6 min read

SAFETY ADVISOR

Get the low down on the new WHS Law in Western Australia

Western Australian (WA) law is changing when it comes to health and safety, so we’ve put together an overview of what’s changing, what it means for agribusiness and what you can do to stay safe.

Why the change?

In 2008, the WA government entered in to a national agreement to harmonise work health and safety laws across Australia. The idea was to create a framework for safety legislation which means the standard of safety across the country was consistent. It also means there would be a consistency in WHS requirements for businesses operating across multiple states.

In 2011, Safe Work Australia provided model WHS laws, which have been adopted in all states and territories, except Victoria and until now, also WA. The model laws were based around Victoria’s legislation so they are unlikely to move to the new framework.

In WA, the new Act has been passed and will come in to force once parliament has finalised the supporting WHS Regulations. This is anticipated to occur early 2021.

What’s changed? A few things…

First of all, the name of the Act. In WA it will change from Occupational Safety and Health, to Work Health and Safety. The new Act replaces the old OSH Act, as well as Mines Safety and Inspection Act, and Petroleum and Geothermal Energy Safety Levies Act. This article focusses on the changes from the OSH Act which are relevant to businesses including agriculture.

The most significant changes are the introduction of Industrial Manslaughter as an offence, and substantial increases in penalties for contraventions. Industrial Manslaughter has a maximum penalty of 20 years’ imprisonment and $10M fines for bodies corporate. Other penalties have increased for individuals up to $680,000 and/or 5 years imprisonment, and for corporations up to $3.5M.

The new Act introduces ‘person conducting business or undertaking’ (PCBU), rather than ‘employer’ as duty holders. A PCBU is a legal entity, can be for profit or not, and can be a company, partnership and individual partners of a partnership, and an unincorporated association.

If you operate a partnership in your agribusiness, this means the partnership itself is a PCBU, and each individual partner is a PCBU in their own right also. For example, 2 family members may have an agribusiness partnership, so there would be 3 PCBUs in this instance – the partnership itself and each of the family members in their own right.

The primary duty of care for a PCBU is to ensure, so far as is reasonably practicable, the health and safety of workers and others who may be affected by the work or how the work is carried out. This means you need to do everything reasonable to keep people safe, and you can’t rely on ‘common sense’ as this is too variable between individuals.

There is also a duty for officers of the PCBU to exercise due diligence to ensure compliance. Officers can include directors, secretaries and key decision-makers.

Another terminology change is from ‘employee’, to ‘worker’. The responsibility to protect a persons’ health and safety is no longer limited to an employer/employee relationship. This duty applies to any individual who carries out work for the PCBU in any capacity. ‘Worker’ includes employees, contractor or sub-contractor and their employees, a labour hire employee assigned to work in the PCBU, outworkers, apprentices and trainees, students on work experience, and volunteers. It also includes a PCBU if the PCBU is an individual working in the business. If your neighbour gives you a hand with something, as they often will, for the time they are helping out, they would be considered a worker for WHS purposes.

‘Health’ now includes both physical and psychological health. Looking after your workers’ mental health is just as important as protecting them physically. It means you must manage risks of bullying, stress and fatigue, for example.

The WHS Act clarifies the types of incidents and injuries which must be reported to the regulator. In a workplace, this includes a death, a serious injury or illness, or a dangerous incident. Someone doesn’t need to have been hurt or killed for Worksafe to be notified and investigate.

Another introduction is the prohibiting of insurance companies indemnifying against monetary penalties imposed under the WHS Act. This means you cannot buy insurance to cover any fines issued to you personally, or to the company.

What do I need to do?

There are lots of articles and information available for employers and businesses in WA about the changes. There’s also an interesting article written by WA Farmers CEO, Trevor Whittington, which explains how things could go very badly for a farmer when a fatality occurs on-farm.

The good news is if you’re already proactive in the safety space for your business, now’s the time to review what you’ve got already and update to reflect the requirements of the new Act. This shouldn’t take a lot of time as you’re well on your way to being compliant.

If you’ve not done much around safety to date, get started as soon as possible with implementing a safety management system. You can go with a paper-based system, or ditch the paperwork and go digital. Often paper-based systems are great on the day you buy them, then they sit on the shelf, may not be properly implemented and can quickly become out of date. A safety management system is more than an audit, more than a policy or two, and more than a few safe work procedures. It’s something that takes time to put together and implement – walking the talk is vital when it comes to safety. Make sure you implement your policies and procedures, keep good records and make safety part of everything you do.

Whatever system you choose, select one that offers ongoing support and assistance, one that is easy to use and one that stays current as legislation and regulations change.

It’s not only about compliance. By having a safety management system implemented, you are managing and reducing the risk of death or serious injury on your property, meaning you get to sleep even better knowing everyone goes home safe.

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Disclaimer: Content on this website may be of relevance to users outside of Australia, but content links and examples are specific to Australia. Please check with your local authority for your country and industry requirements.

Originally published 30 March, 2021.

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