As employers prepare for the transition into a new financial year, it is probably worth paying some attention to the budget and resources to be allocated to maintaining and improving safety in the workplace.

We set out below a summary of the OSH position in Western Australia in anticipation that this will remain a key concern for employers and WorkSafe alike. For a sober reminder of what is at stake for both employers and emplyees, have a look at http://prosecutions.commerce.wa.gov.au/

On average more than 600,000 employed Australians experience at least one work-related injury or illness every year. Occupational safety and health legislation emphasises the need for pro-active recognition of risk and the implementation of accident prevention measures.

The key regulatory instrument in relation to occupational safety and health for workers and employers in Western Australia is the Occupational Safety and Health Act 1984 ("Act"). The Act provides for the promotion, co-ordination, administration and enforcement of occupational safety and health in Western Australia. The Act is supported by subsidiary regulations and non-statutory codes of practice and guidance notes. An employer should be familiar with their (and others') obligations under the Act and familiar with the supporting instruments.

As a means of achieving the objectives of promoting and improving occupational safety and health standards, the Act places certain duties on all parties involved in work, including employers, employees, self-employed persons, manufacturers, designers, importers and suppliers.

The duties under the Act are expressed in broad terms and include:

  • An employer must, as far as practicable, provide a work environment in which employees are not exposed to hazards;
  • Employees must take reasonable care for their own safety and health, and that of others, at work; and
  • Self-employed persons must, as far as practicable, ensure the work performed does not adversely affect the safety and health of others.

The duty of care also extends to those who control workplaces, design and construct buildings or manufacture and supply plant (defined as machinery, equipment, appliance, implement or tool).

A key aspect of occupational safety and health compliance is the provision for prosecution for an alleged breach of the Act or Regulations. Penalties under the Act are tiered in accordance with the seriousness of the offence, and are tiered according to whether the offence is committed by a person as an employer, an employee, an individual other than an employee, or a body corporate.

The maximum penalty for a breach under the Act is $500,000 for a corporation convicted of the most serious offence for the first time. The maximum for a subsequent offence is $625,000. An individual (other than an employee) convicted of the most serious offence for the first time is liable to a maximum penalty of $250,000 and imprisonment for 2 years. For a subsequent offence, an individual is liable to a maximum penalty of $312,500 and imprisonment for 2 years. An employee is liable to a maximum penalty of $5,000 for a first offence and $6,250 for a subsequent offence.

Under the Act, there is no need for an injury to occur before enforcement action can be taken. A breach of the health and safety standard is enough.

The current regulatory framework is in a state of review. Western Australia is considering adoption of the harmonised 'Work Health and Safety Act' ("WHS Act"), already adopted by six out of the nine Australian jurisdictions. It is expected that if Western Australia enacts the WHS Act, we could see the Act's enactment in the middle to later part of 2013.

One of the key aspects of the proposed harmonised laws is the wider scope for the duty of care in relation to employers. Currently the primary duty of care is placed upon the employer. Under the WHS Act, this duty is expected to fall upon 'persons conducting a business or undertaking', resulting in a widening of the class of persons responsible for a duty of care. This wider 'class' may, in some circumstances, extend to include non-executive directors who previously would not have owed such obligations.

A proactive and measured approach to occupational safety and health is essential, not only for the smooth running of a productive workplace but for preventing criminal and financial exposure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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