How to prepare for the WHS Act 2020

The new Work Health and Safety (WHS) Act 2020 came into effect on Thursday 31 March 2022, with companies taking action to ensure they are prepared for the new legislation.

Bringing Western Australia in line with the rest of the country, in relation to workplace safety laws, the WHS Act has been a long time coming, according to HFW Employment and Safety Partner Charmaine Tsang.

“WA safety law is now consistent with the law applied in other states and this is good news for businesses that operate nationally,” she said.

“The new Act also aims to bring a greater awareness of the importance of ensuring that workers are safe at the workplace and to have more of an impact on deterring conduct that puts workers at risk.

“This is reflected in the increased penalties under the Act and the introduction of the new offence of industrial manslaughter.”

Transitioning into the WHS Act 2020

“Some people are a bit nervous about the new personal duty imposed on company officers to exercise due diligence to make sure their company is compliant,” Ms Tsang said.

“However, this duty has been around for some time in other jurisdictions and most workers who qualify as officers are probably already doing enough to meet the duty.

“From looking at other states, most prosecutions related to this duty involve small companies where the officers are actively involved in the breach.

“One thing that is not in all versions of the WHS Act that may be controversial is the prohibition on insurance and indemnities against WHS fines.”

Ms Tsang said any clause in an insurance policy or contract which indemnifies someone against a fine imposed for a breach under the WHS Act was now unlawful, but this did not include costs for defending a prosecution.

“This will mean quite a few businesses will need to review and revise their current policies and agreements,” she said.

How should a person conducting a business or undertaking (PCBU) prepare?

Ms Tsang expressed the hope that PCBUs would already have taken steps to prepare for the legislation.

“PCBUs should take steps to review their current policies and procedures to make sure they are consistent with the WHS Act’s requirements,” she said.

“This should include making sure directors, board members and other officers are aware of their duty under the Act to exercise due diligence, with some assistance provided in meeting that duty.

“A consultation process should be set up with workers and other duty holders, if they don’t already exist.”

Ms Tsang said PCBUs should ensure their current insurance policies and agreements were not in breach of the prohibition on insuring and indemnifying against safety fines.

“In a lot of ways, it is a big departure from the previous legislation, so if businesses have any concerns, they should seek professional advice.”

How should workers prepare?

“Most workers don’t need to do anything to prepare, other than being aware of their own individual duty to not act in a way that puts anyone else’s health and safety at risk,” Ms Tsang said, adding that individual workers can be charged with industrial manslaughter, with maximum penalties including a $5 million fine and imprisonment for up to 20 years.

“However, workers who qualify as officers should be taking steps to ensure they meet their duty to exercise due diligence.”

Ms Tsang offered some practical steps for workers to take – keeping on top of the latest safety developments in their industry, making sure they are aware of the particular risks within their business and being proactive in checking proper processes are in place and are being followed.

This article is part of AIM WA’s Work Health and Safety Act series, where we discuss the ins and outs of the new Act and provide guidance to make sure your company is adhering to the latest rules and regulations. 

Other articles in the series:

Changing the face of health and safety in Western Australia
WHS Act 2020 - Key terms and definitions
What is a 'person conducting a business or undertaking?
Mental health and the WHS Act 2020

Where to from here?

Developing and Implementing Your Work Health and Safety Plan

This course, in partnership with ECU, will guide you through the internationally recognised structure of a WHS Management System, and importantly what you need to do to meet legislative requirements.