Western Australia’s new work health and safety laws

On 11 March 2022, Minister for Industrial Relations, the Honourable Bill Johnston MLA, announced that the Work Health and Safety Act 2020 (WHS Act) would come into effect 31 March 2022.

The WHS Act is based on the national model WHS Act applied to the Commonwealth and other Australian states and territories (except Victoria) and New Zealand, bringing Western Australia (WA) into line with the harmonised legislation. The WHS Act will cover all workplaces within WA, including mines, petroleum and geothermal energy operations and replaces several pieces of WA legislation.

The WHS Act will be supported by three sets of regulations:

Work Health and Safety (General) Regulations – applies to all workplaces except those covered by the other two sets of regulations
Work Health and Safety (Mines) Regulations – applies to mining and mineral exploration operations
Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations – applies to onshore and offshore petroleum, pipeline and geothermal energy operations

The new legislation will support WA’s unique conditions, enabling the resource sector to continue to use a risk based approach and a safety-case approach for petroleum and major hazard facilities. Major hazard facilities and dangerous goods storage and handling will continue to be regulated under the Dangerous Goods Safety Act 2004.

Changes of significance

Some of the more important changes have been summarised below:

Broader definition of primary duty holder

Under the WHS Act, the term ‘employer’ is replaced by ‘person conducting a business or undertaking’ (PCBU). A PCBU is the primary duty holder and can be a company or sole trader and can be in operation whether or not for profit or gain. A PCBU can be each partner within a partnership, an unincorporated association, government department or public corporation (including a local or regional government). A volunteer organisation or strata company employing any worker is also considered a PCBU.

Broader definition of worker

The term ‘employee’ has been replaced by ‘worker’. A worker is a person who carries out work in any capacity for a PCBU. This includes work as an employee, contractor, subcontractor, self-employed person, outworker, apprentice or trainee, work experience student, employee of a labour hire company placed with a ‘host employer’ and volunteers.

Due diligence

Key decision makers for a PCBU, known as ‘officers’ within the meaning of section 9 of the Commonwealth Corporations Act 2001, must exercise due diligence to ensure the PCBU complies with its health and safety duties. Under the new laws, an officer may be charged for failing to meet their duty, whether or not the PCBU has been convicted or found guilty of an offence.

For an officer to demonstrate due diligence (section 27), they must take reasonable steps to:

Acquire and keep up to date knowledge on work health and safety matters
Understand the nature and operations of the work and associated hazards and risks
Ensure the PCBU has, and uses, appropriate resources and processes to eliminate or minimise risks to work health and safety
Ensure the PCBU has appropriate processes to receive and consider information about work-related incidents, hazards and risks, and to respond in a timely manner
Ensure the PCBU has, and implements, processes for complying with their duties and obligations (for example, reports notifiable incidents, consults with workers, complies with notices, provides appropriate training and instruction and ensures HSRs receive training entitlements)
Verify the provision and use of the relevant resources and processes

Industrial Manslaughter

A new offence Industrial manslaughter applies to PCBUs who fail to comply with a WHS duty and that failure has caused a death in circumstances where the PCBU knew the conduct would cause death or serious harm.

Increased Maximum Penalties

The WHS Act will introduce significantly higher maximum penalties for all breaches of health and safety duties.

Maximum penalties for breach of health and safety duty offences
Offence Type	Body Corporate	Individual as a PCBU or officer	Individual as a worker or other
Offence Type	Body Corporate	Individual as a PCBU or officer	Individual as a worker or other
Industrial Manslaughter	$10,000,000	$5,000,000, 20 years in jail	Not applicable
Category 1 Cause death or serious harm	$3,500,000	$680,000, 5 years in jail	$340,000, 5 years in jail
Category 2 Expose a person to death or serious harm	$1,800,000	$350,000	$170,000
Category 3 Breach of duty	$570,000	$120,000	$55,000

Prohibition against insurance

The new WHS Act will make it an offence for a person or PCBU to enter into insurance coverage for any fines imposed under the Act. This change is in line with recommendations made by Marie Boland’s independent review of the model WHS laws and is intended to have a deterrent effect by ensuring PCBUs and officers cannot escape paying penalties that are imposed following a successful prosecution.

Notifiable Incidents

The WHS Act will broaden the requirements to notify the regulator as soon as a workplace death, serious injury or illness or dangerous incident arises out of the conduct of the business or undertaking. Previously if an incident resulted in 10 or more lost time days the regulator was to be notified of the event. This particular trigger has been revised to recognise an injury or illness that, in the opinion of a medical practitioner, is likely to prevent the person from being able to do their normal work for at least 10 days. This captures any illness or injury not previously specified and notification will now be required even if the worker is capable of light duties during recovery.

Stay Informed and Take Action

The WHS Act will introduce new compliance requirements for all workplaces in WA. It is important for PCBUs to remain informed and take action. The following are key actions PCBUs should consider:

Conduct a WHS gap analysis against the new WHS laws to identify and manage any WHS compliance risks
Conduct a WHS due diligence assessment to ensure officers are meeting new due diligence obligations
Provide WHS due diligence training to senior management and officers
Remain informed of the latest information available from Worksafe WA

If you would like to arrange a WHS assessment or training for your company please contact your Marsh consultant, alternatively please submit your contact details on our Contact us page.

You can read more about the new WHS Act and Regulations here.

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