WHS overhaul as Western Australia set to adopt the harmonised WHS laws

Premier Mark McGowan said in statement that he is pleased the legislation, which was first introduced in November 2019, has finally passed the Upper House and commented on the importance of the Bill in modernising WA’s outdated WHS laws.

Some of the key changes the Bill will introduce are:

• the offence of industrial manslaughter with maximum penalties of 20 years’ imprisonment and $10 million fines for bodies corporate;
• a further increase in penalties above those introduced in October 2018;
• the broad concept of a "person conducting a business or undertaking" (PCBU) will replace the concept of an "employer";
• that the primary duty of care for a PCBU will be to ensure, so far as is reasonably practicable, the health and safety of workers and others who might be affected by their undertakings;
• the broad concept of a "worker" which includes contractors, subcontractors, and the employees of contractors and subcontractors;
• company officers of PCBUs will have ongoing due diligence obligations;
• expanded powers for inspectors during investigations;
• a prohibition on individuals and corporations from entering into insurance policies that seek to cover WHS fines imposed under the WHS Act;
• the ability for WHS inspectors to resolve disputes between parties; and
• a specific duty of care for persons who provide services relating to work health and safety (eg. occupational hygienists, WHS consultants).

The Bill still requires approval from the Lower House to endorse the Upper House's amendments, which is anticipated to take place on 3 November 2020. The Bill is expected to come into force early in 2021 once Parliament has finalised the Bill's supporting WHS regulations.

The Bill does not strictly mirror the model WHS laws, as Western Australian has adopted a number of recommendations made in Safe Work Australia's 2019 review of the model WHS laws, as well as some unique provisions that the other harmonised jurisdictions have not enacted. Once the Bill comes into force, Victoria will remain the only Australian jurisdiction not to have adopted the national model WHS laws.