Be in the Know – New Work Health & Safety Laws in WA

admin@hlslegal.com.au | January 6, 2022

 

By Megan Flower and Lily Gubbay

The Work Health and Safety Act 2020 (WA) is expected to come into force from March 2022. Employers should be aware of how these changes may affect their business and start preparing now.

The Work Health and Safety Act 2020 (WA) (WHS Act) will set out a new framework to protect the health, safety and welfare of workers in Western Australian workplaces.

The WHS Act will replace the Occupational Safety and Health Act 1984 (WA) (OSH Act) and the work health and safety provisions of other legislation, such as the Mines Safety and Inspection Act 1994 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA).

The WA Government is currently finalising the regulations under the WHS Act, that is:

    • the Work Health and Safety (General) Regulations 2022;
    • the Work Health and Safety (Mines) Regulations 2022; and
    • the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022.

Once these regulations are ready, the WHS Act is expected to come into force. This is currently scheduled for March 2022.

 The WHS Model Laws

The WHS Act is largely based on the national model work health and safety laws developed by Safe Work Australia. As these model laws are used in the other states and territories (other than Victoria), companies will have similar health and safety obligations across Australia.

 The PCBU – Person Conducting a Business or Undertaking

Part 2 of the WHS Act sets out the health and safety duties of the WHS Act.

The primary duty holder under the WHS Act is the person conducting a business or undertaking (the PCBU). A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers:

    • engaged (or caused to be engaged) by the PCBU; or
    • whose activities in carrying out work are influenced or directed by the PCBU.[1]

Worker is defined broadly under the WHS Act to include work as:

    • an employee;
    • a contractor or subcontractor (including as an employee of a contractor or subcontractor);
    • an employee of a labour hire company;
    • an outworker;
    • an apprentice or trainee;
    • a work experience student; or
    • a volunteer.[2]

Further, a PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons are not put at risk from work carried out.[3]

In addition to these overarching duties, a PCBU must also ensure, so far as is reasonably practicable:

    • the provision and maintenance of a work environment without risks to health and safety;
    • the provision and maintenance of safe plant and structures;
    • the provision and maintenance of safe systems of work;
    • the safe use, handling and storage of plant, structures and substances;
    • the provision of adequate facilities for the welfare of workers at work (including ensuring access to those facilities);
    • the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out; and
    • that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury.[4]

Reasonably practicable

The key limitation on many of the health and safety duties under the WHS Act is whether or not something is “reasonably practicable.” If an action is not reasonably practicable, then it will generally fall outside the scope of the health and safety duty for a PCBU.

Under s 18 of the WHS Act, reasonably practicable means what could be reasonably able to be done, at the particular time, in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

    • the likelihood of the hazard or the risk concerned occurring;
    • the degree of harm that might result from the hazard or risk;
    • what the person concerned knows, or ought reasonably to know, about the hazard or the risk, and ways of eliminating or minimising the risk;
    • the availability and suitability of ways to eliminate or minimise the risk; and
    • the cost associated with available ways of eliminating or minimising the risk (including whether the cost is grossly disproportionate to the risk).[5]

Other PCBU duties under WHS Act

There are also additional health and safety duties on different categories of PCBUs under the WHS Act, including:

    • PCBUs involved in management or control of workplaces (WHS Act, s 20);
    • PCBUs involved in management or control of fixtures, fittings or plant at workplaces (WHS Act, s 21);
    • PCBUs that design plant, substances or structures (WHS Act, s 22);
    • PCBUs that manufacture plant, substances or structures (WHS Act, s 23);
    • PCBUs that import plant, substances or structures (WHS Act, s 24);
    • PCBUs that supply plant, substances or structures (WHS Act, s 25);
    • PCBUs that install, construct or commission plant or structures (WHS Act, s 26); and
    • PCBUs that provide services relating to work health and safety (WHS Act, s 26A).

Due diligence duties for officers

Where a PCBU has a duty or obligation under the WHS Act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty or obligation.[6]

Due diligence by officers will include taking reasonable steps:

    • to acquire and keep up to date knowledge of health and safety matters;
    • to gain an understanding of the nature of the operations of the business or undertaking of the PCBU, and the general hazards and risks associated with those operations;
    • to ensure that the PCBU has available for use (and uses) appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out;
    • to ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks, and responding in a timely way to that information;
    • to ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under the WHS Act; and
    • to verify the provision and use of these resources and processes.[7]

Duties of workers

Under the WHS Act, while at work, a worker will have a duty to:

    • take reasonable care for their own health and safety;
    • take reasonable care that their acts and omissions don’t adversely affect the health and safety of others;
    • comply, so far as the worker is reasonably able, with any reasonable instructions that are given by the PCBU to allow the PCBU to comply with the WHS Act; and
    • co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.[8]

Other persons at the workplace will also have a duty to take reasonable care for their own health and safety, to take reasonable care that their acts or omissions don’t adversely affect the health and safety of others, and to comply with reasonable instructions from the PCBU.[9]

Industrial Manslaughter

The WHS Act introduces the crime of industrial manslaughter – it will be a crime if:

    • the person has a health and safety duty as a PCBU;
    • the person engages in conduct that causes the death of an individual;
    • the conduct constitutes a failure to comply with the person’s health and safety duty; and
    • the person engages in the conduct:
    • knowing that the conduct is likely to cause the death of (or serious harm to) an individual; and
    • in disregard of that likelihood.[10]

Officers can also commit industrial manslaughter where:

    • the PCBU’s offending conduct is attributable to any neglect on the part of the officer or the conduct is engaged in with the officer’s consent or connivance; and
    • the officer engages in their conduct:
    • knowing that the conduct is likely to cause the death of (or serious harm to) an individual; and
    • in disregard of that likelihood.[11]

Maximum penalties for industrial manslaughter will include:

    • for an individual, 20 years’ imprisonment and a fine of $5,000,000; and
    • for a body corporate, a fine of $10,000,000.[12]

 

Substantial penalties

There will be three categories of offences for failing to comply with a health and safety duty under the WHS Act.[13] A person charged with a higher category of offence, or with industrial manslaughter, may be convicted of a lesser category of offence.

The maximum penalties for these offences are:

Duty holder:

Category 1

(causes death or serious harm)

Category 2

(exposure to risk of death or of injury or harm to health)

Category 3

(fails to comply with duty)

Body corporate (PCBU and non-PCBU)

$3,500,000

$1,800,000

$570,000

Individual as a PCBU or an officer of a PCBU

$680,000, 5 years’ imprisonment

$350,000

$120,000

Other individual

$340,000, 5 years’ imprisonment

$170,000

$55,000

There are also a number of other offences under the WHS Act that relate to specific requirements (e.g. the duty to consult with workers). These offences will have their own separate penalties, which are outlined in the respective sections.

Other notable aspects of the WHS Act

In addition to the health and safety duties in Part 2 of the WHS Act, other notable duties for employers under the WHS Act include but are not limited to:

    • duties to notify in respect of notifiable incidents and to preserve incident sites (WHS Act, ss 38 and 39); and
    • duties to consult with other duty holders and with workers (WHS Act ss 46 and 47).

Further, employers should also be mindful of Part 6 of the WHS Act, which sets out protections against discrimination for those who exercise, perform, or seek to perform or exercise powers, functions or rights under the WHS Act (WHS Act, ss 104 to 109).

Prohibition on insurance and other indemnities against fines

Under s 272A of the WHS Act, an insurance policy will have no effect to the extent that it indemnifies a person for liability to pay a fine for an offence against the WHS Act.[14]

Further, a person must not:

    • enter into (or offer to enter into) an insurance policy that purports to indemnify a person for the person’s liability to pay;
    • indemnify (or offer to indemnify) another person for the other person’s liability to pay;
    • be indemnified (or agree to be indemnified) by another person for liability to pay; or
    • pay to another person (or receive from another person) an indemnity for,

a fine for an offence under the WHS Act.[15]

This provision offers additional deterrence to PCBUs and their officers as they cannot abate the impact of financial penalties under the WHS Act by way of insurance.

Next steps

Employers, especially their officers, need to be aware of these upcoming changes to work health and safety law. All employers in Western Australia will be affected by the new WHS Act and should take this opportunity to review their internal health and safety systems and practices to ensure compliance with the new WHS Act.

If you have any questions about how the new Work Health and Safety Act 2020 (WA) may affect your business, please contact Tony Smetana or Megan Flower at HLS Legal on (08) 9322 5202.

This article is intended to be informative only and does not constitute legal advice. If you are concerned about your individual circumstances, please contact a lawyer.

[1]Work Health and Safety Act 2020 (WA), s 19(1).

[2] Work Health and Safety Act 2020 (WA), s 7(1).

[3] Work Health and Safety Act 2020 (WA), s 19(2).

[4] Work Health and Safety Act 2020 (WA), s 19(3).

[5] Work Health and Safety Act 2020 (WA), s 18.

[6] Work Health and Safety Act 2020 (WA), s 27(1).

[7] Work Health and Safety Act 2020 (WA), s 27(5).

[8] Work Health and Safety Act 2020 (WA), s 28.

[9] Work Health and Safety Act 2020 (WA), s 29.

[10] Work Health and Safety Act 2020 (WA), s 30A(1).

[11] Work Health and Safety Act 2020 (WA), s 30A(3).

[12] Work Health and Safety Act 2020 (WA), s 30A(1).

[13] Work Health and Safety Act 2020 (WA), s 31 to 33.

[14] Work Health and Safety Act 2020 (WA), s 272A(2).

[15] Work Health and Safety Act 2020 (WA), s 272A(3).