The new Western Australian Health and Safety Act was given the Royal assent by the Governor on the 10th of November 2020. However, the act has not been released yet and will not happen until the WHS regulations are finalised. Barclayss’ Consultant HS-Advisor, Bruce Brodie explains what’s been introduced and updated in the new Act.
There are three new regulations – General, Petroleum and Mining. From what I have been told, these regs are significantly different from the previous regs. The new regulations are expected to be finalised sometime in 2021. Also, there will be a transition period from when the new health and safety legislation is released to when it becomes enforceable.
NEW WORKSITES COVERED UNDER THE ACT
There are new worksites which come under this act including, onshore and offshore petroleum, pipelines and mining industries. Therefore, petroleum, pipeline and mining, as well as general industry, will need to become familiar and comply with the new legislation.
Currently there are 6 WA health and safety acts covering WA worksites. This will be reduced to the one act.
The new WHS Act will cover all WA workplaces and will replace:
- The current OSH Act 1984, and elements of the following acts,
- Mines Safety and Inspection Act 1994,
- Petroleum and Geothermal Energy Resources Act 1967,
- Petroleum Pipelines Act 1969,
- Petroleum (Submerged Lands) Act 1982, and the
- Petroleum and Geothermal Energy Safety Levies Act 2011 that relate to work health and safety.
NEW TERM, PCBU
Since 1984 when the current, or old, OSH act was enacted there has been move away from the traditional employer/employee relationship. In today’s worksites there can be several employer levels sitting above the employee. Determining who is in control of a particular work activity can be problematic.
Therefore, to provide some clarification on this issue a new term has been introduced – Person Conducting a Business or Undertaking or PCBU. A PCBU’s primary duty of care is to ensure, so far as reasonably practicable, the health and safety of workers and others.
The person can be an individual or an organisation, the PCBU can also be a worker at the same time. A PCBU can have duties of managing or controlling workplaces or plant at worksite and there can be more than one PCBU on a worksite at the same time.
To determine which person is the PCBU for a particular work activity you need to ask which person:
- Engaged the workers to perform the activity, and
- Directs and influences the workers performing the activity.
Understanding these changes and ensuring that your organisation is meeting your PCBU obligations will be an important factor in complying with the new act.
THE TERM, OFFICER
‘Officer’ is defined by the Commonwealth Corporations Act 2001 and includes (among others) CEOs, CFOs, directors and managers who participate in making decisions that affect a substantial part of the business. An organisation’s HS Officer is not considered an officer under the act.
Previously, senior managers or officers could be found guilty of an offence if there was neglect on part of the manager or officer. However, under the new act, officers of a PCBU must now demonstrate due diligence to ensure the PCBU complies with its obligations.
This is regardless of whether there is a safety incident or not.
The act sets out 6 steps of due diligence. Understanding and applying these 6 steps will be an important factor in ensuring your organisation complies with the new act.
The officer ensures that the PCBU:
- acquires and keeps up-to-date knowledge of WHS matters
- understands the operation’s hazards and risks
- has appropriate resources and processes to eliminate or minimise HS risks
- has appropriate information on incidents, hazards and risks
- has appropriate processes for complying with their HS duty
- prepares, collates and keeps up to date WHS records on WHS matters
NEW INDUSTRIAL MANSLAUGHTER OFFENCES
The new act provides two new industrial manslaughter offences for breaches of a health and safety duty involving death:
- ‘Industrial Manslaughter – simple offence’ arises when a PCBU fails to comply with their health and safety duty and the failure causes the death of an individual.
- ‘Industrial Manslaughter – crime’ is the more serious offence and arises when a PCBU engages in conduct that causes the death of an individual and is aware that the conduct will likely cause death.
The simple offence attracts a maximum penalty of 10 years imprisonment and a fine of $2,500,000 for an individual or a fine of $5,000,000 for a body corporate. The criminal offence attracts a maximum penalty of 20 years imprisonment and a $5,000,000 fine for an individual or a fine of $10,000,000 for a body corporate.
An officer can also be charged with industrial manslaughter offences, but additional elements of the offence must be proven. This includes establishing that the PCBU’s conduct was attributable to any neglect or consent on part of the officer. Only PCBUs and officers can be charged with manslaughter.
THE NEW DEFINITION OF HEALTH
Health now means psychological as well as physical health.
Since 1984 when the current OSH act was enacted there has been an increasing expectation from society that workplaces will not, as with physical health, negatively impact the psychological health of workers.
Therefore, PCBUs will now have to take steps to identify hazards that negatively impact workers’ psychological health and then eliminate or reduce the risk as far as reasonably practicable.
To help with this, Safe Work Australia have released 2 new guides just this year related to psychological health titled “Preventing Workplace Sexual Harassment” and “Preventing Workplace Violence and Aggression”.
This concludes the series on the new Western Australian Work Health and Safety Act 2020.
If you need further information, you can:
- Go to the WA WorkSafe website and sign up for alerts on the release of the new legislation.
- Contact their industry body.
- Contact myself at Barclayss®. I would be happy to clarify anything discussed in this article.