Western Australia's long awaited reform to its occupational health and safety (OH&S) laws is now finalised, with the new laws which commenced on 31 March 2022.
The reform introduces a new wide-ranging legislative scheme, spanning across workplaces and the mining industry. The new legislative scheme is based on the national model Work Health and Safety bill. The purpose of the reform is to align Western Australia's laws with the rest of the nation, in order to allow for and improve consistency.
The Work Health and Safety Act 2020 (WA) (Act) came into effect on 31 March 2022 along with the new Regulations which cover general work health and safety, mining, and petroleum. The Act replaces the Occupational Safety and Health Act 1984 (WA) (OSH Act) and health and safety elements of the Mines Safety and Inspection Act 1994 (WA), Petroleum and Geothermal Energy Resources Act 1967 (WA), Petroleum (Submerged Lands) Act 1982 (WA) and Petroleum Pipelines Act 1969 (WA).
The primary concepts of a 'person conducting a business or undertaking' (PCBU) and 'workers' will generally replace the 'employer/employee' approach to OH&S obligations, which no longer fit the increasingly complicated contractual arrangements now found in the work environment.
PCBUs will owe a primary duty to, as far as reasonably practicable, ensure the health and safety of workers (which includes contractors, subcontractors and labour hire employees), and others who may be affected by the carrying out of the work.
Officers of PCBUs will be subject to a non-delegable standalone duty to exercise due diligence to ensure that their safety obligations are met, along with consultation with workers, and stakeholders, on issues of safety. This seeks to avoid blame shifting and attempts to avoid responsibility, by creating an overlapping and cascading system of responsibility in which everyone in the chain is responsible for safety. Notably, those obligations will now also expressly extend to ensuring the psychological health and safety of workers and stakeholders.
The Act tweaks the previous regulatory powers and provides a new suite of enforcement measures, including enforceable undertakings, adverse publicity orders, restoration orders, in addition to fines and the option of imprisonment in serious cases.
There will also be express power to record interviews between the regulator's investigators and employees and to exclude solicitors acting for employers from attending employee interviews with investigators. This gives statutory force to practices which the regulators have adopted for some time.
The Act preserves the right to rely on legal professional privilege in regulatory investigations and a limited right of individuals to claim the privilege against self-incrimination with respect to the requirement to answer questions and produce documents. The regulator must advise people of their rights to claim privilege before requiring them to answer a question or produce a document.
The limitation period for most prosecutions (not including industrial manslaughter) will be reduced to 2 years after the incident comes to the notice of the regulator or for fatalities, the later of 2 years or 1 year after a coronial report/investigation/inquiry. The Act contains new provisions permitting a person who believes an industrial manslaughter, Category 1 or Category 2 offence has been committed, to request the regulator to prosecute if there is no prosecution within 6 months and the regulator will have 3 months to respond (provided the request is made within 12 months). These time periods are likely to give greater certainty to PCBUs and officers as to their exposure to prosecution.
Prohibition on insurance and indemnities
As is the case in New South Wales, the Act will also deem as unlawful in Western Australia insurance policies and indemnities against fines.
Further, significant penalties will apply to those:
- insuring or indemnifying against fines under the Act;
- insured or indemnified against fines under the Act; and
- paying or accepting an indemnity in respect of an offence under the Act.
The maximum penalties for contravention of these provisions are $51,000 for individuals and $255,000 for bodies corporate. However, insurance for defence costs and prosecution costs is not prohibited and will continue to be an important benefit to insured entities.
The prohibitions apply to offences under the new Act, not offences and prosecutions brought under the previous legislation.
Industrial manslaughter and category 1 offences
Arguably the most significant change to the previous legislative regime is the implementation of an industrial manslaughter offence for PCBUs and their 'officers' (using the definition in the Corporations Act 2001 (Cth)).
An officer is:
- a director or secretary of a corporation;
- a person who makes, or participates in making, decisions that affect the whole, or a substantial part of the business of the corporation;
- a person who has the standing to affect significantly the corporation's financial standing; or
- a person in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in their performance of functions)
The new offence will impose penalties for officers who are individuals, of 20 years imprisonment and a $5 million fine, or a $10 million fine for bodies corporate. Substantively, the offence is similar to the current Level 4 gross negligence offence.
An offence will occur where:
- the PCBU breaches a health and safety duty ('health and safety duty' is outlined at length in the Act but includes, for example, that a PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged by the PCBU while the workers are carrying out work in the business or undertaking);
- that conduct causes the death of an individual (for an officer to have committed an offence the breach must be attributable to the officer's neglect, consent, or connivance); and
- it is known the conduct is likely to cause death and acts in disregard of that likelihood (for an officer, they must have engaged in neglect, consent or connivance knowing that the PCBU's conduct was likely to cause death and in disregard of that likelihood).
Under the new provisions, there is no limitation period for industrial manslaughter offences, which are to be prosecuted in the District Court by the DPP, rather than in the Magistrates Court by the regulator. This will certainly create a level of doubt for PCBUs regarding any possible ongoing liability.
The new provisions also allow for an alternative offence (a 'category 1 offence') where someone is seriously harmed or dies. This lesser offence is applicable in instances where there is no knowledge that the conduct, which is in breach of a health and safety duty, is likely to cause to cause injury or death (similar to the current level 3 offence). The penalties are correspondingly smaller, with penalties for officer individuals, of 5 years and a $680,000 fine; non-officer individuals, 5 years or $340,000; and, for bodies corporate, a $3.5 million fine.
'Serious harm' is taken to mean an illness or an injury that endangers, or is likely to endanger, the individual's life; or results in, or is likely to result in, permanent injury or harm to the individual's health.
Category 1 offences will be subject to a limitation period that will run for different periods from different events.
The Act contains some express exclusions from the meaning of a PCBU:
- individuals are excluded from the definition to the extent that they are engaged solely as a worker in, or an officer of, that business or undertaking;
- local government members; and
- volunteer associations working together for community purposes, where none of the volunteers employs any person to carry out work for that association.
The Minister has informally indicated that it is not intended that strata companies fall within the definition.
Work Health and Safety (General) Regulations 2022
The Work Health and Safety (General) Regulations 2022 (WA) (WHS (General) Regulations) are largely based on and consistent with the national model WHS regulations, with some amendments. The purpose of the amendments to the model WHS regulations is to reflect and tailor the regulations to Western Australia's operating environment.
The Western Australian government decided to maintain the existing Dangerous Goods Act 2004 (WA) and the Dangerous Goods Safety (Major Hazard Facilities) Regulations 2007 (WA). In relation to the Dangerous Goods Act 2004 (WA), a commitment was made that within 2 years of proclamation there will be a review of this legislation, with the view to assess whether it should be included into the new WHS laws.
Many of the amendments made to the model WHS regulations are to adopt regulations that are currently applicable in Western Australia.
The WA government made the decision to include provisions in relation to protection from tobacco smoke in the new WHS (General) Regulations. These provisions are carried over from the previous OH&S Regulations. In particular, a further requirement has been included in relation to protection from second-hand smoke exposure.
The new requirement provides that a person conducting a business or undertaking or a person with management or control of an enclosed workplace, must ensure so far as reasonably practicable that persons in the workplace are not exposed to second-hand smoke or another other tobacco or nicotine by-product.
The penalty associated with this provision is a fine of $7,000 for an individual and $35,000 for a body corporate.
The provisions in the previous OH&S Act relating to driving commercial vehicles and fatigue management has also been inserted into the WHS (General) Regulations.
For the regulations requiring transition, the general transition period as adopted in WA is 1 year unless stated otherwise in respect to specific provisions,
Work Health and Safety (Mines) Regulations 2022
The new Work Health and Safety (Mines) Regulations 2022 (WA) (WHS (Mines) Regulations) will apply to all current and future mines, including mineral exploration activities in Western Australia. The term "mining operation" will remain generally unchanged from its current definition in the Mines Safety and Inspection Act 1994 (WA).
The provisions contained within the WHS (General) Regulations are replicated in the WHS (Mines) Regulations and cross references are provided where the subject matter is covered in both sets of regulations.
Chapter 10 of the WHS (Mines) Regulations contains mining specific provisions, with most duties in this Chapter being conferred to the 'mine operator' (a defined role).
Generally, the regulations require mine operators to manage hazards and associated risks through risk management principles, removing many of the prescriptive requirements of the previous Mines Safety and Inspection Regulations 1995 (WA).
The most notable change included in the WHS (Mines) Regulations is a new requirement placed on mine operators to prepare, implement and maintain a Mine Safety Management System (MSMS) for the mine and/or exploration operations and the Regulations set out the requirements for the MSMS.
The penalty for failing to establish and implement a MSMS results in a fine of $7,000 for an individual and $35,000 for a body corporate.
A mine operator is required to ensure the MSMS is reviewed at least once every 3 years and as necessary to ensure it remains effective. The failure to do so also carries with it the same penalty of $7,000 for an individual and $35,000 for a body corporate.
As this is a new requirement, there will be a transition period of 1 year for development and 1 year for implementation of a MSMS.
Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022
The Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022 (WA) (WHS (PAGEO) Regulations) will replace the previous safety regulations under the various Petroleum Acts. The PAGEO Regulations will apply to the vast majority of petroleum and geothermal energy operations, onshore and offshore..
The Safety Case regime will continue and is largely performance based, with limited prescriptive requirements. As such, the WHS (General) Regulations will not apply to operations covered under the WHS (PAGEO) Regulations. Nevertheless, there are important aspects of the WHS (General) Regulations that will be duplicated in the WHS (PAGEO) Regulations, including Chapter 2 and the duty to identify hazards as contained in Part 3.1.
Onshore drilling is now covered by the WHS (PAGEO) Regulations. Previously, onshore drilling was regulated by the license holder. Instead, it is to be regulated through a 'registered operator' and a safety case, with the registered operator being required to pay the safety levy.
The concept of a 'registered operator' existed under the previous regulations to offshore operations, however it was not applicable to onshore petroleum and geothermal energy operations. The WHS (PAGEO) Regulations require that every facility must have a registered operator, someone who has day-to-day management and control of the operation. There is a 6-month transition period after Proclamation to register the operator.
The increasing attention to OH&S by the Western Australian goverment is welcome, but PCBUs and officers now need to pay careful attention to demonstrably discharging their new duties. Also, given the increased penalties, having an incident first response arrangement in place is even more important than before, so as to avoid making a bad situation even worse.
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.