The road to harmonisation

What you need to know

• A discussion paper on the development of the model workplace health and safety (WHS) regulations for general industry in Western Australia (WA) has recommended 138 changes to the national model WHS regulations before they are adopted in WA. Interested parties have until 31 August 2016 to make submissions on the recommendations or matters in the model WHS regulations generally.
• The Department of Mines and Petroleum (DMP) has released a Decision Regulatory Impact Statement (Decision RIS) on the proposed Work Health and Safety (Resources) Bill (WHS (Resources) Bill). The Decision RIS recommends that the WHS (Resources) Bill be developed and determined by Parliament.
• The DMP had planned for the WHS (Resources) Bill to be passed through Parliament in early 2016 and implemented on 1 January 2017. It is now anticipated that the WHS (Resources) Bill will be passed through Parliament in August 2016 and implemented on 1 July 2017.
• Decisions in other States and Territories are providing insight into how the laws will operate in practice, particularly in relation to the duty of officers to exercise due diligence and the requirement for duty holders to consult with each other.

What you need to do

• Consider the discussion paper on the WHS regulations and, if you believe that the recommendations may have adverse effects on your business, make a submission.
• Keep up to date on the progress of the WHS Bill, the WHS Resources Bill and their associated regulations as well as decisions on the application of the model WHS laws in other States and Territories.

Where does WA currently sit on the road to WHS harmonisation?

We examine the adoption and implementation of the WHS and WHS (Resources) Bills and provide an update on WA's journey so far, where it is currently parked and the landscape ahead.

General industry

The journey so far

In October 2014 the WA Government released a WA version of the general industry model WHS Act (WHS Bill) for public comment.

The key aspects of the WHS Bill were detailed in our Safety Matters Alert of 28 October 2014 – "Finally… Western Australia has tabled a tailored WHS Bill".

While the WHS Bill contained the overarching principles that would apply in the WA version of the model WHS laws, details of matters applicable to particular industries and work processes were left for the regulations.

Where WA is currently parked

WorkSafe WA's discussion paper

On 1 June 2016, WorkSafe WA published a discussion paper outlining its recommendations to adapt the model WHS regulations for WA.

WA's version of the regulations would predominantly mirror the provisions of the model WHS regulations, with amendments to cater for WA's working environment. The new regulations would replace the existing Occupational Safety and Health Regulations 1996 (OSH Regulations).

WorkSafe WA has made 138 recommended amendments to the model WHS regulations, commenting that, if left unamended, the model WHS regulations would "introduce significant new responsibilities for workplace participants and WorkSafe".

According to WorkSafe WA, the focus of its recommendations is to minimise prescription and keep the burden of compliance at an acceptable level by minimising the impact of the WHS laws on participants.

The recommendations generally provide that:

• new requirements not evidenced to improve safety and health outcomes in WA be amended to more closely align with the OSH Regulations;
• some (but not all) requirements of the OSH Regulations not included in the model WHS regulations be included in the WA WHS regulations (for example, the prohibition of tobacco smoke in workplaces and provisions for commercial vehicle drivers); and
• elements in the model WHS regulations that will be dealt with by other departments such as the DMP be excluded from the WA WHS regulations.

Appendix A of the discussion paper summarises all 138 of WorkSafe WA's recommendations.

Submissions

WorkSafe WA has invited submissions on its recommendations and the model WHS regulations generally. The public comment period ends on 31 August 2016.

Persons interested in making submissions might consider the following questions:

• What is the likely cost to implement a specific proposal?
• What is the benefit to workplace participants?
• Is a particular recommendation to align a model WHS regulation with the OHS Regulations effective?
• Are there unintended consequences?

Next steps

WorkSafe WA will analyse the submissions and provide a report to the Minister for Commerce for consideration.

There is no fixed timeframe for adoption of the WHS laws in WA. Timing will depend, in part, on the substance of the submissions received during the public comment period for the WHS regulations. Resources sector

The government plans to introduce the WHS (Resources) Bill to Parliament in August 2016, with the legislation coming into operation on 1 July 2017.

The journey so far

In July 2015, the WA Government released a draft of the WHS (Resources) Bill and held a stakeholder forum in Perth.

The key aspects of the WHS (Resources) Bill were detailed in our Safety Matters Alert of 3 August 2015 – "Consultation underway for consolidated resources safety legislation in WA".

A Consultation Regulation Impact Statement (RIS) was published as the first stage of the RIS process. The purpose of the Consultation RIS was to seek input from stakeholders on the objective, proposed options and likely impacts of the WHS (Resources) Bill.

Consultation was conducted over six weeks, ending on 14 August 2015. Twenty four submissions were received.

Where WA is currently parked

Decision RIS

In October 2015, a Decision RIS was published as the second stage of the RIS process. The Decision RIS considers whether the proposed legislative and regulatory changes will:

• meet the reform objective;
• have a net benefit to the economy; and
• have an impact on the environment, social justice, health, equity and other relevant areas.

The Decision RIS concludes that the proposed WHS (Resources) Bill is likely to deliver a neutral or beneficial outcome for industry.

Recommendations relating to key areas of change

The Decision RIS makes several recommendations not generally requiring change to the WHS (Resources) Bill.

Key recommendations include that:

• the WHS (Resources) Bill be progressed in parallel to, but independently of, the general industry WHS Bill;
• the DMP and Department of Commerce ensure that alignment between the resources industry and general industry is maintained, irrespective of whether the WHS Bill is delayed;
• the DMP align the WHS requirements for dangerous goods sites with the WHS requirements for resources sites; and
• the DMP review the need for separate WHS regulations for different industry sectors if the need arises.

Next steps

The DMP had planned for the WHS (Resources) Bill to be passed through Parliament in early 2016 and implemented on 1 January 2017.

It is now anticipated that the WHS (Resources) Bill will be passed through Parliament in August 2016 and implemented on 1 July 2017.

The consultation period for WA's WHS (Resources) Regulations is expected to run through to early August 2016.

The landscape ahead

While WA is still working on its adoption of the model WHS laws, decisions in other States and Territories on their versions of the model WHS laws provide useful insights into how the laws will operate in practice, particularly in relation to the duty of officers to exercise due diligence and the requirement for duty holders to consult.

Officer's duty to exercise due diligence

Under the model WHS and WHS (Resources) laws, "officers" of corporations have a positive duty to exercise due diligence to ensure that a Person Conducting a Business or Undertaking (PCBU) complies with its duties and obligations under the WHS or WHS (Resources) legislation.

A director or officer may be prosecuted for safety breaches irrespective of whether the PCBU is found guilty of an offence.

Who is an officer?

The decision of Brett v Munie Al-Hasani & Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1 (Al Hasani case) is the primary case considering the meaning of "officer" under the model WHS laws.

For a detailed overview of the Al Hasani case, see our Safety Matters Alert of 7 September 2015 – "Who is an "officer" under the WHS legislation?".

Considering the whole of the duties

In the Al Hasani case:

1. • The ACT Industrial Court considered whether a project manager was an "officer".

   • The Court considered the project manager's involvement and participation in management meetings and decision making processes and his duties of supervising and managing the relevant project.

   • The Court was not satisfied that the prosecutor had proved that Mr Al-Hasani was an "officer" because there was insufficient evidence about where he sat in the company and his level of influence (other than in relation to those who sat below him).

   • Importantly, the Court said that the inquiry into whether someone is an officer should be considered through the prism of the organisation as a whole, rather than a particular function in relation to which the individual was engaged.

   • What is a failure to exercise due diligence?

There have been a number of prosecutions of "officers" under the due diligence provisions of the model WHS laws. The cases include WorkCover Authority of New South Wales v Customised Gas Australia Group Pty Ltd and Flynn [2014] NSWDC 361; WorkCover Authority of NSW (Inspector Moore) v E&T Bricklaying Pty Ltd [2015] NSWDC 369 and Safe Work NSW v Austral Hydroponics Pty Ltd; Safe Work NSW v Eang Lam [2015] NSWDC 295.

The cases have primarily focussed on directors and "officers" of smaller companies, where the officer may also have a supervisory or "hands on" role. The key lessons, arising from the cases so far, are that officers will:

• need to ensure that processes are implemented to enable them to comply with their positive due diligence obligations, in particular being able to demonstrate their systems to ensure compliance and verification;
• need to demonstrate awareness of available information in relation to hazards in the particular business or undertaking (including Codes and Guidelines published by regulators concerning ways to eliminate or minimise risks arising from hazards); and
• not be able to delegate their duty of due diligence.

In the cases considered so far, due to the nature of the role of the officers, and the smaller size of the PCBUs involved, the Courts found that, in the circumstances, the particular officers had failed to exercise due diligence by not ensuring, for example, that a safe work method statement was in place, workers had been instructed and trained in particular tasks, or that risks assessments had been undertaken.

The Courts have issued fines in the range of $7,000 to $10,000 in relation to breaches of officers duties.

Consultation, co-operation and co-ordination

Under the model WHS and WHS (Resources) Bills, duty holders with shared responsibilities are required to work together to make sure someone does what is needed. This requires consultation, co-operation and co-ordination between duty holders.

First conviction under the consultation provisions

The recent decision of Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 provides the first example of conviction under the consultation provisions of the model WHS laws.

A worker, assigned by Trainee and Apprentice Placement Services Inc (TAPS) to a host employer, sustained severe injuries when a section of guttering he was handling came into contact with power lines in close proximity to the scaffolding he was standing on.

There were no safety measures in place on the site.

TAPS pleaded guilty to breaching its duty to "consult, co-operate and co-ordinate activities" with the host employer (another duty holder) in relation to safety issues on the site. It was fined $12,000 (of a maximum $100,000).

The Court held that in order to comply with the duty, TAPS should have implemented safety measures on the high risk site.