WA on the march towards model work health and safety laws

As WA progresses to adopting its own version of the harmonised WHS legislation (and announces a significant increase in penalties), employers in Western Australia will need to prepare for a number of changes in work health and safety (WHS) laws over the next two years.

A number of immediate and upcoming changes to safety regulation in WA have been announced by the McGowan Government (Government). These are:

1. Amalgamation of regulators

In April 2017, it was announced that the Department of Mines and Petroleum (which previously regulated safety in the WA resources sector) would amalgamate with the Department of Commerce (which includes WorkSafe WA). This amalgamated department is now known as the Department of Mines, Industry Regulation and Safety.

The Government stated that providing for a single regulator will elevate the focus on worker safety in WA. WorkSafe WA has previously been criticised by some stakeholders for being a reactive, rather than a proactive, regulator, while the Department of Mines and Petroleum has generally been considered to be better resourced and more proactive.

Accordingly, the amalgamation may result in a different approach.

2. Development of a single harmonised WHS bill

In July 2017, it was announced that the Government had approved the development of a single Work Health and Safety Bill (Bill) to replace the following pieces of safety legislation (among others):

• 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

• Pipelines Act 1969.

The Government has indicated that the Bill is expected to be introduced mid-2019, and will be based on the national model Work Health and Safety Act.

As the timeline initially proposed seems relatively generous, and the model laws are relatively well understood (having been in place for some years in most jurisdictions), it is possible that the Bill may be introduced earlier than mid-2019. In any event, once it is passed, WA will have safety legislation consistent with all States and Territories, other than Victoria.

It is proposed that that the new legislation will be supported by industry specific regulations, which will enable the resources sector to use risk-based processes, and support a safety-case system for the petroleum industry and major hazard facilities.

3. Increased penalties

Most recently, the Government announced that the penalties for offences under the current Occupational Health and Safety Act 1984 (WA) will increase to reflect the penalties under the model Work Health and Safety Act.

This means that:

• maximum penalties for Level 1 offences will increase from $50,000 to $456,000;

• maximum penalties for Level 4 offences, for first time offenders, will increase from $500,000 to more than $2.7 million; and

• the maximum term of imprisonment for an individual convicted of a Level 4 offence will increase from two years to five years.

WA Premier Mark McGowan commented that “Penalties for workplace safety offences haven't changed for 13 years. The substantial increases reflect the seriousness of ensuring the safety of Western Australian workers.”[1]

What’s next?

The Government will form a Ministerial Advisory Panel (MAP), to advise on the content of the Work Health and Safety Bill and the relevant industry regulations.

The MAP will be Chaired by Stephanie Mayman, the Chair of the Commission for Occupational Safety and Health, and will include representatives from the government, industry bodies and UnionsWA. Ms Mayman was a key member of the 2008 National OHS Review Panel which led to the national model Work Health and Safety Act.

The Government has indicated that it will engage in an extensive consultation process prior to the introduction of the new Work Health and Safety Bill. This will presumably be driven through the MAP.

Some of the key issues likely to be discussed during this process will include:

• the inclusion of the offence of gross negligent conduct (which was a pre-election commitment of the McGowan government);

• the ability for unions to institute prosecutions;

• the level of specificity of industry regulations (for example the framework relating to fly-in, fly-out workers); and

• the due diligence obligations of directors and senior managers.

How should employers prepare?

Employers in WA and others likely to be affected by these changes should consider any issues of importance to their business, particularly those relation to industry specific regulation, carefully. They also need to ensure that these are addressed through their relevant industry bodies, or directly by the business, as part of the consultation process.

Consideration should also be given to the manner in which directors and senior managers can prepare for the introduction of the model WHS legislation in WA. Due diligence obligations already apply to directors and senior managers in other jurisdictions, and it is likely that the WA Bill will impose very similar obligations. Directors and senior managers should ensure that they are familiar with these obligations and that the business is equipped to assist them in meeting them.

While there is still some time before the model WHS laws are introduced in WA, directors and senior managers should take steps now to ensure they are familiar with their personal obligations under the new laws, and that they receive the appropriate level of support from their business.

Corrs has provided training to a range of Boards and executive teams on these issues, so please get in touch with a member of our team if you would like to arrange a session for your business.