Frequently Asked Questions: General questions on the model work health and safety laws

  1. Why do we need model work health and safety laws?
  2. How are work health and safety laws being harmonised?
  3. When will the changes come into effect?
  4. What are the key changes under the new work health and safety laws?
  5. How was the model Work Health and Safety Act developed?
  6. Where can I find the current version of the model Work Health and Safety Act?
  7. What transitional arrangements will be put in place?
  8. Will there be a national regulator?
  9. Will there be a consistent approach to enforcing the work health and safety laws?
  10. What is the development process for the model Work Health and Safety Regulations and model Codes of Practice?

 

Why do we need model work health and safety laws?

The Commonwealth and each state and territory government have agreed to harmonise their work health and safety laws, including Regulations and Codes of Practice, so they are similar in each jurisdiction.

The Commonwealth, states and territories are responsible for making and enforcing their own work health and safety laws. Although there are many similarities between the laws there are also some differences that can cause confusion. Australian workers should be entitled to the same work health and safety standards, regardless of the jurisdiction in which they operate.

This regulatory inconsistency is addressed through an Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA) where, for the first time, governments from each state and territory and the Commonwealth have formally committed to harmonise work health and safety laws by developing and adopting a model Work Health and Safety Act supported by model Regulations and model Codes of Practice. The intention is to deliver the same work health and safety protection to all Australians.

How are work health and safety laws being harmonised?

Safe Work Australia is responsible for developing model work health and safety laws. Safe Work Australia is an independent statutory body established on 1 November 2009, under the Safe Work Australia Act 2008. Its primary function is to progress the model work health and safety laws in partnership with state and territory governments, employers and workers, who are represented as Safe Work Australia Members.  

Each jurisdiction will go through the process of enacting its own legislation which mirrors the model laws. In some jurisdictions minor but necessary variations may be made to ensure consistency with relevant drafting protocols and other laws and processes.

When will the changes come into effect?

Under the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA) the Commonwealth and each state and territory is required to enact laws that reflect the model work health and safety laws by the end of December 2011. For an update on each jurisdiction’s progress in implementing the new laws, see the table Jurisdictional progress on the model work health and safety laws.

A total of 11 model Codes of Practice have been developed to be implemented by 1 January 2012. Development and implementation of further model Codes of Practice will continue beyond January 2012.

What are the key changes under the new work health and safety laws?

The key changes under the new work health and safety laws include:

  • The duties of care are not defined by the nature of employment relationship. This means that the term ‘employer’ currently applied in most occupational health and safety laws is replaced with the term ‘person conducting a business or undertaking’ and ‘employee’ is replaced with a broadly defined term of ‘worker’.
  • The term ‘worker’ includes employees, volunteers, contractors, sub-contractors, apprentices, work experience students and outworkers.
  • The term ‘workplace’ in most jurisdictions will be broadened to include any place where a worker goes or is likely to go while at work.
  • There are positive duties for ‘officers’ to exercise ‘due diligence’ to ensure the person conducting a business or undertaking complies with its duty of care. This is a new way of expressing officers’ responsibilities under current law. Currently some Occupational Health and Safety Acts attribute liability to officers where a corporation is in breach of a duty and they have a reverse onus of proof to show that they did what was reasonably practicable or that they had no influence in relation to the breach. Under the new work health and safety laws there is no attributed liability.
  • A new duty to consult, co-operate and co-ordinate activities with other duty holders has been introduced – this duty aims to address situations where more than one duty holder is responsible for the same work health and safety matter to ensure that duty holders work together to control work health and safety risk.
    •

     

    How was the model WHS Act developed?

    The model WHS Act is the result of a comprehensive national review into work health and safety laws across Australia, which involved substantial public consultation.

    The first draft of the model WHS Act was based on the decisions of the Workplace Relations Ministers' Council (WRMC) in relation to the national review findings. 

    The first draft of the model WHS Act was released for public comment for six weeks in September 2009. The 480 submissions received during this period informed many of the amendments to the first draft. The amended draft was endorsed by WRMC in December 2009.

    Where can I find the current version of the model WHS Act?

    The final version of the model Work Health and Safety Act is available to view and download.

    What transitional arrangements will be put in place?

    Appropriate transitional arrangements will be put in place in each jurisdiction.

    All jurisdictions have agreed to a set of principles which will ensure that transitional arrangements are consistent across Australia. However, some variations are inevitable as each jurisdiction will be transitioning from a different work health and safety system.

    For more information on the transitional arrangements see:
    Transitional arrangements [link to page]
    Document on transitional principles – Work Health and Safety Act
    Document on transitional principles – Work Health and Safety Regulations

    Will there be a national regulator?

    No, the Commonwealth and each state and territory will continue to regulate the administration of laws in their jurisdiction.

    View the contact details of the Commonwealth, state and territory regulators.

    Will there be consistent approach to enforcing the work health and safety laws?

    Under the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA), Safe Work Australia is also responsible for developing a National Compliance and Enforcement Policy  to complement the harmonised work health and safety laws. The policy aims to ensure that work health and safety regulators take a nationally consistent approach to compliance and enforcement. The National Compliance and Enforcement Policy includes the criteria that will be used to guide enforcement decision making; and outline the circumstances in which the regulator may use specific enforcement tools that are mandated under the model Work Health and Safety Act.

    How are the model WHS Regulations and model Codes of Practice being developed?

    Safe Work Australia established a Strategic Issues Group on Occupational Health and Safety (SIG-OHS) to develop the model Work Health and Safety (WHS) Regulations based on a three-stage process as outlined in the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. Stage one involved the development of regulations covering those areas currently regulated in all jurisdictions. Stage two included consideration of matters included in some, but not all, jurisdictions. Stage three involved identifying those matters requiring considerable policy development.

    The SIG-OHS consists of representatives from each state, territory and the Commonwealth, as well as representatives from employer and union organisations. The draft model WHS Regulations and first stage Codes of Practice were released for public comment in December 2010. The public comment period closed on 4 April 2011.

    Safe Work Australia received a total of 1343 submissions. The model WHS Regulations and first stage Codes of Practice were amended, taking into account public comment and following further consideration by the SIG-OHS members, Safe Work Australia members and the Parliamentary Counsels’ Committee.
    The model WHS Regulations and first stage Codes of Practice were endorsed in principle by the Workplace Relations Ministers' Council in August 2011.