Limelight Articles

Limelight 11/20

WA enacts Industrial Manslaughter scheme and harmonises its WHS laws with other State jurisdictions

Authors, Justine Siavelis , Joel Zyngier , Gavin Northmore , Thomas O'Donnell

Introduction

Western Australia is continuing to reform its occupational health and safety (OH&S) laws across workplaces and mines through the introduction of a new wide-ranging legislative scheme. These changes are substantially based on the national model Work Health and Safety Bill and are designed to improve consistency with the rest of Australia.

The Work Health and Safety Bill 2019, which received assent on 10 November 2020, will mark the conclusion of a long-running reform process driven by industry and public-interest, especially regarding industrial manslaughter in the wake of the 2016 Dreamworld fatality.

The new Act will not come into force until the regulations are finalised, optimistically expected by July 2021.

Broader changes

Currently WA’s OH&S landscape is governed largely by the Occupational Safety and Health Act 1984 (WA) (OSH Act). The OSH Act and the Mines Safety and Inspection Act 1994, and their corresponding regulations, will be subsumed by a new Work Health Safety Act (Act), with work health and safety regulations made specifically for general work health and safety, mining, and petroleum.

As above, the regulations are expected in mid-2021, with transitional  arrangements to be implemented in the period between the Act’s commencement and the implementation of the new regulations.

The primary concepts of a ‘person conducting a business or undertaking’ (PCBU) and  ‘workers’ will generally replace the ‘employer/employee’ approach to OH&S obligations, which no longer fit the increasingly complicated contractual arrangements now found in the work environment.  PCBUs will owe a primary duty to, as far as reasonably practicable, ensure the health and safety of workers (which includes contractors, subcontractors and labour hire employees), and others who may be affected by the carrying out of the work.

PCBUs will be subject to a non-delegable standalone duty to exercise due diligence to ensure that their safety obligations are met, along with consultation with workers, and stakeholders, on issues of safety. This avoids blame shifting and attempts to avoid responsibility, by creating an overlapping and cascading system of responsibility in which everyone in the chain is responsible for safety. Those obligations will now also expressly extend to ensuring the psychological health and safety of workers and stakeholders.

Regulatory powers have also been tweaked, along with a new suite of enforcement measures, including enforceable undertakings, adverse publicity orders, restoration orders, in addition to  fines and the option of imprisonment in serious cases.

There will also be express power to record interviews between the regulator’s investigators and employees and to exclude solicitors acting for employers from attending employee interviews with investigators. This gives statutory force to practices which the regulators have adopted for some time.

The Act preserves the right to rely on legal professional privilege in regulatory investigations and a limited right of individuals to claim the privilege against self-incrimination with respect to the requirement to answer questions and produce documents. The regulator must advise people of their rights to claim privilege before requiring them to answer a question or produce a document.

The limitation period for most prosecutions (not including industrial manslaughter)  will be reduced to 2 years after the incident comes to the notice of the regulator or for fatalities, the later of 2 years or 1 year after a coronial report/investigation/inquiry. The Act contains new provisions permitting a person to call upon the regulator to prosecute if there is no prosecution within 6 months and the regulator will have 3 months to respond. These time periods are likely to give greater certainty to PCBUs and officers as to their exposure to prosecution.

Prohibition on insurance and indemnities

As is the case in NSW, the Act will also deem unlawful insurance policies and indemnities against fines.

Further, significant penalties will also apply to:

  • those insuring or indemnifying against fines under the new Act;
  • those who are insured or indemnified against fines under the new Act; and
  • those paying or accepting an indemnity in respect of an offence under the new Act;

The maximum penalties for contravention of these provisions are $55,000 for individuals and $285,000 for bodies corporate. However, insurance for defence costs is not prohibited and will continue to be an important benefit to insured entities.

Industrial manslaughter and category 1 offences

Another significant change is the implementation of an industrial manslaughter offence for PCBUs and their ‘officers’ (using the definition in the Corporations Act 2001 (Cth)). An officer is:

  • a director or secretary of a corporation;
  • a person who makes, or participates in making, decisions that affect the whole, or a substantial part of the business of the corporation;
  • a person who has the standing to affect significantly the corporation’s financial standing; or
  • a person in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in their performance of functions)

The new offence will impose penalties for officers who are individuals, of 20 years imprisonment and a $5 million fine, or a $10 million fine for bodies corporate. Substantively, the offence is similar to the current Level 4 gross negligence offence.

An offence will occur where :

  • the PCBU breaches a health and safety duty (‘health and safety duty’ is outlined at length in the Act but includes, for example, that a PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged by the PCBU while the workers are carrying out work in the business or undertaking);
  •  that conduct causes the death of an individual (for an officer to have committed an offence the breach must be attributable to the officer’s neglect, consent, or connivance); and
  • it is known that that conduct is likely to cause death and acts in disregard of that likelihood (for an officer, they must have engaged in neglect, consent or connivance knowing that the PCBU’s conduct was likely to cause death and in disregard of that likelihood).

There is no limitation period for industrial manslaughter offences, which are prosecuted in the District Court by the DPP, rather than in the Magistrates Court by the regulator.

The new provisions also allow for an alternative offence (a ‘category 1 offence’) where someone is seriously harmed or dies. This lesser offence is applicable in instances where there is no knowledge that the conduct, which is in breach of a health and safety duty, is likely to cause to cause injury or death (similar to the current level 3 offence). The penalties are correspondingly smaller, with penalties for officer individuals, of 5 years and a $680,000 fine; non-officer individuals, 5 years or $340,000; and, for bodies corporate, a $3.5 million fine.

Serious harm’ is taken to mean an illness or an injury that endangers, or is likely to endanger, the individual’s life; or results in, or is likely to result in, permanent injury or harm to the individual’s health.

Category 1 offences will be subject to a limitation period that will run for different periods from different events.

Express exclusions

The Act contains some express exclusions from the meaning of a PCBU:

  •            Individuals are excluded from the definition to the extent that they are engaged solely as a worker in, or an officer of, that business or undertaking;
  •            Local government members; and
  •            Volunteer associations working together for community purposes, where none of the volunteers employs any person to carry out work for that association.

The undrafted regulations may further exempt persons from the definition of a PCBU, and the Minister has informally indicated that it is not intended that strata companies fall within the definition.

Implications

The increasing attention to OH&S is welcome, but PCBUs and officers need to pay careful attention to demonstrably discharging their new duties. Also, given the increased penalties, having an incident first response arrangement in place is even more important than before, so as to avoid making a bad situation even worse.

For more information on the new legislation and its impact, or regarding an employer’s response to workplace incidents, please contact one of our safety team in your State or Territory.

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.