With COVID-19 currently dominating headlines, it’s easy to overlook that significant changes are about to be introduced in relation to safety in the workplace. The Work Health and Safety Bill (WA) is currently before the Upper House of Parliament and should become law later this year. The Bill, which replaces the current safety regime in WA, contains a range of new obligations which impact on all businesses.
The Bill is based on the federal Work Health and Safety Act 2011 (Cth), a version of which has been in operation in every state and territory except WA and Victoria for some time now. The Bill contains the majority of the provisions contained in the federal Act with a few notable differences.
The primary duty of care is now imposed on ‘PCBUs’ (Persons Conducting a Business or Enterprise) rather than on employers, which covers a broader range of entities.
Similarly, the primary duty of care is now owed by PCBUs to ‘workers’ rather than employees, which captures everybody who performs work for a PCBU, including volunteers. PCBUs also owe a duty to any person “affected by the work”, which covers anyone who could potentially be put at risk, such as visitors or passers-by.
Importantly, a new duty is imposed on company officers (such as directors and senior managers) to exercise ‘due diligence’ to ensure that the PCBU they work for is meeting its statutory safety obligations. This represents a significant increase in accountability for company officers who make decisions that can impact on health and safety, and officers can be individually prosecuted for a breach of this duty.
PCBUs and other duty holders with common interests (such as contractors) are required to consult with each other in relation to health and safety matters.
Notably, penalties for breaches of a safety duty under the Bill are significantly increased from current levels, ranging from $570,000 to $3.5 million for a corporation, and from $120,000 to $680,000 and imprisonment for 5 years for an individual.
The Bill introduces a new criminal offence related to industrial manslaughter. Both PCBUs and officers of PCBUs can be charged with the offence, and maximum penalties range from up to 20 years imprisonment and a fine of $5 million for an individual, and a $10 million fine for a corporation.
The Bill also prohibits insuring against or indemnifying someone in relation to liability for penalties related to safety breaches. Under the Bill, any insurance policy or contractual term that is stated to cover or indemnify against a person's liability to pay a fine for a workplace safety offence is deemed invalid.
All employers already have a duty under WA legislation to take practicable measures to ensure that people at the workplace are not exposed to hazards. This duty will not necessarily change under the Bill, which provides that PCBUs must ensure, so far as is reasonably practicable, the health and safety of all workers engaged by the PCBU, as well as any workers whose work activities are influenced or directed by the PCBU, and any other persons who could potentially be put at risk from work carried out as part of the conduct of the PCBU.
However, businesses should be aware that once the Bill becomes law, the duty imposed on individual company officers will significantly increase and each officer will need to be able to show that they have taken all reasonable steps to ensure their company is complying with its health and safety obligations.
Additionally, businesses performing work at a shared worksite may have to engage in increased consultation with neighbouring businesses, contractors and other stakeholders in order to comply with the Bill’s consultation requirements.
It is important for businesses to be cognisant of the obligations imposed under the Bill. As was seen in the recent coroner’s findings in the inquest into the Dreamworld accident in 2016 that claimed four lives, a failure to properly implement and maintain safety management systems not only has tragic results, but can also cause significant reputational and financial damage to a business that can be difficult to recover from. Under the new Bill, such failures can also lead to considerable penalties being imposed, and possibly even criminal charges for individual company officers if they are found to be culpable.
If you have any queries arising from the Bill and the impact this may have on your business, please contact Ian Curlewis.