In March this year, the new Work Health and Safety Act (2020) came into effect in Western Australia and significantly changed the way that farms need to approach safety. This is even more important with the recent announcement of the WorkSafe inquiry into safety in the agricultural industry. After 12 deaths in agriculture in the last 12 months, WorkSafe commissioner Darren Kavanagh announced the inquiry at the end of June following a tragic incident in the Great Southern. Farmers need to be aware of their safety requirements as doing nothing poses the biggest risk as farmers can now receive penalties without an incident occurring.

Agriculture is an important industry here in WA with many of our regions including Esperance, Wheatbelt and Geraldton being responsible for crop production in Australia. Sadly, agriculture is also a high-risk industry with a significant amount of workplace accidents and fatalities. Farmers must be aware of the change in the WHS Act to both keep their workers safe and protect their business in the event of an incident.

Many key areas in the Act have changed to bring WA up to speed with the rest of Australia’s legislation. Some of the biggest risks to farms with the introduction of the new Work Health and Safety Act (2020) include the introduction of positive due diligence, expansion of key definitions and increased penalties. 

Risk 1: Positive Due Diligence

Under the Work Health and Safety Act (2020) farmers have a positive obligation of due diligence to provide a safe workplace. This requires that farm owners have up-to-date knowledge of WHS matters, understand the hazards and risks associated with work, ensure resources are available to eliminate or minimise the risk and have processes to consider information from incidents and respond. If you are not meeting this obligation of due diligence, you can be prosecuted without the need for an incident or injury occurring on the farm. This legislation makes it easier for directors to be prosecuted if they do not have systems in place managing their farm’s work health and safety.

Risk 2: Expanded Definitions

Where previous legislation defined employers and employees, the Work Health and Safety Act (2022) defines a Person Conducting Business or Undertaking (PCBU), Officers and Workers. A PCBU can be a sole trader, partner within a partnership or company, and has a duty of care to ensure the health and safety of workers so far as reasonably practicable. An officer is a person who makes or participates in making decisions that affect the organisation's activities. On a farm the PCBU could be the farm owner and the officer could be the farm manager, both have a Work Health and Safety duty of care.  A worker is any person who does work for the PCBU including, employees, contractors, work experience students and volunteers.

The expansion of the duty of care poses a risk to farms as they are responsible for providing a safe workplace for more individuals. The inclusion of volunteers is particularly important, as a recent Queensland case demonstrated that PCBUs can be prosecuted if friends or family members are tragically injured while carrying out work for the business on a voluntary basis.

Risk 3: Increased Penalties

The penalties for non-compliance have increased in the Work Health and Safety Act (2020). The PCBU, individual owner and Officers can all be charged and receive jail time if they are found to have breached their duty of care which results in death or injury. This puts farm owners, directors, and managers at risk of severe consequences should an incident occur. The introduction of Industrial Manslaughter is the most significant update in this area. This attracts a maximum penalty if a worker dies on your farm of $10 million for the business, and $5 million and 20 years in jail for the business owner or officer and is a criminal offence. Not only is this a significant cost to the business, but farming related deaths are also a tragic loss to tight-knit regional communities. Farms need to have safety management systems in place to demonstrate they have complied with their duty of care to provide a safe workplace, as far as reasonably practicable.