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For the model WHS laws to become legally binding, they need to be implemented by a jurisdiction. The model WHS laws have been implemented in all jurisdictions except Victoria and Western Australia; Western Australia is currently consulting on options to implement elements of the model.

SWA does not enforce or regulate WHS, you must contact the work health and safety authority in your jurisdiction.

Variations between states and territories

In implementing the model WHS laws, states and territories are expected to make minor variations from the model, for example names of courts or tribunals, or interaction with local laws. These variations are required for the laws to operate effectively in each jurisdiction. In some instances states and territories have also made more substantive variations. These variations are listed below.

Amendments not implemented by jurisdictions

The model WHS laws were amended on 21 March 2016. As at 30 November 2016, no jurisdiction had implemented these amendments.

Amendments to model WHS Act

  • Introduction of a minimum notice period of 24 hours and a maximum of 14 days for union officials and those assisting 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).
  • 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).
  • Removal of the requirement for PCBUs to provide a list of HSRs to the regulator (section 74 of the model WHS Act).

Amendments to model WHS Regulations

  • Insertion of the words ‘up to’ in relation to HSR training courses; now providing for an initial course of training of up to five days and refresher training of up to one day (regulation 21 of the model WHS Regulations).
  • Minor technical amendments relating to WHS entry permit holders, high risk work, plant, asbestos removal licences and definitions.

Commonwealth laws

Date implemented

1 January 2012.

21 March 2016 amendments not yet adopted, however the Seafarers and Other Legislation Amendment Bill 2016, currently before Parliament will implement amendments in relation to:

  • technical amendments to section 12 of the WHS Act to clarify the WHS Act applies to ‘upstream duty holders’ where the activity gives rise to a potential risk to workers covered by the WHS Act
  • the removal of the requirement on businesses to provide Comcare with an up to date list of HSRs
  • the replacement of the reference to giving ‘directions’ in a Provisional Improvement Notice, with giving ‘recommendations’.

No other material variations.

Note: The Commonwealth jurisdiction is different from 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, cooperate and coordinate activities with other state/territory-based businesses that have a duty under a corresponding state/territory-based WHS law.

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.

28 November 2016 amendments not yet implemented.

21 March 2016 amendments not yet adopted.

No other material variations.

Australian Capital Territory laws

Date implemented

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 without tripartite consultation (section 274(2)).

28 November 2016 amendments not yet implemented.

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

Omits model chapters on hazardous chemicals and Major Hazard Facilities (MHFs), instead preserving arrangements under the Dangerous Substances Act 2004 (ACT) and Dangerous Substances (General) Regulation 2004 (ACT).

Additional infringeable offences in the construction chapter—in response to the Getting Home Safely inquiry.

New South Wales laws

Date implemented

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).

28 November 2016 amendments not yet implemented.

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 laws

Date implemented

1 January 2012.

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

28 November 2016 amendments not yet implemented.

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

Increased the trigger point for construction projects to $500,000 (regulation 292). The threshold is $250,000 under regulation 292 of the model WHS Regulations.

Queensland laws

Date implemented

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)).

28 November 2016 amendments not yet implemented.

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 two metres if the only control measures implemented are the provision of 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)
  • erecting and dismantling scaffolding (regulations 306P and 306Q).

Prescribes requirements of principal contractors to maintain amenities (for example, 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))
  • 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 laws

Date implemented

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 an 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 three and two days’ training during the second and third year in the role respectively compared to the up to one-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)).

28 November 2016 amendments not yet implemented.

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 three metres (not the two 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 laws

Date implemented

1 January 2013.

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

28 November 2016 amendments not yet implemented.

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

Western Australia laws

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.

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.

Victoria laws

The Victorian Government has confirmed it will not implement the model WHS laws in their current form. WorkSafe Victoria continues to enforce Victoria's existing 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.

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Last modified on Tuesday 5 September 2017 [6566|59006]