The new WHS legislation is the first major revision in 30 years, bringing together all safety regulations for general industry, mining and petroleum under the one act. It also broadly harmonises the WA regulations with national requirements (excluding Victoria).
The legislation has been modernised in various ways.
The WHS Act introduces the term 'person conducting a business or undertaking' (PCBU).
A PCBU can be a sole trader, each partner within a partnership or a company.
Click here to read the interpretive guidelines to understand the meaning of a PCBU.
Under the WHS Act, all PCBUs have a primary duty of care to ensure the health and safety of their workers and others who may be affected by the carrying out of work.
An 'Officer' is defined as anyone who makes, or takes part in, big decisions about all or part of the business.
The new definition of a 'Worker' (previously an employee) now captures a wider group. A Worker means a person working for a PCBU (e.g. contractor, subcontractor, labour hire, work experience student, volunteers).
Psycho-social risks (such as sexual harrassment) are formally incorporated, widening the scope of what businesses need to consider as part of their WHS responsibilities.
The WHS Act includes a new offence of industrial manslaughter.
This offence involves substantial penalties for PCBUs in a business where a WHS duty causes the death of an individual, in circumstances where the PCBU knew the conduct could cause death or serious harm.
The following 5 elements must be proven beyond reasonable doubt:
a) Person had a health and safety duty as a PCBU
b) Caused death of an individual through act or omission
c) Failed to comply with their health and safety duty
d) Knew it was likely to cause death or serious harm of the individual
e) Disregarded the likelihood of death or serious harm
For an Officer to be prosecuted, it must be proven that the PCBU's conduct was due to the Officer’s neglect, consent or knowledge.
New to WA, this is an agreement with the regulator to undertake activities as an alternative to prosecution. This can not be used for industrial manslaughter or Category 1 offences.
A notifiable incident includes death, broader serious injury or illness, and now a dangerous incident.
The WHS Act voids insurance coverage for WHS penalties and imposes penalties for providing or purchasing this insurance.
All PCBUs, Officers and Workers must ensure they take all reasonable and practicable steps to ensure compliance with health and safety duties under the new legislation.
Click here to read the interpretive guidelines about how to determine what is reasonably practicable to meet a health and safety duty.
The rule of thumb remains the same for all contractors - ensure that you have appropriate WHS policies and procedures in place.
Transitional arrangements apply.
Click here to view the transitional arrangements that apply to specific areas.
If you have any questions at all about the new regulations, please contact the NECA Safety team - we are here to help. We can also advise on whether any of NECA's highly regarded safety products would be suitable for your business. Phone (08) 6241 6100 or email email@example.com.
Disclaimer: This summary is a guide only and is not legal advice.