The Model Work Health and Safety Act was endorsed by the Workplace Relations Ministers’ Council (representing all Australian jurisdictions) and is the template for harmonised WHS legislation in each jurisdiction.

The key duties and concepts common to WHS Acts in all the jurisdictions that have adopted the model legislation are outlined below. The full text of the Model WHS Act can be viewed at Safe Work Australia, but here is your quick guide to the model Work Health and Safety Act.

Objectives of the Workplace Health and Safety Act

The main aim of the WHS Act is to provide a balanced and nationally consistent framework to secure the health, safety and welfare of workers and workplaces.

This is to be achieved by:

  • protecting workers and others from harm to their health, safety and welfare by elimination or minimisation of risks arising from work (or specified substances or plant)
  • providing for fair and effective workplace representation (e.g. HSRs), consultation, co-operation and issue resolution on work health and safety
  • encouraging unions and employer organisations to assist in achieving a healthier and safe workplace
  • promoting the provision of health and safety advice, information, education and training
  • effective and appropriate use of compliance and enforcement measures
  • monitoring and review of persons with duties and powers under the WHS Act
  • providing a framework that ensures continuous improvement and higher standards for work health and safety, and
  • maintaining and strengthening the national harmonisation laws and facilitating a consistent national approach to work health and safety.

Health and safety duties

PCBUs’ duties 

The WHS Act imposes duties on all parties who can contribute to the successful management of workplace risks. The key duty-holders are ‘persons conducting a business or undertaking’ (PCBUs – including employers, sole traders, principal contractors and others), and duties are also imposed on designers of plant, structures or substances; manufacturers, importers and suppliers of equipment and substances; and people who erect, install 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.

If more than one person has a duty in relation to the same matter, 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 must be managed so far as is ‘reasonably practicable’. This depends on a number of factors, including 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.

The higher the risk and the greater its potential harm, the greater the expectation that the duty-holder will address it.

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 committees 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 and when making decisions about WHS procedures or facilities for workers’ welfare or proposing changes that may affect health or safety.

An appropriately trained HSR who believes the Act is being contravened and the issue is ongoing may, after consultation with the person responsible for the contravention, issue a provisional improvement notice requiring the problem to be rectified.

Right to cease work

A worker may cease or refuse to carry out work if they have a reasonable concern that the work poses an imminent, serious risk to health and safety. In jurisdictions with WHS laws (and in Victoria), an HSR with such concerns 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.

Notification

The WHS regulator must be notified of serious injuries and incidents. 

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; legal proceedings; heavy fines; imprisonment; enforceable undertakings and other non-monetary sanctions. 

Model WHS acts regulations and codes of practice

The Model WHS Regulations form the template for harmonised regulations in the various jurisdictions. The Regulations flesh out the requirements supporting the objects of the Act.

There is some variation in the details of the Regulations across the different jurisdictions, though consistent numbering of the core provisions has generally been maintained.

Model WHS codes of practice have been developed to provide guidance in implementing the WHS legislation. Twenty-seven model codes have been approved by Safe Work Australia and in most cases, these have been adopted by the jurisdictions that have implemented WHS legislation. To have legal effect in a jurisdiction, a model code of practice must be approved in that jurisdiction. These codes can be viewed on the website of Safe Work Australia or the relevant WHS regulator.

Note that some jurisdictions have adopted the model WHS codes and also retained some of their own pre-existing codes (e.g. Qld, NSW, ACT) or developed new additional codes.