Work-related injuries and deaths have devastating effects on families and communities. In addition, there can be very serious financial impacts on a business. We address here looming changes to the law in Western Australia (which is similar to that introduced in other states) and a recent overview of the proposed regulations by the Department of Mines Industry Regulation and Safety.
WorkSafe WA successfully prosecuted earlier this year under the Occupational Safety and Health Act 1984 (WA) using the increased penalties introduced in October 2018, an important reminder of how seriously these matters are addressed in the legislation and by the Courts enforcing those laws.
Most notably, the director of a shed-building company was sentenced to over 2 years imprisonment for an incident in which a young worker was killed and another seriously injured while on a farm near Esperance. It was alleged that the two workers were installing roof sheets on a shed without appropriate safety control measures in place and were hit by strong winds. The director was also fined $55,000 for this and other breaches, and his company was fined $550,000.
A building company was also fined a total of $175,000 for failing to maintain a safe workplace causing death, not having a Safety Management Plan, and workers not holding High Risk Work Licences following the death of a contract worker in Yarloop.
These fines are lower than the maximum fines faced under the current legislation, being $2.7 million for a company and $550,000 and 5 years imprisonment for an individual.
New legislation commencing in January 2022, the Work Health and Safety Act 2020 (WA), introduces the offence of industrial manslaughter, with maximum penalties of $5 million and 20 years imprisonment for individuals and $10 million for companies. Other offences include the serious harm or death of workers, and exposure of persons to risk, with maximum penalties of 5 years imprisonment and $680,000 for individuals and $5.5 million for companies.
The Department of Mines, Industry Regulation and Safety has just released their overview of the proposed work health and safety regulations (which must be finalised prior to the commencement of the legislation). The regulations will be in three parts: General, Mines, and Petroleum and Geothermal Energy Operations. The regulations cover a wide range of matters including how to manage risks, requirements for hazardous work across all industries, the involvement of individuals such as Health and Safety Representatives and officers, and the responsibilities of duties of all those involved, including companies, directors, officers, employees and volunteers.
Importantly, individuals are prevented from relying on insurance or their company to cover any financial penalties under the legislation; attempting to shift this responsibility is also a breach of the legislation.
Those responsible for workplace health and safety include those who own or run the company, and those who design, manufacture, import, supply, install, construct or are in control of fixtures, fittings and plant in a workplace. Importantly, more than one person or company may be prosecuted for breaches of a particular duty.
The legislation provides for a primary duty of care requiring persons conducting a business or undertaking to eliminate (or minimise if not reasonably practicable to eliminate) risks to the health and safety of workers and others who may be affected by the carrying out of work.
The reach of the law is almost total. It applies to all workplaces in Australia, with very limited exceptions. Wholly volunteer organisations are exempted, however entities that have a mix of volunteers and employees are not, and the “workers” obligations under the legislation extend to volunteers as well as paid employees.
We strongly recommend that all business owners, board members and those in management in Western Australia, across all industries including the not for profit and charitable sectors take steps now (if you have not done so already) to prepare for the new legislation, including:
- Identify your duties under the new legislation and the relevant regulations, including those you owe to other organisations or individuals.
- Undertake a risk audit of your workplace, including any required authorisations, licensing, and training. This audit should also take into consideration any mental health risks, as well as physical risks.
- Carefully consider the relevant regulations, Codes of Conduct and government guidance for your industry.
- Consult with your employees and ensure you have in place any required Health and Safety Representatives, work groups or committees.
- Update your policies and procedures and ensure all employees are trained adequately on those documents and their obligations generally.
- Given the current risk of COVID-19 and recent government mandates, businesses should also be considering whether their policies can and should include provision for mandatory vaccination for employees, volunteers and/or visitors to their workplace.
- Set up good record-keeping in relation to training and any incidents or “near misses”. Businesses will need to record any notifiable incidents, and lists of Health and Safety Representative. In addition, having a record of audits, polices, consultation and training will all be useful in demonstrating that any injury, harm or death was not caused by the business or a particular individual.
- Determine if you require any specialised legal or other advice on your obligations or risk management processes.
For more information contact: Murray Thornhill and Gemma Wheeler-Carver from HHG Legal Group on 9322 1966
