You might have heard some rumblings that Western Australia is introducing new Work Health and Safety (WHS) laws. Work started on modernising the WHS laws way back in 2017, and after a heap of industry consultation, the new rules will be in place from 31st March 2022.
It’s a bit to get your head around, so we’ve summarised the main things you need to know as a residential builder in WA.
The new laws are largely based on the national model used in other states and territories, so companies will now have similar obligations and requirements across Australia (except Victoria who like to be a bit different and do their own thing).
The WHS Act is supported by three sets of industry specific regulations to suit WA’s unique conditions. One is the “Work Health and Safety Regulations (General)” which applies to all workplaces including the residential building industry. The other two are for Mining and Petroleum industries so we won’t focus on them.
The new WHS laws are intended to improve the protection of workers by factoring in modern employment agreements, higher penalties for companies and individuals, and introducing the term ‘person conducting a business or undertaking’ (PCBU).
Some sections of the WHS laws were tailored for WA following extensive consultation. The term ‘Not used’ has replaced any clauses that don’t apply in WA.
Transitional arrangements will be put into place where duties are new or are substantially changed from existing requirements.
Keep in mind, the systems for identifying, assessing and controlling known hazards should already be in place, as both the WHS legislation and the previous occupational safety and health legislation already focused on the elimination or minimisation of risks.
Based on extensive consultation and recommendations, key changes by the government include:
PCBU is a new term and stands for Person Conducting a Business or Undertaking. This term is used throughout WHS legislation to describe all forms of modern working arrangements. As well as an employer, a PCBU can be a:
PCBUs have a duty to ensure the health and safety of their workers and others like visitors and volunteers.
PCBUs have the equal duty of care to a worker, even if there are multiple PCBUs involved. For example, if you employ a contractor who brings in a labour hire worker, you, the contractor and the labour hire company all share the same duty of care to that labour hire worker. So if an incident occurs, you can all be prosecuted under the WA WHS Act.
Management of control (MoC) is when the PCBU has MoC of the workplace, where they are required to ensure that the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.
A PCBU that commissions a construction project is the Principal Contractor for the project. That person can engage another PCBU as the Principal Contractor and authorise them to have MoC of the workplace.
A construction project can only have one Principal Contractor at any specific time.
Find out more about how how you can work with other PCBUs as the principal contractor
The new offense of industrial manslaughter provides substantial penalties for PCBUs where a failure to comply with a WHS duty causes the death of an individual, in circumstances where the PCBU knew the conduct could cause death or serious harm.
The criteria for convicting someone for industrial manslaughter under the WHS Act is the same as convicting someone under the current WA gross negligence law. But the WHS Act states that prosecutors no longer have to convict the company to be able to convict individual company officers.
The WHS Act includes a penalty provision for industrial manslaughter. The maximum penalty for an individual for industrial manslaughter is $5 million and up to 20 years in prison, but penalties vary based on many factors.
If you’re prosecuted under the current OHS Act, your insurance can pay for your legal fees and your penalties.
Once the WHS Laws comes into effect, your insurance can still pay for your legal fees, but when it comes to paying the penalty, company officers and PCBUs cannot take out insurance to cover fines for breaches.
Both the old laws and the new laws require you to have systems in place to identify, assess and control hazards.
These new laws are a good prompt to take stock of your current health and safety practices and make sure you’re protecting both your crew on site as well as your business. Here is the WHS laws checklist with advice on the key things you should be ticking off when it comes to your project site.
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