Western Australia’s workplace health and safety laws underwent significant reform on 31 March 2022, when the Work Health and Safety Act 2020 (WA) replaced the Occupational Safety and Health Act 1984. This reform aligns Western Australia with national model WHS laws adopted by other Australian jurisdictions, creating consistency in workplace safety standards across the country.
The WHS Act 2020 introduces several fundamental changes to WA’s workplace safety framework. The primary change is the replacement of the traditional employer-employee duty of care with the broader concept of “Person Conducting a Business or Undertaking” (PCBU). A PCBU can be a sole trader, partnership, company, unincorporated association, or government department. PCBUs now hold the primary duty of care to ensure the health and safety of workers and any other persons who may be affected by their work activities. This expanded definition covers a wider range of work relationships beyond traditional employment, including contractors, subcontractors, labour hire workers, and volunteers.
Key reforms under the WHS Act 2020 include the introduction of industrial manslaughter as a criminal offence (section 30A) with significant penalties for workplace deaths caused by gross negligence, expanded officer duties requiring company directors and managers to exercise due diligence in meeting health and safety obligations (including psychological health and safety), prohibition on insurance coverage for WHS penalties, introduction of enforceable undertakings as an alternative to prosecution, and increased maximum penalties for WHS breaches. The Act also incorporates transitional arrangements to provide businesses time to adapt to new or significantly changed duties, recognising that compliance with reformed standards requires procedural and cultural adjustments within organisations.
What has changed?
Let’s look more closely at the new WHS laws.
Goodbye OSH – hello WHS
The Work Health and Safety Act 2020 (‘WHS Act’) replaces the existing ‘OSH Act’ (introduced in 1984). The reform brings WA workplaces under a single WHS Act.
New definitions – you could be a ‘PCBU’
The WHS Act introduces the new definition of the ‘person conducting a business or undertaking’ – or PCBU. A PCBU can be:
- a sole trader (self-employed)
- individual partners within a partnership
- a company
- an unincorporated association
- a government department of public authority.
Under the new WHS Act, the PCBU has the primary duty of care. But what does that mean? Previously, the OSH Act’s duty of care was based mainly on the employer-employee relationship. Under the new WHS Act, PCBUs primary duty of care is to ensure the health and safety of their workers and others who could be affected by their work. Also, officers and managers of PCBUs will now have a non-delegable duty to ensure they meet safety obligations, which now include the psychological health and safety of workers.
The term ‘workers’ now encompasses different contracts and employment across industries.
Changes to Penalties
The WHS Act now:
- includes a new offence: industrial manslaughter (s30A)
- voids insurance coverage for WHS penalties and imposes penalties for providing or purchasing this insurance
- introduces what is known as ‘enforceable undertakings.’
WHS laws are now similar across Australia
The new laws work to implement consistency Australia-wide.
You have time to change
The WHS Act has implemented transitional arrangements which apply where duties are new or have changed significantly from what they were – so support business owners have time to adapt to the change.
The Team at Soul Legal
If you need some help understanding your obligations under the new laws, our experienced worker’s compensation lawyers in Perth, Baldivis, and Osborne Park, WA, can help.
If you are considering making a worker’s compensation claim or have made one but are seeking further legal advice, We offer a free no-obligation claim assessment and a no-win-no-fee lawyer service if we consider your claim worth pursuing. Our dedicated and empathetic lawyers will help you through every step of the claims process.
As leading Perth worker’s compensation lawyers, we’ll listen and help you through this journey.
Kevin Wong is the Director of Soul Legal and a seasoned Perth-based personal injury lawyer who has been passionately representing injured clients across Western Australia since 1991, handling everything from minor claims to complex catastrophic injury cases.
