Workplace Health and Safety Offences (WA)
The Work Health and Safety Act 2020 came into force on 31 March 2022 and replaces the Occupational Safety and Health Act 1994. This article outlines the changes brought by the new legislation, including some of the workplace health and safety offences under the new Act.
What is a PBCU?
The Act introduces the term ‘person conducting a business or undertaking’ (PCBU). The term will cover a broader range of workplace relationships than were covered under the Occupational Safety and Health Act 1994. In some circumstances, breaches of the duties set out in the Act will amount to criminal offences. Criminal offences under the Act carry significant penalties including large fines and, in some cases, imprisonment.
Under the Act, a PCBU may be conducting a business or undertaking alone or with others, whether or not for profit or gain. A PCBU can be a sole trader, each partner within a partnership, company, unincorporated association, government department or public corporation (including a local or regional government).
The Act provides for a new offence of industrial manslaughter. This offence will apply where those who have a duty under the Act have failed to comply with that duty, and that failure to comply caused a death.
Under section 30A(1) of the Act, a person commits industrial manslaughter if they have a health and safety duty as someone conducting a business or undertaking and they engage in conduct that causes the death of a person where the conduct constitutes a failure to comply with their health and safety duty and they did so knowing the conduct was likely to cause death or serious harm, or in disregard of that likelihood.
Under section 30A(3) of the Act, a PCBU commits industrial manslaughter if the above occurs and the PCBU’s conduct is attributable to neglect on the part of the officer or is engaged in with the officer’s consent or connivance and the officer engages in the conduct knowing that it is likely to cause death or serious harm or in disregard of that likelihood.
The maximum penalty for industrial manslaughter is, in the case of a body corporate, a fine of $10,000,000 and, in the case of an individual, imprisonment for 20 years and/or a fine of $5,000,000.
A person charged with the offence of Industrial Manslaughter can also be convicted of a Category 1, Category 2 or Category 3 offence of breaching workplace health and safety duties. These offences are outlined below.
Other Breach Offences
The Act also provides three further categories of offences for breaching workplace health and safety duties. The maximum penalties for each category differ depending on whether the offender is an individual; a PCUB or officer; or a body corporate.
Category 1 offences
Category 1 offences apply to those with a workplace health and safety duty where their conduct in failing to comply with that duty caused the death of, or serious harm to, a person.
The maximum penalties for Category 1 offences are:
– $3,500,000 for a body corporate;
– $680,000 and/or 5 years imprisonment for an individual as a PCBU or officer;
– and $340,000, and/or 5 years imprisonment for an individual or other.
Category 2 offences
Category 2 offences apply to those with a workplace health and safety duty where their conduct in failing to comply with that duty exposed a person to the risk of death, injury or harm to health.
The maximum penalties for Category 2 offences are:
– $1,800,000 fine for a body corporate;
– $350,000 fine for an Individual as a PCBU or officer; and
– $170,000 fine for an individual or other party.
Category 3 offences
Category 3 offences apply to those with a workplace health and safety duty who failed to comply with that duty.
The maximum penalties for Category 3 offences are:
– A fine of $570,000 for a body corporate;
– A fine of $120,000 for an individual as a PCBU or officer; and
– A fine of $55,000 for an individual or other.
A person charged with a Category 1 or 2 offence can be convicted of a lesser category offence.
In addition to imposing a financial penalty or imprisonment, courts may also impose alternative remedies including:
– adverse publicity orders;
– restoration orders;
– work health and safety project orders;
– court-ordered Workplace Health and Safety undertakings and/or training orders.
Prosecuting an offence
Proceedings for an offence against the Act can only be brought by the Worksafe Commissioner or a public service officer in the Department of Mines, Industry Regulation and Safety. Industrial manslaughter offences under section 30A may only be prosecuted by the Director of Public Prosecutions (DPP).
A prosecution must be commenced within two years of the date the offence first came to the regulator’s attention, within one year after a finding in a coronial or other official inquiry that the offence has occurred or within six months of a WHS undertaking being contravened, or when the regulator becomes aware of a contravention or agrees to withdraw the undertaking.
Proceedings may be commenced for Category 1 offences outside the standard limitation period if fresh evidence is discovered and the court is satisfied the evidence could not reasonably have been discovered within the limitation period.
There is no limitation period for industrial manslaughter. If the DPP decides not to bring proceedings for industrial manslaughter, proceedings for another offence may be brought by the regulator within six months of the DPP’s decision.
The Department of Mines, Industry Regulation and Safety publishes successful prosecutions for workplace health and safety offences on its website.
If we can assist you with advice or representation in relation to Work Health and Safety requirements, please contact Armstrong Legal.