WA introduces WHS bill while NT and Victoria adopt industrial manslaughter laws

In a big week nationally for workplace health and safety (WHS):

• The Western Australian Government introduced a modernised safety bill to Parliament, loosely based on the model WHS laws in place in most other jurisdictions. The proposed legislation includes two offences of industrial manslaughter, a new duty of care for WHS service providers and fines for insurance policies, which purport to indemnify offenders against WHS fines. If passed, it will leave Victoria as the only jurisdiction not to have adopted the model WHS laws.
• The Northern Territory Parliament passed a bill to introduce industrial manslaughter, bringing with it the potential for life imprisonment for company officers.  
• The Victorian Parliament passed its own bill to introduce workplace manslaughter offences, including the highest fine for body corporates under any WHS legislation in Australia.  

WA takes a big step towards WHS modernisation

On 27 November 2019, the WA Parliament introduced the Work Health and Safety Bill 2019 (WA) (WHS Bill), largely mirroring the national model Work Health and Safety Bill enacted by most Australian jurisdictions in 2011 and 2012.

Significant changes proposed under the WHS Bill include:

• duty of care obligations imposed on persons conducting a business or undertaking (PCBU) rather than employers
• due diligence obligations placed on WHS service providers and company officers
• the voiding of insurance and indemnity arrangements for the payment of WHS fines between WHS duty holders and insurers, and
• a two-level industrial manslaughter offence.

Many of these changes follow recommendations made by Marie Boland, who conducted a comprehensive review of the content and operation of the model WHS laws in 2018. The Review of the model WHS laws: Final report (Boland Report) included 34 recommendations designed to enhance the WHS framework and ensure the objects of the model WHS Act are being achieved.

In addition to the WHS Bill, the WA Government has announced plans to increase the number of WorkSafe inspectors from 99 to 120, and to purchase 16 additional vehicles. PCBUs operating in WA should therefore expect a higher volume of workplace inspections from WorkSafe inspectors.

Duty of care obligations

Like other States that have adopted the model WHS laws, if the WHS Bill is passed, PCBUs will have a primary duty of care to workers and other persons. Under the WHS Bill, a PCBU must ensure, so far as is reasonably practicable, the health and safety of workers and other persons (including workers engaged, or caused to be engaged, by the PCBU as well as workers whose activities in carrying out work are influenced or directed by the PCBU, as set-out in s 19).

This duty cannot be transferred to another person, however more than one PCBU can owe a duty of care to a worker—e.g. if a labour hire worker is assigned to a host employer, the host-employer and the labour hire company will owe duties under the WHS Bill.

Unlike other jurisdictions with the model WHS laws, the WHS Bill proposes a new duty to be imposed on providers of WHS services. Those providing WHS services must ensure, so far as is reasonably practicable, that their services will not put persons at a workplace at risk—e.g. if a recommendation on how to eliminate risks to WHS is made by a WHS consultant, and it ultimately results in a person being placed at risk, the duty may be breached.

The definition of “WHS services” specifically excludes regulators, legal advisors and emergency services workers.

Insurance and indemnity arrangements

Similar to a recent proposed amendment to the NSW WHS Act, the WHS Bill would make it an offence for a person to enter into, or offer to enter into, an insurance policy or indemnity arrangement for the payment of WHS fines. The WHS Bill also voids any insurance policy that seeks to indemnify a person for the payment of WHS fines. This follows a recommendation in the Boland Report, which suggested that such indemnity arrangements between WHS duty holders and insurers has the undesired consequence of reducing compliance with WHS Act obligations.

A breach of this provision will carry a maximum penalty of a $55,000 fine for an individual, or $285,000 for a body corporate.

Industrial manslaughter offences

The WHS Bill proposes to introduce two separate industrial manslaughter offences. Both offences are linked to the existing WHS duties but require additional elements to be satisfied by the prosecution. The first found in s 30A, “Industrial manslaughter – crime”, will apply where a PCBU engages in conduct “knowing that the conduct is likely to cause the death of [an] individual" and "in disregard of the likelihood of death". This offence carries a maximum penalty of 20 years’ imprisonment and a $5,000,000 fine for an individual as well as $10,000,000 for a body corporate.

The second industrial manslaughter offence, s 30B “Industrial manslaughter – simple offence”, does not require the prosecution to establish that the PCBU knew the relevant conduct was likely to cause a death, only that the PCBU’s conduct caused the death. This offence carries a maximum penalty of 10 years’ imprisonment and a fine of $2,500,000 for an individual, as well as a fine of $5,000,000 for a body corporate.

Both offences may also be committed by officers of a PCBU. To be found guilty of either offence, it must be established that the PCBU committed the offence and that the PCBU’s conduct was either “attributable to any neglect on the part of the officer” or was engaged in with the officer’s “consent or connivance”.

Industrial manslaughter introduced in the Northern Territory and Victoria

Elsewhere, the NT Parliament passed the Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 (NT) on 27 November 2019, which, when it commences, will insert an industrial manslaughter offence with the possibility of a life sentence into that jurisdiction’s model WHS laws. Unlike the proposed WA industrial manslaughter offence, the NT offence is not separated into two offences.

In the NT, a person commits the industrial manslaughter offence if:

• the person has a health and safety duty
• the person intentionally engages in conduct
• the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed, and
• the person is reckless or negligent about the conduct breaching the health and safety duty, causing the death of that individual.

The prosecution does not have to prove that the PCBU intended the conduct to cause the death of the individual to whom the health and safety duty is owed.

The NT offence carries a maximum penalty of life imprisonment for an individual, or 65,000 penalty units (currently $10,205,000) for a body corporate. The NT offence will commence on a date to be fixed by Gazette.

Victoria has also recently introduced industrial manslaughter offences into its OHS laws with the Victorian Parliament passing the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Vic) on 26 November 2019. The Bill amends the current Occupational Health and Safety Act 2004 (Vic) to include “workplace manslaughter” offences applying to body corporates and company officers.

Under the amended Occupational Health and Safety Act 2004 (Vic), a person will commit workplace manslaughter when they engage in conduct that is negligent, in breach of an applicable duty owed to another person, and where the conduct causes the death of a person at or near a workplace.

A breach of the offences will carry with it a maximum penalty of 20 years imprisonment for an individual or a fine of 100,000 penalty units (currently $16,522,000) for a body corporate. The offences will be law by 1 July 2020 at the latest, or earlier by proclamation.

We recently prepared a more detailed summary of the Victorian offences here.

As of the time of writing, there are currently four Australian States and Territories with industrial manslaughter laws either currently in effect or soon to be introduced. These are Queensland (in effect), Victoria (passed), ACT (in effect) and the NT (passed). It remains to be seen if the WHS Bill will pass the WA parliament. We will keep you updated as the Bill progresses.

We have also updated our recently prepared table regarding each of the States, Territories and Commonwealth progress regarding the introduction of industrial manslaughter – you can access it here.