20 Nov 2014

The anticipated introduction of the Work Health and Safety Bill (WHS Bill) will see company directors and board members, amongst others, placed at greater risk of prosecution for workplace accidents. The new laws will repeal the Occupational Health and Safety Act 1984 (WA) and bring WA’s work health and safety laws into line with the other Australian states.

 

A key element of the Bill is the introduction of a positive duty for company officers to “exercise due diligence” to ensure that the company complies with its health and safety duties under the WHS Bill.  It will ultimately be for the Courts to define this duty, and officers can expect some uncertainty as to their precise obligations in the meantime.  Thankfully, the Bill gives some guidance by defining “due diligence” to include

a)    acquiring and keeping up-to-date knowledge of work health and safety matters;

b)    understanding the nature of the company’s operations and the general hazards and risks with those operations;

c)    ensuring that the company uses appropriate resources and processes to eliminate or minimise risks to health and safety;

d)    ensuring that the company has appropriate processes for receiving and considering information regarding incidents, hazards and risks, and is able to swiftly respond to that information; and

e)    ensuring that the company implements processes for complying with all its duties or obligations.

 

Importantly, for an officer to be prosecuted under the WHS Bill there will be no need to link an officer’s failure to any failure or breach by the company. This means officers will now have to be proactive and remain vigilant to ensure constant compliance with the proposed new law.

 

Failure to comply with the new laws will attract a range of penalties, depending on seriousness, the most serious involving conduct which recklessly expose an individual to risk of death or serious injury or illness without a reasonable excuse. If Parliament passes the Bill, the maximum penalty for such offences will be a fine of $600,000 and/or five years imprisonment for an individual and a $3 million fine for a company.

 

These provisions will be read broadly and will capture most persons conducting a business or undertaking, including employers, principal contractors, head contractors, franchisors and the Crown. Even subcontractors who supervise or employees on construction sites will be caught by the new laws.  As for Local Governments, whilst elected members will be immune from liability under the new Act (if Parliament passes it), this immunity will not extend to the City or Town itself (as a statutory body which is an independent legal entity).  Managers employed  by local authorities who carry out their roles without due care for workplace safety may also be exposed, despite the protection afforded to elected members.

 

For those falling under the new provisions, the sweeping nature of the changes to the current legislation calls for prudent preparedness. While the Bill is unlikely to take full effect before mid-2016, the early establishment or review of existing appropriate health and safety processes and procedures with the benefit of legal advice will allow company officers to confidently meet their new obligations.

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

 

 

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