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New occupational health and safety legislation in Western Australia

Please note: This article is intended to be brief information only and should not be relied or acted upon as legal advice. You should always seek legal advice tailored to your own individual circumstances. Please also note that this article is current as at the date of publication and the law may have subsequently changed since.

The Work Health and Safety Act 2020 (WA) (WHS Act) has now come into force and will apply to most workplaces in Western Australia.

The WHS Act replaces the Occupational Safety and Health Act 1984 (WA) (OSH Act), and elements of the Mines Safety and Inspection Act 1994 (WA) and other resources legislation relating to work health and safety.

The new WHS Act introduces the concept of a “person conducting a business or undertaking” (PCBU) as the person with the primary duty of care. Whilst a PCBU will include an employer in the ordinary sense, it is expected that the concept of PCBU in the new WHS Act will cover, and impose duties in relation to, persons involved in a broader range of workplace relationships that may not readily fall into traditional concepts of employment (such as the “gig” economy and labour hire arrangements).

Under the WHS Act, the primary duty of care for a PCBU is generally to ensure, so far as is reasonably practicable, the health and safety of workers and other persons who might be affected by their undertakings. This primary duty of care is not dissimilar to the previous obligations of an employer under the OSH Act. However, there are numerous other new or different obligations under the new legislation.

Quite significantly, the WHS Act introduces broad consultation obligations, which go well beyond what was required under the former OSH Act.

It is also important to note that section 27 of the WHS Act requires that “officers” (which includes a director in respect of a company) must exercise “due diligence”’ to ensure that the PCBU complies with their duties and obligations under the WHS Act. This obligation is directed at ensuring that directors and other senior persons take responsibility for ensuring compliance with workplace health and safety obligations.

Whilst the WHS Act largely follows the model Work Health and Safety Bill (which has been enacted in most Australian States and Territories), there are a number of differences which are peculiar to the Western Australian legislation.

Perhaps most notably, the WHS Act includes an offence of industrial manslaughter which is a crime and carries significant penalties of up to 20 years’ imprisonment and a $5 million fine for an individual and a maximum $10 million fine for a body corporate (see section 30A).

Other significant differences include:

  • a prohibition against insurance cover for monetary penalties which may be imposed under the WHS Act (with the intent of further encouraging compliance and ensuring that persons conducting a business undertaking are fully accountable for their actions); and
  • no right of entry for unions or industrial associations (although a right of entry may be available under other legislation, such as the Industrial Relations Act 1979).

In light of the introduction and commencement of the WHS Act, employers and other PCBUs will need to undertake a review of the new legislation and ensure that they are fully compliant with their obligations. Separate to PCBUs, officers and employees should also take steps to ensure they understand their own obligations under the legislation.

Further information

If you require advice or assistance, please do not hesitate to contact us.