WA WHS regulator shines its spotlight on aged and residential care industry

By Nicholas Beech and Holly Gretton

The aged and residential care industry has been subject to scrutiny in recent years. This follows the Royal Commission into Aged Care Quality and Safety and the final report tabled in the Federal Parliament on 1 March 2021.

In addition to specific industry regulation, aged and residential care facilities are subject to applicable work, health and safety laws (WHS Laws). This adds another important layer of compliance for those in the industry.

In Western Australia, the WHS regulator, WorkSafe WA, is undertaking a ‘proactive inspection program‘ to review WHS issues in WA aged care and residential care facilities. Facilities across metropolitan and regional areas of WA will be randomly selected for an inspection to identify any non-compliance with WHS Laws.

We explore below the applicability of the WHS Laws to the industry, what may be expected from the program and how to prepare.

Applicability of WHS Laws

The Work, Health and Safety Act 2020 (WA) (WHS Act) and associated regulations apply to ‘persons conducting a business or undertaking‘ (PCBU) which is defined broadly, and which will capture organisations operating aged care and residential care facilities.

A PCBU must take all reasonably practical steps to eliminate or minimise risks to the physical and psychological health and safety of workers and ensure the health and safety of other persons is not put at risk from work carried out by the PCBU. A worker is any person who does work for the PCBU, and other persons captures any person who is not a worker, including residents of and guests attending a facility.

In order to ensure that it meets this primary duty of care, an aged or residential care facility is required to take a proactive risk management approach to health and safety in the workplace. Risk management involves:

• identifying hazards, which are things or situations that may cause harm;
• assessing the risks, being the harm that might occur when exposed to a hazard;
• controlling the risks, either by eliminating the hazard or risk if reasonably practicable, or by minimising the risks to the extent reasonably practicable; and
• monitoring and reviewing the control measures to ensure they remain effective.

In assessing what control measures are reasonably practicable, the facility must:

• generally consider the likelihood and potential consequences of the risk, what is known about the ways to eliminate or minimise the risk, the availability and suitability of those measures and the costs of those measures;
• consider a number of prescribed factors in relation to psychosocial hazards, which are hazards that arise from, or relate to the design or management of work, a work environment, plant at a workplace or workplace interactions and which may cause psychological harm, including anxiety, depression and chronic disease.

Undertaking risk management processes is important for a facility to ensure it fulfils its industry duties and compliance requirements. However, the hazards and risks that need to be identified, assessed, and controlled under the WHS Laws will not necessarily align with other industry-specific risks.

What to expect with an inspection

WorkSafe WA has identified residential aged care as an industry with ‘significant challenges in relation to workplace violence and aggression and a high number of injuries due to manual handling and slips, trips and falls.’ Staff training has also been specifically identified as a priority issue of the program.

WorkSafe WA has announced that the aim of the program is to assist PCBUs in the aged care industry to fulfill their WHS responsibilities. This suggests that WorkSafe WA intends to primarily adopt a collaborative approach to the program by identifying issues and working with PCBUs to rectify them whenever possible.

However, should any non-compliance with WHS Laws be identified during an inspection, a facility may be issued with an improvement or prohibition notice or be subjected to other enforcement action.

How to prepare

Aged and residential care facilities should use this as an opportunity to review their WHS practices and processes, including the scope and focus of risk assessments and particularly the application of those systems to psychosocial hazards and risks, given the regulator’s focus on workplace violence and aggression.

The program is anticipated to run until mid-2024.