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While the rules and regulations surrounding WHS differ from state to state and territory to territory, Safe Work Australia has developed a Model WHS Act, which all WHS Acts being introduced across the country are based on in some way, shape, or form.

Its purpose is to “harmonise WHS law” in Australia, so that all employers and employees are protected, no matter where their workplace might be.

The first draft of the Model WHS Act was crafted by the Workplace Relations Ministers’ Council and was released for public comment in September 2009. Safe Work Australia added its two cents in December 2009, and the Model WHS Act was finalised in June 2011.

Just over six months later, in January 2012, the following states and territories adopted the Model WHS Act as part of their WHS laws. These include: Australian Capital Territory, New South Wales, Northern Territory, Queensland, and South Australia.

WHS laws in these regions now include the Model WHS Act, Codes of Practice, and other compliance and enforcement policies. The states and territories that have not yet adopted the new WHS laws are still required to implement their own, according to the Australian government.

So, what do all of these rules and regulations entail?

Understanding the Three Elements of the Model WHS Laws

The model Work Health and Safety (WHS) laws are comprised of three main elements:

  1. Model WHS Act
  2. Model WHS Regulations
  3. Model Codes of Practice

The National Compliance and Enforcement Policy supports each of these elements by establishing guidelines for WHS regulators to monitor and enforce compliance.

The WHS legislation was intended to bring greater consistency to health and safety laws throughout the country. However, each state and territory in the Commonwealth is responsible for adopting, regulating, and enforcing the laws.

Minor variations in work health and safety laws exist from one jurisdiction to the next, mostly due to existing laws and processes. Safe Work Australia maintains a model WHS Act cross-comparison table to help PCBUs and regulators review differences between jurisdictions.

1. Model WHS Act

Safe Work Australia’s “Guide to the Model WHS Act” states the purpose of the document is ultimately to keep employers and employees safe “by eliminating or minimising risks arising for work or workplaces.”

It also aims to encourage businesses across the country to take “a constructive role in improving WHS practices” and promote “information, education and training” on the subject.

Those covered by the Model WHS Act include anyone who carries out work for a business or “undertaking.” This means contractors, apprentices, and even volunteers, to name just a few, are all protected by it. All visitors – such as customers or clients – are also included.

The Model WHS Act outlines all the responsibilities that “Persons Conducting a Business or Undertaking” (referred to as PCBUs) have toward their workers.

PCBUs must ensure – when “reasonably practicable” – that all employees have a safe environment to work in that does not put their health at risk. This includes safe premises, systems and processes, machinery and equipment, which all need to be regularly maintained to ensure they remain up to standard.

They must also be provided with information, training, and supervision where necessary.

PCBUs are instructed to work together – that is, consult, cooperate, and coordinate their approach to WHS – so that all duties are carried out effectively and efficiently. It’s also important that employees are in the loop about any WHS matters that could impact them directly.

The Model WHS Act claims that all PCBUs are required to keep an up-to-date knowledge of WHS laws, understand the risks inherent in their workplace, and make sure the appropriate systems and processes are in place to manage them correctly.

In addition to this, they are expected to notify the relevant persons if and when an injury, accident, or illness does occur in the workplace.

2. Model WHS Regulations

The model Work Health and Safety (WHS) regulations were designed to support the duties outlined in the model WHS Act. The safety regulations provide detailed requirements, procedures, and administrative responsibilities to support the WHS Act.

As of 2021, most states and territories have adopted the WHS laws, including:

  • Australian Capital Territory (ACT)
  • New South Wales (NSW)
  • The Northern Territory
  • Queensland
  • South Australia
  • Tasmania

In October of 2020, Western Australia voted to adopt Work Health and Safety laws. The laws are expected to become operational in the first half of 2021.

The WHS regulations outline some requirements for employers, including the need to manage risks. Under WHS regulations, employers must have a process for eliminating or minimising risks to workers. Managing and reducing risks helps protect the health and safety of workers. It also ensures compliance with WHS laws.

3. Codes of Practice

While the Model WHS Act outlines what is expected of employers and employees in a general sense, Codes of Practice offer businesses a practical guide to help them obey these rules and regulations.

It’s not mandatory to comply with Codes of Practice, provided a new-and-improved alternative to managing a hazardous situation is used instead.

These documents can be quite general – such as “Managing the Risks of Falls at Workplaces” and “First Aid in the Workplace” – as well as designed for specific industries and professions – such as “Welding Processes” and “Spray Painting and Powder Coating.”

The above examples of Codes of Practice are taken from the Safe Work Australia website, which features a number of Model Codes of Practice that are worth looking at. Again, the organisation is looking to “harmonise WHS law” in the area of Codes of Practice, so that employees all over the country may work in safe and healthy environments.

For a good example of the type of information Codes of Practice contain, consider the Model Code of Practice for Construction Work, which can be found here. This document features tips on creating a risk management strategy, to help eliminate or minimise the potential for employees to get ill or injured while at work.

It begins with a useful guide on identifying hazards or objects that could harm an employer or employee. This includes ladders, falling objects, asbestos, any tasks that are considered dangerous – and more. The Code of Practice then discusses how to assess and control these risks.

The Codes of Practice apply to all industries throughout Australia. While people often associate safety concerns with high-risk industries, such as construction or mining, every workplace includes potential hazards.

For example, in an office setting, workers may be exposed to unreasonable work hours, excessive manual handling, or workstations that do not accommodate workers of different sizes.

The Codes of Practice also provide recommendations for deciding when to perform a risk management assessment. Some of the potential situations that may require a review of health and safety practices include:

  • Starting a new business
  • Changing existing work practices
  • Implementing new equipment or machinery
  • Using new substances
  • Responding to new information related to potential hazards
  • Dealing with concerns presented by workers or HSRs

Employers may also be required to perform a risk management assessment at the request of WHS regulators after receiving notice for WHS violations.

What Are the Penalties for Violating Model WHS Regulations?

The severity of the penalty for breaching WHS laws depends on the category of the offence. Health and safety laws define four categories of offences:

  • Industrial manslaughter
  • Category 1
  • Category 2
  • Category 3

Manslaughter is the most serious offence and results in the highest penalty. Individuals found guilty of industrial manslaughter face a maximum penalty of up to 20 years imprisonment. Corporate bodies found guilty face up to $10 million in penalties.

Category 1 is the next highest offence. It is reserved for breaches where a PCBU or senior officer recklessly exposes a worker to the risk of serious injury or death. Penalties include up to $3 million for corporations, $600,000 and five years in jail for individual PCBUs, or $300,000 and five years in jail for individuals, such as workers.

A Category 2 offence occurs when a PCBU or senior officer fails to comply with health and safety regulations, resulting in exposure to the risk of serious injury, illness, or death. The penalties for this offence include up to $1.5 million for corporations, $300,000 for individual PCBUs, and $150,000 for individuals.

A Category 3 offence is a failure to comply with health and safety regulations. Penalties include fines up to $500,000 for corporations, $100,000 for individual PCBUs or senior officers, and $50,000 for individuals.

Health and safety regulators have the right to issue on-the-spot fines, known as infringement notices. Workers and PCBUs can receive infringement notices. Common breaches that may result in an on-the-spot fine include:

  • Failing to comply with an improvement notice
  • Allowing an individual to carry out high-risk work without proper licenses
  • Failing to allow health and safety representatives (HSRs) to carry out their duties
  • Failing to test electrical work according to WHS Codes of Practice
  • Failing to ensure electrical equipment is de-energised before carrying out work
  • Failing to record an incident report for an accident or injury

On-the-spot fines typically need to be paid within 28 days. If the fine is over $200, the courts may allow an individual to establish a payment plan.

If a corporation, PCBU, or individual fails to pay a penalty, the courts may order a redirection of wages from a bank account or issue a warrant for the seizure and sale of property. For serious offences, the courts may issue an arrest warrant.

Do Businesses Need Health and Safety Representatives Under WHS Laws?

Employers that employ 20 or more workers must appoint a health and safety representative (HSR) if workers choose to elect an HSR. All employees in a work group have the right to elect one or more HSRs and deputy HSRs.

HSRs serve three-year terms. While HSR training courses are not mandatory, elected HSRs may request to attend a training course. Training includes a five-day initial course. HSRs must also complete a one-day refresher course each year during their three-year term.

If an HSR makes the request, the employer needs to comply and provide paid time off for the course. Completing HSR training gives HSRs specific powers, including:

  • Initiating emergency work stoppages
  • Issuing provisional improvement notices (PINs)

Before issuing a PIN and directing a work group member to stop working, the HSR must consult with the PCBU and the individual receiving the PIN. However, if the risk is severe and requires an immediate response, the HSR may initiate an emergency work stoppage.

HSRs help protect the health of workers by monitoring potential safety issues and reviewing safety procedures. However, they must first be elected by a work group.

The steps for holding an HSR election are outlined in the WHS Act:

  • Request an election
  • Begin negotiations with work groups
  • Notify workers of the election
  • Elect workers from the work group
  • Notify workers of the outcome

Any worker can request an election, if the worker does not already have an HSR in their work group. If work groups are not already established, workers must negotiate the number of work groups and how to assign workers to each group.

The PCBU and the workers must agree on the number of work groups, the number of workers in each group, and the number of HSRs and deputy HSRs assigned to each group. After requesting an election, the PCBU has 14 days to begin negotiations. If negotiations fail, the PCBU or the workers can request assistance from a WHS inspector.

After dividing the workers into groups, they must notify workers of the date for the upcoming election. The workers may then elect workers for the role of HSR from within their assigned work group. After holding the election, the results must be distributed to all workers.

What Are My Rights?

Employers and employees have specific rights under WHS legislation. For example, temporary visa holders, permanent residents, and Australian citizens have the right to a safe work environment. These basic rights apply to every workplace in the country throughout Australia:

  • The right to safety equipment
  • The right to receive instructions on how to work safely
  • The right to refuse to complete unsafe work
  • The right to receive worker’s compensation
  • The right to speak up after detecting unsafe work conditions
  • The right to fair wages and working conditions

Employers also have rights under the Work Health and Safety Act and regulations. For example, employers have the right to dismiss workers who fail to meet reasonable work requirements or performance standards.

What Are My Duties?

Employers have a duty of care, which involves taking appropriate steps to reduce risks and hazards. Common responsibilities for employers include:

  • Ensuring staff understand their roles
  • Providing access to safety training
  • Providing access to personal protective equipment (PPE)
  • Maintaining a database of all injuries and accidents
  • Consulting with staff to resolve workplace safety issues

As part of an employer’s responsibilities, they may need to enrol workers in applicable safety training courses. PCBUs should ensure that workers receive necessary health and safety training for any high-risk work.

For example, before carrying out work that may involve exposure to asbestos, workers should receive asbestos awareness training. If a task involves the removal of asbestos, the PCBU must obtain an asbestos removal licence, which requires the completion of asbestos removal training.

In the construction industry, workers are required to complete white card training. White card training covers the most common risks and hazards on a typical construction site, including moving objects and manual handling.

Registered training organisations (RTOs) also provide specialised training for other high-risk activities, including working at heights, confined spaces, fatigue management, and traffic control.

Employees have the responsibility to report unsafe and unhealthy work environments or injuries. Employees who are unsure of their duties should discuss responsibilities with their immediate supervisor.

As an employee, you are also responsible for your own and other’s safety in the workplace. The Model WHS Act states that you must “comply … with any reasonable instruction given by the PCBU to allow the PCBU to comply with WHS laws” and “co-operate with any reasonable policy or procedure of the PCBU” relating to WHS in the workplace.

Want to Know More?

If you would like to increase your knowledge of WHS law in Australia, check out the wide range of WHS training courses that AlertForce has to offer. Whether you want to improve your knowledge and skills in specific – such as asbestos removal – or more general areas, such as office safety, we have the course for you.

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