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
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
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
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
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
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
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
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
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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