October 16, 2018

October 16, 2018

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October 15, 2018

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Increases to Penalties under WA Occupational Health and Safety Legislation

Background

In mid-2017, the Western Australian Government (McGowan Government) introduced legislation that proposed to increase the penalties for offences under the Occupational Safety and Health Act 1984 and the Mines Safety and Inspection Act 1994 (OSH and MSI Acts).

This legislation was passed by the Western Australia parliament in August 2018 and commences on 3 October 2018.

This alert is designed to bring your attention to the increases in penalties and stands as a reminder of what duties exist under the OSH and MSI Acts.

Duties under the OSH and MSI Acts

 Person  Duty
Employer / person in control of workplace  Must, so far as reasonably practicable, provide and maintain a safe workplace for workers (employees and contractors) and other persons (customers and end users).
Director, manager, secretary or other officer of a body corporate guilty of an offence under the Acts

A  failure of an employer / person in control of a workplace to provide and maintain a safe workplace can be attributed to any director, manager, secretary or other officer as an individual if:

  • The offence occurred with the consent or connivance of that individual
  • was attributable to the neglect of that individual.
Employee / worker Must personally take reasonable care to ensure that their acts do not adversely affect themselves or others and must co-operate and comply with all relevant safety systems in place. This duty of care increases for more senior employees such as managers and supervisors.

New Penalties for a Breach of Duties

Depending on the severity and culpability of the breach, there are various levels of penalties a person may be subject to for a failure to meet their duties pursuant to the OSH and MSI Acts. The increase in maximum penalties under the OSH and MSI Acts for first time offences for a body corporate is summarised below.

 Penalty level      

Previous OHS/MSI Act Penalty          New OHS/MSI Act Penalty
Level 1 
The Level 1 penalty applies where an offence is committed for which a penalty is not otherwise provided in the legislation.
$50,000  $450,000
Level 2 
The Level 2 penalty applies where there has been a contravention of the legislation but the contravention did not cause the death of, or serious harm to, an employee.

$200,000    

 $1.5 million
Level 3 
The Level 3 penalty applies where there has been a contravention of the legislation and the contravention caused the death of, or serious harm to, an employee. 
$400,000      $2 million
Level 4 
The Level 4 penalty applies where the contravention is committed in circumstances of gross negligence.
 $500,000    $2.7 million

The maximum penalty for an individual convicted of an offence will increase from a AUD250,000 fine and imprisonment for 2 years to a AUD550,000 fine and imprisonment for 5 years.

What Does this Mean for Companies?

The company, its officers and its employees all owe duties pursuant to the OSH and MSI Acts and therefore face the new penalties if they fail to provide such a duty.

Therefore, it is important that all persons are familiar with a company’s and their own obligations pursuant to the OSH and MSI Acts.

Copyright 2018 K & L Gates

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About this Author

Duncan Fletcher, KL Gates, Australia, industrial relations lawyer, labor regulation attorney
Partner

Mr. Fletcher has been working with clients in the practice area of labour, employment and workplace safety for more than 15 years. He has expertise in industrial relations and labour regulation, individual employment relationships and contracts, preparation and enforcement of workplace policies and procedures, equal opportunity, discrimination, harassment, workplace safety and training. Based in Perth, Duncan has worked on matters throughout Australia.

He has been involved in large scale industrial relations and employment litigation and in the...

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