Safe Work Australia is currently undertaking a review of the model WHS (Work Health and Safety) laws. The public consultation period, as part of the review process, will end on November 3 2025.
Why the need for a review?
WHS legislation is enacted by each state, territory and the Commonwealth. The adoption of WHS laws endeavoured to harmonise this legislation across Australia.
The last review of the model WHS laws occurred in 2018 and found that harmonisation had mostly been achieved but many jurisdictions had made minor deviations from the model legislation. Victoria has yet to adopt the WHS laws and retains its 2004 OHS (Occupational Health and Safety) legislation.
Some of these deviations have arisen from independent reviews within the jurisdictions. These independent reviews have come out of statutory requirements, election commitments, emerging hazards or as the result of significant incidents.
Therefore, over a period of time and as a result of these reviews, variations to the model legislation have been made such that legal requirements can differ between jurisdictions.
The review intends to consider whether changes made in each state should be included in the model legislation and therefore adopted by each jurisdiction. It also wants to consider whether the model legislation is still meeting the current needs of workplace safety. That is, workplace contexts are evolving and how can the WHS laws be updated to reflect this evolution.
This blog does not intend to list all the differences and proposed changes to the WHS legislation. For further information on the Best Practice Review go to the Safe Work Australia site at: https://consult.swa.gov.au/best-practice-review
Differences in the WHS Act
There are a number of differences in the implementation of WHS legislation between the jurisdictions. The following are a few examples:
Western Australia (WA) has included entities that provide services in relation to work health and safety (section 26A) as additional duty holders. This includes entities that provide advice, conduct testing or deliver training in relation to WHS. This provision is in WA only.
The original model WHS Bill made no provisions for the penalty of industrial manslaughter. In 2023 this was included in the model Bill to acknowledge that a number of jurisdictions had already added this provision in. This had no impact in WA as it had already been included in the same section (30A) as the model law. Some states that included industrial manslaughter, prior to the change, had entered it in different sections, e.g. Northern Territory – section 34B, Queensland – section 34C, 34D.
A number of states have made amendments to consultation requirements under the Act, including enhancing the role of HSRs (Health and Safety Representatives). Some additions made by jurisdictions include:
- Requiring PCBUs (person’s conducting a business or undertaking) to proactively provide workers with information about HSRs and work groups.
- Prohibiting PCBUs from hindering the HSR election process.
- Strengthening the role of unions in representation for WHS issues.
- Requiring HSRs to sit on HSCs (Health and Safety Committees) – Queensland
- PCBU’s are to notify their regulator when issued a PIN (Provisional Improvement Notice) by a HSR – Queensland & NSW
- Requiring the PCBU to notify the regulator of elected HSRs – All jurisdictions except WA
Part 7 of the WHS Act “Entry by a WHS Permit Holder” has not yet been adopted in WA and has been retained in Industrial Relations legislation.
WHS Regulations
The model WHS legal framework consists of a WHS Act supported by a single set of WHS Regulations. In WA there is a WHS Act supported by 3 sets of regulations – general, mines and PAGEO (petroleum and geothermal operations).
The model WHS Regulations include Chapter 10 which details the requirements for mines. In WA the key difference between the general and mines regulations is the omission or inclusion of Chapter 10. In addition to this WA has made significant additions to Chapter 10. Queensland, NSW (New South Wales), Tasmania, ACT (Australia Capital Territory) and the Commonwealth have not included Chapter 10 in their WHS Regulations. In some of these jurisdictions, mining safety is governed under separate legislation.
In the model WHS Regulations, Chapter 9 provides requirements for major hazard facilities. WA has yet to adopt Chapter 9. Major hazard facility provisions in WA are detailed in existing dangerous goods legislation and the WHS PAGEO Regulations.
Differences in the WHS Regulations
Below are some of the specific differences in the WHS Regulations between jurisdictions. Once again, this is not a comprehensive list.
- WA includes the prohibition of smoking, vaping and e-cigarettes in enclosed workplaces.
- Queensland includes the prevention of sexual harassment and sex or gender-based harassment in addition to the psychosocial risk management detailed in the model regulations.
- NSW has specific requirements in relation to delivery drivers and online platforms.
- Some jurisdictions have introduced their own categories for high-risk licences. For example, WA requires a high-risk license where earth moving machinery is being used as a crane.
- Construction and high-risk construction work have specific provisions under WHS regulations. Different jurisdictions have adopted dissimilar definitions for what is a construction project. For example, in WA a construction project is where 5 or more persons are likely to be working on a construction site. In NT (Northern Territory) a construction project is where the cost of the construction work will be $5000,00 or more.
- Some states, such as WA, require a license for demolition work whereas other jurisdictions do not.
Codes of Practice and Australian Standards
In WA, the public must have free access to approved Codes of Practice and information contained within them without breaching copyright (section 274). This section has potential ramifications for Australian Standards that are referenced in a code of practice but are required to be purchased at a cost through a commercial entity.
The 2018 review also recommended a review of standards referenced in the regulations to determine their applicability and potential removal or replacement. This work has only been partially completed.
Contribute to the Review
Periodic review of legislation is important to ensure that it meets the needs of an ever-changing work environment.
If you would like to contribute to the review you can share your opinions via the Safe Work Australia Consultation Hub at: https://consult.swa.gov.au/best-practice-review.