This article applies to all workplace participants in Western Australia.
Work Health and Safety Bill 2019 (WA)
Please be advised that the Work Health and Safety Bill 2019 (WA) (the Bill) passed its third reading on 21 October 2020 and received Royal Assent on 10 November 2020.
Based on the ‘National Model Work Health and Safety Bill’, the Bill seeks to implement modernised work health and safety (WHS) laws for Western Australia by establishing new primary legislation for WHS across all WA industries.
The main object of the Bill is to provide for a nationally consistent framework that promotes the health and safety of workers and workplaces. The Bill will achieve this through implementing measures to protect workers and other persons against harm by minimising risks arising from work.
The new legislation will be supported by a number of industry specific regulations to suit WA’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.
It is imperative that subscribers are aware that the Bill introduces many new WHS obligations carrying significant penalties, including a serious new ‘industrial manslaughter’ offence.
The new industrial manslaughter offences are designed to ensure that deaths at the workplace, caused by the conduct of persons conducting a business or undertaking (PCBU) and their officers, are met with substantial penalties.
The Bill includes two separate offences for industrial manslaughter.
1. Industrial manslaughter – crime
This offence applies to persons who fail to comply with a health and safety duty as a PCBU, causing the death of an individual. The person must engage in the conduct knowing that the conduct is likely to cause the death of an individual or in disregard of that likelihood. This offence 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.
2. Industrial manslaughter – simple offence
This offence similarly applies to persons that fail to comply with a health and safety duty as a PCBU, causing the death of an individual. However, the simple offence does not require evidence that the person engaged in the conduct knowing that the conduct was likely to cause the death of an individual or in disregard of that likelihood; the failure to comply with a WHS duty only needed to cause the death. The penalty is correspondingly less, being 10 years and a fine of $2,500,000 for an individual PCBU, or $5,000,000 for a body corporate
Officers may also be charged with the industrial manslaughter offences, but additional elements of the offences must be proven, including that the conduct was attributable to any neglect on behalf of the officer, or it was engaged in with the officer’s consent or connivance.
Failure to Comply with Health and Safety Duty
The Bill imposes a primary duty of care requiring PCBU’s 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.
In order to enforce this new duty of care for PCBU’s, the Bill introduces 3 categories of offences.
A PCBU will commit a Category 1 offence where a failure to comply with a health and safety duty causes serious harm to an individual. Persons other than PCBU’s (including workers and officers) may also 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.
It is important to note that, for officers, the Category 1 offence provides an alternative charge to industrial manslaughter – simple offence if it cannot be established that the death of an individual results from neglect on the part of the officer.
Category 1 offences carry a penalty of imprisonment for 5 years and a $680,000 fine for an individual or a $3,500,000 fine for a body corporate.
Category 2 and 3 offences involve less culpability than Category 1 offences, as there is no fault element. A person commits each offence where the person fails to comply with a requisite health and safety duty.
The difference between these offences is that Category 2 offences have a further element providing that a person only commits an offence if the failure to comply with the WHS duty exposed an individual to a risk of death or serious injury or serious illness. This would include serious dangerous incidents that do not result in death or serious injury.
Accordingly, offences without this further element would be prosecuted as Category 3 offences.
Category 2 offences carry a penalty of a $350,000 fine for an individual as a PCBU or as an officer of a PCBU, or a $170,000 fine for other individuals, or a $1,800,000 fine for a body corporate.
Category 3 offences carry a penalty of a $120,000 fine for an individual as a PCBU or as an officer of a PCBU, or a $55,000 fine for other individuals, or a $570,000 fine for a body corporate.
It should be noted that volunteers and unincorporated associations are exempt from the offences above.
Other Key Provisions
The Bill introduces a series of further significant obligations that subscribers should be aware of, including:
- A requirement that officers exercise ‘due diligence’ to ensure compliance with new WHS laws, including ensuring that the PCBU has, and implements, processes for complying with duties under the Bill.
- Reporting requirements for ‘notifiable incidents’, for example, a PCBU will be required to notify the regulator of any cases of dangerous incidents, serious illness, injuries or deaths of persons incidents arising out of the conduct of a business or undertaking.
- Obligations for consultation on WHS matters, including consultation with other responsible duty holders and with workers affected by health and safety issues (carrying steep penalties – $25,000 for individuals and $115,000 for a body corporate).
- Protections against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Bill (carrying steep penalties – $115,000 for individuals and $570,000 for a body corporate).
Please click here to access the full Bill.
For further information please contact the Law Compliance team:
Phone: 1300 862 667