Model Work Health and Safety (WHS) laws implementation update

September 30 2016

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WA is reviewing the model WHS Regulations 2011. A public consultation process, which started on 1 June 2016 and ended on 31 August 2016, is currently underway to enable all participants in WA workplaces to have input into the new legal framework. After this process, and once any necessary Cabinet approval is obtained, the new laws will then be introduced into Parliament for consideration and passage.

The Green Bill contains the core provisions of the model WHS Act with some amendments, and excludes a number of the model provisions that the Western Australian Government has consistently opposed.

Key proposed variations from the model WHS laws include:

  • Omitting the right of entry provisions for work health and safety entry permit holders—this is already provided for under industrial relations laws
  • Omitting the power of Health and Safety Representatives to direct unsafe work to cease—individual workers retain the power to stop unsafe work
  • Removing the reverse-onus of proof in relation to discrimination claims
  • Omitting provisions for enforceable undertakings
  • Omitting the procedure if prosecutions are not brought, thereby shortening the limitation period by one year
  • Removing prisoners and volunteers from the definition of ‘worker’
  • Inserting the concept of ‘control’ into requirements for managing risks
  • Omitting provisions for remedial action
  • Omitting the requirement for consultation with other jurisdictions when developing Codes of Practice, and
  • Requiring a review of the Act after five years.

Contrary to the Western Australian Government’s previous position, it proposes to adopt the model WHS Act penalty provisions. These penalties are significantly higher than current penalties in WA for corporate and individual offenders.

The Green Bill also adopts the positive duty of ‘officers’ to exercise ‘due diligence’ to ensure that their PCBU complies with its obligations.