Which work health and safety laws apply in your state?

What are the model WHS laws?

The model WHS laws are a nationally agreed package, developed and maintained by Safe Work Australia. The package has three parts:

• The model WHS Act — duties, and who holds them.
• The model WHS Regulations — detailed, enforceable requirements for specific hazards and activities.
• Model Codes of Practice — practical guidance on achieving the standards in the Act and Regulations.

Safe Work Australia does not regulate anyone. It writes the model. A jurisdiction only creates enforceable law when its parliament enacts its own WHS Act and makes its own regulations, and the local regulator — SafeWork NSW, WorkSafe Queensland, WorkSafe WA and so on — enforces them.

When did each jurisdiction adopt the model WHS laws?

• Commonwealth, Australian Capital Territory, New South Wales, Northern Territory, Queensland — 1 January 2012.
• South Australia, Tasmania — 1 January 2013.
• Western Australia — the WA Act passed on 10 November 2020 and became operational on 31 March 2022.
• Victoria — has not implemented the model WHS laws.

Western Australia’s late arrival still matters in practice: WA’s version departs from the model in a number of places, and guidance written before 2022 for WA may pre-date the current framework entirely.

How is Victoria different?

Victoria is the only jurisdiction not to adopt the model laws. It operates under the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety Regulations 2017 (Vic), administered by WorkSafe Victoria.

The duties and responsibilities are broadly similar in substance — the obligation to provide and maintain a safe working environment, to consult, and to control risk so far as is reasonably practicable. The language and structure differ, which is where organisations get caught out:

• Victoria uses “employer” rather than the WHS concept of a PCBU.
• Clause numbering is completely different. A Victorian regulation number will not map onto the model WHS Regulations.
• Some specific requirements genuinely differ, including in construction, where Victoria’s high-risk construction work provisions sit at a different regulation and have their own thresholds.

What is a PCBU?

In WHS jurisdictions, duties attach to a person conducting a business or undertaking (PCBU). It is deliberately broad: it captures companies, partnerships, sole traders, unincorporated associations and some volunteer organisations. It is not limited to the direct employer.

The point of the concept is that on a construction site several PCBUs typically hold duties to the same worker at the same time — the principal contractor, the subcontractor, a labour hire company, the plant owner. Those duties are concurrent. A PCBU cannot discharge its own duty by assuming another PCBU has it covered, which is why the WHS laws also impose an express obligation to consult, cooperate and coordinate with other duty holders.

What is the primary duty of care?

A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers and of other people affected by the work. “Health” expressly includes psychological health, not only physical safety.

“Reasonably practicable” is a defined test, not a judgement call. It weighs the likelihood of the hazard occurring, the degree of harm, what is known about the hazard and ways to eliminate or minimise it, the availability and suitability of controls, and — last, and only after the others — cost. Cost can only be weighed once the other factors have been considered, and it will not excuse a failure where the risk is significant and a control is available.

The duty is to eliminate the risk so far as is reasonably practicable, and only to minimise it where elimination is not reasonably practicable. That order is the hierarchy of control, and it is a legal requirement, not best practice.

Who else holds duties?

The primary duty sits with the PCBU, but it is not the only one:

• Officers — directors and senior decision-makers — have a positive, personal duty of due diligence. They must actively acquire and keep up to date knowledge of WHS matters, understand the operations and their hazards, ensure appropriate resources and processes, and verify they are being used. This duty cannot be delegated and is not discharged by appointing a safety manager.
• Workers must take reasonable care for their own health and safety, take reasonable care not to affect others, comply with reasonable instructions, and cooperate with policies.
• Other persons at a workplace — visitors, clients, delivery drivers — hold a narrower version of the same duty.
• Designers, manufacturers, importers, suppliers and installers hold duties over plant, substances and structures they put into the chain.

Does 'harmonised' mean identical?

No — and treating it as though it does is the most common compliance error in national operations.

Each jurisdiction enacted its own version of the model, and each has since amended it on its own timetable. Differences arise in penalty levels, industrial manslaughter provisions, specific hazard thresholds, licensing and notification requirements, and in how codes of practice are approved.

Requirements also change. Thresholds in the construction regulations in particular have been amended by individual jurisdictions in recent years, sometimes in opposite directions. For any numeric threshold — a fall height, a load, a distance, a concentration — check the current regulation in the jurisdiction where the work is happening, on the regulator’s own site, rather than relying on a figure remembered from training or copied from another state.

Where do Codes of Practice fit?

A model Code of Practice becomes an approved code of practice only when a jurisdiction approves it. Once approved, it is admissible in proceedings as evidence of what is known about a hazard and of reasonably practicable ways to control it.

You are not obliged to follow an approved code to the letter. You are obliged to achieve an equivalent or better standard, and if you depart from the code you should be able to show how. In practice, a regulator’s first question after an incident is usually whether the relevant approved code was followed, and if not, what was done instead.

Which codes are approved varies by jurisdiction, so check the local regulator’s list rather than assuming a Safe Work Australia model code applies where you are.

Frequently asked questions