Please contact us if you would like further guidance on the WHS Act, our compliance audit or how else we can assist you in preparing for the new laws.

The WHS Act will not operate until industry-specific regulations are finalised. The WA Government has said it anticipates the new legislation and accompanying regulations will have commenced by July 2021, although acknowledges this is an ambitious timeframe.

Once in force, the new WHS laws will replace the current Occupational Safety and Health Act 1984 (WA) (OSH Act), and those elements of the Mines Safety and Inspection Act 1994 (WA) and Petroleum and Geothermal Energy Safety Levies Act 2011 (WA) that relate to WHS matters.

In preparation for the new and much anticipated WHS era, we have prepared the below summary of the key points persons conducting a business or undertakings (PCBUs) will need to be aware of, and how PCBUs can start preparing.

How did we get here?

Last year we reported on the introduction of the WHS Bill to Parliament. That article also considered the changes we expected to see in the WHS Bill compared to the model WHS laws that had been adopted in all other states and territories in Australia except Victoria.

Is the final WHS Act what we expected?

For the most part, yes.

The WHS Bill underwent extensive scrutiny including a ministerial advisory panel, public consultation, two standing committees in the Legislative Council, one week's debate in the Legislative Assembly and the equivalent of three weeks' debate in the Legislative Council.

The biggest test for the Bill was the Legislative Council where the WA Government does not hold a majority. While the WHS Bill passed through the upper house, a number of key amendments were made along the way. They include:

• restricting prosecutions for breach of the new industrial manslaughter crime (section 30A offence) to the Director of Public Prospections for WA (DPP) or a member of the DPP only;
• removing the proposed industrial manslaughter 'simple offence' (proposed section 30B offence); and
• expanding the category 1 offence (section 31 offence) to encompass some of the elements of the simple offence such as a breach of a WHS duty causing the death of an individual. 

Earlier iterations of the WHS Bill had contemplated industrial manslaughter prosecutions being brought by WorkSafe WA (the regulator), a public service officer working for the WHS department of the Department of Mines, Industry Regulation and Safety, or the DPP. In our view, this amendment shows an intention to have lawyers who regularly deal with criminal prosecutions, prosecute industrial manslaughter charges so as to increase the chances of successful prosecutions.

We discuss the category 1 offence (section 31 offence) in more detail below.

What are the key takeaways for employers?

Industrial manslaughter

Arguably the most discussed provisions in the WHS Bill were those relating to the new industrial manslaughter offences.

Initially, the WHS Bill proposed two industrial manslaughter offences – a crime (section 30A offence) and a simple offence (section 30B offence). However, as we indicated above, the simple offence was removed by the Legislative Council in favour of an expanded category 1 offence (section 31 offence).

The remaining section 30A industrial manslaughter offence is an indictable offence, meaning it is a crime. This crime may only be prosecuted by the DPP in the District Court of Western Australia (rather than the Magistrates Court). Further, unlike under the OSH Act where a prosecution had to be initiated within three years of the incident giving rise to the alleged offence, under the new laws there is no limitation period for a prosecution to be commenced.

This will no doubt create a level of uncertainty for PCBUs regarding their ongoing potential liability.

A person who has a duty as a PCBU, or officer of a PCBU, will commit the crime of industrial manslaughter if:

• they have a health and safety duty; and
• they engaged in conduct that causes the death of an individual; and
  • the conduct constitutes a failure to comply with their health and safety duty; and
  • they engage in conduct:
    • knowing that the conduct is likely to cause the death of an individual; and
    • in disregard of that likelihood.

As Mr Bill Johnston (Minister for Industrial Relations) said in his second reading speech, 'the introduction of industrial manslaughter offences will serve to sharpen the attention of people who exercise the most control over workplaces to their health and safety responsibilities.' The maximum penalties for industrial manslaughter are substantial, an aspect the WA Government has made no apologies for. They include:

• for an individual PCBU or officer, 20 years imprisonment and a fine of $5 million;
• for a body corporate, a fine of $10 million.

Category 1 offence

The expanded section 31 category 1 offence deals with a failure to comply with health and safety duties and largely mirrors the current level 3 offence under the OSH Act. Category 1 offences will be prosecuted by the regulator in the Magistrates Court. A person will commit a category 1 offence if:

• the person has a health and safety duty;
• the person fails to comply with that duty; and
• the failure causes serious harm or death to an individual. 

As can be seen from the above elements, the level of culpability under the category 1 offence is considerably lower than the industrial manslaughter crime. In particular, the category 1 offence does not include of the element of knowledge that a contravention of a duty is likely to cause death.

Understandably, the maximum penalties are also lower – under the category 1 offence individuals face a maximum five years imprisonment and a fine of $680,000, and body corporates face a maximum fine of $3 million.

Section 31 offences will have a limitation period, the length of which is contingent on a number of factors listed in the new laws. In most cases, the limitation period will be two years after the offence first comes to the notice of the regulator.

Positive due diligence duties on officers

The new laws also impose due diligence obligations on decision makers in organisations (otherwise known as 'officers') that are significantly more onerous than similar obligations that have been read into the OSH Act. Previously, senior managers or officers of employers could be guilty of an offence if an offence of the employer was attributable to neglect on the part of the manager or officer. In contrast, under the new laws, officers of a PCBU must exercise due diligence to ensure the PCBU complies with its WHS duties or obligations regardless of whether there is a safety incident and regardless of whether the PCBU commits an offence.

The WHS Bill sets out the following six steps that are included in the meaning of 'due diligence':

• acquire and keep up-to-date knowledge of WHS matters;
• gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations;
• ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking;
• ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
• ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
• prepare, collate and keep up to date records on WHS matters and incidents and review those records to identify any trends and areas of risk.

The WHS Bill adopts the term 'officer' as it is defined by the Corporations Act 2001 (Cth) and includes (among others) directors and managers who participate in making decisions that affect a substantial part of the business of the PCBU.

Prohibition against insurance

Another new provision is the prohibition against a person, including a PCBU, from entering into an insurance policy that purports to indemnify a person's liability to pay a fine for an offence against the new WHS laws. If an insurance policy contains indemnifications of this kind, it will be of no effect, and the person indemnifying, or agreeing to indemnify, will be liable to pay a fine. This move mirrors similar prohibitions introduced in New Zealand in 2016 and New South Wales earlier this year.

The Parliament has stated this introduction is intended to have a deterrent effect by ensuring PCBUs and/or their officers cannot escape paying penalties that are imposed following a successful prosecution.

Notably, the prohibition against insurance does not extend to indemnification for defence costs.

Right of entry

The current right of entry provisions under the Industrial Relations Act 1979 (WA) will remain in force and unaltered by the new laws. This means that an authorised representative can enter the workplace to investigate a suspected breach of the new WHS laws.

Duty to consult, cooperate and coordinate with other duty holders

The new WHS laws also introduce to WA obligations on duty holders to consult, cooperate and coordinate with other duty holders if more than one person has a duty in relation to the same matter. A failure to comply with this duty carries a maximum fine of $25,000 for individuals and $115,000 for body corporates.

Amongst other things, this new duty will require PCBUs to re-consider their approach to contractor management practices to ensure all PCBUs whose operations interact have jointly considered the hazards arising from that interaction and appropriate control measures.

Health and safety representatives and 'work groups'

The WHS Bill introduces the concept of work groups. A work group will be an agreed group of workers who carry out work for a PCBU, or workers carrying out work for two or more PCBUs. Importantly, work groups will have the right to elect one or more health and safety representatives (HSRs) and deputy HSRs to represent the group. Employers will be required to, on request, facilitate the formation of work groups (including negotiations and/or variations) within a prescribed time period as is reasonable.

HSRs will enjoy expanded powers to direct a worker in their work group to cease work if the HSR has a reasonable concern about a serious risk to the worker's health and safety. If the HSR's concern relates to two or more workers in their work group, the direction to cease work can be given to all workers within the group. This represents a significant increase in power, particularly in respect of directions for entire work groups to cease work.

HSRs will be empowered to issue provisional improvement notices if the HSR reasonably believes that a person has contravened the WHS Act. Individuals or companies who contravene a provisional improvement notice will be exposed to fines.

HSRs will also be empowered to invite anyone, including a union official, into the workplace to obtain assistance with the exercise of the HSRs powers or the performance of their functions. A union official would not be required to comply with right of entry laws when entering for this purpose, however the HSR would be required to notify the relevant PCBU and the person with management and control of the workplace before the assistant enters.

How can MinterEllison help?

The new laws aim to ensure directors and other key decision makers in PCBUs not only fully understand WHS risks in their organisation, but also take positive steps to manage these risks and create a positive safety culture.

To assist a PCBU in preparing for its new responsibilities, MinterEllison has specialist lawyers who can conduct an audit of existing arrangements and identify those areas where changes will be needed to ensure compliance with the new laws. We can also assist with reinforcing a positive safety culture and understanding the upcoming changes to WHS laws.

Please contact us if you would like further guidance on the WHS Act, our compliance audit or how else we can assist you in preparing for the new laws.