Western Australian WHS Act 2020

Summary

The new Work Health and Safety Act 2020 came into force last year in Western Australia, with penalties for both individuals and schools that are much greater than in previous legislation.

The maximum penalties under the Act are 5 years imprisonment or a fine of up to $680,000 for an individual, and a fine of up to $3 million for a body corporate, e.g. school.

The Act is similar to ones in force in other States and Territories. It requires risk assessments to be carried out, taking into consideration 'all relevant matters' and taking into account the 'likelihood of the hazard' and the 'degree of harm'. This makes explicit what was implied in earlier legislation.

The good news is that RiskAssess allows you to easily meet the requirements of the new Act for risk assessment, plus the software provides a range of other features to make your life safer and easier.

Full Details

The Work Health and Safety Act 2020 (1) and its accompanying Regulations (2) came into force on 31 March 2022. The Act explicitly requires the consideration of 'all relevant matters' in carrying out risk assessments, which must take into account the 'likelihood of the hazard' and the 'degree of harm'. For RiskAssess users, this is no problem, since the software already provides a structure for schools to do exactly that. The requirements for risk assessment are identical to those in all other States and Territories, except Victoria. An overview of the new Western Australian legislation (3) provides a convenient summary.

The most controversial provision of the Act is the criminal offence of Industrial Manslaughter. This can only be prosecuted by the Director of Public Prosecutions (DPP), in the case of disregard for the likelihood of death. The maximum penalties are 20 years' imprisonment for a person and a fine up to $10 million for a body corporate, e.g. school. The good news is that individual teachers or a school are unlikely to be prosecuted for Industrial Manslaughter, due to the high-level criteria and the limitation to prosecution by the DPP.

The 'Category 1 Offence' has been expanded to allow prosecution by WorkSafe if

  • the person has a health and safety duty
  • the person fails to comply with that duty, and
  • the failure causes serious harm or death to an individual.

The maximum penalties are 5 years imprisonment or a fine of up to $680,000 for an individual, and a fine of up to $3 million for a body corporate, e.g. school. Enforceable undertakings have also been introduced as an alternative penalty.

A new concept is a 'Person Conducting a Business or Undertaking', known as a PCBU. At a school the PCBU would be the Principal, School Board, or other highest-level decision makers, in control of expenditure. An 'Officer' is 'any person who makes, or participates in making, decisions'. This would be probably be interpreted as Head of Department, Teachers, Laboratory Technicians, etc, to the extent that they are decision makers and have control over activities and expenditure.

PCBUs and Officers have greater obligations under the new WHS Act than under the old OHS Act. Previously, school staff could be guilty of an offence only if an injury was attributable to negligence, after an injury had occurred. The new legislation is more proactive. Officers of a PCBU must exercise 'due diligence' to ensure that the PCBU complies with its WHS obligations, whether or not there is a safety incident.

'Due diligence' under the WHS Act 2020 for a school would include

  • keeping up-to-date with WHS matters
  • understanding the hazards and risks associated with school operations
  • obtaining and using appropriate resources and processes to eliminate or minimise risks to health and safety
  • implementing processes for complying with legal obligations
  • preparing, collating and keeping up-to-date records of WHS matters.

An interesting provision of the new WHS Act 2020 is the prohibition against insurance. No person, including the PCBU, is permitted to take out insurance to cover the cost of any fine imposed under the Act.

A new concept of a 'work group' has been introduced in the WHS Act 2020. A work group is an agreed group of workers who carry out work for a PCBU. At a school, a work group might be the teachers and laboratory technicians. A work group has the right to elect one or more Health and Safety Representatives (HSRs) to represent the group. Employers are required to assist with the formation of work groups. HSRs have expanded powers under the new Act. They can direct cessation of work, if there are reasonable concerns about safety; they are empowered to issue provisional improvement notices (which are enforceable by fines); and they can invite anyone, including union officials, to the school to assist them in their duties.

The Work Health and Safety Act 2020 will require schools to improve their awareness of safety issues, expand their safety activities and expenditure and, hopefully, reduce the number of injuries that occur in schools.

(1) Work Health and Safety Act 2020, as at 20 June 2022
https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_45102.pdf

(2) Work Health and Safety (General) Regulations 2022, as at 24 December 2022 https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_45696.pdf

(3) Worksafe Western Australia "Overview of Western Australia’s Work Health and Safety Act 2020" https://www.dmirs.wa.gov.au/sites/default/files/atoms/files/overview_wa_whs_act_0_0.pdf