Key changes to WA WHS Act 2020

Key changes to WA WHS Act 2020 – what you need to know to protect your business.

On Tuesday 3rd November 2020, workplace health and safety laws in Western Australia underwent significant changes for the first time in over 30 years. The passing of the Work Health and Safety Bill 2019, has implications for both employers and employees across the state.

With the WHS Act 2020 due to become legally enforceable in March 2022, you need to understand how this may impact your business and what you can do to be ready.

What is the WA WHS Act 2020?

The new laws are intended to improve the protection of workers by factoring in modern employment agreements, higher penalties for companies and individuals, and introducing the term ‘person conducting a business or undertaking’ (PCBU).

For our friends outside of WA, this is familiar territory. This Act is harmonising WA with Australia’s other states and territories (excluding Victoria) and will replace:

• the current Occupational Safety and Health Act 1984
• WHS elements of the Mines Safety and Inspection Act 1994
• WHS elements of the Petroleum and Geothermal Energy Safety Levies Act 2011

Who will be impacted?

Whilst all employers and employees in WA will be affected with the new Act covering all aspects of safety in the workplace, the changes in penalties and individual prosecutions will be felt most by the small to medium organisations.

What are the major changes of WA’s WHS Act? 

1. Increased penalties

We will see an increase in penalties across the board with significant attention drawn to the gross negligence/industrial manslaughter penalty. Both employers and individuals will feel the impact related to the changes in penalties, as outlined below. 

2. PCBUs

PCBU may be a common term in many states, but this is new for WA. A PCBU is a Person Conducting a Business or Undertaking. A PCBU can be any of the following: 

• Employer
• Corporation
• Association
• Partnership
• Sole trader
• Volunteer organisation that employs people to carry out work
• Local government council
• Independent school
• Government department and authorities

PCBUs must ensure the health and safety of their employees and additional persons in the workplace are upheld. This extends to visitors, contractors and volunteers.  

3. Industrial manslaughter

In addition to the increase in penalties relating to industrial manslaughter, company officers need to be aware that they as individuals can be prosecuted even if the company is not convicted.

4. WHS due diligence

This new legislation has made it administratively easier to prosecute company officers. Most companies go into liquidation when faced with a WHS prosecution. Under our current 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.
However, 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.

5. Your insurance

If you’re prosecuted under the current OHS Act, your insurance can pay for your legal fees and your penalties.

Once the WHS Act comes into effect, your insurance can still pay for your legal fees, but when it comes to paying the penalty, company officers and PCBUs cannot take out insurance to cover fines for breaches.  

What can you do as an employer to ensure you are ready?

The changes to the WHS Act 2020 provide you with an opportunity to review your WHS practices, policies and procedures to ensure they are meeting the new legislative standards. 

Education and awareness

Ensure that your key business stakeholders are aware of the changes and implications for your business and them as individuals. This includes your leadership team and those at the front line of the workplace. 

WHS audit and gap analysis 

Complete a comprehensive audit of your organisation's WHS approach in line with the new legislation. Having policies and procedures in place is only one part; you must ensure that this is delivered at a ground level with clear evidence. Identifying areas of opportunity early can help you mitigate risks and avoid negative financial and workforce impacts. 

Develop a road map 

Once you understand where the gaps are, you can put together a targeted action plan to ensure your business is meeting the new standards and looking after your people. Be sure to incorporate regular review and feedback loops, so you’re evolving your WHS management in line with the changing nature of the workplace and legislation.
 
The Howden Care team has WHS specialists with extensive experience in assisting clients nationally with transitioning to the new harmonised WHS laws. 

Sources
https://www.dmirs.wa.gov.au/safety-regulation/work-health-and-safety-laws/introduction-whs-laws/introduction-whs-laws/work-0
Worksafe WA - https://www.commerce.wa.gov.au/worksafe