In WA the headline WHS event for 2020 was the WA Parliament passing the Work Health and Safety Act 2020 (WA) (WHS Act) in November, 12 years after the WA Government agreed to introduce harmonised work health and safety laws. You can read in more detail about what the new WHS Act will mean for employers in our recent article.

Parliamentary inquiry into WorkSafe WA

A somewhat lower-profile event than the long-awaited passing of the WHS Act, but one which may have as significant an impact, was the release of 'Coming home safely: WorkSafe and the workplace culture in Western Australia'. This report was issued by a parliamentary standing committee following a three year inquiry into WorkSafe WA.

The terms of reference for the inquiry were broad, including assessing WorkSafe WA's performance against the objects of the Occupational Safety and Health Act 1984, which remains in force. The inquiry also reviewed the resourcing of WorkSafe WA and the the regulator's approach to complaints, investigations, and prosecution processes.

The inquiry heard from WorkSafe WA, unions, workers, employers, safety and health representatives, and private citizens, including families of victims of industrial incidents. Overall, it received 39 written submissions and conducted 59 hearings.

The eventual report handed down in August made 111 findings. The majority of the report's findings hinged on two recurrent themes, which the committee says stood-out during its inquiries. These were:

• resourcing restrictions resulting in WorkSafe WA lacking staff and having outdated or inadequate data management systems; and
• a culture of non-disclosure and refusal to share information by WorkSafe WA regarding bereaved families, other regulators, complainants, unions, and the Coroner.

The report made 94 recommendations, many of which focussed on addressing these concerns, including:

• significant increases to WorkSafe WA's resources, including in relation to its investigation and prosecution capability;
• revised sentencing guidelines for breaches of work health and safety laws, including higher penalties;
• the introduction of mechanisms to address the culture of non-disclosure by WorkSafe WA;
• alternative punishments for breaches of the legislation as opposed to just penalties; and
• the introduction of the industrial manslaughter offence.

WorkSafe WA response

Given the extent and nature of the inquiry's findings, we anticipate a robust response from WorkSafe WA.

In fact, a number of the inquiry's recommendations had been adopted before the report was issued. For example:

• in 2018, the penalties under the OSH Act were significantly increased, taking the maximum penalty for the offence of gross negligence (the most serious offence under the OSH Act) to $680,000 for an individual and $3.5 million for a body corporate;
• in 2019, 27 new inspectors were appointed to WorkSafe WA and the WA Government announced a $12.9 million funding boost; and
•  the WHS Act introduced the offence of industrial manslaughter and the broader powers to accept enforceable undertakings, as seen in the model WHS laws nationally.

We expect WorkSafe WA's response will result in an increase in safety incident prosecutions, including for the industrial manslaughter offence, which is newly included in the forthcoming WHS Act.

This position was echoed recently by Ian Munns, Deputy Director General of the Safety Regulation Group at the Department of Mines, Industry Regulation and Safety. When speaking at a MinterEllison WHS seminar in December 2020, Mr Munns emphasised WorkSafe WA had been taking steps in the last 12 months to improve its enforcement and prosecution capability. This included significantly increasing its number of workplace health and safety inspectors, as well as ensuring they have suitable capabilities to investigate (and ultimately enforce) safety incidents arising under the new WHS Act.

Recent prosecutions

Late 2020 saw an apparent increase in WorkSafe WA's appetite for pursuing prosecutions of workplace safety incidents.

In November 2020, WorkSafe WA achieved its first successful gross negligence prosecution against a company. The company, Resource Recovery Solutions Pty Ltd, was fined $310,000 for gross negligence and $20,000 for failing to comply with an improvement notice.

The company's director was also charged with gross negligence and is defending the charges. If the director is found guilty, he will be the first individual convicted in Western Australia, and faces a maximum penalty of $680,000 and 5 years imprisonment.

In addition, two companies were recently charged with gross negligence offences over the death of a worker at a construction site in late 2018. This is the first gross negligence prosecution brought under the increased penalty regime, which commenced a matter of weeks before the incident occurred.

Notably, WorkSafe WA commenced the prosecution less than two years after the incident. This is a significantly shorter period than previously, which may indicate the regulator is seeking to progress workplace incident prosecutions more swiftly. This could be to ensure it is seen by key stakeholders (including the public) to be playing a strong enforcement role in response to serious workplace incidents. This approach from the regulator is consistent with the shortened 2 year limitation period, which has been introduced in the new WHS Act.

What this means for employers

If the new WHS Act had not already done so, what appears to be an invigorated focus on workplace safety enforcement by WorkSafe WA provides a compelling reason for employers in WA to review their workplace health and safety practices. This includes ensuring that employers comply with the new WHS Act, including conducting periodic WHS audits on their operations.

Please get in touch with a member of our Workplace team if you would like more information on anything we have discussed in this article.