26 February 2020
The Western Australian parliament is debating the proposed new Work Health & Safety Bill 2019 (Bill), which is intended to make the State’s work health and safety (WHS) laws more consistent with the rest of Australia. The laws will largely adopt the model WHS Act, as well as implement some recommendations from the Boland Review, including industrial manslaughter laws and making insurance for penalties unlawful.
The Explanatory Memorandum sets the context for the Bill. It states that on 12 July 2017, the Premier announced that work would commence to develop modernised WHS laws for Western Australia. The new laws were said to be aimed to:
As a whole, the Bill does reflect 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. This 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 persons in the workplace at risk. The Bill gives examples of where a WHS Service Provider may owe a duty of care, including if they are involved in testing of plant but they fail to identify risks, or if the recommendations they give on eliminating risks are inadequate. This duty holder provision was abandoned by the other states and territories when it was originally proposed in 2011 so it will be interesting to see whether it remains. The Bill also picks up a Boland Review recommendation of making insurance for penalties unlawful.
This duty holder provision was abandoned by the other states and territories when it was originally proposed in 2011 so it will be interesting to see whether it remains. The Bill also picks up a Boland Review recommendation of making insurance for penalties unlawful.
Proposed inclusion of industrial manslaughter offenses
As with Queensland, Victoria and the ACT, the Bill introduces offences of industrial manslaughter following the recommendations of the Boland Review. But differently, the Bill includes two separate offences for industrial manslaughter:
Officers may also be charged with either or both industrial manslaughter offences with the same penalties for an individual PCBU. For an officer to be guilty of an offence, the prosecutor must establish that the PCBU’s conduct was attributable to any neglect on behalf of the officer, or it was engaged in with the officer’s consent or connivance. This wording reflects the current provisions for officer liability in section 55 of the Occupational Safety and Health Act 1984. Given the seriousness of the offence, the prosecutor must also prove that the officer knew that the PCBU’s conduct was likely to cause the death, and that the conduct was in disregard of that likelihood.
The Bill is likely to be vigorously debated in the Western Australian Legislative Council in March, including concerns about the two industrial manslaughter offences.
Under the model WHS laws, there are three categories of offence and, in Queensland, Victoria and the ACT, there is a single industrial manslaughter offence (in the ACT this is contained in separate legislation).
However, the offences under the Bill, including the new “Industrial Manslaughter – Simple Offence”, significantly modifies the structure of the model WHS Act. On the other hand, the “Industrial Manslaughter – Crime” offence is less controversial and seeks to replicate the traditional industrial manslaughter offence.
According to the Bill, a PCBU is guilty of the offence if:
The standard of proof that the PCBU ‘knows’ that the conduct is likely to cause the death is high.
The “industrial manslaughter – simple offence”, however, appears to go to a much lower standard of proof while retaining significant penalties. This offence appears to elevate 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”. However, no element of recklessness or disregard of the likelihood of death is required to be proven. Simply, a breach of a duty of care that leads to a death will result in the individual PCBU being exposed to significant penalties, including 10 years imprisonment and a fine of $2.5 million for the individual, or $5 million for a corporate body.
The Bill then proceeds to remove from Category one any conduct not resulting in actual harm. A Category one offence under the WHS Bill extends to where a PCBU or individual recklessly engages in conduct that exposes an individual to a risk of death or serious injury or illness, without reasonable excuse. This broad offence is restricted under the Bill as there must be serious harm actually caused to an individual. Therefore, this offence cannot be prosecuted if no serious harm occurred, even if there was a real risk of it occurring. But it can be brought if harm is caused, even in the absence of recklessness.
By way of example, if a PCBU exposed its workers to hazardous substances because of a failure to maintain plant or equipment and those workers died or suffered serious harm, then the PCBU could be fined up to $3.5 million while an officer could face five years in jail and/or a $680,000 fine. This would be the case irrespective of whether the PCBU knew that the conduct was likely to cause the death of the workers. If no actual harm was caused, however, then there is no offence in this category.
It is only under Category two that the reference to a risk of exposure becomes relevant again and a PCBU can be charged even if no harm occurs, as long as the exposure to risk can be proven. So in the above example, if the hazardous substances could not be proved to have harmed the workers, then a charge could still be brought under this category. And Category three remains the same as the model WHS Act, being a simple failure to comply with a duty of care.
It will be important to watch the debate regarding the proposed Bill, particularly in respect of the industrial manslaughter laws. This will be particularly the case for officers of organisations based in other jurisdictions but with operations in West Australia.
Author: Michael Selinger
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.