Jurisdictional progress on the model Work Health and Safety laws

The model Work Health and Safety (WHS) laws have been implemented in all jurisdictions other than Victoria and Western Australia. Western Australia is currently consulting on options for implementing elements of the model.

The table below summarises key variations from the model WHS laws implemented by jurisdictions. It does not cover administrative differences between jurisdictions (for example, names of courts or tribunals, or interaction with local laws), simple differences in drafting or any matters that fall within the ‘jurisdictional notes’.

Amendments to the model WHS laws not implemented by jurisdictions

The model WHS laws were substantially amended on 21 March 2016. The key amendments are listed below. As at 1 July 2016, no jurisdiction has implemented any of these amendments.

Model WHS Act amendments

  • The introduction of a minimum notice period of 24 hours and a maximum of 14 days for union officials and persons assisting health and safety representatives (HSRs) when entering a workplace (sections 68 and 117 of the model WHS Act)
  • An increase to penalties associated with contravening the conditions of WHS entry permits from $10,000 to $20,000 (section 123 of the model WHS Act)
  • A clarification that provisional improvement notices issued by HSRs may include ‘recommendations’ to remedy a contravention rather than ‘directions’ (section 93 of the model WHS Act), and
  • The removal of the requirement for persons conducting a business or undertaking (PCBUs) to provide a list of HSRs to the regulator (section 74 of the model WHS Act).

Model WHS Regulations amendments

  • The insertion of the words ‘up to’ in relation to HSR training courses; now providing for an initial course of training of up to 5 days and refresher training of up to 1 day (regulation 21 of the model WHS Regulations), and
  • Minor technical amendments relating to WHS entry permit holders, high risk work, plant, asbestos removal licences and definitions.
View table full screen
Jurisdiction Legislation Date
implemented
Variations​
Commonwealth Work Health and Safety Act 2011 (Cth) 1 January
2012

21 March 2016 amendments not yet adopted. No other material variations.

Note: The Commonwealth jurisdiction is different from the others. The laws need to deal with potential overlap with state/territory WHS laws. In general the Commonwealth WHS laws:

  • apply to businesses and undertakings of the Commonwealth, Commonwealth public authorities and non-Commonwealth licensees—including if the work is carried out overseas
  • require Commonwealth duty holders to consult, co-operate and co-ordinate activities with other state/territory-based businesses that have a duty under a corresponding state/territory-based WHS law, and
  • make special provision to deal with national security, defence and Australian Federal Police operations.
For more information on features unique to the Commonwealth jurisdiction see Consultation Paper—Commonwealth Work Health and Safety Bill 2011.
Commonwealth

Work Health and Safety Regulations 2011 (Cth)

1 January
2012
21 March 2016 amendments not yet adopted. No other material variations.
Australian Capital Territory (ACT) Work Health and Safety Act 2011 (ACT) 1 January
2012

21 March 2016 amendments not yet adopted. Other key variations:

  • Enables the Minister to approve codes of practice for the management, control or removal of asbestos or asbestos containing material (section 274(2)).
Australian Capital Territory (ACT) Work Health and Safety Regulation 2011 (ACT) 1 January
2012

21 March 2016 amendments not yet adopted. Other key variations:

New South Wales (NSW)

Work Health and Safety Act 2011 (NSW)

1 January 2012

Laws relating to officers' due diligence duties took effect in June 2011

Note: The laws in NSW deal with co-regulatory arrangements as there are two regulators for WHS – one for mining and another for all other workplaces.

21 March 2016 amendments not yet adopted. Other key variations:

  • The Secretary of an industrial organisation of employees can bring proceedings for Category 1 or Category 2 offences if the regulator has declined to follow the advice of the Director of Public Prosecutions to bring proceedings (section 230(3)).
  • Easing requirements for information sharing between the general WHS regulator and the regulator under the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) (section 271A).
New South Wales (NSW) Work Health and Safety Regulation 2011 (NSW) 1 January 2012

21 March 2016 amendments not yet adopted. Other key variations:

  • Enhanced security requirements for MHFs—including requirements for MHF operators to consult with, and have regard to the advice of NSW Police (regulation 558A).
Northern Territory (NT) Work Health and Safety (National Uniform Legislation) Act 2011 (NT) 1 January 2012

21 March 2016 amendments not yet adopted. No other material variations.

Northern Territory (NT Work Health and Safety (National Uniform Legislation) Regulations (NT) 1 January 2012

21 March 2016 amendments not yet adopted. Other key variations:

  • Increased the trigger point for construction projects to $500,000 (regulation 834). The threshold is $250,000 under regulation 292 of the model WHS Regulations.
Queensland (Qld) Work Health and Safety Act 2011 (Qld) 1 January 2012

21 March 2016 amendments not yet adopted. Other key variations include:

  • Omits the pre-requisite for tripartite consultation before a code of practice can be made, varied or revoked for purposes of the Act (section 274).
  • Before entering a workplace for the purposes of consulting and advising workers, a WHS entry permit holder must give notice to the person in management or control of the workplace as well as the relevant PCBU (section 122(1)(b)).
Queensland (Qld) Work Health and Safety Regulation 2011 (Qld) 1 January 2012

21 March 2016 amendments not yet adopted. Other key variations:

  • Enables the regulator to keep a public register of high risk work licences and accreditations to conduct assessments for high risk work (regulation 141A).
  • Omits audiometric testing regulations.
  • Omits Part 4.7 (Electricity), instead making provision under the Electrical Safety Act 2002 (Qld) and Electrical Safety Regulation 2013 (Qld).
  • Requires additional information in safe work method statements dealing with risks of falls over 2 metres if the only control measures implemented are the provision of personal protective equipment (PPE) or administrative controls (regulation 299(4)).
  • Prescribes additional risk controls for construction work involving:
    • risk of falls and falling objects (regulations 306B to 306J and 315B to 315M)
    • using ladders and platforms (regulations 306K to 306O), and
    • erecting and dismantling scaffolding (regulations 306P and 306Q).
  • Prescribes requirements of principal contractors to maintain amenities (e.g. toilets, meal areas, drinking water and washing facilities) for ‘construction work’ (regulation 315A, Schedule 5A).
  • Requires asbestos registers to be kept for buildings constructed before 31 December 1989 rather than 31 December 2003 as prescribed by the model WHS Regulations (regulations 425 and 447).
  • Modifies the Class B asbestos removal licence requirements by:
    • providing that asbestos removal work carried out by more than one person is supervised by a nominated asbestos removal supervisor (regulations 459(b), 529(b))
    • omitting requirements to formally nominate a supervisor to oversee the removal (regulations 494, 466(4)(b), 507(1), 518, 520(1)(b), (2)), and
    • enabling any person with a relevant certification to apply for a class B asbestos removal licence (regulations 494, 499, 518).
  • Provides for inspectors to issue an improvement notice or prohibition notice to the licenced asbestos removalist if a clearance certificate has been issued, but the site is not free of visible asbestos contamination. This notice requires that the licenced asbestos removalist take steps necessary to ensure the asbestos removal area, and the area immediately surrounding it, are free from visible asbestos contamination (regulation 474A).
South Australia (SA) Work Health and Safety Act 2012 (SA) 1 January 2013

21 March 2016 amendments not yet adopted. Other key variations:

  • Provides the duty to manage health and safety risks only applies to the extent the person has capacity to influence and control the matter (section 17(2)).
  • Prescribes who a HSR can request assistance from, that is—another worker at the workplace, a person involved in the management of the relevant business or undertaking or a consultant who has been approved by one of the specified persons or bodies (section 68(4)).
  • Increases HSRs’ training entitlement to 3 and 2 days’ training during the second and third year in the role respectively compared to the up to 1-day refresher course permitted under the model WHS Regulations. If re-elected, all training entitlements can be re-taken as if they had no training at all (section 72(9)).
  • Requires WHS entry permit holders to give consideration to whether it is reasonably practicable to notify the regulator of proposed entry (section 117(3).
  • If not accompanied by an inspector at the time of entry, a WHS entry permit holder exercising a power of entry must furnish a report on the outcome of their inquiries to the regulator and the regulator must give consideration to what action should be taken on account of any suspected contravention outlined in the report (section 117(6)).
  • Provides that the right of a WHS entry permit holder to require copies of a document that is directly related to a suspected contravention is subject to direction by an inspector (sections 118(2)(a), 120(6)).
  • Retains the privilege against self-incrimination for any individual when an inspector enters a workplace (section 172).
  • Requires that the Consultative Council consult with the Small Business Commissioner before a code of practice that may affect small business is recommended for approval, variation or revocation (section 274(3)).
  • An approved code of practice or the variation of a code of practice is subject to disallowance by the South Australian Parliament (section 274(8)).
South Australia (SA) Work Health and Safety Regulations 2012 (SA) 1 January 2013

21 March 2016 amendments not yet adopted. Other key variations include:

  • Notice and reporting requirements are prescribed in relation to WHS entry permit holders’ entry under section 117 of the WHS Act (regulation 28).
  • Safe work method statements are required to address risks of a person falling more than 3 metres (not the 2 metres specified in the model WHS Regulations) (regulation 291(a)).
  • Extending air monitoring requirements for Class A asbestos removal work to Class B asbestos removal as well, until 1 January 2017 (regulation 726).
  • Regulation 348 in the model WHS Regulations, requiring the regulator to be notified if manifest quantities of hazardous chemicals are to be exceeded, has not been adopted.
Tasmania (Tas)

Work Health and Safety Act 2012 (Tas)

1 January 2013 21 March 2016 amendments not yet adopted. No other material variations.
Tasmania (Tas)

Work Health and Safety Regulations 2012 (Tas)

1 January 2013 21 March 2016 amendments not yet adopted. No other material variations.
Western Australia (WA) Work Health and Safety Bill 2014 (WA)  

The Work Health and Safety Bill 2014 (WA) (the Green Bill), was released for public comment in early 2015.

The Green Bill contains the core provisions of the model WHS Act, with some amendments. It also excludes a number of the model provisions. This Bill is being considered by the WA government.

For further information, please visit the Worksafe WA website at www.commerce.wa.gov.au/WorkSafe.
Western Australia (WA) Occupational Health and Safety Regulations 1996 (WA)  

WA is considering options to implement elements of the model WHS Regulations. A public consultation process is currently underway to enable all participants in WA workplaces to have input into the new legal framework.

For further information, please visit the WorkSafe WA website at www.commerce.wa.gov.au/WorkSafe.
Victoria (Vic) Occupational Health and Safety Act 2004 (Vic) The Victorian Government announced it would delay harmonisation. For further information visit WorkSafe Victoria.

The Victorian Government has confirmed that it will not be implementing the model WHS laws in their current form. WorkSafe Victoria continues to enforce Victoria's existing occupational health and safety (OHS) legislation. This means that Victoria's workplaces need to refer to Victoria's codes and guidance materials for information about how to comply with Victoria's OHS legislation.

For further information, please visit the WorkSafe Victoria website at www.worksafe.vic.gov.au/

Last updated on 1 July, 2016.

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