The future of the harmonisation project for work health and safety legislation in Western Australia is not clear.
Notwithstanding the historical Government line that the reforms will ultimately be adopted, albeit with some key differences intended to mitigate the effect on WA business, no legislation has yet been introduced to Parliament. There is also uncertainty as to the application of the reforms to the mining industry, which constitutes a significant proportion of industry in the West.
The continued delay in relation to the introduction of the model legislation has raised concerns in some quarters that the OHS harmonisation project has stalled indefinitely.
A Regulatory Impact Statement commissioned by the WA government to assess the impact of regulations and codes of practice on business has been completed but the results are yet to be announced or published.
The government position to date has been that the WA harmonised legislation will differ in four key areas:
- Penalty levels
Whilst penalties for OHS offences will likely be increased, WA will not be adopting the model legislation’s graduated enforcement scheme. The level of penalties set out in the model legislation is viewed as overly punitive, particularly in the context of small business. No specific guidance has been given in relation to the level at which penalties are proposed to be set.
- Union right of entry
Provisions relating to union official’s right of entry will not be included in the WHS reforms. Instead, WA will retain similar provisions under the Industrial Relations Act 1979 (WA) that currently regulate union official’s right of entry to investigate suspected contraventions of safety legislation.
- Health and Safety Representatives directing the cessation of work
Western Australia has indicated that they will not adopt provisions empowering HSRs to direct the cessation of unsafe work, on the basis that the right to cease work should properly remain with the individual worker. Under the current WA OHS legislation a worker has a right to cease work where they have reasonable grounds to believe that if they continued to work they would expose themselves or someone else to a serious and imminent risk or injury or harm to their health.
- Reverse onus of proof
The WA legislation will not include the reverse onus of proof that applies to allegations of discrimination on safety grounds, under which the defendant would be required to show that the dominant or substantial reason for the discriminatory conduct was not prohibited.
The Worksafe Western Australia Commissioner has stated that the Work Health and Safety Bill for general (i.e. non-mining) industry has been drafted and is likely to be introduced in 2013, subject to progress with drafting the corresponding Bill for the mining industry.
However, this stated connection between the progress of the legislation for general industry and the legislation for mining raises questions about the likely timeframe for reform, in light of uncertainty as to the extent to which Western Australia will adopt the model legislation, and particularly the regulations, in its mining industry.