Understanding your obligations under work health and safety (WHS) laws is critical to protecting your people and your business.
From director liability to policy reviews, compliance gaps can expose employers to significant risk.
Business Law WA answers some of the most common questions employers ask to help you stay informed and compliant.
As a CCIWA Member, you receive a discounted rate on Business Law WA’s suite of legal services, including WHS, employment and commercial law. Contact Business Law WA on 08 9365 7746 or via [email protected].
Q: Can I be personally liable as a company director or manager for WHS breaches?
A: Yes. A company director or manager can be personally liable for WHS breaches where they have not complied with their statutory duties under the Work Health and Safety Act 2020 (WA) (the Act). If a person engages in conduct (which includes an act or an omission) that causes serious harm to a person at work, or who fails to comply with a health and safety duty under the Act, they may be subject to an offence or penalty under Part 2, Division 5 of the Act.
A company director is an “officer” (i.e., a person who makes, or participates in making decisions that affect the whole, or a substantial part, of the business) and has statutory “due diligence” duties under section 27 of the Act. There may be other persons within a business who are not officially directors but who have the same level of control and authority as officers (higher management). They too may be captured within the definition of “officer”. Managers not falling within the above definition are workers and workers also have duties under the Act.
Q: What does "reasonably practicable" mean in WHS compliance?
A: The Act confirms what this means under section 18. In summary, it means in relation to a duty to ensure health and safety, that at any given time, what was reasonably able to be done, considering and weighing up all relevant matters, was done.
Relevant matters to be considered and weighed up include:
- the likelihood of the hazard or risk occurring;
- the degree of harm that might result from the hazard and risk;
- what the person knew or reasonably ought to know about the hazard and risk and how to eliminate or minimise it;
- available and suitable ways to eliminate or minimise the risk; and
- the cost associated with eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Q: How can I prepare for or respond to a WHS audit or compliance review?
A: Starting steps include:
- Clarify the scope of the audit or review. What is the subject of the audit or compliance review? For example, does it relate to systems, plant, regulations, training, work practices in a designated area?
- Find out who has custody of or access to relevant manuals and documents and ensure availability of that material.
- Select persons in control of, or who manage, or work on of the matters the subject of the audit or review, who can answer questions.
- Contact a lawyer who can provide advice under legal professional privilege on legal risk management and instruct your preparation of documents for the purposes of providing legal advice. Those documents will not be accessible to third parties.
Q: How often should I review or update my WHS policies and procedures?
A: Business Law WA recommends WHS policies and procedures be reviewed or updated:
- No less than once a year for those responsible for keeping them up to date, and six-monthly for staff review.
- When changes to WHS legislation, regulations, standards or codes of practice change or will be implemented.
- When an incident has occurred
- As required
The WHS Act is currently undergoing a statutory review. If CCIWA Members have information on how Act provisions are impacting their business, contact [email protected] or [email protected] as this can help inform our discussions with, and submissions to, the WHS Commission on behalf of industry.
How Business Law WA can help your business
Navigating your WHS obligations can be complex, particularly when it comes to understanding liability, compliance reviews and policy updates. Business Law WA provides practical legal advice to help you identify risks, strengthen compliance systems and meet your duties under WHS legislation.
Contact Business Law WA’s expert team on 08 9365 7746 or [email protected] for tailored advice and support.
This article is authorised by Business Law WA, an incorporated legal practice and wholly owned subsidiary of CCIWA. The contents of this article is general in nature and is not legal or professional advice and should not be relied upon as such.
