New laws passed through Parliament
Contents
- Introduction
- Why Change?
- Penalties and sanctions
- New powers for representatives
- Overview of changes
- Further information
1. Introduction
Legislation to bring about major changes in occupational safety and health (OSH) laws were passed through the Western Australian Parliament. The legislation took effect in two stages. New penalties and expansion of duty of care obligations came into effect on 1 January 2005, while changes to the powers of safety and health representatives and the establishment of a safety and health tribunal occured on 4 April 2005.
The changes result from the 2002 review by former Australian Industrial Relations Commissioner Robert Laing.
They reflect the view that penalties for offences have been too lenient - described by Robert Laing as 'manifestly inadequate'; and that those in the workplace are best placed to deal with safety and health matters.
In his report, Mr Laing said that for employee representatives to be effective and encouraged to take on the obligations associated with their role, they should be given authority and decision making power.
2. Why change?
Workers' compensation claims data shows that each year almost 19,000 West Australians become so ill or are so badly injured at work that they need one or more days off work. The figures mean that on average a worker is injured every 25 minutes.
Although there have been improvements (about a 60 per cent reduction since 1989), the shift towards more casual work, labour hire and selfemployment, clouds the issue. More workers now fall outside the coverage of the workers' compensation system, so the real rate of injury and disease is difficult to assess.
In his report, Mr Laing suggested that without a new approach and new vigour, the rate of injury and disease might plateau or even begin to rise again. His suggestions for change were wide ranging, with 107 recommendations, most of which were accepted by the State Government.
3. Penalties and sanctions
Under the new legislation, maximum penalties for OSH offences have more than doubled, reflecting the community's view of the seriousness of such failure of care.
The previous maximum penalty was $200,000 for a general duty of care breach by a non-employee, whether a corporation or an individual. The highest penalty awarded to date is $150,000 in 2004.
With the changes which came into effect on 1 January 2005, a corporation convicted of the most serious offence can now be fined up to $500,000 for a first offence. A subsequent offence attracts a maximum penalty of $625,000.
For the first time, courts will be able to send an offender to prison for 'gross negligence' - that is, where there was a disregard for the likelihood of death or serious harm occurring and, where death or serious injury did result from the contravention.
The other significant change relates to non-monetary penalties in the form of enforceable undertakings.
Courts will be able to make an order allowing an offender either to pay a monetary penalty, or to enter into an undertaking with the WorkSafe Commissioner to take action, such as remedying or publicising details of the offence or punishment imposed. The value of the undertaking would be roughly equivalent to the level of the penalty. Failure to comply will be an offence and if convicted, the offender would be required to pay the original penalty as well as a further penalty for the new offence.
4. New powers for representatives
Once the changes come into effect on 4 April 2005, elected and qualified safety and health representatives will be able to issue provisional improvement notices (PINs) where they believe there is a breach of the Occupational Safety and Health Act 1984 or Regulations.
A PIN is similar to an improvement notice issued by a WorkSafe inspector, except for its 'provisional' nature. Before issuing a PIN, the safety and health representative will have to consult with the person to whom the notice is to be issued, about the matter that needs remedying.
There are checks and balances in the system to guard against misuse of the power, although the experience in other states where PINs have been in operation for some time, suggests that initial fears about the abuse of this power have been shown to be unfounded.
To support the introduction of PINs, the introductory training course for safety and health representatives has been reviewed.
The full texts of the Occupational Safety and Health Legislation Amendment and Repeal Act and the amended Occupational Safety and Health Act 1984 can be accessed from the State Law Publisher's website.
5. Overview of changes
From 1 January 2005
- Expansion of general duties of care - to make sure those who have control at a workplace are responsible for the safety and health of those in their care. Covers new ways of working, such as labour hire arrangements;
- Substantial increases in penalties, particularly for corporations;
New provisions enabling prosecution when offences relate to government agencies;
From 4 April 2005
- More flexible processes for electing safety and health representatives and establishing safety and health committees;
- Provision for safety and health representatives to issue PINs;
- Establishment of a Safety and Health Tribunal under the auspices of the Western Australian Industrial Relations Commission, to hear appeals and related matters (including questions of entitlement to pay and conditions under the Occupational and Safety Health Act 1984 issue resolution provisions); and
- Establishment of a Mining Industry Advisory Committee, to advise and make recommendations to the Minister responsible for the Mines Safety and Inspection Act, and the Minister responsible for the Occupational Safety and Health Act 1984, as well as to the Commission for Occupational Safety and Health. This committee will replace the existing Mines Occupational Safety and Health Advisory Board.
6. Further information
For more information and/or assistance please contact the WorkSafe Call Centre.