Australia: OHS Model Regulations released

Last Updated: 21 December 2010
Article by Andrew Ball and Donna Trembath

Safe Work Australia, which is responsible for developing harmonised work health and safety laws, has issued draft model Work Health and Safety Regulations and model Codes of Practice for public comment before 4 April 2011.

Model OHS laws

The Model Work Health and Safety Bill 2009 was recently agreed by the Commonwealth and state/territory governments (except WA, which has noted objections to aspects of the legislation). The intention is to harmonise OHS laws by implementing uniform legislation in each state and territory. The model laws are intended to be implemented by December 2011, with commencement on 1 January 2012.

However, the position taken by the WA government and the NSW government, which has more recently objected to aspects of the proposed model Act, may impact whether the model laws proceed at all, or if they proceed within the stated time frame.

Draft regulations

The model Work Health and Safety Regulations contain the prescriptive requirements that assist employers to meet their general duties under the model Act to ensure workplace health and safety.

As expected, the Regulations are voluminous (over 500 pages) and deal with a broad range of matters including employee consultation, right of entry, control measures for particular hazardous work (eg work involving fall hazards), regulation of plant and structures, construction work and hazardous chemicals.

A breach of the Regulations may lead to a fine of up to $30,000, or an on-the-spot fine of up to $6,000.

Draft codes of practice

Under s 275 of the model Act, an approved code of practice is admissible in proceedings as evidence of whether or not a duty or obligation under the Act has been complied with. The court may regard the code as evidence of what is known about a hazard or risk and rely on the code in determining what is reasonably practicable in the circumstances. Therefore, it is imperative that employers follow the codes.

Safe Work Australia has released the following codes for comment:

  • How to Manage Work Health and Safety Risks
  • How to Consult on Work Health and Safety
  • Managing the Work Environment and Facilities
  • Facilities for Construction Sites
  • Managing Noise and Preventing Hearing Loss at Work
  • Hazardous Manual Tasks
  • Confined Spaces
  • How to Manage and Control Asbestos in the Workplace
  • How to Prevent Falls at Workplaces
  • How to Safely Remove Asbestos
  • Labelling of Workplace Hazardous Chemicals
  • Preparation of Safety Data Sheets for Hazardous Chemicals.

Although it is likely that these codes will be implemented at the same time as the model Act (from January 2012), development and implementation of further codes and guidance material will continue beyond December 2011.


The Regulations require businesses that commission construction work on a structure (eg a building or bridge) to consult with the designer of the structure. The Regulations also prescribe certain consultation requirements for operators of major hazard facilities.

The draft Code dealing with consultation makes it clear that the model Act will require employers to consult, so far as is reasonably practicable, with not only employees but also contractors, sub-contractors and their employees, labour hire personnel, volunteers and any other people working for the business who are directly affected by a health and safety matter. The draft Code states that businesses are not expected to do the impossible, but are required to take a proactive and sensible approach to consultation, for example:

  • It may not be reasonably practicable to consult with workers on extended leave.
  • Urgent responses to a risk may limit consultation.
  • Businesses only need to consult with workers who could be directly affected by a particular health or safety matter (not all workers)

Right of entry

The Regulations set out the training that needs to be undertaken by a union official who seeks to enter a workplace to investigate, inspect, consult or advise on workplace health and safety issues. The training must be provided or approved by the relevant state or territory regulator (eg WorkCover). When a union official provides a business with a notice of entry to inquire into a suspected contravention or to inspect employee records, the notice must include particulars of the suspected contravention and a declaration that the contravention, and any records to be inspected, relate to or affect a worker who is eligible to be a member of the union.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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