It has been a long time in the making, but after much delay, the
WA Government has taken a significant step towards potentially
adopting the model workplace health and safety laws currently in
place in all States and Territories other than WA and Victoria,
with the release of the draft Work Health and Safety Bill 2014.
The release of the draft or "Green" Bill was announced
on 23 October 2014 by Commerce Minister Michael Mischin. The
Minister confirmed that the Bill will be subject to a public
comment period, which will run from 23 October 2014 until 30
In tabling the Bill in Parliament, the Minister commented that
the Bill represented an attempt by the Government to create a
version of the model legislation "based on the best features
of the model Commonwealth bill, but adapted and suited to the
Western Australian working environment".
Although the announcement is the closest the Government has come
so far to signifying an adoption of the model WHS laws in WA, the
Minister also emphasised that the tabling of the Bill should not be
construed as "locking in a transition" from the current
legislation in WA (being the Occupational Safety and Health Act
1984) to the model WHS laws. Rather, he confirmed that the purpose
of releasing the Bill for public comment is to "assess the
merits of otherwise moving from the existing laws to this variant
of the model WHS laws". At the end of the public consultation
period, the Government has indicated that it will review the public
comments received and consider its options in terms of whether a
variant of the Bill will be implemented, the OSH Act will be
enhanced by adopting some provisions of the Bill, or the current
status quo will remain in place.
Although the core provisions of the Bill reflect those of the
national model WHS Act, aspects of the model laws have been
modified. As previously foreshadowed, parts of the model WHS Act
opposed by the WA Government, such as provisions relating to
unions' right of entry, the ability of health and safety
representatives to stop work and the reverse onus of proof for
claims of discrimination, have been left out of the Bill. However,
it should be noted that the Bill has retained the level of
penalties contained in the model WHS Act, which are considerably
higher than under the OSH Act, despite the Government earlier
indicating that the penalty levels would not be adopted on the
grounds they were overly punitive.
In addition to the changes already indicated, the Minister
confirmed that a number of other adjustments had been made to the
model WHS Act, including:
the exclusion of volunteers from the definition of
removing the option for a person to enter into an enforceable
undertaking with the regulator in lieu of prosecution for an
removal of the power for inspectors to issue infringement
removal of the requirement for businesses to keep a record of
all notifiable incidents for at least five years.
Despite the changes flagged by the Minister, there is little
doubt that if the Bill or significant parts of it are ultimately
adopted in the WA, businesses will be required to meet health and
safety obligations that go further than under the current regime,
such as the personal duty of company officers to exercise due
diligence to ensure that the company is complying with its
statutory obligations, and the duty to consult with other duty
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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