Numerous changes have and are due to take place within WA work health and safety laws (WHS laws). The WA Government has announced several key changes to take place over the course of the next few years, amid concerns that the WHS laws in WA are “outdated”, having remained unchanged in 33 years.

The proposed changes will align WA WHS laws with the national model WHS laws, introduced in 2011. To date, all Australian jurisdictions baring Victoria and WA have implemented the model laws.

Public Sector Reforms

Changes that have already taken place include the recent consolidation of the Department of Mines and Petroleum and the Department of Commerce to the new Department of Mines, Industry, Regulation and Safety. This amalgamation took place amongst public sector reforms intended to create a more collaborative and efficient means of service delivery.

Increase in Penalties

A significant change set to take place is an increase in penalties for safety offences under the Occupational Health and Safety Act 1984 (WA). The change in penalties will be the first in over a decade. The intention of increasing penalties not only fuels incentive to comply with WHS laws, but also helps meet community expectations, with the Government aware of the fact that the failure of WA to consistently update their WHS laws has led to penalties for safety offences being significantly lower than those in the model WHS laws.

The amendments to the OHS penalties will result in a significant increase of up to 800%. Currently, Level 1 safety offences attract a maximum penalty of $50,000, and Level 4 offences for first time offenders attract a maximum penalty of $500,000. The amendments will increase the maximum penalty for Level 1 offences to $456,000, and Level 4 offences to $2.7 million. The maximum term of imprisonment for first time offenders of Level 4 offences is also set to increase, from 2 years to 5 years.

Model WHS Bill

Following the increase in penalties, it is intended that a single WHS Bill will replace several pieces of legislation, ensuring compliance with the model WHS laws. The Government intention to draft a Bill reflecting the model WHS laws was announced in July 2017, with Minister Bill Johnston reporting that the new Bill was an “important step in updating and improving the regulation of workplace health and safety”.

The intended Bill will replace the Occupational Health and Safety Act 1984; the Mines Safety and Inspection Act 1994; and the Petroleum Geothermal Energy Safety Levies Act 2011. The Government has proposed a timeline of 2 years to develop the new Bill, which should be introduced in Parliament in 2019. Given that the resources sector uses a risk based approach, the new Bill will be supported by regulations specific to industries within the resources sector; however, a safety case approach will be continued by major hazard facilities.

Consultation on the proposed Bill will be undertaken by the Ministerial Advisory Panel, created by Minister Johnston in July 2017. The Panel is chaired by Stephanie Mayman, the current Chair of the Commission for Occupational Health and Safety, and consists of Government representatives and industry bodies. The Panel will advise the Minister on a variety of matters, in order to develop the content of the new WHS Act. In particular, the Panel will have regard to:

  • aligning the new Act with the model WHS laws;
  • the appropriate approach with regards the Dangerous Goods Safety Act 2004 (WA);
  • union ability to initiate prosecutions; and
  • due diligence requirements of directors and senior management.
  • Preparing for the New Bill

    Employers and Insurers alike need to be aware of these proposed changes, especially given the extensive increase in penalties for WHS offences. Given the recent attention on WHS laws, and the generous timeline for the new Bill to be presented in Parliament (2019), it is important for employers to keep abreast of any further proposals regarding legislative amendment, as there is always the potential for further changes following initial announcements. Ultimately, it is important those affected prepare for the proposed changes, to ensure compliance and ultimately, reduce any potential risk.