New Work Health and Safety Act 2020 (WA)
Are you ready for tougher laws? In November 2020, the WA Parliament passed the Work Health and Safety Act 2020 (WA) (“the Act”). The Act will take effect once the industry regulations have been finalised, which is now likely to be sometime in early to mid-2022.
When implemented, all Western Australian workplaces will come under this single Act.
The Act will be supported by regulations including which include the Work Health and Safety (General) Regulations (which apply to all workplaces except those covered by the other regulations), the Work Health and Safety (Mines) Regulations (which apply to mining and mineral exploration operations); and the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations (which apply to onshore and offshore petroleum, pipeline and geothermal energy operations).
Will It Affect Me?
The following are some key aspects of the new Act of which you should be aware.
The Act has wide application and applies to Persons Conducting a Business or Undertaking (“PCBU“).
The terms business and undertaking have their ordinary meaning. It is intended to cover a wide range of businesses or undertakings.
The Act applies to workplaces and workers. These terms are also defined broadly to incorporate a range of environments and situations. A workplace is defined to be a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. A person is a worker if the person carries out work in any capacity for a PCBU, including work as an employee, a subcontractor, or an employee of a contractor or subcontractor.
This definition is likely to capture working from home arrangements.
The term health has also been expanded, to include both physical and mental health.
Labour hire employees are also now deemed to be workers.
Primary Duty of a PCBU
A PCBU will have a primary duty of care to ensure that workers and others are not exposed to a risk to their health and safety.
This applies where the PCBU can engage or cause to engage a worker to carry out work (including through a subcontracting arrangement), can direct or influence work carried out by a worker, or has management or control of a workplace.
A PCBU must ensure, amongst other things, that the health of workers and conditions in the workplaces are reasonably and sufficiently monitored to prevent illness or injury arising in the workplace, and that there are adequate facilities to ensure workers’ welfare when carrying out certain functions.
Officers of a PCBU are also required to exercise due diligence, to ensure that the PCBU is complying with its duties and obligations. This requires taking reasonable steps to become familiar with the relevant work health and safety knowledge base, and to ensure that the PCBU has appropriate resources and processes to minimise if not eliminate health and safety risks in the workplace.
Enforcement And The New Industrial Manslaughter Laws
Significantly, the Act introduces strict enforcement measures including a new regime of industrial manslaughter provisions.
The Act creates two categories for industrial manslaughter – one for simple offences (Category 1) and one for crimes (Category 2). A Category 2 offence has substantial maximum penalties.
A Category 1 offence is committed where the person fails to comply with a health and safety duty as a PCBU, and this failure causes the death of an individual. An officer of a PCBU will commit a Category 1 offence where the PCBU’s conduct can be attributed to any neglect on the part of the officer or is engaged in with the officer’s consent or connivance. For these offences, an individual (including an officer) will face a term of imprisonment of up to 10 years and a fine of up to $2.5 million and a body corporate will face a fine of up to $5 million.
A Category 2 offence is committed where:
- the person has a health and safety duty as a PCBU;
- the person engages in conduct that causes the death of an individual;
- the conduct constitutes a failure to comply with the person’s health and safety duty; and
- the person engages in the conduct:
- knowing that the conduct is likely to cause the death of an individual; and
- in disregard of that likelihood.
An officer of a PCBU will also commit a Category 2 offence where, the PCBU’s conduct above is:
- attributable to the neglect of the officer or engaged in with the officer’s consent or connivance; and
- the officer knew that the PCBU’s conduct was likely to cause death or serious harm and disregarded that likelihood.
For these offences, an individual (including an officer) will face imprisonment for up to 20 years and a fine of up to $5 million whereas a body corporate faces a fine of up to $10 million.
With the imminent introduction of the Act and its more severe penalty regime, all PCBU’s and their directors and officers should act now to audit their safety and risk management controls, culture, and practices to ensure that these will meet their obligations under the Act.