WA’s Work Health and Safety Act 2020

The WA Work Health and Safety Act 2020 (WHS Act) came into power in March 2022.

This single Act will cover all aspects of safety in every WA workplace and will compel all WA businesses to ensure their current Safety Management Systems are revised to abide by the new WHS legal requirements.

Here are a few changes the WA WHS Act will bring:

Insurance

Insurance will no longer cover penalties, ensuring businesses and management are held liable for their actions and paying their fines.

The new workplace health and safety insurance provisions in WA will make it an offence to:

1. enter into, or offer to enter into, an insurance policy that intends to indemnify/compensate a person for the person’s liability to pay a fine for an offence against the WA Act; or
2. indemnify, or offer to indemnify, another person for the other person’s liability to pay a fine for an offence against the WA Act; or
3. be indemnified, or agree to be indemnified, by another person for a liability to pay a fine for an offence against the WA Act; or
4. pay to another person, or receive from another person, an indemnity for a fine for an offence against the WA Act.

PCBU

Person conducting a business or undertaking (PCBU) is the term given to an employer, sole trader, corporation, association, partnership local government (council), state or commonwealth government, certain volunteer organisations, or the trustee of a trust.

Also a self-employed person is a PCBU, and must ensure his or her own health and safety while at work, so far as is reasonably practicable.

The key duty of a PCBU  is to make sure, so far as is relatively practicable, that the health and safety of workers and others is not put at risk by the work carried out by the business or undertaking.

Consequently, this duty requires PCBUs to provide and maintain:

• a safe work environment
• safe plant and structures
• safe systems of work
• safe use, handling and storage of plant, structures and substances
• adequate facilities to support the welfare of workers
• information, training, instruction or supervision
• monitoring of workers’ health and workplace conditions to prevent illness or injury

Increased Penalties

Industrial manslaughter will now be recognised in court and will carry a maximum penalty of 20 years imprisonment, a $5 million fine for an individual, and a $10 million fine for a corporate body.

Due Diligence

Under previous OHS 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.

This new bill has made it easier to prosecute company officers.

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.