Changes to OH&S Legislation in VIC and WA: Labour Hire, industrial manslaughter, and more

In March, both Victoria and Western Australia introduced significant legislative changes to work health and safety (WHS). These changes relate to labour hire/subcontractors, industrial manslaughter, and insurance. The new laws for both states are summarised below.  

Victoria 

From 22 March 2022, changes in the Occupational Health and Safety and Other Legislation Amendment Act 2021 (OHS Act) have come into effect. These include: 

1. New definitions

The Act expands ‘Employer’ and ‘Employee’ definitions to grant labour hire workers the same rights and protections as direct employees of an employer.  

“Before the changes...the host employer owed some health and safety duties to the labour hire worker under the OHS Act, however they did not owe all employer duties to the worker. This is because the worker was not considered an employee of the host employer under the previous definition in the OHS Act. Labour hire workers were at a disadvantage when compared with a person directly employed by the host employer.” (WorkSafe Victoria) 

Please note that labour hire providers are still directly responsible for worker health and safety. Their obligations are unchanged. Rather, labour hire workers now have equal rights as the permanent employees around them. 

2. New duties 

Additionally, “labour hire providers and host employers must, so far as is reasonably practical, consult, cooperate, and coordinate activities with each other where they share OHS duties to labour hire workers.” (WorkSafe Victoria). This includes exchanging information, introducing necessary policies, and responding to requests to jointly manage health and safety.  

Either the labour hire provider or host employer can report non-compliance of this duty to WorkSafe, and severe penalties can apply.  

Click below for more information regarding legislative changes to labour hire in Victoria. 

Western Australia 

Beginning 31 March, WA has introduced new Work Health and Safety (WHS) laws that, for the first time in 30 years, harmonise WA with other states and territories, excluding Victoria. Key changes are outlined below.  

1. Subcontractors and gig economy workers  

The Act recognises modern work relationships by introducing the term “person conducting a business or undertaking” (PCBU). This means that anyone who engages a WA worker has a legal duty to protect them, regardless of whether they are direct employees or not.  

2. Senior responsibility for workplace safety 

The Act requires “officers” (senior management) to exercise “due diligence” in ensuring WHS compliance. This confirms that the upper levels of an organisation's hierarchy are accountable for workplace safety. 

3. Industrial manslaughter 

The Act introduces new industrial manslaughter laws. Penalties include up to 20 years imprisonment, a five million dollar fine for individuals, and a ten million dollar fine for a body corporate. 

4. Insurance restrictions 

The Act prohibits using insurance to cover WHS penalties. This ensures that PCBUs are held financially responsible for WHS breaches. 

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.