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Special counsel Matthew Lilly, and lawyer Kimberly Jones, from the HHG Legal Group Agribusiness team discuss the Workplace Health and Safety Act (2020).
The Work Health and Safety Act 2020 (WA) (Act) commenced on March 31, 2022, following the publication of three sets of regulations under the Act. The new laws provide a framework to protect the health, safety, and welfare of workers in WA workplaces, including farms, and of other people who might be affected by the work.
Agriculture is a high-risk environment, with a higher mortality rate (than most industries) and so compliance in the industry is key to ensuring the Act's success.
It is crucial that farmers and agribusinesses understand their duties under the new laws, and have an approach in place to meet these duties.
What do the regulations do?
Three sets of regulations were published, and the 'General' regulations will apply to all workplaces, including farms. Although these regulations apply generally over all industries, there will be different obligations in different workplaces. Some regulations are specific to equipment (the requirements for a roll-over protective structure on a tractor), and to the type of work (audiometric testing where a worker is using protective hearing equipment).
What do I need to know about my obligations generally?
This Act has been discussed extensively over the last few years. You therefore will likely be aware that the Act:
- increases penalties for breaches, including the introduction of an industrial manslaughter offence (for which the penalty is $5,000,000 and/or 20 years' imprisonment);
- expands the scope of people with duties under the Act (and multiple people may have the same duty);
- brings WA in line with most of Australia, by adopting the model Workplace Health and Safety (WHS) laws; and
- prohibits insurance against fines imposed.
It is important to appreciate that the primary duty of care, to provide a safe workplace, has not substantially changed. Duty holders are required to ensure, so far as is practicable, that the workplace is without risk to the safety and health of any persons.
All businesses must have measures in place to eliminate or minimize the risks to health and safety in their workplace under the previous health and safety regime. The measures should be reassessed on an ongoing basis, and now with the new laws in mind.
There are lots of resources available to assist businesses with compliance, but it's easy to get stuck down a rabbit hole and overwhelmed by information. DMIRS WorkSafe WA and Safework Australia are good starting points, with written and video resources, as well as mailing lists, to keep you informed.
There are also several organisations specific to agriculture, such as Farmsafe Australia, that provide practical resources for compliance, such as safety guides for quad bikes, machinery, and stock handling.
What do I do if an accident happens?
You must notify WorkSafe (by telephone or writing) as soon as you become aware of a death, serious injury or illness, or dangerous incident that arises out of the conduct of the business. Records of this incident must also be maintained.
How should I be meeting my obligations?
When reviewing your workplace and duties, we suggest you consider the following:
- Undertaking a risk audit of your workplace (you cannot minimize or eliminate risk if you are not aware of the risks and hazards);
- Consulting with your employees about WHS (they may have a different perspective);
- Reviewing and updating your policies and procedures (and ensure these are available to your employees);
- Ensuring all employees are well trained (especially in areas of high risk, such as working with machinery and animals); and
- Keeping records (ensure that you can demonstrate that you have attended to all reasonable measures and have paperwork for all equipment).
You will then be able to determine if you require further advice about your obligations or risk management processes. If you would like HHG to assist with this process, please contact one of our agribusiness team.
Contact our Agribusiness lawyers on (08) 9322 1966 or firstname.lastname@example.org