Work Health & Safety Act 2020

Matt Butterworth

Safety & Risk Consultant

Western Australia has joined New South Wales, Queensland, South Australia, the Northern Territory and Tasmania in adopting new harmonised work health and safety (WHS) laws. The Work Health and Safety Act 2020 (WA) (the Act) passed through the Legislative Assembly on 3 November 2020. The Act  replaces the existing Occupational Safety and Health Act 1984 (WA) and imposes a primary duty of care requiring persons conducting a business or undertaking to reasonably ensure the health and safety of workers. While the Act has been passed it won’t come into full effect until the Work Health and Safety Regulations are proclaimed. The latest information is this could be in the latter part of 2021.

The Act is now available for public access and can be downloaded from the WA Government’s legislation website.

Industrial manslaughter offence – section 30A

The offence of industrial manslaughter – crime (section 30A) will apply a PCBU or officer engaging in conduct knowing the conduct is likely to cause death “or serious harm” to an individual. “Serious harm” is defined as illness or injury that endangers (or is likely to endanger) the individual’s life, or results (or is likely to result) in a permanent injury or harm to the individual’s health. The industrial manslaughter – crime offence carries the potential imprisonment term for up to 20 years and a fine up to $5,000,000 for an individual or person conducting a business or undertaking (PCBU) and up to $10,000,000 for a body corporate.

Category one offence – section 31

Importantly, it seems that the Category one offence under section 31 will be more onerous than in other jurisdictions. This is because it does not include any element of recklessness or gross negligence, which is a key element of the offence in other jurisdictions with the model WHS Act.

In brief, if a PCBU fails to comply with their duty of care and this failure causes the death of, or “serious harm” to, an individual, they will face a potential penalty if charged with a Category one offence of five years imprisonment and $680,000 (for an individual) or $3,500,000 penalty for a body corporate. Recklessness or gross negligence will not be relevant.

How does this affect REEFWA members?

All ‘persons conducting a business or undertaking’ (PCBUs) and their officers should familiarise themselves with the Act, especially the new industrial manslaughter offence. The PCBU will effectively replace the ‘employer’ label under the current Occupational Safety and Health Act. Officers in particular should ensure they understand their obligations with respect to the PCBU’s WHS duties and officer due diligence.

Dangerous work environments are inherent to certain industries, but REEFWA employers should bear in mind that even low risk industries need proper safety frameworks in place. Workplace bullying and harassment constitute risks to health and safety and these risks arise in all organisations.

With a few months before the new legislation takes effect, now is the time to review your risk management systems, training regimes and occupational health and safety policies. It is important to note that REEFWA members have access to a Health and Safety policies and procedures manual via the REEFWA website which can be customised to your business.

Directors and key managers should have a thorough understanding of their personal duties and ensure that their business is compliant with the WHS Act

How can CCIWA help?

Health and Safety Check-up just $199.00 (ex GST) Price applicable to Perth metro and Peel regions only. Travel costs will apply to agencies outside this region.

Ideal for REEFWA members with limited time and safety resources, this check-up involves our experienced safety practitioners conducting a physical inspection of your workplace and providing safety advice and recommendations based on their findings.

If you would like to know more about your obligations and what the WHS Act means for your business, contact one of CCIWA’s specialist safety practitioners at osh@cciwa.com

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