Changes to Western Australia’s safety laws are imminent – The time to act is now

27 November 2019

Wide ranging changes to Western Australia’s occupational safety and health laws were introduced into the lower house of State parliament today. After years of consultation and discussion, Western Australia has taken steps to harmonise its occupational health and safety laws in the final sitting week of parliament for 2019. The Work Health and Safety Bill 2019 (WHS Bill) is expected to pass through the lower house of parliament quickly, making now the time to understand and act on the proposed changes contained in the WHS Bill.

What do you need to do?

Once enacted, we expect most of the provisions of the WHS Bill to apply immediately. Whilst there is no knowing exactly how long the WHS Bill will take to go through the upper house of State Parliament and for the regulations which will support the WHS Bill to be finalised, it is important that all PCBU, individuals and others with operations in Western Australia take steps now to prepare for the imminent changes to Western Australia’s health and safety laws.

For PCBUs, this will involve conducting a thorough review of your risk management systems, health and safety policies and procedures, training regimes and control systems to making any necessary changes to ensure compliance. It will also require training of all workers in the new obligations.

For individual officers, this will involve preparing to demonstrate that they understand their personal duties and are taking positive steps to ensure your business is complying with the WHS requirements, including:

  • Acquiring knowledge and keeping up-to-date about WHS matters;
  • Understanding the business, including WHS hazards and risks;
  • Ensuring the business has the right resources and processes in place, and uses those resources and processes to eliminate or minimise WHS risks;
  • Ensuring the business has the right processes to receive and respond to reports of incidents, hazards or other WHS issues, and processes to comply with any other WHS duties; and
  • Verifying the processes and resources set out above are being used.

What is driving the change?

Nationally, with the exception of Western Australia and Victoria, all jurisdictions have adopted laws based on a model Work Health and Safety Bill first developed by Safe Work Australia in 2009. In 2017, the McGowan State Government recognised that the existing Western Australia occupational safety and health laws no longer reflected modern employment practices and announced a commitment to develop modernised health and safety laws based on the model adopted by other Australian jurisdictions.

This morning, the resultant WHS Bill was introduced in the lower house of State parliament and, as expected, largely reflects the harmonised laws adopted elsewhere in Australia.

What are the main changes you need to be aware of?

Workplace safety will come under a single act covering all workplaces.

Introduction of the PCBU concept: a “Person Conducting a Business or Undertaking” replaces the outdated concept of an “employer” as the person primary health and safety duties are imposed on. A PCBU can be a sole trader, each partner within a partnership, a joint venture, a company, an unincorporated association, a volunteer body, a not for profit organisation, a government department or a public authority (including a local government) whether or not they are operating for profit or gain. The real significance of this change will be felt by non-operating business partners and joint venturers who will now have to take a much more active role in ensuring safety in the business.

A change to the primary duty: the new laws will require all PCBUs to ensure, so far as is reasonably practicable, while workers are at work in the business or undertaking, the health and safety of:

  • Workers engaged, or caused to be engaged by the person; and
  • Workers whose activities in carrying out the work are influenced or directed by the person.

This change will drive a need to focus on the risks a hazard may cause and to manage those risks to a practicable level. The duty to ensure health includes a duty with respect to taking positive practicable steps to ensure the mental health of workers.

Penalties for WHS breaches will no longer be insurable: duty holders will no longer be able to obtain insurance for a penalty imposed following a WHS prosecution. This change means that businesses need to ensure they are taking proactive steps to develop procedures designed to meet their legal obligations and to ensure compliance with those procedures by their workforce.

Inclusion of the new offence of “Industrial Manslaughter”: under the new laws, individuals may be charged with “Class One” or “Class Two” Industrial Manslaughter in the event of a workplace death. Class One Industrial Manslaughter will cover conduct that is engaged in, with knowing disregard, that it is likely to cause death and will carry a maximum jail term of 20 years. Class Two Industrial Manslaughter will cover conduct that is a negligent breach of a duty owed by a PCBU that results in death and will carry a maximum jail term of 10 years. The inclusion of this offence again means a need to ensure compliance with procedures and processes.

Officer due diligence: officers of PCBUs will have personal obligations to demonstrate a proactive approach to workplace health and safety matters. Officers must exercise ‘due diligence’ to make sure the business meets its duties to protect workers and other persons against harm to health and safety. All officers will need training to ensure they fully understand these obligations and are taking all necessary steps to comply with them.

Workplace health covers both physical and psychological health: this means PCBU’s must ensure they have done a psychosocial risk assessment and implemented controls. it also confirms the need to investigate psychological matters as health and safety incidents.

Duty to consult with other duty holders and workers and their representative: the new laws will require duty holders with shared responsibilities to work together to make sure someone does what is needed. This requires consultation, co-operation and co-ordination between duty holders such as partners, joint venture partners, and principals and contractors. PCBUs will also be required, so far as is reasonably practicable, to consult with workers and health and safety representatives about matters that directly affect them. This duty will extend to consulting with all kinds of workers, not just the PCBU’s own employees, and will include contractors and their workers, employees of labour hire companies, students on work experience, apprentices and trainees.  Meeting these consultation duties may require some planning to take place as to how and when consultation will be undertaken in your business.

Who will the changes apply to?

The WHS Bill, once enacted, will apply to all individuals, companies, partnerships, joint ventures, associations and governments with operations in Western Australia. Volunteer organisations will be captured where they employ anyone.

How can HWL Ebsworth help?

HWL Ebsworth will notify our clients when the WHS Bill is enacted and becomes operative.

HWL Ebsworth’s team is well versed in assisting clients to manage workplace health and safety obligations and challenges and is backed by experience of having assisted clients in other jurisdictions in responding to similar changes in their WHS laws.

We can work with you to:

  • Advise on the new laws and their particular implications for your business;
  • Review and update your systems and process to ensure compliance with the new requirements;
  • Train your officers and managers about the new legal obligations and what Courts and regulators are likely to consider is required for compliance;
  • Develop practical and simple tools for use in the field as daily evidence of compliance; and
  • Develop tools to assist with your auditing to ensure ongoing compliance with the new obligations.

This article was written by Sarah Harrison, Partner and Danielle Flint, Senior Associate.

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