I'm back!  WHS harmonisation returns to WA

What you need to know

• On 30 June 2018 the WA Government released a paper by its Ministerial Advisory Panel (MAP) with recommendations for a WHS Bill for WA for public comment (WHS Bill).
• The WHS Bill is in line with other harmonised States, with some WA specific changes and will apply to general industry and the resources sector.
• The WHS Bill will be broader in scope that current WA OSH laws and is proposed to include (amongst other things) general duties owed to all "workers", personal duties for officers, various union rights and higher penalties.
• Anyone with an interest in the MAP's recommendations and a WHS Bill is invited to make a submission on it by 31 August 2018.
• Following this, a report will be prepared for the Minister for Mines and Petroleum; Commerce and Industrial Relations. A draft Bill will then be prepared for approval by Cabinet.
• The Government intends to introduce the law into Parliament as soon as possible and no later than mid-2019.

What you need to do

• Consider the consultation paper and model WHS Bill, and if you believe that it may have adverse effects on your business, make a submission.
• Keep up to date on the progress of the WHS Bill.
• Think now about what your business needs to do to prepare. In particular, how can officers (including directors and senior managers) in your business prepare for the introduction of the WHS Bill into law.

Recap

Progressively, starting from 2011, the Commonwealth, Queensland, New South Wales, Australian Capital Territory, Northern Territory, Tasmania and South Australia adopted the harmonised WHS regime. Since then, everyone has wondered "when will the model WHS laws make their way West?"

In 2014, the WA Government tabled two green bills for public comment; one for general industry and one for the resources sector. But in July 2017 the WA Government announced that plans had changed and it had approved the development of a single WHS bill based on the national model laws.

Nearly one year later, recommendations for a WHS Bill have been released for public consultation.

Proposed approach

Consolidation

A WHS Bill will consolidate and replace:

• Occupational Health and Safety Act 1984
• Mines Safety and Inspection Act 1994
• Petroleum (Submerged Lands) Act 1982
• Petroleum and Geothermal Energy Resources Act 1967; and
• Petroleum Pipelines Act 1969.

Whether matters regulated under the Dangerous Goods Safety Act 2004 will be incorporated is yet to be finally determined.

Key changes from current WA laws to WHS Bill

 

The WHS Bill will be broader in scope than current WA WHS laws. In our view, the most significant changes are these:

PCBU's duties

The WHS Bill will adopt the duties of care in the Model WHS Act with minimal changes.

The primary duty of care will be owed by a Person Conducting a Business or Undertaking (PCBU) to "workers" (and other persons). "Worker" is defined broadly to include, for example, employees, contractors and labour hire workers. Regulations may ensure that "gig economy" workers are also included. 

"Upstream" PBCUs, such as designers, manufacturers, importers and suppliers, will also owe duties.

Officers' duty

A positive duty will be placed on "officers" of PCBUs to exercise due diligence to ensure that the PCBU complies with its duties under the WHS laws.

"Due diligence" includes taking reasonable steps to:

• keep up to date on WHS matters
• understand the hazards and risks associated with the operations
• ensure appropriate processes are in place regarding notification of and response to incidents, hazards and risks; and
• ensure appropriate processes are in place for the PBCU to comply with its statutory obligations.

The definition of the term "officer" in the Corporations Act 2001 (Cth) applies and includes a person who:

• makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
• has the capacity to affect significantly the corporation's financial standing.

Whether people who hold certain statutory positions in the resources industry are "officers " will be clarified in regulations.

Officers will need to take active steps to comply with the laws to avoid liability. An officer under the harmonised laws owes a positive duty each day to ensure that their businesses comply with WHS laws. An officer may be prosecuted for breaching due diligence obligations, irrespective of whether the PCBU is found guilty of an offence.

In our experience with how these laws operate in existing harmonised jurisdictions, officers can expect renewed focus by the Regulator on how they are discharging their leadership roles in their organisations.

Shared duties

If more than one person has a duty in relation to the same matter (eg principal employer and employer) each person with the duty will be required to consult, co-operate and co-ordinate activities with those other duty holders as a separate, stand-alone duty. Parties have been prosecuted in other harmonised jurisdictions for breaches of this requirement.

New duty for WHS advisers

A significant new duty of care on people and organisations who provide WHS advice, services or products to other duty holders is proposed. It is unclear if this duty would be focussed on external safety service providers or would also apply to, for example, company safety directors and advisers, WHS consultants, training providers, occupational hygienists, lawyers and safety service providers. This duty is not included in other harmonised laws and its inclusion in the WHS Bill may be an area of focus for submissions.

Right of entry

Right of entry in respect of WHS issues will be dealt with under the WHS Bill. Right of entry permits will continue to be required under the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1979 (WA).

The right of entry provisions that operate in other harmonised jurisdictions will be adopted. As is currently the case, this will allow an entry permit holder to enter a workplace without prior notice to investigate a suspected contravention of the WHS laws.

Entry permit holders will also have the choice to notify a Regulator of their intention to enter a workplace to allow the Regulator an opportunity to attend at the time of entry.

Union-led reviews of Regulator decisions and civil proceedings

Unions and other specified "eligible persons" will be able to request a review of decisions by a Regulator (eg a Regulator's decision to cancel a notice issued by the Regulator).

Unions (as well as Regulators) will also be able to bring proceedings against a PCBU for a breach of "civil penalty provisions", for example, alleging that a PCBU has refused or unduly delayed entry into the workplace by a WHS entry permit holder. This is different to the position in other harmonised jurisdictions.

Penalties

Penalties will be increased to align with the Model WHS Act.

There will be three categories of offences.

• Category 1 offences are the most serious and arise where a duty holder has engaged in conduct that exposes a person, without reasonable excuse, to a risk of death, serious injury or illness and is reckless as to the risk of death, serious injury or illness. 
• Category 2 offences arise where there is a failure to comply with a health and safety duty that exposes a person to risk of death, serious injury or illness. 
• Category 3 offences arise where there is a failure to comply with a health and safety duty.

The penalties for each category are:

Recent decisions in harmonised jurisdictions indicate that courts are imposing higher penalties for breaches of harmonised WHS laws.

For example, last year the District Court of NSW handed down a fine of $1 million – the largest penalty to date handed down under the WHS Act (NSW) and double the highest penalty awarded under the previous New South Wales legislation.

The WHS Bill also includes a range of other options for enforcement including enforceable undertakings (but not for fatalities), adverse publicity orders, orders for restoration, injunctions and training orders. There will not be an infringement notice scheme.

Limitation period

Proceedings must be brought within two years of the offence coming to the notice of the Regulator. Proceedings may also be brought within one year of a coronial inquiry or inquest if it appears a WHS offence has been committed.

This varies from current limitation periods in WA, which are three years in a general industry and mining context, one year in a major hazard facility context and unlimited in a petroleum context.

Regulator

The Regulator will be the WorkSafe Commissioner, with industry specific experts such as Chief Inspector of Mines (replacing the State Mining Engineer and the State Coal Mining Engineer) and possibly a Construction Sector Engineer. Industry-specific directorates are also proposed.

Where to from here?

Workplace participants, or any person interested in WHS in WA, are encouraged to provide comments on the MAP's recommendations. The public comment period closes on 31 August 2018.

Public comment on the proposed regulations for mines, petroleum and general workplaces will be sought later.