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New WHS Act to provide greater protections for WA Workers

June 20, 2022

Years of campaigning by the AWU has been rewarded with a comprehensive update of Western Australia’s health and safety laws that will make the WA resource sector safer.

Under WA’s new Work Health and Safety Act industrial manslaughter will now be recognised in court, with a maximum penalty of 20 years imprisonment, a $5 million fine for an individual, and a $10 million fine for a corporate body.

The new laws also recognise modern work relationships such as subcontractors and gig economy workers, and introduce the nationally recongised  term “person conducting a business undertaking”.

This means anyone who engages a WA worker now has a duty to protect that person’s health and safety.

PCBU officers and managers also have a non-delegable duty to ensure safety obligations are met, which now include the psychological health and safety of workers

And insurance will no longer cover WHS penalties, so businesses and management will be held accountable for their actions and responsible for financial penalties.

Changes under the Act include:

Mines Safety and Inspection Act Work Health and Safety (Mines) Regulations
Only workers could negotiate to establish work groups and HSRs, and the employer had to start negotiation within 21 days. Workers can now appoint a union official to negotiate work groups and HSRs on their behalf and can ask a mines inspector for help if the employer fails to start negotiations within 14 days.
The State Mine Engineer dealt with issues around the negotiation of work groups and HSRs or referred them to a tribunal, with no time frames or references to the right to vary work groups. Workers’ representatives can now seek help from a mines inspector when agreement is not achieved, and the inspector can decide the matter.
A union could be appointed to run the election of HSRs, but only by secret ballot. Work group members can now decide how they want the HSR election run.
The two-year term of a HSR began 10 days after the election notice was provided to the State Mining Engineer. HSRs now have a three-year term starting from election day.
A majority of workers could not remove the HSR. A majority of workers can, in writing, remove an HSR at any time.
The powers and obligations of the employer to HSRs are similar under old and new Acts. HSRs can now seek help from any person, including a union official, to perform their powers, and issue a direction to cease work where they believe there is an immediate or imminent threat to workers’ health and safety.
Employers had to consult with the HSR or union about a request for HSR training, but could use the need to minimise adverse effects on the business or mine to withhold permission for up to 12 months. The HSR can choose the provider of their approved HSR course and he or she must be trained as soon as possible, or within three months of the request.

The new Act has been welcomed by the AWU. AWU WA Branch Secretary Brad Gandy said it was great to see the McGowan Government act proactively and modernise WHS laws. And he welcomed the new focus on workers’ psychosocial health.

“This is extremely important,” Mr Gandy said. “Many of our members are in high-stress industries such as mining, manufacturing, construction along with oil and gas production.

“Their employers are accountable for the psychological health and safety of their workforce.”

The McGowan Government released drafts of the new WHS Act last year and they came into force in March.

It’s the first update to the state’s WHS laws in 38 years and replaces a number of old regulations including the old Mines Safety and Inspection Act.

The new Act is also more prescriptive, offering better time frames and more rights for workers to seek help from their unions.

“Our priority is ensuring our workers make it home safe to their families at the end of their shift or swing,” Mr Gandy said.

“The new WHS Act will make it easier for the WMWA to represent workers, ensure worksites are safer, and will hold employers responsible for illness or injury sustained at work.”

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