Changes to OH&S Legislation in Western Australia: New Legal Obligations of WHS Safety Service Providers

There has recently been a significant change to Western Australian OHS laws that significantly impacts the obligations of work health and safety (WHS) service providers. Unique to Western Australia, safety consultants are now legally responsible for their advice to others.  

“Section 26A of the Work Health and Safety Act 2020 (WHS Act) places a duty on a person conducting a business or undertaking (PCBU) that provides work health and safety (WHS) services to ensure, so far as is reasonably practicable, that those services do not impose a risk to persons at the workplace.” 
Source: WA Government

What is a WHS service?

A WHS service must satisfy all of the following: 

  • Related to work health and safety

  • Intended to address the elimination of a hazard or control of a risk

  • Provided by a PCBU* (the WHS provider) to another PCBU (the recipient)

  • Provided in relation to a specific workplace/workplaces

*Definition of a PCBU (person conducting business or undertaking) can be found at https://www.wa.gov.au/government/publications/the-meaning-of-person-conducting-business-or-undertaking-pcbu  

Examples of WHS services include: 

  • Recommendations or advice

  • Testing or analysis

  • Information or documents (e.g. report, plan, program, strategy, guideline, manual, etc.)

  • Training or educational course

For a WHS service to be ‘provided’ there must be a verbal or written agreement between the service provider and the recipient. The more specific the advice, the more likely it will be considered a WHS service in the eyes of the law.  

Example scenarios 

The WA Government provides examples of cases in which a WHS service provider breaches their legal obligations by risking peoples’ health and safety.  

  • A recommendation made on how to eliminate risks to health and safety at a specific workplace is inadequate for that purpose so that, when the recommendation is implemented, the risks are not eliminated.

  • The testing of a plant at a workplace for health and safety risks fails to identify existing risks so that, when the plant is subsequently operated in reliance on the testing, workers are exposed to those existing risks.

  • A training course about how workers can avoid exposure to health and safety risks is inadequate for that purpose so that, when the workers put their training into practice at their workplaces, they are still exposed to the risks.

Source: WA Government 

Click below for more information relating to this new legislative change.  

Legal WHS obligations of the service recipient are unchanged

Please note, such an arrangement of relying on WHS services does not alleviate the recipient of their safety duties under the WHS Act.

This may involve screening the WHS service provider beforehand or reviewing their implementations afterwards. 

Additional key legislative changes

Other recent changes to the WA WHS Act relate to labour hire, industrial manslaughter, and insurance. To read about these key amendments in more detail, please see our previous article below.  

Transition Assistance

The Department of Mines, Industry Regulation and Safety offers comprehensive resources to help organisations and workforces familiarise themselves with these significant reforms.   

Furthermore, WorkSafe WA has released a Statement of Regulatory Intent, highlighting their “supportive and educational approach” to compliance and breaches during this transitionary phase.

These new OHS legislative changes mean that affected businesses must carefully re-evaluate their risks and operations. If you have any more questions about these changes or how your business may be impacted, please do not hesitate to contact Certex. 

Alicja Gibert