With the introduction of the Work Health and Safety Act 2020 (WA) and associated set of WHS regulations in Western Australia, the challenge for officers is to not focus on the penalties for breaches (which in many ways are smaller and less serious than for other corporate law breaches) but to focus on what can proactively be done by officers to understand and influence WHS.
Michael Morgan, managing director of WHS Foundation (formerly the Industrial Foundation for Accident Prevention (IFAP)), said that while the new law has been in operation in WA for just over six months, many organisations and their senior leaders are still working toward understanding the new laws and determining how to best comply.
WorkSafe WA acknowledged this learning curve in its recent Statement of Regulatory Intent (SORI) in that it “recognises that the new legislative framework is a significant change for many workplaces and that some aspects of compliance may take time to implement”.
Although WorkSafe WA has indicated it will take a supportive and educational approach to compliance for the first 12 months for technical breaches, usual enforcement will apply for breaches involving serious risks to health and safety, said Morgan, who was speaking ahead of the AIHS 2022 WA Safety Symposium, which will be held on 25 November 2022 at Curtin University, Bentley.
Morgan said penalties for breaches under the new WHS laws are serious and significant for both PCBUs and officers. For the most serious offence for a breach of the WHS Act primary duty, a PCBU faces a maximum $3.5 million penalty, while an officer failing to discharge due diligence faces a maximum $680,000 fine and five years’ imprisonment.
“Much has been made of these penalties, and the even higher penalties of the industrial manslaughter offence in the WHS Act by lawyers and advisors alike, which has had a scaremongering effect on business leaders without offering much practical guidance for proactive WHS compliance,” said Morgan.
“Officers who can objectively demonstrate that they continue to genuinely turn their minds to the nature of the work and the risks, question the way it is managed, positively influence health and safety outcomes, and keep monitoring, will be able to demonstrate compliance.”
One of the key changes to the previous WA health and safety laws is the new ‘duty of officers’ in section 27 of the WHS Act. This duty is a significant change to the previous ‘derivative duty’ an officer owed in WA, where an officer could only be found guilty if the organisation was first successfully prosecuted for breaching its duties.
“The new officer duty requires an officer to exercise due diligence by taking six prescribed reasonable steps to ensure that the PCBU meets its primary duty. It is an upfront, positive duty that an officer needs to exercise proactively on an ongoing daily basis,” said Morgan, who explained that failing to do so gives rise to a breach of the officer's duty regardless of whether an incident has occurred, or whether the PCBU is in breach of their duty.
“Organisations with access to knowledgeable WHS legal advisors, WHS consultants, or proactive internal WHS professionals have developed an understanding of who an ‘officer’ in their organisation is, or is likely to be, under the WHS laws. They also have developed an understanding of what the six reasonable steps are that comprise due diligence,” said Morgan.
“However, those organisations without access to this professional advice and assistance are still struggling to understand these concepts, and even those that do understand, are still contemplating, developing or implementing practical officer due diligence processes to enable personal officer compliance.”
Morgan also recommended officers continue to enquire and be curious about work, the risks of work, and the ways of achieving safe and healthy work when things are going right (and not just when things go wrong).
“The larger the organisation, the more strategic, systemic and structured the due diligence approach needs to be to influence health and safety for all work of the organisation,” he said.
“For smaller organisations, whose officers are more at risk of prosecution as their actions and inactions can be more readily linked to serious incident occurrences and risk exposures, the more personally active, attentive and diligent to the work occurring the officer needs to be. This is to ensure that the work, often overseen directly by the officer of a small business, is planned for, and carried out in a safe and healthy manner.”
There are a number of important implications for OHS professionals in the above, whether they are working externally as an advisor or consultant, or internally as a WHS manager or coordinator, according to Morgan.
Regardless of their seniority, he said they should be WHS leaders: “as leadership is less about the position and more about influence, the OHS professional plays an important role in communicating and facilitating the achievement of WHS due diligence,” he said.
This can be done by effectively communicating with officers in the organisation about the officer's duty and due diligence steps, assisting in developing a due diligence process, continuing to provide intelligence and information to the officers to enable reviews and WHS decision-making, and carrying through with WHS improvements and changes.
Additionally, Morgan said OHS professionals could be a coach, mentor and technical advisor to the organisations’ officers to assist in the ongoing discharge of their due diligence duty.
“In some organisations, where the OHS professional meets the definition of an ‘officer’ under the WHS laws, which in part includes those that make or participate in making decisions that affect the whole or substantial part of the PCBU, the OHS professional will also need to personally meet the due diligence duty,” he said.
Morgan will be speaking on “regulatory changes – early insights of business leaders understanding of WHS due diligence and increased shared duties” at the AIHS 2022 WA Safety Symposium, which will be held on 25 November 2022 at Curtin University, Bentley. For more information call (03) 8336 1995, email email@example.com or visit the event website.