Recent changes in Western Australia’s Work Health and Safety laws have expanded the duties and obligations for businesses and their decision makers to protect the health and safety of persons in their workplace, including their mental wellbeing. A failure to meet these duties may attract significant penalties and even imprisonment.
This article provides an overview of some of the important changes that now apply to your organisation and how the team at Pragma can assist you with complying with the new laws.
Duties of Persons Conducting a Business or Undertaking
Under the Work Health and Safety Act 2020 (WA) (WHS Act), a ‘person conducting a business or undertaking’ (PCBU) has a primary duty of care to ensure, so far as reasonably practicable, the physical and psychological health and safety of a worker by eliminating risks to health and safety. Workers are not just paid employees, but include contractors, sub-contractors, labour hire workers, apprentices, volunteers and those on work experience.
Common examples of a PCBU include companies, sole traders, partners within a partnership, unincorporated associations and government departments of a public authority.
If you thought your business was low risk because your work was largely office based, it’s time to reconsider.
PCBU’s now have a positive obligation to manage psychosocial risks and to implement control measures to eliminate, or to minimise psychosocial risk as much as is reasonably practical.
Psychosocial risks are risks to the health and safety of a worker or other person from a psychosocial hazard. Psychosocial hazards at work encompass factors related to the design, organisation, management, and supervision of tasks or jobs, as well as inherent risks, equipment, working environment, and social factors that can lead to psychological or physical harm in the workplace.
Common examples of psychosocial risks workers are exposed to include: workplace stress, poor support, job demands, lack of role clarity, poor organisational change management, inadequate reward or recognition, poor organisational justice, remote or isolated work, poor physical environment, bullying, harassment and traumatic materials.
As a result, appropriate control measures must be in place to satisfy this positive obligation on PCBUs.
Obligations of officers
The WHS Act places additional positive duties on ‘officers’ of a PBCU to exercise due diligence to ensure that the PCBU complies with its obligations under the WHS Act.
Who is considered an officer of a PBCU will vary across most businesses and is entirely dependent on the business model and the kinds of decisions they are responsible for. Broadly, an officer is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business of the corporation or entity, or has the capacity to affect significantly the corporation or entity’s financial standing.
This may include decisions with respect to policy or strategy, governance, management, human resources or administration of the business as a whole or a large part, the setting of investment and financial management strategies or control over the future planning of the PCBU.
There are multiple ways an officer must meet their positive duty and actively take a role in implementing and managing the PCBU’s work health and safety matters.
Risks of fines and imprisonment
If an officer does not meet their duties, they could be prosecuted even where the incident did not occur in their immediate workplace or the PCBU is not liable.
Depending on the category of the offending, a PCBU can be found liable for up to $3,500,000 in penalties or for an officer up to 5 years imprisonment and a fine of $680,000, where duties under the WHS Act have not been met.
Additionally, a PCBU or officer may be found to have committed industrial manslaughter in the event of a death where their duties have not been met. Industrial manslaughter is considered a crime that attracts imprisonment for 20 years and a fine of up to $5,000,000 for individuals or $10,000,000 for a body corporate.
What do these changes mean for you?
- With broader and more prescriptive obligations, businesses need to understand the risks and hazards of the workplace and ensure these hazards and risks are being identified and managed.
- Businesses must ensure they understand who is considered an ‘officer’ of their organisation and that the officer’s obligations under the WHS Act are being met.
- Psychosocial hazards are treated with the same importance as physical hazards. Therefore, businesses need to understand what psychosocial hazards and risks are present at their workplace and adopt control measures to eliminate such risks and hazards.
- Policies and procedures should be reviewed and updated to reflect the WHS laws in Western Australia.
- A risk assessment should be conducted – especially if your workers are under high stress due to the amount or type of work they do, or the nature of their clients.
- WorkSafe WA has published a Code of Practice on Psychosocial Hazards. Compliance with the Code is a good place to start and will reduce your business’ risks. The Code requires, for example, properly drafted and implemented workplace policies, positive culture and leadership.
Pragma can help your business by:
- Auditing you work health and safety processes and procedures to mitigate compliance risks and provide you with recommendations on any changes; and
- Advise on who in your organisation is considered an officer for the purposes of the WHS Act.
- Preparing required policies and procedures to reflect the WHS laws and meet the Code.
- We are currently conducting fixed price audits to businesses in the professional services industry. We can conduct cultural and organisational reviews and audit your risk levels. This will protect your business from prosecution. It may also incidentally assist to improve your workplace culture and staff retention!
If you require assistance in relation to any of the information provided above, Pragma’s Employment lawyers can provide advice to you and your business to minimise your future risk. Contact us today at firstname.lastname@example.org or (08) 6188 3340.