Further consultation on the harmonised (general) WHS legislation

The introduction of the general industry Work Health and Safety Bill (WHS Bill) in Western Australia is likely to be further delayed, following the State Government's call for further public consultation on the WHS Regulations before the WHS Bill is presented to parliament. WA remains the only state other than Victoria (whose current legislation forms the basis for the model legislation) that is yet to adopt the harmonised laws.

Following the announcement of the latest consultation, the Government has recommended businesses don't start training on the WHS Bill, as the proposed Regulations could differ significantly from the national model. There are also plans for a transitional period in which businesses can implement policies under the new legislation before it is enforceable. WorkSafe WA Commissioner, Lex McCulloch, has stated the WHS Regulations will be scrutinised to identify where modifications can be made to minimise prescription, reduce red tape and provide the most effective framework for WA's unique work environment.

The WHS Bill differs from the model legislation in that health and safety representatives will not have power to direct unsafe work to cease. The WHS Bill also does not provide for entry permits or include the reverse burden of proof on those accused of discriminatory conduct.

Harmonised WHS mining and resources legislation on track

The WHS (Resources) Bill (WA) (Resources Bill) is projected to be imminently introduced, and is on track to take effect from 1 January 2017. The Resources Bill will unify safety legislation for mining, petroleum and major hazard facilities under one regulator, the Department of Mines and Petroleum (DMP). As a result, six Acts will be consolidated into one and the responsibility for major hazard facilities will be transferred from WorkSafe WA to DMP.

In February, the DMP released a Decision Regulatory Impact Statement on the draft Resources Bill, which recommended that:

  • the Resources Bill use the same definition of "reasonably practicable" that is in the model WHS Acts to maintain consistency of terms across different jurisdictions
  • the DMP continue to work in consultation with the Department of Commerce to ensure the Resources Bill and WHS Bill align
  • prosecutions for breaches of the legislation begin within two years after the regulator is first notified of the offence, which is a reduction from the current legislation's three-year period
  • the Resources Bill should ensure the duties imposed on PCBUs (a person or an organisation conducting a business or undertaking) that design, manufacture, import or supply plant, substances or structures, cannot be interpreted as retrospective, and
  • an obligation be placed on officers of a corporation to exercise due diligence and that individuals who are in control of safety budgets, such as Chief Financial Officers, are likely to fall within the definition of officers under the proposed legislation.

The WHS (Resources) Regulations will be open for a consultation period and it is proposed the Regulations will be gazetted by 1 December 2016. The Resources Regulations will contain generic provisions, as well as sector-specific aspects to cover different industry-requirements.

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