This article about new Work Health and Safety legislation which is being introduced to Western Australia has been provided by QIA Group.
New Work Health and Safety legislation is being introduced to Western Australia. The Regulations are set to be finalised later this year, after which the legislation will be proclaimed.
The new legislation will bring WA’s Occupational Health and Safety legislation into alignment with most other States and territories under the harmonised National Model laws.
The legislation will generally consist of a Work Health and Safety Act, Regulation and ‘compliance codes’ that provide greater detail and guidance material to assist people in achieving compliance.
A regulatory body will be established, and this body will determine if the legislation has been breached and bring prosecutions.
Need to Know – It will be this Body that will make determinations as to who the laws apply to and how. When established they will be the first point of contact for interpretation of provisions of the Act and Regulations – similar to Landgate and SAT.
This article will focus upon Strata Companies and Strata Management Companies and how the Key provisions below relate to these entities.
The legislation as it currently stands will introduce:
- the broad concept of a “person conducting a business or undertaking” (PCBU) that will replace the concept of an “employer”;
- that the primary duty of care for a PCBU will be to ensure, so far as is reasonably practicable, the health and safety of workers and others who might be affected by their undertakings;
- the broad concept of a “worker” which includes contractors, subcontractors, and the employees of contractors and subcontractors;
- contractor engagement requirements for certain types of work
- a specific duty of care for persons who provide services relating to work health and safety (eg. occupational hygienists, WHS consultants);
- a prohibition on individuals and corporations from entering into insurance policies that seek to cover WHS fines imposed under the WHS Act.
Need to Know – the vast bulk of compliance requirements are related to whether you are a PCBU or not and then what kind of work you conduct. Persons who are not PCBU’s under the Act will still have some obligations, albeit less onerous ones.
Workplace (Sections 4, 8)
A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
Need to Know – the common property of a strata titled property will be a workplace from time to time when workers work upon it.
Persons Conducting a Business or Undertaking (Sections 4, 5)
A very substantial proportion of the obligations defined under the legislation pertain to Persons (this includes entities) Conducting a Business or Undertaking. The term PCBU is very broad and includes and/or considers sole traders, each partner in a partnership, joint venture, company, unincorporated association, volunteer body, not for profit organisation, government department or a public authority.
Need to know – Under Section 5 (8) and (9) “A strata company that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises… unless “the strata company engages any worker as an employee.”
Strata Management businesses meet the definition of a PCBU’ s and so will have a primary duty of care to their Workers. This is made even more significant because the definition of worker has been expanded to include not just employees but also contractors that carry out work in any capacity for a PCBU.
Primary Duty of Care (Section 19)
A PCBU must ensure, so far as is reasonably practicable, the health and safety of:
- workers engaged, or caused to be engaged by the person; and
- workers whose activities in carrying out the work are influenced or directed by the person,
- workers while they are at work in the business or undertaking.
Need to know – This duty extends to contractors that are engaged by a PCBU as they are considered a worker under the proposed legislation. It will be very important for Managers to make sure it is clear that:
The definition of a Worker includes:
Any person who carries out work in any capacity for a PCBU, including as an employee, a contractor or subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company assigned to work in the person’s business or undertaking, an outworker, an apprentice/trainee, a student gaining work experience, a volunteer.
Need to know – A worker was previously narrowly defined as an employee, the new provisions mean that PCBU’s can owe a duty of care to contractors and subcontractors they engage. Therefore it is very important for Owners and Managers to engage appropriately qualified, licensed and insured entities to carry out any work.
WHS Service Provider (Section 26A)
Businesses that provide Safety recommendations or other advice, testing or analysis, reports, plans, manuals, training or educational courses must ensure they are fit for purpose and will not put at risk the health and safety of persons who are at the workplace.
Need to know – Safety service providers in WA are being held to a high standard and may be held to account for poor advice. An example provided is a recommendation that is made on how to eliminate risks to health and safety at a workplace is inadequate for that purpose so that when the recommendation is implemented at the workplace the risks are not eliminated.
Insurance policies (Section 272 & 272A)
In the past it has been possible for companies and individuals to obtain insurance policies to cover the payment of fines for occupational Health and Safety breaches.
Need to know – the proposed legislation prohibits persons from attempting to indemnify themselves for their liability to pay a fine under the WHS legislation. The fines have also substantially increased, which means PCBU’s will need to pay significantly more than the costs of compliance with their obligations. Furthermore, the new legislation specifically prevents a person from entering into an agreement or contract that transfers their obligations to another.
Requirements for prescribed qualifications or experience (Section 44)
There are requirements for persons who carry out certain work at a workplace to be qualified or have the relevant experience to carry out that work.
Need to know – it is more important than ever to ensure that when work is done on the Common Property on behalf of a Strata Company that the contractor engaged is suitably licensed, insured and qualified to carry out the works for which they are being engaged.
You can access the Work Health and Safety Act 2020 here.
This post appears in the March 2021 edition of The WA Strata Magazine.
Have a question about the new WA Work Health and Safety legislation and how it relates to strata or something to add to the article? Leave a comment below.
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