On 31 March 2022 the bulk of Western Australia’s new work, health and safety (WHS) laws commenced under the Work Health and Safety Act 2020 (WA) (the Act) and its accompanying regulations. These cover general industry, as well as the mining and petroleum industries.
The new laws are much broader in their application than the previous regime and introduce various new WHS duties, including:
- a new statutory primary health and safety duty;
- WHS due diligence obligations for officers (including an expanded definition of ‘officer’);
- new offences (including industrial manslaughter) and higher penalties; and
- prohibitions against insurance and indemnity arrangements for penalties.
The Act is based on the national model Work Health and Safety Act. Key changes include:
Application of WHS laws to PCBUs
The new laws have broad application and apply to PCBUs and not just traditional ‘employers’.
A person will be considered a PCBU regardless of whether the person conducts a business or undertaking alone or with others, and regardless of whether the business or undertaking is conducted for profit or gain. Examples of a PCBU include, at least:
- a sole trader;
- each partner within a partnership;
- a company;
- an unincorporated association; and
- a government department or public authority.
New primary WHS duty
The Act introduces a new primary WHS duty for a PCBU to ensure, so far as is reasonably practicable, the health (physical and psychological) and safety of workers and other persons arising from the conduct of their business or undertaking.
The duty requires a PCBU to eliminate risks to health and safety, so far as is reasonably practicable and, where it is not reasonably practicable to eliminate those risks, to minimise those risks so far as is reasonably practicable.
What is ‘reasonably practicable’ to ensure health and safety will turn on a number of considerations including (for example) the likelihood of a hazard or risk occurring, the degree of harm that might result from the hazard or risk, and the availability and suitability of ways to eliminate or minimise identified risks.
Importantly, the ‘cost’ of available ways to eliminate or minimise risk, including whether the cost is grossly disproportionate, is the ‘last’ or lowest order consideration a PCBU should take into account when assessing what is reasonably practicable. The Work Health and Safety Regulations also prescribe a hierarchy of control measures, involving specific steps implemented in a specific order.
The primary duty extends to ensuring, so far as is reasonably practicable, the provision of safe working environments, plant and structures, systems of work, facilities for workers, and information, training, instruction or supervision necessary to protect persons from risks to their health and safety.
There are a number of other PCBU duties provided for under the Act in connection with management and control of workplaces, and the design, manufacture, importation, supply and installation of plant and structures.
Officer due diligence obligations
Under the new laws, officers of a PCBU have a personal, non-delegable duty to exercise due diligence to ensure that the PCBU complies with its statutory WHS obligations.
The exercise of due diligence includes taking reasonable steps to: keep up to date knowledge of WHS matters; gain an understanding of operational hazards and risks; ensure appropriate processes are in place for receiving, considering and responding to WHS information about incidents, hazards and risks; ensure WHS compliance processes are in place; and verify the provision and use of WHS resources and processes.
Breach of this duty can lead to criminal prosecution, attracting monetary and custodial penalties (see below).
Officers include persons with an ability to influence a significant part of the operations, so that is likely to include some executives.
Duty to consult
The new Act also imposes two positive duties to consult.
Firstly, any persons who have a duty in relation to the same matter must consult, cooperate and coordinate activities with all other duty holders.
Secondly, PCBUs must consult workers in relation to a number of prescribed matters, broadly pertaining to any decisions or changes that might affect the worker. What constitutes the necessary consultation is set out in detail under the Act, but will generally depend on the circumstances.
WHS offences & industrial manslaughter
The Act provides for three main categories of WHS offences (each with different ‘fault elements’), along with a new offence of industrial manslaughter. A high-level overview of the maximum penalties for these offences for both PCBUs and officers is set out in the table further below.
A PCBU commits industrial manslaughter if it, in breach of its duties, engages in conduct that causes the death of an individual, knowing that the conduct is likely to cause the death of, or serious harm to, an individual, and in disregard of that likelihood.
An officer of a PCBU commits industrial manslaughter if a PCBU, in breach of its duties, engages in conduct that causes the death of an individual, and the PCBU’s conduct is attributable to any neglect on the part of the officer; or is engaged in with the officer’s consent or connivance.
WHS offences and maximum penalties
Insurance and indemnity arrangements
The new laws prohibit entering into and receiving the benefit of insurance and other indemnity arrangements which cover WHS fines / penalties.Insurance and indemnity arrangements
The prohibitions make it unlawful (for example) for a person to enter into an insurance policy that purports to indemnify a person for their liability to pay a fine for an offence under the Act; or be indemnified, or agree to be indemnified, by another person for liability to pay a fine for an offence under the Act.
Consequently, companies are no longer able to indemnify directors by paying fines on their behalf.
Key WHS changes for mining
The nature of the new overarching duties necessitates a review of all existing WHS practices, even if a given matter is substantially the same under the new regime. Notwithstanding that, there are some additions and alterations under the Work Health and Safety (Mining) Regulations 2022 (WA) (WHS Mining Regulations) that justify further specific attention.
Mine Safety Management System
Mine Safety Management Systems (MSMS) are a significant addition, only vaguely comparable to the project management plans previously required under the MSIA Regulations. The WHS Mining Regulations describe the MSMS as the primary reference point for all WHS aspects of a mine. MSMS’ must also include specific minimum including a WHS policy, arrangements and control measures for identifying, assessing and managing risks and hazards, consultation and training arrangements, incident management procedures, and an assessment framework by which the efficacy of the MSMS is reviewed.
While conceptually similar to ‘competent persons’ under the MSIA Regulations, statutory positions under the new regime are far more specific and prescriptive. Key statutory positions including senior executives, exploration managers or underground managers must be appointed for mining operations to commence or continue. Schedule 26 to the WHS Mining Regulations set out a number of positions and related functions. A person appointed to an equivalent position under the MSIA is taken to be appointed for the purposes of Schedule 26.
Notifiable and reportable incidents
Notifiable incidents include death, serious injury or illness and dangerous incidents. Reportable incidents are effectively any incident that falls short of a notifiable incident or that which could have caused serious harm to a person, plant or structure. The requirement to notify the regulator exists for both types of incidents and no longer invites a subjective assessment. The previous regime covered far less, and allowed a manager to use their subjective opinion to determine whether an incident was reportable.
Previously, a miner could be exempted from complying with the regime if they had substantially complied, or if compliance was unnecessary or impracticable. The new laws broaden the exemption regime, but not in a necessarily beneficial manner. Aside from some specific matters, exemptions may now be given in relation to any regulation. The regulator must take into account a number of specific matters which broadly amount to a merits judgement as to whether the exemption would impact the health and safety of workers or increase any risks.
- The new, more prescriptive and broader duties require clients with operations in WA to review their health and safety management systems, processes and procedures (including consultation procedures), to ensure workplace hazards and risks are being appropriately managed.
- With the introduction of the new offence of industrial manslaughter, businesses should be actively identifying and / or reviewing their top fatal and catastrophic risks, and regularly monitor these to verify they are being appropriately managed.
- Consider the application and nuances of the Western Australian WHS Regulations designed for local industry.
- Officers might also ask themselves the following questions:
- What are my organisation’s top operational health and safety risks?
- What is being done to manage these risks?
- Can more be done to manage these risks?
- Am I receiving meaningful health and safety reporting on the management of incidents, hazards and risks?
- What can I do personally to promote safety leadership?
Table Comparing MSI v WHS