Will WA’s Work Health and Safety laws achieve greater harmony with model WHS laws in 2026?

Some aspects being examined under the WA Review reflect variations or alternative approaches under the current WA WHS Act:

• Section 26A - WHS service providers: The duty, which does not appear in the model WHS Act, applies to WHS services provided to a PCBU and tailored to the specific circumstances of that workplace. If the WHS service is misused or not used for its intended purpose by the recipient of the services, the WHS service provider cannot be held responsible. 
  
  Despite this arguably limited operational scope, WorkSafe WA observe that there have been suggestions some WHS service providers have ceased providing such services because of the potential legal risks.
   
• Section 82 - WHS dispute resolution timeline: WA requires a WorkSafe inspector to make a decision to resolve a WHS issue within two-days. Such matters can be complex and time-consuming, and often a resolution cannot be achieved within a two-day period. If an inspector seeks an extension of time to make a decision, this must be done within the two-day period by application to the Work Health and Safety Tribunal. 
  
  This system is leading to frustrations with all parties involved in the dispute. WorkSafe WA suggests Queensland’s two-pathway approach may be an option for WA, and SWA is apparently developing a dispute resolution proposal modelled on that approach. 
   
• Infringement notices: The WHS Act does not currently allow for infringement notices, unlike all other model law jurisdictions. WorkSafe WA says guidance on a possible infringement notice penalty scheme could be taken from New South Wales and Queensland, although there are varied approaches taken in all the other model jurisdictions. While its submission to the Model Review, WorkSafe WA largely defends its decision not to implement a scheme, it appears to accept that a scheme may be achievable by restricting infringement notices to offences that are most easily proven, objective and prescriptive.

Changes to the incident notification regimes is a focus of both reviews. SWA has already introduced changes to the model WHS Act to expand and clarify the relevant provisions. Although the WA Discussion Paper confirms that WA is not bound to adopt the model changes, it acknowledges that WHS harmonisation will be a key factor during consideration of whether to implement the changes.

Some non-harmonised aspects raised in the Model Discussion Paper are not addressed in WA’s Discussion Paper, but nonetheless relevant. WorkSafe WA has provided its views on them as part of its submission: 

• Workplace entry permits: The WA system of workplace entry permits is not contained within the WA WHS Act but sourced from the Industrial Relation Act 1979. While approaches in other jurisdictions reflect the model right of entry provisions, there is now material divergence between almost all systems. Apart from noting it did not adopt the model provisions, WorkSafe WA makes no comment on the variations to the systems introduced by other jurisdictions.
• Industrial manslaughter: The general lack of consistency in how the offence of industrial manslaughter is applied across all jurisdictions, including in relation to the elements of the offence, duty holders covered and maximum penalties available. WorkSafe WA allude to the unique circumstances that it faced when developing and introducing the offence in support of its particular approach.
• Psychosocial risk management: The inconsistent application of the hierarchy of controls to the management of psychosocial risks is also flagged by SWA. In this regard WA, along with only Tasmania, maintain adoption of the model WHS Regulations that stated psychosocial risks do not have to be managed in accordance with the hierarchy of control. In its submission, WorkSafe WA confirms this position and support for the harmonised approach originally agreed to by all jurisdictions.
• Sexual and gender-based harassment: Queensland is the only jurisdiction to introduce a requirement that when managing risk of sexual and gender-based harassment, a PCBU must have regard to the characteristics of a worker and matters relating to the work environment when determining controls and the mandatory preparation of a prevention plan. In its submission, WorkSafe WA stated that it is ‘adapting and adopting’ the Code of Practice: Sexual and gender-based harassment, which addresses these issues and is considered sufficient and that mandatory prevention plans are not supported, partly because they divert attention away from implementing underlying controls.

As observed by SWA in the Model Discussion Paper, the initial commitment by jurisdictions to maintain national consistency over time in regulating WHS, and to not seek to implement amendments to their own laws unless those changes were endorsed by WHS ministers, appears to have been eroded. 

It says a range of factors have contributed to the emergence of jurisdictional variations that go beyond those necessary to accommodate local legislative framework and institutional differences, including:

• the adoption of jurisdictional specific review recommendations,
• political factors,
• emerging hazards, and
• the occurrence of significant industrial events.

SWA claims these variations are ultimately undermining the agreed harmonisation objectives.

In its submission to the Model Review, WorkSafe WA noted a range of matters in relation to the limits to harmonisation including:

• Substantive WA variations, such as not adopting right of entry laws in the WA WHS Act were made after consultation with Western Australians, and through the usual process of negotiation, discussion, Cabinet approval, legislative drafting and Parliamentary debate, and that apart from consultation, SWA do not undertake these steps – understandably, which may lead to variances.
• Elected officials need to be responsive to the needs of their electorate, whereas SWA’s processes for regulatory proposals are slow and challenging.
• WA’s unique circumstances, particularly in geography and industrial mix are not always considered in discussions of new and amended clauses in the model WHS Act.
• Significant amendments to model WHS laws can proceed without unanimous agreement from WHS Ministers and this may lead to a lack of proper analysis. This can conflict with WA’s Better Regulation Principles, including a state-based Regulatory Impact Assessment, the outcomes of which may result in departure from harmonisation.