On 31 March 2022 the bulk of Western Australia’s new work, health and safety (WHS) laws commenced under the Work Health and Safety Act 2020 (WA) (the Act) and its accompanying regulations. These cover general industry, as well as the mining and petroleum industries.
The new laws are much broader in their application than the previous regime and introduce various new WHS duties, including:
a new statutory primary health and safety duty;
WHS due diligence obligations for officers (including an expanded definition of ‘officer’);
new offences (including industrial manslaughter) and higher 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. Key changes include:
Application of WHS laws to PCBUs
The new laws have broad application and apply to PCBUs and not just traditional ‘employers’.
A person will be considered a PCBU regardless of whether the person conducts a business or undertaking alone or with others, and regardless of whether the business or undertaking is conducted for profit or gain. Examples of a PCBU include, at least:
a sole trader;
each partner within a partnership;
a company;
an unincorporated association; and
a government department or public authority.
New primary WHS duty
The Act introduces a new primary WHS duty for a PCBU to ensure, so far as is reasonably practicable, the health (physical and psychological) and safety of workers and other persons arising from the conduct of their business or undertaking.
The duty requires a PCBU to eliminate risks to health and safety, so far as is reasonably practicable and, where it is not reasonably practicable to eliminate those risks, to minimise those risks so far as is reasonably practicable.
What is ‘reasonably practicable’ to ensure health and safety will turn on a number of considerations including (for example) the likelihood of a hazard or risk occurring, the degree of harm that might result from the hazard or risk, and the availability and suitability of ways to eliminate or minimise identified risks.
Importantly, the ‘cost’ of available ways to eliminate or minimise risk, including whether the cost is grossly disproportionate, is the ‘last’ or lowest order consideration a PCBU should take into account when assessing what is reasonably practicable. The Work Health and Safety Regulations also prescribe a hierarchy of control measures, involving specific steps implemented in a specific order.
The primary duty extends to ensuring, so far as is reasonably practicable, the provision of safe working environments, plant and structures, systems of work, facilities for workers, and information, training, instruction or supervision necessary to protect persons from risks to their health and safety.
There are a number of other PCBU duties provided for under the Act in connection with management and control of workplaces, and the design, manufacture, importation, supply and installation of plant and structures.
Officer due diligence obligations
Under the new laws, officers of a PCBU have a personal, non-delegable duty to exercise due diligence to ensure that the PCBU complies with its statutory WHS obligations.
The exercise of due diligence includes taking reasonable steps to: keep up to date knowledge of WHS matters; gain an understanding of operational hazards and risks; ensure appropriate processes are in place for receiving, considering and responding to WHS information about incidents, hazards and risks; ensure WHS compliance processes are in place; and verify the provision and use of WHS resources and processes.
Breach of this duty can lead to criminal prosecution, attracting monetary and custodial penalties (see below).
Officers include persons with an ability to influence a significant part of the operations, so that is likely to include some executives.
Duty to consult
The new Act also imposes two positive duties to consult.
Firstly, any persons who have a duty in relation to the same matter must consult, cooperate and coordinate activities with all other duty holders.
Secondly, PCBUs must consult workers in relation to a number of prescribed matters, broadly pertaining to any decisions or changes that might affect the worker. What constitutes the necessary consultation is set out in detail under the Act, but will generally depend on the circumstances.
WHS offences & industrial manslaughter
The Act provides for three main categories of WHS offences (each with different ‘fault elements’), along with a new offence of industrial manslaughter. A high-level overview of the maximum penalties for these offences for both PCBUs and officers is set out in the table further below.
A PCBU commits industrial manslaughter if it, in breach of its duties, engages in conduct that causes the death of an individual, knowing that the conduct is likely to cause the death of, or serious harm to, an individual, and in disregard of that likelihood.
An officer of a PCBU commits industrial manslaughter if a PCBU, in breach of its duties, engages in conduct that causes the death of an individual, and the PCBU’s conduct is attributable to any neglect on the part of the officer; or is engaged in with the officer’s consent or connivance.
WHS offences and maximum penalties
| Offence | Maximum Penalty - PCBU | Maximum Penalty - officer |
|---|---|---|
| Industrial manslaughter | Individual: 20 years imprisonment and a fine of $5,000,000. Body corporate: $10,000,000 | 20 years imprisonment and a fine of $5,000,000. |
| Category 1 Offence | Individual: 5 years imprisonment and a fine of $680,000. Body corporate: $3,500,000 | 5 years imprisonment and a fine of $680,000. |
| Category 2 Offence | Individual: $350,000. Body corporate: $1,800,000. | $350,000. |
| Category 3 Offence | Individual: $120,000. Body corporate: $570,000. | $120,000. |
Offence
Maximum Penalty - PCBU
Maximum Penalty - officer
Industrial manslaughter
Individual: 20 years imprisonment and a fine of $5,000,000.
Body corporate: $10,000,000
20 years imprisonment and a fine of $5,000,000.
Category 1 Offence
Individual: 5 years imprisonment and a fine of $680,000.
Body corporate: $3,500,000
5 years imprisonment and a fine of $680,000.
Category 2 Offence
Individual: $350,000.
Body corporate: $1,800,000.
$350,000.
Category 3 Offence
Individual: $120,000.
Body corporate: $570,000.
$120,000.
Insurance and indemnity arrangements
The new laws prohibit entering into and receiving the benefit of insurance and other indemnity arrangements which cover WHS fines / penalties.
The prohibitions make it unlawful (for example) for a person to enter into an insurance policy that purports to indemnify a person for their liability to pay a fine for an offence under the Act; or be indemnified, or agree to be indemnified, by another person for liability to pay a fine for an offence under the Act.
Consequently, companies are no longer able to indemnify directors by paying fines on their behalf.
Key WHS changes for mining
The nature of the new overarching duties necessitates a review of all existing WHS practices, even if a given matter is substantially the same under the new regime. Notwithstanding that, there are some additions and alterations under the Work Health and Safety (Mines) Regulations 2022 (WA) (WHS Mines Regulations) that justify further specific attention.
Mine Safety Management System
Mine Safety Management Systems (MSMS) are a significant addition, only vaguely comparable to the project management plans previously required under the MSIA Regulations. The WHS Mines Regulations describe the MSMS as the primary reference point for all WHS aspects of a mine. MSMS’ must also include specific minimum including a WHS policy, arrangements and control measures for identifying, assessing and managing risks and hazards, consultation and training arrangements, incident management procedures, and an assessment framework by which the efficacy of the MSMS is reviewed.
Statutory positions
While conceptually similar to ‘competent persons’ under the MSIA Regulations, statutory positions under the new regime are far more specific and prescriptive. Key statutory positions including senior executives, exploration managers or underground managers must be appointed for mining operations to commence or continue. Schedule 26 to the WHS Mines Regulations set out a number of positions and related functions. A person appointed to an equivalent position under the MSIA is taken to be appointed for the purposes of Schedule 26.
Notifiable and reportable incidents
Notifiable incidents include death, serious injury or illness and dangerous incidents. Reportable incidents are effectively any incident that falls short of a notifiable incident or that which could have caused serious harm to a person, plant or structure. The requirement to notify the regulator exists for both types of incidents and no longer invites a subjective assessment. The previous regime covered far less, and allowed a manager to use their subjective opinion to determine whether an incident was reportable.
Exemptions
Previously, a miner could be exempted from complying with the regime if they had substantially complied, or if compliance was unnecessary or impracticable.
Where to from here?
The new, more prescriptive and broader duties require clients with operations in WA to review their health and safety management systems, processes and procedures (including consultation procedures), to ensure workplace hazards and risks are being appropriately managed.
With the introduction of the new offence of industrial manslaughter, businesses should be actively identifying and / or reviewing their top fatal and catastrophic risks, and regularly monitor these to verify they are being appropriately managed.
Consider the application and nuances of the Western Australian WHS Regulations designed for local industry.
Officers might also ask themselves the following questions:
What are my organisation’s top operational health and safety risks?
What is being done to manage these risks?
Can more be done to manage these risks?
Am I receiving meaningful health and safety reporting on the management of incidents, hazards and risks?
What can I do personally to promote safety leadership?
Please contact our experts for further advice on ensuring compliance.
Table Comparing MSI v WHS
| Key change | WHS Act / WHS Mines Regulations | MSI Act / MSI Regulations |
|---|---|---|
| WHS Act - General | ||
| PCBUs are now the focus of duties, evolving from the traditional employment relationship. | Section 5 WHS Act A person conducting a business or undertaking includes companies, sole traders, partners within a partnership, unincorporated associations, government department / public authorities | Sections 9 and 12 MSI Act The duty was previously expressed to be between employer and employee, or a self-employed persons duty to themselves. |
| The primary duty of care on PCBUs is a positive duty to ensure the health and safety of workers, | Section 19 WHS Act A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by the person; and workers whose activities in carrying out work are influenced or direct by the person, while the workers. The duty is no longer framed by reference to avoiding risks or hazards. | Section 9 MSI Act An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer’s employees are not exposed to hazards. The duty to ensure WHS is more onerous than a duty to provide a workplace without hazard exposure. |
| Officers of PCBUs now have a positive duty to exercise due diligence to ensure the PCBU complies with its WHS duties. | Section 27 WHS Act If a PCBU has a duty under the WHS Act or Mining Regulations, officers must actively ensure it is complied with. Officers may include senior management personnel and managing directors. | Sections 99A-100 MSI Act Previously, officers would typically only become implicated if there was some active participation in the breach, not if there is a failure to actively ensure compliance. |
| Duty holders must now consult and cooperate with each other in relation to their duties. A PCBU must also consult with its workers in relation to matters that might affect those works | Sections 46-47 WHS Act The new duties are clearly aimed at promoting a compliance culture across firms, and seeking to minimise the natural fragmentation that occurs within both small teams and larger organisations. | There is no comparable duty under the MSI Act. At most, employers had to consult workers in relation to discrete matters, but no general duty existed. |
| A new offence for industrial manslaughter has been created whereby a person can be held responsible for a death relating to a breach of their duty. | Part 2 Division 5 Sub-division 2 WHS Act The new offence carries maximum penalties of 20 years imprisonment for officers and fines ranging from $5,000,000-$20,000,000. | There is no comparable offence. |
| Insurance or indemnity arrangements that cover penalties for breaches of the WHS Act are prohibited. | Section 272A WHS Act The wording of th e section is very broad and appears to include the prohibition of a company indemnifying its director by paying a penalty on their behalf. | There is no comparable provision. |
| WHS Mines Regulations | ||
| Familiar WHS principles of hierarchy of controls are now mandated. | Regulation 36 WHS Mines Regulations Where it is not reasonably practicable to eliminate a risk, the regulations provide a method and order in which the risk should be controlled. | There is no comparable provision. |
| Mine Safety Management Systems (MSMS) are required for all mining operations. | Regulations 621-625A WHS Mines Regulations MSMS’ are a primary reference point for all WHS matters and procedures. The Regulations set out detailed minimum requirements for the contents, including that it must be reviewed and assessed regularly. | Regulation 3.13 MSI Regulations Previously a Project Management Plan was required, but the contents were far less prescriptive and focused on operational matters. |
| Statutory Positions are a new operational control which deal with appointing certain persons to discrete safety and operational positions, and provide accompanying functions to be carried out. | 675ZB-675ZC, Schedule 26 WHS Mines Regulations Schedule 26 provides the bulk of the relevant positions and functions. The Regulations also prevent operations from continuing if the relevant person is absent for more than 7 days. Miners can appoint alternates in the case of absences. | Regulations 2.21 - 2.37 The prior competent persons regime is vaguely referable to the new requirement for statutory positions. The latter are far more detailed and prescriptive. |
| Incident Reporting requirements have increased under the new Act with the introduction of notifiable and reportable incidents. | Sections 35-39 WHS Act; regulation 675V Notifiable incidents include deaths, serious injuries or dangerous incidents. Reportable incidents effectively cover all other types of incidents falling short of that. Both must be reported to the regulator. | Section 76 MSI Act A number of incidents were previously notifiable. However, the catch all provision for an incident not prescribed was expressed to be subject to the manager’s opinion of the safety or danger of an incident. That subjectivity has been removed now. |
| The substantial compliance exemption has been removed and replaced with a broader power to exempt but it is a much higher bar now to satisfy the requirements of granting an exemption. | Sections 684-685 WHS Mines Regulations Aside from some specific matters, exemptions may now be given in relation to any regulation. The regulator must take into account a number of specific matters which broadly amount to a merits judgement as to whether the exemption would impact the health and safety of workers or increase any risks. | Regulations 1.3 - 1.4 MSI Regulations Previously, a miner could be exempted from complying with the regime if they had substantially complied, or if compliance was unnecessary or impracticable. |
Key change
WHS Act / WHS Mines Regulations
MSI Act / MSI Regulations
WHS Act - General
PCBUs are now the focus of duties, evolving from the traditional employment relationship.
Section 5 WHS Act
A person conducting a business or undertaking includes companies, sole traders, partners within a partnership, unincorporated associations, government department / public authorities
Sections 9 and 12 MSI Act
The duty was previously expressed to be between employer and employee, or a self-employed persons duty to themselves.
The primary duty of care on PCBUs is a positive duty to ensure the health and safety of workers,
Section 19 WHS Act
A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by the person; and workers whose activities in carrying out work are influenced or direct by the person, while the workers.
The duty is no longer framed by reference to avoiding risks or hazards.
Section 9 MSI Act
An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer’s employees are not exposed to hazards.
The duty to ensure WHS is more onerous than a duty to provide a workplace without hazard exposure.
Officers of PCBUs now have a positive duty to exercise due diligence to ensure the PCBU complies with its WHS duties.
Section 27 WHS Act
If a PCBU has a duty under the WHS Act or Mining Regulations, officers must actively ensure it is complied with.
Officers may include senior management personnel and managing directors.
Sections 99A-100 MSI Act
Previously, officers would typically only become implicated if there was some active participation in the breach, not if there is a failure to actively ensure compliance.
Duty holders must now consult and cooperate with each other in relation to their duties.
A PCBU must also consult with its workers in relation to matters that might affect those works
Sections 46-47 WHS Act
The new duties are clearly aimed at promoting a compliance culture across firms, and seeking to minimise the natural fragmentation that occurs within both small teams and larger organisations.
There is no comparable duty under the MSI Act. At most, employers had to consult workers in relation to discrete matters, but no general duty existed.
A new offence for industrial manslaughter has been created whereby a person can be held responsible for a death relating to a breach of their duty.
Part 2 Division 5 Sub-division 2 WHS Act
The new offence carries maximum penalties of 20 years imprisonment for officers and fines ranging from $5,000,000-$20,000,000.
There is no comparable offence.
Insurance or indemnity arrangements that cover penalties for breaches of the WHS Act are prohibited.
Section 272A WHS Act
The wording of th e section is very broad and appears to include the prohibition of a company indemnifying its director by paying a penalty on their behalf.
There is no comparable provision.
WHS Mines Regulations
Familiar WHS principles of hierarchy of controls are now mandated.
Regulation 36 WHS Mines Regulations
Where it is not reasonably practicable to eliminate a risk, the regulations provide a method and order in which the risk should be controlled.
There is no comparable provision.
Mine Safety Management Systems (MSMS) are required for all mining operations.
Regulations 621-625A WHS Mines Regulations
MSMS’ are a primary reference point for all WHS matters and procedures. The Regulations set out detailed minimum requirements for the contents, including that it must be reviewed and assessed regularly.
Regulation 3.13 MSI Regulations
Previously a Project Management Plan was required, but the contents were far less prescriptive and focused on operational matters.
Statutory Positions are a new operational control which deal with appointing certain persons to discrete safety and operational positions, and provide accompanying functions to be carried out.
675ZB-675ZC, Schedule 26 WHS Mines Regulations
Schedule 26 provides the bulk of the relevant positions and functions. The Regulations also prevent operations from continuing if the relevant person is absent for more than 7 days. Miners can appoint alternates in the case of absences.
Regulations 2.21 - 2.37
The prior competent persons regime is vaguely referable to the new requirement for statutory positions. The latter are far more detailed and prescriptive.
Incident Reporting requirements have increased under the new Act with the introduction of notifiable and reportable incidents.
Sections 35-39 WHS Act; regulation 675V
Notifiable incidents include deaths, serious injuries or dangerous incidents. Reportable incidents effectively cover all other types of incidents falling short of that. Both must be reported to the regulator.
Section 76 MSI Act
A number of incidents were previously notifiable. However, the catch all provision for an incident not prescribed was expressed to be subject to the manager’s opinion of the safety or danger of an incident. That subjectivity has been removed now.
The substantial compliance exemption has been removed and replaced with a broader power to exempt but it is a much higher bar now to satisfy the requirements of granting an exemption.
Sections 684-685 WHS Mines Regulations
Aside from some specific matters, exemptions may now be given in relation to any regulation. The regulator must take into account a number of specific matters which broadly amount to a merits judgement as to whether the exemption would impact the health and safety of workers or increase any risks.
Regulations 1.3 - 1.4 MSI Regulations