02/09/2020 - 19:59

Do you understand your obligations under impending Workplace Health and Safety legislative changes?

02/09/2020 - 19:59

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The Work Health and Safety Bill 2019 (the Bill) due to be passed into law imminently, will see some major changes to the way in which Workplace Health and Safety (WHS) functions in our state.

The Work Health and Safety Bill 2019 (the Bill) due to be passed into law imminently, will see some major changes to the way in which Workplace Health and Safety (WHS) functions in our state.

Once it is law a “grace period” is unlikely, given the time WA has taken to adopt these laws which were adopted by most other Australian states and territories in 2011.

This Bill will replace a range of existing acts and directly affect employers, employees, contractors, practitioners, regulators, unions and businesses. Changes will influence the day-to-day practice of WHS as well as add greater penalties.

12 Notable Changes

  1. Terminology

The term “Person Conducting a Business or Undertaking” (PCBU) has been introduced which effectively broadens the responsibility to include any type of employer whether or not they are operating for profit or gain (i.e. this includes NFP, volunteer body, public authority etc.).

  1. Primary Duty change

All PCBUs need to ensure the health and safety of workers, (including volunteers), focus on risks a hazard may cause and understand WHS covers both physical and psychological (mental) health.

  1. Penalties

Penalties imposed following prosecution for WHS breaches will no longer be insurable.

  1. Inclusion of the new offence of ‘Industrial Manslaughter’

In the event of a workplace death Individuals may be charged with ‘Class One’ or ‘Class Two’ Industrial Manslaughter with both carrying jail terms up to a maximum of 20 and 10 years respectively.

  1. Increased ‘Officer’ due diligence duties

The Officer has a personal obligation to demonstrate a proactive approach to workplace health and safety matters.

  1. Duty to consult

PCBU’s will be required to consult with a broader range of stakeholders not just employees and WHS representatives.

  1. Dangerous Incident notification

Notifiable incidents now also include exposure to a serious WHS risk including spillage of a substance, electric shock and falls.

  1. Regulatory Body

Individuals may need to appear before regulator to give evidence and are entitled to legal representation.

  1. Inspector Powers

Inspectors to have more extensive entry and search powers and their ability to assist in resolving WHS disputes has increased.

  1. Prosecution Timing

Time limits to commence a prosecution has been reduced to two years.

  1. Legal privilege

Legal professional privilege has been expressly preserved.

  1. WHS Committee Powers

At least one member of the WHS Committee must have sufficient authority to adequately respond and address/ action decisions made.

Who is an Officer?

Broadly, an officer is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the organisations activities.

Officers include board members, directors, and senior managers, but not middle management. The nature and extent of the duty will depend on all the circumstances of a person’s position and level of WHS decision making involvement.

Duties of an Officer

The duty of officers of PCBUs is to ensure the business meets its duties to protect workers and other persons against harm to health and safety. This duty is personal and cannot be transferred or delegated. This duty relates to the strategic, structural, policy and key resourcing decisions and is further detailed in Section 27(5) of the Bill.

The existence of a safety policy or system is not sufficient to satisfy obligations, officers must actively monitor and evaluate health and safety management within their organisation.

Officers will need to prove they are taking an active role in WHS to avoid potential liability. Penalties in the Bill are high and include jail time for some offences. Case Example: 

In June 2020, Queensland company Brisbane Auto Recycling Pty Ltd was convicted of industrial manslaughter and fined $3 million dollars, a first for Australia. In addition, two Directors were convicted of Category 1 offences under Work Health and Safety Act 2011 and sentenced to 10 months imprisonment, wholly suspended for 20 months. 

All officers will need training to ensure they fully understand these obligations and are taking all necessary steps to comply with them.

What to do now

PCBUs: Conduct a thorough review of your risk management systems, health and safety policies and procedures, training regimes and control systems to making and implementing any necessary changes to ensure compliance, including training.

Individual Officers: Prepare to demonstrate that you understand your personal duties and are taking positive steps to ensure your business is complying with the new WHS requirements.

For further details of the changes please visit www.wcasolutions.com or contact WCA - People & Culture Solutions if you require any assistance in implementing these changes within your business on

(08) 9383 3293 or admin@wcasolutions.com

 

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