Frequently asked questions

The Commonwealth and each state and territory government worked cooperatively to harmonise work health and safety (WHS) laws—including Regulations and Codes of Practice.

The Commonwealth, states and territories were responsible for making, and now enforcing, their own WHS laws based on the model WHS Laws. Although there were similarities between previous OHS laws around Australia, some different standards of protection caused confusion. Regardless of where they work, Australian workers should be entitled to the same WHS standards.

The regulatory inconsistencies were addressed for the first time through the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA) in which state and territory governments and the Commonwealth formally committed to work together to achieve the harmonisation of WHS laws. The harmonised laws address the compliance and regulatory burdens placed on PCBUs who operate in multiple WHS jurisdictions.

Model laws consist of a model WHS Act, supported by model WHS Regulations and Codes of Practice.

Drafting was undertaken by Parliamentary Counsels’ Committee, based on instruction by Safe Work Australia. Each OHS jurisdiction was required to ‘mirror’ the model provisions by enacting a new WHS Act. There are some local jurisdictional variations to the model provisions but these have only been changed where necessary to conform to the local legislative environment.

The aim of harmonisation is for WHS laws to achieve a consistent regulatory approach across all jurisdictions. Comcare was an early adopter of the WHS laws and will continue as the sole regulator for the Commonwealth jurisdiction.

All WHS jurisdictions will adopt the WHS model laws with most having already implemented them on 1 January 2012. The remainder have committed to implementing them by 2013.

Model WHS laws are the result of a national review into OHS laws involving significant consultation with business, governments, unions and other interested parties, and consideration of submissions from the public and other stakeholders.

The first and subsequent publicly available drafts of the model WHS Act were approved by the Workplace Relations Ministers’ Council (WRMC) taking into account the recommendations of the national review. Safe Work Australia (SWA) was established 1 November 2009 as an Australian Government statutory agency with primary responsibility to improve work health and safety and workers’ compensation arrangements across Australia. One of SWA’s key roles is to give effect to the IGA, which included the development of model WHS laws for WRMC approval and the implementation of these laws in the Commonwealth, states and territories.

There are some significant changes including:

• making the Crown criminally liable for offences under the WHS laws (a new development for the Commonwealth)
• no longer defining duties by the nature of the employment relationship
• introducing a graduated approach to enforcement
• new duties to consult with workers and other duty holders
• the imposition of safety duties on officers (including officers of the Crown and public authorities), all categories of worker and other persons at a workplace.

Appropriate transitional arrangements are in place for each jurisdiction.

All jurisdictions have agreed to a set of principles which ensures that transitional arrangements are consistent across Australia, although some variations are inevitable as each jurisdiction is transitioning from a different work health and safety system. To see what transitional arrangements apply to the Commonwealth, click on the links below.

• Transitional Provisions table—WHS Act at a glance
• Work Health and Safety Regulations 2011—Key transitional and savings provisions—at a glance [PDF,778KB]
• Fact Sheet—Work Health and Safety Transitional Provisions—at a glance

You can:

• develop an environment of strong safety leadership within your workplace
• ensure you have processes in place for identifying and managing WHS risks
• undertake a gap analysis to understand how your organisation is placed to manage WHS and how it needs to change to achieve compliance
• review your organisational structure to determine where responsibility for WHS lies
• provide officers of your organisation with clear guidelines on the extent of their duties and what they need to do to satisfy the ‘due diligence’ requirement of their duty
• ensure that you have in place appropriate consultative arrangement for all workers—health and safety management arrangements that applied under the previous OHS Act may be able to be adapted to reflect the consultative arrangements required by the WHS laws
• review your arrangements for notifying the regulator of notifiable incidents as required by the WHS Act.

No—the Commonwealth and each state and territory have implemented, or will implement, their own WHS Act, Regulations and Codes of Practice which is then administered by the nominated regulator in each jurisdiction.

Yes. The Work Health and Safety Act 2011 (Cth) (WHS Act) and the Work Health and Safety Regulations 2011(Cth) (WHS Regulations) have extraterritorial application overseas under s12F(3) of the WHS Act, which is supported by s15.1 of the Criminal Code Act 1995 (Criminal Code). Therefore, offences against the WHS Act and/or the WHS Regulations committed by Australian citizen workers or a Commonwealth/Commonwealth Authorities/Non Commonwealth Licensees outside Australia would be covered by the WHS Act and WHS Regulations, provided the relevant factors in s15.1 of the Criminal Code are met.

The only exception relates to the WHS entry permits holder provisions in Part 7 of the WHS Act. Part 7 of the WHS Act does not have extraterritorial application overseas because any offences committed under Part 7 are subject to civil not criminal penalties. However, s11 of the WHS Act will extend the extraterritorial application of Part 7 but only to the extent of Australia’s external Territories.

Yes. The Work Health and Safety Act 2011 (Cth) and the Work Health and Safety Regulations 2011(Cth) will apply to every external territory—including the:

• Ashmore and Carties Islands
• Christmas Island
• Coco (Keeling) Islands
• Coral Sea Islands
• Australian Antarctic Territory
• Territory of the Heard
• McDonald Islands.

Due diligence is the standard required of officers in meeting their duty under the WHS Act. It includes taking reasonable steps to:

• acquire and keep up to date knowledge of WHS matters
• gain an understanding of the business operations, or of the person conducting the business or undertaking (PCBU), and generally the hazards and risks associated with those operations
• ensure that the PCBU has appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking
• ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks, and can respond in a timely way to get that information
• ensure that the PCBU has and implements processes for complying with any duty or obligation under the WHS Act, including:
  • reporting notifiable incidents
  • consulting with workers
  • ensuring compliance with notices issued under the WHS Act
  • ensuring provision of training and instruction to workers about WHS
  • ensuring that Health and Safety Representatives (HSRs) receive their entitlements to training
• verify the provision and use of the resources and processes referred to in the paragraphs above.

The term ‘reasonably practicable’ has been generally accepted for many years in most Australian jurisdictions as an appropriate standard for duty holders to meet in respect of their WHS duties.

The term ‘reasonably practicable’ means that which is—or was at a particular time—reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including:

• the likelihood of the relevant hazards or risk occurring
• the degree of harm that might result from the hazard or risk
• what the person knows about the hazard or risk and the ways of eliminating or minimising the risk
• the availability and suitability of ways to eliminate or minimise the risk.

After assessing the extent of the risk and the ways the risk could be eliminated or minimised, the associated costs must be considered, including whether the cost is grossly disproportionate to the risk.

A PCBU has the primary duty of care for workplace health and safety.

Within the Commonwealth WHS jurisdiction there are three groups of PCBUs:

1. The Commonwealth
   • The Crown in the right of the Commonwealth of Australia
   • A single entity conducting many businesses and undertakings
2. Public authorities
   • A body corporate under the Commonwealth Authorities and Companies Act 1997 (CAC Act)
   • A body corporate established for a public purpose under a Commonwealth or territory law
   • A body corporate prescribed in the WHS regulations
3. Non-Commonwealth licensees
   • Corporations Act 2001 corporations licensed under the Safety Rehabilitation and Compensation Act 1988

It is through its officers and a due diligence framework that a PCBU discharges its duties and obligations under the WHS laws. An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with a duty or obligation.

For more information please refer to our PCBU fact sheet [PDF,119KB]

PCBUs have additional upstream duties if they:

• manage or control workplaces or fixtures, fittings or plant at workplaces
• design, manufacture, import or supply plant, substances or structures for workplaces
• install, construct or commission plant or structures for workplaces.

Where a worker occupies accommodation that is owned by, or under the management or control of the PCBU, and the occupancy is necessary for the purpose of the worker’s engagement, the PCBU must, so far as is reasonable practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

Physical workplace boundaries as such no longer exist under the WHS Act. A workplace under the WHS Act is wherever a worker is ‘at work’ and is not restricted by a building, vehicle or other structure. A worker is at their workplace whenever they are engaged in a work activity that arises out of the business or undertaking of the PCBU.

Where workers are at work for a PCBU, the PCBU has a duty to ensure, so far as is reasonably practicable, their health and safety.

The WHS Act defines ‘workplace’ broadly to mean a place where work is carried out for a business or undertaking. The definition of a workplace has been reviewed to include a place where work is performed from time-to-time. Based on this definition, if a worker performs work on behalf of the PCBU from their home, then their home may be considered to be a place of work as the PCBU’s duty of care extends to any area where work activities are carried out. The PCBU must do everything that is reasonably practicable to ensure the health and safety of these workers by adopting a risk management approach to the work activity and work environment.

A volunteer for a PCBU is defined as a worker under the WHS Act and as such is owed the same level of health and safety protection as does any other worker. The WHS Act applies to all external territories and a PCBU must do everything reasonably practicable to ensure that the volunteers’ health and safety is maintained whilst they are undertaking any volunteer activity on behalf of the business or undertaking.

• Volunteers and volunteer organisations under the whs act [PDF,174KB]
• Volunteers and the new work health and safety laws

An officer is a senior executive who makes—or participates in making—decisions that affect the whole, or a substantial part, of a business or undertaking. Officers have a positive duty to be proactive and continuously ensure that the business or undertaking complies with relevant duties and obligations.

There are three kinds of officer of a PCBU under the WHS Act:

1. An officer within the meaning of section 9 of the Corporations Act 2001 other than a partner in a partnership (usually non-Commonwealth licensee PCBUs).
2. An officer of the Commonwealth (the Commonwealth is the PCBU).
3. An officer of a public authority (such as Comcare).

Note: Elected members of local authorities are excluded from the definition of officer.

For more information please refer to our Officer fact sheet [PDF,119KB]

The scope of an officer’s duty is directly related to the influential nature of their position. A high standard requires persistent examination and care to ensure that the resources and systems of the business or undertaking are adequate to comply with the duty of care required under the WHS Act. This also requires officers to ensure that delegations are working effectively. Where the officer relies on the expertise of a manager or other person, that expertise must be verified and the reliance must be reasonable.

The intention of the positive duty on officers is to ensure engagement and leadership by officers in WHS management, better providing for sustainability and improvement in WHS performance.

More guidance on due diligence is available.

The term ‘worker’ includes:

• employees
• contractors
• subcontractors
• employees of a contractor of subcontractor
• employees of a labour hire company assigned to work
• outworkers
• apprentices or trainees
• students gaining work experience

Under the Work Health and Safety Act 2011, workers must take reasonable care for their own health and safety and take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons.

Essentially the health and safety obligations imposed on a PCBU in relation to the way in which contractors are managed are not changed by the WHS laws except:

• there is now a positive duty imposed on any person who has a duty to consult, cooperate and coordinate activities in relation to the same matter with each other—so far as is practicable
• there is no longer any distinction between the duties owed to employees and individual contractors—they are all workers.

It is difficult to provide advice on general application because some agencies have effective systems to manage contractors while others do not. Comcare will update its guidance on contractor management to reflect the new laws.

Any contract that was agreed to prior to 1 January 2012 will need to be reviewed to determine if it continues to align with the requirements of the WHS Act. Some consideration points include, but are not limited to:

• does the contract adequately address the new definition of ‘workers’?
• have you clearly identified who has control over the activity or parts of the activity?
• has effective consultation been built into the contract to allow for all workers to be aware of contractual arrangements?
• are there risk control measures in place, through procedures, so information can be passed to all workers affected, or potentially affected, by the work activity?

There are numerous offences under the WHS Act and regulations. The most serious offences are related to the health and safety duties imposed under Part 2 of the WHS Act.

A Category 1 offence involves ’reckless conduct’ that exposes someone to a risk of death or serious injury or illness. It is the most serious offence.

Example 1—A supervisor observed missing handrails on erected scaffolding and decided not to do anything to fix it. In these circumstances they should have known that a person would be exposed to death or serious injury whilst working on the scaffolding.

Example 2—A boat was observed by a manager to be unseaworthy (i.e. taking in water) and the manager directed a worker to travel an unsafe distance in the boat.

A Category 2 offence is committed where a person has a health and safety duty under Part 2 of the WHS Act, failed to comply with that duty, and that failure exposed a person to a risk of death or serious injury or illness.

Example—PCBU 1 (Government Department) engaged workers of PCBU 2 (carpet laying company) to renovate a workplace at which PCBU 1’s workers continue to work. The workers of PCBU 2 are applying glue to affix carpet tiles in accordance with their training and safety procedures. However, there are no barriers in place to separate the carpet tile from being laid in the same place where PCBU 1’s workers continued to work. A worker of PCBU 1 slips and is seriously injured.

A Category 3 offence is committed where the person has a health and safety duty under Part 2 of the WHS Act and fails to comply with that duty. For a Category 3 offence, there is no requirement that the failure to comply with the duty exposed someone to a risk of death or serious injury or illness.

Example—A manager fails in their duty of care to a worker who has been bullied by not taking any action that would have been reasonable and practicable to prevent what, in the circumstances, was a foreseeable risk of an ongoing psychiatric condition.

Workers must take reasonable care for their own health and safety while at work and take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons. This duty is subject to consideration of what is reasonable, necessarily proportionate to the control a worker is able to exercise over his or her work activities and work environment.

Workers must also:

• comply, so far as they are reasonably able, with any reasonable instruction given by the PCBU that allows it to comply with the WHS laws
• cooperate with any reasonable policy or procedure of the business or undertaking that relates to work health or safety, that has been notified to workers.

There may be many reasons why you do not comply with internal policies and procedures. For example, lack of training or supervision, or compliance with the policy and procedure was not reasonable in the circumstances. Unless there has been a willful or reckless disregard to safety, it is unlikely that you will face any criminal consequences for not complying. (Hide answer)

A notifiable incident is an incident involving the death of a person, serious injury or illness of a person, or a dangerous incident. To assist in determining what type of incident must be notified, ‘serious injury or illness’ and ‘dangerous incident’ are defined in the WHS Act.

A serious injury or illness is one that requires a person to receive:

• medical treatment within 48 hours of exposure to a substance
• immediate treatment as an inpatient in a hospital
• immediate treatment for a serious injury or illness such as a serious head injury, a serious burn or a spinal injury, and a number of other injuries listed in the WHS Act .

Importantly, it does not matter whether a person actually received the treatment referred to in this definition, just that the injury or illness could reasonably be considered to warrant such treatment.

A dangerous incident in a workplace exposes a worker or any other person to a serious risk to their health or safety emanating from an immediate or imminent exposure to a number of risks. These risks include an uncontrolled escape, spillage or leakage of a substance, an electric shock, a fall from a height or the collapse of a structure.

Comcare has developed guidance to assist with notification of incidents under the WHS Act

• Guide to incident notification—for incidents that occurred on or after 1 January 2012

The meaning of 'immediate' will be dependent on context. Notification needs to occur as soon as reasonably possible considering factors like location, communication facilities and time of day. For instance, immediate notification from a remote location with limited communication facilities would be expected to take longer than immediate notification by a city-based business with ample communication facilities.

No. The WHS Act requires a PCBU to notify the regulator immediately after becoming aware that a ‘notifiable incident’ arising out of the conduct of the business or undertaking has occurred. The requirement for ‘immediate’ notification would not however prevent a person from assisting an injured person or taking steps to make the site safe and minimise the risk of a further notifiable incident.

In Australia a statutory requirement to take action ‘immediately’ has been interpreted [Perfect v NT, NT Supreme Court (1992) 107 FLR 428] as requiring the act to be done ‘as immediately as the circumstances permit’. This suggests that the timeframe for ‘immediate’ notification will be determined according to the particular circumstances of a notifiable incident.

If a notifiable incident has occurred, a PCBU must ensure that Comcare is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.

The person with management or control (PWMC) of the workplace at which the notifiable incident has occurred has a duty (as far as is reasonably practicable) to ensure that the incident site is not disturbed until an inspector arrives or at any earlier time that an inspector permits.

The duty to preserve the incident site does not prevent any action being taken:

• to assist an injured person
• to ensure that the site is safe
• that is associated with a police investigation, or
• where an inspector or Comcare has given permission.

Comcare currently has provisions for two methods of written notifications

• Fax—complete the notification form and fax to 1300 305 916.
• Online—complete the form as directed. Ensure the form is completed as per the notification requirements (i.e. notification of asbestos removal work must be notified 5 days prior to the commencement of work).

Comcare’s notification forms are available.

It is Comcare’s preference that you use the fax and online options in preference to email. This will ensure that the PCBU will comply with the legislative obligations as detailed in section 38(5) of the WHS Act.

Comcare has developed guidance to assist with notification of incidents under the WHS Act.

No. As a non-Commonwealth licensee under the WHS Act, you are only required to report incidents to Comcare as your regulator. Other internal reporting processes may be required between PCBUs who share workplaces or workers, and through any contractual arrangements, however these may not always be notifiable to Comcare as required by the WHS Act.

The decision about who will notify Comcare of any notifiable incident is made by the PCBU. This may mean that certain policies and procedures could detail who within the organisation is tasked with this to ensure that any notification is made in accordance with the WHS Act and WHS Regulations.

Part 4, section 40 of the WHS Act clarifies that the term ‘authorised’ means authorised by a licence, permit, registration or other authority (however described) that is required by regulation. It is intended to capture all kinds of authorisations that are required:

• before work can be carried out by a person (e.g. high risk work)
• for work to be carried out at a particular place (e.g. major hazard facility)
• before certain plant or substances can be used at a workplace.

The regulations may require certain kinds of workplaces (e.g. major hazard facilities), plant or substances or their design (e.g. high risk plant) to be authorised. Certain work or classes of work are required to be carried out only by, or on behalf of, a person who is authorised. These certain kinds of work or classes of work can only be carried out by, or under, supervision of a person who is appropriately qualified and experienced.

Comcare manages the following authorisations within the Commonwealth jurisdiction:

• MHF registration and licensing
• High risk work licensing
• Asbestos removal licensing
• Asbestos assessor licensing
• Use, handle or store prohibited or restricted carcinogens
• Accreditation for assessors for high risk work
• Exemptions—general or hazard specific
• Plant registration
• Plant design registration
• General induction training Cards
• Accreditation for Health and Safety Representative course providers

Yes. Associated with the listed authorisations managed by Comcare, there is also a requirement for a person to notify the regulator (regulatory notification) of the following:

• Schedule 11 hazardous chemicals
• Abandonment of tanks
• Pipelines
• Asbestos removal work including emergency demolition of structures containing asbestos
• Demolition work that involves a structure—or part of a structure—which is load bearing or otherwise related to the physical integrity of the structure and at least 6 metres in height. This involves load shifting machinery on a suspended floor or the use of explosives.
• Lead risk work
• Health monitoring reports which indicate an exposure to hazardous chemicals, asbestos fibres >0.02 fibres/ml or lead risk work

Comcare will provide guidance material for each authorisation on the website. Online forms will also be available for you to complete and forward to Comcare.

Some authorisations will have a fee associated with the application, others will not. The fee structure is being finalised.

The following authorisations will be fee based:

• Asbestos licences
• Asbestos assessor licences
• Accreditation for assessors for high risk work
• Exemptions
• High risk work licensing
• MHF licensing
• Plant registration
• Plant design registration
• General induction training cards

Yes. Where a licence, registration or accreditation has been provided by another WHS regulator, Comcare will recognise that authorisation.

The nature of consultation required under the WHS Act involves:

• sharing relevant information
• giving workers a reasonable opportunity to express their views, raise issues and contribute to decision making
• taking workers’ views into account
• advising workers of the outcome of consultation in a timely manner.

If the workers are represented by a Health and Safety Representative (HSR), the consultation must involve that representative.

If more than one person has a duty in relation to the same matter, each of those persons must consult, cooperate and coordinate activities with each other, so far as is reasonably practicable. There may be a number of different duty holders involved in an activity—they could be a supplier, a contractor, or the owner of the building where the work is carried out. Each duty holder can have an effect on work health and safety in relation to the activity and therefore must share information and cooperate with each other to ensure that each person can meet their health and safety duties effectively without gaps or inconsistencies.

Yes, so far as is reasonably practicable. A PCBU must consult with workers when:

• identifying hazards and assessing risks arising from work and 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, including those for consultation or resolving health or safety issues
• monitoring the health and safety of workers or workplace conditions at the workplace and providing information and training to workers
• carrying out activities prescribed by the WHS Regulations.

A PCBU may also choose to consult with workers about health and safety matters in other instances.

The WHS Act includes a broad obligation on the PCBU to consult with workers, as far as is reasonably practicable, about matters affecting or likely to affect their health and safety at work. The duty to consult allows for agreement between the workers and the PCBU on the procedures for consultation, but agreement on this is not compulsory.

The WHS Act outlines the nature of consultation and when consultation is required such as:

• when identifying hazards and assessing risk
• when making decisions about ways to eliminate or minimise those hazards or risks
• when proposing changes that may affect the health and safety of workers.

There is no legislated requirement for HSMAs under the WHS Act. However, if you have already established processes and/or procedures for communication and consultation on WHS that suits your workplace, you should monitor and review these in consultation with HSRs and workers to ensure that they continue to be effective and meet all the requirements of the new WHS laws. This may involve adapting your current HSMAs (or any other name that suits your needs) to reflect the consultative arrangements required by the WHS laws.

A health and safety committee (HSC) must be established on the request of a HSR or five or more workers who carry out work for the PCBU at the workplace. At least half the members of a HSC must consist of workers who are not nominated by the PCBU.

A HSC may be established by a PCBU at any time.

The constitution of a HSC may be agreed between the PCBU and the workers at the workplace. The WHS Act details that the following must apply to the constitution of any HSC:

• if there is a HSR at a workplace they are a member of the committee provided they consent
• if two or more HSRs are at a workplace then they may choose one or more of their number (who consent) to be members of the committee
• at least half of the committee must be workers who are not nominated by the PCBU.

If agreement can not be reached, an Inspector may be requested by any involved party to decide the matter provided that all reasonable attempts to resolve the matter have been attempted

A HSC must meet once every three months or at any reasonable time requested by at least half of the committee members.

A work group is a group of workers who share similar WHS concerns and conditions.

Any workers (as defined by the WHS Act) who share similar work health and safety concerns and conditions can be included in a work group.

A work group is generally 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 for the election of Health and Safety Representatives (HSRs), the PCBU must take all reasonable steps to commence negotiations within 14 days.

Negotiations determine the:

• number and composition of work groups
• number of HSRs and deputy HSRs
• workplace or workplaces to which the work groups will apply
• businesses or undertakings to which the work groups will apply.

Work groups determined under the repealed OHS Act are taken to be determined under the WHS Act. Work groups can continue to be varied or re-determined under the WHS Act.

In some cases, work groups in existence prior to the commencement of the WHS Act may not comply with new requirements. For example, a work group that has not been determined by agreement between the PCBU and workers would not comply [WHS Act section 52(1)].

Some appointed and elected positions continue under the WHS Act and are subject to transitional arrangements, including the positions of HSR, deputy HSR and HSC members.

The three-year term of a HSR as provided for under the WHS Act applies from when the HSR was appointed under the repealed OHS Act .

Yes. Workers from different businesses can be a part of the same work group. The definition of ‘worker’ under the WHS Act will extend to any person that carries out work in any capacity for a PCBU, including:

• employees
• contractors or sub-contractors (and their employees)
• an employee of a labor hire company who is assigned to work in the PCBU’s business
• an outworker
• an apprentice or trainee
• any student gaining work experience.

A work group is generally determined by negotiation and agreement between the person conducting the business or undertaking (PCBU) and the workers who will form the work group or their representatives. It may cover one or more workplaces.

Health and Safety Representatives (HSRs) represent work groups, comprising workers who carry out work for the PCBU. Before a HSR can be elected, to represent workers, the work groups need to be determined as this will define who the HSR is actually representing.

Upon request for election of HSRs, and where a work group has not already been determined, the PCBU must take all reasonable steps to commence work group negotiations within 14 days.

Negotiations determine the:

• number and composition of work groups
• number of HSRs and deputy HSRs
• workplace or workplaces to which the work groups will apply
• businesses or undertakings to which the work groups will apply.

The WHS Act no longer limits the number of HSRs and deputy HSRs for each work group. There can be as many elected HSRs and deputy HSRs, as is deemed necessary after consultation, negotiation and agreement between workers and their representatives in the work group.

An example of this may be where a work group is comprised of shift workers who work four rotation shift patterns. In this case, there can now be an elected HSR and deputy for each shift all under the one work group.

HSRs are generally only 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, a HSR from any other work group may step in to represent affected workers where:

• 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 work group
• a member of another work group asks for the representative’s assistance and the HSR/s for the work group are found, after reasonable inquiry, to be unavailable.

The role and functions of a HSR do not differ significantly from those that exist under the repealed OHS Act. The WHS Act enables a worker to ask a PCBU to facilitate an election of one or more HSRs to represent them. If such a request is made, the PCBU must facilitate the determination of one or more work groups. Workers can be broken into ‘work groups’, with each group having its own HSR/s. Elected HSRs will have a three-year term and can be re-elected.

HSRs who have undertaken an approved training course will be given powers to:

• inspect the workplace or any area where a member of the work group works
• accompany an Inspector during an inspection of the work area that the HSR represents
• be present at an interview about health and safety issues between a worker and an Inspector or the business (with the worker’s consent)
• request the establishment of a health and safety committee for the business
• monitor measures taken by the business in compliance with the WHS Act or Regulations
• represent the work group in matters relating to health and safety
• investigate health and safety complaints made by workers
• inquire into any risk to the health or safety of the work group
• issue a Provisional Improvement Notice (PIN)
• direct work to cease where there is a serious risk to the health or safety of workers emanating from an immediate or imminent exposure to a hazard.

HSRs are entitled to attend a WHS training course that has been approved by the regulator. Irrespective of whether the HSR has undergone training, the PCBU must still provide resources, facilities and assistance to the HSR enabling them to carry out their functions.

If the HSR chooses not to attend an approved training course, they can not exercise certain powers (e.g. issue PINS or direct a person to cease unsafe work).

Yes. The Work Health and Safety (Transitional and Consequential Provisions) Act 2011 allows HSRs trained under the OHS Act to use all of the HSR powers detailed in Part 5 Division 3 of the WHS Act during the transitional period from 1 January 2012 to 31 December 2012.

No. HSRs trained under the repealed OHS Act remain HSRs for a period of three years from the date they were elected, including where this three-year period extends beyond 31 December 2012. However, those HSRs 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 within the first 12 months of commencement of the WHS Act.

HSRs elected and trained under the repealed OHS Act, who wish to continue to exercise all of the powers after this time will be required to complete an initial five day training course under the WHS Act—or lose the two specific powers as detailed above.

All workers who form a part of the work group will determine the election of HSRs for the work group they are in.

Comcare, as the Commonwealth WHS regulator, will continue to approve training providers for the delivery of HSR courses to the Commonwealth jurisdiction. Only those training providers approved by Comcare will be eligible to deliver HSR training to the Commonwealth jurisdiction.

HSRs are not personally liable for anything done or omitted to be done in good faith when exercising a power or performing a function under the WHS Act—or in the reasonable belief that their actions were authorised under the WHS Act.

Yes. A HSR can be disqualified if they have acted inappropriately when exercising a power, function, or when disclosing information.

Where agreement can not be reached by multiple HSRs in a single work group, discussions need to take place between the involved parties and the PCBU. If agreement can not be reached after all reasonable steps are taken to resolve the issue, an Inspector may be called upon to assist with resolving the issue. Only a HSR who has undertaken an approved training course may exercise the powers of a HSR in accordance with the WHS Act.

A worker, which includes:

• employees
• independent contractors
• sub-contractors
• outworkers
• apprentices
• work experience students
• trainees
• volunteers who work in an employment-like setting.

All these individuals are eligible to be HSRs or deputy HSRs provided they are workers within a defined work group. A work group, once defined, includes all workers as indicated above. It is the workers within a work group that elect their representative. This may mean that the elected HSR could be employed by another PCBU.

Parties to an issue must use the issue resolution process under the WHS Act if a work health or safety matter is not resolved after consultation and discussion between the parties. The relevant parties are the PCBU, the HSRs for affected workers, and if none, the affected workers or their representatives.

Parties to the issue are required to make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant procedure. If there is no agreed procedure, the default procedure prescribed by the WHS Regulations should be used.

If the issue remains unresolved after reasonable efforts have been made, an Inspector may be asked to assist with resolving the issue. The Inspector may seek further information including:

• number and location of workers affected by the issue
• any relevant accepted industry practice consistent with the WHS Act and Regulations
• requirements for the management of risk
• any persons required to assist in early resolution.

PCBUs and WHS practitioners/advisors should be aware that a worker may cease, or refuse to carry out, work if the worker has a reasonable concern they would be exposed to a serious risk to health or safety, emanating from an immediate or imminent exposure to a hazard.

The WHS Act requires workers who cease work to notify the relevant PCBU that they have ceased unsafe work as soon as practicable after doing so. PCBUs are able to re-direct workers who have ceased unsafe work to carry out suitable alternative work at the same or another workplace. The suitable alternative work must be safe and appropriate for the worker to carry out until they can resume normal duties

In the first instance, a worker will more than likely let their manager know of the unsafe work and the manager will need to consider how to provide ‘suitable alternative work’ for the worker to undertake until the issue has been resolved. This may mean the PCBU will need to consult with senior leaders and the HSRs for the affected work group (if one exists).

Once made aware a worker has ceased unsafe work, the WHS practitioner/advisor should:

• follow any internal policy or procedure for a notifiable incident—this will assist with meeting the notification requirements placed on the PCBU under the WHS Act and ensuring the manager puts in place some immediate risk controls and that no other worker is at risk
• undertake an immediate risk assessment of the work area in consultation with the manager and any work group HSR to ensure that no other workers are affected or at risk, and that the risk is contained
• communicate and consult with all affected or potentially affected parties to assist in determining the most appropriate options for resolving the issue, i.e. risk controls.

The WHS Act provides that a worker may cease or refuse to carry out work if the worker has a reasonable concern that to carry out the work would expose them to a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard.

If a worker ceases work they must notify the PCBU that they have ceased unsafe work as soon as practicable after doing so. The worker must remain available to carry out suitable alternative work which is safe and appropriate until they are able to resume normal duties. The worker’s entitlements are preserved during any period for which work is ceased.

The WHS Act also provides that a HSR may direct a worker from the work group they represent to cease work, if they have a reasonable concern that to carry out the work would expose the worker to a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard.

Before a HSR can direct cessation of work they must have completed initial training prescribed by the WHS Regulations, have previously completed such training when acting as a HSR for another work group, or completed equivalent training under a corresponding WHS law.

The HSR must consult about the matter with the PCBU for whom the workers are carrying out the work, and attempt to resolve the matter using the issue resolution process, before giving a direction to cease unsafe work.

The HSR may direct the worker to cease work without attempting to resolve the matter if the risk is serious and due to the immediate or imminent risk it is not reasonable to consult or attempt to resolve the issue before giving the direction to cease work. The HSR must consult with the relevant PCBU as soon as practicable after giving the cease work direction.

The relevant HSR, PCBU or worker may ask Comcare to appoint an Inspector to attend the workplace to assist with resolving an issue arising in relation to the cessation of work.

Yes. WHS entry permit holders must undertake prescribed training which covers matters such as right of entry, issue resolution and risk management requirements. The WHS Regulations contain details about the training. Training providers have to be approved by Comcare.

If there is no suspected contravention of the WHS legislation, the WHS entry permit holder must give the PCBU at least 24 hours notice—but not more than 14 days notice—before entering their workplace. The permit holder can enter the workplace and consult those workers who wish to be consulted on WHS matters, and provide them with advice on those matters.

A WHS entry permit holder can enter a workplace without notice if they are inquiring into a suspected contravention of the WHS legislation. As soon as is reasonably practicable after entering the workplace, the permit holder must advise the relevant PCBU—and the manager of the workplace—of their entry, and the nature of the suspected contravention. The permit holder can inspect any part of the workplace that is directly relevant to the contravention, consult with any workers who are directly relevant to the contravention, and view and copy documents that are directly relevant to the contravention. If they want to inspect employee records or documents held by a third party, they must give 24 hours notice.

An Inspector may attend a workplace to assist with resolving a dispute over right of entry. However, an Inspector is not empowered to make any determination about the dispute.

Fair Work Australia, as the authorising authority, may deal with a dispute about a WHS entry permit holder’s exercise of a right of entry. It can deal with such a dispute on its own initiative or on application by a party to a dispute or the regulator. The authorising authority may deal with the dispute in an appropriate manner by mediation, conciliation or arbitration. If Fair Work Australia deals with the dispute by arbitration it can revoke or suspend a WHS entry permit or make any other order it considers appropriate.

A WHS entry permit holder is not empowered under the WHS Act to order cessation of work for an alleged contravention. A WHS entry permit holder may warn any person whom the permit holder reasonably believes to be exposed to an immediate or imminent exposure of a hazard or risk.

Workers are able to cease unsafe work where they have reasonable concern that to carry out the work would expose them to a serious risk to their health or safety. A trained HSR can direct workers in their work group to cease unsafe work based on their reasonable concern that to carry out the work would expose workers to a serious risk to their health or safety.

Yes. A WHS entry permit holder may exercise their right of entry in relation to an area where relevant workers work (any worker that is or may be eligible to be a member of that union), or any other work area that directly affects the health or safety of those workers.

Yes. The WHS Act states that a union official is not obliged to volunteer their permit. However, if requested, they must produce it together with photo identification.

For the first time in the Commonwealth jurisdiction there is a union right of entry for health and safety purposes. The WHS Act confers rights on a person who holds an office in, or is an employee of, a union—WHS entry permit holders. They are able to enter workplaces and exercise certain powers while at those workplaces.

WHS entry permit holders who are exercising, or proposing to exercise a right of entry, have to meet certain requirements.

A WHS permit holder may do any of the following when entering a workplace to inquire into a suspected contravention:

• inspect anything relevant to the suspected contravention including work systems, plant, substances
• consult with relevant workers or the relevant PCBU about the suspected contravention
• direct the relevant PCBU to allow entry to inspect and make copies of any document that is accessible from a computer at the workplace that is directly relevant to the suspected contravention, other than an employee record
• warn any person of a serious risk to his or her health or safety resulting from an immediate or imminent exposure to a hazard that they reasonably believe that person is exposed to.

No. Under the WHS Act a person cannot refuse, or unduly delay, entry to a permit holder who is entitled to enter, unless there is a reasonable excuse.

Any entrant to a Commonwealth workplace would be expected to comply with WHS entry requirements. This includes site induction and any other reasonable health and safety request. In addition, a WHS entry permit holder exercising powers can prejudice national security or Australia’s defence.

Yes. The authorising authority can revoke a permit on a number of grounds, such as contravention of the permit holder’s permit conditions, or improper behaviour. The authorising authority will provide written notice setting out the grounds for revoking the permit to both the permit holder and the relevant union. Anyone listed in section 138(1) of the WHS Act can apply to have a permit revoked, e.g. the regulator, PCBU or anyone affected by the actions of the permit holder.

Yes. Unlike the OHS Act 1991, there is no requirement for an Inspector to commence an investigation before being able to exercise a right of entry to a workplace.

Inspectors may enter any place they reasonably suspect is a workplace at any time and without prior notice to exercise their powers. As soon as reasonably practicable after entry an Inspector must provide notification of entry to a PCBU, a person with management and control of the workplace and any Health and Safety Representative. However, an Inspector is not required to provide notification if that would defeat the purpose of entry or would cause delay in investigating the suspected contravention.

An Inspector may undertake a number of actions, including:

• inspecting, examining and making inquiries
• taking measurements, conducting tests and making sketches or recordings
• taking and removing samples for analysis
• requiring the production of documents
• asking questions and conducting interviews
• seizing anything as evidence
• requesting a person’s name and address
• taking affidavits
• exercising any other power that is reasonably necessary for the purposes of the WHS Act.

It is an offence to hinder or obstruct, impersonate, assault, threaten or intimidate an Inspector.

Upon entry into a workplace an Inspector will take all reasonable steps to notify the PCBU or PWMC.

A Comcare Inspector will endeavor to provide a report within 24 hours following a site visit or intervention. For more complex matters the Inspector will liaise with affected parties and inform them of the anticipated timeframe for the completion of the report.

You may not be advised in advance of attendance, however an Inspector will give you the opportunity to allow entry on arrival at the place the warrant is to be executed (served).

Section 171 of the WHS Act requires you to answer questions put to you by an Inspector when they advise you they are using that power. Section 172 of the WHS Act states you are not excused from answering the questions on the grounds you may incriminate yourself. However, as an individual the information you provide can not be used in evidence against you in court. Nothing prevents your common law right to silence, however remaining silent may result in an offence against Section 171 of the WHS Act which has a maximum penalty to an individual of $10 000.

Comcare understands this can be complex to understand and the Inspector will provide you as much information as possible to assist you in your understanding.

Comcare recommends you seek legal advice if you are unsure of your requirements.

Yes, if the Inspector believes the thing is evidence of an offence against the WHS Act.

Infringement notices are a mechanism for WHS regulators and Inspectors to impose an immediate form of punishment for certain types of breaches, sending a clear and timely message that there are consequences for non-compliance.

Infringement notices will generally be issued where there is some punishment warranted for the breach but the nature of the breach is not serious enough to warrant prosecution.

Infringement notices are only available for certain types of offences because WHS regulators recognise that they are only appropriate where:

• the offence involves a contravention of a more minor nature
• the offence does not arise under Part 2 of the WHS Act
• the offence provision does not include qualifying phrases such as ’reasonably practicable’
• a prosecution of the offence would not give rise to a right to trial by jury
• the offence provision is one of strict or absolute liability
• there is prima facie evidence that an offence has been committed
• a financial penalty is attached to the offence provision.

Comcare does not intend to issue infringement notices until 1 July 2011.

Comcare and all WHS regulators will be obliged to adhere to a national compliance and enforcement policy. In addition, regulators will publish their own information about compliance and enforcement activities and priorities.

In the event of an alleged contravention of the WHS Act, Comcare may accept a WHS undertaking given by the person who is alleged to have committed the contravention.

A WHS undertaking is a legally binding agreement about achieving WHS outcomes. Where legal proceedings have not been instituted, acceptance of the undertaking will mean that no proceedings will commence.

When a proposed undertaking is accepted, any legal proceedings connected to the alleged contravention must be discontinued.

Comcare can accept a written undertaking provided an application under section 231 of the WHS Act is not under consideration.

A WHS undertaking takes effect and becomes enforceable when the regulator’s decision to accept the undertaking is given to the person who made the undertaking

The WHS Act allows for certain decisions made by an Inspector or regulator to be reviewed either internally by an independent reviewer assigned by Comcare or externally by FairWork Australia.

In general, reviewable decisions made by an Inspector are reviewable by Comcare internally in the first instance and then may go on to external review. Reviewable decisions made by the regulator go directly to external review.

Note: For a more detailed list of what is a reviewable decision refer to section 223 of the WHS Act and Part 11.1 of the WHS Regulations.

An eligible person can be:

• a PCBU
• a worker
• a HSR
• an applicant for a licence or registration
• a licence or registration holder
• an applicant for accreditation—such as an assessor or a registered training organisation whose interests have been affected by a decision.

For some decisions more than one eligible person may have interests that are affected by a reviewable decision, for example a PCBU, a worker or a HSR. Any eligible person may apply for internal review of the same decision.

Note: For a more detailed list refer to section 223 of the WHS Act and Part 11.1 of the WHS Regulations.

Yes. Whenever an Inspector or Comcare makes a decision on a matter that is reviewable, it will be brought to your attention at the time of you being made aware of this decision.

An eligible person applying for an internal review has within 14 days of the decision first coming to their attention as the eligible person (or longer as determined by Comcare).

An application can be completed online and forwarded to Comcare. Future guidance material will be made available on our internal review process, including the manner and form required by Comcare.

• Application for internal review [PDF,161KB]

The statutory timeframe for the review to be conducted commences once a completed, valid application is received. If an incomplete application is initially received, this will be taken into account when considering whether lodgment of a complete application outside the statutory timeframe is to be accepted.

The reviewer is required to take into account all relevant information and material available, and decide if the decision under review is the correct and appropriate one and should be confirmed. If not, they must set aside the decision and substitute another decision, or vary the decision so that the correct and appropriate decision is made.

Comcare is required to notify the applicant in writing of the decision and the reasons for it after 14 days of receiving the application.

Section 228(1) of the WHS Act provides that an application for review of a reviewable decision (other than a decision to issue a prohibition notice or non-disturbance notice) automatically stays the reviewable decision.

Regulation 10.1.8 of the WHS Regulations does not provide for an automatic stay of the reviewable decision.

If you are not satisfied with the decision made on your application you can refer the matter for external review to FairWork Australia.

Applications for external review of a reviewable decision must be made with FairWork Australia within 28 days of a decision being made by the regulator or a decision made or taken to have been made on internal review.

Details on how to make an application with FairWork Australia will be available on Comcare's website soon.

• Guidance for applicants:external review of decisions [PDF,429KB]

At common law, there is a strong presumption that the Crown is not bound by legislation in the absence of clear legislative intent and there is a strong presumption against imposing criminal liability on the Crown. This is referred to as the shield of the Crown. It is clear that the WHS Act is intended to apply to and impose criminal liability on the public sector. In the federal jurisdiction, this is the first time that the Crown can be liable for a criminal offence and be the subject of an infringement notice.

Yes. Comcare will continue to publish this information to act as a deterrent to others and to promote a safety culture within Australia and the places Australians work.

If an Inspector has reasonable grounds to believe that a person has contravened a provision enforceable under the WHS Act.

Within 12 months after the day on which the contravention is alleged to have taken place

Codes of practice should be referred to in addition to the WHS Act and Regulations to ensure compliance with WHS laws. A code of practice is admissible in proceedings as evidence of whether or not a duty has been complied with.

Courts may regard a code of practice as evidence of what is known about managing a hazard, risk or control and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.

While there is no statutory requirement that codes of practice under the WHS Act must be followed, an approved code of practice applies to anyone who has a duty of care in the circumstances described in the code. In most cases, following an approved code of practice would achieve compliance with the health and safety duties in the WHS Act, in relation to the subject matter of the code.