In March 2022, Western Australia adopted a revised work health and safety legislation known as the Work Health and Safety Act 2020 (WA WHS Act 2020). This legislation is based on the current national model WHS Act used in all other Australian states and territories (excluding Victoria).
The WA WHS Act 2020 is the first major overhaul of Western Australia’s WHS Laws in over 30 years. This Act replaces prior WHS legislation in Western Australia (WHS elements of the Mines Safety and Inspection Act 1994, Occupational Safety and Health Act 1984, WHS elements of the Petroleum and Geothermal Energy Safety Levies Act 2011).
The WA WHS Act 2020 requires Persons Conducting a Business or an Undertaking (PCBUs) to consider their approach to contractor management practices to ensure all PCBUs whose operations interact have considered the hazards arising from the interaction, are using appropriate control measures, and are monitoring the full contractor management lifecycle.
What changed within the WA WHS Act 2020?
PCBU Requirements
By law in Australia, a PCBU has a primary duty of care to its workers, including contractors. Officers of the PCBU (i.e. GM, CEO of the PCBU) in Australia have a duty to exercise due diligence to ensure that the PCBU complies with its health and safety duties. Officers must take reasonable steps to support the PCBU’s health and safety culture, accountability, allocation of resources, implementation of appropriate systems and development of appropriate policies.
Reporting Requirements
Under the superseded OHS/WHS legislation, reporting a notifiable incident is a requirement; however, there will be additional reporting provisions included under the WA WHS Act 2020 (Part 3, s.38, (1)). A notifiable incident must be reported to the regulator by the fastest means possible, and a record of the incident must be kept by the PCBU for five years.
Industrial Manslaughter
Industrial Manslaughter (WA WHS Act 2020 Part 2, Division 5, s.30A.) is the most serious offence under the WA WHS Act 2020, where an individual who is a PCBU could face a maximum penalty of $5 million and 20 years imprisonment if there is an industrial manslaughter conviction.
Modifications to other WHS legislation in Western Australia
Western Australia’s Work Health Safety (General) Regulations 2022 (Draft) are being developed and the requirements within are largely based on the Australian model WHS Regulations; however, modifications have been made based on Western Australia’s landscape. An overview of the proposed resolutions can be found here: Overview of Western Australia’s Work Health and Safety (General) Regulations.
Western Australian Work Health Safety (Mining) Regulations 2022 (Draft) are also in draft format and will apply to current and future mines and mining operators. They will have a requirement to manage hazards and the associated risks through developing a Mine Safety Management System (MSMS).
How the Updates Affect Contractor Management
Pursuant to the WA WHS Act 2020, PCBUs have a primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking, as well as others who may be affected by the carrying out of work such as contractors, subcontractors, and visitors.
As a PCBU, it is imperative that you can demonstrate that you have a well-developed and properly implemented health and safety program and that practicable measures are being taken to ensure a safe workplace. It is equally important to ensure that there is a system in place for the continual monitoring throughout the contractor management lifecycle. This allows an organisation to actively assess and measure contractor health and safety systems.
Unlike a point-in-time assessment, ongoing monitoring helps PCBUs and the officers within a PCBU gauge contractor performance against internal systems, manage expectations, and track performance indicators as they change and evolve.
Open communication and ongoing monitoring can support safety improvement through the contractor lifecycle for both the contractor and client with the potential for positive safety outcomes, strong working relationships and reduced site incidents.
ISN assists Hiring Clients, PCBUs and officers exercise due diligence by supporting the complete contractor management lifecycle whilst also assisting WA Operators with the transition to the WA WHS Act 2020. The ISN team provides guidance on best practices and industry knowledge with more than 1,800 years of combined experience in HSEQ, risk management, data science and ESG.
To learn more about ISN’s resources to support your contractor management please contact the team at ISNAustralia@isn.com.