It’s time – WA’s new WHS Act commences

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After almost five years of anticipation for modernised work health and safety (WHS) laws for Western Australia, the Work Health and Safety Act 2020 (WA) (WHS Act) is now commencing operation.

The WHS Act will apply to most workplaces within Western Australia, including mines, petroleum and geothermal energy operations, and will bring Western Australia in line with (most of) the rest of the nation while broadening the scope of the WHS duties for businesses and workers alike.

In this article, we look at:

  • the background to the WHS Act;
  • the key features of the WHS Act and how it differs from the existing WHS regime; and
  • how businesses should respond to the long awaited commencement of the WHS Act.

This article follows on from our previous article, ‘WA’s WHS Bill Passes Upper House’ where we detailed  some of the key issues arising out of the final parliamentary debate over the Work Health and Safety Bill 2019 (WA).

Bringing WA in line with the national model

The WHS Act replaces the Occupational Safety and Health Act 1984 (WA) (OSH Act) and the WHS elements in the Mines Safety and Inspection Act 1994 (WA), Petroleum and Geothermal Energy Resources Act 1967 (WA), Petroleum (Submerged Lands) Act 1982 (WA) and the Petroleum Pipelines Act 1969 (WA).

The WHS Act will be supported by three new sets of regulations, the Work Health and Safety (General) Regulations 2022 (WA), Work Health and Safety (Mines) Regulations 2022 (WA) and Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022 (WA).

The WHS Act is based on the national Model WHS laws, with some specific variations to address the Western Australian context.  As a result, WHS duties, obligations and processes will now be largely harmonised across the country (except Victoria), providing consistency and easing the regulatory burden for businesses operating across jurisdictions.

Key features of the WHS Act

In a statement on 11 March 2022, the Hon Bill Johnston MLA (Minister for Industrial Relations) indicated that the WHS Act will modernise Western Australia’s WHS laws and reflect the standard of behaviour the community now expects from companies and senior management alike in respect of WHS duties.

Some of the key features of the WHS Act which are intended to support this enhanced legislative framework are summarised in the table below.

Key feature
What you need to know
Example uses 2

‘Person conducting business or undertaking’ (PCBU) as the primary duty holder 

The OSH Act applied to employers and persons who have control of the workplace.

The WHS Act introduces the concept of a PCBU, being a person conducting a business or undertaking alone or with others, whether or not for profit or gain.  This concept captures a wider variety of workplace relationships than the employer/employee dichotomy that existed under the previous regime, including sole traders, partnerships, companies, unincorporated associates, government departments and public corporations.  Whether a person conducts a PCBU is a question of fact and is to be determined in the circumstances of each case.

A PCBU is the primary duty holder under the WHS Act and is required to ensure, so far as is reasonably practicable, the health and safety of workers or others (both physical and psychological) who may be affected by the carrying out of work.

Duty to ‘consult, cooperate and coordinate’

No equivalent duty existed under the OSH Act.

Where there are multiple duty holders, a PCBU must consult, cooperate and coordinate with the other duty holders, so far as is reasonably practicable, in relation to matters of which each duty holder has a duty or level of control over. This obligation may arise with workers, Health and Safety Representatives and third parties engaged by the PCBU (e.g., contractors).  

This addresses situations where multiple employers or organisations engage workers to perform particular work and ensures that organisations cannot escape responsibility for breaching their legal obligations simply by putting responsibility on another duty holder.

Broadened definition of ‘worker’

Duties were owed to ‘employees’ under the OSH Act. 

‘Worker’ is defined broadly in the WHS Act as any person who carries out work for a PCBU and includes an employee, a trainee, apprentice or work experience student, a volunteer, an outworker, a contractor or sub-contractor, an employee of a contractor or sub-contractor or an employee of a labour hire company.

This definition considerably broadens the scope of people to whom a WHS duty is owed and reflects the nature of contemporary working relationships.

While at work, a worker must take reasonable care for their own health and safety and the health and safety of others. 

Industrial manslaughter offence

No equivalent offence existed under the OSH Act. 

One of the biggest (and most talked about) changes brought about by the WHS Act is the introduction of a new offence of industrial manslaughter. A PCBU, or its officers, may be liable for industrial manslaughter where their failure to comply with a WHS duty imposed under the WHS Act causes the death of an individual in circumstances where the PCBU or officer knew their conduct was likely to cause the death of, or serious harm to, an individual.

A body corporate may be liable for a fine of up to $10,000,000 and an individual/officer 20 years jail time if found guilty of the offence.  

Insurance coverage not available for penalties

The WHS Act makes it an offence to enter into an insurance policy or to indemnify a person for fines imposed under the WHS Act.

This prohibition is designed to encourage greater attention to compliance with the new laws as it prevents financial protection in the event there is a breach of a duty resulting in a penalty under the WHS Act.

Officers to exercise due diligence

No equivalent duty existed under the OSH Act.

Officers of a PCBU are required to meet due diligence obligations by ensuring the PCBU complies with its duties and obligations under the WHS Act. The duty is a positive one and requires the officer to take reasonable steps to comply with the due diligence duty.

Officers includes an officer within the meaning in the Corporations Act 2001 (Cth), which captures a person who makes or participates in making decisions that affect the PCBU or have the capacity to significantly affect the PCBU’s financial standing. 

Other changes include a broader definition of “health” to include psychological health and wellbeing, an issue resolution process, alternative sentencing options for enforcement and compliance, expanded inspector powers, increased penalties and new notifiable incidents and response requirements.

The WHS Act is intended to reflect the contemporary workplace and community expectations by broadening the application of duties beyond traditional notions of employment and increasing the consequences of non-compliance. Ultimately, the aim is to modernise and enhance the legislative safety framework for the better protection of people at work.

What should organisations do to respond to the WHS Act?

All businesses should use the commencement of the WHS Act as an opportunity to review WHS systems and processes, including:

  1. Review work health and safety procedures and policies to ensure they reflect the duties and obligations (and terminology) under the WHS Act and appropriate preventative measures are in place to protect against health and safety risks in the workplace.
  2. Ensure both the PCBU and officers are exercising due diligence by taking active steps to protect workers.  This includes educating officers and senior management on the changes, ensuring they have a process to keep an up-to-date knowledge of WHS matters in the business, understanding the businesses’ operations and the health and safety risks in it, and ensuring the organisation uses resources and processes to maintain WHS Act compliance and best practice.
  3. Where multiple employers or contractors are involved, ensure processes for consultation and cooperation are in place and engaged. Ensure internal processes involve effective and meaningful consultation with workers.
  4. Consider whether incident recording and investigation processes need to change to reflect the importance of identifying and removing hazards and to reflect the increased risk to the PCBU and individuals.

After years of waiting (and probably a few false starts) it is time for a health check of your safety.

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