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Businesses operating in New South Wales, Northern Territory, Queensland, the Australian Capital Territory and the Commonwealth are subject to the Work Health and Safety Act (WHS Act).

The WHS Act and WHS Regulations were implemented in the ACT, NSW, NT and Queensland in 2011 and in SA and Tasmania in 2012.

Businesses operating in Victoria are subject to the Occupational Health and Safety (OHS) Act 2004, and those in Western Australia are subject to the Occupational Safety and Health (OSH) Act 1984.

In 2011, the model Work Health and Safety (WHS) Act was developed, based largely on Victorian health and safety laws, after taking submissions from a wide range of government and business organisations.

The WHS Act imposes a general duty of care on persons conducting a business or undertaking to take all reasonably practicable steps to ensure the health and safety of workers and others affected by their undertaking.

In addition, the WHS Act sets out consultation obligations of PCBUs - person, corporation, partnership or association that conducts a business or undertaking. The business or undertaking can either be for profit or not-for-profit, and may be conducted by a single person or by multiple people, e.g. in partnerships, each partner is a PCBU.

It also outlines the general duties of care of manufacturers, designers, suppliers, officers and workers. A worker is defined under the WHS Act as person who carries out work in any capacity for a PCBU, including:

  • an employee of the PCBU;
  • a contractor or subcontractor;
  • an employee of the contractor or subcontractor;
  • an employee of a labour hire company who has been assigned to work for the PCBU;
  • an outworker;
  • an apprentice or trainee;
  • a person gaining work experience; or
  • a volunteer.

Under the Victorian OHS Act, an employee is a person employed under a contract of employment or contract of training.

Under the WA OSH Act, an employee is a person who works under a contract of employment or apprenticeship.

The WHS Act describes the powers of safety inspectors and union officials to investigate workplace incidents.

The WHS Act aims to impose uniform health and safety obligations on businesses throughout Australia while reducing the burden of having to comply with different obligations across different states and territories.

As at April 2016, all jurisdictions except Victoria and Western Australia have adopted the harmonised laws (with some amendments).

The relevant legislation in the non-harmonised jurisdictions is:

  • Victoria - Occupational Health and Safety Act 2004 (Vic) (OHS Act);
  • Western Australia - Occupational Safety and Health Act 1984 (WA) (OSH Act).

In WA, a bill similar to the WHS Act is currently being considered by parliament.

Victorian differences

One of the main differences between the Victorian OHS Act and the WHS Act is that, like in South Australia, defendants have a right to remain silent to avoid incriminating themselves. Apart from that, the OHS Act is very similar to the WHS Act.

Although the OHS Act would not require significant changes to align it with the WHS Act, the Victorian Government has confirmed that it will not be implementing the model laws at this stage.

Western Australia

The OSH Act is currently being reviewed by the WA parliament in relation to a new WHS Act (currently called the Green Bill). The proposed law has some changes from the model WHS Act, including that no right of entry for union officials exists that would otherwise authorise them to investigate safety breaches. The harmonised legislation consists of the principal WHS Act supported by WHS regulations and relevant codes of practice.

The WHS Regulations were implemented in the ACT, NSW, NT and Queensland in 2011 and in SA and Tasmania in 2012.

Any differences in the WHS Act between the jurisdictions could affect your business, so it is worth checking with your health and safety regulator before assuming all laws apply automatically throughout Australia.

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