11 November 2020
Earlier this year, we wrote about Western Australia’s proposed Work Health and Safety Bill 2019 (Bill) here. The Bill is substantially based on the national model Work Health and Safety Act (model WHS Act) and also includes industrial manslaughter laws.
The Bill has recently passed the Upper House and the final vote in the Lower House, with some changes. The new laws are expected to commence once the supporting regulations are finalised early next year.
Set out in the Explanatory Memorandum, the Bill aims to:
As a whole, the Bill reflects a lot of the model WHS Act but retains some jurisdictional aspects such as the management of WHS permit holders under the industrial relations laws. It also seeks to introduce a new duty holder being the WHS Service Provider (Provider). The Provider (being essentially a consultant) must ensure, so far as is reasonably practicable, that the WHS services are provided such that any relevant use of them at, or in relation to, a workplace will not put the health and safety of people in the workplace at risk.
The Bill also picks up a Boland Review recommendation of making insurance for penalties unlawful.
Industrial manslaughter offence
Since our previous article, the Upper House has made some changes to the Bill regarding the industrial manslaughter offences.
The main change is the removal of section 30B being “industrial manslaughter – simple offence”. The offence, as originally drafted, had elevated what was a Category two offence under the model WHS Act, with the added requirement that the failure to comply with the health and safety duty must “cause the death of an individual”. Referring back to our previous article, the offence was expected to be vigorously debated due to concerns that it significantly modified the structure of the model WHS Act.
The offence of industrial manslaughter – crime (section 30A) is retained. The Upper House has included in the definition of “industrial manslaughter” that it will also apply to engaging in conduct knowing the conduct is likely to cause death “or serious harm” to an individual. “Serious harm” is defined as illness or injury that endangers (or is likely to endanger) the individual’s life, or results (or is likely to result) in a permanent injury or harm to the individual’s health. The industrial manslaughter – crime offence carries the potential imprisonment term for up to 20 years and a fine up to $5,000,000 for an individual or person conducting a business or undertaking (PCBU) and up to $10,000,000 for a body corporate.
Category one offence
Importantly, while the “industrial manslaughter – simple offence” has been removed, it seems that the Category one offence will be more onerous than in other jurisdictions. This is because it does not include any element of recklessness or gross negligence, which is a key element of the offence in other jurisdictions with the model WHS Act.
In short, if a PCBU fails to comply with their duty of care and this failure causes the death of, or “serious harm” to, an individual, they will face a potential penalty if charged with a Category one offence of five years imprisonment and $680,000 (for an individual) or $3,500,000 penalty for a body corporate. Recklessness or gross negligence will not be relevant.
The passing of the Bill harmonises Western Australia’s work health and safety regime and brings it more in line with its Australian counterparts. Western Australia will also join Queensland, Victoria, the Northern Territory and the Australian Capital Territory in legislating the offence of industrial manslaughter.
Officers of organisations based in Western Australia, as well as those based in other jurisdictions but with operations in Western Australia, should review their work health and safety policies and procedures to ensure compliance with the new legislation.
Authors: Michael Selinger & Adrian Zagami
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.