Work Health and Safety Act 2020 Biggest Change to WA’s OH&S System Since the 1980s
Commencement of the Work Health and Safety Act 2020, flagged to come into effect from January 2022, will be the biggest change to WA’s occupational safety and health system since the 1980s.
The new Work Health and Safety Act 2020 will replace the current Occupational Safety and Health Act 1984, as well as elements that are relating to OH&S within the following legislation:
- the Mines Safety and Inspection Act 1994;
- the Petroleum and Geothermal Energy Resources Act 1967;
- the Petroleum Pipelines Act 1969;
- the Petroleum (Submerged Lands) Act 1982; and,
- the Petroleum and Geothermal Energy Safety Levies Act 2011.
The new legislation makes several important changes to enforcement practices around offences and penalties, health and safety duty offences, WHS undertakings, and non-disturbance notices.
In this article, we discuss the major changes coming in 2022 as a result of the new workplace health and safety legislation. For a detailed overview of the new laws, the Department of Mines, Industry Regulation and Safety has published a detailed 48-page PDF guide.
Big Changes, Broader Responsibilities
The introduction of the new Work Health and Safety Act 2020 will bring WA’s safety management and practices to be more in line with other Australian States and Territories.
The legislation will significantly impact WA businesses and will require organisations to update their existing safety systems.
Employers should be aware of changes to safety responsibilities with the new laws imposing a primary duty of care on persons conducting a business or undertaking to reasonably ensure the health and safety of workers.
Are You an Officer?
Under the new Work Health and Safety Act 2020, those who make or influence significant financial or operational decisions in the business have received a new denotation – “Officers.”
For officers, the new laws are especially important as they remove the right of duty holders to recover penalties through insurance or indemnification.
New Offences, Including Industrial Manslaughter
These broader responsibilities come with the introduction of tougher liability laws which mean that directors and board members may be held personally liable for health and safety failures.
The Work Health and Safety Act 2020 provides for the following categories of criminal offences for breach of health and safety duties.
- Industrial Manslaughter: The offence of industrial manslaughter will apply to a person conducting a business undertaking or an officer engaging in conduct knowing the conduct is likely to cause death to an individual. This offence carries a potential imprisonment term of up to 20 years and a fine of up to $5 million for an individual or a person conducting a business undertaking and up to $10m for a body corporate.
- Category One Offence: Applies to those with a workplace health and safety duty where their conduct in failing to comply with that duty caused serious harm to a person.
The Category One offence under Section 31 will be more onerous than in other jurisdictions with a similar model because it does not include any element of recklessness or gross negligence. In brief, if a person conducting a business undertaking fails to comply with their duty of care and this failure causes the death of, or “serious harm”* to, an individual, they face a potential penalty of five years imprisonment and a $680,000 fine (for an individual) or a $3.5m penalty (for a body corporate). Recklessness or gross negligence will not be relevant.
- Category Two Offence: Applies to those with a workplace health and safety duty where their conduct in failing to comply with that duty exposed a person to the risk of death, injury, or harm to health.
- Category Three Offence: Applies to those with a WHS duty who failed to comply with that duty.
*“Serious harm” is defined as illness or injury that endangers (or is likely to endanger) the individual’s life, or results (or is likely to result) in a permanent injury or harm to the individual’s health
Commencing Proceedings for an Offence
Proceedings for an offence against the WHS Act can only be brought by the Regulator or public service officer working in the Department of Mines, Industry Regulation, and Safety. Industrial manslaughter offences may only be brought by the Director of Public Prosecutions.
Preparing for the Changes Coming Under the Work Health and Safety Act 2020
If you operate a business in WA, expect to invest more into the management of your occupational health and safety systems and processes over the next 12 months.
You should familiarise yourself with the changes brought by the Work Health and Safety Act 2020, and ensure that key stakeholders within your business are aware of the legislation and its effect.
QSM Group can work with you to prepare for the changes and assist you with:
- Training your staff on the changes;
- Auditing your OH&S management system; and,
- Updating your policies and processes.
Send us an inquiry to see how we can help you prepare for the changes coming to workplace health and safety in 2022.
Occupational Health and Safety Compliance Certification
ISO (International Organisation for Standardization) is an independent, non-governmental organisation representing the National Standard Institutes of over 150 countries. They develop and publish international standards in response to the needs of the international market and global expert opinions. Learn more about ISO and the most common ISO standards used in Australia here.
ISO 45001 – Occupational Health and Safety Management
One way to ensure that your organisation’s OH&S management is compliant with industry standards is to become ISO 45001 certified.
ISO 45001 lays out a framework to improve safety, minimise workplace risks and enhance health and well-being at work, enabling an organisation to improve its Occupational Health and Safety performance. It provides the minimum standard of practice to protect employees around the world.
Peace of Mind with QSM Group
If you are feeling overwhelmed by the upcoming changes, don’t. Our consultants have a wealth of experience assisting organisations with their OH&S management and compliance.
We will work with you to review your current policies and systems, draft recommendations, and manage the implementation of any improvements.
To chat with a compliance consultant right away, contact Gary Patrick on 0424 798 658.