04/11/2020

The Work Health and Safety Bill 2019 (WA) (WHS Bill) will become law very soon. On 3 November 2020, the Legislative Assembly of the WA Parliament agreed to amendments by the Legislative Council, and the WHS Bill is now awaiting assent.

When the WHS Bill comes into operation, it will be the primary legislation for workplace safety and health across all Western Australian industries, and will be more consistent with work health and safety laws across the rest of Australia. (Western Australia is the last state to implement the laws consistent with the Modernised Work Health and Safety Act, apart from Victoria which already has similar legislation.)

Critically, for resources companies, once the WHS Bill is operational, and once appropriate and specific Regulations are in place to facilitate the application of the “umbrella” WHS Bill to the resources industry, the new regime will replace the Mines Safety and Inspection Act 1994 (WA) (MSIA) and the corresponding Mines Safety and Inspection Regulations 1995 (WA).

Current indications are that this might take another 12 months or so.

We discuss below the implications of this impending change for the resources industry.

Certain key duties will remain substantially consistent

The MSIA establishes broad statutory duties of care on all parties in the workplace. Those duties have the effect that:

  • a work environment must be maintained in which people are not exposed to hazards; and
  • individuals must take reasonable care to ensure their own safety and the safety of others.

At the most basic, this is still the case under the WHS Bill (noting that the details of the statutory duties that apply in the workplace will differ under the WHS Bill).

Further, the “reasonably practicable” test that applies under the MSIA remains essentially unchanged under the WHS Bill. That is, in considering what steps are “reasonably practicable” to mitigate or eliminate a hazard, WHS Bill requires consideration of factors such as:

  • the likelihood of the hazard or risk occurring;
  • the degree of harm that might result;
  • what the person knows, or ought reasonably to know, about the hazard or risk and the ways of eliminating or minimising the risk;
  • the availability and suitability of ways to eliminate or minimise the risk; and
  • after assessing the above, the costs associated with the available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

These steps will be relatively familiar to those working in the health and safety space. We note, though, that the context in which the “reasonably practicable” test is applied is always changing, and so, for example, advances in technology, and community assumptions about the use of technology, will result in an increased expectation of employers.

But there are some radical changes under the WHS Bill

While we won’t know the full extent of any changes in the WHS Bill until the Regulations are published in draft for consultation, it is clear that resources companies can expect some major shifts, including:

  • critically important new definitions, including “Person Conducting a Business or Undertaking (PCBU)”, “Worker”, “Workplace”. “Employer” is no longer defined;
  • “Health” is defined to include psychological health;
  • broader and overlapping duties of care attaching to those who have the capacity to exercise influence and control on site. So there may be a number of people with overlapping responsibilities for health and safety (for example, a site operator, its management (including directors) their contractors and sub-contractors) and they will all need to consult, co-operate and co-ordinate with each other;
  • introduction of a new offence of industrial manslaughter, with significant penalties including fines of up to $10 million and imprisonment of persons responsible (including potentially directors, and senior, line and middle management);
  • introduction of a new obligation to consult with workers on WHS issues;
  • a positive duty of due diligence for officers of a PCBU. Not only is due diligence no longer a defence, but it seems that the positive duty of due diligence can be breached even if the relevant PCBU is not convicted or in the absence of an actual incident (so, for example, in circumstances of a “near-miss”); and
  • a prohibition on insurance policies to the extent that they purport to indemnify a person for their liability to pay a fine under the WHS Bill.

Current window of opportunity before the new WHS laws take effect

Resources companies now have a window of opportunity, before the new laws comes into operation, to ensure that their current work health and safety practices will stand up to the changed expectations and new requirements or, to the extent necessary, to adjust them. For companies that operate in other Australian jurisdictions, this may be easier, as their health and safety obligations in WA ought to align, more or less, with their health and safety operations elsewhere in Australia. But for resources companies that operate solely within WA, the task may be much greater, and will involve becoming familiar with wholly new provisions and conducting a “gap analysis” between their existing health and safety obligations under the MSIA and their (near) future health and safety obligations under the WHS Bill.

Comparison of some of the key changes under the new WHS laws

A good place to begin may be a simple schedule of comparison between key provisions of the existing laws and the new laws, such as the one we have prepared below (though these are not the only important changes):

Key provision of WHS Bill

Comparison under current MSIA

“Person Conducting a Business or Undertaking” (PCBU) (definition, s 4 and s 5).

Includes sole trader, each partner in a partnership, joint venture, company, unincorporated association, volunteer body, not for profit organisation, government department or a public authority.

“Employer” (definition, s 4).

A person who employs an employee at a mine under a contract of employment. (Includes an apprentice under a training contract registered under the Vocational Education and Training Act 1996 (WA)).

“Worker” (definition, s 4 and s 7).

Any person who carries out work in any capacity for a PCBU, including as an employee, a contractor or sub-contractor, an employee of a contractor or subcontractor, an employee of a labour hire company assigned to work in the person’s business or undertaking, an outworker, an apprentice / trainee, a student gaining work experience, a volunteer.

“Employee” (definition, s 4).

A person by whom work is done at a mine under a contract of employment, and an apprentice who works at a mine.

“Workplace” (definition, s 4 and s 8).

Any place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. Includes a vehicle, vessel, aircraft or other mobile structure, and any waters and any installation on land, on the bed of any waters or floating on any waters.

“Workplace” (definition s 4).

In relation to a mine, means a place, whether or not in a vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work, but does not include catering, residential, or recreational facilities for employees or self-employed persons except in the case of persons who are employed to service and maintain those facilities.

Primary duty of care, s 19(1) and (2).

A PCBU must ensure, so far as is reasonably practicable, the health and safety of:

  • workers engaged, or caused to be engaged by the person; and
  • workers whose activities in carrying out the work are influenced or directed by the person,
  • while the workers are at work in the business or undertaking.

Primary duty of care, s 9(1).

An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer’s employees are not exposed to hazards.

“Health” (definition, s 4) means physical and psychological health.

“Hazard” (definition, s 4): In relation to a person, anything that may result in injury to the person or harm to the health of the person.

“Harm” and “health” not defined.

Duty of officers, s 27(1): If a PCBU has a duty or obligation under this Act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty or obligation.

No equivalent positive duty of due diligence for officers.

“Due diligence” includes taking reasonable steps to (s 27(5)):

  • acquire and keep up to date knowledge of work health and safety matters;
  • gain an understanding of the nature of the operations of the business or undertaking and generally of the hazards and risks associated with the operations;
  • ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate 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 PCBU under this Act; and
  • verify the provision and use of the resources and processes referred to above.

 

An officer may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the PCBU has been convicted or found guilty under this Act relating to the duty or obligation: s 27(4).

“Officer” (definition, s 4 and s 4A) means an officer within the meaning of the Corporations Act and expressly includes any person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public corporation.

Likely to include anyone in senior management.

An officer may be deemed to have contravened safety legislation if there has been a contravention by the employer: s 99A - 100A.

An element of knowledge or negligence on the part of the officer is required.

For the purposes of s 100A (“Liability of directors etc. for offences by corporation involving gross negligence”), an “officer” is defined to mean a director, manager, secretary or other officer of a corporation or a person purporting to act in that capacity.

 

An insurance policy is of no effect to the extent that, apart from this subsection, it would indemnify a person for the person’s liability to pay a fine under this Act: s 272A(2).

No equivalent provision.

Duty to consult with other duty holders: If more than 1 person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter: s 46.

Duty to consult with workers: The PCBU must, so far as is reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety: s 47.

Penalty in each case: for an individual, a fine of $25,000. For a body corporate, a fine of $115,000.

When consultation is required (s 49):

  • identifying hazards and assessing risks to health and safety from work to be carried out;
  • making decisions about ways to eliminate or minimise those risks;
  • making decisions about the adequacy of facilities for the welfare of workers;
  • proposing changes that may affect the health or safety of workers;
  • making decisions about procedures for: consulting with workers; resolving WHS issues at the workplace; monitoring the health of workers; monitoring conditions at any workplace under the control of the PCBU; providing information and training for workers;
  • carrying out any other activity prescribed by the regulations.

An employer must consult and cooperate with safety and health representatives, if any, and other employees at the mine where that employer’s employees work, regarding occupational safety and health at the mine: s 9(1)(c).

Another important consideration for resources companies are the changes to offences and penalties which will come into effect with the operation of the WHS Bill. Again, we have set out a summary of some key changes to the offences and penalties below, but companies should satisfy themselves and, if necessary, seek advice regarding the new offences and the operation of the new penalty provisions.

Key offences and penalties: WHS Bill WA

Comparison under MSIA

Industrial manslaughter, s 30A (knowing disregard). Applies to PCBUs and Officers. Maximum jail term of 20 years and a $5,000,000 fine for an individual or a fine of $10,000,000 for a body corporate.

 

A contravention is committed in circumstances of gross negligence if the offender:

  • knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is owed under that provision; but
  • acted or failed to act in disregard of that likelihood; and
  • the contravention did in fact cause the death of, or serious harm to, such a person: s 8B.

Level 4 offence (gross negligence) for individuals and bodies corporate: see below.

Alternatives to penalties (ss 236 – 241): Sentencing powers include adverse publicity orders, work health and safety project orders, training orders, restoration orders.

No equivalent provisions.

Maximum penalties for body corporate:

  • Industrial manslaughter (s 30A): $10,000,000.
  • Category 1 offence (reckless conduct): $3,500,000.
  • Category 2 offence (failure to comply and exposes individual to risk of death / serious injury): $1,800,000.
  • Category 3 offence (failure to comply with duty): $570,000.

Maximum penalties for body corporate:

  • Level 1: $450,000 (first offence) and $570,000 (subsequent offence).
  • Level 2 (general duty): $1,500,000 for first offence and $1,800,000 for subsequent offences.
  • Level 3 (causing serious harm or death): $2,000,000 for first offence and $2,500,000 for subsequent offences.
  • Level 4 (gross negligence): $2,700,000 for first offence and $3,500,000 for subsequent offences.

Maximum penalties for individuals:

  • Industrial manslaughter (s 30A): 20 years’ imprisonment and $5,000,000.
  • Category 1 offence (reckless conduct): 5 years imprisonment and $680,000.
  • Category 2 offence (failure to comply and exposes individual to risk of death / serious injury): $350,000.
  • Category 3 offence (failure to comply with duty): $120,000.

Maximum penalties for individuals:

  • Level 1 (employee): $50,000 for first offence and $60,000 for subsequent offences.
  • Level 1 (individual, not employee): $100,000 for first offence and $120,000 for subsequent offences.
  • Level 2: $250,000 for first offence and $350,000 for subsequent offences.
  • Level 3: $400,000 for first offence and $500,000 for subsequent offences. 
  • Level 4 (gross negligence): $550,000 fine and imprisonment for up to 5 years (for first offence) and for a subsequent offence $680,000 and up to 5 years imprisonment.
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