Commonwealth legislation

Work health and safety (WHS) laws require employers and all other workplace parties to consult and cooperate in the management of workplace risks, in order to protect the health and safety of workers and others who might be at risk from the work.

The principal WHS law in the Commonwealth jurisdiction consists of the Work Health and Safety Act 2011, supported by the Work Health and Safety Regulations 2011. This legislation, which took effect on 1 January 2012, is based on the national model WHS legislation developed by Safe Work Australia in consultation with the states and territories. It applies in all Commonwealth employment, Commonwealth public authorities and to most self-insurers under the Commonwealth scheme for workers’ compensation.

While health and safety requirements are now largely consistent across the country, there is still some variation from one jurisdiction to another, so Commonwealth legislation should always be checked for details.

The legislation is supported by codes of practice that provide guidance in achieving the required standard of health and safety.

Codes of practice approved in the Commonwealth are listed on Comcare’s website.

WHS regulator


The WHS regulator for the Commonwealth is Comcare.

Health and safety duties

 
The WHS Act 2011 has broadened the range of people who have a duty of care. In addition to employers and other ‘persons conducting a business or undertaking’ (PCBUs), duties to manage risks are imposed on all parties who are in a position to contribute to the successful management of workplace risks, including designers, manufacturers, importers and suppliers of equipment and substances; and people who install, construct or commission plant or structures.

Duty-holders must, as far as is reasonably practicable, eliminate (or failing that, minimise) risks to health and safety arising from the work.

PCBUs’ duties

The duties of a PCBU are essentially the same as those of an employer under the previous legislation. The PCBU must eliminate or minimise health and safety risks at the workplace to ensure the safety of all workers (employees, contractors and any others whose work is influenced or directed by the PCBU), customers and others who may be affected by the work, including visitors. 

If more than one person has a duty in relation to the same matter (eg labour hire companies and host employers; or PCBUs sharing a common workplace) each person with the duty must consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. 

Officers’ duty

An ‘officer’ of a company – ‘a person who makes or participates in making decisions that affect the whole or a substantial part of the business or undertaking’ – has a positive duty to exercise due diligence in ensuring the organisation complies with the law.

Workers’ duty

A ‘worker’ is broadly defined to include contractors and volunteers. Workers have a duty of care toward their own and others’ safety. They must comply with any reasonable instructions or safety-related policies and procedures.

Key concepts

 

Risk management

Health and safety risks arising from the work must be effectively managed by eliminating or minimising risks so far as is reasonably practicable, to protect workers and other persons against harm to their health, safety and welfare. Risk management must follow the established hierarchy of risk control.

Reasonably practicable


Risks should be managed so far as is reasonably practicable, depending on the likelihood of adverse consequences and their potential severity, methods of eliminating or minimising the risk and what the person knows or ought to know about it, and lastly the cost of dealing with the risk.

Representation and consultation

‘Consultation’ means sharing relevant information with workers, giving them a reasonable opportunity to express their views, taking those views into account when making decisions, advising them of decisions, and including the health and safety representatives (HSRs) or health and safety committee in the process where they exist at a workplace.

Consultation is required when identifying hazards, assessing risks and making decisions about how to deal with them. It is also required when making decisions about WHS procedures or facilities for workers’ welfare or proposing changes that may affect health or safety.

Right to cease work

A worker may cease or refuse to carry out work if he/she has a reasonable concern that the work poses an imminent, serious risk to health and safety. An HSR may direct employees to cease unsafe work, after first consulting the PCBU to try to resolve the matter, unless the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

Discrimination

Discrimination, coercion, inducement and misrepresentation that prevents a person from being involved in workplace safety is expressly prohibited. 

Issue resolution procedures

Workplaces must have an agreed issue resolution procedure — if no procedure has been established, the default procedure in the WHS Regulations will apply.

Notification

Comcare must be notified of serious injuries and incidents, lead risk work and some other matters. 

Right of entry

Union officials with WHS entry permits have the right to enter a workplace to investigate reasonably suspected contraventions of WHS laws.

Prosecutions and other enforcement options

Breach of WHS laws can have a range of consequences, including on-the-spot fines, improvement or prohibition notices from inspectors; prosecutions; heavy fines; imprisonment; enforceable undertakings and other non-monetary sanctions. 

Prosecutions for alleged breaches of the WHS Act can be initiated by either Comcare or the Commonwealth Director of Public Prosecutions.

Variations from the model WHS law


There are no material variations from the model WHS laws in the Commonwealth WHS legislation. However, the legislation does make special provision to deal with national security, defence and AFP operations.

Safe Work Australia

 
Safe Work Australia is an independent statutory tripartite body that was established to improve Australian WHS outcomes and workers’ compensation arrangements. With its predecessors the Australian Safety and Compensation Council and the National Occupational Health and Safety Commission, it has led the way in harmonising WHS laws across the country.

[Last updated 25 May 2015]
 

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