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23 Oct 2020

WHS overhaul as Western Australia set to adopt the harmonised WHS laws

Western Australia will soon join the other States and Territories in adopting the national model work health and safety (WHS) laws following the passage of the Work Health and Safety Bill 2019 through Parliament's Upper House on 21 October 2020 marking the largest overhaul of WHS laws in Western Australia in decades. The Bill is intended to replace the current Occupational Safety and Health Act 1984 (WA) which the Government has described as outdated.

Premier Mark McGowan said in statement that he is pleased the legislation, which was first introduced in November 2019, has finally passed the Upper House and commented on the importance of the Bill in modernising WA’s outdated WHS laws.

Some of the key changes the Bill will introduce are:

  • the offence of industrial manslaughter with maximum penalties of 20 years’ imprisonment and $10 million fines for bodies corporate;
  • a further increase in penalties above those introduced in October 2018;
  • the broad concept of a "person conducting a business or undertaking" (PCBU) will replace the concept of an "employer";
  • that the primary duty of care for a PCBU will be to ensure, so far as is reasonably practicable, the health and safety of workers and others who might be affected by their undertakings;
  • the broad concept of a "worker" which includes contractors, subcontractors, and the employees of contractors and subcontractors;
  • company officers of PCBUs will have ongoing due diligence obligations;
  • expanded powers for inspectors during investigations;
  • a prohibition on individuals and corporations from entering into insurance policies that seek to cover WHS fines imposed under the WHS Act;
  • the ability for WHS inspectors to resolve disputes between parties; and
  • a specific duty of care for persons who provide services relating to work health and safety (eg. occupational hygienists, WHS consultants).

The Bill still requires approval from the Lower House to endorse the Upper House's amendments, which is anticipated to take place on 3 November 2020. The Bill is expected to come into force early in 2021 once Parliament has finalised the Bill's supporting WHS regulations.

The Bill does not strictly mirror the model WHS laws, as Western Australian has adopted a number of recommendations made in Safe Work Australia's 2019 review of the model WHS laws, as well as some unique provisions that the other harmonised jurisdictions have not enacted. Once the Bill comes into force, Victoria will remain the only Australian jurisdiction not to have adopted the national model WHS laws.

What WA employers should do now

Businesses operating in Western Australia and their officers should take steps now to ensure they understand the new obligations under the Bill, and consider what impact the new laws may have on both their businesses and them personally. In particular, businesses and their officers should consider whether their current WHS systems remain fit for purpose and address the specific concepts and obligations that feature in the new laws. Where any gaps present, steps should be taken early to address any compliance issues and to reduce risk.

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Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.