Background

Many observers were caught by surprise when the WA Government tabled the 277 page Work Health and Safety Bill in Parliament on the 27^th of October. Even though WA government ministers were present and voted on the original model Work Health and Safety (WHS) laws and model WHS Act (also known as the harmonised laws) in 2011, which were meant to be implemented across Australia around that time, WA has held off actually committing until now.

As a matter of fact, we have reported on possible Western Australian WHS changes several times since 2011. In 2013 we reported that “Western Australia is committed to harmonisation in principle, with modified legislation still to be finalised and a likely start date some time in 2013/14”.Then, in 2018, we advised that the WA Government was finally drafting the WHS Bill.

Safe Work Australia also provided commentary regarding this rather drawn out process in their discussion paper 2018 Review of the model WHS laws. It also noted that the WA Work Health and Safety Bill was in the process of being drafted.

Since 2011 WA governments have had several reviews and consultations with industry sectors, which were designed to identify the applicability of a nationwide system to the unique circumstances of Western Australia. The proposed Bill reflects the vast majority of the model WHS Act, which has been rolled out in the other states and territories with the exception of Victoria, but naturally with some variations. To be fair, almost all of the other harmonised jurisdictions have also varied their WHS Act in some small way to reflect political priorities.

The Key Changes

There are some fairly dramatic differences between the current Occupational Safety and Health (Act 1984 (WA) (OSH Act) and the proposed legislation: this includes both concepts and names of concepts. We will just touch on a few of the most striking changes.

The new WHS Bill, if passed, will replace the OSH Act.

PCBU – Person Conducting a Business or Undertaking

This is the new concept of (and term for) the employer and is designed to cover various types of organisational entities. A non-government school which is a corporation limited by guarantee or an incorporated association would be a PCBU. The PCBU has a duty of care for the health and safety of its workers and others affected by its activities. The PCBU must also comply with a range of specific responsibilities to further protect workers.

In addition, with regards to PCBUs, the new WHS Bill states “The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, 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.” While students will not be considered “workers” under the new WHS Bill the PCBU must also ensure the health and safety of each student in their capacity as “any person.”

An Officer

Behind each PCBU are individuals who make management decisions for the organisation. Under the harmonised laws they are called “officers” and they include directors, company secretaries and any individual who:

• makes, or participates in making, significant decisions that affect the whole, or a substantial part, of the business; or
• has the capacity to significantly affect the business' financial standing.

While subject to considerable debate and legal advice, in an average school this is likely to include governing body members (unless it is an advisory governing body only), the principal and the business manager, and depending on the organisational structure and actual responsibilities, may include deputy principals and heads of school, and any other individuals who fit those definitions.

Officers are responsible for ensuring that the PCBU complies with its legal obligations and must exercise “due diligence” to ensure that the PCBU actually does so. For an officer to satisfy the “due diligence” requirements, they must take reasonable steps to:

(a) acquire and keep up-to-date knowledge of work health and safety matters;

(b) gain an understanding of the nature of the operations of the business and generally of the hazards and risks associated with those operations;

(c) ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business;

(d) ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;

(e) ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under the WHS [Act], which may include:

• reporting notifiable incidents
• consulting with workers
• ensuring compliance with notices issued under the WHS Act
• ensuring the provision of training and instruction to workers about work health and safety
• ensuring that health and safety representatives receive their entitlements to training;

(f) verify the provision and use of the resources and processes referred to in paragraphs (c)-(e).

The PCBU can be held liable for breaches of the WHS laws but officers can also be held personally liable with fines and even imprisonment for non-compliance. Under the new WHS Bill, officers and the PCBU cannot take out insurance to cover monetary penalties for breaches of the WHS legislation.

An important point to note is that volunteer officers, and usually these will be volunteer governing body members, will not be held liable for breaches of their duty as an officer.

Workers

An employer’s responsibility for their employees has been expanded in the new WHS Bill. The concept of a “worker” includes employees but also a contractor or sub-contractor or their employees, a person employed by an agency /labour hire assigned to work for the PCBU, as well as apprentices, work experience students, or volunteers. This is not too different from the OSH Act where contractors, sub-contractors and their employees, and labour hire individuals were also covered as if they were employees, but to a limited extent. The PCBU will be jointly responsible with other PCBUs where a worker from one PCBU is performing work for another PCBU; each PCBU is required to discharge their duty of care to the extent to which each PCBU has the capacity to influence and control the matter.

Industrial Manslaughter

The new WHS Bill also introduces the offence of industrial manslaughter. This is not part of the harmonised WHS system yet, although it was one of the recommendations made in the national review of the model WHS laws. Currently Queensland, the ACT and Victoria have enacted industrial /workplace manslaughter legislation. In the new WHS Bill, the industrial manslaughter offence carries a maximum penalty of 20 years imprisonment for an individual and a fine of $10 million for a body corporate.

Health and Safety Includes Physical and Psychological Health

The Western Australian Government’s media release highlighted the expansion of the definition of “health” in the new WHS Bill to include both physical and psychological health. This will bring it into line with other jurisdictions which have used health and safety laws to address workplace bullying.

Terminology

Schools may also like to bear in mind that, if the Bill passes, the terminology in this area will change because occupational health and safety/OSH is used throughout the OSH Act but work, health and safety/WHS is used in the new WHS Bill.

Next Steps

Given how long it has taken for the new WHS Bill based on the harmonised laws to make it into the WA parliament, at this point it is probably best to wait until the Bill comes closer to being passed before embarking on major changes to your school’s system of health and safety (or officers putting the family home in their partner’s name). However, we would strongly recommend that all WA schools identify any foreseeable hazards and ensure that all reasonably practicable control measures are in place. And in their spare moments, school executives who are likely to be “officers” if the new Bill passes might like to read the more detailed advice from Safe Work Australia on how to satisfy the due diligence requirements listed above.

Authors

Svetlana Pozydajew

Svetlana is a Senior Consultant at CompliSpace. She has over 20 years of experience in strategic and operational human resource management, occupational health and safety, and design and implementation of policies and change management programs. She has held national people management responsibility positions in the public and private sectors. Svetlana holds a LLB, Masters in Management (MBA), Master of Arts in Journalism, and a Certificate in Governance for not-for-profits.

Craig D’cruz

With 37 years of educational experience, Craig D’cruz is the National Education Lead at CompliSpace. Craig provides direction on education matters including new products, program/module content and training. Previously Craig held the roles of Industrial Officer at the Association of Independent Schools of WA, he was the Principal of a K-12 non-government school, Deputy Principal of a systemic non-government school and he has had teaching and leadership experience in both the independent and Catholic school sectors. Craig currently sits on the board of a large non-government school and is a regular presenter on behalf of CompliSpace and other educational bodies on issues relating to school governance, school culture and leadership.