Senior Associate, Gemma Wheeler - Carver, and Lawyer, Kai Yuin Yeo, in our Employment and Dispute Resolution teams have outlined the new work health and safety laws that will be coming into effect on 31 March 2022.
HHG Legal Group have previously written about the new work health and safety laws and the substantial increase in liability and obligations on both businesses and individuals involved in health and safety. The new laws will finally come into effect on 31 March 2022 following the publication of the work health and safety regulations. For more information about the new obligations, see our previous article here.
The work health and safety regulations comprise of various regulations, including:
- the Work Health and Safety (General) Regulations 2022 (General Regulations);
- the Work Health and Safety (Mines) Regulations 2022;
- the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations 2022.
Now that the work health and safety regulations are finalised, persons conducting a business or undertaking (PCBUs) will have clarification on how the new laws will work and what is different from the previous regime. This article focuses on the General Regulations which applies to most workplaces.
In our previous article, we discussed how the Act (like the previous legislation) contains overarching obligations in relation to work health and safety in WAspecifically to eliminate or minimise risks to the health and safety of workers. However, the Act now clarifies who has these responsibilities now (PCBUs) and who else has work health and safety obligations. The regulations also provide more specific guidance on what is required to comply with those duties and imposes additional specific duties on PCBUs.
Whilst most duties under the Act are couched in general terms, the General Regulations prescribe how particular health and safety duties in the Act are to be complied with. Where a regulation must be complied with to comply with a particular provision in the Act, this will be stated in the note for the regulation.
The General Regulations also set out specific requirements for different types of work. Therefore, it is important for PCBUs to carefully read the regulations and determine which of those apply to the particular workplace. It is also critical to understand the risks for different types of work that the workers may do and implement relevant policies and procedures. For example, different procedures must be implemented for construction workers as opposed to those implemented for office workers as the nature of the work and associated risks are different.
Nonetheless, there are some new requirements such as audiometric testing for workers who require personal protective equipment to protect themselves from noise above the exposure standard. Therefore, PCBUs should not simply assume that if they comply with the previous requirements under the Occupational Health and Safety Act 1984 (WA) and its regulations that they will be compliant with the new work health and safety laws.
Resolution of health and safety issues
PCBUs should already have a procedure in place for resolving health and safety issues under the previous health and safety laws. However, the General Regulations have updated the default procedure for resolving such issues (where one has not been agreed between the employer and workers).
Transitional provisions
Whilst most of the Act and the regulations will come into effect on 31 March 2022, previous work health and safety laws may still apply to matters occurring prior to 31 March 2022 to allow for a smooth transition into the new laws.
For example, certain high risk work licences that are in force under the previous laws immediately before the commencement date are taken to be in force under the new laws. Also, where design, manufacturing, commissioning, importation and supply work have already commenced, the new laws do not apply unless the work is not completed within a specified period.
What should PCBUs do now?
PCBUs, their officers and any workers such as health and safety representatives or those advising businesses in relation to their health and safety obligations should familiarise themselves with the duties under the Act and assess which regulations apply to their particular workplace. Remember, the Act now specifically requires officers of PCBUs to exercise due diligence to ensure that the PCBU complies with its work health and safety obligations.
Policies and procedures should be implemented as soon as possible to ensure compliance with the new work health and safety laws, especially to ensure accurate record keeping and training of workers. Importantly, PCBUs must take steps to ensure compliance with those policies and procedures and not just engage in a "box checking" exercise.Whilst it has always been important to have policies and procedures on work health and safety matters in place, this has become even more important as breaches of work health and safety duties can attract increased penalties including jail time for individuals.. Further, PCBUs will not be able to insure against many of these penalties and in fact it is an offence to attempt to do so.
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.
