It has been a long time in the making, but after much delay, the WA Government has taken a significant step towards potentially adopting the model workplace health and safety laws currently in place in all States and Territories other than WA and Victoria, with the release of the draft Work Health and Safety Bill 2014.
The release of the draft or "Green" Bill was announced on 23 October 2014 by Commerce Minister Michael Mischin. The Minister confirmed that the Bill will be subject to a public comment period, which will run from 23 October 2014 until 30 January 2015.
In tabling the Bill in Parliament, the Minister commented that the Bill represented an attempt by the Government to create a version of the model legislation "based on the best features of the model commonwealth bill, but adapted and suited to the Western Australian working environment".
Although the announcement is the closest the Government has come so far to signifying an adoption of the model WHS laws in WA, the Minister also emphasised that the tabling of the Bill should not be construed as "locking in a transition" from the current legislation in WA (being the Occupational Safety and Health Act 1984) to the model WHS laws. Rather, he confirmed that the purpose of releasing the Bill for public comment is to "assess the merits of otherwise moving from the existing laws to this variant of the model WHS laws". At the end of the public consultation period, the Government has indicated that it will review the public comments received and consider its options in terms of whether a variant of the Bill will be implemented, the OSH Act will be enhanced by adopting some provisions of the Bill, or the current status quo will remain in place.
Although the core provisions of the Bill reflect those of the national model WHS Act, aspects of the model laws have been modified. As previously foreshadowed, parts of the model WHS Act opposed by the WA Government, such as provisions relating to unions' right of entry, the ability of health and safety representatives to stop work and the reverse onus of proof for claims of discrimination, have been left out of the Bill. However, it should be noted that the Bill has retained the level of penalties contained in the model WHS Act, which are considerably higher than under the OSH Act, despite the Government earlier indicating that the penalty levels would not be adopted on the grounds they were overly punitive.
In addition to the changes already indicated, the Minister confirmed that a number of other adjustments had been made to the model WHS Act, including:
- the exclusion of volunteers from the definition of "worker";
- removing the option for a person to enter into an enforceable undertaking with the regulator in lieu of prosecution for an alleged contravention;
- removal of the power for inspectors to issue infringement notices; and
- removal of the requirement for businesses to keep a record of all notifiable incidents for at least five years.
Despite the changes flagged by the Minister, there is little doubt that if the Bill or significant parts of it are ultimately adopted in the WA, businesses will be required to meet health and safety obligations that go further than under the current regime, such as the personal duty of company officers to exercise due diligence to ensure that the company is complying with its statutory obligations, and the duty to consult with other duty holders.
Given the implications for employers in WA, interested parties should review the Bill and submit comments before 30 January 2015 if they want their views to be heard. As noted, whether or not the Bill or large parts of it are adopted in WA may depend a great deal on what feedback is received through the public consultation process.