On March 31st, 2022, Western Australia passed the new Work Health and Safety Laws as part of a long process to harmonise with the national model.
The changes to the laws are broad and include different terminology, requirements, responsibilities, and penalties.
The purpose of this piece is not to do a detailed review of the changes, but to highlight a few of the key elements that influence responsibilities of duty holders and a few of the specific changes in relation to the working at height industry in WA.
One of the most impactful changes is the increase in penalties for offences. The WA government had previously introduced an increase to the legacy penalties in 2018. These have been increased again to align with the model, including the adoption of criminal charges for ‘Industrial Manslaughter’.
Previously, the breach levels had been presented as Levels1-4, with level 4 being the worst case. This has been replaced with categories. Category 1 being the higher offence and Industrial Manslaughter being the worst penalty. A comparison summary of the levels is presented in the below tables.
Previous Breach Penalties
Current Breach Penalties
Work Health and Safety Act 2020, Part 2, Division 5(s. 30A – 33)
Within Part 2, Division 2 (s. 19 (3)) is a non-exhaustive list with which a person must comply to discharge their WHS duties. This includes:
a) the provision and maintenance of a work environment without risks to health and safety;
b) the provision and maintenance of safe plant and structures;
c) the provision and maintenance of safe systems of work;
d) the safe use, handling and storage of plant, structures and substances;
e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities;
f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking;
g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
With respect to the specific responsibilities of designers, Part 2, Division 3, (s. 22) of the Act, outlines the various duties that must be considered and undertaken to comply with their legal responsibility. Designers are upstream duty holders because they directly influence the conditions of the workplace. It states that if you are an architect, engineer or building design professional who works on the technical design of a building you have an obligation to ensure “so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons”.
The general process advocated is one of hazard identification, risk assessment and risk control. With respect to risk control for working at height, the WHS Act and Regulations do not currently specify which form of control needs to bein place, but rather places a clear responsibility on the designer/PCBU to adequately assess, minimise and control hazards, as far as reasonably practicable.
Within the WHS Regulations, duty holders are required to manage the risk of falls at workplaces in accordance with the following regulations:
- Regulation 78 – Management of risk of fall
- Regulations 79 – Specific requirements to minimise risk of fall
- Regulation 79A – Duties of certain persons as to holes or openings in floors
- Regulation 80 – Emergency and rescue procedures
At What Height Does This Apply?
Within the current WHS regulations s.78, working at height is defined as a “risk of fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.” This departs from the previous regulation s.3.55 which noted some height thresholds depending on the type of work being undertaken. It should be noted that the Department of Mines, Industry Regulation and Safety (DMIRS) has published an article outlining some transition arrangements regarding the above, which can be found here: https://www.commerce.wa.gov.au/publications/information-sheet-managing-risk-falls-workplaces
Anchorage Inspection Frequencies
Another major change is the removal of the reference to fall protection anchorage equipment inspection intervals. This was previously outlined in s.3.53 of the regulations. With this clause removed, the criteria defaults to the normative reference AS/ZNS 1891.4 and manufacturer’s recommendations, which generally refers to 12-monthly intervals. This will likely have the most significant impact for facility managers where most assets have traditionally been implementing 6-monthly intervals due to a lack of clarity around the definition of “regular use”.
For more detailed information regarding the changes to the laws and additional resources provided by DMIRS, go to: www.dmirs.wa.gov.au/whs
This site and all material and content contained within does not constitute legal advice. Therefore, although reasonable care has been taken in the preparation of such information, Altura - Height Safety Professionals extends no warranties, makes no representation, and assumes no responsibility as to the accuracy or suitability of such information for application to the readers intended purposes or consequences of its use.
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