Resumed from 16 September. The Deputy Chair of Committees (Hon Martin Aldridge) in the Hon Alannah MacTiernan (Minister for Regional Development) in charge of the bill.

Comments and speeches by various members 

Hon ALISON XAMON: As I indicated in my contribution to the second reading debate, I am concerned that there has been a potential oversight in this legislation. I would like to see whether the government is able to explain whether that is the case. As I said before, page 9 of the explanatory memorandum states that householders who engage people other than employees for home maintenance and repairs—for example, bringing in tradespeople— are not intended to be interpreted as being a person conducting a business or undertaking. However, the concern is that a strata company doing exactly the same thing may be considered to be a PCBU unless it has been specifically exempted by regulation. That is concerning because we are simply talking about a different type of home ownership, so it should be able to be captured in the same way. During the course of the second reading debate I referenced the model regulations that specifically exempt them, yet I note that this bill does not contain an exemption and that the government has made no commitment to date to prescribe an exemption. I will move the amendment to ensure that it is clear that the bill is not intended to capture strata bodies. I move —

Page 12, after line 15 — To insert —

(7A) A strata company that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.

(7B) Subsection (7A) does not apply if the strata company engages any worker as an employee.

Comments and speeches by various members 

Hon ALANNAH MacTIERNAN: We are not going to die in a ditch on this, but we will not be supporting the amendment because it is an unnecessary departure from harmonisation. It will add a level of complexity. We are more interested in moving on and getting through the bill.


Amendment put and a division taken, the Deputy Chair (Hon Robin Chapple) casting his vote with the ayes, with the following result —

Ayes (18)

Noes (9)

Amendment thus passed.

Hon ALISON XAMON: I move —

Page 12, after line 16 — To insert —

strata company means a body corporate established under section 14 of the Strata Titles Act 1985 on registration of a strata titles scheme;

Amendment put and passed.

Clause, as amended, put and passed.

Comments and speeches by various members 

Clause 7: Meaning of worker —

Hon NICK GOIRAN: I suggested in my contribution to the second reading debate that one of the clauses that needs amendment is clause 7. By way of explanation, I draw to members’ attention the work of the Standing Committee on Legislation in its forty-third report, in particular finding 6, which states —

Clause 7(1)(i) of the Work Health and Safety Bill 2019 allows regulations to prescribe additional classes of workers to be captured by the Bill, including Part 2.

Comments and speeches by various members 

Hon ALISON XAMON: I would like to make it clear from the outset that if this amendment is moved, I will not support it, and I will make it clear why. Ordinarily, I would try to make sure that we mitigate any government overreach by over-prescription through regulations, as opposed to enabling provisions to be incorporated within the statute. In this instance, I have to go back to the substance of what this bill is trying to achieve. It is trying to make sure that people are kept safe when they are working. I am aware that the nature of how people are employed is changing constantly. Indeed, this is often the subject of interpretation within our industrial relations system. Therefore, it is quite important that we leave open the opportunity for any new class of worker who may be identified, particularly through the Industrial Relations Commission, to be automatically incorporated within our occupational health and safety laws. After all, this bill is ultimately about making sure that as many people as possible are kept safe when working.

Comments and speeches by various members 

Further consideration of the clause postponed, on motion by Hon Alannah MacTiernan (Minister for Regional Development).

Comments and speeches by various members 

Clause 19: Primary duty of care —

Hon NICK GOIRAN: Clause 19 is entitled “Primary duty of care”. Part 2 of the bill seeks to set out various health and safety duties. Division 1 deals with introductory matters and contains two subdivisions, which we have dealt with. We are now on division 2, “Primary duty of care”. I see from the document that the minister tabled earlier today that there are some minor amendments that are of no particular consequence to us this afternoon, but the minister made some reference to the emphasis in the bill that “health” includes mental health. Why was it considered necessary in Western Australia to add that note? I take it that that is not something the other jurisdictions have felt to be necessary?

Comments and speeches by various members 

Hon ALISON XAMON: I am also interested in teasing out the scope of how mental health is incorporated into duty of care. I am particularly interested in using as my reference point the code of practice for fly in, fly out workers, because that has been a really important framework through which the potential mental health and suicide risks associated with FIFO work have been clearly articulated. There is also an obligation on employers to ensure that they take all reasonable and practical measures to minimise those risks. Is it envisaged that the various psychosocial hazards or risk factors will be incorporated within the existing wording? I have a proposed amendment on the supplementary notice paper, but whether I choose to move it will depend on how confident I feel that the full scope of what I think is necessary has been captured. For example, it refers to the need to address work demands and issues around extended working hours, working a large number of consecutive days, roster lengths and shift rotations. Is it envisaged that that will fall within the scope of this provision?

Hon ALANNAH MacTIERNAN: If I can get these various bits right, under the model legislation, health means physical and psychological health, and clause 19, “Primary duty of care”, makes clear the sorts of risks that might be included in that regard. Given that definition, we think that the provision and maintenance of a work environment without risks to health and safety would take into account and be broad enough to encompass the sorts of concerns that the member outlined. If we look at all these through the lens of the fact that health includes psychological health, we would interpret all these duties of care to include psychological wellbeing. I am told that under the current legislation, it is assumed that it covers mental health, but this is perhaps just a clearer articulation of it. We now have the “Mentally healthy workplaces for fly-in fly-out (FIFO) workers in the resources and construction sectors” code of practice, so hopefully it will become a standard code of practice under this legislation.

Hon ALISON XAMON: As I have mentioned, that is precisely the document that I am speaking about, because that was a bit of a watershed moment in identifying the sorts of psychosocial hazards that can potentially exist within a workplace. I am keen to see the degree to which it is anticipated this will be captured as a broad whole within the legislation. Apart from work demands, which I have just spoken about, the code of practice refers to low levels of control over things like sleep schedules and accommodation preferences; inadequate support from supervisors or co-workers; a lack of clarity around roles; poor organisational change management; low recognition and reward; poor organisational justice; the risks associated with not appropriately managing poor environmental conditions; the challenges posed by remote and isolated work; dealing with inappropriate behaviours such as bullying, harassment and discrimination; managing exposure to traumatic events; and issues of fatigue. I want to be assured that those things are very much required to be on the radar of any employer as potential occupational health and safety issues that need to be managed. I am seeking confirmation that the way it is currently interpreted will be as broad as that, and I hope it is.

Hon ALANNAH MacTIERNAN: I am a bit unclear from the member’s question about what she wants from us. This bill will clearly enshrine psychological health. No other standard codes of practice in that area are currently being prepared. All the issues that the member has articulated are very much part of the consideration around providing a safe workspace. I am not quite sure about the particular legislative response. We have not made any decisions about whether we will go beyond the FIFO code of practice. We want that to continue. A decision has not been made on whether we need to develop other codes of practice that might take these issues forward. The clear thing is that under this model legislation, it might arguably be a bit easier to do that and to perhaps look at the codes that have been adopted in other states that could be incorporated in this state.

Hon ALISON XAMON: I am seeking confirmation that this legislation, if it is not amended by the amendment I have on the supplementary notice paper, will be broad enough to incorporate the issues that I have raised that are already enshrined within the FIFO code of practice as matters that potentially need to be considered by employers in order to maintain the psychological and psychosocial good health of their employees.

Hon ALANNAH MacTIERNAN: The advice that I have been given is that the answer is yes. Because we are specifically prescribing a duty of care in relation to the psychological health of workers, this will require an employer to have consideration of the psychological health of the workforce that emanates from the work practices that are of concern to the member. I have been advised that the answer to her concern is yes, these sorts of matters will be required of an employer.

Hon ALISON XAMON: Based on that clarification, I see no reason to move ahead with the proposed amendment on the supplementary notice paper, so I will not do that. I seek one final clarification on this. Although we have acknowledged that there is a duty of care to employees around psychosocial issues, there is no intention to remove the ordinary autonomy and privacy of workers in their own downtime. In no way will the duty of care extend to an employer being able to compel a worker not to undertake behaviours in their own time that may be risky, such as drinking, smoking or anything like that. In no way will this encroach on personal privacy when workers are not actually working.

Hon ALANNAH MacTIERNAN: There is obviously a limit to that. As the member knows, in many workplaces there is drug and alcohol testing. A person might have downed cans of beer in their own time but, obviously, if, as a consequence, they register an alcohol level above zero when they go onto the workplace, that can create an issue. The issue really is how a worker presents at the workplace. It may well be that, in some instances, what they were doing before they entered the workplace is relevant. If the member considers that to be an invasion of privacy, it might be. I am not quite sure whether the member is asking whether an employer has the right to say that an employee cannot go to a party. We do not see that this legislation will give employers any greater reach into a person’s privacy than those circumstances of drugs and alcohol.

Hon ALISON XAMON: Thank you, minister. Of course, the situation the minister just described is one of an employee being at work. Clearly, the requirement that an employee is to effectively have zero alcohol or drugs within their system, as it should be for all employees, is when they are at work. I suppose I am curious about psychosocial risks. I want to ensure that even if an employer is concerned about, and does not approve of, an employee engaging in behaviours in their own time that the employer might view are not necessarily good for the mental health of that employee, the employee retains their autonomy and privacy to continue those behaviours, as long as they do not engage in them at work. The concern raised with me is that although it is important and necessary to include psychosocial risks under occupational health and safety legislation, we do not want it to be misunderstood to mean enabling an employer to tell an employee what they can and cannot do with their own lives in their own time, even if it puts their mental health at risk. In the same way that an employer would not be able to tell an employee not to undertake physical risks in their own time.

Hon ALANNAH MacTIERNAN: I do not think it is anticipated that that will happen. However, I will say that a proper balance has to be struck here. If a person engages in a range of private activities that are likely to lead to them being psychologically incapacitated at work, there must be some protection for the employer so that they are not held liable due to the employee going to work in perhaps a debilitated frame due to something they had elected to do. This is certainly not seeking to give employers reach into the private life of people. Obviously, in determining whether a duty of care has been breached, we must have regard to what is reasonable from the employer’s point of view, and the employee will have to accept responsibility for harm that might befall them if they have not come to work in a robust state. There must be a balance here; it is not intended to give employers the right to reach in. However, obviously, in an assessment of any situation about whether an employer has breached their duty of care, there may well be consideration of an employee’s conduct.

Comments and speeches by various members 

Progress reported and leave granted to sit again, pursuant to standing orders.


Parliamentary Type: