In June 2020, New South Wales made changes to their Work Health and Safety Act specifically around the cover of insurance, and Western Australia has followed suit. The changes largely relate to insurance policies that currently cover against fines and penalties for Work Health and Safety offences, and so various classes of insurance may be impacted by the amendments. Read on to make sure you understand the changes, and how it may affect your business and your class of insurance.
Redefining ‘employees’
As part of the amendments being made to the WA Act, the people that are included under the umbrella of a corporation, the ‘employees’, are being more widely defined by the word ‘workers’. In this way, the term ‘workers’ broadens the definition to include contractors, subcontractors, apprentices and similar, to clarify and expand who is covered under Work Health and Safety guidelines – regardless of how the workflow of a company is set up. Ideally, this will make it simpler when identifying who is liable for a Work Health and Safety breach.
What does this change mean for your business? This new clarification of ‘worker’ includes contractors and other third party people, so it’s important that every single person involved with your business understands Work Health and Safety guidelines, and sticks to them. To avoid ramifications for your business, each worker involved needs to do the right thing in relation to Work Health and Safety.
Ill intent
Insurance already, in general, does not cover, or indemnify from liability, an offence that was committed with deliberate and ill intent. The changes to the WA Act further means that fines and penalties that result from deliberate WHS breaches will not be covered under any class of insurance. That is to say, if a WHS offence is deliberately executed with ill intent, your insurance policy cannot cover you for any related fines or penalties. Keeping in mind that the term for ‘workers’ now broadens who is linked to your business, it’s as vital as ever to ensure team training and safety protocols are up to date, well-understood and followed.
Increased penalties
With these amendments comes the increase of penalties for misconduct. The maximum penalty following a serious offence of ill intent resulting in serious injury or death is increased to a whopping $3.5 million – which, of course, cannot be covered by insurance. A very real reason to avoid any penalties in your workplace!
Which classes of insurance does this affect?
Only insurance policies that currently cover fines and penalties for Work Health and Safety related offences should be affected by the changes to the WA Act. It’s worth looking at your own individual policy to see how the changes to the WA Work Health and Safety act may affect you, but here are some general guidelines for which classes of insurance may be impacted:
- Directors’ and Officers’ Liability insurance: Previously, some penalties relating to WHS may have been covered under this class of insurance, in relation to breach of statute. Under the new Act, these will no longer be covered.
- Profession Indemnity insurance: The Changes to the WA Act may mean some civil penalties are no longer covered. It may be worth checking your policy.
- Employment Practices Liability insurance: Many EPL policies cover for penalties relating to an employment related wrongful act. The amendment to the WA Act is likely to change this, prohibiting cover of such penalties.
- Workers Compensation insurance: One of the things to keep in mind here is the redefining of who is classed as a ‘worker’ under the amendments to the Act. Workers compensation insurance is mandatory for every employer in WA, for anyone defined as a ‘worker’ according to the WA Act.
While some classes of insurance and individual policies will not see any changes after the new WA Act comes into force, each case is different. It’s worth checking out your policy and understanding how the amendments could influence it
What does this mean for me?
In essence, the amendments to the WA Work Health and Safety Act relate to the payment of fines and penalties regarding a WHS offence. The changes will make it so that these offences are uninsurable. With that in mind, in some cases no changes will be necessary to your insurance policy, as the WA Act will define these terms. But it’s worth checking out the insurance policy your business has in place, and examining the individual terms and wording of your policy. In addition, ongoing Work Health and Safety training and maintenance is essential in upkeeping WHS guidelines, and will ensure your business is a safe place to work, as well as keep you from copping any fines or penalties. Make sure each person under the umbrella of your business, including contractors and subcontractors, adheres to the WHS guidelines and represents your organisation well.