The Work Health and Safety (WHS) and Occupational Health and Safety (OHS) laws have recently been changed and affect both employees and employers across Western Australia and Victoria.
The COVID-19 Pandemic has acted as a crucible of change to the way we work, and many organisations now find themselves adjusting to the hybrid work environment.
Many organisations are creating new hybrid approaches to their workforce, which not only align with the needs of individuals, but also better meet organisational needs.
However, despite a number of advantages to the hybrid working model, having employees working from different spaces and Australian states also present challenges, especially in regard to how organisations can meet their WHS/OHS responsibilities with the changing legislative landscape.
In response to the changing WHS/OHS legislation in both Victoria and WA, we have prepared a snapshot of the key changes in the legislation in both of those states.
Victoria’s OHS Changes
Changes to Occupational Health and Safety (OHS) legislation will affect all Victorian employers from 22 March 2022.
What are the critical changes to OHS in 2022, and what do they mean?
1. Labour hire
The changes introduce greater health and safety obligations for employers who engage labour hire companies to provide a safe work environment for those workers. This means that labour hire workers will be treated the same way as employees in relation to OHS matters when they are at the host employer’s workplace, giving them additional rights and protection.
Host employers are also obligated to consult, cooperate and coordinate with labour hire companies concerning work, health and safety and share duties under the OHS Act.
Employers need to look closely at the current processes surrounding labour hire engagement. Employers may consider training their labour hire workers with their OHS training modules.
2. Insurance
From 22 September 2021, section 148A of the OH&S Act operates to immediately void any term of a contract, or another arrangement, that purports to insure or indemnify a person and/or entity in respect of any liability to pay a pecuniary penalty under the OH&S Act. This means, that any term of a policy of insurance that provides cover to a person and/or entity in respect of a fine imposed under the OH&S Act is void from 22 September 2021 with immediate effect.
From 22 September 2022, it will be an indictable criminal offence to enter into, benefit from, or be a party to an insurance contract or arrangement that provides an indemnity for fines and/or penalties imposed pursuant to the OH&S Act. The amendments operate only to prohibit insurance cover for fines and/or penalties imposed under the OH&S Act. Section 148A does not apply to terms of insurance contracts that provide cover for costs, such as legal costs, incurred in defence of WorkSafe investigations or prosecutions in respect of an alleged breach of the OH&S Act.
3. Health and Safety representatives
Authorised representatives of registered employee associations (ARREOs) and health and safety representatives (HSRs) will have clear rights of entry to workplaces and additional powers to take photos, measurements or recordings when acting under the legislation.
Ensuring your internal policies and procedures are updated and that key management is aware of the changes will be crucial for employers.
Western Australia’s WHS changes
The WHS Act 2020 (WA) became legally enforceable on 31 March 2022, organisations need to understand how this may impact their business and what they can do to be ready.
What is the WA WHS Act 2020?
The new laws are intended to improve the protection of workers by factoring in modern employment agreements, higher penalties for companies and individuals, and introducing the term ‘person conducting a business or undertaking’ (PCBU).
For managers outside of WA, this is familiar territory. This Act is harmonising WA with Australia’s other states and territories (excluding Victoria) and will replace:
- the current Occupational Safety and Health Act 1984
- WHS elements of the Mines Safety and Inspection Act 1994
- WHS elements of the Petroleum and Geothermal Energy Safety Levies Act 2011
Who will be impacted?
Whilst all employers and employees in WA will be affected by the new Act covering all aspects of safety in the workplace, the changes in penalties and individual prosecutions will be felt most by the small to medium organisations.
What are the major changes to WA’s WHS Act?
Several changes were made to the national model WHS Bill for adoption in Western Australia. Key changes include:
- industrial manslaughter;
- union right of entry was retained in the Industrial Relations Act 1979 and not included in the WHS Act;
- prohibition on insurance for monetary penalties;
- HSRs have the right to choose their course of training; and
- a specific duty is included for providers of work health and safety services to ensure those services do not pose a risk to persons at the workplace.
1. Increased penalties
WA organisations will see an increase in penalties across the board with significant attention drawn to the gross negligence/industrial manslaughter penalty. Both employers and individuals will feel the impact related to the changes in penalties, as outlined below.
2. PCBUs
PCBU may be a common term in many states, but this is new for WA. A PCBU is a Person Conducting a Business or Undertaking. A PCBU can be any of the following:
- Employer
- Corporation
- Association
- Partnership
- Sole trader
- Volunteer organisation that employs people to carry out work
- Local government council
- Independent school
- Government department and authorities
PCBUs must ensure the health and safety of their employees and additional persons in the workplace are upheld. This extends to visitors, contractors and volunteers.
Duties of care in the OSH Act were predominantly based on the employer-employee relationship. There are now a greater variety of workplace relationships in the modern workplace that do not readily fall into traditional concepts of employment, such as labour hire and the ‘gig’ economy. The WHS Act introduces the ‘person conducting a business or undertaking’ (PCBU) as the person with the primary duty of care. The concept of PCBU is expected to cover a broader range of workplace relationships.
3. Industrial manslaughter
In addition to the increase in penalties relating to industrial manslaughter, company officers need to be aware that they as individuals can be prosecuted even if the company is not convicted. The WHS Act includes a penalty provision for industrial manslaughter.
4. WHS due diligence
This new legislation has made it administratively easier to prosecute company officers. Under the WHS Act the company doesn’t have to be convicted of an offence to be prosecuted. There doesn’t even have to be an accident or an incident. If you, as a company officer, have shown you have not met your obligations of due diligence, you can be prosecuted.
5. Your insurance
The new WHS Act only permits your insurance to pay for your legal fees, but when it comes to paying the penalty, company officers and PCBUs cannot take out insurance to cover fines for breaches.
With the legislative changes in WA and Victoria, What can you do as an employer to ensure you are ready?
The changes provide you with an opportunity to review your WHS/OHS practices, training, policies and procedures to ensure they are meeting the new legislative standards.
Education and training
Ensure that your key business stakeholders are aware of the changes and implications for your business and them as individuals. This includes your leadership team and those at the front line of the workplace including labour hire workers.
WHS/OHS audit and gap analysis
Complete a comprehensive audit of your organisation’s WHS/OHS approach in line with the new legislation. Having policies and procedures in place is only one part; you must ensure that this is delivered at a ground level with clear evidence. Identifying areas of opportunity early can help you mitigate risks and avoid negative financial and workforce impacts.
Develop a road map
Once your organisation understands where the gaps are, you can put together a targeted action plan to ensure your business is meeting the new standards and looking after your people. Be sure to incorporate regular review and feedback loops, so you’re evolving your WHS/OHS management in line with the changing nature of the workplace and legislation.
How can Safetrac help?
Safetrac’s WHS/OHS training modules can help you understand the new legislation. We have specific modules for OHS Employees Victoria and WHS for Employees and Managers.
We also can produce bespoke training modules for areas you have identified as high risk in your gap analysis, for example driver safety training, labour hire worker training, and how to handle customer violence at retail outlets.
Safetrac’s intuitive online Compliance Platform allows you to create and perform safety audit questions and attestations.
Contact us today to request a free demonstration on any of our courses or our platform, and discover how we can assist your compliance goals and activities.
