Western Australian Numbered Acts Western Australian Numbered Acts After section 23B
the following Divisions and Division heading are inserted —
“
Division 3 — Certain workplace situations to be treated
as employment
23C. Terms used in this Division
In this
Division —
“business” includes the operations of
a public authority;
“public authority” means —
(a) a
Minister of the Crown acting in the Minister’s official capacity;
(b) a
State Government department, State trading concern, State instrumentality or
State agency; or
(c) any
other body or person, whether corporate or not and including a local
government, that under a written law administers or carries on a social
service or public utility for the benefit of the State or a part of the State.
23D. Contract work arrangements
(1) This section
applies where a person (the
"principal") in the course of trade or business engages a
contractor (the "contractor") to carry out work for the principal.
(2) Where this section
applies, section 19 has effect —
(a) as
if the principal were the employer of —
(i)
the contractor; and
(ii)
any person employed or engaged by the contractor to carry
out or assist in carrying out the work concerned,
in relation to matters
over which the principal has the capacity to exercise control; and
(b) as
if —
(i)
the contractor; and
(ii)
any person referred to in paragraph (a)(ii),
were employees of the
principal in relation to matters over which the principal has the capacity to
exercise control.
(3) Where this section
applies, the further duties referred to in subsection (4)
apply —
(a) as
if the principal were the employer of —
(i)
the contractor; and
(ii)
any person employed or engaged by the contractor to carry
out or assist in carrying out the work concerned;
and
(b) as
if —
(i)
the contractor; and
(ii)
any person referred to in paragraph (a)(ii),
were employees of the
principal.
(4) The further duties
mentioned in subsection (3) are —
(a) the
duties of an employee under section 20; and
(b) the
duties of an employer under sections 23G(2) and 23I(3).
(5) An agreement or
arrangement is void for the purposes of this section if it purports to give
control to —
(a) a
contractor; or
(b) a
person referred to in subsection (2)(a)(ii),
of any matter
that —
(c)
comes within section 19 or 23G(2); and
(d) is a
matter over which the principal has the capacity to exercise control,
but this subsection
does not prevent the making of a written agreement as mentioned in
section 23G(3).
(6) A purported waiver
by a contractor of a right that arises directly or indirectly under this
section is void.
(7) Nothing in this
section derogates from —
(a) the
duties of the principal to the contractor; or
(b) the
duties of the contractor to any person employed or engaged by the contractor.
23E. Labour arrangements in general
(1) This section
applies where —
(a) a
person (the "worker") for remuneration carries out work for another person
(the "person mentioned in subsection (1)(a)” ) in the course of
trade or business;
(b) that
person has the power of direction and control in respect of the work in a
similar manner to the power of an employer under a contract of employment;
(c)
there is no contract of employment between the worker and that person; and
(d)
neither section 23D nor section 23F applies.
(2) Where this section
applies, section 19 has effect as if —
(a) the
person mentioned in subsection (1)(a) were the employer of the worker;
and
(b) the
worker were the employee of that person,
in relation to any
matter that —
(c)
comes within section 19; and
(d) is a
matter over which that person has the capacity to exercise control.
(3) Where this section
applies, the further duties referred to in subsection (4) apply as
if —
(a) the
person mentioned in subsection (1)(a) were the employer of the worker;
and
(b) the
worker were the employee of that person.
(4) The further duties
mentioned in subsection (3) are —
(a) the
duties of an employee under section 20; and
(b) the
duties of an employer under section 23I(3).
(5) An agreement or
arrangement is void for the purposes of this section to the extent that it
purports to give control to the worker of any matter that —
(a)
comes within section 19; and
(b) is a
matter over which the person mentioned in subsection (1)(a) has the
capacity to exercise control.
(6) This section
applies despite anything to the contrary in, or any inconsistent provision of,
an agreement, whether made orally or in writing.
(7) A purported waiver
by a worker of a right that arises directly or indirectly under this section
is void.
(1) In this
section —
“agent” —
(a)
means a person that carries on a business of providing workers to carry out
work for clients of the person; and
(b)
includes a group training organisation as defined in section 7(1) of the
Industrial Relations Act 1979 ;
“worker” includes an employee or a
contractor.
(2) This section
applies where, under a labour hire arrangement, work is carried out for
remuneration by a worker for a client of an agent (the
"client") in the course of the client’s trade or business.
(3) A labour hire
arrangement exists where —
(a) an
agent has for remuneration agreed with the client to provide a worker to carry
out work for the client;
(b)
there is no contract of employment between the worker and the client in
relation to the work;
(c)
there is an agreement (which may be a contract of employment) between the
worker and the agent as to the carrying out of work including in respect of
remuneration and other entitlements; and
(d) that
agreement applies to the carrying out of the work by the worker for the
client.
(4) Where this section
applies, section 19 has effect as if —
(a) each
of the agent and the client were the employer of the worker; and
(b) the
worker were an employee of each of the agent and the client,
in relation to any
matter that —
(c)
comes within section 19; and
(d) as
regards —
(i)
the agent, is a matter over which the agent has the
capacity to exercise control; or
(ii)
the client, is a matter over which the client has the
capacity to exercise control.
(5) Where this section
applies, the further duties referred to in subsection (6) apply as
if —
(a) each
of the agent and the client were the employer of the worker; and
(b) the
worker were an employee of each of the agent and the client.
(6) The further duties
mentioned in subsection (5) are —
(a) the
duties of an employee under section 20; and
(b) the
duties of an employer under section 23I(3).
(7) This section
applies despite anything to the contrary in, or any inconsistent provision of,
an agreement, whether made orally or in writing.
(8) A purported waiver
by a worker of a right that arises directly or indirectly under this section
is void.
Division 4 — Duty relating to certain
employment accommodation
23G. Duty of employer to maintain safe premises
(1) In this
section —
"residential premises" —
(a)
means residential premises that are situated outside —
(i)
a townsite within the meaning in section 26(1) of
the Land Administration Act 1997 ; and
(ii)
the metropolitan region as defined in section 6 of
the Metropolitan Region Town Planning Scheme Act 1959 ;
and
(b)
includes land and outbuildings that are intended to be used in connection with
the occupation of the premises.
(2) Where —
(a) an
employee occupies residential premises that are owned by or under the control
of the employee’s employer; and
(b) the
occupancy is necessary for the purposes of the employment because other
accommodation is not reasonably available in the area concerned,
the employer must, so
far as is practicable, maintain the premises so that the employee occupying
the premises is not exposed to hazards at the premises.
(3)
Subsection (2) does not apply if the occupancy is pursuant to a written
agreement containing terms that might reasonably be expected to apply to a
letting of the residential premises to a tenant.
(4) This section does
not apply to the occupation of residential premises by an employee who is
employed at a workplace referred to in section 4(2).
(1) If an employer
contravenes section 23G(2) in circumstances of gross negligence, the
employer commits an offence and is liable to a level 4 penalty.
(2) If —
(a) an
employer —
(i)
contravenes section 23G(2); and
(ii)
by the contravention causes the death of, or serious harm
to, an employee occupying premises as mentioned in that section;
and
(b)
subsection (1) does not apply,
the employer commits
an offence and is liable to a level 3 penalty.
(3) If —
(a) an
employer contravenes section 23G(2); and
(b)
neither subsection (1) nor subsection (2) applies,
the employer commits
an offence and is liable to a level 2 penalty.
(4) In proceedings
against a person for an offence under subsection (1) or (2) it is a
defence if the person proves that the death or serious harm, as the case may
be, would not have occurred if the employee had taken reasonable care to
ensure the employee’s own safety and health at the premises concerned.
(5) An employer
charged with an offence under —
(a)
subsection (1) may, instead of being convicted of that offence, be
convicted of an offence under subsection (2) or (3); or
(b)
subsection (2) may, instead of being convicted of that offence, be
convicted of an offence under subsection (3).
23I. Notification of deaths, injuries and diseases
(1) In this
section —
“business of an employer”
means —
(a) the
conduct of the undertaking or operations of an employer; and
(b) work
undertaken by an employer or any employee of an employer;
“business of a self-employed person”
means —
(a) the
conduct of the undertaking or operations of a self-employed person; and
(b) work
undertaken by that person.
(2) This section
applies where —
(a) at a
workplace, or at residential premises to which section 23G(2) applies, an
employee incurs an injury, or is affected by a disease, that —
(i)
results in the death of the employee; or
(ii)
is of a kind that is prescribed;
or
(b) at a
workplace, a person who is not an employee incurs an injury in prescribed
circumstances that —
(i)
results in the death of the person; or
(ii)
is of a kind that is prescribed,
in connection
with —
(iii)
the business of an employer; or
(iv)
the business of a self-employed person.
(3) The relevant
person must —
(a)
forthwith; or
(b) as
otherwise provided by the regulations,
notify the
Commissioner in the prescribed form of the injury or disease giving such
particulars as may be prescribed.
(4) The relevant
person is the employer concerned where —
(a)
subsection (2)(a) applies; or
(b) the
person incurs the injury in connection with the business of an employer.
(5) The relevant
person is the self-employed person concerned where the person incurs the
injury in connection with the business of a self-employed person.
(1) If an employer or
self-employed person contravenes section 23I(3), the employer or
self-employed person commits an offence.
(2) In proceedings for
an offence under subsection (1) against a person who is taken by
section 23D(2) to be an employer it is a defence if the person proves
that subsection (4) applies.
(3) In proceedings
against a person for an offence under subsection (1) that relates to an
injury mentioned in section 23I(2)(b) it is a defence if the person
proves that subsection (4) applies.
(4) This subsection
applies if the person did not know, and could not reasonably be expected to
have known, of the injury or disease concerned.
23K. Duty to inform employee who reports a hazard
or injury
(1) This section
applies where an employer receives from an employee a report of a kind
described in section 20(2)(d).
(2) The employer must,
within a reasonable time after receiving the report —
(a)
investigate the matter that has been reported and determine the action, if
any, that the employer intends to take in respect of the matter; and
(b)
notify the employee of the determination so made.
(3) If an employer
contravenes subsection (2), the employer commits an offence.
23L. Notification of hazard to person having
control of workplace
(1) In this
section —
“workplace” includes the means of
access to and egress from the workplace.
(2) If —
(a) the
employer of any employee; or
(b) a
self-employed person carrying out work,
at a workplace becomes
of the opinion that —
(c) a
situation exists at the workplace that could constitute a hazard to any
person;
(d) the
hazard is one that a person having control of the relevant part of
the workplace (the "responsible person") has a duty to remedy under
section 22; and
(e) the
situation has not come to the attention of that person,
the employer or
self-employed person must, so far as it is reasonably practicable to do so,
give notice of the situation to the responsible person.
(3) A notice under
subsection (2) must be given as soon as is reasonably practicable after
the employer or self-employed person becomes of the opinion mentioned in that
subsection.
(4) An employer or
self-employed person that fails to comply with subsection (2) commits an
offence.
Division 6 — Resolution of workplace issues, and refusal
to work on grounds of risk
”.