Overview of Work Health and Safety (WHS) Laws in Australia

All jurisdictions have their own WHS laws that are modelled after the Work Health and Safety Act 2011 since 2012.

The Model Law: Work Health and Safety Act 2011

Most states and territories are now governed by the Work Health and Safety Act 2011, which is the model law that “forms the basis of the WHS Acts that have been implemented in most jurisdictions across Australia.”  

The model law aims to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces.  

It took effect on 1 January 2012 in: 

• Australian Capital Territory 

• New South Wales 

• Northern Territory 

• Queensland 

• South Australia 

• Tasmania 

• The Commonwealth 

In 2020, Western Australia voted to adopt the WHS Act 2011 and replace the Occupational Safety and Health Act 1984 with the Work Health and Safety Act 2020 (WA). The law was assented November 2020 and took effect in March 2022.

Victoria enforced the Occupational Health and Safety Act 2004 until the Occupational Health and Safety and Other Legislation Amendment Act 2021 took effect in September 2021.

Amendments to the model law have been made leading up to its current version dated 9 December 2019. These amendments don’t automatically apply in a jurisdiction. 

While WHS laws and their implementation vary by state and territory, they are harmonised by a government statutory body that is Safe Work Australia (SWA), which was established in 2008. They also publish WHS statistics, usually during the National Safe Work Month in October.

June 2022 update: 

Safe Work Australia has published an update to the model WHS Act and Regulations: 

• Updated model WHS Act and its accompanying explanatory memorandum 
• Updated model WHS Regulations and its accompanying explanatory statement 

According to the SWA website: 

“For the model WHS Act to have effect in a jurisdiction it must be implemented in that jurisdiction. Amendments to the model WHS Act do not automatically apply in a jurisdiction.” 

According to SWA’s email announcement, it includes amendments to: 

• The model WHS Regulations to deal with psychosocial risks (recommendation 2) 
• Work group provisions (recommendation 7b) 
• Health and safety representative (HSR) training (recommendation 10) 
• Remove the 24-hour notice period for entry permit holders (recommendation 15) 
• Align the process for issuing service of notices to provide clarity and consistency (recommendation 16) 
• Enable inspectors to require production of documents and answers to questions within 30 days of any inspector’s entry to a workplace (recommendation 17) 
• Clarify that a WHS regulator’s power to obtain information relevant to investigations of potential breaches of the model WHS laws has extra-territorial application (recommendation 18) 
• Clarify the circumstances in which WHS regulators can share information between jurisdictions (recommendation 19) 
• Include gross negligence as a fault element in the Category 1 offence (recommendation 23a) 
• Improve regulator accountability for investigation progress (recommendation 24) 
• Prohibit insurance for WHS penalties (recommendation 26) 
• Improve record keeping and operator training for amusement devices and passenger ropeways (recommendation 28) 
• Compliance with Standards not mandatory unless specified (recommendation 31b) 
• Give effect to recommendations that are minor or technical in nature

What is Safe Work Australia (SWA)?

SWA has been working in partnership with governments, employers and employees to advance national policies relating to work health and safety (WHS) and workers’ compensation. 

What Safe Work Australia does 

SWA leads the development of national policy to improve work health and safety and workers’ compensation. Specifically, it: 

• Develops and evaluates the model WHS legislative framework 

• Develops the national WHS compensation policy 

• Undertakes research and collects, analyses and reports data relating to WHS 

• Raises awareness of WHS as a key issue in the community 

• Improves WHS by understanding what influences Australian workplace cultures and putting in place mechanisms to effect change 

• Unifies WHS laws throughout Australia 

• Identifies opportunities for improvement in workers’ compensation arrangements. 

What Safe Work Australia does not do 

SWA does not regulate or enforce WHS laws. The Commonwealth, States and Territories are responsible for adopting, regulating and enforcing WHS laws in their respective jurisdictions. 

Your WHS responsibilities as an employer

SWA has broadly outlined your duties under WHS laws. It covers persons conducting a business or undertaking (PCBUs), small business owners, officers and workers.

Business.gov.au has a more practical and specific definition:

“As a business owner, you have a legal responsibility to manage health and safety in your workplace. To do this, it's important to understand the health and safety requirements that apply to your business type and location.” 

Furthermore, it also specifies that businesses must manage the risks to the health and safety of their workers, customers, visitors, and suppliers. This also covers PCBUs. 

According to the law, you should: 

• Provide a safe work environment 

• Provide and maintain safe machinery and structures 

• Provide safe ways of working 

• Ensure safe use, handling and storage of machinery, structures, and substances 

• Provide and maintain adequate facilities 

• Provide any information, training, instruction or supervision needed for safety 

• Monitor the health of workers and conditions at the workplace 

Furthermore, you must: 

• Take “a constructive role in improving WHS practices” 

• Promote “information, education and training” on WHS

Comcare offers a more comprehensive regulatory guide on the primary duty of care:

The 'health and safety duties' found in sections 19 to 29 are the core duties imposed by the WHS Act, which includes the so-called 'primary duty of care' imposed on PCBUs:

• Primary duty of care towards workers: Section 19(1) requires a PCBU to ensure the health and safety of (1) workers engaged, or caused to be engaged, by the person; and of (2) workers whose activities in carrying out work are influenced or directed by the person while the workers are at work in the business or undertaking.
   
• Primary duty of care towards other persons: Section 19(2) requires a PCBU to ensure the health and safety of other persons -- for example, persons other than the workers protected under section 19(1) are not put at risk from work carried out as part of the conduct of the business or undertaking.
   
• Primary duty of care (specific measures): Section 19(3) requires a PCBU to ensure:
  • The provision and maintenance of a work environment without risks to health and safety
  • The provision and maintenance of safe plant and structures
  • The provision and maintenance of safe systems of work
  • The safe use, handling and storage of plant, structures and substances
  • The provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities
  • The provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
  • That the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking
     
• Primary duty of care (accommodation): Section 19(4) creates a specific duty where a worker occupies accommodation that is owned by, or under the management or control of, a PCBU, and the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available. The PCBU is required, so far as is reasonably practicable, to maintain the premises so that the worker is not exposed to risks to health and safety.
   
• Primary duty of care (self-employed persons): Section 19(5) specifies that a self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.
   

Compliance:  A PCBU who does not comply with the primary duty of care imposed on it under section 19 commits an offence. More specifically, in relation to the primary duty of care owed by a PCBU under section 19:

• The PCBU commits a Category 1 offence if the PCBU, without reasonable excuse, engages in conduct that exposes an individual to whom the duty is owed to a risk of death or serious injury or illness and the PCBU is reckless as to the risk to an individual of death or serious injury or illness.
• The PCBU commits a Category 2 offence if the PCBU fails to comply with the duty and the failure exposes an individual to a risk of death or serious injury or illness.
• The PCBU commits a Category 3 offence if the PCBU fails to comply with the duty.

Category 1 and 2 offences both involve the exposure of an individual to a risk of death or serious injury or illness. It is not a component of these offences that any harm to the individual (whether death, serious injury or illness or otherwise) has actually occurred. Category 1 offences involve the additional element of recklessness.

List of WHS laws in place in each state and territory

SWA explains that "some jurisdictions have made minor variations to make sure the legislation is consistent with their relevant drafting protocols and other laws and processes.” They have summarised the legal variations between jurisdictions in this comprehensive cross-comparison table. 

Business.gov.au says that “each state has its own WHS laws and a regulator to enforce them.”  

The WHS framework for each state includes: 

• Act: Outlines your broad responsibilities 

• Regulations: Set out specific requirements for particular hazards and risks, such as noise, machinery, and manual handling 

• Codes of practice: Provide practical information on how you can meet the requirements in the Act and Regulations 

• Regulating agencies (regulator): Administers WHS laws, inspects workplaces, provides advice and enforces the laws. (Some states, such as NSW, have a different regulator for workers' compensation.) 

For your convenience, here are the links to their respective websites:

*We will update this information following Victoria's enforcement of Occupational Health and Safety and Other Legislation Amendment Act 2021