Work Health and Safety Legislation
Work health and safety (WHS) laws in Australia are predominantly legislated and regulated at state and territory level. Nonetheless, there is substantial uniformity across Australia because almost every state and territory has adopted a federal model of WHS law. Under this system, WHS laws are largely harmonised across jurisdictions, except in Victoria which imposes similar WHS duties through the Occupational Health and Safety Act 2004. This article looks at the landscape of work health and safety legislation in Australia.
Model WHS Laws
In Australia, the federal government only has the power to make laws for some matters, predominantly those set out in the Australian Constitution. Despite this restriction, it is often preferable for the laws across Australia to be consistent. When it comes to WHS, it makes sense that workers in each jurisdiction should have the same rights and protections and that all employers have the same obligations and liabilities, especially given the mobility of the Australian workforce. This has largely been achieved by the states and territories agreeing to adopt a set of ‘model’ or ‘uniform’ laws.
The model WHS laws are made up of the model Work Health and Safety Act (that outlines broad responsibilities), model regulations (that sets out specific requirements for particular risks and hazards, such as manual handling, noise, and machinery), and model Codes of Practice (that provide practical guidance on how to meet the requirements in the Act and Regulations).
The object of the model WHS laws is to provide a nationally consistent framework to protect the health and safety of both workers and workplaces. The laws attempt to do so through:
- requiring duty holders to eliminate or minimise risks to workers and others
- providing effective and fair consultation, cooperation and representation
- encouraging employer organisations and unions to take a constructive role in improving WHS practices
- promoting the dissemination of WHS information, advice education and training
- establishing compliance with the Act through appropriate and effective compliance and enforcement measures
- ensuring proper scrutiny and review of actions taken by those with functions and powers under the Act
- creating a framework for continuous improvement and
- enhancing harmonisation of WHS laws across Australia and facilitating a consistent uniform approach to WHS.
The federal agency Safe Work Australia formulated the model work WHS laws in 2011 in consultation with the states and territories, but they only became legally binding when the Commonwealth, state and territories implemented their own legislation in the following years. The states and territories were expected to make relevant variations to ensure that the laws operated effectively in their jurisdiction, with some making more substantial variations, which is why employers must consider the WHS that applies in all the jurisdictions where their business operates. For instance, in NSW, the legislation is the Work Health and Safety Act 2011, while in the Northern Territory, it is the Work Health and Safety (National Uniform Legislation) Act 2011.
Regulatory bodies
Safe Work maintains and updates the model WHS laws but does not regulate or enforce them. Each jurisdiction has their own regulating agency (such as NT WorkSafe and SafeWork NSW) that administers WHS laws, provides advice, inspects workplaces and enforces the laws. For instance, SafeWork NSW enforces work health and safety laws in the state, by giving advice to organisations on how to improve workplace health and safety, providing registration and licences for potentially dangerous work, and investigating workplace incidents. Comcare regulating any workplaces that fall under Commonwealth jurisdiction.
Amendments
The model WHS laws are amended from time to time to account for new developments. These amendments do not automatically apply to all jurisdictions and must be passed by the Parliament in each state and territory before the amendments are enacted. For instance, the Model Work Health and Safety Regulations (Engineered Stone) Amendment 2023amended the model WHS Regulations to include a ban on the uncontrolled processing of engineered stone. The amendment is in line with the existing duty on any Persons Conducting a Business or Undertaking (PCBU) to remove or at least minimise WHS risks. Each jurisdiction implemented the ban, with variations, such as the fact that NSW allowed a transitional period for engineered stone contracts that were entered into before 31 December 2023 and installed prior to 31 December 2024. By contrast, Queensland allowed no transitional period, so there was a complete ban on sale and installation after 1 July 2024.
Compliance with work health and safety legislation in Australia is a challenge for new businesses and established organisations. This is particularly the case for businesses that operate in multiple states and territories, requiring knowledge and compliance with different regulations in each jurisdiction. The employment law team at Go To Court Lawyers can answer any questions about the applicability of work health and safety legislation in Australia. Please contact the team for any legal assistance on 1300 636 846.