Draft modernised WHS Bill debuts in WA Parliament

Written by Jessica Bowman and Sarah Harrison, King & Wood Mallesons.

The highly anticipated draft Work Health and Safety Bill has been tabled in the WA Parliament and is available for public comment until 30 January 2015. The Bill picks up many of the key concepts in the harmonised work health and safety legislation that is now in force in all other Australian jurisdictions except for Victoria, with some important changes to reflect the WA environment.

The Bill is intended to modernise the current occupational health and safety legislation in WA. A separate Resources Safety Bill is yet to be released, which will apply to persons conducting a business (PCBUs) at a mine site.

Noteworthy items in the Bill include:

• Volunteers and prisoners are not ‘workers’ for the purpose of the Bill. (see section 8).
• The duty on PCBUs to take practicable steps to ensure health and safety is expressly limited to the extent to which a person has the ability to influence and control the matter, or would have but for an agreement that limits that capacity. This reflects the generally understood position taken by the courts on this issue but has been expressly confirmed in the draft Bill (see section 17).
• Landlords and tenants in ordinary lease situations are not covered by the Bill - the Bill only imposes duties on PCBUs providing accommodation to workers where the occupancy is necessary for the purposes of the worker’s engagement (see section 19(4)).
• Improvement notices must be complied with or an application made to appeal the notice by the time specified in the improvement notice (see section 224).
• The ability for an impacted party to write to the regulator to request a prosecution be commenced will not be adopted in WA (see section 231).
• Enforceable undertakings, which have proved popular in other jurisdictions such as NSW and Queensland, will not be adopted in WA (see Part 11).
• The standard limitation period for commencing proceedings for an offence under the Bill is 3 years after the offence was committed. Proceedings can still be brought in respect to reckless conduct causing serious injury or death (a category 1 offence) after the limitation period expires however, where fresh evidence relevant to the offence is discovered and the court is satisfied the evidence could not reasonably have been discovered within the limitation period (see section 232). This is a significant change and provides less certainty for businesses.
• The legislation will be reviewed after 5 years (see section 277). There is no requirement for the WA Parliament to consult with other states or territories in respect to drafting codes of practice or making changes to the legislation following a review.

As anticipated, the Bill otherwise contains most of the key model WHS concepts including:

• the imposition of positive due diligence obligations on all officers (broadly defined);
• the concept of a person conducting a business or undertaking in place of an employer as the primary duty holder;
• the updated definition of reasonably practicable to make it clear that cost is the last element to be considered in the balancing assessment;
• clear positive consultation duties; and
• significantly higher penalties for offences, with the same maximum fines as set out in the model laws and as already adopted by all other jurisdictions except Victoria. The acceptance of the significantly increased penalties fits with the recent public statements by the Department of Mines and Petroleum, that a life shouldn’t be worth any less in WA as compared to other jurisdictions.

The remaining issues that WA has consistently rejected (around the union right of entry, the capacity of safety and health representatives to direct the cessation of work and reversing the onus of proof in discrimination matters) are not included in the Bill.

Source

Further details about the draft WHS Bill in WA and the public comment is available at www.commerce.wa.gov.au/publications/public-comment-work-health-and-safety-bill-2014.