Mirror WHS Bill Introduced in Western Australia

Western Australia has introduced a long-awaited mirror WHS Bill, which includes an industrial manslaughter offence and a new duty of care for the providers of WHS services.

The Bill also defines health as both ‘physical and psychological health’, aiming to further emphasise the importance of considering psychological health in the design and management of work.

In July 2017, Premier Mark McGowan announced plans to develop modernised WHS laws based on the national model Work Health and Safety Bill, in order to improve consistency with the rest of Australia.

Among other things, the Bill includes a primary duty of care requiring PCBUs to, so far as is reasonably practicable, ensure the health and safety of workers and others; duties of care for persons who influence the way work is carried out; and a requirement that ‘officers’ exercise ‘due diligence’ to ensure compliance.

The Bill also includes two separate offences for industrial manslaughter, both of which are met with substantial penalties.

Industrial manslaughter – crime provides for the highest penalties for WHS offences, including imprisonment of 20 years and a fine of $5,000,000 for an individual PCBU, or a fine of $10,000,000 for a body corporate.

Due to seriousness of this offence, it will require high standards of proof including a requirement for the prosecution to establish the person engaged in the conduct that caused the death of an individual knowing the conduct was likely to result in death, and in disregard of the likelihood.

Industrial manslaughter – simple offence provides lesser penalties but has correspondingly simpler elements of proof

The maximum penalties for a PCBU convicted on industrial manslaughter – simple offence are 10 years and a fine of $2,500,000 for an individual PCBU, or $5,000,000 for a body corporate.

For this offence the prosecution must prove the person failed to comply with a health and safety duty that caused the death of an individual.

A specific duty of care for the providers of WHS services has also been included in the Bill, required them to take appropriate care to ensure, so far as is reasonably practicable, that the health and safety of persons isn’t put at risk by the provision of the service.

A specific exclusion against insurance for monetary penalties has also been included in the Bill, modelled on a similar provision in New Zealand’s WHS laws and recommended in the Boland Review.

The Bill comes after penalties for WHS offences were significantly increased in October 2018 and are reflective of the increased political and public attention on worker safety in Western Australia (see related article).

While the Bill is designed to provide the primary legislation for workplace safety and health across all WA industries, it will be supported by a number of industry-specific regulations to suit the State’s unique conditions, “enabling the resources sector to continue to use a risk-based approach, and continuing to support the safety-case approach for petroleum and major hazard facilities,” explanatory notes say.

Industrial Relations Minister Bill Johnston said the Bill would modernise WA’s laws and bring the State into line with the rest of Australia.

“The current legislation is spread across multiple Acts and regulations – this update will bring the resources sector and general industries under the same Act, but with separate regulations.

“The community has high expectations that every worker has the right to come home safely after each shift, having a strong deterrence in this legislation completely accords with these expectations.”