Introduction

The Western Australian State Government has last week announced that it intends to develop and implement a version of the model WHS laws adapted specifically for WA, and has approved the development of a new Resources Safety Bill to consolidate the existing safety legislation that covers the resources industry.

“Tailored” model WHS laws for general industry

In a speech to the Legislative Assembly on 12 August 2014, Western Australian State Attorney-General Michael Mischin announced that the “tailored” WHS bill will reflect the core provisions of the model WHS laws, with refinements intended to reduce red tape, address WA-specific requirements, and “maintain the compliance burden at an acceptable level”.  The WHS Bill is intended to be released as a green bill, inviting public comment for a period of three months.

The WA Government has long expressed support in principle for the concept of consistent occupational health and safety laws across Australia, but showed reluctance towards a blanket adoption of the model WHS laws. 

Mr Mischin observed that the harmonisation process has been plagued by delays and controversy, but also recognised the inherent advantage of having uniformity across jurisdictions to “assist all workplace participants, from large and small employers to contractors and workers, to understand what is required of them”. 

In order to meet the WA’s regulation impact assessment process and to address the potential impact on the State, its commerce and workplaces, in December 2012 the WA Government commissioned consultants Marsden Jacob Associates to produce a regulatory impact statement (RIS). The RIS, which the Attorney-General tabled in Parliament and has since been published on the website of WorkSafe WA last week, reported that:

  • the benefits and costs of harmonisation will differ across types of business,
  • WHS regulation suitable for large businesses is not equally suitable for small businesses, and
  • a big business regulatory approach is much more likely to fail small businesses, which account for 96% of businesses and 49% of employment across WA, and potentially lead to a decline in safety.

Mr Mischin also referred to the Council of Australian Governments’ current review to investigate ways in which the model WHS laws could be improved, with a particular focus on reducing red tape.  That review, in respect of which Norton Rose Fulbright is advising the Federal Government, is due for completion by the end of 2014.  Mr Mischin indicated that “the outcome of that review, together with comments on the green bill and the Western Australian regulatory impact statement … will provide a foundation upon which the Government can consider the best WHS regime for Western Australia.”

New Resources Safety Bill

Last week, in alignment with this announcement, the WA Government also announced approval for development of a new Resources Safety Bill, to ‘incorporate the best elements of the National Mine Safety Framework and the nationally developed model WHS laws”.

Minister for Mines and Petroleum Bill Marmion said that “the best aspects of the model laws will be adopted with those which do not suit the unique Western Australian context amended or removed as necessary”, guided by an intention to “place a greater focus on risk management and to be less prescriptive”, with “the onus . . . placed on industry to demonstrate they understand hazards and have control measures in place.” The Government is hopeful of enacting the legislation by mid-2016.

Plans for reform of resources safety have been on foot for some time. On 1 April 2014, the Department of Mines and Petroleum announced that it would convene a Ministerial Advisory Panel (MAP) to assist in the development and implementation of major legislative reform of resources safety. The MAP’s members include representatives from industry, government and the unions, as well as Norton Rose Fulbright partner and Head of Occupational Health Safety and Security, Michael Tooma.

Union criticism

In a public statement, Meredith Hammat, the Secretary of UnionsWA, responded to the announcements with criticism over the proposal to hold another consultation process over work health and safety law reform, noting the 200 workplace deaths that have occurred in WA since the harmonisation process started in 2008. Ms Hammat stated “we have suffered through years of indecision while work fatalities are rising in WA but falling elsewhere in Australia” and referred to the latest data on Work-Related Traumatic Injury Fatalities released by SafeWork Australia in July 2014, which “shows that Australia-wide work-related fatalities have fallen over the past eleven years but are now on the rise in WA for the first time since 2006”.

The way ahead

These latest developments have come after a long period of speculation and uncertainty as to the future of safety legislation reform in Western Australia. Now that the WA government’s intention to proceed with reform has been confirmed, attention can shift to the content of that reform and its ramifications for business.