The Western Australian Government has introduced its Work Health and Safety Bill (WHS Bill) in Parliament, most notably including provisions for industrial manslaughter charges.
In a statement, the State Labor Government said the industrial manslaughter provisions followed ‘significant public concern and the recommendations of two reviews’, and would carry a maximum penalty of 20 years’ imprisonment for an individual and a fine of $10 million for a body corporate.
The new laws will also make it illegal for insurance companies to indemnify entities against monetary penalties imposed under workplace health and safety laws.
The WHS Bill defines health as both ‘physical and psychological health’, aiming to further emphasise the importance of considering psychological health in the design and management of work.
It also intends to serve as a reminder that risks to psychological health must be considered alongside risks to physical health.
Industrial Relations Minister Bill Johnston said the WHS Bill would ‘modernise Western Australia’s laws, bringing it into line with other states’.
“The current legislation is spread across multiple acts and regulations – this update will bring the resources sector and general industries under the same Act, but with separate regulations,” he said.
Chamber of Minerals and Energy of WA’s (CME) Chief Executive Paul Everingham said it is pleasing to see that a number of critical recommendations made by industry have been adopted in the Bill.
“The decision to not include the WHS entry provisions in the Bill is a positive step that recognises WA and Federal industrial relations legislation already provides a pathway for WHS entry,” said Mr Everingham.
“We are also pleased with the government’s decision to remove the proposed powers for unions to bring prosecutions, a regulatory power which would have significantly undermined the integrity of the WA WHS regulator. The recent announcement to instead increase resourcing to WorkSafe WA by funding more than 20 new inspectors will be far more effective in preventing health and safety incidents.”
Western Australia is the sixth State and Territory jurisdiction to introduce legislation which creates an offence of industrial manslaughter under WHS laws.
Northern Territory’s first industrial manslaughter laws passed in Parliament
The Northern Territory Legislative Assembly last week passed the Territory’s first industrial manslaughter laws.
The new law will see all businesses, regardless of their size, face the same level of penalty if reckless or negligent conduct has caused a workplace fatality.
Previously, only individuals could be charged with manslaughter for a workplace fatality, and only under the Northern Territory’s Criminal Code.
The maximum penalty for an individual is imprisonment for life. A business found guilty of this new offence could face a maximum penalty of 65,000 penalty units or $10,075,000 under the 2019-20 penalty unit rate.
The new offence will not be applied retrospectively.
The Work Health and Safety Legislation Amendment (Industrial Manslaughter) Bill 2019 was a key recommendation from the review of workplace health and safety in the NT conducted by former ACTU senior official Tim Lyons.
Workplace manslaughter enshrined in Victorian law
The Victorian Labor Government has also made industrial manslaughter a criminal offence, under new laws passed by the Parliament.
Under the new laws, employers who negligently cause a workplace death will face fines of up to $16.5 million and individuals will face up to 20 years in jail.
The offence will fall under the Occupational Health and Safety Act 2004 (OHS Act) and will apply to employers, self-employed people and ‘officers’ of the company or organisation.
The new laws will also apply when an employer’s negligent conduct causes the death of a non-employee.
WorkSafe Victoria will investigate the new offence using their powers under the OHS Act to ensure non-compliant employers can be prosecuted.
Qld union calls for stronger laws
CFMEU Mining and Energy Queensland President Stephen Smyth has welcomed the Queensland Labor Government’s commitment to introducing industrial manslaughter laws to the mining industry, saying strong penalties were needed to send a clear message to mine operators that they will be held accountable for worker deaths caused by negligence.
Mr Smyth was pleased mining will now be covered by industrial manslaughter laws, the same as other industries.
The union will participate in consultation on the details of the industrial manslaughter legislation and other safety measures.
The widespread contracting out of statutory safety positions in mines is another important area for reform, said Mr Smyth.
“The critical safety roles of deputy and open cut examiner are now often outsourced to individual contractors,” he said.
“This practice is highly problematic as it reduces the accountability of the mine operator and makes the roles less secure. Additionally, the KPIs for these roles are often solely based on production targets rather than safety, which should be their primary focus.
“Mine operators must be required to directly employ deputies and open cut examiners.”
NSW reviews mining and petroleum health and safety laws
The NSW Government will undertake a review of mining and petroleum work health and safety laws and regulations next year.
NSW Resources Regulator Director Regulatory Programs Tony Linnane said the laws are due for review as the Work Health and Safety (Mines and Petroleum Sites) Act 2013 and Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 have been in place for five years.
“By 1 February 2020, the Work Health and Safety (Mines and Petroleum Sites) laws will have been in place five years, meaning the Act is due for review and the regulation is shortly due for automatic repeal,” Mr Linnane said.
“These laws are very important and cover the obligations that mine and petroleum site operators have to manage the risks associated with their mining activities.
The review will start in early 2020 and includes a public consultation process for stakeholder feedback, seeking to determine whether the laws are meeting their objectives to ensure safe mining workplaces.
The Resources Regulator has engaged an independent specialist, Mr Kym Bills, to lead the review. He will be guided by a steering committee and assisted by departmental policy, legal and technical advice and support.
More information, including terms of reference, are available on the Resources Regulator Have your say page.
AMMA submits member views on review of model WHS laws
Earlier this year, AMMA made a submission to Safe Work Australia’s (SWA) Consultation Regulation Impact Statement (CRIS) on the impacts of implementing the Recommendations of the 2018 Review of the Model WHS laws (2018 Review) as part of the consultation process on behalf of employers in the resources and energy industry.
AMMA provided feedback on recommendations of significant concern to members in the resources and energy industry.
AMMA’s position, consistent with other business representative groups, is that there are existing, appropriate avenues within Australian criminal law for individuals to be prosecuted for gross negligence that has led to a workplace death. A framework that focuses on punitive measures to health and safety compliance diminishes an organisations’ safety culture. AMMA maintains that continuous improvement in safety outcomes in the workplace, is best driven by cooperative, proactive initiatives to enhance safety culture, not an adversarial legal approach seeking to attribute blame and liability after an accident occurs.
AMMA will continue to support and advocate for workplace regulation that is appropriate and balanced and which does not impede productivity, freedom of association and safety in the workplace.
For further information about the submission or the 2018 Review of Model WHS Laws contact [email protected].