The WA resources sector has been given a preview of potential reforms to safety laws that are planned for commencement on 1 January 2017, with the release by the Department of Mines and Petroleum (DMP) of a 'mock up' of a harmonised Work Health and Safety (Resources) Bill 2015 (WHS(R) Bill) for WA.
The release of the WHS(R) Bill is further confirmation of the DMP's intentions of progressing significant reform to consolidate the safety provisions of existing mining, petroleum and major hazard facilities (MHF) legislation into one statute that supplements the national model WHS provisions with specific clauses to regulate the resources industry and removes any provisions deemed unsuitable.
The release of the WHS(R) Bill follows the tabling in Parliament in October 2014 of the Work Health and Safety Bill 2014 (WHS Green Bill) for general industry, also based closely on the model WHS laws. As was the case following the release of the WHS Green Bill, a public consultation period has now commenced following publication of the WHS(R) Bill and the accompanying regulatory impact statement (RIS) by consultants Marsden Jacob, inviting stakeholder feedback by Friday 14 August 2015.
The Marsden Jacob RIS consultation paper summarises the 21 key changes from the current legislation governing resources safety in WA that are considered most significant by the DMP. They include the main provisions that have come to characterise the harmonised model WHS laws, such as:
- the shift of primary duty holder from employer (in respect of its employees) to the person conducting a business or undertaking (PCBU) (in respect of all 'workers', a much broader category);
- a positive duty for officers to exercise due diligence to ensure that the PCBU complies with any duty or obligation under the WHS(R) Bill;
- expanded 'upstream' duties for designers, manufacturers, importers/suppliers and installers in relation to plant, substances and structures;
- express duties for the PCBU to consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter (horizontal consultation), and to consult with workers who carry out work for the PCBU who are likely to be affected by a WHS matter (vertical consultation); and
- significantly increased penalties.
These concepts are undoubtedly the main aspects of the reform and we have discussed their significance in the WA context in this previous article. Other key changes will be included in regulations that are yet to be released, but will ultimately support the WHS(R) Bill, including specific requirements in relation to the content of safety management systems (for mining operations) and safety cases (for petroleum operations and MHFs). These features are not covered by the Marsden Jacob RIS or the current consultation paper, presumably because they will be separately addressed down the track.
It's understandable that the consultation paper does not address all the substantive changes to existing legislation, or any areas of departure from the WHS Green Bill. There are, however, a number of material changes in both categories.
The WHS(R) Bill permits the responsible Minister to independently determine whether a particular place is, or is not, a place to which the WHS(R) Bill applies. There is room for conjecture as to whether this power might apply to a place not otherwise subject to the legislation, but it's more likely that the power would be limited to addressing potential overlap with the WHS Green Bill, an issue which historically has proven its potential as somewhat of a legal minefield. By contrast, the equivalent provision in the WHS Green Bill provides for a more collaborative approach, with the responsible Ministers for the WHS(R) Bill and the WHS Green Bill empowered to jointly declare that for a specified period, a particular provision of the WHS Green Bill applies to a specified workplace, operation, act, matter or thing. How these jurisdictional arrangements might co-exist remains unclear.
Amendments are also proposed to fundamental provisions that impose primary duties of care on PCBUs and the defininition of 'reasonably practicable'.
The general duties under the WHS Green Bill are subject to the qualification that duty holders' obligations to comply are limited to the extent of their capacity to influence and control the matter. This 'control test' provision was originated in the Work Health and Safety Act 2012 (SA) and in tabling the WHS Green Bill last year, the WA Minister for Commerce and Attorney General, the Hon. Michael Mischin, emphasised the importance of its inclusion for the purposes of determining what is reasonably practicable, stating that:
"Control is an important aspect of determining what is reasonably practicable. In view of this, reflecting the approach in South Australia when adopting the model WHS bill, [it] provides that if a person does not have direct control of a particular risk to health and safety, the extent to which they must eliminate or minimise the risk depends on the extent to which that person has the capacity to influence and control the risk."
The absence of a similar provision from the WHS(R) Bill may partly reflect the fact that a 'resources facility operator' is already defined as the party that has overall control of operations at, for example, a mine or a petroleum facility. However, the specific duties of a resources facility operator are confined to various machinery and administrative obligations, and the term is not used in the general duty provisions, where the duty holder remains the PCBU. The resulting tests for liability (for example, in respect of contractor personnel and other workers who are not employees) will not be the same in both statutes.
The WHS(R) Bill's inclusion of an additional duty for PCBUs to ensure that accommodation is maintained so that workers are not exposed to health or safety risks, appears to reflect recent concerns expressed by the WA Parliamentary Inquiry into FIFO Mental Health, but exactly how the provision will work in practice remains to be seen, given that 'accommodation' is defined as premises owned by or under the management or control of the resources facility operator (which may not be the relevant PCBU). Practical difficulties aside, the proper maintenance of premises will only go so far in addressing the psycho-social hazards of FIFO resources work that were identified in the recent Parliamentary enquiry.
The definition of 'reasonably practicable', consistent throughout the harmonised WHS Acts across Australia, has also been altered in the WHS(R) Bill to remove two uses of the word 'risk'. Helpfully, the terms 'risk' and 'hazard', both central concepts under any OHS legislation, are defined, although neither appear in the dictionaries of the WHS Green Bill or the Model WHS laws. Improved clarity in legislation is a worthy objective. In this case it will have to be balanced against discrepancy between arguably the most important provision in the two main WHS statutes in WA, should they remain in their current form.
Resources facility operators will have a new obligation to prepare a report on any notifiable incident if requested to do so by the DMP, raising potential challenges in asserting legal professional privilege over internal incident investigations. Any such report produced to the DMP would be prepared for the purpose of complying with the new statutory obligation, rather than the dominant purpose of obtaining legal advice, or for use in existing or contemplated litigation, which is the test for the existence of legal professional privilege.
The DMP will also be empowered under the WHS(R) Bill to require a resources facility operator to conduct an independent study, audit, test, validation or investigation in relation to any WHS related matter at the facility, to be carried out by an engineer or other qualified professional person (at the resources facility operator's own expense), and to be submitted to the DMP within a specified time.
Further, the WHS(R) Bill permits the DMP to publish any information concerning investigations of possible contraventions of the WHS(R) Bill or issuance of notices, without incurring any liability in defamation.
In what may emerge as an important dilution of current inspectors' powers, the power to require the production of documents and answers to questions will now only be exercisable where the inspector has reasonable grounds to believe that the person compelled is capable of giving information, documents or evidence in relation to a possible contravention of the WHS(R) Bill.
Inspectors' current duty to take all reasonable steps in the exercise of their powers to cause as little inconvenience, detriment and damage as is practicable, does not appear in the WHS(R) Bill.
Provisional Improvement Notices
Proposed changes to the provisions governing provisional improvement notices (PINs) will have the effect that the issuing health and safety representative (HSR) must state on the PIN which provision of the WHS(R) Bill is thought to have been breached, but cannot give directions as to the required corrective measures.
Unlike the WHS Bill, the WHS(R) Bill proposes that the protection against discriminatory conduct for a prohibited reason should not extend to prospective workers.
The WHS(R) Bill expressly states that it is indicative only (i.e. a 'mock-up') and does not necessarily represent the Government's settled position. It is therefore not clear if any of its departures from the WHS Green Bill are intended to be reflected in the next version of the WHS Green Bill, or if the differences between the two draft Bills (outside of changes specific to the resources industry) indicate a conscious uncoupling of the respective reforms. Given that one of the main objectives for changing the legislation is the promise of increased consistency, across both WA industry and jurisdictions interstate, it would be regrettable if the latter was indeed the case.