WA's Labor Government has introduced the WHS Bill into WA Parliament. It is expected to pass through relatively unchanged and come into effect in mid-2020.
While many of the principles remain the same and the fundamental duty to 'do no harm' continues to exist, there are a range of changes from the current OSH Act.
There has been no expansion of union powers in respect of right of entry (which still requires an entry permit), or to prosecute safety offences.
In 2008, WA entered into the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA). The IGA was, in effect, a national agreement to harmonise work health and safety laws across Australia.
After nearly 12 years of debate, procrastination and consultation, the WA Parliament has finally introduced its version of the harmonised legislation, currently known as the Work Health and Safety Bill 2019 (WHS Bill). If nothing else, this delay has meant the drafting of the WHS Bill has benefited from the numerous work health and safety reviews that have been undertaken in various states (including WA), including the Review of the Model Work Health and Safety Laws Final Report (Boland Report). Most WA businesses will already be familiar with many of the proposed changes.
What do employers need to know about the WHS Bill?
Many of the changes introduced in the WHS Bill are expected and mirror the WHS Laws. These changes have been discussed for a number of years and we don't examine these in detail here. Rather, we have summarised changes that are of note. They include:
a) The express provision in the objects of the WHS Bill for:
b) Change in language from:
c) The express inclusion of risk management principles (requiring elimination of risk where practicable and then minimisation of risks that cannot be eliminated);
d) The inclusion of 'cost' as a factor (albeit the lowest weight factor) in determining what is reasonably practicable in respect of health and safety management;
e) The expansion of the primary duty of care to not only workers engaged by the PCBU, but to those whose activities are 'influenced' by the PCBU;
f) The imposition of a duty on WHS service providers, which will include consultants, inspectors and trainers who are relied on in respect of safety advice;
g) The introduction of a due diligence offence for officers (which will include executive and directors, but will not include the elected members of a local government);
h) The current approach to penalties has been replaced. The concept of a 'first' and 'subsequent' offence have been removed, with the higher penalty levels being adopted as the new maximums;
i) Inspectors are now expressly permitted to electronically record interviews;
j) Individuals may be required to 'appear' before the regulator to give evidence. Where this occurs, an individual is entitled to be legally represented;
k) Inspectors will have the ability to obtain a search warrant which include extensive entry and search powers;
l) The time limit for commencing a prosecution has been reduced from three years to two years. However, there are additional provisions which potentially extend this period in circumstances where a coronial inquiry or inquest occurs, where an enforceable undertaking is given, or where the matter involves potential charges of industrial manslaughter; and
m) Legal professional privilege has been expressly preserved.
As announced in the recent Labour Party State Conference, the WHS Bill has included an offence of industrial manslaughter, which is expressly identified as a criminal offence.
The Bill adopts a two tiered approach to industrial manslaughter:
'Tier 1' – Crime of industrial manslaughter
The 'crime' of industrial manslaughter carries a very high bar and requires evidence that:
A conviction will be a criminal conviction.
Notably, accessorial liability provisions have been included for officers of a PCBU who consent or connive in conduct causing death, or where the conduct arises from the neglect of the officer. The officer in such circumstances will be guilty of the crime of industrial manslaughter.
The maximum penalties for the crime of industrial manslaughter are: 20 years imprisonment and a $5m fine for an individual, or $10m fine for a body corporate.
Due to the seriousness of this offence, charges for the crime of industrial manslaughter will be dealt with in the District Court, rather than the Magistrates Court.
'Tier 2' – Offence of industrial manslaughter
The second tier of industrial manslaughter is an 'offence' rather than a 'crime', the main difference is the element of 'knowledge' is removed.
Notably, both the crime and the offence of industrial manslaughter may be 'read down'. That is, a person can be convicted of a lesser charge if the full charge of industrial manslaughter cannot be made out.
The definition of 'Notifiable Incidents' has expanded to include both a range of injuries and illnesses, but also 'dangerous' incidents which expose workers to safety risk but do not necessarily result in a notifiable injury.
Further, there is now an express duty to preserve the site of a notifiable incident (for up to seven days) until an inspector arrives, or gives a direction in relation to the site. Subsequent non-disturbance notices may be issued extending the period in which the site (including any plant or equipment) must remain undisturbed.
We recommend businesses review their incident response procedures, processes and training to reflect these new definitions.
Health and Safety Representatives continue to have a number of powers and rights under the WHS Bill. This includes the express right to be present at any interviews with other workers in respect of a safety matter and to request the assistance of any person when performing a safety function. Where this right is exercised and union assistance is requested, right of entry requirements will apply. Notably, the WHS Bill expressly provides that a business is not required to provide a right of entry to any person who has had their IR entry authority revoked. This is an important clarification and ensures that the current precedents and requirements regarding right of entry under the Fair Work Act will continue to apply.
Interestingly, safety inspectors will have an express power to resolve workplace disputes in relation to safety issues under the WHS legislation. Where a safety dispute is referred to an inspector, the inspector is required to make a decision to resolve the dispute within two days. This power has the potential to expedite the resolution of industrial matters purporting to be related to safety. We recommend business consider this power of inspectors as an option for businesses subject to industrial action or threatened industrial action once the Bill is enacted.
Express provisions have been included that make it an offence to discriminate against a person for holding a role, raising an issue, or taking an action in respect of safety. The penalties are significant - a fine of $115,000 for an individual and $570,000 for a body corporate.
The provisions are not dissimilar to the general protections under the Fair Work Act, and include the 'presumptions' that exist for general protections matters. That is, subject to evidence being provided that the discriminatory conduct occurred and a prohibited reason existed, it will be presumed by the Court that the prohibited reason was the dominant reason for the discriminatory conduct. The onus will then be on the respondent to displace this presumption. The Bill includes provision for orders for both compensation and reinstatement in addition to the identified penalties. Proceedings may be commenced by an individual.
Claims under similar provisions have been made in other states, so these are important provisions to be aware of, particularly given the higher penalties and the one year time limit for commencing this form of claim. These provisions add another layer of complexity to employment matters involving safety representatives, or workers who have raised safety complaints (which will include bullying claims).The Bill does expressly prohibit the use of the discrimination provisions where a claim has been brought in another jurisdiction.
There has been an expansion in regulator powers in respect of investigations. Some of these changes mean the legislation now reflects the current processes often undertaken. This includes the ability to electronically record interviews and require persons to attend an interview other than on site.
Enforceable undertakings are now available as an alternative to prosecution. The Regulator may accept a written undertaking (other than for industrial manslaughter or a category 1 offence) in lieu of prosecution. Typically, an enforceable undertaking will require a significant payment as well as an investment or commitment to a particular safety issue. In some cases this may include funding research, introducing new processes and/or taking an industry leading role in raising awareness of a particular safety matter.
The Bill has continued to limit the right to prosecute safety matters to the regulator and the state. Unions and individuals remain unable to commence a safety prosecution. However, an individual may make a written request to the regulator to commence a prosecution if no prosecution has been commenced after six months from the date of the incident. Where such a request is made, the regulator must respond within three months regarding whether the investigation is complete, and if so, whether a prosecution will commence or not and the reasons for this decision. Importantly, this information is also to be provided to the person/company the subject of the investigation.
Where the matter involves industrial manslaughter, a request may be made by an individual to have the matter referred to the Department of Public Prosecutions for consideration.
As noted above, the time limit for commencing a prosecution has reduced from three years to two years, however there are some exceptions to this where a coronial inquest in on foot, or where the matter involves industrial manslaughter.
From a technical legal perspective, the Bill also permits evidence obtained unlawfully to be admitted into legal proceedings where the desirability of admitting the evidence outweighs the undesirability of doing so.
In additional to the normal penalties, the Court will now have a broader range of powers in respect of sentencing, including making adverse publicity orders, making orders for restoration, ordering the offender to undertake a work health and safety project or making orders in respect of training.
As recommended in the Boland Report, the Bill also expressly prohibits the offering or taking out of insurance against a WHS fine. However, insuring against other matters, such as losses arising from a safety incident (e.g. damage to equipment), and legal costs are not prohibited. Any other indemnification against WHS fines is also prohibited.
The WHS Bill has been long expected and the subject of consultation, review and discussion over the last decade. As such, many of the changes are as anticipated and should not be a surprise. However, this does not mean businesses or individuals should be complacent. Undoubtedly, the WHS Bill provides a wider range of powers for enforcement and prosecutions of both corporate entities and individuals. As such, we recommend all managers of businesses familiarise themselves with the content of the WHS Bill and begin reviewing their current safety processes to ensure they are ready for the enactment of the Bill as law in 2020.
They should take the opportunity created by the introduction of the WHS Bill to actively engage and consult with their workforce about the imminent changes to WHS law and review existing WHS policies and procedures. The period before the enactment of the WHS Bill into law provides time for familiarisation with this important new legislation, particularly given the expanded obligations on businesses and senior managers, and the broader powers of the regulator.
We recommend leaders in the workplace ensure that they take the time to understand the WHS Bill both as it applies to the workplace and also how it may impact on individual liability in respect of due diligence. More than ever it is important to ensure that WHS is properly considered in management decision making.
Please contact us if you would like further guidance on the WHS Bill or would like to discuss how we can assist you in preparing for the new laws.