2022 Workplace Health and Safety Law Amendments

2022 Workplace Health and Safety Law Amendments

The Work Health and Safety Act 2020 (Act) commenced on Thursday 31 March 2022. It is intended ‘to provide a framework to protect the health, safety and welfare of workers in WA workplaces, and of other people who might be affected by the work.’

The Act recognises work relationships such as subcontractors and gig economy workers, and introduces the term ‘person conducting a business undertaking’ (PCBU). The broad nature of the wording of a PCBU means that more or less anyone who engages a WA worker has a positive duty to protect their health and safety. In other words, even if you are hiring a sub-contractor, your obligation extends to that sub-contractor’s health and safety in the same manner as if that sub-contractor was an employee of your business. In short, the Act places the onus on officers of a business (eg senior decision makers) to exercise due diligence to ensure compliance with the Act.

The Act has also made it easier to prosecute officers of a business. This is because previously, to convict an officer of a business, the prosecutor also had to convict the business entity as well (eg a company). Because most business entities would then go into liquidation when faced with a prosecution, under the previous law it was very hard to then follow through a successful prosecution. This meant that there was often a fight to try and get the business entity (eg a company) reinstated in order to then prosecute the officer/s charge of it. However, under the Act and the changes it brings with it, the business entity now doesn’t have to be convicted of an offence for an officer of it to be prosecuted. If an officer is shown to have not met his or her obligations of due diligence, then they can be prosecuted regardless of any prosecution against the business entity.

Further, the Act also introduces an industrial manslaughter charge, which attracts a maximum penalty of 20 years’ imprisonment and a maximum $5 million fine for an individual, and a maximum $10 million fine for a body corporate (ie a business entity such as a company). In addition, the penalties for all of the existing offences have also been significantly increased under the Act.

Furthermore, insurance is no longer permitted to cover penalties which may be imposed under the Act. The policy reasoning for this major change is to try and ensure that a PCBU found to be in breach of the Act is responsible for paying any financial penalty imposed upon him or her. Insurance can still pay for legal fees, but when it comes to paying any penalty, officers and PCBUs can no longer take out insurance to cover fines for breaches. Also, businesses are not able to indemnify employees which means that if an employee is given a penalty, then he or she will have to pay it themselves and cannot rely on their employer to pay it for them.

Further to the above, one of the other key changes is that the term ‘worker’ is also broader under the Act than previously and includes:

  • employees
  • subcontractors and casual workers
  • employees of a contractor or subcontractor
  • employees of a labour hire company
  • outworkers
  • apprentices or trainees
  • volunteers
  • students on work experience

Finally, you may also like to note that PCBUs have an equal duty of care to a worker, even if there are multiple PCBUs involved. For example, if you employ a contractor who brings in a labour hire worker, then you, the contractor and the labour hire company all share the same duty of care to that labour hire worker. So, if an incident occurs, you can all be prosecuted under the Act. In other words, just because you don’t directly employ a person working in your business, it doesn’t mean you’re safe from prosecution.

Finally, if you have read this far and think that you need some practical advice or assistance in relation to your situation, then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office. Bookings can be made online through our website or simply by phoning our office on 08 9745 9550. Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start. Austral Legal. Practical advice.