Western Australia (WA) is facing a period of significant change over the next few months. In addition to opening its borders, the occupational safety and health system will finally join the harmonised work health and safety system after 10 years of debate. This will affect all workplaces in the state, including residential aged care homes.

Occupational Safety and Health

The changes to occupational safety and health in WA will take effect from 31 March 2022. The Occupational Safety and Health Act 1984 (WA) and Regulations will be replaced at this time by the Work Health and Safety Act 2020 (WA) and Regulations. This will bring WA into line with the national harmonised system established in all other Australian states and territories, excluding Victoria.

Introduction of PCBUs

Under the new regime, the essence of an employer’s duty to keep workers safe has not changed. However, this might not seem immediately obvious given the different titles, definitions and the level of detail required to discharge those duties. Perhaps the most obvious change, but probably the one with the least impact for residential aged care homes, is that an employer is now called the Person Conducting a Business or Undertaking – PCBU. Additionally, the term “workers” expands to cover not only all of a residential aged care home’s employees but also any volunteers, contract staff, trainees, labour hire, and any contractors, sub-contractors and their employees (their “workers”) who are engaged by the residential aged care home or working on the residential aged care home’s premises.

Joint Duty of Care

The WHS Act acknowledges that protecting contractors and sub-contractors is a joint duty of care between the two (or more) employers, and each is responsible to the extent that each has the capacity to “influence or control”. This is similar to the requirements under the OSH Act but is far more detailed and explicit, as it requires PCBUs with a joint responsibility for workers to “consult, cooperate and coordinate”. This can translate, for example, into a residential aged care home providing a site induction for contractors, such as tradespeople, entering their premises which will alert them to local hazards such as asbestos, but the tradesperson’s employer is responsible for ensuring that they have the appropriate training, safe work practices and equipment. It can also involve contracts that stipulate appropriate licensing, insurance, and undertakings that a PCBU’s workers have the appropriate training before entering the residential aged care home’s premises.

Due Diligence

Perhaps the most glaring difference between the old legislation and the new is the detailed requirements for “due diligence” by a PCBU’s “directors and officers” in ensuring that the PCBU complies with the WHS Act. Key decision-makers in the residential aged care home including the home’s Board of Management, Executive Management Team including the CEO and Director of Care, must be able to provide specific evidence that their decisions in relation to health and safety take into account due diligence requirements. One of these new specific due diligence requirements is that, in allocating resources to address health and safety matters, they must assess the likelihood and consequence of the risk of harm arising from an identified hazard before they consider the cost of remediation.

Industrial Manslaughter Offence and Workers’ Psychological Health

In addition, the legislation also introduces the new offence of industrial manslaughter, and specifically extends the PCBU’s duty of care for workers’ health to cover their psychological as well as physical health.

More Significant Penalties

It should be noted that the penalties for breaching the WHS Act also increase significantly compared to penalties under the OSH Act, and if an officer of the PCBU has a penalty awarded against them, they are prohibited from taking out insurance to cover the fine (officers who are volunteers are exempt from prosecution as officers) or being indemnified by the PCBU.

What Do Residential Aged Care Homes Need to Do?

A residential aged care home’s Board of Management, Directors and Executive Managers should read the detailed resources including an explanation of the changes and support for implementation available on the WA Government Department of Mines, Industry Regulation and Safety (DMIRS) website.

If your residential aged care home already has a fully functioning and effective occupational safety and health system in place, then:

• review the due diligence requirements for your residential aged care home’s Board of Management, Directors and Executive Management team to ensure that relevant training, reporting and records to evidence the implementation of those due diligence measures are in place
• review policies and procedures for managing contractors, sub-contractors and other workers who come under the residential aged care home’s joint duty of care to ensure that all reasonably practicable measures are in place to the extent of the residential aged care home’s capacity to influence and control
• check your residential aged care home’s procedures against the detailed information in the DMIRS webpage Introduction to WHS Laws.

If your residential aged care home is not confident about its existing OSH system, now is the time to rigorously review all of the residential aged care home’s OSH policies and procedures using the DMIRS video Are You Ready for WHS? as a starting point, remembering the requirement to consult workers in all matters that affect their health and safety at work.  

Authors

Svetlana Pozydajew

Svetlana Pozydajew is the Principal Consultant, Workplace Relations at CompliSpace. Svetlana has a background in management of national HR and WHS functions across the private and public sectors, and has an LLB, MBA and MA (Journalism).

Jaclyn Ling

Jaclyn is a Legal Content Associate at CompliSpace. A recent graduate from Macquarie University in Sydney, she holds a double Bachelor's degree in Commerce and Law (Honours).