Western Australia is facing a period of significant change over the next few months. In addition to opening its borders, the occupational health and safety system will finally join the harmonised work health and safety system after 10 years of debate, there will be further changes to the child protection landscape with legislation before the Western Australian Parliament to introduce a Reportable Conduct Scheme, and there are imminent changes to the employment laws affecting schools which are under the Western Australian industrial relations system rather than the federal Fair Work Act.
The long-awaited changes to occupational safety and health in Western Australia will take effect from 31 March 2022. The Occupational Safety and Health Act 1984 (WA) and Regulations will be replaced by the Work Health and Safety Act 2020 (WA) and Regulations, which will bring WA into line with the national harmonised system established in South Australia, Queensland, New South Wales, Tasmania, the Australian Capital Territory and the Northern Territory. Victoria is now the only outlier.
Under the new regime, the gist of an employer’s duty to keep workers safe has not changed. However, this might not seem immediately obvious given the different titles, definitions and the level of detail required to discharge those duties. Perhaps the most obvious change, but probably the one with the least impact for schools, is that an employer is now called the Person Conducting a Business or Undertaking – PCBU. The term “workers” expands to cover not only all of a school’s employees but also any volunteers, contract staff, trainees, labour hire, and any contractors , sub-contractors and their employees (their “workers” )who are engaged by the school or working on the school’s premises.
Joint Duty of Care
The WHS Act acknowledges that protecting contractors and sub- contractors is a joint duty of care between the two (or more) employers, and each is responsible to the extent that each has the capacity to “influence or control”. This is similar to the requirements under the OSH Act but is far more detailed and explicit, as it requires PCBUs with a joint responsibility for workers to “consult, cooperate and coordinate”. This can translate, for example, into a school providing a site induction for tradespeople entering school premises which will alert them to local hazards such as asbestos, but the tradesperson’s employer is responsible for ensuring that they have the appropriate training, safe work practices and equipment. It can also involve contracts that stipulate appropriate licensing, insurance, and undertakings that a PCBU’s workers have the appropriate training before entering school premises.
Perhaps the most glaring difference between the old legislation and the new is the detailed requirements for “due diligence” by a PCBU’s “directors and officers” in ensuring that the PCBU complies with the WHS Act. (See our School Governance article for more detailed information.) Key decision-makers in the school, such as members of a school’s board /council, school Principals and perhaps Deputy Principals and Business Managers, must be able to provide specific evidence that their decisions in relation to health and safety take into account those due diligence requirements. One of these new specific due diligence requirements is that in allocating resources to address health and safety matters, they must assess the likelihood and consequence of the risk of harm arising from an identified hazard before they consider the cost of remediation.
In addition, the legislation also introduces the new offence of industrial manslaughter, and specifically extends the PCBU’s duty of care for workers’ health to cover their psychological as well as physical health.
It should be noted that the penalties for breaching the WHS Act also increase significantly compared to penalties under the OSH Act, and if an officer of the PCBU has a penalty awarded against them, they are prohibited from taking out insurance to cover the fine (officers who are volunteers are exempt from prosecution as officers) or being indemnified by the PCBU.
School board and executive team members should read the very detailed resources including an explanation of the changes and support for implementation available on the WA Government Department of Mines, Industry Regulation and Safety (DMIRS) website (https://www.dmirs.wa.gov.au/safety-regulation/introduction-whs-laws).
If your school already has a fully functioning and effective occupational safety and health system in place, then:
If your school is not confident about its existing OSH system, now is the time to rigorously review all of the school’s OSH policies and procedures using the DMIRS video Are You Ready for WHS? as a starting point, remembering the requirement to consult workers in all matters that affect their health and safety at work.
The Western Australian Parliament has passed amendments to the Industrial Relations Act 1979 (WA), the Long Service Leave Act (1958) and the Minimum Conditions of Employment Act (1993), but most of those changes have not yet come into effect. At this time only the proclamation of Easter Sunday as a public holiday may directly affect schools. With the exception of the changes to the Long Service Leave Act, the other amendments will only be of relevance to schools that still come under the WA industrial relations system, rather than the Fair Work Act 2009 (Cth). Further information on the upcoming changes is available on the Department of Mines, Industry Regulation and Safety website.
The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that state and territory governments set up schemes that oblige heads of organisations to notify an independent body of misconduct involving children, known as reportable conduct, by their employees, volunteers and contractors (Reportable Conduct Scheme).
Reportable Conduct Schemes aim to prevent harm to children and make children safer through:
In response to the recommendation, the WA Parliamentary Commissioner for Administrative Investigations, more commonly known as the Ombudsman (Ombudsman), sought comments on a public consultation draft Bill to establish a Reportable Conduct Scheme in Western Australia, and the consultation period closed on 31 January 2021. The Parliamentary Commissioner Amendment (Reportable Conduct) Bill 2021 (WA) was introduced into the Legislative Assembly on 24 November 2021.
In his second reading speech, the Minister indicated that:
The “head” of an organisation (generally the Principal of an individual school, or the CEO or head of a group school) is required to notify the Ombudsman of the following alleged conduct:
Heads of organisations that are covered by the Scheme will be required to:
The Ombudsman will work with organisations to build on existing procedures and reporting requirements. The Ombudsman will:
Making a finding of reportable conduct can have implications on an employee’s ability to work with children, depending on the seriousness of and the type of conduct. Some findings can trigger an assessment or reassessment of a person’s Working with Children Check.
The WA Ombudsman has released a fact sheet on the proposed Reportable Conduct Scheme for Western Australia.
Schools should start preparing for the introduction of a Reportable Conduct Scheme by:
Karen is a Legal Content Consultant, Child Safeguarding at CompliSpace. Karen has worked at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in the Reportable Conduct Directorate, and at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer where she was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has a background as a commercial litigation lawyer and holds a bachelor’s degree in Arts/Law (Hons).
Svetlana Pozydajew is the Principal Consultant, Workplace Relations at CompliSpace. Svetlana has a background in management of national HR and WHS functions across the private and public sectors, and has an LLB, MBA and MA (Journalism).