What are the National Work Health and Safety (WHS) laws?
National Model Work Health and Safety (WHS) laws (Act and Regulations) were approved by the Workplace Relations Ministers’ Council between 2010 and 2011. These laws serve as the model for harmonised laws. All States, Territories and the Commonwealth, as part of COAG (Council of Australian Governments), agreed to make WHS laws that mirror the model laws and pass these though their individual parliaments with an agreed effective date of 1 January 2012. Under the Australian system of government, the States and Territories will continue to have responsibility for enforcing their finalised laws.
Have the WHS laws been adopted in every jurisdiction?
The Model WHS laws have been adopted with some amendments by seven of the nine jurisdictions, as outlined below:
- Effective 1 January 2012: The Commonwealth (for Federal Government employees and Comcare self-insurers); New South Wales; Queensland; Northern Territory; and ACT
- Effective 1 January 2013: Tasmania; South Australia
In October 2014, the Western Australian Government released a “green bill” for public comment, which closed on 30 January 2015. Given the process required to finalise the bill, the laws are unlikely to be effective prior to 1 January 2016.
The previous Victorian Government had stated that they will not proceed with the Model WHS laws in their current form. The current Victorian government have not made any public comment on their position in relation to harmonisation. WorkSafe Victoria is continuing to work on a review of their OHS regulations which are due to expire in 2017. A document comparing key provisions of the Victorian OHS legislation with the model WHS laws has been compiled by Ai group. This information demonstrates that some elements of the model WHS laws can be applied within the current Victorian OHS legal framework.
It should be noted that the regulations for mining have been approved by Safe Work Australia, but have not been signed off by all the relevant state/territory ministers. Jurisdictions are progressively making decisions about adopting some or all, of the mining provisions. South Australia and the Northern Territory have incorporated the Mines chapter into their WHS regulations; New South Wales has adopted the Mines chapter as a separate regulation under the Work Health and Safety (Mines) Act. It should be noted that each of these jurisdictions has made significant changes to the regulations as part of this adoption.
Where the laws have been introduced are they exactly the same as the Model WHS laws?
Some minor variations have been required to enable the laws to align with local arrangements, i.e. legal systems, appeal frameworks etc. The Model WHS Act and Regulations have “jurisdictional notes” which allow for these changes to be made; further, as the laws are subject to parliamentary process, some changes occurred during this process.
The most significant variations are:
New South Wales have included a provision which allows for unions to initiate prosecutions in particular circumstances; the scope of this is far narrower than existed in previous NSW laws.
Queensland maintains separate laws for Electrical Safety. The Electrical Safety Act has been amended to mirror the WHS Act and the Electrical Safety Regulations have been established under the Electrical Safety Act, rather than the WHS Act. Queensland has established the Safety in Recreational Water Activities Act which mirrors the WHS Act, to enable them to continue to regulate recreational diving, which has not been picked up in the Model WHS laws. In May 2014, Queensland made some further amendments to their laws, predominantly related to union right of entry and health and safety representatives. The Queensland government has introduced legislation into parliament with the intention of reversing the May 2014 amendments; some other minor amendments are also included in this Bill.
The ACT has maintained separate laws for dangerous goods. Regulations for hazardous chemicals, asbestos and major hazard facilities are covered by the dangerous substances laws, rather than the WHS laws. The dangerous substances laws are currently under review. In late 2014 the ACT adopted the asbestos regulations within their WHS laws, with some amendments which increase the obligations on duty holders.
South Australia has made some amendments to the practical application of some provisions: establishing a role for the regulator in union right of entry; maintaining previous levels of training for elected health and safety representatives (more training than prescribed under the WHS laws); and clarifying who can assist an HSR. Other changes relate to: inserting a “control” test to clarify what is otherwise implied in the test of what is reasonably practicable; altering provisions related to self-incrimination; and outlining a detailed process for Codes of Practice to be approved and adopted.
How do I access the legislation that applies in my jurisdiction?
Formal copies of the Act, Regulations and Codes of Practice made in your state/territory can be accessed via the website of the WHS regulator in your jurisdiction.