Australia: Workplace health and safety reforms in WA: Passing of the Work Health and Safety Bill 2019

On 21 October 2020 Western Australia's Work Health and Safety Bill 2019 (WHS Bill) passed the upper House of Parliament (Legislative Council). The bill introduces the new offence of industrial manslaughter to Western Australia as well as a significant increase in penalties for contravention.

The WHS Bill will now be sent to the lower House (Legislative Assembly) for a final vote, which is expected to happen on 3 November 2020. Once the WHS Bill is passed, supporting regulations are required prior to the bill becoming operational. These regulations are likely to be finalised early next year, with the new Western Australian Work Health and Safety Act (New Act) expected to apply from early 2021.

Why the change?

The development of WA's WHS Bill began in 2017, with the WHS Bill first introduced into Parliament in November 2019.

The last major overhaul of Western Australia's workplace health and safety system was over 30 years ago. The WHS Bill seeks to develop modern work health and safety laws in Western Australia, which are based upon the national model Work Health and Safety Bill, yet allow for some flexibility for specific industries in WA, including the resources sector.

In 2008, WA entered into the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA). The IGA was, in effect, a national agreement to harmonise work health and safety laws across Australia. Other than Victoria, Western Australia is the only state not to have adopted work health and safety laws in line with the national model.

Key elements of the WHS Bill

The New Act will replace three current acts, the Occupational Safety and Health Act 1984 (OS&H Act), Mines Safety and Inspection Act 1994, and Petroleum and Geothermal Energy Safety Levies Act 2011.

There are several changes to work health and safety laws contained in the WHS Bill, however, the following issues have attracted a high level of attention and controversy:

1. The introduction of an industrial manslaughter offence; and
2. A significant increase in penalties for contravention.

Some other key elements of the WHS Bill include:

• a primary duty of care requiring persons conducting a business or undertaking (known as PCBUs) to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work. PCBU's can include individuals and body corporates;
• duties of care for persons who influence the way work is carried out, including the providers of workplace health and safety services;
• a requirement that 'officers' of the corporation (including directors, secretaries, and key decision-makers) exercise 'due diligence' to ensure compliance;
• reporting requirements for 'notifiable incidents' (serious illness, injury or death, and dangerous incidents);
• provision for the resolution of workplace health and safety issues;
• protection against discrimination for whistle-blowers; and
• A prohibition against insurance against fines imposed.

It is important to note that the WHS Bill does not just apply to traditional employment relationships and environments. The WHS Bill seeks to provide protection to workers and others, in and around a workplace, or affected by the carrying out of work.

Obligations under the WHS Bill can apply to residences (where a business is being run), accommodation provided to workers, and workplaces not currently being used for work.

Industrial Manslaughter

The proposed industrial manslaughter offence came about following a study of national work health and safety laws, by Safe Work Australia in 2018, which suggested existing laws did not go far enough to impact the behaviour of employers (and individuals within an employment situation) in relation to workplace safety.

Although the offence of industrial manslaughter was not included in the national model, Victoria, Queensland, NT, and the ACT have already introduced industrial manslaughter offences.

Whilst there has been a lot of support, particularly in Parliament, for the proposed new offence, there has also been an argument raised that such an offence, as currently proposed, may not have the desired effect of making the workplace a safer environment, but simply lead to blaming within organisations.

The WHS Bill introduces a two-tiered approach to industrial manslaughter:

1. A criminal offence, with a maximum penalty of imprisonment for 20 years and a fine of $5 million for an individual, and a fine of $10 million for a body corporate.
2. • This offence requires proof that a person (including a body corporate) engaged in conduct, in breach of a health and safety duty, with the knowledge that such conduct was likely to cause the death of an individual, and that the person engaged in such conduct in disregard of that likelihood of death. In line with the seriousness of this offence, the District Court will hear such matters which will only be prosecuted by the Director of Public Prosecutions.

2. A simple offence, with a maximum penalty of 10 years' imprisonment and a fine of $2.5 million for an individual, and a fine of $5 million for a body corporate
3. • This offence relates to a failure to comply with a health and safety duty where such failure caused the death of an individual.

These offences only apply to PCBUs and officers, which is said to reflect the influence and control of such persons (including body corporates) have over the workplace. However, the additional element of proving that PCBU's conduct was attributable to any neglect on behalf of the officer, or that it was engaged in with the officer's consent or connivance, must be proved where an officer is being prosecuted for these offences.

The key difference between industrial manslaughter – crime and industrial manslaughter – simple offence, is that with the simple offence there is no requirement in relation to a PCBU to establish that the person engaged in conduct knowing it was likely to cause the death of an individual.

Under the current OS&H Act, the most serious offence (involving gross negligence) already carries a jail sentence, with a maximum of 5 years' imprisonment, as well as a fine of $550 000 for a first offence, or $680 000 for a subsequent offence (for individuals). Until this year, there had been no successful prosecutions of this offence in WA. However, on 14 July 2020, the first conviction of this offence against a body corporate was recorded over an incident at an automated recycling plant where a worker's arm was amputated. To date, there has been no prison sentences handed down under any offence under the OS&H Act.

Earlier this year, we also saw the first Australian industrial manslaughter conviction (in Queensland), which included 2 directors of the employer company being sentenced to imprisonment (which was suspended).

Offences and penalties

Contraventions of the WHS Bill and regulations are generally criminal offences, which is said to reflect the view that any person who has a work-related duty of care but does not observe it should be liable to a criminal sanction for placing another person's health and safety at risk.

The WHS Bill provides for five types of offences against health and safety duties, including the two offences of industrial manslaughter mentioned above. The other offences are category 1,2 and 3 failures to comply with a health and safety duty.

• A PCBU commits a Category 1 offence where a failure to comply with a health and safety duty causes serious harm (including an injury or illness 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, including psychological injury). Persons other than PCBUs, including workers and officers, commit a Category 1 offence where a failure to comply with a health and safety duty causes the death of, or serious harm to, an individual.
• With Category 2 and 3 offences there is no fault element. The elements for both these offences are that a person is required to comply with a health and safety duty and the person fails to comply with the health and safety duty. With a category 2 offence, it must also be satisfied that the failure to comply with the health and safety duty exposed an individual to a risk of death or serious injury or serious illness.

The maximum penalties for these offences are as follows:

What to do now?

It is important to appreciate that, although the WHS Bill reforms work health and safety laws in WA, the obligations for employers (or PCBUs) have not substantially changed with regards to their primary duty of care. The WHS Bill still requires PCBUs to ensure, so far as is practicable, that the workplace is without risk to the safety and health of any persons.

Although duties for employers are have not substantially changed, it is important that anyone with obligations and duties with respect to work health and safety familiarise themselves with the WHS Bill to ensure that they and their business are currently, and will continue to be, in compliance prior to the commencement of the New Act.

Work health and safety is an issue of wider social interest and importance and should be a key area of focus for any employer. As such, employers should be consistently assessing, evaluating, and reviewing their knowledge, processes, and policies in this area.

It is also likely that the WHS Bill will require some amendments to workplace policies and procedures already in place.

The passing of the WHS is an opportunity to highlight to all employers the importance of providing a safe working environment, and for employers to seek outside assistance if required.

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.