VIDEO: The great big OH&S scam — Stonehouse

Picture: Atlas House

This amendment was foreshadowed somewhat in my contribution to the second reading debate. For the benefit of members, I will quickly explain what it does. The government’s proposed changes to the Occupational Safety and Health Act 1984 purport to bring the act into line with the federal government’s model Work Health and Safety Act. But in reality the changes tackle only one aspect — standardising the increase in fines payable for infringements.

Video: Parliament of Western Australia

The model act, as well as legislation in the majority of jurisdictions across Australia, including New South Wales, South Australia, Queensland and Victoria, allows that when a breach has been alleged, a company, or the alleged offender, can opt to negotiate a written enforceable undertaking with the relevant authority, rather than having the case dealt with by the courts.

That is not currently the case in Western Australia, where an undertaking can be entered into only after the case has been tried at law and guilt assigned. I feel it would be beneficial to balance the government’s proposed increase to penalties with a power to accept enforceable undertakings prior to cases coming to court, saving a considerable amount of time and money while making the OHS system less adversarial, more uniform and more focused on safety outcomes.

My proposed amendment has been modelled on the legislation currently operating in Victoria, tailored to suit the particular institutional and legislative circumstances in Western Australia.

I can give an example of how enforceable undertakings work in other jurisdictions, to give a fuller picture for members who are unfamiliar with them as we do not really see them used too often in WA.

On 30 June 2013, a worker employed by Great Northern Hotel in Sydney, New South Wales, sustained very serious injuries while cleaning beer lines, which burst, spraying acid. SafeWork New South Wales investigated, determining that Bambora Pty Ltd and Keep it Cummin Pty Ltd had contravened sections 19(1), 19(2), 32, 38 and 39 and David Richards contravened section 27(1) of the NSW Work Health and Safety Act 2011 in relation to the three entities listed. The company’s director signed a written enforceable undertaking with SafeWork New South Wales, which included a commitment to establish a staff training and compliance module on beer line cleaning safety, to apply a physical change to the beer line cleaning procedure and equipment, to produce an industry cellar safety awareness campaign and to make a donation to the Save Sight Institute.

The monetary value of these combined undertakings was assessed as being about $72 646.73. SafeWork New South Wales gave the following reasons for accepting the enforceable undertaking: the circumstances in this case were determined to be exceptional; the nature of the alleged contravention and the actions taken by the directors were assessed as being appropriate for consideration of an undertaking; the strategies proposed in the undertaking were assessed as likely to deliver long-term sustainable safety improvements in the workplace, industry and community; and the undertaking addressed the requirements contained in the New South Wales government’s enforceable undertakings guidelines for appraising a work health and safety undertaking.

I go to my amendments. I might speak briefly to my second amendment while I am at it, because they work hand in hand. Part II of the act deals with the establishment of a WorkSafe WA commissioner and the powers invested in that individual. It therefore seems the most suitable place to include an expansion of those powers to include the option of accepting written enforceable undertakings prior to the commencement of legal proceedings. New section 18AA is titled “Commissioner may accept undertakings for alleged offences”.

This is the powers component of the amendment, setting out the powers granted to the commissioner in accepting enforceable undertakings prior to the commencement of legal proceedings. New section 18AA(1) allows the commissioner to accept, by written notice, a written undertaking given by a person in connection with a matter relating to an alleged contravention by the person of the act or its regulations.

New subsection (2) exempts allegedly level 4 contraventions from being dealt with by way of an undertaking. This is intentional. This is because level 4 contraventions are the most serious breaches and these will continue to be dealt with by the courts under my amendments. New subsection (3) allows that a person lodging such a written undertaking may withdraw or vary it at any time, but only with the commissioner’s written consent. New subsection (4) allows that neither the commissioner nor a person authorised by the commissioner under section 52 may bring a proceeding for an offence against the act or its regulations constituted by the alleged contravention to which the undertaking relates. In other words, a person cannot enter into an undertaking in good faith, only to be later charged in court with the same alleged breach.

I will foreshadow the other amendment, because, as I said, they go hand in hand. New section 18AB is titled “Enforcement of undertakings for alleged offences”. This is the enforcement component of the amendment, allowing for the manner in which enforceable undertakings are to be enforced once entered into.

New section 18AB(1) allows that safety and health magistrate, as defined by the act, has jurisdiction to hear and determine the application under this new section. This aspect could alternatively be covered through an amendment to section 51C, but for both convenience and neatness it seems more logical to confer jurisdiction here.

New subsection (2) allows that the commissioner, upon discovering that a person has contravened an undertaking previously accepted, may apply to a safety and health magistrate for enforcement of the undertaking, therefore allowing for court proceedings in the event of a contravention.

New subsection (3) allows that having had an alleged contravention referred to the courts, a safety and health magistrate, upon being satisfied that the contravention has occurred, may issue an order enforcing the person to comply with the undertaking and/or make another order that the court considers appropriate.

It is my view that enforceable undertakings will go some way towards encouraging cooperation rather than confrontation. I have given the example of New South Wales, which is making an investment into the rectification of problems, rather than spending money on costly court proceedings.

The decision to accept an undertaking will always rest with the WorkSafe Western Australia Commissioner, who must be satisfied that it is the best and most appropriate outcome. Enforceable undertakings are already accepted in Western Australia. However, they are accepted only after a conviction. In my view, that is somewhat counterintuitive, because the court proceedings will have concluded by that time. Enforceable undertakings are also an integral part of the model Work Health and Safety Act, which the government is keen to align Western Australia most closely with.

It is my contention that this amendment will more fully align Western Australia with the model Work Health and Safety Act produced by Safe Work Australia and with our sister jurisdictions. It will also allow for the potential streamlining of breach allegations; reduce the burden on the judiciary; and cut an unnecessary amount of red tape from the current system. Nothing in this amendment will interfere with the existing right of the courts to accept an enforceable undertaking post verdict, as laid out in sections 55H to 55R of the Occupational Safety and Health Act. I would argue that this proposed addition to section 18A of the act is entirely in keeping with the objective of the act as laid out in section 5A(2)(g).