new WHS laws

School leader liability under new WHS laws

By Daniel Stojanoski Slater and Gordon Lawyers

In early November 2020 the Parliament of Western Australia passed significant changes to Western Australia’s work and health safety laws with the introduction of the Work Health and Safety Act 2020 (WA) (WHS Act).

The focus of this article is whether any of the new laws will affect the personal obligations and liability of school leaders under the new laws.

The new laws do not necessarily impose significantly greater responsibility on school leaders than is the case under the existing legislation. The new criminal offence of industrial manslaughter would only apply where it was proved beyond reasonable doubt that a person was so knowingly negligent in their duty so as to cause the death or serious injury of an employee. It is difficult to imagine this occurring in a school context.

Overview of the new law and expected time frames

The majority of the new WHS Act is expected to come into operation in the latter part of 2021 and some parts in 2022. The new WHS Act will replace the existing Occupational Safety and Health Act 1984 (WA).

The new laws make a raft of changes to WA’s existing health and safety laws, but the most notable and publicised of those is the introduction of the crime of industrial manslaughter, which includes hefty penalties of up to $5 million for an individual, and a maximum prison sentence of 20 years. In other words, a person could be criminally charged and sent to jail in cases of a death or serious injury at work. The introduction of a criminal charge for causing a death at work is one that almost all workers will furiously agree with, and it is hoped that this drastic change is a step in the right direction toward having no deaths at work, period. Other changes include the work health and safety laws now extending to contractors and casual workers, something which was lacking in the old laws, and a new term “person conducting a business or undertaking” (PCBU) will be introduced.

It is the introduction of this new term “PCBU” that may have an effect on school leaders’ obligations to staff.

So, what is the effect of the new term “persons conducting a business or undertaking” on school leaders?

Essentially the new PCBU term places a primary duty of care on persons conducting a business or undertaking to take steps and ensure as is reasonable as possible the health and safety of workers. Although school leaders are not the employer of teachers and other staff at schools, under the new WHS Act they are potentially “officers” or PCBUs and have a duty of care in relation to safety at the workplace. This is not dissimilar to existing obligations.

Industrial manslaughter

There has been a large amount of media attention on the new criminal offence of industrial manslaughter in the WHS Act. It is important to note that the offence is targeted at the most serious breaches, where it is appropriate to assign criminal culpability for the offence. A person will only be convicted of the criminal offence of industrial manslaughter where it is proved, beyond reasonable doubt, that: 1. The person had a health and safety duty as a person conducting a business or undertaking; and 2. The person engaged in conduct that causes the death of a person; and 3. The conduct was a failure to comply with the person’s health and safety duties; and 4. The person engaged in the conduct: a. knowing that the conduct is likely to cause the death of or serious injury to a person; and b. disregarding the likelihood of death or serious injury. (WHS Act s 30A)

It will be apparent that to be liable for a contravention of this offence, a person will have to have knowingly engaged in conduct that they knew would likely result in death or serious injury, and to have done so with a disregard for that likelihood. It seems most unlikely that this would occur in a school setting.

Summary

In brief, the new laws are largely aimed at broadening the range of persons with safety responsibilities and introducing criminal punishment for the most egregious breaches. School leaders have always had a duty to take an active role in ensuring health and safety at the school level. The new WHS Act will not necessarily place a greater burden on school leaders than the former legislation, and they can be reassured that the offence of industrial manslaughter only applies in circumstances where a person causes another’s death through conduct that is so egregious as to warrant a criminal sanction.

Daniel Stojanoski is the head of the WA Industrial and Employment Law Department at Slater and Gordon Lawyers. He is a staunch union member and a strong advocate for workers’ rights and has been a legal advisor to the SSTUWA for almost a decade.

Farewell to a much loved colleague

There are few people who have had such a positive impact on education and educators in Western Australia as Kim Dullard. We grieve his loss as a friend, colleague and mentor to many. Prior to joining the SSTUWA in 2015 as leadership organiser, Kim already had a wonderful track record in developing, mentoring and leading teachers and system leaders in best practice since 1977 when he began his union membership and teaching career. In 2015 Kim had just completed three years as principal of Woodlands Primary School. His leadership saw Woodlands PS grow as a teacher development school in the areas of English and the Early Years Learning Framework; using Kagan structures for guided practice sessions and a coaching approach based on the GROWTH (Goal, Reality, Options, Will do, Tactics and Habits) Model to support staff. Immediately before that Kim had been a private consultant specialising in Educational Leadership and working predominately in the East Kimberley mentoring and coaching principals in the Catholic sector.

As an accredited coach Kim also worked for GROWTH Coaching, supporting teachers and leaders across Australia, as well as running professional learning sessions.

Before working as a consultant, Kim was a director in the West Coast and Fremantle/ Peel Education Districts. He was also principal at Middle Swan PS, Beckenham PS and Katanning PS over a period of 14 years; all of which gave him both a school and system perpsective on the work of principals. As a school leader Kim was widely respected and acknowledged for his pedagogical innovativeness in areas such as multi-age grouping, implementing the Curriculum Framework, learning safety and instructional intelligence. When the SSTUWA decided to implement a different approach to working with school leader members, through the school leader organiser, Kim was the natural choice. His commitment to, and experience in, collaborative approaches was the perfect vehicle for resolving the tension which sometimes arises between principals and teachers in schools. A key part of his role was to support leadership team members of the SSTUWA, as well as ensuring the union gave an opportunity to those leaders not in the union to fairly present their side of a dispute within their school. He led and deeply believed in collaborative school cultures.

Among Kim’s aims was to increase leader membership in the SSTUWA and to make sure more training and support was provided to school leaders. He succeeded in every sense. Kim’s work was absolutely crucial in establishing the base from which the SSTUWA, through his work and that of others, could secure recognition from the department and government of the vital need for better mentoring, broader networks and improved support for leaders across the WA education system. Kim said of himself:

“Leadership for me is the ability to work collaboratively and cooperatively with staff to provide the best possible learning environment for the students. Good leaders build the effectiveness of their staff by utilising processes and strategies to develop whole of school approaches that provide a consistent and continuous learning environment from one year to the next. “They empower staff to make decisions based upon current research that reaffirm the principles of teaching, learning and assessment from the School Curriculum and Standards Authority. “My advice to leaders is to stay connected to your staff, trust them and most importantly, support and guide them.” This wisdom was imparted not only to teachers and leaders across the education sector; it resonated with everyone he worked with. Whenever you passed Kim’s desk you saw pictures of his children and grandchildren. There was no doubting who was at the centre of his life.

We were privileged to know him. He will be remembered as a fierce and passionate public education leader who genuinely left a legacy and we will miss him dearly. Vale Kim Dullard.

A tribute from Barrie Bennett:

I’ve been teaching in classrooms now for 48 years. In that time I’ve met a lot of great teachers, school administrators, ministers of education, change agents, parents, etc and I would say unequivocally that Kim was the best of the lot. He got it all; he sensed the big picture, the grand quilt, the players, the politics. He could smell schlock a mile away. He never shied away from confronting bad decisions or no decisions.

He was always willing to confront and resolve conflict. He was assertive, but always guided by powerful beliefs and values. His passion for kids and the classrooms was genetic and groomed by observation and conversations.

Kim understood that if not for kids we would have no faculties of education, no ministries of education, no teacher unions...he understood the need for them to all work together to make a difference in the lives of kids.