WA’s new Work Health and Safety laws

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WA’s new Work Health and Safety laws

Business owners are responsible for keeping up to date with work health and safety legislation changes and are required to provide a safe and healthy workplace.

From 31 March 2022, the Department of Mines, Industry Regulation and Safety has modernised and implemented new Work Health and Safety (WHS) laws for Western Australia, improving protections for all Western Australian workers.

• Recognise modern work relationships such as subcontractors and gig economy workers
• Introduces a new term which means anyone who engages a WA worker has a duty to protect their health and safety
• Launch the new industrial manslaughter laws, with a maximum penalty of 20 years’ imprisonment and $5 million fines for individuals, and a maximum $10 million fine for body corporates.
• Confirm that senior decision makers (business owners and managers) are required to exercise due diligence to ensure compliance, meaning responsibility for workplace safety sits with those at the top
• Mean that insurance will no longer cover penalties, meaning individuals are held accountable for their actions and are responsible for financial penalties
• Bring together work, health and safety for general industry, mines and petroleum operation under a single WHS Act.
• Harmonise WA with other States and Territories, except Victoria, although amendments have been made to tailor the laws to reflect our unique State. This means companies that operate across Australia will have similar obligations and requirements in each State and Territory.

We have listed some things that you need to know as a business owner about the new work, health and safety laws and how they could impact your business.

1. OSH is no more!

The new WHS laws have replaced the Occupational Safety and Health Act 1984 (WA) (OSH Act).

The previous OSH Act has been around for decades and has been supported by other legislation around specific health and safety measures related to mines and petroleum. The change to move to the new WHS Act brings all WA workplaces under a single WHS Act.

2. Are you a PCBU?

The new WHS Act introduces PCBU’s. Person conducting a business or undertaking (PCBU) is the term given to a person conducting a business or undertaking alone or with others, whether or not for profit or gain. A PCBU can be:

• a sole trader (for example, a self-employed person)
• each partner within a partnership
• a company
• an unincorporated association

If you’re a business owner, you could be a PCBU as an individual. If you run your business as part of a business partnership, you could each be individually and collectively a PCBU. Larger corporations and organisations will have what’s known as officers of the PCBU.

You are not considered a PCBU if you are:

• an elected member of a municipal council acting in that capacity
• a ‘volunteer association’ that does not employ anyone. If the volunteer association becomes an employer it also becomes a PCBU for purposes of the WHS Act
• a ‘strata title body corporate’ that does not employ anyone, in relation to any common areas used only for residential purposes.

3. What are the PCBU’s duties under the WHS Act?

Under the WHS Act, all PCBUs have a primary duty of care to ensure the health and safety of their workers and others who may be affected by the carrying out of work. In this context, ‘workers’ are those engaged, or caused to be engaged by the person and those whose activities in carrying out the work are influenced or directed by the person.

This primary duty of care requires PCBU’s to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety. If this is not reasonably practicable, risks must be minimised so far as is reasonably practicable. This includes paying attention to the strategic, structural, policy and key resourcing decisions involved in running your business.

Under the primary duty of care, a PCBU must ensure, so far as is reasonably practicable:

• the provision and maintenance of a working environment that is safe and without risks to health, including safe access to and exit from the workplace
• the provision and maintenance of plant, structure and systems of work that are safe and do not pose health risks (for example, providing effective guards on machines and regulating the pace and frequency of work)
• the safe use, handling, storage and transport of plant, structure and substances (for example, toxic chemicals, dusts and fibres)
• the provision of adequate facilities for the welfare of workers at work (for example, access to washrooms, lockers and dining areas)
• the provision of information, instruction, training or supervision to workers needed for them to work without risks to their health and safety and that of others around them
• that the health of workers and the conditions of the workplace are monitored to prevent injury or illness arising out of the conduct of the business or undertaking
• the maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.

4. New WHS Penalties

The WHS Act includes a new offence of industrial manslaughter (s30A). This offence involves substantial penalties for PCBU’s in a business where a WHS duty causes the death of an individual, in circumstances where the PCBU knew the conduct could cause death or serious harm.

The WHS Act voids insurance coverage for WHS penalties and imposes penalties for providing or purchasing this insurance.

The new laws also introduce what are known as enforceable undertakings. Here’s an example of how an enforceable undertaking might work:

• If a business operates in a way that commits (or may commit) an offence under the WHS laws (except for industrial manslaughter or a Category 1 offence), they may be able to volunteer to give an enforceable undertaking instead of going through legal proceedings. Giving an enforceable undertaking is not an admission of guilt.
• Their enforceable undertaking is a written commitment to do certain things in an agreed period, and can be accepted or rejected by the Regulator.
• If the undertaking is accepted, the business would complete certain activities which need to be substantial and aim to deliver tangible benefits to the workplace, industry or broader community.

As part of the new laws, there are also reporting requirements for what are known as ‘notifiable incidents’, which includes serious illness, injury or death and dangerous incidents which might happen during the conduct of a business or undertaking.

5. Adopting the new Act

Many businesses will need a bit of time to adapt to the changes. The WA Government has allocated funding for an extra 21 inspectors and six support staff to help improve WHS outcomes.

To help support business owners in transitioning to the new Act, transitional arrangements apply where duties are new, or have changed a lot from what they were.

Work Health and Safety Resources and Information

Work Health and Safety Act 2020 – download