WA’s new Work, Health and Safety laws overhaul some fundamental workplace safety considerations once operational, expanding a business's duty of care and the responsibilities of senior staff.
So what are the pitfalls for the underprepared?
Change is here
The commencement of the Work Health and Safety Act 2020, on March 31, 2022, is the biggest change to WA’s occupational safety and health system since the 1980s.
The changes, which bring WA closer in alignment to other Australian states and territories, significantly impact businesses, requiring a massive update of safety systems and practices.
Here’s what you need to know about the legislative shake-up:
New definitions, broader responsibilities
The new WHS laws impose a primary duty of care on persons conducting a business or undertaking to reasonably ensure the health and safety of workers.
This includes broader definitions than merely “employers” and “employees”, which, in turn, increases the scope of a business's safety responsibilities.
In place of the “employer”, the omnibus law recognises a “person conducting a business or undertaking” (PCBU).
More entities fall within this definition, which includes sole traders, companies, partnerships and associations. Instead of “employees”, businesses will need to consider “workers”, which includes all those who perform work for the PCBU in any capacity.
Our Business Toolbox overview breaks down some of these differences.
In addition, businesses will be required to take greater consideration of, and consult with, parties who may be affected by their safety practices.
Loosely, these groups fall under an umbrella category of “others”. The PCBU owes a duty to workers, persons at work that they influence or direct, and third parties visiting the workplace.
The role of ‘officers’
The Act also contains a new denotation for those who make or influence significant financial or operational decisions in the business: officers.
This tougher stance is especially important because the Act removes the right of duty holders to recover penalties through insurance or indemnification.
Explore our case studies of who may be considered an ‘officer’ in a business.
New offences, including industrial manslaughter
Tougher liability laws mean directors and board members may be held personally liable for health and safety failures.
- Industrial manslaughter. The offence of industrial manslaughter – crime (section 30A) will apply to a PCBU or officer engaging in conduct knowing the conduct is likely to cause death to an individual. This offence carries a potential imprisonment term of up to 20 years and a fine of up to $5 million for an individual or PCBU and up to $10m for a body corporate.
- Category One offence. The Category One offence under Section 31 will be more onerous than in other jurisdictions with the model WHS Act, because it does not include any element of recklessness or gross negligence. In brief, if a PCBU fails to comply with their duty of care and this failure causes the death of, or “serious harm” to, an individual, they face a potential penalty of five years’ imprisonment and a $680,000 fine (for an individual) or $3.5m penalty for a body corporate. Recklessness or gross negligence will not be relevant.
“Serious harm” is defined as illness or injury that endangers (or is likely to endanger) the individual’s life, or results (or is likely to result) in a permanent injury or harm to the individual’s health.
How to prepare for the new WHS laws
The long and short: if you're running a business, you can most likely expect to spend more time, and money, on managing workplace health and safety.
So what does workplace safety compliance look like in the future, and how can you prepare?
Read more on how to get on top of your WHS duties and how to prepare your board for WHS changes.
CCIWA’s WHS Practitioners have been helping our members prepare, including briefings to officers, training for workers, conducting audits on organisations’ work health and safety management system and assisting with the updating of policies and procedures.
For support working through your unique business operations, contact our WHS team on (08) 9365 7415, or via [email protected].
