Modernisation of Work Health and Safety Laws - Frequently Asked Questions (FAQ)
Questions asked during Safe Work Month Webinar on 30 October 2020 have been compiled along with the department's responses.
When did the Work Health and Safety Act receive assent?
The Work Health and Safety Act 2020 (WHS Act) was assented to by the Governor on 10 November 2020. However, the WHS Act will not commence until the WHS regulations are finalised, which is expected to occur in 2021.
When will the Act be in force?
The WHS Act will come into operation once the supporting regulations – representing general, mining and petroleum workplaces – are finalised.
When can we expect the regulations to be approved?
Work to develop the regulations is underway, and will continue into 2021.
Will there be a transition period for businesses to adopt the new laws?
While the regulations are being developed workplace participants will have time to become familiar with the provisions of the WHS Act. Part 16 of the WHS Act provides transitional periods for matters ranging from the terms of health and safety representatives (HSRs), to manufacture and imports.
Transitional arrangements will also be in place for matters covered by the WHS regulations based on the transition principles established by Safe Work Australia.
Is a copy of the legislation published, including the amendments?
The WHS Act is available on the Western Australian Legislation website, which is hosted by the Parliamentary Counsel's Office. The 'In force' act shows the provisions of the WHS Act that came into operation on assent. The 'As passed' act shows the full provisions that will be in force from the date of proclamation.
How can I see the draft regulations?
Comparison with Model WHS Laws and summary of amendments
Will the WA WHS Act be the same as the national model WHS Act?
The WA WHS Act is based on the model WHS legislation with modifications for Western Australia.
What are the differences between the WA laws and the model WHS Act?
A number of changes were made to the national model WHS Bill for adoption in Western Australia, based on extensive consultation and on recommendations made by recent reviews and enquiries. Key changes announced by the Government include:
- industrial manslaughter;
- union right of entry was retained in the Industrial Relations Act 1979 and not included in the WHS Act;
- prohibition on insurance for monetary penalties;
- HSRs have the right to choose their course of training; and
- a specific duty is included for providers of work health and safety services to ensure those services do not pose a risk to persons at the workplace.
What has been the most significant change in the new legislation in comparison to the current Occupational Safety and Health Act 1984 (OSH Act)?
The WHS Act includes a penalty provision for industrial manslaughter (s. 30A).
Duties of care in the OSH Act were predominantly based on the employer-employee relationship. There are now a greater variety of workplace relationships in the modern workplace that do not readily fall into traditional concepts of employment, such as labour hire and the 'gig' economy. The WHS Act introduces the 'person conducting a business or undertaking' (PCBU) as the person with the primary duty of care. The concept of PCBU is expected to cover a broader range of workplace relationships.
Industrial manslaughter is not contained in the model WHS Act. Why has the McGowan Government introduced industrial manslaughter provisions in the WHS Act?
The Government believes that WHS laws are important in developing a new step up in the culture of responsibility around work health and safety at Western Australian workplaces. Industrial manslaughter is one element of a range of important measures in the WHS Act that are intended to achieve this outcome.
The inclusion of industrial manslaughter provisions in the WHS Act follows significant public concerns raised by families of people killed in workplace incidents, and the recommendations of two recent Federal reviews — the Review of the Model WHS laws: Final Report conducted by Ms Marie Boland (Boland Report), and the Federal Senate Inquiry: They never came home - the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia.
Why are the industrial manslaughter provisions of the WHS Bill the focus of the modernisation of WA’s WHS laws?
The new crime of industrial manslaughter forms one element of provisions in the WHS Act which are intended to focus workplace participants on their duties to eliminate hazards or minimise risks in the workplace.
It is intended that introducing industrial manslaughter provisions in the WHS Act will have a strong deterrence effect and completely accords with community expectations that every worker has the right to come home safely after a day at work. The Government has introduced these provisions to ensure that deaths at the workplace, caused by the conduct of PCBUs and their officers, are met with substantial penalties, including imprisonment.
Will industrial manslaughter provision extend to HSE consultants? What about HSE managers at the top levels of companies?
Only PCBUs and their officers can be charged with industrial manslaughter.
A person is an officer of a body corporate if that person is an officer within the meaning of the Corporations Act 2001 (Commonwealth). This is generally a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity or who has the capacity to affect significantly the entity's financial standing. The Chief Executive Officer, Chief Financial Officer, or head of a large Division of a body corporate, are likely to fall within the definition of 'officer'.
Having 'officer' in your title does not make you an 'officer' for the purpose of the WHS Act unless you fit the definition in the Corporations Act 2001.
How does industrial manslaughter translate to suicide – either attempted or completed – relating to psychosocial injury?
The new crime of industrial manslaughter requires the prosecution to establish, beyond reasonable doubt, that a person knew their conduct was likely to cause the death of, or serious harm to, an individual and in disregard of that likelihood.
Suicide is a complex matter that arises from many factors which may include behaviour at the workplace, but is also likely to involve other significant stressors that are beyond the control of the PCBU.
While it is possible that a charge of industrial manslaughter might arise from a suicide at the workplace, the evidence required to prove the conduct of a PCBU directly caused the suicide of the worker will be challenging for the prosecution to establish.
Statutory interpretation and application
To clarify, will the proposed harmonised health and safety legislation incorporate the Mines legislation and Petroleum legislation?
The new WHS Act will replace the current Occupational Safety and Health Act 1984, and elements of the Mines Safety and Inspection Act 1994, the Petroleum and Geothermal Energy Resources Act 1967, the Petroleum (Submerged Lands) Act 1982, the Petroleum Pipelines Act 1969 and the Petroleum and Geothermal Energy Safety Levies Act 2011 that relate to work health and safety.
The WHS Act will be supported by three sets of regulations, representing general, mining and petroleum workplaces.
Will the WHS Act mirror the OSH Act in terms of the primary sections and provisions (e.g., OSH Act s.19 employer duties will then be WHS s.19 PCBU duties)?
The WHS Act reflects the provisions of the national model Work Health and Safety Bill to ensure consistent numbering of provisions across harmonised jurisdictions. It is a coincidence that the general duty of care in the OSH Act, and the primary duty of care in the WHS Act, share the same section number.
At a summary level, how will the new legislation affect low-risk office-based workplaces?
Generally, there is not likely to be much difference in the safe systems of work required for office work under the WHS Act compared to those required by the OSH Act. Some specific changes, such as the requirements related to the PCBU representative on a health and safety committee (HSC) may require a review of such arrangements.
PCBUs should consider taking the opportunity to review safe systems of work, and consultative arrangements, in response to the introduction of the WHS Act.
What is the definition of ‘officer’? Are supervisors and managers in local government exempt from the definition of an ‘officer’
In section 4 of the WHS Act, ‘public corporation’ is defined as meaning a local government, regional local government or regional subsidiary.
Section 4A(3) of the WHS Act defines the meaning of 'officer' to include a person that makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking. The Chief Executive of a local government authority will likely be an officer consistent with these definitions. Other senior executives that report directly to the Chief Executive may also be considered officers if they are involved in these decisions.
From the information provided, unless they have a direct reporting relationship with the local government chief executive officer, it is unlikely managers, supervisors or co-ordinators would be an ‘officer’ under section 4A.
What is the definition of 'worker'? How are volunteers captured?
The definition of ‘worker’ provided in section 7 of the WHS Act, includes ‘a volunteer’ at (h).
The term ‘volunteer’ is defined to mean a person who acts on a voluntary basis, irrespective of whether the person receives out-of-pocket expenses. Whether an individual is a ‘volunteer’ for the purposes of the WHS Act is a question of fact that will depend on the circumstances of each case.
Section 5(7) of the WHS Act provides that a volunteer association – meaning a group of volunteers working together for one or more community purposes where none of the volunteers employs any person to carry out work for the volunteer association – does not conduct a business or undertaking for the purposes of this Act.
Is it easier to prosecute employers under the WHS laws?
Under the OSH Act, the regulator has to prove beyond reasonable doubt that a person did not comply with their workplace duties. This is a high standard of proof. Prosecution under the WHS Act requires the same standard of proof.
The WHS Act introduces duties for WHS service providers in section 26A - 'Duty of PCBU', that provide services relating to work health and safety. How will this affect the service providers?
Finding 4 of the WA Legislative Council’s Standing Committee on Legislation Report 43 states:
The duty in cl 26A of the Work Health and Safety Bill 2019 is not expressly included in the Model Work Health and Safety Bill. The Model Bill contains an implicit duty on those providing work health and safety services under cl 19. The inclusion of cl 26A in the Bill makes explicit the implicit duty of those providing work health and safety services under cl 19 of the Bill.
A WHS service provider will not commit an offence if the recipient of the WHS service did not use it for its intended purpose (the relevant use). This duty is consistent with the existing OSH Act duties.
WHS service providers are PCBUs that provide services to other PCBUs. WHS professionals who are engaged by, and provide services within, a PCBU are not WHS service providers.
WHS service providers have a duty to ensure, so far as is reasonably practicable, that the WHS services are provided so that any relevant use of them will not put at risk the health and safety of persons at the workplace. In general terms, this means the WHS service must be fit for the purpose for which it was provided.
What are enforceable undertakings?
Enforceable undertakings are an alternative to prosecution. The WHS Act allows the regulator to accept a written undertaking in relation to a contravention or alleged contravention of the WHS laws. WHS undertakings are not available for industrial manslaughter offences or a Category 1 offence.
What is the main difference between the WHS Act and the OSH Act for safety officers? Are safety officers required for small businesses? Will they be personally liable or incur civil liability for not performing functions?
In order to be an ‘officer’ under the WHS Act, persons must meet the definition in section 4a which makes reference to the Corporations Act 2001 of the Commonwealth. The structure of the PCBU is therefore an important consideration. Generally, safety officers in large organisations are not likely to be considered an ‘officer’ for the purpose of the WHS Act. If the safety officer meets the definition of ‘officer’ in a smaller corporation, then the relevant duties will apply.
Civil liability is not a matter for the WHS Act, except in relation to discriminatory, coercive and misleading conduct.
What is the Safety Levies Amendment Bill 2019?
The purpose of the Safety Levies Amendment Act 2020 is to amend the Mines Safety and Inspection Act 1994 and the Petroleum and Geothermal Energy Safety Levies Act 2011 to ensure the levies raised in these Acts are correctly imposed after amendments made as a consequence of the WHS Act. This is a constitutional matter and does not alter the liability for these levies.
The Safety Levies Amendment Bill was passed as the Safety Levies Amendment Act 2020 (Levies Act) and also assented to by the Governor on 10 November 2020.
Can you elaborate on the new provisions for psychological health?
In the WHS Act, section 4 defines health as meaning both 'physical and psychological health'. Section 19 outlines the primary duty of care which requires a person conducting a business or undertaking to ensure the health and safety of workers - where health means both physical and psychological health. Schedule 3 details a variety of matters that may be the subject of regulations, and section 5 provides that standards relating to the use of or exposure to any physical, biological, chemical or psychological hazard may be prescribed.
Have there been any additional provisions for psychosocial injury and the causal behaviours such as bullying?
Health is defined as both physical and psychological health. Any provision of the WHS Act that refers to ‘health’ includes psychological health.
What is the significance of the new legislation for organisations who have staff working from home?
The primary duty of care in the WHS Act is similar to the general duty of care in the OSH Act so, in broad terms, there should be no change to duties related to workers working from home compared to current arrangements.
How is business to function if it can’t access insurance cover to support a response to an incident that may have been beyond its control?
Under the WHS Act, an insurance policy is of no effect to the extent that it purports to indemnify a person against their liability to pay a fine under the WHS Act (s. 272A). Elements of an insurance policy that do not relate to insurance or indemnification against fines will continue to apply. The prohibition on insurance does not extend to court costs.
Which WHS regulation will apply for construction works at a port area before any mineral is loaded on the port from a mine?
The WHS Act covers all workplaces within the natural jurisdiction of Western Australia. Although the WHS regulations have not been finalised, it is proposed that they apply to all workplaces. Ports that are currently covered by Western Australia’s safety and health laws (whether as a general workplace or a mining operation) will continue to be covered by the WHS Act.
How does the changes in the law affect a person currently holding the builder's licence where there are multiple construction sites?
The WHS laws do not regulate builder’s licences. However, workplace participants including a PCBU or worker undertaking construction work and building sites must comply with the requirements of the WHS Act and accompanying regulations as they must comply with the existing OSH Act.
Section 16 of the WHS Act provides for a situation where more than one person has a duty for the same matter. In these circumstances, each duty holder must comply with that duty to the standard required by WHS Act. The duty is limited to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. The duties under the OSH Act are similar.
How will the new laws operate when you are a PCBU, and you have other businesses on your site that have concurrent responsibilities and are also PCBUs?
Section 16 of the WHS Act relates to circumstances where more than one person has a duty at a workplace. In this situation, a PCBU must discharge their duty to the extent to which they have influence and control over the matter.
Section 46 requires that each person with a duty must consult, cooperate and coordinate activities with others with a duty in relation to the same matter, so far as is reasonably practicable.
How do partnerships apply i.e. where there is no principal but multiple partners? Is it a collective?
Section 5 of the WHS Act provides that a person conducting a business or undertaking includes a business or undertaking conducted by a partnership or an unincorporated association. If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in the Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.
In the cases of businesses with Boards, what are the changes to responsibilities and potential liabilities for Board members?
Section 4A of the WHS Act defines meaning of ‘officer' with a reference to the Corporations Act 2001. Section 27 of the WHS Act requires that ‘officers’ must exercise ‘due diligence’ to ensure that the person conducting the business or undertaking complies with their workplace duty or obligation. ‘Due diligence' is defined at section 27(5).
Board members that are currently considered to be officers under the Corporations Act 2001 will be required to exercise ‘due diligence’ in relation to work health and safety matters. While the ‘due diligence’ duties were not prescribed in the OSH Act, DEMIRS believes the requirements were implied and the WHS Act puts the issue beyond doubt.
Notifiable incidents – Must the regulator be notified if a fan at stadium, patron at a bar, or customer in a shop gets injured to the reportable threshold?
Section 19(2) provides a broad duty on a person conducting a business or undertaking to ensure, so far as reasonably practicable, that the health and safety of other persons (other than workers) is not put at risk from work carried out as part of the conduct of the business or undertaking. This duty is not limited to the physical workplace or even to adjacent areas, nor does it require a worker to be present.
Notifiable incidents occur in the specified circumstances in relation to a person, rather than a worker. This means there will be circumstances where you will be required to notify the regulator when an injury occurs to a patron, student, or passer-by arising out of the work you conduct. DEMIRS has not finalised the guidance material about notifiable incidents. However, until this guidance is available, Safe Work Australia has produced the attached guidance sheet in relation to this issue - Information Sheet: Incident Notification.
How are students in school captured by the new WHS Act?
Section 19(2) provides a broad duty on a person conducting a business or undertaking to ensure, so far as reasonably practicable, that the health and safety of other persons (other than workers) is not put at risk from work carried out as part of the conduct of the business or undertaking. Students will generally fall into the category of ‘other persons at the workplace’. This is similar to the approach in the OSH Act and, generally, there is no change for students.
Students that undertake vocational activities as part of their studies may be considered workers depending on the facts and circumstances of each arrangement.
Can we standardise medicals? There is huge wastage and expense going from one site to another.
The WHS Act does not provide for medical assessments to be standardised.
With the new increase in penalties, will that money go back into improving safety for the state?
Consistent with the existing approach, fines imposed as a result of a successful prosecution for an offence under the WHS Act will go into consolidated revenue. It is a matter for the Government to decide how these receipts are applied to the provision of services to the people of Western Australia.
Safety Regulation at DEMIRS, that is not funded by mines or petroleum levies, is currently funded from consolidated revenue.
If the department amalgamates, will the mines levy cease or will all businesses have to pay a levy?
DEMIRS was established in 2017. In forming DEMIRS, the former departments of Commerce and Mines and Petroleum and other government entities were amalgamated. The mining and petroleum and geothermal energy levies continue to only be used for the purpose for which they are collected. The Government has put in place legislation to ensure the existing levy arrangement continue under the WHS Act.
How will the WHS Act interface where the Commonwealth has jurisdiction or management and control of a workplace?
Under existing workplace safety laws, on occasions, decisions about jurisdiction between state and Commonwealth laws are required. The Australian Constitution, Chapter V, Section 109, provides that, when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Where management and control of a workplace falls within the Commonwealth's jurisdiction, Commonwealth legislation will take priority. Generally, these circumstances are unchanged by the WHS laws.
What are the consultation processes the Government has undertaken in relation to the WHS Act and WHS Regulations?
The Government appointed the tripartite Ministerial Advisory Panel (MAP) on Work Health and Safety Reform. The MAP recommendations for the modernisation of Western Australia’s WHS laws were subject to an extensive two-month public consultation process which ended on 31 August 2018 and received 66 submissions from various stakeholders. The consultations included presentations in the metropolitan area and regional locations. Since May 2020, the bill was subject to further scrutiny in the Legislative Council and by the Standing Committee on Uniform Legislation and Statutes Review and the Standing Committee on Legislation.
For the WHS regulations which will support the WHS Act, an extensive three-month consultation process which ended on 26 November 2019, was undertaken. A total of 68 submissions were received on a range of WHS topics. The consultations included presentations and workshops across metropolitan Perth and regional areas.
Will the new Mine Regulations be based on the proposal document produced by DEMIRS last year?
The proposal document produced in 2019 will form the basis of proposals for the mines regulations, with modifications made as a consequence of public consultation.
Codes of Practice and guidance material
Will WA keep the existing codes of practice or adopt the model codes? Do we know when this decision will be made?
The current intention of the Government is to use the national model WHS codes of practice, with editorial changes to reflect the amendments to the model WHS laws made in Western Australia. However, it is expected that only a small number of changes to the model codes of practice will be required.
The Commission for Occupational Safety and Health is in the process of reviewing codes of practice that are unique to Western Australia with a view to adapting them for use under the WHS Act. Substantive work on the codes of practice cannot commence until the underlying WHS regulations have been finished.
How will codes of practice be developed under the new WHS laws?
Sections 274 and 275 of the WHS Act require that codes of practice are developed through consultation with unions and employer organisations. These sections in relation to the codes of practice are the same as the model WHS Act adopted in other Australian jurisdictions and are consistent with the existing requirements in the OSH Act and Mine Safety Inspection Act 1994.
Where can I find guidance regarding PCBU and officers?
Section 5 of the WHS Act provides a definition for the ‘Meaning of a person conducting a business or undertaking’ (PCBU). In most circumstances, it will be relatively easy to determine if an entity is a PCBU.
DEMIRS has released Interpretive guideline - The meaning of 'person conducting a business or undertaking' (PCBU). This guidance material based is on a Safe Work Australia publication. If you require further information, please consider contacting your professional association or seek legal advice on the application of the WHS Act.
Will new requirements be included into an updated WorkSafe Plan Workbook?
Yes. DEMIRS will issue updated documents in due course.
WHS and other training
What will happen for those who have OHS qualifications? Will they still be valid under WHS?
The WHS laws do not prescribe the content of qualifications such as those obtained through tertiary and Vocational Education and Training (VET) sector institutions. The exceptions to this are prescribed licences and health and safety representative training qualifications.
Generally, OHS tertiary and VET sector qualifications are expected to be unaffected by the WHS laws. You may like to consider clarifying this with the institution which issued the qualification.
For licences and authorisations under the WHS regulations, there are unlikely to be changes. The exception to this could be pressure vessel operation and asbestos removal work. Until decisions about the WHS regulations are finalised, these details are not known. However, information will be publicised via the DEMIRS newsletter (please consider subscribing to DEMIRS newsletters) and through other relevant forums.
Will Safety and Health Representatives be required to complete updated training in the new WHS laws?
Schedule 1 Division 3, prescribes the functions of the Work Health and Safety Commission, which will replace the Commission for Occupational Safety and Health. The functions include formulating and approving accredited training courses in work health and safety. Training courses for the health and safety courses will be considered as part of the implementation process. In order to receive updated information when available, please consider subscribing to the DEMIRS newsletter.
Are inspectors going to be double-badged as WorkSafe and mines inspectors?
The WHS Act does not distinguish between inspectors based on the nature of the workplace (e.g. mining operation or workplaces generally) and only one authorisation will be required. As an operational necessity, inspectors with the relevant expertise will continue to be deployed to the appropriate workplace.
Will an increased number of inspectors be appointed?
Consistent with its commitment to workplace health and safety, the Government has already allocated funding to DEMIRS for an additional 21 inspectors and six support staff (which includes a lawyer and administrative officers) to improve workplace safety and health outcomes in Western Australia. However, the Government will consider further resources if requested.
How will Comcare and WorkSafe operate moving forward?
There will be no change to the current arrangements for Comcare self-insured licensees as a consequence of the WHS Act. DEMIRS will continue to work closely with Comcare to ensure that inspectors only enter workplaces within their jurisdiction.