From 31 March 2022, the Occupational Health and Safety (WA) Act 2020 (WHS Act) and related regulations will come into force. Below is a brief summary of the new WHS Act features for your quick reference.

Modified definitions

Persons running a business or a business (PCBU)

Instead of the employer, the primary health and safety obligation under the WHS Act will now rest with all PCBUs:

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

A PCBU includes a business or enterprise run by an individual, body corporate, partnership or unincorporated association.

Workers and non-employees

A PCBU’s primary health and safety obligation will not be limited to employees alone but to all workers, meaning a person who performs work in any capacity for a PCBU, including as long as :

• an employee;
• a contractor or subcontractor (or an employee of a contractor or subcontractor);
• an employee of a labor hire company;
• an external worker;
• an apprentice or trainee;
• work experience students; Where
• volunteers.

Health

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

Officer duties

PCBU officials must exercise due diligence to ensure that the PCBU complies with every duty or obligation imposed on it 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 enterprise.

Payable Diligence includes taking steps to:

• acquire and maintain knowledge of WHS;
• understand the nature of the PCBU’s operations and generally the hazards and risks associated with such operations;
• ensure that the PCBU has and uses appropriate resources and processes to eliminate or minimize the health safety risks of the work performed;
• ensure that the PCBU has appropriate resources to receive and review information regarding incidents, hazards and risks and respond to such information in a timely manner;
• ensure that the PCBU has and implements processes to comply with any duty or obligation of the PCBU under the WHS Act; and
• verify the provision and use of these resources.

Increased penalties

Category 1 (failure causes death or serious injury)

• Individual (including as an officer) 5 years imprisonment $680,000 fine
• Legal person Fine of $3.5 million

Category 2 (the failure exposes the person to the risk of death or serious injury)

• Individual fine of $170,000
• Legal person Fine of $1.8 million
• Individual PCBU officer $350,000 fine

Category 3 (breach of duty)

• Individual fine of $55,000
• Legal person Fine of $570,000
• Individual PCBU officer $120,000 fine

industrial homicide

A person commits manslaughter (a crime) if:

• The person engages in conduct that causes the death of an individual;
• The conduct constitutes a breach of a health and safety obligation; and
• The person engages in the behavior: – knowing that the behavior is likely to cause death or serious harm to a person; and – In disregard of this probability.

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

Consultation

PCBUs should, where possible, consult with workers who are or are likely to be directly affected by the WHS issue, including when:

• identify the hazards and assess the health and safety risks of the work to be carried out;
• make decisions about ways to eliminate or minimize those risks;
• make decisions on the adequacy of facilities for the welfare of workers;
• propose changes likely to have an impact on the health and safety of workers;
• make decisions on procedures for: consulting workers; resolving WHS issues in the workplace; monitor the health of workers; monitor conditions at any workplace under the control of the PCBU; information and training of workers;
• engage in any other activity prescribed by the regulations.

Insurance ban for WHS fines

PCBUs are prohibited from obtaining insurance coverage for fines imposed under the WHS Act for violations of the WHS Act.