Repealing the Occupational Safety and Health Act 1984 (WA), the WHS Act confirms the reform of Western Australia's work health and safety laws after 30 years of segregation and will be accompanied by three sets of Regulations (known collectively herein as 'the Regulations'), namely:
- Work Health and Safety (General) Regulations 2022;
- Work Health and Safety (Mines) Regulations 2022; and
- Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022.
Largely replicating the model WHS legislation that is in place in corresponding harmonised jurisdictions, the WHS Act introduces the following key features for Western Australia:
- the term 'person conducting a business or undertaking' (PCBU) as the primary duty holder, and the recognition of working relationships including subcontractors;
- the requirement for officers (senior management persons) to exercise 'due diligence' to ensure compliance with WHS duties;
- the industrial manslaughter offence, carrying substantial penalties for PCBUs including fines of up to $5 million for an individual or $10 million for a body corporate, or a maximum of 20 years imprisonment; and
- the prohibition of insurance coverage for WHS penalties, ensuring that PCBUs are held accountable for WHS breaches by being responsible for financial penalties.
The WHS Act and Regulations also replaces the work health and safety provisions provided within legislation covering the mining, petroleum and geothermal energy industries.
Recognising the significant reform, WorkSafe WA have indicated they will adopt a "supportive and educative approach" for the first 12 months following the WHS Act's introduction. With that said, businesses with operations in Western Australia should review the obligations flowing from the new laws immediately to ensure compliance with the new Act.
We would like to acknowledge the contributions of Ashleigh O'Connor (Solicitor) to this article.