Comcare, together with four other jurisdictions: NSW, Queensland, the ACT and the Northern Territory, implemented the model harmonised health and safety regulatory package on January 1, 2012. Other jurisdictions have since implemented the package (all except Victoria and Western Australia). The package includes the Work Health Safety Act, the Regulations and Codes of Practice. Each jurisdiction has a set of transitional arrangements in place (see the page on the Model WHS Law) as what this means will vary.
Some of the main 'differences' between our current (Victorian) system and the model are:
- replacement of 'employers' with 'persons conducting business or undertaking' ('PCBUs'). Note that a PCBU includes companies, natural persons, etc
- replacement of 'employee' with the much broader 'worker' (which includes volunteers, and anyone undertaking 'work')
Note: SWA has reviewed amended the Act, the Regulations and the Codes - and this process will continue with a major review in 2018.
Summary of the Work Health Safety (WHS) Act
The WHS Act is now, as of January 1, 2012, the relevant occupational health and safety Act in the Commonwealth and for all Comcare workplaces. The information below is based on a Safe Work Australia publication.
- Part 1: Aim
- Part 2: Health and Safety Duties
- Part 3: Incident Notification
- Part 4: Authorisations (not summarised)
- Part 5: Consultation, Participation and Representation
- Part 6: Discriminatory, coercive and misleading conduct
- Part 7: Workplace entry by Entry Permit Holders
Part 1: Aim
Clause 3: The main aim of the WHS Act is to 'secure the health and safety of workers and workplaces through the elimination or minimisation of risks, fair and effective representation, consultation, co-operation and issue resolution, encouraging employer organisations and unions to play a constructive role, provision of advice, information, education and training, and effective and appropriate compliance and enforcement measures', among other matters. Also under the WHS Act workers and others are to be given the highest level of protection from hazards and risks as is reasonably practicable.
Part 2: Health and Safety Duties
Clauses 13 - 17: Principles applicable to duties
None of the duties can be transferred to others. A person may have more than one duty and more than one person can have the same duty. Where this is the case, each person must comply with the duty to the extent the person has the capacity to influence and control the matter (or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity).
Duties imposed on a person to ensure health or safety ('health and safety duties') require the person:
- to eliminate risks to health and safety, so far as is reasonably practicable, and
- if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
Clause 18: reasonably practicable
Duties must be complied with so far as is 'reasonably practicable' - that is, they are not absolute. This term, which we are all familiar with, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health or safety, taking into account and weighing up all relevant matters including:
- the likelihood of the hazard or risk occurring
- the seriousness of the risk
- what the person concerned knows, or ought reasonably to know, about the hazard or the risk, and ways of eliminating or minimising the risk, and
- the availability and suitability of ways to eliminate or minimise the risk.
Only after assessing these matters, the cost of ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk, may also be taken into account.
Clause 19: Primary duty
All PCBUs (either alone or with others, and whether or not for profit or gain, and so includes charities and churches) have duties unless they conduct the business or undertaking solely as a worker in, or as an officer of, that business or undertaking.
The PCBU duty is to ensure, so far as is reasonably practicable, the health and safety of:
- workers engaged, or caused to be engaged by the person, and
- 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.
A PCBU must also make sure, so far as is reasonably practicable, that the health and safety of
other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
This primary duty encompasses the provision and maintenance of a work environment without risks to health or safety, safe plant and structures and safe systems of work. It also includes the safe use, handling, storage and transport of plant, structures and substances, the provision of and access to adequate facilities for the welfare of workers, the provision of information, training, instruction or supervision, and monitoring of the health of workers and the conditions at the workplace.
Clauses 20 - 26: Upstream duties
PCBUs have extra duties if they:
- manage or control workplaces or fixtures, fittings or plant at workplaces, or
- design, manufacture, import or supply plant, substances or structures forworkplaces, or install, construct or commission plant or structures for workplaces
Clause 27: Officer duties
'Officers' of PCBUs with a duty or obligation under the WHS Act must exercise 'due diligence' to ensure that the PCBU complies with that duty or obligation.
Due diligence is defined to include taking reasonable steps in relation to:
- acquiring and keeping up to date knowledge of work health and safety matters,
- gaining an understanding of the nature of the operations and the hazards and risks associated with those operations,
- ensuring that the person conducting a business or undertaking has available and uses appropriate resources and processes to enable hazards associated with the operations to be identified and risks eliminated or minimised,
- ensuring that the person conducting a business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding to these in a timely way,
- ensuring that the person conducting a business or undertaking has and implements processes for complying with the body's duties and obligations, and
- verifying all of the above.
Officers of a PCBU include all persons who are officers under the Corporations Act 2001 (Commonwealth) (other than a partner in a partnership) and persons who are officers of the Crown, a public authority (other than an elected member of a local authority) or an unincorporated association.
Clause 28: Workers duties
- take reasonable care for their own health and safety,
- take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons, and
- comply, so far as the worker is reasonably able with any reasonable instruction given by a PCBU to allow that PCBU to comply with the act, and
- cooperate with any reasonable policy or procedure of the PCBU which relates to work health or safety and that has been notified to workers.
Clause 29: Other person duties
Other persons at the workplace have a duty to take reasonable care for their own health and safety and to take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. They also must comply, so far as they reasonably can, with any reasonable instruction given by the PCBU to allow that PCBU to comply with the Act.
Part 3: Incident Notification
An incident that leads to a death, a serious illness or injury and any 'notifiable incidents' (i.e. incidents that expose persons to serious risks at a workplace) must be reported to the regulator by the person who conducts the business or undertaking out of which the incident arose.
Persons with management or control of the workplace must ensure, so far as is reasonably practicable, that the site of the incident is not disturbed until an inspector arrives at the site or as otherwise directed by an inspector. There are exceptions to this duty including any action taken to assist an injured person. This duty only applies 'so far as is reasonably practicable' because the person with management or control of a workplace will not always have complete control of that workplace or the people within it.
Part 5: Consultation, Representation and Participation
Clause 46: Obligation to consult with other duty holders
Duty holders with overlapping work health and safety duties under the Act must, so far as is reasonable practicable, consult, co-operate and co-ordinate activities with each other.
Clauses 47 - 49: Duty to consult workers
PCBUs must, so far as is reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to health or safety at work.
Consultation must be in accordance with any procedures agreed between the PCBU and the workers.
The level of consultation should be proportionate to the circumstances, including the significance of the issue. All relevant factors must be considered in determining the scope of the duty in a particular case, including the seriousness of the matter, the number of affected workers and how the matter affects individual workers.
More serious health or safety matters require more extensive consultation requirements. This is important to ensure that businesses are fully informed when making decisions about important health and safety matters.
Clause 48: Nature of consultation
The Act states that consultation means:
- sharing relevant information
- giving workers a reasonable opportunity to express their views, raise issues and contribute to decision making
- taking workers' views into account, and
- advising workers of the outcome of the consultation in a timely manner.
If the workers are represented by an elected Health and Safety Representative, the consultation
must involve that representative.
Clause 49: When consultation is required
The law requires that the PCBU consults when:
- identifying hazards and assessing risks arising from work
- making decisions about ways to eliminate or minimise those risks
- making decisions about the adequacy of facilities for the welfare of workers
- proposing changes that may affect the health or safety of workers
- making decisions about the procedures for resolving health or safety issues,monitoring the health of workers or workplace conditions, information and training or consultation with workers, and
- carrying out any other activity prescribed by the Regulations.
Clauses 50 - 74: Health and Safety Representatives
As expected, the WHS Act provides for the election, powers and functions of Health and Safety Representatives (HSRs). The Act also provides for Deputy HSRs to be elected in the same way as HSRs, and allow them to stand in for their HSRs when that person is not available. Generally HSRs and deputy HSRs have the same functions and powers.
Clauses 51 - 59: Determination of work groups
HSRs represent work groups, that is, groups of workers who carry out work for the PCBU. Before being able to conduct elections for HSRs, the work groups need to be determined.
A work group should be determined by negotiation and agreement between the PCBU and the workers who will form the work group (or their representatives). It may cover one or more workplaces.
Upon request being made for the election of HSRs, the PCBU must take all reasonable steps to commence negotiations within 14 days.
The negotiations determine:
- the number and composition of work groups
- the number of Health and Safety Representatives and deputies
- the workplace or workplaces to which the work groups will apply, and
- the businesses or undertakings to which the work groups will apply.
If the negotiations fail, then any person who is or would be a party to these negotiations may ask an inspector to determine these matters. However, in relation to negotiations for work groups covering more than one PCBU, an inspector may only assist in reaching an outcome (not determine).
WHS Regulations provide for the variation of work groups.
Clauses 60 - 63: Election of Health and Safety Representatives
The workers in a work group may (and should) determine how the election of an HSR will be conducted, subject to any minimum requirements prescribed by the WHS Regulations. (These requirements are basically that all PCBUs with workers in the work group is told of the election date; that all workers in the work group can nominate and can vote. All workers in the work group and all relevant PCBUs are informed of the outcome of the election.)
A majority of members may determine that the election will be conducted with the assistance of a union or other person or organisation. The PCBU must provide any resources, facilities and assistance that are reasonably necessary or are prescribed by the WHS Regulations so that elections can be conducted.
Each member of the relevant work group is entitled to one vote in the elections.
Clause 64: Eligibility and term of office of HSRs
Anyone who is a member of the work group, and has not been disqualified from being an HSR, is eligible to be elected. The term of office is three years, but this terminates upon:
- the HSR giving written notice of resignation
- the HSR no longer being a worker in the particular work group
- the HSR being disqualified, or
- the HSR being removed from office by a majority of the members of the work group in accordance with the WHS Regulations.
Section 9: Work groups, health and safety representatives and health and safety committees continue as such
(1) On the commencing day:
(b) a person who held office immediately before the commencing day as a health and safety representative or deputy health and safety representative under the OHS Act is taken to hold the corresponding office under the WHS Act (with a term of office of 3 years beginning on the day on which the person was last selected under the OHS Act);
(my italics - for emphasis)
Clause 65: Disqualification of HSRs
A designated court or tribunal may disqualify an HSR if satisfied the representative exercised a power, performed a function, or used or disclosed any information acquired as an HSR for an improper purpose. An application for disqualification may be made by either a person that has been adversely affected by the alleged behaviour or the regulator.
Clause 66: Immunity of HSRs
HSRs are not personally liable for anything done or omitted to be done in good faith in exercising a power or performing a function under the WHS Act, or in the reasonable belief that their actions were authorised under the Act. In other words, HSRs have no duties as HSRs, apart from the duties as workers (under Clause 28).
Clause 67: Powers and functions of HSRs
HSRs are entitled to/have the right to:
- represent work group members in relation to health and safety matters at work
- investigate complaints from work group members relating to work health and safety matters, and
- inquire into anything that appears to be a risk to the health or safety of work group members, arising from the conduct of the business or undertaking.
To do any of these things, HSRs may inspect the workplace or any part of the workplace at which work group members work:
- after giving the PCBU reasonable notice, or
- immediately - if there has been an incident or any situation involving a serious risk to the health or safety of any person at the place.
Representation rights at interviews
HSRs have the right to be present at any interviews concerning work health or safety between a work group member and the PCBU or an inspector, as long as the member agrees. If one or more workers are involved, then the HSR is entitled to be present as long as at least one work group member consents.
HSRs are also entitled to:
- accompany an inspector during an inspection of the workplace or part of theworkplace at which a work group member works
- request that a health and safety committee be established
- receive any information about the work health or safety of work group members, providing that information does not identify particular workers, or affected workers consent to the disclosure, and
- whenever necessary - request the assistance of any person.
Clause 68(4): No duty or obligation to perform functions, exercise powers
The WHS Act makes it clear that is no kind of legal duty or obligation on HSRs to perform any of the functions, or exercise any of the powers, under the Act.
Clause 69: Powers and functions generally limited to the particular work group
HSRs are entitled to exercise their powers in relation to their work group members. However, if there is more than one work group for the business or undertaking, an HSR may represent any of those work groups if:
- there is a serious risk to the health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of that workgroup, or
- a member of another work group asks for the representative's assistance, and
- the Health and Safety Representatives for the work group are found, after reasonable inquiry, to be unavailable.
Clause 70: General obligations of PCBUs to HSRs
A PCBU must allow HSRs to exercise their entitlements under the Act and provide any resources, facilities and assistance that are reasonably necessary or prescribed by the Regulations to enable the representative to do so.
A PCBU must also:
- consult, so far as is reasonably practicable, on work health or safety matters with HSRs for the business or undertaking
- confer with HSRs for the business or undertaking,whenever reasonably requested, for the purpose of ensuring the work health and safety of the HSR's work group members
- provide HSRs for the business or undertaking with access to any available information the person has relating to work risks that affect work group members, and
- provide any other assistance that may be required by the Regulations.
Clause 70(2), (3): Powers and performing functions of HSRs
HSRs are entitled to spend such paid time as is reasonably necessary to exercise their powers and perform their functions under the Act.
Payment must be made at the rate that the HSR would receive for performing his or her normal duties during that period.
Clause 71(2) – (6): Exceptions from obligations to HSRs - assistants
PCBUs are not required to pay for any external assistants that help their HSRs. While HSRs are entitled to use assistants, a PCBU may refuse a particular assistant access to the workplace if:
- the person has reasonable grounds to do so, or
- the assistant is a current or former permit holder under the WHS Act whose permit is suspended or has been revoked.
If access is refused on 'reasonable grounds' the affected HSR may ask for an inspector's assistance in resolving the matter.
Clause 72: Obligation to train HSRs
HSRs are entitled to attend a course of approved training of their choice, consistent with the Regulations, and be paid at the rate that the HSR would receive for performing his or her normal duties during the period of the course. A PCBU must, within three months of the request being made, allow the HSR time off work to attend the course of training and pay the course fees and any other reasonable costs associated with course attendance.
If the parties cannot agree on the course (e.g. location), timing or reimbursement for reasonable costs within the required timeframe, then the matter may be referred to an inspector for determination. The PCBU must comply with any determination of the inspector.
Remember that HSRs are entitled to attend a five day initial course when they are elected, and then a one day refresher course each subsequent year, and also have the right to choose which course they wish to attend. The VTHC is authorised to deliver both the initial and the refresher course under the auspices of the Australian Council of Trade Unions. For details of courses we run, please check here.
Clauses 75 - 79: Health and safety committees
A health and safety committee is a workers' representative body for a business or undertaking (or part of). It must meet at least once every three months or at any reasonable time at the request of at least half of the committee members, with a view to:
- facilitating co-operation in instigating, developing and carrying out measures designed to ensure the work health and safety of workers
- assisting in developing standards, rules and procedures relating to health and safety for workers, and
- doing anything else required by the Regulations or as agreed between the committee and the PCBU.
The PCBU can establish the committee on its own initiative, but must do so within two months after been asked to do so by:
- an HSR for the business or undertaking
- five or more workers who carry out work for the business or undertaking, or
- if required to do so by the Regulations.
The PCBU must allow each committee member to spend such time as is reasonably necessary to attend committee meetings or to carry out functions as a committee member. Members must be paid at the rate they would receive for performing normal duties during that period.
Clauses 80 – 82: Issue resolution
Parties to an issue must use the issue resolution process under the Act if a work health or safety matter is not resolved after discussion. The relevant parties are the relevant PCBU, the HSRs for affected workers, and if none, the affected workers or their representatives.
Parties are required to make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed by the Regulations.
If the issue remains unresolved after reasonable efforts have been made, it may be referred to an inspector to assist in resolving the issue - or the HSR may issue a Provisional Improvement Notice.
Clause 84: Right of worker to cease work
Workers have the right to cease work if they have reasonable concerns that carrying out the work would expose them to a serious risk to their health or safety, from an immediate or imminent exposure to a hazard. This right is not affected by any issue resolution process that may be underway.
Clause 85: HSR may direct that unsafe work cease
HSRs also have the right to direct a work group member to cease unsafe work if they have a reasonable concern that to carry out the work would expose the worker to a serious risk, emanating from an immediate or imminent exposure to a hazard. However, an HSR can only use this right after having attended an approved training course (see Section 72).
Before giving the direction, the HSR must consult with the PCBU and attempt to resolve the issue using the issue resolution procedure under the Act. However, if the risk is so serious and immediate or imminent that would not be reasonable to consult before giving the direction, then this need not happen.
Clauses 86 – 89: Worker obligations upon ceasing work
A worker who ceases unsafe work under the Act must, as soon as possible, notify the person for whom they are carrying work they have ceased unsafe work. In order for the worker to receive payment, he/she must be available to carry out suitable alternative work - either at the same or another workplace - as long as that work is safe and appropriate until normal duties can be resumed safely.
Clauses 90 - 102: Provisional Improvement Notices
Subject to certain conditions relating to consultation and training, HSRs may issue Provisional Improvement Notices if they reasonably believe that a person is contravening a provision of the Act, or has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated.
NOTE: any HSRs trained under the repealed OHS Act are able to exercise all of the HSR powers under the WHS Act during the transitional period commencing 1 January 2012 and concluding 31 December 2012. However, these HSRs will NOT continue to exercise all of their powers beyond the 12 month transitional period. They will no longer be able to exercise their powers to issue provisional improvement notices (PINs) or issue cease work notices unless they undertake additional HSR training (that is complete an initial five day training course under the WHS Act) within the first 12 months of commencement of the WHS Act.
Part 6: Discriminatory, coercive and misleading conduct
These are clauses 104 - 115. It is an offence for any person to engage in discriminatory conduct for prohibited reasons. These reasons relate to a person's intention to or exercise of powers or functions under the
The WHS Act also contains a series of provisions dealing with:
- a prohibition of authorising or assisting discriminatory conduct,
- a prohibition of coercion or inducement, for example taking action with the intent to coerce a person to exercise a power or perform functions under the Act, and
- an offence of misrepresentation, for example making a false or misleading representation to someone about that person's right or obligations under the Act.
These provisions overlap with and are similar to the general protections found in the Commonwealth Fair Work Act 2009. Provisions in this part also provide for when criminal and civil proceedings may be brought for an offence against this Part, orders for damages or reinstatement and other matters relating to discriminatory conduct.
Part 7: Workplace entry by Entry Permit Holders
The WHS Act gives unions the right to apply to Comcare for a Work Health and Safety entry permit to be issued to the union's officials. If an entry permit is issued, the entry permit holder may enter workplaces to:
- inquire into suspected contraventions of work health and safety laws affecting workers who are members, or eligible to be members of the permit holder's union, and whose interests the union is entitled to represent, and
- consult and advise such workers about work health and safety matters.
Permit holders are also entitled to exercise rights relating to inspection, consult with relevant workers and the PCBU, inspect and make copies of certain record or documents, and warn persons reasonably believed to be exposed to a serious risk emanating from an immediate or imminent exposure to a hazard.
When entering a workplace to inquire into a suspected contravention, an entry permit holder does not have to give prior notice. However, 24 hours notice is required to consult and advise and to request documents other than those related to the suspected contravention that are employee records. The provisions in Part 7 have generally been drafted to be consistent with the right of entry provisions under the Fair Work Act 2009.
Comcare's WHS website includes new guidance and resources to assist worker, representatives and employers/PCBUs.
From the Comcare site:
Where to start and what does it mean? The due diligence guidance has been developed by Comcare to assist Officers, and those who support them, with information relating to exercising due diligence under the new WHS laws.
Due diligence guidance.
Roles and responsibilities of other duty holders
The Comcare website has a separate section outlining the roles and responsibilities of others under the WHS Act.
The Work Health and Safety Act 2011 (Cth) (WHS Act) requires a person conducting a business or undertaking (PCBU) to notify Comcare immediately after becoming aware that a notifiable incident, which arises out of the conduct of its business or undertaking, has occurred. More information on Incident Notification, including forms and The Guide to Work Health and Safety Incident Notification.
The Comcare site also has a large number of Frequently Asked Questions (FAQs) including many FAQs on the new laws
Last amended July 2017