More guidance released on the new duty on WHS service providers under WA’s WHS Act

By Nicholas Beech

Unlike the majority of the content of Western Australia’s new Work Health and Safety Act 2020, the unique duty imposed on work health and safety service providers under s26A does not benefit from any judicial scrutiny and guidance from other jurisdictions who have had the same or similar model WHS laws operating for many years.

According to WA Legislative Council’s Standing Committee report into the proposed WHS Act published in August 2020, the inclusion of the new duty was intended to make explicit the implicit duty of those providing work health and safety services that does exist under the model laws.

The express elements of the new duty are as follows:

• a WHS service provider must ensure, so far as reasonably practicable, that the WHS services are provided so that any relevant use of them at, or in relation to, a workplace will not put at risk the health and safety of persons who are at the workplace;
• a WHS service provider is a person conducting a business or undertaking (PCBU) that provides WHS services to another PCBU;
• WHS services means services (including any product or other things provided as part of services) that relate to work health and safety other than some specific services including services provided by a health and safety representative or health and safety committee or which are subject to legal professional privilege (even if, it appears, when that privilege has been waived); and
• a relevant use means a use of the WHS services for a purpose for which they are provided and ‘use’ includes implement and rely on.

Although the implementation of the WHS Act has been postponed until March 2022, WorkSafe WA has now issued an Interpretative Guideline on the duty. The Guideline, together with the notes to s26A, comments from the explanatory memorandum to the WHS Bill and statements in the Overview Guide to the WHS Act recently issued by the Department of Mines, Industry Regulation and Safety, provide the following:

What is a WHS service?

• To be considered a WHS service, the activity must have all of the following characteristics:
  • it must relate to work health and safety;
  • it must be intended to address the elimination of a hazard or control a risk;
  • it is provided by a PCBU (the WHS service provider) to another PCBU (the recipient);
  • it is provided in relation to a specific workplace or workplaces; and
  • it is the subject of a written or oral agreement between the WHS service provider and the recipient
• WHS services:
  • include recommendations or other advice, testing or analysis, provision of a report, plan, program, strategy, guideline or manual or training or other educational course;
  • do not include, in addition to those services expressly excluded in s26A, general advice provided by an industry group or association if it is not tailored to a specific PCBU or workplace or intended to provide a substitute for a risk assessment by a PCBU, such as:
    • training a health and safety representative (HSR) in their role and responsibilities under the WHS Act;
    • provision of information to PCBUs about the methodology for conducting risk assessments;
    • distribution of a newsletter advising workers of recent incidents at workplaces;
    • safety alerts regarding an emerging hazard for plant used widely in an industry sector including information on the various control measures that might be contemplated by a PCBU in that sector; and
    • the provision of a list of risks that workers might face in a particular industry.

Who is not a WHS service provider?

• WHS professionals who are engaged by, and provide services within, a PCBU (such as site-specific induction training provided by a supervisor) and unions or professional associations that provide services directly to their members are not WHS service providers.

What is a ‘relevant use’?

• The duty only applies where WHS services are put to their ‘relevant use’, so if the recipient of the WHS service did not use the service for its intended purpose the WHS service provider cannot be held responsible. For example, if an engineer provides a startup checklist for a specific item of plant and the PCBU then applies it to another item of plant, the WHS service is not being used for the purpose for which it was provided.

What may constitute a breach?

• A breach of the duty may occur:
  • where the testing of plant at a workplace for risks to health and safety fails to identify existing risks such that, when the plant is subsequently operated in reliance on the testing, workers at the workplace are exposed to those existing risks;
  • when a recommendation is made on how to eliminate risks to health and safety at a workplace is inadequate so that when the recommendation is implemented the risks are not eliminated;
  • when a training course about how to avoid being exposed to risks at a workplace is inadequate so that when workers put their training into practice they are still exposed to the risks;
• A recipient of the WHS service is entitled to rely on the expertise of a specialist or technical expert, however, an arrangement to acquire a WHS service does not alleviate the recipient of their health and safety duties. The recipient still carries some responsibility for ensuring the requirements of the WHS Act are met. This might involve ensuring the WHS service provider has the necessary expertise to carry out the activity and reviewing the implementation of the WHS service afterwards to ensure it did not impose any new hazards or risks.
• The more specific the advice becomes, the more likely it will be considered a WHS service. WorkSafe will need to consider the facts and circumstances of each case to determine if a contravention has occurred and prove beyond reasonable doubt there was a clear causal link between the WHS service and the imposition of a hazard or risk.
• A WHS service provider cannot contract out of the duty.

The Guideline helpfully adds to the limited previous guideline on how the duty under s26A will be interpreted and applied by WorkSafe. The examples provided will particularly assist WHS service providers better understand the practical scope of the duty.

If you have any questions about how to comply with the new duty under WA’s WHS Act, please get in touch with a member of our Work Health & Safety and Employment & Workplace relations team.