WHS Legislation in WA – Much Ado About Nothing??

The new Work Health and Safety legislation (WHS Act 2020) has now been passed by WA Parliament. However, it most likely won’t come into effect until 2021 is well progressed, as it’s going to be held over until the new WHS Regulations are also ready. (More detail – Statement from WorkSafe WA re progress of WHS Legislation – 17th November 2020)

Regardless, with the new legislation imminent, it’s worthwhile considering what the practical implications might be for your Organisation. Does your Organisation have substantial change to undertake to meet new requirements? or is it all just business as usual?

Does the Duty of Care to ensure a Safe Workplace Change?

Firstly, the Primary Duty of Care for organisations to ensure the health and safety of employees and other people (e.g. clients, customers, contractors, students, volunteers etc.) remains relatively unchanged with the new legislation. There are some changes that are significant for some organisations, such as volunteer workers now being included within the same “term” as paid workers. However, these Duty of Care requirements, though now more prescriptive in the WHS Act, were essentially present in the OSH Act 1984.

A clearly significantly change however, is the new requirement for individuals who hold top management roles, to be able to show that they oversee and understand how the Organisation manages the health and safety of employees and other people. This is commonly being referred to as the Positive Due Diligence Obligation for Officers (S.27 in the WHS Act).  If top management are to meet this requirement, then health and safety management needs to be done:

  1. to a level that would be considered “reasonable” when measured against recognised standards; and
  2. in an “auditable manner”.

So, if your Organisation is currently meeting points 1 and 2 above….it’s going to largely be “business as usual” in meeting the WHS Act. See Quick Guide Action Plan to Meet WHS Requirements.

On the other hand, if you’re Orgnisation is not currently meeting points 1 and 2 above….your Organisation has a choice.

  • CHOICE A – Continue to manage health and safety in a way that’s unlikely to be meeting current legislated health and safety  requirements, and won’t meet the WHS Act. Important to note though, that when the new legislative landscape comes in, top management will be more vulnerable to prosecution.
  • CHOICE B – Start adjusting your health and safety management.  See Quick Guide Action Plan to Meet WHS Requirements