Australia: New work health and safety laws in Western Australia – A step closer

In an article we published in September 2017 we foreshadowed that employers in Western Australia (WA) need to prepare for the introduction of harmonised Work Health and Safety (WHS) legislation. The reform process is now gathering momentum.

Over the coming months, it will be critical for WA employers to understand what these changes will mean for their business and to ensure they are ready for the introduction of the new laws.

Below, we provide an up-to-date summary of various WHS reforms.

WA WHS REFORM: WHERE IS IT AT?

In mid-2017, the McGowan Government formed the Ministerial Advisory Panel (MAP), to advise on the content of the proposed WHS Bill, to be based on the national model WHS Act. The MAP was Chaired by Stephanie Mayman, the Chair of the Commission for Occupational Safety and Health, and included representatives from government, industry bodies and unions.

The MAP has now completed its review into the WHS Bill and presented its report, which included 44 recommendations, to the Hon. Bill Johnston, Minister for Mines and Petroleum, Commerce and Industrial Relations (Minister Johnston).

Minster Johnston released the recommendations of the MAP on 30 June 2018. A copy of the report can be viewed here. The MAP has proposed largely technical and administrative changes, and various refinements and improvements. It has not sought to substantially alter the national model WHS Act.

The next stage of the process will be a two-month public consultation period. Following the public consultation process, the WHS Bill will be finalised in order to be tabled in Parliament. As most of the WHS Bill is expected to simply be a replica of the existing national Model WHS Act, the drafting process could be relatively quick. Once this is complete, the WHS Bill will be introduced into Parliament, either later this year or sometime in 2019.

While the MAP has not suggested substantial changes to the national model WHS Act, some of the recommendations which are likely to generate debate include:

  1. Right of entry for union representatives.
    The MAP has recommended adopting the national model WHS Act, as it relates to union right of entry, with only minor modifications. In effect, unions would continue to have the right to enter any workplace, where employees who may be members of the union are working, without advance notice for the purpose of investigating alleged safety breaches.
  2. Increased powers for Inspectors.
    The MAP has recommended modifying the power of inspectors to require production of documents and answers to questions without the prerequisite of physical entry to a workplace. The MAP has also recommended clarifying that inspectors have the power to record interviews without consent, after having given notice that recording is taking place.
  3. Right for unions to initiate prosecutions for civil remedy provisions.
    The national model WHS Act only permits the Regulator (or an inspector authorised by the Regulator) to initiate proceedings for a breach of the WHS civil penalty provisions. The MAP has recommended extending this right to a union. The civil penalty provisions relate mainly to right of entry, inspections and related issues.

INCREASES TO PENALTIES

The WA Government has already introduced proposed legislation to significantly increase penalties for breaches of both the existing Occupational Health and Safety Act 1984 (WA) and the Mines Safety and Inspection Act 1994 (WA).

It is anticipated that these changes will take place ahead of the introduction of the WHS Bill, and it appears likely they will remain in place if and when the WHS Bill becomes law. At the time of writing, however, these reforms had not progressed through Parliament.

vThe proposed penalty increases are significant, in some cases about five or six times the current maximum. A summary of the key proposed penalty increases are as follows:

OFFENCE MAXIMUM PENALTIES
Organisations/ Body Corporation Individuals
First Subsequent First Subsequent
Level 4

Gross Negligence causing death or serious harm
$2.7m $3.5m $550k and 5 years' imprisonment $680k and 5 years' imprisonment
Level 3

Breach resulting in serious harm or death
$2m $2.5m $400k $500k
Level 2

Breach of duty exposing individual to risk of death or serious harm
$1.5m $1.8m $250k $350k
Level 1

Breach of duty
$450k $570k $100k $120k

INDUSTRIAL MANSLAUGHTER LAWS

While in Opposition, WA Labor had proposed to implement industrial manslaughter laws. Similar laws have been introduced in Queensland and are promised for Victoria. However, it appears unlikely that such laws will be introduced in WA in the foreseeable future, with Minister Johnston recently indicating that 'the government doesn't currently have any agenda to pursue legislative changes (about this issue)'.1

FOUR KEY ISSUES EMPLOYERS SHOULD CONSIDER

Some of the key changes arising from the introduction of the national model WHS Act that are likely to have an impact on WA businesses are:

  1. The increased responsibilities on boards and senior management to adopt the more onerous 'due diligence' standard in their approach to WHS.
  2. The new responsibility to positively engage and consult with other businesses (e.g. contractors, suppliers, clients) in relation to how WHS is being managed.
  3. The management of union right of entry, and other union powers of inspection, in the context of a safety incident.
  4. New and enhanced powers for workplace safety representatives.

WHAT STEPS SHOULD EMPLOYERS BE TAKING?

Section 27(1) of the model WHS laws outlines the positive duty, that is: 'an officer must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation'.

Many employers with a national presence may consider that they are familiar with the 'due diligence' obligations under the model WHS laws. However, in order for directors and senior managers to demonstrate the discharge of the due diligence obligation, a key component will be demonstrating a sound understanding of the model WHS laws as they apply in WA.

We have been working with a range of businesses (at board and senior management levels) by offering training programs to help them get ready for the WHS legislation. The training has typically covered:

  • overview of changes to health and safety law in WA;
  • new primary obligations on businesses;
  • personal liability for officers, managers and employees – and what is meant by 'due diligence';
  • obligations to others (e.g. contractors, labour hire, etc.);
  • new powers for Workplace Representatives; and
  • management of right of entry issues in a safety context.

If you would like to arrange a session for your business or organisation, get in touch with our team using the details listed to the right.

Footnote

1 https://www.watoday.com.au/national/western-australia/union-wants-jail-multi-million-dollar-fines-for-workplace-deaths-20180527-p4zhtz.html

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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions