments are likely to be made to the Green Bill following the consultation period.

The final form of the Green Bill will then be tabled in Parliament, before potentially passing as legislation on a date which we estimate would not be before mid-2015.

Should the Green Bill be accepted and passed by Parliament there is likely to be a further delay known as an "implementation period". Implementation periods usually last 12 months, meaning that commencement of the finalised Act is unlikely to occur before mid-2016.

WHAT DOES THIS MEAN FOR YOU?

Changes to WHS law in Western Australia are potentially coming. However, no-one can firmly say exactly what the new law will state.

It is possible that the changes will take the form of the Green Bill. However, until the consultation period has been completed, this cannot be confirmed.

It is anticipated that a draft Mines Health and Safety Bill will be introduced for consultation in similar terms, adapted to a mining context. The timing of that process is currently unknown.

WHAT CAN I DO?

Before the end of the consultation period Corrs will provide a free information session for clients on the proposed changes, and what they could mean for you and your business.

Please email Val Sidhom at val.sidhom@corrs.com.au with the subject line: WA WHS Green Bill Seminar to register your interest in attending: Corrs WHS Update: The Grass is always Greener - The WHS Green Bill – The Proposed Changes and What They Could Mean to You.

Submissions to WorkSafe WA can be made by email or mail, using the template for comments available here.

Mail: Locked Bag 14, CLOISTERS SQUARE WA 6850 (Please mark your envelope 'TO THE ATTENTION OF THE EXECUTIVE DIRECTOR WORKSAFE – SUBMISSION ON WHS BILL 2014').

Email: WHSGreenBill@commerce.wa.gov.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


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