In November 2020, the WA Parliament passed the Work Health and Safety Act 2020 (WA) (Act). The Act will take effect once the industry regulations have been finalised, initially anticipated by mid-2021 but now likely towards the end of 2022. The Act is based on the national model Work Health and Safety Act, and aims to provide a consolidated, modern, nationally consistent approach to workplace health and safety laws across Australia.
In this article, we discuss some key changes under the legislation and how these will affect construction industry participants in particular.
Who does the Act apply to?
The Act has wide application and applies to persons conducting a business or undertaking (PCBU). The terms business and undertaking have their ordinary meaning, and are not defined. The phrase is intended to be read broadly, to cover a wide range of businesses or undertakings.1 For example, an owner builder would be considered a PCBU if they were conducting a business or undertaking, such as for the eventual lease or sale of the property.
The Act applies to workplaces and workers. These terms are also defined broadly in the Act, to incorporate a range of environments and situations. The broad definition of workplace also covers working from home arrangements, which are becoming increasingly common.2 The term health has also been expanded, to include both physical and mental health.3
As a result of these broad definitions, the duties imposed in the Act do not arise simply in relation to parties to employment or construction contracts, but also apply in relation to other persons, including contractors and subcontractors ”down the line”. Relevant to the construction industry, labour hire employees are captured as workers.
The Act incorporates several general duties. If the duties apply, they cannot be transferred to another person, such as to an external consultant, a contractor or a labour hire provider.4 In this section, we will outline the duties which are particularly relevant for construction industry participants.
Primary duty of a PCBU
A PCBU will have a primary duty of care to ensure that workers and others (which could include subcontractors ”down the line”) are not exposed to a risk to their health and safety.
This applies where the PCBU can engage or cause to engage a worker to carry out work (including through a subcontracting arrangement),5 can direct or influence work carried out by a worker,6 or has management or control of a workplace.7
This duty requires a PCBU to ensure, amongst other things, that the health of workers and conditions at workplaces are monitored to prevent illness or injury arising in the workplace, and that adequate facilities are provided to ensure workers’ welfare when carrying out certain functions.8
Officers of a PCBU are also obliged to exercise due diligence, to ensure that the PCBU is complying with its duties and obligations.9
Duty to Consult
Where more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have the same duties.10 A failure to do so attracts a penalty of $25 000 for an individual and $115 000 for a body corporate.
A PCBU also has a duty to consult workers who carry out work for the business or undertaking. This consultation must be in accordance with established procedures (if any).11
Duties of PCBU who design plant, substances or structures
A PCBU who is involved in the design of plant, substances or structures (PSS) has a duty under the Act to ensure (so far as is reasonably practicable) that the PSS is designed to be without risks to the health and safety of certain persons. These persons include those who would use, handle, store or construct the PSS.12 It also includes any person who is in the vicinity of a workplace who is exposed to the PSS, whose health and safety may be affected by uses or activities with the PSS.13
Other duties include that a designer must ensure that all necessary calculations, analysis, testing or examinations have occurred,14 and provide this information to each person who is given the design for the purpose of giving effect to it.15
Duties of PCBU that install, construct or commission plants or structures that are to be used
A PCBU who installs, constructs or commissions plant or structures to be used should ensure, so far as is reasonably practicable, that the way in which any plant or structures are installed, constructed or commissioned do not pose risks to the health and safety of certain persons.16 These persons include those who use, install or construct the plant or structures.17
A PCBU is also responsible for ensuring that they do not put the health and safety of other persons at risk from work carried out as part of the conduct of the business or undertaking.18 This indicates that the primary duty will also extend to persons such as visitors on construction sites, despite them not being directly engaged.19
These duties create distinct categories of accountability for many persons involved in construction projects to ensure that risks to the health and safety of persons outlined above are avoided. As noted above, these duties cannot be contracted out of, or transferred.
Enforcement Measures and the New Industrial Manslaughter Laws
The Act introduces strict enforcement measures, including a new industrial manslaughter regime, as a way to ensure that deaths and injuries at workplaces are met with substantial penalties. Importantly, a person who is liable is no longer able to insure against or be indemnified for the payment of fines relating to an offence committed.20
The Act creates two distinct offences for industrial manslaughter – one for simple offences (Category 1) and one for crimes (Category 2). A Category 2 offence attracts the harshest penalty in the Act, and has substantial maximum penalties.
A person will commit a Category 1 offence in circumstances where the person fails to comply with a health and safety duty as a PCBU, and this failure causes the death of an individual.21An officer of a PCBU will commit a Category 1 offence where the PCBU’s conduct can be attributed to any neglect on the part of the officer or is engaged in with the officer’s consent or connivance.22
For a Category 1 offence, an individual (including an officer) will face a term of imprisonment of up to 10 years and a fine of $2.5 million and a body corporate will face a fine of up to $5 million.23
A person will commit a Category 2 offence, in circumstances where:
- the person has a health and safety duty as a PCBU;
- the person engages in conduct that causes the death of an individual;
- 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 an individual; and
- in disregard of that likelihood.24
An officer of a PCBU will also commit a Category 2 offence where, the PCBU’s conduct above is:
- attributable to the neglect of the officer or engaged in with the officer’s consent or connivance; and
- the officer knew that the PCBU’s conduct was likely to cause death or serious harm and disregarded that likelihood.25
For a Category 2 offence, an individual (including an officer) will face imprisonment for 20 years and a fine of $5 million whereas a body corporate faces a fine of up to $10 million.26 This builds on and reflects the current level 3 offences under the current Occupational Safety and Health Act 1984 (WA). The current Act also makes it possible to be imprisoned for OHS offences even though these aren’t categorised as “industrial manslaughter” offences. For example, a recent decision of the Esperance Magistrates Court sentenced the director of an Australian company, MT Sheds, to two years and two months’ imprisonment after he plead guilty to gross negligence causing the death of a 25-year-old worker and serious injury of another.
It is clear that all construction industry participants including individual officers should familiarise themselves with their obligations under the Act and take positive action to ensure that they comply with the duties which are imposed once the Act commences operation.
This will include undertaking training sessions or hosting seminars to ensure workers and managers are aware of their duties and ensuring that construction contracts are compliant. To this end, if you need further advice regarding compliance or the specific obligations outlined in the Act, please contact one of the authors.
This article was written by Kate Morrow, Partner, Danielle Flint, Special Counsel and Lara Scott, Solicitor.
1 Explanatory Memorandum, Model Work Health and Safety Act, paragraph 24.
2 Act, s7, 8. Note: the definition of workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. A person is a worker if the person carries out work in any capacity for a PCBU, including work as an employee, a subcontractor, or an employee of a contractor or subcontractor.
3 Act, s4.
4 Act, s5.
5 Act, s19(1).
6 Act, s19(1).
7 Act, s20(2).
8 Act, s19(3).
9 Act, s27(1). Note: Exercising due diligence includes taking reasonable steps to acquire and keep up-to-date knowledge of work health and safety matters, and to ensure that the PCBU has appropriate resources and processes to eliminate or minimise risks to health and safety from work (s 27(5)).
10 Act, s46.
11 Act, s47(2). Note: The nature of the consultation should be such that, among other things, it gives workers a reasonable opportunity to express their views, raise work health and safety issues and contribute to the decision-making process relating to the matter (s 48(1)).
12 Act, s22(1).
13 Act, s22(2).
14 Act, s22(3).
15 Act, s22(4).
16 Act, s26(1).
17 Act, s26(2).
19 Act, s19(2).
20 Act, s272 (3).
21 Act, s30B(1).
22 Act, s30B(c) -(d).
23 Act, s30B(1)(a)-(b).
24 Act, s30A(1).
25 Act, s30A(3)(a)-(e).
26 Act, s30A(1)(a)-(b), (3).