Worksafe prosecutions

Since 2012 I have acted for employers who have been prosecuted by Worksafe WA.

This has included a workplace fatality case.

Having a lawyer who is experienced is important because:

• this is a complex area of the law,

• the penalties can be large.

Worksafe only commences a small number of prosecutions each year (about 30 across the whole State). The small number of prosecutions means only a relatively few lawyers have done this work before.

Also, if you are subject to a Worksafe investigation, you can engage me at the investigation stage to assist you when responding to, and dealing with, Worksafe's investigators.

New laws

On March 31, 2022, Western Australia's new work health and safety (WHS) laws came into effect under the Work Health and Safety Act 2020 (WA) (the Act) and its corresponding regulations.

These laws apply to general industry as well as mining and petroleum sectors.

The updated legislation has a wider scope compared to the previous framework, introducing several new WHS duties, including:

• A new primary health and safety duty;

• WHS due diligence requirements for officers (with an expanded definition of 'officer');

• New offenses (including industrial manslaughter) and increased penalties; and

• Prohibitions against insurance and indemnity arrangements for penalties.

Key Changes

The Act is based on the national model Work Health and Safety Act. Notable changes include:

WHS Laws Applicable to PCBUs

The new legislation applies broadly to a “persons conducting a business or undertaking” (PCBU), not just traditional 'employers'.

A person can be considered a PCBU whether conducting a business or undertaking alone or with others, and regardless of profit or gain.

PCBUs can include, but are not limited to:

• Sole traders;

• Partners within a partnership;

• Companies;

• Unincorporated associations; and

• Government departments or public authorities.

New Primary WHS Duty

The Act introduces a primary WHS duty for PCBUs to ensure the health (physical and psychological) and safety of workers and other individuals as far as reasonably practicable. This duty requires PCBUs to eliminate or minimize risks to health and safety when elimination is not reasonably practicable.

To determine what is 'reasonably practicable,' PCBUs must consider factors such as the likelihood of hazards or risks, the potential harm, and the availability and suitability of ways to eliminate or minimize identified risks. The cost of available methods is the least important consideration.

The primary duty also encompasses the provision of safe working environments, equipment, systems, facilities, and necessary information, training, instruction, or supervision.

Officer Due Diligence Obligations

Under the new laws, officers of a PCBU must exercise due diligence to ensure the PCBU complies with its WHS obligations. Due diligence includes reasonable steps to maintain up-to-date knowledge of WHS matters, understand operational hazards and risks, establish appropriate processes for receiving and responding to WHS information, and verify WHS resources and processes.

Officers who breach this duty may face criminal prosecution, monetary penalties, or imprisonment.

Duty to Consult

The Act imposes two consultation duties:

1. Duty holders must consult, cooperate, and coordinate activities with other duty holders in relation to the same matter.

2. PCBUs must consult workers on decisions or changes that may affect them.

WHS Offenses & Industrial Manslaughter

The Act outlines three categories of WHS offenses and a new offense of industrial manslaughter.

Maximum penalties for these offenses for both PCBUs and officers are as follows: