Western Australia's Work Health and Safety Act 2020 (‘WHS Act’) replaces the Occupational Safety and Health laws in the State.
Work health safety laws are federal, in that, they apply in each State, but they are a little different in each jurisdiction.
A National Scheme
Safe Work Australia is a national policy body responsible for the development and evaluation of the model WHS laws (the model laws), which are comprised of:
model WHS Act
model WHS Regulations
model Codes of Practice
The model laws have been developed for implementation by all jurisdictions (that is the Commonwealth, states and territories), however they do not apply in a jurisdiction unless the jurisdiction has separately taken action to implement the laws as their own WHS laws.
The model laws have been implemented in all jurisdictions except Victoria.
Each jurisdiction has a WHS regulator that:
enforces WHS laws
The Commonwealth, states and territories are responsible for making their own work health and safety (WHS) laws.
Each jurisdiction has a regulator who monitors and enforces compliance with WHS laws. They also:
give advice and information on WHS duties
collect, analyse and publish statistics
promote and support education and training
help duty holders, workers and representatives consult and coordinate on WHS matters
promote and share information, tools and initiatives, including with other regulators.
Regulators work collaboratively to set strategic priorities at both a national and local level. Regulators work together to implement national campaigns and ensure a consistent approach to compliance and enforcement across Australia. They also share information, tools, and initiatives. All jurisdictions, except Victoria, agreed to a national approach to comply with WHS laws during COVID-19.
A Person Conducting a Business or Undertaking holds Liability
The new Work Health Safety Act introduces the definition of the ‘person conducting a business or undertaking’ - or PCBU. A PCBU can be:
a sole trader (for example, a self-employed person)
each partner within a partnership
an unincorporated association
a government department of public authority (including a municipal council)
Employees now called workers, and workplaces are listed to included: labour hire; volunteer associations; supporting associations; school canteens.
An officer, or Director of a Company or Partner in a Partnership are defined as those involved in making decisions affecting the business.
If you are 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 may have officers of the PCBU.
The legislation holds PCBU's to account “to ensure so far as far as reasonably practicable, the health and safety of workers and others” .
The Person Conducting a Business or Undertaking has the Primary Duty of Care
Under the new Work Health Safety 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.
Where reasonably practicable, the PCBU needs to take action to eliminate risks to health and safety, or at the very least, ensure that those risks are minimised as far as is reasonably practicable.
This includes the strategic, structural, policy and key resourcing decisions involved in running the business.
"So far as reasonably practicable"
To create a safe workplace
Implement safe plan and structures
Implement safe work systems
Safe use handling and storage
Inform, train, and supervise
Adequate welfare facilities
Maintain and monitor
The PCBU's duty of care extends beyond physical care to psychological care.
Harsher Penalties for PCBU's
The new Work Health Safety Act includes a new offence of industrial manslaughter (s30A). This offence involves substantial penalties for PCBUs 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, including:
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.
It is an offence to contravene an undertaking.
This provision began in Queensland, and is specifically a penalty for deaths.
This new offence is featured in Section 30A of the Work Health Safety Act 2020 (WA), and is relevant if the PCBU contravenes their duty of care, and it is established that their conduct causes death, or that it was known such conduct was likely to cause death.
The penalty ranges from $5million for individuals to $10million in penalties for corporations, with a possible maximum of 20 years imprisonment charge.
Reporting requirements extend to ‘notifiable incidents’, which includes serious illness, injury or death and dangerous incidents which might happen during the conduct of a business or undertaking.
The WA Government has allocated funding for an extra 21 inspectors and six support staff to help improve WHS outcomes.
This also means that notifiable incidences could take place through spot checks, or through your organisation being dobbed in.
The Australian Taxation Office
Fair Work Australia
Work Safe Australia
Changes you will need to make
Many businesses will need a thorough examination of how their businesses need to adapt to the legislative changes, which may impact on thither policies, procedures, documents and processes.
Andrea Consults can train your team on understanding these new laws and assist you in implementing these new measures to comply with Government Regulations!
Andrea Consults can help you implement new measures into your workplace to ensure you are compliant, including: modifying, writing and upgrading your policies and procedures; assisting you with government reporting tasks and implementing new systems into your organisation and training your team to know how to handle these new changes.
If you and your team would like to know more about the new Western Australian Work Health Safety LAws, join us for the legal lecture. Secure your spot here:
If you and your business/company require individual consultation, book in a Consult with Andrea, where the service will include what changes you will need to make, policy and procedure application, advice on implementation to ensure you are up-to-date with this Government regulatory requirement here: