On the 31 March 2022, the new Western Australia Work Health and Safety Act 2020 (WHS Act) and accompanying regulations came into effect. The new Act is based on the Model Work Health and Safety Act which has been implemented by all other States and Territories aside from Victoria. WHS safety law is now a step closer to being harmonised across Australia. The WHS Act replaces the former Occupational Health and Safety Act 1984 (WA) and the WHS elements within 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 Piplelines Act 1969 (WA). The WHS Act has some specific variations to address the Western Australian context, which are not present in the model legislation in other States and Territories.
What has changed?
There have been some significant changes for WA with the introduction of these new laws, including:
- A new industrial manslaughter offence (carrying a maximum penalty of 20 years imprisonment and a $5 million fine for an individual and maximum of $10 million for a body corporate)
- Changes to the categories of WHS offences, including higher penalties for all offences
- New duties for WHS service providers
- Broader investigatory powers for WHS inspectors
- A separate “right of entry” regime allowing WHS inspectors to enter workplaces
- A prohibition on insurance and indemnities for WHS fines (insurance coverage cannot now be taken out for WHS penalties)
- Introduction of the Person Conducting Business or Undertaking (PCBU) as the primary duty holder in WHS matters
- Duty to ‘consult, cooperate and coordinate’ in relation to WHS matters
- A broader definition of “health” includes psychological health and wellbeing
- A new safety issue resolution process
- Alternative sentencing options for enforcement and compliance
- New notifiable incidents and response requirements, in relation to reporting workplace injuries
The Western Australian government has been clear in stating that the introduction of more severe penalties and prosecutions was to reflect the standard of behaviour the community now expects from companies and senior management in respect of their WHS duties. The Government has expressed that WHS laws are important in developing a better culture of responsibility in terms of WHS in workplaces.
What do employers in WA need to do now?
Employers in WA should take the introduction of the new WHS Act seriously. The changes provide an opportunity to review existing WHS documentation, systems, and practices. In line with the WHS Act, employers must consult with workers about health and safety at the workplace, which extends to making changes in policies and procedures that may impact the worker’s health and safety at work. Some recommended actions include:
- Conduct an audit of the WHS management system in place which includes the review and updating of WHS policies and procedures to ensure they reflect the changes to duties and obligations under the new WHS Act. This includes aligning terminology.
- Ensuring the Officers are aware of the changes and obligations by providing information, education, and training to Officers as required.
- Establishing that the PCBU and Officers are meeting their due diligence requirements.
- Review incident reporting and investigation procedures to ensure they capture the notification requirements, the requirement to identify and remove hazards, and the increased risk to the PCBU and individuals.
- Check that the company insurance policy does not include any coverage for penalties.
- Communicate any policy and procedure changes to relevant stakeholders and publish internally (and externally if required) once finalised.
Finally, create an action plan to ensure all of the items needing to be addressed are identified, logged, and allocated, and a timeframe for completion is set. Ensure the action plan is monitored, resourced, and followed until completion.
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The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.