Running a business in WA? Everything you need to know upcoming changes to Work Health and Safety.

Miner in protective gear.

What is the WA WHS Act 2020?

The WA Work Health and Safety Act 2020 (WHS Act) is the first major overhaul of Western Australia’s WHS laws in over 30 years.

The new laws are intended to improve the protection of workers by implementing modern employment agreements, higher penalties for companies and individuals, and introducing the term ‘person conducting a business or undertaking’ (PCBU).

For our friends outside of WA, this is familiar territory. This Act is harmonising WA with Australia’s other States and Territories (excluding Victoria) and will replace:

  • the current Occupational Safety and Health Act 1984
  • WHS elements of the Mines Safety and Inspection Act 1994
  • WHS elements of the Petroleum and Geothermal Energy Safety Levies Act 2011

Who Will be Affected?

The short answer is everyone. Moving forwards, this single Act will cover all aspects of safety in every WA workplace.

The long answer is: mainly small and medium businesses will be affected. It will be easier to prosecute individuals and the penalties are high enough to bankrupt them, but more on this later.

What are the Major Changes of WA’s WHS Act?

1. Increased Penalties

Yes, that’s right, all penalties are increasing.

But the most significant in the entire legislation is the gross negligence/industrial manslaughter penalty. The current maximum penalty for a company is $2.7 million and under the new WHS Act this jumps up to $10 million.

Penalties are just as detrimental for individuals. If you’re found guilty of industrial manslaughter, you can currently face a maximum fine of $550,000 plus five years in prison. Once the WHS Act takes over, you could be hit with a $5 million fine and up to 20 years in prison.

2. PCBU & Workers

PCBU is a new term to WA’s WHS laws and stands for Person Conducting a Business or Undertaking. This is a broad term used throughout WHS legislation to describe all forms of modern working arrangements.

PBCU can be an employer, as well as a:

  • Corporation
  • Association
  • Partnership
  • Sole trader
  • Volunteer organisation that employs people to carry out work
  • Local government council
  • Independent school
  • Government department and authorities

PCBUs must meet obligations to ensure the health and safety of their workers and others like visitors and volunteers.

Speaking of workers, the term “worker” is also broader under the WHS Act, and includes:

  • An employee
  • Subcontractors and casual workers
  • Employee of a contractor or subcontractor
  • Employee of a labour hire company
  • Outworker
  • Apprentice or trainee
  • Volunteer
  • Student on work experience

PCBUs have an equal duty of care to a worker, even if there are multiple PCBUs involved. For example, if you employ a contractor who brings in a labour hire worker, you, the contractor, sub-contractor and the labour hire company all share the same duty of care to that labour hire worker. So, if an incident occurs, you can all be prosecuted under the WA WHS Act.

3. Industrial Manslaughter

This is the one that everyone is talking about.

As you know, penalties for industrial manslaughter are increasing under the WA WHS Act, but there’s more.

The criteria for convicting someone for industrial manslaughter under the WHS Act are the same as convicting someone under the current gross negligence law. But the WHS Act states that prosecutors no longer have to convict the company to be able to convict individual company officers – but more on that later.

The industrial manslaughter provisions came into effect in WA in 2004. Since then, there have been 421 workplace fatalities in WA and one completed gross negligence prosecution, which happened towards the end of 2020.

4. Positive due diligence

This new legislation has made it administratively easier to prosecute company officers. Most companies go into liquidation when faced with a WHS prosecution. Under our current laws, if your company goes into liquidation, it can’t be prosecuted. This means the WA Supreme Court has to get your company reinstated in order to prosecute the company officer.

However, under the WHS Act the company doesn’t have to be convicted of an offence to be prosecuted. There doesn’t even have to be an accident or an incident. If you as a company officer have shown you have not met your obligations of due diligence, you can be prosecuted.

Key takeaway: If a company officer shows they have not met their obligations of due diligence, they can be prosecuted – even if an accident hasn’t occurred.  This includes consultation, training and reporting of incidents, (notifiable incidents as determined in Part 3 sect. 25 the WA WHS Act), near misses and risk assessment.

5. Insurance

If you’re prosecuted under the current OHS Act, your insurance can pay for your legal fees and your penalties.

Once the WHS Act comes into effect, your insurance can still pay for your legal fees, but when it comes to paying the penalty, company officers and PCBUs cannot take out insurance to cover fines for breaches. Insurance companies cannot insure employees against prosecution or penalties.

6. WHS Advisors

There is a new section in the WHS Act specifically for external WHS advisors (like us). If an external WHS advisor gives advice about health and safety in your business, we have to ensure that the advice doesn’t create hazards in your business.

If hazards are created as a result of poor advice, advisors can be sued for negligence, sued under professional indemnity insurance and prosecuted.

“But it is not a defence to say: I got bad advice”.  As an employee or business owner, you cannot simply point the finger at your safety advisor and get off with a slap on the wrist if an incident occurs.

For more information click here.

Important Notice
The information contained in this article is general in nature and you should consider whether the information is appropriate to your specific needs. Legal and other matters referred to in this article are based on our interpretation of laws existing at the time and should not be relied on in place of professional advice. We are not responsible for the content of any site owned by a third party that may be linked to this article. SafetyCulture and Mitti disclaims all liability (except for any liability which by law cannot be excluded) for any error, inaccuracy, or omission from the information contained in this article, any site linked to this article, and any loss or damage suffered by any person directly or indirectly through relying on this information.

You must decide whether or not it is appropriate, in light of your own circumstances, to act on this advice. You should ensure you obtain and consider the policy wording or Product Disclosure Statement for the policy before you make any decision to buy it.

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