New Western Australian Work Health and Safety Framework Commences


This article applies to all Western Australian organisations.

Work Health and Safety Act 2020 (WA)

On 31 March 2022, relevant provisions of the Work Health and Safety Act 2020 (WA) (the Act) commenced, implementing a modernised legislative framework for work health and safety in Western Australia that is consistent with other Australian jurisdictions.

Background

Based on national model work health and safety legislation, the Act works to harmonise Western Australia’s work health and safety legislation with other Australian jurisdictions (with the exception of Victoria). The Act aims to protect the health and safety of works, improve safety outcomes in workplaces, reduce compliance costs for national businesses and improve efficiency for regulatory bodies and agencies.

The Act is supported by general regulations, the Work Health and Safety (General) Regulations 2022 (WA), as well as several sets of industry specific regulations to account for certain work conditions specific to Western Australia.

Industrial Manslaughter

Section 30A of the Act introduces a new offence relating to industrial manslaughter. This is a critical new provision aimed at ensuring workplace deaths that are the result of the conduct of persons conducting a business or undertaking (a PCBU) and their officers are met with substantial penalties. A person commits industrial manslaughter under the Act if they have a health and safety duty as a PCBU or an officer of a PCBU, and they engage in conduct constituting a failure to comply with that health and safety duty that causes the death of an individual. Importantly, the PCBU or officer must engage in the conduct knowing, and in disregard of, the likelihood of death or serious harm to the individual.

An offence under this provision attracts a penalty of 20 years imprisonment and a fine of $5,000,000 for an individual, and a fine of $10,000,000 in the case of a body corporate.

General Duties

The Act imposes a primary duty of care on PCBU’s involving, in broad terms, ensuring the health and safety of workers so far as reasonably practicable. To enable enforcement, breaches of this duty are classified into three categories.

A PCBU or other person who has a health and safety duty commits a Category 1 offence if they fail to comply with the health and safety duty, and that failure causes the death of, or serious harm to, an individual. Commission of a Category 1 offence carries substantial penalties. If the offence is committed by an individual in their capacity as an officer of a PCBU, it will incur a penalty of imprisonment for 5 years and a fine of $680,000. If the offence is committed by another individual, the associated penalty is imprisonment for 5 years and a fine of $340,000. Commission of a Category 1 offence by a body corporate incurs a penalty of $3,500,000.

For the purposes of a Category 1 offence, a failure causes serious harm if it causes an injury or illness to an individual that endangers or is likely to endanger the individual’s life, or results in or is likely to result in permanent injury or harm to the individual’s health.

A person commits a Category 2 offence if they have a health and safety duty that they fail to comply with, and the failure exposes an individual to the risk of death or of injury or harm to the individual’s health. For an individual, if the offence is committed by the individual as a PCBU or an officer of a PCBU, this offence incurs a fine of $350,000. For any other individual, this offence carries a fine of $170,000. For a body corporate, a Category 2 offence carries a fine of $1,800,000.

Finally, a person commits a Category 3 offence if the person fails to comply with their health and safety duty. The associated penalties include a fine of $120,000 for a PCBU or an officer of a PCBU, a fine of $55,000 for an individual, and $570,000 for a body corporate.

Subscribers should be aware that volunteers and unincorporated associations are exempt from the above offences.

Other key provisions

In addition, the Act has introduced a series of key provisions of which subscribers should be aware, including:

  • a requirement for officers of a PCBU to exercise due diligence in ensuring a PCBU’s compliance with the work health and safety duties under the Act;
  • reporting requirements in relation to notifiable incidents, such as the death or serious injury or illness of a person, or a dangerous accident;
  • obligations relating to consultation on work health and safety matters, including a duty for PCBU’s to consult with other duty holders and workers who are likely to be directly affected by a matter relating to work health and safety (failure to comply with these provisions carries substantial penalties, being $25,000 in the case of an individual or $115,000 in the case of a body corporate);
  • the establishment of a general scheme for authorisations including licences, permits and registrations (for example relating to high-risk work or users of certain plant or substances);
  • protections against discrimination for those who exercise or perform functions or rights under the Act (these provisions carry a penalty of a fine of $115,000 in the case of an individual and $570,000 in the case of a body corporate).

Conclusion

Organisations should be aware of Western Australia’s new harmonised work health and safety legislative framework and begin work to implement new policies and procedures to ensure compliance.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au