Western Australia’s upper house has passed new OSH legislation creating an offence of industrial manslaughter. It is expected that the legislation will be passed by the lower house and become law in November 2020. The new laws are substantially based on the national model Work Health and Safety Bill bringing Western Australia in line with the harmonised WHS framework in other states. The new laws are supported by a number of industry specific regulations in line with the State’s unique conditions with a focus on mining and oil and gas. Key Features of the Legislation Industrial Manslaughter The Legislation includes two separate offences for industrial manslaughter: Industrial manslaughter – crime Industrial manslaughter – simple offence Maximum Penalty Imprisonment of 20 years and a fine of $5,000,000 for an individual PCBU, or a fine of $10,000,000 for a body corporate 10 years and a fine of $2,500,000 for an individual PCBU, or $5,000,000 for a body corporate Court District Court Magistrate’s Court Prosecuting Agency The Director of Public Prosecutions Prosecutor Standard of Proof High Standards of proof Prosecution must establish the person engaged in the conduct that caused the death knowing the conduct was likely to result in death, and in disregard of the likelihood Lower standard of proof Prosecution must prove the person failed to comply with a health and safety duty that caused the death of an individual Officers may also be charged with industrial manslaughter offences but additional elements of the offences must be proven, including that the conduct was attributable to any neglect on behalf of the officer, or it was engaged in with the officer’s consent. The Legislation prohibits employers from taking out insurance against fines imposed for breaches of health and safety laws PCBUs The new legislation will replace the current Occupational Safety and Health Act 1984 (WA). The new Legislation draws on the notion of persons conducting a business or undertaking (PCBUs) which is not used in the current legislation. The new legislation places the primary duty on PCBUs to, so far as is reasonably practicable, ensure the health and safety of workers and others who may be affected by the carrying out of work. The WA State Government has argued that the new laws will capture the usual employment relationship but also subcontractors and casual workers. Reporting Requirements The Legislation includes reporting requirements for ‘notifiable incidents’ such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking; Enhanced Enforcement Powers The Legislation provides for enhanced enforcement and compliance powers for WHS Inspectors. The Legislation also retains Western Australia’s peak tripartite consultative bodies, re-established as the Work Health and Safety Commission and the Mining and Petroleum Advisory Committee. The Legislation introduces a more rigorous framework establishing a general scheme for authorisations such as licences, permits and registrations e.g. for persons engaged in high risk work or users of certain plant or substances. Lessons for Employers Industrial Manslaughter legislation raises the spectre of imprisonment and massive fines for serious WHS Offences. Moray and Agnew Lawyers recommends that organisations: Urgently review work health and safety policies and procedures to ensure compliance with the legislation; Review incident reporting arrangements to ensure that any safety defects can be addressed urgently and effectively; Review key training and leadership issues in the OSH space; Ensure that safety induction regime for new employees is robust and comprehensive; and Review existing health and safety issues to identify and manage hazards or risks to safety. Further information / assistance regarding the issues raised in this article is available from Brian Jackson, Special Counsel or your usual contact at Moray & Agnew.
