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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Work Health And Safety (WHS) Laws (WA)


Work Health and Safety (WHS) laws are designed to protect the health, safety and welfare of all workers at work. WHS in Western Australia is governed by the Occupational Safety and Health Act 1984.

Aims of WHS laws

The Act aims to secure the health and safety of workers and workplaces in many ways. These include to:

  • protect workers from hazards;
  • help secure safe and hygienic work environments;
  • reduce, eliminate and control hazards;
  • foster co-operation and consultation between employees and employers to form, implement and improve health and safety standards;
  • provide for policy making and administration of WHS laws;
  • promote WHS education and community awareness.

“Hazard” means anything that can cause injury or harm a person’s health.

“Workplace” means a place where employees work or are likely to be in the course of their work. It could be in a vehicle, boat, plane, building or other structure.

WHS Duties

An employer has a legal responsibility to ensure the health and safety of workers. These duties include to:

  • provide and maintain workplaces, equipment and systems of work, as far as is practicable, so employees are not exposed to hazards;
  • provide information, training, instruction and supervision to employees so they can work in a way that they are not exposed to hazards;
  • consult and co-operate with health and safety representatives and employees about WHS;
  • where it is not practicable to avoid the presence of hazards at the workplace, to provide personal protective clothing and equipment as is practicable to protect employees against those hazards;
  • make arrangements to ensure, as far as practicable, employees are not exposed to hazards when they:
    • use, clean, maintain, transport, and dispose of plant;
    • use, handle, process, store, transport and dispose of substances.

Duties also apply to other people involved in the business, such as those who design, build, import or supply equipment to the business.

Employees have a duty to take reasonable care for their own health and safety. They also must ensure their acts or omissions do not adversely affect the health and safety of others.

Offences

Penalties for offences are divided into 4 levels:

  • Level 1: a $50,000 fine ($60,000 for a subsequent offence) for a person; or a $450,000 fine ($570,000 for a subsequent offence) for a business;
  • Level 2: a $250,000 fine ($350,000 fine for a subsequent offence) for a person; or a $1,500,000 fine ($1,800,000 for a subsequent offence) for a business;
  • Level 3: a $400,000 fine ($500,000 for a subsequent offence) for a person; or a $2,000,000 fine ($2,500,000 for a subsequent offence) for a business;
  • Level 4: a $550,000 fine and imprisonment for 5 years ($680,000 for a subsequent offence and imprisonment for 5 years) for a person; or a $2,700,000 fine ($3,500,000 for a subsequent offence) for a business.

If an employer breaches a WHS duty and an employee is killed or seriously harmed, a level 3 penalty applies. If the employer is grossly negligent while committing this breach, a level 4 penalty applies. Any other breach earns a level 2 penalty.

An employee can breach a WHS duty by:

  • failing to follow an employer’s instructions for WHS;
  • failing to use protective clothing and equipment;
  • misusing or damaging equipment provided for WHS purposes;
  • failing to report a hazard or an injury.

A first offence incurs a $40,000 fine (subsequent offence $50,000). If the breach causes death or serious injury, the employee faces a $80,000 fine (subsequent offence $100,000). If the employee is grossly negligent in committing this breach, the employee faces a $100,000 fine (subsequent offence $120,000).

Regulation

The Occupational Safety and Health Regulations 1996 set out the requirements for specific hazards and risks, such as noise, machinery and manual handling. There are also Codes of Practice that guide employers and employees on the management of WHS hazards and risks in a range of workplaces. The codes cover specific work practices such as scaffolding, the removal of asbestos, and fly-in-fly-out (FIFO) employment. The codes also control certain aspects of workplaces, such as noise in music entertainment and exposure to viruses.

Commission for Occupational Safety and Health

The Commission for Occupational Safety and Health is made up of employee, employer and government representatives, and WHS experts. It is the peak consultative and promotion body for workplace safety and health in WA.

WorkSafe WA

The commission works with WorkSafe WA, the state’s workplace safety and health regulator, which is responsible for administering and enforcing the Act. This agency offers advice, provides licensing and registration for potentially dangerous work, and investigates workplace incidents. Prosecutions are dealt with in the Magistrates Court. Specified workplace safety and health issues can be dealt with by the Occupational Safety and Health Tribunal. Workers’ compensation is handled by WorkCover WA.

For advice or representation in any legal matter, please contact Armstrong Legal.

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