A practical guide to the OHS regulatory framework
This guidance aims to provide a practical overview of the Commonwealth occupational health and safety regulatory framework. If you require more detail you may access Comcare's:
The OHS regulatory framework aims to eliminate risks to health and safety so far as is reasonably practicable. It does this by assigning general duty of care obligations to those who are in a position to control the generation of the risks. The general duties specify broad obligations to ensure the health and safety of employees, contractors and other persons present at, or near, a workplace.
Risk management is an important consideration in determining whether a general duty (qualified by reasonable practicability) has been complied with. As a general principle, if reasonably practical steps are available to a duty holder which would have reduced the risk of a foreseeable incident, and such steps are not taken, the general duty may have been breached. Essentially, a duty holder must weigh up prevention and control measures against a degree of risk when making decisions about how to respond.
The Commonwealth OHS regulatory framework
This framework consists of:
- The OHS Act
- Legislative instruments (including the regulations and Approved Code of Practice), and
- Guidance.
The OHS Act
The Occupational Health and Safety Act 1991 (OHS Act)
The OHS Act sets out the objects and core elements of the Commonwealth OHS regulatory framework and imposes mandatory obligations on duty holders (as defined in the Act) to comply with the general duties.
It defines:
- duty holders and their general duty of care obligations
- workplace arrangements including health and safety management arrangements, health and safety committees, designated work groups, and health and safety representatives, and
- the role of Comcare investigators in ascertaining whether there has been compliance with the Act and regulations.
Legislative Instruments
The regulations
The regulations also impose mandatory requirements for duty holders to comply with in managing occupational health and safety.
The regulations supplement the OHS Act and provide more detailed information about the duties that apply in relation to particular hazards, other procedures and obligations associated with the Act.
Occupational Health and Safety (Safety Arrangements) Regulations 1991
These regulations cover:
- the HSR election process
- investigators and statutory notices, and
- details about incident notification.
Occupational Health and Safety (Safety Standards) Regulations 1994
These regulations cover general requirements for hazard identification, risk assessment and risk controls for high risk areas such as:
- competency standards for users and operators of industrial equipment
- occupational noise
- plant
- manual handling
- hazardous substances
- confined spaces
- storage and handling of dangerous goods
- major hazards facilities
- electrical safety
- driver fatigue
- construction work, and
- falls from 2 metres or more.
Approved Codes of Practice
For the purpose of providing practical guidance to employers, the Minister for the Department of Education, Employment and Workplace Relations (DEEWR) may approve codes of practice.
Currently there is one approved code of practice that applies to our jurisdiction, the Occupational Health and Safety Code of Practice 2008 (the OHS Code 2008). The OHS Code 2008:
- has 25 parts, 4 of which are still under development
- revokes all previous approved codes
- contains 18 parts which are revisions of former codes and 7 parts addressing new hazards, and
- the revoked codes addressing hazards not addressed in the new code are still available as guidance only.
The OHS Code 2008 provides practical guidance to duty holders under the OHS Act and associated regulations and should be followed unless there is another means of achieving the same or better standard of health and safety. The OHS Code 2008 is designed to ensure compliance with accepted health and safety standards and at the same time allow duty holders the flexibility to manage innovation and technological changes without reducing health and safety standards.
The OHS Code 2008 should be referred to in addition to the Act and regulations in relation to compliance with Commonwealth OHS requirements and may be admissible as evidence in proceedings for alleged breaches of the Act and associated regulations.
The OHS Code 2008 is a legislative instrument which:
- assists duty holders to comply with the provisions of the Act and regulations; and
- is admissible in evidence as an example of what reasonable practicable measures could have been adopted to avoid a specific risk.
Note: It is important to note that only codes of practice that are approved by the Minister under section 70 of the Act, have any legal status under the Act in that they are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. To the extent that a code of practice refers to another code, that code is incorporated into the code of practice to the extent referred to.
Guidance
Guidance material does not have any legal status under the Commonwealth OHS regulatory framework. There are generally two types of guidance material available:
- guidance produced by Comcare in relation to specific provisions of the OHS Act and regulations, and
- guidance produced by other jurisdictions or organisations.
Comcare guidance
Comcare guidance material is developed by Comcare and approved by either Comcare or the Safety Rehabilitation and Compensation Commission (SRCC). It provides information that will assist a duty holder to meet the requirements set out in the OHS Act and regulations.
There are a variety of booklets, fact sheets and web pages produced by Comcare on many issues (available on this website).
Other guidance
Duty holders may also wish to have regard to guidance material developed by other jurisdictions and or organisations e.g. Australian Standards, state or territory regulations or codes, National Standards, National Codes of Practice or international material. This sort of guidance may be helpful where our OHS legislation is silent on a specific topic or issue. However, it does not replace the general duties and specific obligations imposed by the OHS Act and regulations.
The pyramid of enforcement
The Pyramid of Enforcement represents the hierarchy of the documents that form part of the regulatory framework.
The legal status of the documents within the pyramid increases as we move higher up. At the level of the Act, they are more likely to be written in terms of general overarching duties.
As we move through the pyramid, the regulations and the Code, provide further detail to supplement parts of the Act. The guidance material, which is designed to explain certain parts of the Act and regulations, is not legally binding.
The achievement of general duties of care are mandatory. The process used to achieve the general duties, for example, a healthy and safe workplace, is flexible. The process used to achieve the general duties must be managed by an employer in consultation with employees, having regard to the nature of risks arising from the conduct of the employer’s undertaking.
The practical application of the OHS legislation
In summary, the main points for duty holders to consider when managing risks are:
Act and Regulations |
If a relevant requirement in the Act or regulations exists, you must follow the relevant requirements. |
Approved Codes of Practice |
If a relevant approved code of practice exists, compliance is mandated unless the same or better safety outcomes are achieved. |
Comcare Guidance / Other Guidance |
If no Commonwealth regulation or approved code exists, you may wish to have regard to relevant guidance produced by Comcare or any other reliable guidance as well as conducting your own risk assessments. |
Further information
For further information, please contact Comcare on the General Enquiry Line 1300 366 979, or email: