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Western Australia is a Step Closer to Adopting Model Work Health and Safety Legislation!

Posted by Andy Perry on 9 February 2021

A Bill to modernise WA's outdated legislation has now passed the Upper House. It corresponds with the model Work Health and Safety (WHS) Act applied in some other states apart from Victoria but retains some jurisdictional aspects, such as the management of WHS permit-holders under existing WA industrial relations laws.

An additional duty holder clause has been introduced in the Bill (section 26A) 'WHS Service Provider'. This provider (being essentially a consultant) must ensure, so far as is reasonably practicable, that the WHS services are provided such that any relevant use of them at, or in relation to, a workplace will not put the health and safety of persons in the workplace at risk.

An example of this clause may mean providing any of the following services:

  • Recommendations or other advice;
  • Testing or analysis;
  • Other information or documents, such as a report, plan, programme, strategy, guideline or manual; or
  • A training or other educational course.

As a result, the WHS Consultant may face allegation being made against them for any potential breaches of standards, codes or legislation, when performing their duties, including but not limited to:

  • Negligently reporting on, advising, or implementing strategies to improve safety in a workplace;
  • Third party liabilities arising from a failure to implement effective workplace changes to improve and protect worker or other parties' safety;
  • Breaching confidentiality and privacy laws while conducting investigations;
  • Providing misleading information to a client;
  • Giving advice in contravention of WHS laws, or other relevant legislation and regulations; and
  • Providing a training course for workers about how they can avoid being exposed to risks to their health and safety that is inadequate for that purpose so that, when the workers put their training into practice at their workplaces, they are still exposed to the risks.

The Bill may also pick up a Boland Review recommendation, which outlines a requirement to prohibit insurance for WHS fines and make it an offence to:

  • Enter into a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under the WHS Act.
  • Provide insurance or a grant of indemnity for liability for a monetary penalty under the WHS Act, and
  • Take the benefit of such insurance or such an indemnity.

Further information may be found here.

Author:Andy Perry


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