The West Australian Parliament recently passed a Work Health and Safety Bill which included controversial industrial manslaughter provisions that will change the way we look at Work Health and Safely.
Western Australia is the fifth state to have a specific industrial manslaughter charge. Contrary to what many people think, it concerns everyone, even those who are in a relatively safe workplace where no unfortunate events have occurred in the past.
Industrial manslaughter states that any Person Conducting a Business or Undertaking (PCBU) is accountable if there is prior knowledge of the risk resulting in death. If despite this knowledge, the company chooses to disregard the possibility of danger, industrial manslaughter is then charged. It is not just the individual that is charged but the company is also charged if the PCBU failed to uphold the safety and wellness of the victim.
If found guilty, the WA industrial manslaughter charges and penalties have two tiers:
- Tier 1 – Criminal Offence:
The maximum possible penalty is imprisonment for 20 years. The offender will also have to pay a fine of up to $5 million. The body corporate will also be charged where the maximum penalty is a fine of up to $10 million.
- Tier 2 – Simple Offence:
Individuals could be imprisoned for up to 10 years and also pay a fine of up to $2.5 million. The body corporate would be fined up to $5 million.
The company’s officers may also be charged depending on the circumstances. One example is if the conduct of the PCBU was due to the officers’ neglect. Officers’ will also be charged and penalised if they have been found to conspire or provide consent for the PCBU’s decision or action that caused the death of another individual.
Considerations for Employers
Because of these harsh penalties, it is essential that you:
- Begin to understand the WA laws concerning the matter
- Stay updated with the probable changes in the law
- Provide support for managers and senior officers, so they all comprehend their health and safety responsibilities
- Start reviewing and revising (if needed) work health and safety policies that currently exist in the business
- Aim to minimise the risk of injuries and deaths in the workplace
- Ensure to have regular training sessions for the workforce, providing all necessary information to ensure everyone’s safety
- Come up with an induction program that educates new workers about their safety or health risks in line with their obligations
- Record all matters that may involve the safety of workers, including complaints and injuries
- Review the aforementioned records to find patterns and risk areas
- Foster a culture where everyone in the business, including the workers, takes all safety matters seriously, even if it may seem trivial, such as someone tripping but not falling due to a bunch of wires
In May this year, a small business owner in Esperance became the first person in Western Australia to be jailed for gross negligence, after the death of a young worker last year. He was jailed for eight months and fined $2,250 personally while his company was fined $605,000. The Jail sentence imposed is the longest sentence ever imposed for a workplace health and safety offence in Australia. Notwithstanding this fact, if this had occurred whilst the WHS Act had been in effect the penalties would have been far more severe.
What Aurenda Can Do for You
Safety training and injury management are both crucial to organisations. Businesses should always have a proper understanding of how they can reduce workplace accidents that could lead to injuries and deaths. The WHS Act also prohibits insurance against fines and penalties i.e. the body corporate and individual are liable to pay the fines out of their pocket.
These laws may seem punitive, especially from a PCBU’s point of view. However, they merely ensure that you fully understand the risks to your workers’ safety and health in your organisation. You can take positive steps that will help manage those hazards and create a better and more positive safety culture in the workplace.
That’s what Aurenda is for. We are here to help you and your business prepare for the new responsibilities relating to the introduction of WHS in WA. Our specialists will conduct training sessions and other methods that will allow early intervention with how your organisation processes injuries or accidents. Our strategy will help you identify critical areas that require changes to make sure your business stays compliant with the new laws.
Please contact us to get further guidance on WA’s WHS Act 2020.