Directors' and Officers' obligations to Work Health and Safety compliance

In brief - The new Work Health and Safety legislation commenced in Western Australia on 31 March 2022. The Work Health & Safety (WHS) Act 2020 of Western Australia and the Work Health & Safety Regulations of 2022 replaced the existing Occupational Safety and Health (OSH) Act of 1984 and Occupational Safety and Health Regulations.

The new WHS Act also amended the Mines Safety & Inspection Act and Regulations and implemented the Work Health and Safety (Mines) Regulations of 2022 and the Work Health & Safety (Petroleum & Geothermal Energy Operations) Regulations of 2022.

The new WHS Act contains a provision requiring Directors and Officers of a business or undertaking to exercise due diligence to ensure that the 'person conducting the business or undertaking' (PCBU) meets the safety obligations as set out in the WHS Act and relevant regulations.

What are Directors' and Officers' obligations?

The Directors' and Officers' obligations are now consistent with all states and territories of Australia, except for Victoria. The Occupational Health and Safety Act of Victoria remains in place, where Directors and Officers are required to take reasonable steps to ensure their businesses are meeting safety obligations.

Under the WHS Acts, Directors and Officers are required to take reasonable steps to ensure that the business is meeting its safety obligations by undertaking the following six steps of due diligence:

1. To acquire and keep up‑to‑date knowledge of work health and safety matters.

2. To gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations.

3. To ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking.

4. To ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information.

5. To ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act.

6. To verify the provision and use of the resources and processes referred to in paragraphs 3 to 5.

It is now imperative for PCBUs that have national operations or operate in various states and territories of Australia to have undertaken the following steps:

1. Determined who is an Officer within the PCBU.

2. Implemented a due diligence system to meet the requirements of Section 27(5) of the WHS Act.

3. Received a legal briefing on the current WHS legislation, how the laws are being interpreted by the courts and the expectations of safety regulators when visiting your workplace or investigating an incident that has arisen from the conduct of the business or undertaking.

Company fined for breach of Occupational Safety and Health Act

In a recent decision of the Supreme Court of Western Australia in the matter of Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443, the Supreme Court upheld an appeal on three grounds, against a conviction for gross negligence under the OSH Act, against the company. The incident leading to the prosecution involved a labour hire worker, performing work as a "Picker" on a conveyor belt, at the company's waste recycling facility at Bayswater in January 2016. When he reached into the unguarded machine to remove a blockage, his arm was caught and torn off at the shoulder.

The Supreme Court determined that the state of knowledge of the company did not support a conviction for gross negligence. However, the Court found that the company was guilty of a general duty charge and determined to relist the matter for sentencing.

At the time of the incident, the employer was also being prosecuted over an incident in September 2013 following the death of another labour hire worker.

The company was sentenced in April this year and convicted and fined $230,000, plus costs, for the breach of section 19A(2) of the OSH Act.

A Director of the company has also pleaded guilty to an amended charge under the general duty obligations under the OSH Act. The Director will be sentenced in June 2022.

It is evident that WorkSafe WA will not hesitate to pursue charges of gross negligence against companies and their Directors and Officers for alleged breaches of the OHS Act and the now-implemented WHS laws.

Directors and Officers in Western Australia are now exposed to a penalty of $350,000 where a worker is exposed to a risk of death or injury or harm to their health. For the offence of a worker being exposed to a risk of death or serious harm, then Directors and Officers face five years' imprisonment and a fine of $680,000. The offence of Industrial Manslaughter carries a maximum penalty of 20 years' imprisonment and a fine of $5,000,000.

We recommend a review be undertaken of your Directors' and Officers' Due Diligence System to ensure the steps are sufficient to meet the WHS obligations for the ongoing safety of your workers and business operations.