NSW 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 New South Wales consists of the Work Health and Safety Act 2011, supported by the Work Health and Safety Regulation 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 NSW workplaces, including mines.

While health and safety requirements are now largely consistent across the country, NSW’s WHS Act has a number of variations from the model WHS Act, so NSW-specific 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 NSW are listed on the website of WorkCover NSW.

WHS regulators


There are two WHS regulators in NSW – for mining it is the NSW Department of  Industry, Resources and Energy; for all other workplaces it is SafeWork NSW (formerly WorkCover NSW).

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

Workers, including contractors and volunteers, 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 must be managed so far as is reasonably practicable. This depends 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.

PCBUs must consult 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 work or refuse to perform it. However, the HSR must consult the PCBU first and try to resolve the matter before issuing any directive, 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.

Notifications

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 penalty notices (on-the-spot fines), improvement or prohibition notices from inspectors; prosecutions; heavy financial penalties; imprisonment; enforceable undertakings and other non-monetary sanctions. 

Variations from the model WHS legislation


NSW’s WHS legislation is substantially similar to the model WHS legislation, except that:
  • it enables unions to initiate prosecutions for Category 1 or 2 offences, if the Director of Public Prosecutions has recommended prosecution and the WorkCover has declined
  • a legal practitioner may bring a prosecution on behalf of an authorised person, and
  • it sets out arrangements for the relationship with the mining regulator.
[Last updated 1 September 2015]

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