June 9, 2020 6:53 am

The Work Health and Safety Bill (WHS Bill) that was introduced into WA’s Legislative Assembly on 27 November 2019 will be the first major reform to workplace health and safety laws in WA since 1983. The adoption of the harmonised model WHS Bill will also see WA align with the national Model WHS laws which will provide for a regulatory framework more conducive to contemporary health and safety standards and aims to promote safer workplaces throughout WA. It is likely that the Bill will come into force before the end of 2020, so it is vital that all businesses and management are not only aware of their responsibilities and duties, but that they have also undergone the necessary preparation to ensure compliance with the new laws.

1) What is the current status of the bill? 

On 20 February 2020 both the Work Health and Safety Bill 2019 (and Safety Levies Amendment Bill 2019) were introduced into the Legislative Council and referred to the Standing Committee on Uniform Legislation and Statutes Review. The Committee presented its final report on the Bills on 12 May 2020. The Legislative Council can now debate the Bills and pass them subject to any amendments. Both houses of the WA Parliament are scheduled to sit at various times from June to August 2020.

2) Who needs to be aware of the changes?

When the Bill is enacted, the new work health and safety laws will apply to duty holders who will be known as persons conducting a business or undertaking’ (PCBUs). This is broader than the term ‘employer’, as it encompasses companies, individuals, partnerships, unincorporated associations and joint ventures.

3) What are the major changes?

Officers must exercise due diligence

The duty of due diligence for officers of PCBUs, while imposing a different direct duty on officers and directors, the apparent policy objective of this new duty is that it will provide for a more positive and practical approach to work health and safety matters, designed to increase accountability and promote a healthy and safe work culture. Due diligence includes taking reasonable steps to acquire and keep up-to-date knowledge of work health and safety matters, gaining an understanding of the nature of the operations, and ensuring appropriate resources and processes are in place to eliminate or minimise risks and hazards. Consequently, in order to conform with due diligence officers must carry out duties such as reporting notifiable incidents, consulting with workers, and ensuring the provision of training and instruction to workers about work health and safety.

Industrial manslaughter penalties

An important aspect of these reforms is that two new offences have been created that will be known as “industrial manslaughter.” The first category applies a PCBUs engages in conduct with knowing disregard that is likely to cause death, carrying a maximum jail term of 20 years (and $5 million for officers, $10 million for bodies corporate). An officer can be held responsible for the crime of the PCBU that is attributable to their neglect or they consented or connived in the offence and their conduct was in the knowledge that the PCBU’s conduct was likely to cause the death and in disregard of that likelihood. The second category of offence carries a maximum jail term of 10 years (and $2.5 million for officers, $5 million for bodies corporate) for a breach of duty by a PCBU that results in death. These offences differ from other Australian jurisdictions as a person may be charged with the second category for failure to comply with their health and safety duties, as opposed to requiring proof of negligent conduct. An officer can be held responsible for the crime of the PCBU if attributable to their neglect or they consented or connived in the offence of the PCBU. These offences, save for the astronomical increase in penalties, are largely the same as the current Level 4 and Level 3 offences in the OSH Act and MSI Act. Similarly, the attribution offences applicable to officers have the same threshold mental elements as under current provisions. That is, the main difference is increased penalties.

Primary duty of care

The Bill includes a primary duty of care applicable to all PCBUs, requiring them to ensure so far as is “reasonably practicable” the health and safety of workers engaged by the person and workers whose activities are influenced or directed by the person. This duty obliges PCBUs to take proactive steps to minimise risks and hazards and provide and maintain safe systems of work. Conceptually, this duty is unchanged from existing laws, however, the legal position of principals arising from contracting and labour hire relationships will be less distinct. That is, a PCBU will owe a duty to employees and others under their control regardless of whether they are employed by a contractor or engaged through a labour hire agency.

Workplace health to be defined as both ‘physical and psychological health

The Bill defines ‘health’ to mean ‘physical and psychological health’, highlighting WA’s commitment to recognising mental health in the workplace. This change emphasises the need to develop and implement strategies to prevent and reduce both physical and psychological risks in the workplace.

Other changes

Other significant changes include that PCBUs also need to be aware of are the duty to consult with other duty holders, the increased role of WHS Inspectors in workplace WHS disputes, and the prohibition on insurance for monetary penalties. Again, these changes also have the apparent policy objective of modifying the workplace landscape by placing more pressure on PCBUs to comply with health and safety standards.

4) What preparatory steps do you need to take?

All PCBUs need to take the necessary steps to not only understand the new laws, but to also design and implement effective strategies to comply with health and safety standards. Firstly, it is crucial that officers take reasonable steps to comply with the duty of due diligence by: acquiring and keeping up-to-date knowledge of work health and safety matters. For example, officers will need to be appraised of the detail of the WHS laws, Codes of Practice relevant to the principles for managing safety risk, industry standards and practice as well as possible strategies and processes for eliminating and minimising risks; gaining an understanding of the nature of the operations, and the risks and hazards associated with the business; ensuring that appropriate resources are available to support the processes for elimination and minimisation of risk; ensuring that the business has applicable processes for receiving information regarding incidents, hazards and risks in order to respond in a timely manner and take further action if required; and ensuring that the business is complying with any duty or obligation under the Work Health and Safety Act. Secondly, it is essential that PCBUs take action before the Bill comes into operation by updating their health and safety policies, procedures and protocols and subsequently training the relevant personnel of their new duties and obligations before the Act comes into force.

5) How can S Billing & Associates help you?

S Billing & Associates can assist you in preparing your business for the new work health and safety laws by providing the following:

  • A tailored explanation relevant to your business of all the changes that will affect you;
  • Review of your health and safety policies, training procedures, risk management systems, and any other relevant health and safety processes and recommend adjustments to ensure compliance with the new laws;
  • Training to officers and relevant personnel on the new duties and obligations in place and how to manage continual compliance; and
  • Developing effective and pragmatic strategies your business can implement to maintain ongoing compliance.

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