Businesses should take the easing of COVID-19 restrictions in Western Australia as an opportunity to do a deep dive into Western Australia’s new work health and safety laws.

After extensive delays, Western Australia’s new Work Health and Safety Act 2020 (WA) (Work Health and Safety Act) commenced in March this year. While Ai Group kept its members updated over the many years the laws were being developed, some businesses may have only recently become aware of, or commenced steps towards compliance with, the new laws.

What are key changes?

The laws expand work health and safety duties to all entities conducting a business or undertaking. These entities are referred to in the laws as a “person undertaking a business or undertaking” (a PCBU). PCBUs are required, so far as is reasonably practicable, to ensure the health and safety of a worker:

• they engage, or cause to be engaged, and
• whose activities in carrying out work are influenced or directed by the PCBU while the worker is at work in the business or undertaking.

A PCBU is also required to, so far as is reasonably practicable, ensure that the health and safety of others is not put at risk from work carried out as part of the conduct of the business or undertaking. This means people such as visitors, customers, or patrons.

Key to these requirements, or duties, is an obligation to eliminate risks to health and safety, so far as is reasonably practicable, and if that is not reasonably practicable, to minimise those risks so far as is reasonably practicable.

Other changes include:

• the express inclusion of psychological health into the concept of health, reinforcing the previous focus on psychological hazards emphasised by the making of Codes of Practice to address management of psychosocial hazards,
• an obligation on officers of corporations to take an active role in ensuring that a business complies with its work health and safety obligations by exercising due diligence,
• clearer obligations in relation to notifiable incidents,
• new obligations on duty holders to consult, cooperate and coordinate with each other, and
• new industrial manslaughter provisions.

What are the obligations on officers?

Obligations on individuals considered officers are both intensive and extensive.

Amber Roncoroni, Senior Associate at Ai Group Workplace Lawyer’s Perth office, says “For the purposes of the new laws, an officer will include a director or secretary of a corporation and a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation. It will also include a person who has the capacity to significantly affect the corporation’s financial standing and a person who gives the directors of the corporation instructions, or who expresses their wishes to the directors, which the directors are accustomed to following.

The new obligations centre on the concept of due diligence, which has been given a particular meaning by the new legislation.”

Relevantly, due diligence is defined in the Work Health and Safety Act as taking reasonable steps to:

• acquire and keep up-to-date knowledge of work health and safety matters,
• gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations,
• ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking,
• ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information,
• ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under the Work Health and Safety Act, and
• verify the provision and use of the some of the resources and processes referred to above.

These are the actions that individual officers must undertake to satisfy themselves that they have done all that is relevant in their role to ensure that the PCBU complies with its obligations under the Work Health and Safety Act. 

Trinette Jaeschke, National Manager – WHS Consulting Services at Ai Group says that “Due Diligence is not something that can be delegated to another person or dealt with just through the safety management system. Each officer should ask themselves how they would respond to a question from a WorkSafe WA Inspector, or in the case of a prosecution, how they would demonstrate, as part of their defence, that they had taken such actions. 

At Ai Group, we assist officers to understand their due diligence obligations and provide practical advice around how they can meet these requirements. For instance, we provide a Due Diligence Checklist as a starting point for officers. The Due Diligence Checklist is based on the model laws, and is a simple and reliable tool for officers.”

Limited access to the Due Diligence Checklist is available here.

A failure to comply with the due diligence obligations can have serious consequences for a person considered an officer. The most serious category of offence under the Work Health and Safety Act, other than industrial manslaughter, is a “Category 1 offence”. A Category 1 offence includes the element of serious harm. A person held to have committed a Category 1 offence as an officer of a PCBU may be subject to imprisonment for 5 years and a fine of $680,000.

What are some of the changes for notifiable incidents?

There is a new obligation to notify WorkSafe WA when customers, patrons or even passers-by are affected by a notifiable incident. That is, a business will be obliged to notify WorkSafe WA when certain incidents occur, even if there are no workers involved.  

With the inclusion of psychological health into the concept of health, it is now clear that incidents involving worker mental health may, in some circumstances, be a notifiable incident. Such incidents may be notifiable incidents if the incident causes an injury or illness to the person which, in the opinion of a medical practitioner, is likely to prevent the person from being able to do the person’s normal work for at least 10 days after the day on which the injury or illness occurs. Events known to impact the mental health of workers include bullying, harassment, and witnessing traumatic incidents.

For this reason, a PCBU should consider what mental health hazards exist in their workplace, not just for the purposes of enacting specific prevention measures, which it should do, but also in relation to ensuring it has systems in place to notify WorkSafe WA of any notifiable incidents involving such hazards. This would be in addition to, or part of, existing systems to notify WorkSafe WA of a notifiable incident involving other hazards and serious events.  

What are the obligations on duty holders to consult, cooperate and coordinate with each other?

There is a new express statutory obligation on those holding a work health and safety duty under the Work Health and Safety Act to, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter. The penalty for failing to comply with this obligation is, for an individual, a fine of $25,000, and for a body corporate, a fine of $115,000.

Whilst this is a new, specific obligation in the Work Health and Safety Act, businesses have been held accountable for not undertaking these sorts of activities with other duty holders in the past.

What are the obligations to consult directly with workers?

Consistent with the model work health and safety laws, the Work Health and Safety Act requires a PCBU to, so far as is reasonably practicable, consult, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

The consultation obligations require that workers be given a reasonable opportunity to express their views and to raise work health or safety issues in relation to the matter and to contribute to the decision-making process relating to the matter, amongst other things.

What are the new industrial manslaughter provisions?

The laws contain the new offence of industrial manslaughter, in addition to provisions reflecting existing offences.

The Work Health and Safety Act provides that a person will commit the crime of industrial manslaughter if:

• the person has a health and safety duty as a PCBU,
• the person engages in conduct that causes the death of an individual, and
• 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, or serious harm to, an individual and in disregard of that likelihood.

A person who is an officer of a PCBU may also be held to have committed the crime of industrial manslaughter if the PCBU’s conduct is attributable to negligence on the part of the officer or is engaged in with the officer’s consent or connivance.

The penalty for an individual for the crime of industrial manslaughter is imprisonment for 20 years and a fine of $5,000,000 and for a body corporate, a fine of $10,000,000.

What are some of the other changes?

New regulations have been issued, and it is expected that new Codes of Practice will follow. The new regulations include the Work Health and Safety (General) Regulations 2022, Work Health and Safety (Mines) Regulations 2022 and the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022, with each set of regulations standing alone in their area of operation.

Ms Roncoroni says “It would be prudent for businesses operating in Western Australia to seek ongoing advice and guidance in relation to what they need to do to be compliant with the new laws, given the potentially serious consequences arising from non-compliance.

The changes provide a great opportunity for businesses to review and update their work health and safety management systems.

In some cases, it will be a necessity, for instance, for mining operators obliged to comply with the new Mine Safety Management System requirements.’

Ai Group provides a range of services designed to assist businesses to comply with the new Work Health and Safety Act laws. In addition to the Due Diligence Checklist referred to above, these services include due diligence training, WHS Gap Analysis, and surveys designed to address safety culture and wellbeing in the workplace. Ai Group also provides regular updates to members in relation to changes to the law through its member services. Further information can be obtained by contacting Ai Group Workplace Lawyers or one of Ai Group’s WHS Consultants. 

Disclaimer: This article is intended to be informative only and does not constitute advice or provision of a service. Advice, and other services, specific to an individual business’ needs should be sought from a suitably competent and qualified individual.