​New terms and definitions, and updated responsibilities are just a few of the areas that councillors need to be aware of following the introduction of the Work Health and Safety Act (WA) 2020 (WHS).

The ultimate goal of work, health and safety legislation is to make sure that everyone is provided with a safe work environment. It recognises the role that employers, businesses and leaders have in making sure that people 'get home safe' after a day's work. The legislation also recognises an individual's personal responsibility for their own safety

Key terms

The legislation introduces a range of key changes that leaders should be aware of, these include:

Person conducting a business or undertaking (PCBU)

PCBU replaces the term 'employer' and is used to capture a broader range of employing entities. A local government organisation is considered a PCBU.

Officer

A person is an officer of a body corporate if that person is an officer within the meaning of the Corporations Act 2001 (Commonwealth).

Generally speaking, an officer is a person who makes, or has participated in making, decisions that affect the whole or a substantial part of the business or undertaking.

In a local government context this includes the chief executive officer and directors (or equivalent) – this does not included elected members.

An important consideration is that the individual must make decisions that affect the 'whole or a substantial part' of the organisation. For example the library manager will have full responsibility for anything within that section of the organisation, however the library service is usually a small percentage of the entire local government operations. Thus, the library manager does not have the ability to make 'decsions that affect the whole or a substainial part of the business'.

Having 'officer' in your title does not make you an 'officer' for the purpose of the WHS Act unless you fit the definition in the Corporations Act 2011.

Worker

The definition of a worker has been broadened to include anyone who 'works' for a PCBU in support of conducting the business or undertaking. A 'worker' now includes volunteers, employees, contractors, subcontractors, apprentices and labour hire.

What does it mean for local government?

Local governments are PCBUs and have a responsibility to, so far as is reasonably practicable, ensure the safety and health of workers while at work. This includes their physical and psychological health.

The new legislation explicitly addresses the issue of psychological health – so local governments must make sure all risk assessments consider physical and psychosocial hazards.

In short the legislation says that safety is everyone's responsibility – councillors, leaders and workers – everyone has a part to play.

WHS and elected members

The Act excludes local government councillors under the definition of an 'officer'. It does, however, recognise the important role elected members have in supporting 'officers' of a PCBU – that is, supporting CEO's and directors in complying with work, health and safety responsibilities.

Councillors have an obligation under the WHS Act as an 'other'. Section 29 of the Act refers to 'Duties of other persons at the workplace' and outlines the following obligations:

• Take reasonable care for their own health and safety
• Take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons
• Comply, so far as reasonably able, with any reasonable instruction that is given by the local government (as the PCBU) to ensure the local government complies with its duty under the Act.

In practice this means that when fulfilling their duties as a councillor, elected members must be mindful of the above obligations. This includes when interacting with local government officers and workers, participating in discussions and decisions for the local government.

Penalties

Everyone should be motivated and committed to maintaining a safe workplace and looking after each other. Unfortunately, sometimes, this isn't always the case and the legislation includes large penalties for individuals who don't meet their work, health and safety responsibilities.

Individuals could be fined between $100,000 and $550,000 (first offence) and up to five years imprisonment.

Penalties apply when a relevant provision is contravened in circumstance of gross negligence.

The new crime of industrial manslaughter requires the prosecution to establish, beyond reasonable doubt, that a person knew their conduct was likely to cause the death of, or serious harm to, an individual and in disregard of that likelihood. Only PCBUs and their officers can be charged with industrial manslaughter.

More information

The LGIS People Risk team have developed a range of resources to support members in meeting their work, health and safety responsibilities. We can also deliver information sessions to council and provide advice.