Shooters, Fishers and Farmers MLC Rick Mazza said he was deeply disappointed that amendments he proposed to the Work Health and Safety Bill 2019 to increase the threshold test for category 1 manslaughter offences from "a failure to comply with a health and safety duty" to "gross negligence", didn't achieve majority support in the Upper House.
The Nationals WA didn't back the amendment.
The government's new clause 31 provides for up to five year's jail and a fine of up to $680,000 for individuals and $3.5 million for body corporates for the low threshold offences of "a failure to comply with a health and safety duty".
"This could have significant unintended consequences," Mr Mazza said.
"Employers and company directors could be jailed and/ or face bankruptcy for an offence that they had not anticipated could occur.
"I understand the trauma suffered by families who have lost loved ones to workplace accidents.
"The amendments I was seeking to make would have provided balance for both workers and employers."
Mr Mazza said the high threshold manslaughter offences which provided for up to 20 years' jail in addition to fines of $5m for an individual and $10m for a body corporate required the test of reckless negligence and deliberately exposing workers to harm.
"That's fair enough, those convicted of offences under that section of the act should be liable for tough penalties," Mr Mazza said.
"What is very troubling with the low threshold category 1 offences is that small businesses, family farming operations, commercial fishers and any other employer or company director could face serious penalties for something they did not deliberately or knowingly intend, potentially criminalising accidents.
"These businesses and undertakings are now exposed to jail time and heavy fines, which I believe will have a chilling effect on enterprise, leading employers to question the hiring of future employees or even if they will stay in business."
Mr Mazza said safety in the workplace was something everyone must be striving for however, education was the key.
"I am not convinced these low threshold category 1 offences will necessarily improve safety in workplaces," Mr Mazza said.
"Gross negligence is the standard test being applied in Victoria, Queensland, the Australian Capital Territory and the Northern Territory and it could have easily been applied in Western Australia.
"The Boland final report into the effectiveness of work health and safety laws also recommended the inclusion of gross negligence."
Liberal agriculture spokesman Steve Thomas has called on The National Party to explain why it voted against the amendment, which he said would have "given greater protection to farmers against Labor's industrial manslaughter laws".
"The amendment moved by Mr Mazza would have limited the risk carried by farmers of being jailed for farm accidents to those that involved "gross negligence" rather than the lower threshold of failure of duty," Dr Thomas said.
"Farmers convicted under the government's bill would now also face fines of up the $3.5m."
Dr Thomas said it was "understandable that the Labor Party and the Greens, both union dominated and frequently anti-business, including farmers, would oppose this sensible amendment, but for the National Party to increase the risk to farmers is hard to fathom".
"To do so without explanation is not acceptable," he said
"The chance to offer that greater protection to farmers now appears to be lost, and I for one would like to know why?"
The Nationals agriculture spokesman Colin de Grussa said, "The Nats are an independent party and are not answerable to the Libs".
Mr de Grussa said the Work Health and Safety Bill 2019 was "complex legislation and hard to explain".
He said in the course of the debate and the amendments made to the bill "the government would have liked to make it easier to prosecute, but we defeated that amendment and we think we have struck a fair balance in line with community expectations - basically keeping the status quo".
"Our actions haven't made it any easier to prosecute - or lowered the bar - we have ensured that it is the same standard as it is currently," Mr de Grussa said.
He said in considering the position of the party that had to take into account all sectors.
Comment by Colin De Grussa, Agricultural Region MLA, The Nationals WA
SAFETY in the workplace is paramount and nobody should have to put themselves at grave risk just to earn a dollar to support their families.
The Labor government has brought legislation to State Parliament that will significantly change workplace health and safety laws in WA.
Their proposed changes have generated significant concern and discussion across various industries across our State, including the agricultural sector.
A majority of the changes are in line with the model Work Health and Safety laws developed nationally in back in 2010.
Each State enacts its own laws based on the model, however, the Labor government has brought forward a bill that deviates from the national standard on a number of fronts.
One part in particular, clause 30B, has caused concern in the agricultural industry and The Nationals have been consistent in our opposition to it, believing it would drastically lower the bar for prosecuting workplace deaths while handing out huge penalties in both jail time and fines.
The Nationals received briefings from numerous stakeholders who said clause 30B should be removed.
There were also serious issues raised on procedural fairness with the regulator also being the prosecutor, as well as the jurisdiction in which these offences would be prosecuted.
The Nationals WA supported the removal of clause 30B in line with industry concerns.
The Labor government then attempted to sneak this back into the legislation through a proposed change to a different clause.
We did not support this either.
This is in line with the overwhelming views of industry, including the agricultural sector, which would have been left at risk if this tactic had been successful.
Of course there's more than one clause to this legislation, in fact there are more than 400 and many more amendments from government and others need to be considered.
Ordinarily, members of Parliament provide some notice of their proposed amendments by listing them on a supplementary notice paper to give their colleagues fair warning, a chance to consult with stakeholders and, of course, to discuss with other MPs.
At the very last moment, without briefing or prior notice, Rick Mazza MLC brought forward an amendment he claimed would be more consistent with the model law.
It was literally handwritten on a piece of notepaper in the middle of the debate and moved on the floor of the House.
What Mr Mazza attempted to do was insert the words "in circumstances of gross negligence" into a test for one of the offences in the bill, in line with a report.
While this appears to be fairly straightforward, the issue at hand is in the interpretation.
The Legislative Council's Standing Committee on Legislation (of which I am a member) heard evidence on the matter of the lack of a clear and precise meaning for "gross negligence" in WA and across other Australian jurisdictions.
A lack of clarity and precision is not something we want in legislation, especially such significant legislation as this.
There was a genuine fear that Mr Mazza's amendment would have made it harder than it currently is for someone to be prosecuted for a death in the workplace and that is not something The Nationals could support.
We do not support the over-reach of the Labor government's proposed changes and we blocked them from going through, but we are a party that also takes a common-sense approach.
If the change was passed it would have meant that if your loved one had lost their life at work, a charge for that death would have been harder to prosecute than it is under our current laws.
The Nationals cannot accept going backwards in protecting Western Australians from harm or death at work.
To support the winding back of our current laws is unconscionable.
And that is what Mr Mazza's amendments would have done.
Whether this was his intention or not - Mr Mazza can explain - The Nationals believe in a fair work health and safety framework.
The legal test for this particular clause as it stands is in line with those that currently apply under our existing Occupational Safety and Health laws.
As such, we believe that we have struck the correct balance in preserving the existing laws while guarding against the extremely worrying overreach that had originally been proposed by the Labor government.
It is disappointing that the Liberals, particularly Steve Thomas, have been critical of The Nationals' common-sense approach to the amendments and the Bill itself.
Unfortunately, since becoming the latest Liberal to take on the shadow agricultural portfolio, Mr Thomas has forgotten he is in opposition and has spent more time playing cynical politics by trying to tear away at The Nationals' policies and positions than holding the Labor government to account.
As a Member of Parliament, I have an obligation to all Western Australians to ensure legislation is given due consideration, is appropriate and fit for purpose.
The Nationals voted in line with community and industry expectations on this bill and will continue to engage constructively with all stakeholders.
Our community also expects others in the Upper House to follow those principles.
