In brief 3 min read
Western Australia has joined the harmonised work health and safety (WHS) regime, in line with New South Wales, Queensland, South Australia, the Northern Territory and Tasmania. Victoria will continue to operate under a separate regime. The Work Health and Safety Act 2020 (WA) (the Act) passed through the Legislative Assembly on 3 November 2020.
All 'persons conducting a business or undertaking' (PCBUs) and their officers should familiarise themselves with the Act, especially the new industrial manslaughter offence.
Officers in particular should ensure they understand their obligations with respect to the PCBU's WHS duties and officer due diligence.
The Act will introduce, amongst other things:
- the same WHS concepts to Western Australia that exist in the other jurisdictions that have adopted the harmonised WHS framework. These include the uniting duty of care of PCBUs to ensure the health and safety of workers and others, so far as is reasonably practical;
- onerous officer duties, which require officers to exercise due diligence to ensure WHS compliance by the PCBU;
- a framework to establish a general scheme for authorisations such as licences, permits and registrations (eg for persons engaged in high-risk work or users of certain plant or substances), including provisions for automated authorisations;
- a prohibition on insurance and indemnities for WHS fines; and
- one industrial manslaughter charge. Western Australia will be the fifth state to introduce a specific industrial manslaughter charge, along with Queensland, Victoria, the ACT and the Northern Territory.
Industrial manslaughter – crime
- This charge arises when a duty holder engages in conduct that causes the death of an individual, in the knowledge that the conduct was likely to result in death or serious harm, and in disregard of that likelihood. The conduct must also constitute a failure to comply with the duty holder's health and safety duty.
- The maximum penalty for an individual is 20 years' imprisonment and a fine of $5m.
- The maximum penalty for a body corporate is a fine of $10m.
- Officers can also be charged for crimes committed by a PCBU in certain circumstances, including when the PCBU's conduct was attributable to the officer's neglect, or engaged in with the officer's consent or connivance.