Western Australia set for WHS reform

The Western Australian Parliament has now passed the Work Health and Safety Act 2020 (WHS Act). The WHS Act is set to align WA with other states and territories’ including the introduction

The WHS Act will not operate until industry-specific regulations are finalised. The WA Government has said it anticipates the new legislation and accompanying regulations will have commenced by July 2021, although acknowledges this is an ambitious timeframe.

The WHS Act is repealing various pieces of industry-specific occupational safety legislation such as for mining and onshore and offshore petroleum, codifying regulations into one comprehensive act.

In his second reading speech, WA’s Minister for Industrial Relations, Bill Johnston, stated, “we have serious penalties for drivers who cause death on our roads and for those who are guilty of manslaughter in the wider community; now it is time for the workplace to be treated in a similar way.”

The key changes business need to be aware of include:

  • New industrial manslaughter laws attracting a maximum of 20 years’ gaol for individuals and up to $10 million in fines for a company;
  • An increase in penalties generally;
  • “Employer” is to be replaced by the wider catchment of “person conducting business or undertaking” (PCBU);
  • that the primary duty of care for a PCBU will be to ensure, so far as is reasonably practicable, the health and safety of workers and others who might be affected by their undertakings;
  • the broader concept of a “worker” which includes contractors, subcontractors, and the employees of contractors and sub-contractors;
  • the definition of “health” to include psychological health;
  • protection for whistle-blowers against discrimination;
  • Officers of PCBUs (including directors, secretaries, and key decision-makers) have an ongoing duty to conduct due diligence;
  • a prohibition from entering into insurance policies for any WHS fines incurred under the WHS Act; and
  • a specific duty of care for persons who provide services relating to work health and safety.

In effect, the new law is expected to create a major shift in how workplaces are required to address WHS incident prevention and procedure. It is aiming not just to capture conventional direct employment relationships and work arrangements. Rather the new legislation captures anyone affected by the operations in and around the workplace. To ensure the safety and protection of those affected, the WHS Act clarifies the obligations and duty of care expected, widening the scope of liability and how it is to be enforced.

Whilst the new legislation is being introduced in WA later than other states and territories, they have the benefit of following the recommendations outlined by SafeWork South Australia after former executive director Marie Boland reviewed the model WHS laws in 2018.

It is strongly recommended that businesses conduct reviews of their WHS policies, familiarise themselves with the new obligations under the new laws and ensure that they are complying with them the moment they come into force.

If you require any advice or assistance to ensure your firm is implementing effective and compliant workplace safety policies, procedures or training please contact Nick StevensLuke Maroney or Bernard Cheng.

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