New WHS Laws for Western Australia

The harmonisation of Work Health and Safety (WHS) laws across Australia aims to reduce work related death, injury and illness. Currently all states, territories and the Commonwealth are responsible for making and enforcing their own WHS laws. Over the past 20 years there have been efforts to make WHS Regulations more consistent, by developing National Standards and Codes of Practice. The various state governments are however under no obligation to adopt these. There has nevertheless been an intergovernmental agreement where, for the first time, governments from each state, territory and the Commonwealth, have committed to the harmonisation of WHS laws.

The model WHS laws consist of the Model WHS Act, supported by model WHS Regulations, model Codes of Practice and a National Compliance and Enforcement Policy. For the model WHS laws to become legally binding they need to be enacted or passed by Parliament in each jurisdiction.

On 23 October 2014, the Western Australian Minister for Commerce, the Hon Michael Mischin MLC, tabled the Western Australian WHS Bill: 2014 and announced the opening of a public comment period for this draft legislation.

The WHS Bill (also referred to as a Green Bill) is therefore not currently law in Western Australia. It contains the core provisions of the model WHS Bill, with some modifications to suit the Western Australian work environment.

The priority of the review of the model WHS Regulations, has been to identify where they can be “modified to minimise prescription and reduce red tape, keeping the burden of compliance at an acceptable level”. The development of the Law and the Regulations has involved close consultation with the Department of Mines and Petroleum, to ensure compatibility across all WA workplaces.

The Western Australian government felt that it would be inappropriate to accept all of the proposed changes in WHS Regulations. They felt the benefits to the state could be improved by adjusting the package of proposed changes and their specific content, with emphasis on reducing costs, while still improving safety outcomes in workplaces.

The Western Australian review has been divided into two areas – the General Industry reforms and the Resource Industries (unification of safety legislation for mining, petroleum and major hazard installations) reforms.

The public consultation for the review of Model WHS Regulations, ends on 31/08/2016, so with the consultation period drawing to a close, the Act is likely to be gazetted early 2017, with the Regulations following during the subsequent 12 months.

The implementation of the new laws will be coupled with transition periods to ensure that everyone involved will have adequate time to adopt the new framework.

The Green Bill excludes a number of the model provisions which the WA Government has consistently opposed. The variations from the Model WHS laws include:

• Omitting the right of entry provisions for permit holders – provided for under Industrial relations laws
• Omitting power of Health and Safety Representatives to direct unsafe work to cease – individual workers have the right to stop unsafe work
• Removing the reverse onus of proof in relation to discrimination claims
• Omitting provisions for enforceable undertakings
• Omitting the procedure if prosecutions are not brought, thereby shortening the limitation period by 1 year
• Removing prisoners and volunteers from the definition of worker
• Inserting the concept of control into requirements for managing risks
• Omitting provisions for remedial action
• Omitting the requirement for consultation with other jurisdictions when developing Codes of Practice

There will be a requirement for the act to be reviewed every 5 years.

The State has decided to adopt the penalty provisions – the penalties being significantly higher than current penalties.

The Green Bill also adopts the positive duties of officers to exercise due diligence to ensure that they comply with their obligations. An officer is a person that holds a decision making ability within and on behalf of the organisation. The officer can be convicted or found guilty of an offence under this act relating to a duty.

While public comment is sought on all aspects of the model WHS Regulations, detailed comments are particularly sought on:

• Asbestos
• Diving work
• Electrical work
• Plant item registration

To participate, click (http://www.commerce.wa.gov.au/publications/work-health-and-safety-regulations-discussion-paper)

Whilst all types of industry will be covered by the proposed changes, the WA Government will create separate legislation, regulations and codes of conduct that are specific to the mining industry to allow more flexibility in dealing with the future needs of this sector. The timing of the mining version of the WHS laws is unknown and is still dependent on the completion of national development processes.

Author:  Janine Nicholson for myosh365

References

http://www.publicsectorsafety.wa.gov.au/occupational-safety-and-health/harmonisation-ohs-laws

http://www.commerce.wa.gov.au/sites/default/files/atoms/files/discussion_paper.pdf