In late November, the Work Health and Safety Bill 2019 (WA) was introduced to the WA Legislative Assembly. The potential Act will replace the following:
- Mines Safety and Inspection Act 1994 (WA);
- Mines Safety and Inspection Regulations 1995 (WA);
- Occupational Safety and Health Act 1984 (WA);
- Occupational Safety and Health Regulations 1996 (WA); and
- Petroleum and Geothermal Energy Safety Levies Act 2011 (WA).
Industrial Manslaughter (also called ‘Corporate Manslaughter’ in the United Kingdom)
Unlike other jurisdictions with one single charge of industrial/workplace manslaughter, WA is attempting to introduce two separate charges for industrial manslaughter under sections 30A and 30B of the Bill. Industrial manslaughter was introduced in Queensland to their Work Health and Safety Act after the Dreamworld fatalities. Industrial manslaughter for Queensland, however, does not apply to mines or quarries (governed by the separate Mining and Quarrying Safety and Health Act 1999 (Qld). Victoria and Northern Territory will introduce industrial manslaughter in July this year. NSW have rejected it and SA haven’t touched it.
Potential WA Industrial Manslaughter Charges
30A – ‘Industrial Manslaughter – Crime’
The highest penalty for a WHS offence with imprisonment of 30 years and a fine of $5m for an individual or $10m for a body corporate. Prosecutions will be handled by the Department of Public Prosecutions and heard in the District Court. A higher standard of proof of evidence is required to establish a person engaged in conduct that caused the death of an individual if knowing the conduct was likely to result in death and in ‘disregard of the likelihood’.
30B – ‘Industrial Manslaughter – Simple Offence’
A lesser penalty for a WHS offence with imprisonment of 10 years and a fine of $2.5m for an individual or $5m for a body corporate. Simpler elements of proof of evidence is required and cases heard in the Magistrate’s Court.
Please note that WA volunteers and unincorporated associations (i.e. NFP’s) cannot be charged with industrial manslaughter, however, must enact duties implied under 27-29 of the Bill.
Insurance Coverage Nullified
Similar to the recent Work Health and Safety Bill 2019 (NSW), WA has introduced under section 272A that an individual or body corporate insurance policy cannot be used for coverage against WHS fines. The WA Government heavily increased fines to seven figures for WHS breaches back in 2018.
Additional Potential Changes from Occupational Safety and Health Act 1984 (WA)
- The additional potential changes from the current WA OSH Act include:
- ‘Person Conducting Business or Undertaking’ now owe a ‘primary duty of care’ outlined in Division 2.
- ‘Officers’ (being LAC’s, supervisors, managers) now have increased accountability and can be prosecuted individually for their action/inaction resulting in a WHS breach.
- Additional governance measures are required on ‘upstream’ organisations – any party involved in plant, substances, structures (etc) (designers, manufacturers, importers).
- Reduction of current three year prosecution period/window to two years.
- Between six and twelves months post-incident, the public can request a regulator to prosecute.
The Work Health and Safety Experts provide a range of work health and safety consultancy services to assist organisations ensure legislative compliance. Please feel free to get in touch with any questions.
The updated bill can be located: https://www.parliament.wa.gov.au/Parliament/Bills.nsf/8F320741B83643A8482584BF000CF89B/$File/Bill155-1.pdf