All persons involved in operating a business need to know what is in store for them when the Work Health & Safety Act 2020 WA commences operation in early 2022. It will make important changes to existing Workplace Health & Safety (WHS) laws and impose an industrial safety regime powered by criminal offences. It will cast a very wide net on who is responsible for WHS. It goes further and makes some acts of discrimination criminal offences.

Many clients ask us:

• What is the WHS legislation in WA?
• Who is liable for workplace accidents and death?
• How can I improve my WHS issues?

This is what you need to know as a business owner in Western Australia.

When do the Western Australia Work Safety Law changes commence?
The commencement date is unknown as it depends on various modules specifying standards being finalised with industry. The latest update from the WA government is the aim for commencement is early 2022.

There should be good notice between providing the standards to commencement date.

Who is responsible now for WHS in workplaces?
The primary duty of care is imposed on any person “conducting a business or undertaking”.

This is then extended to “an officer of the person” who must exercise due diligence to ensure that person complies with their primary duty of care. Due diligence includes:

– be up to date with WHS knowledge;

– understand the business or undertaking operations and risks or hazards of that operation;

– ensure person carrying out the business has sufficient resources to carry it out safely;

– the processes being used are appropriate and being followed in practice.

Workers and others involved in the business also have WHS obligations, but without criminal sanctions.

What are the penalties?
The most serious penalties apply to persons carrying on a business (and officers with responsibility for such persons) which leads to the death of a person due to their failure to comply with work health standards. These penalties include a maximum jail term of 20 years and a fine of $5 million for individuals and $10 million for companies.

This means directors of even the largest companies now face criminal charges where their businesses fail safety and cause death to a worker.

Discrimination, Coercion and Misleading Conduct are now crimes:
Where a business discriminates or acts in breach of their duties under the Act in relation to a person being involved in WHS duties or seeking to raise a WHS issue, that conduct can be determined to be a criminal offence and punishable as an offence. Large fines apply and orders can include reinstatement of the worker and compensation.

Has anyone gone to jail for industrial manslaughter?
Yes, there have been successful prosecutions under current laws in WA, and new industrial manslaughter laws in Qld, with directors being sentenced to jail for breaching WHS laws leading to the death of workers.

It is expected that prosecutions seeking jail would be for clear breaches by management which ought to have known the risks created included serious risk to workers. Where a death results from accidental inadvertence rather than a work system, a prosecution is unlikely to be able to show to the requisite standard any relevant WHS breach.

What can employers do now to improve their WHS operations?
There is no point having a standard operating procedure that is so complex and impractical that it is ignored and gathers dust in the office. There is no point solely focusing on Time Lost measures to reward management who then are under stress to force workers not to report accidents or take leave.

Safe work practices that are clear, make sense, are followed and followed up on are the go.

Management should be rewarded where they bring up improvements, bring in a culture of reporting concerns and acting on them and making everyone part of the culture of safety first. Sounds hard to measure – what about measuring time between raising of safety concern and workers reporting it being acted upon? What about measuring workers responses to surveys on ability to raise safety concerns?

Directors need to audit or have outsiders audit that the carrying on of the business matches what they are being told. It will not be a defence to a criminal charge that you relied upon a neat PowerPoint from the CEO in meetings.

What can we do to help?
Lawyers frequently lament they are only engaged when things go wrong, and it is too late to have prevented a bad outcome. The cost of fixing or dealing with a bad event will always outweigh preventative measures taken earlier. What price on avoiding jail, but more importantly, avoiding causing death or serious injury to your workers?

Salerno Law have extensive experience and are able to provide expert legal advice/assistance in all areas of the law pertaining to Workplace Health and Safety. This includes drafting work procedures, advising on specific areas of concern to employers and appearing/advising both before and during the prosecution phase. Such prosecutions have included fatal accidents in numerous industries (including aviation, tourism, construction and agriculture), catastrophic injuries (including at locations such as cattle stations, mines, building sites, warehouses and military bases) and standard injuries at workplaces throughout Australia. Salerno Law’s ability to provide first-class and timely advice has led to its clients being in the best possible position to deal with Workplace Health and Safety issues both before and after such issues arise.

By Peter Matus.

DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information.

Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.