1Short title

This is the Work Health and Safety Act 2020.

2Commencement

(1)

This Act comes into operation as follows —

(a)

Part 1, other than Divisions 2 to 5 — on the day on which this Act receives the Royal Assent (assent day);

(b)

Part 14, other than Divisions 1 to 3 — on the day after assent day;

(c)

the rest of the Act — on a day fixed by proclamation.

(2)

However, if no day is fixed under subsection (1)(c) before the end of the period of 10 years beginning on assent day, this Act is repealed on the day after that period ends.

3Object

(1)

The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by —

(a)

protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and

(b)

providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

(c)

fostering cooperation and consultation between, and providing for the participation of, the following persons in the formulation and implementation of work health and safety standards to current levels of technical knowledge and development and encouraging those persons to take a constructive role in promoting improvements in work health and safety practices —

(i)

workers;

(ii)

persons conducting businesses or undertakings;

(iii)

unions;

(iv)

employer organisations;

and

(d)

promoting the provision of advice, information, education and training in relation to work health and safety; and

(e)

securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f)

ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and

(g)

providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h)

providing for the formulation of policies, and for the coordination of the administration of laws, relating to work health and safety; and

(i)

maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in the State.

(2)

In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

Notes for this section:

1. This Act is based on the Model Work Health and Safety Bill (21 March 2016 version) prepared for, and approved by, the Council of Australian Governments and contains modifications of that model Bill for this State.

2. The numbering of Parts, Divisions and sections in this Act generally (but not always) corresponds to the numbering of Parts, Divisions and sections in the model Bill. To facilitate this correspondence —

(a)

some Part, Division and section numbers are included in this Act although they are not used for this State; and

(b)

alphanumeric numbers are used in this Act for some sections that are inserted for this State.

3. Alphanumeric numbering used in the model Bill is also used in this Act.

4Definitions

In this Act —

approved code of practice means a code of practice approved under Part 14;

authorised, in Part 4 — see section 40;

Category 1 offence — see section 31;

Category 2 offence — see section 32;

Category 3 offence — see section 33;

chief executive, in relation to a Crown agency, means the person who is responsible for the day‑to‑day administration of the Crown agency;

Chief Inspector of Mines — see Schedule 1 Division 2;

Chief Inspector Petroleum Safety — see Schedule 1 Division 2;

compliance powers means the functions and powers conferred on an inspector under this Act;

condition includes limitation and restriction;

construct includes assemble, erect, reconstruct, reassemble and re‑erect;

corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of another State or a Territory, who or which is responsible for administering a corresponding WHS law;

corresponding WHS law means a law, or a part of a law, of the Commonwealth, or of another State or a Territory, that is prescribed as a corresponding WHS law;

covert operation means the performance of a function, or the exercise of a power, of a police officer in circumstances where —

(a)

a covert operation is undertaken by WA Police for the purpose of obtaining information about criminal activity; and

(b)

the performance of the function, or the exercise of the power, is not reasonably practicable without exposing a police officer to a serious risk to the police officer’s health or safety emanating from an immediate or imminent exposure to a hazard; and

(c)

unless the performance of the function, or the exercise of the power, is secret or confidential, it would be likely that —

(i)

the effectiveness of the performance of the function, or the exercise of the power, is reduced; or

(ii)

a person is exposed to the danger of physical harm arising from the actions of another person;

Crown agency means —

(a)

a department of the Public Service; or

(b)

WA Police; or

(c)

any other agency of the Crown that is not a body corporate;

dangerous incident, in Part 3 — see section 37;

dangerous operation means the performance of a function, or the exercise of a power, of a police officer in circumstances where the performance of that function, or the exercise of that power —

(a)

is reasonably necessary; and

(b)

is not reasonably practicable without exposing a police officer to a serious risk to the police officer’s health or safety emanating from an immediate or imminent exposure to a hazard;

demolition includes deconstruction;

design, in relation to plant, a substance or a structure, includes —

(a)

design of part of the plant, substance or structure; and

(b)

redesign or modify a design;

disclose, in relation to information, includes divulge or communicate to any person or publish;

discriminatory conduct, in Part 6 — see section 105;

document includes anything that falls within 1 or more of the following paragraphs —

(a)

a record of information, irrespective of how the information is recorded or stored or able to be recovered;

(b)

a thing on which there is writing;

(c)

a map, plan, graph, drawing or photograph;

(d)

a thing on which there are marks, figures, symbols or perforations that have a meaning for persons qualified to interpret them;

(e)

a thing from which images, sounds or writings can be reproduced with or without the aid of anything else;

(f)

a thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;

eligible person, in Part 12 — see section 223;

employer organisation means an association or organisation of employers;

handling includes transport;

health means physical and psychological health;

health and safety duty — see section 30;

health and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member;

import means to bring into the State, whether from outside Australia or otherwise;

industrial manslaughter — see section 30A;

inspector means an inspector appointed under Part 9;

internal reviewer means —

(a)

the regulator; or

(b)

a person appointed by the regulator under section 225;

IR entry authority means —

(a)

a right of entry permit as defined in the Industrial Relations Act 1979 section 49G(1); or

(b)

a permit issued under the Fair Work Act 2009 (Commonwealth) section 512;

local government member means —

(a)

a member of the council of a local government, or of the council of a regional local government, acting in that capacity; or

(b)

a member of the governing body of a regional subsidiary acting in that capacity, if the member was appointed to the governing body in their capacity as a member of the council of a local government involved in the formation of the regional subsidiary;

notifiable incident — see section 35;

officer — see section 4A;

person conducting a business or undertaking — see section 5;

plant includes —

(a)

any machinery, equipment, appliance, container, implement and tool; and

(b)

any component of any of those things; and

(c)

anything fitted or connected to any of those things;

prohibited reason, in Part 6 — see section 106;

provide, in relation to a document, includes produce;

public corporation means —

(a)

a local government, regional local government or regional subsidiary; or

(b)

any other body corporate established or continued for a public purpose under a written law;

reasonably practicable, in relation to a duty to ensure health and safety — see section 18;

regulator means the WorkSafe Commissioner — see Schedule 1 Division 1;

remuneration has the meaning given in the Salaries and Allowances Act 1975 section 4(1);

representative, in relation to a worker, means —

(a)

the health and safety representative for the worker; or

(b)

a union representing the worker; or

(c)

any other person the worker authorises to represent the worker;

reviewable decision, in Part 12 — see section 223;

serious injury or illness, in Part 3 — see section 36;

structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes —

(a)

buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and

(b)

any component of a structure; and

(c)

part of a structure;

substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour;

supply — see section 6;

Tribunal means the Work Health and Safety Tribunal — see Schedule 1 Division 5;

union means —

(a)

an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 (Commonwealth); or

(b)

an organisation of employees, or an association of employees, registered under the Industrial Relations Act 1979;

volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out‑of‑pocket expenses);

WA Police means the Police Force of Western Australia provided for by the Police Act 1892;

WHS authority means any of the following —

(a)

the Minister;

(b)

the WHS department or a person working in the WHS department;

(c)

an inspector or a person assisting an inspector under section 166, 167B(7) or 167D;

(d)

the holder, or a person acting as the holder, of an office under Schedule 1 Division 1 or 2;

(e)

a body established or appointed under Schedule 1 Division 3 or 4;

(f)

a member, or a person acting as a member, of a body established or appointed under Schedule 1 Division 3 or 4;

(g)

any other person engaged in the administration of this Act;

WHS department means the department of the Public Service principally assisting in the administration of this Act;

WHS undertaking means an undertaking given under section 216(1);

worker — see section 7;

work group means a work group determined under Part 5;

Work Health and Safety Commission — see Schedule 1 Division 3;

workplace — see section 8.

[Section 4 amended: No. 43 of 2024 s. 160.]

4AMeaning of officer

(1)

In this Act —

officer —

(a)

means —

(i)

an officer within the meaning of the Corporations Act 2001 (Commonwealth) section 9 other than a partner in a partnership; or

(ii)

an officer of the Crown within the meaning of subsection (2); or

(iii)

an officer of a public corporation within the meaning of subsection (3);

but

(b)

does not include —

(i)

the Governor acting in that capacity; or

(ii)

a Minister of a State or Territory, or of the Commonwealth, acting in that capacity; or

(iii)

a local government member.

(2)

Each of the following persons is taken to be an officer of the Crown for the purposes of this Act —

(a)

in relation to the business or undertaking of a body corporate that is an agent of the Crown, any person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking;

(b)

in relation to the business or undertaking of a Crown agency, the chief executive;

(c)

in relation to the business or undertaking of a Crown agency, any person (other than the chief executive) —

(i)

who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking; and

(ii)

who is, within the organisational structure of the Crown agency, directly responsible to the chief executive.

(3)

A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public corporation is taken to be an officer of the public corporation for the purposes of this Act.

5Meaning of person conducting a business or undertaking

(1)

For the purposes of this Act, a person conducts a business or undertaking —

(a)

whether the person conducts the business or undertaking alone or with others; and

(b)

whether or not the business or undertaking is conducted for profit or gain.

(2)

A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)

If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4)

An individual does not conduct a business or undertaking to the extent that the individual is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5)

A local government member does not conduct a business or undertaking.

(6)

The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)

A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8)

A strata company that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.

(9)

Subsection (8) does not apply if the strata company engages any worker as an employee.

(10)

In this section —

strata company means a body corporate established under the Strata Titles Act 1985 section 14 on registration of a strata titles scheme;

volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

6Meaning of supply

(1)

A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, loan, lease, hire or hire‑purchase, whether as principal or agent.

(2)

A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.

(3)

A supply of a thing does not include —

(a)

the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or

(b)

a prescribed supply.

(4)

A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if —

(a)

the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and

(b)

the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.

(5)

If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer.

7Meaning of worker

(1)

A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as —

(a)

an employee; or

(b)

a contractor or subcontractor; or

(c)

an employee of a contractor or subcontractor; or

(d)

an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e)

an outworker; or

(f)

an apprentice or trainee; or

(g)

a student gaining work experience; or

(h)

a volunteer; or

(i)

a person of a prescribed class.

(2)

For the purposes of this Act, a police officer is —

(a)

a worker of WA Police; and

(b)

at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.

(3)

The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

8Meaning of workplace

(1)

A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

(2)

In this section —

place includes —

(a)

a vehicle, vessel, aircraft or other mobile structure; and

(b)

any waters and any installation on land, on the bed of any waters or floating on any waters.

9Notes

A note in this Act, other than a note in Part 15, forms part of this Act.

10Act binds Crown

This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

11. Not used

12. Not used

12AEffect of Schedule 1

Schedule 1 establishes, and makes provision about, the following offices and bodies —

(a)

the WorkSafe Commissioner (Division 1);

(b)

the Chief Inspector of Mines and the Chief Inspector Petroleum Safety (Division 2);

(c)

the Work Health and Safety Commission (Division 3);

(d)

the Mining and Petroleum Advisory Committee (Division 4);

(e)

the Work Health and Safety Tribunal (Division 5).

Work Health and Safety Act 2020

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