The Western Australian State Government is currently seeking submissions from industry on proposed reforms to safety laws in that State.
Western Australia (WA) is the latest Australian jurisdiction to release a Bill based on the Model Work Health and Safety Bill (Model Bill), which has formed the basis for harmonised safety legislation enacted across Australia since 2012 at Commonwealth, State and Territory level, in all jurisdictions to date except WA and Victoria. The WA version of the Model Bill has been made available for public comment until 30 January 2015. It would, if enacted, involve substantial changes to the existing regime headed by the Occupational Safety and Health Act 1984.
A consultation paper has also been released by the WA Government in relation to safety law reform in the WA resources sector, which is, and will continue to be, regulated separately to general industry. The consultation paper sets out several options for reform of existing legislation, with the WA Government indicating a preference for a consolidated Work Health and Safety (Resources) Act (also predominantly based on the Model Bill), to unify the five separate pieces of legislation which currently cover mine safety, petroleum safety and major hazard facilities in WA.
Several facets of the proposed reforms depart significantly from the current WA safety regime. Most noteworthy are the following:
- A shift from the employer as main duty-holder, to a new type of duty-holder: the person conducting a business or undertaking (PCBU). This is intended to better reflect the modern Australian workplace, where the employment relationship may no longer be the prevalent method by which workers are engaged. In line with this change, the general duties under the proposed reforms are mainly owed in respect of ‘workers’, broadly defined, rather than employees.
- The imposition of a duty on company officers to exercise ‘due diligence’ to ensure compliance by the PCBU of its safety duties, by reference to specific categories of knowledge and conduct that an officer must address to discharge the duty. This constitutes a substantially increased onus on the most senior personnel within a company with regard to safety.
- New positive duties are imposed on PCBUs to consult, co-operate and co-ordinate activities with other duty-holders, and to consult with relevant workers on safety matters. This is clearly intended to drive an increased level of communication and engagement, particularly in complex working environments where numerous PCBUs are operating.
- Significant increases to penalty levels are also proposed, as well as a series of new enforcement mechanisms for the regulator.
The precise structure of the reforms is not locked in. The WA Government has stated that only following public consultation will it decide how to proceed. While it is likely that we will see the introduction of a variant of the Model Bill for general industry, and an equivalent for the resources sector, at this stage the reform process is by no means set in stone. To that end, submissions from industry may well have an impact on the outcome.