Work Health and Safety Act 2020 (WA) | A brief summary of key features

From 31 March 2022, the Work Health and Safety Act 2020 (WA) (WHS Act) and supporting regulations will be in operation. Below is a brief summary of new features of the WHS Act for your quick reference.

Changed definitions:

Persons conducting a business or undertaking (PCBU)

Instead of the employer, the primary health and safety duty under the WHS Act will now be placed on all PCBU’s:

• whether alone or with others;
• whether for profit or gain

A PCBU includes a business or undertaking conducted by a person, corporate entity, partnership or unincorporated association.

Workers not employees

A PCBU’s primary health and safety duty will not be limited to just employees but all workers, which means a person who carries out work in any capacity for a PCBU, including as:

• an employee;
• a contractor or subcontractor (or an employee of a contractor or subcontractor);
• an employee of a labour hire company;
• an outworker;
• an apprentice or trainee;
• work experience students; or
• volunteers.

Health

“Health” is defined in the WHS Act to mean both physical and psychological health.

Officer Duties

Officers of PCBU must exercise due diligence to ensure that the PCBU complies with each duty or obligation it has under the WHS Act.

Officer means a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business or undertaking.

Due Diligence includes taking steps to:

• acquire and keep up to date knowledge of WHS matters;
• gain an understanding of the nature of the operations of the PCBU and generally of the hazards and risks associated with those operations;
• ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health safety from work carried out;
• ensure the PCBU has appropriate resources for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
• ensure that the PCBU has and implements processes for complying with any duty or obligation of the PCBU under the WHS Act; and
• verify the provision and use of such resources.

Increased Penalties

Category 1 (failure causes death or serious harm)

• Individual (including as an officer) 5 years imprisonment $680,000 fine
• Body Corporate $3.5 million fine

Category 2 (failure exposes individual to risk of death or serious harm)

• Individual $170,000 fine
• Body Corporate $1.8 million fine
• Individual Officer of PCBU $350,000 fine

Category 3 (failure to comply with duty)

• Individual $55,000 fine
• Body Corporate $570,000 fine
• Individual Officer of PCBU $120,000 fine

Industrial Manslaughter

A person commits industrial manslaughter (a crime) if:

• The person engages in conduct that causes the death of an individual;
• The conduct constitutes a failure to comply with a health and safety duty; and
• The person engages in the conduct: – Knowing that the conduct is likely to cause the death of, or serious harm to, an individual; and – In disregard of that likelihood.

• Individual (including as an officer) 20 years imprisonment $5 million fine
• Body Corporate $10 million fine

Consultation

PCBUs must, so far as is reasonably practicable, consult with workers who are, or are likely to be directly affected by WHS matter, including when:

• identifying hazards and assessing risks to health and safety from work to be carried out;
• making decisions about ways to eliminate or minimise those risks;
• making decisions about the adequacy of facilities for the welfare of workers;
• proposing changes that may affect the health and safety of workers;
• making decisions about procedures for: consulting with workers; resolving WHS issues at the workplace; monitoring the health of workers; monitoring conditions at any workplace under the control of PCBU; providing information and training for workers;
• carrying out any other activity prescribed by the regulations.

Prohibition on Insurance for WHS fines

PCBUs are prohibited from obtaining insurance coverage for fines issued under the WHS Act for breaches of the WHS Act.