Australia: Singing In Tune? OH&S Harmonisation in Australia

On 1 January 2012, the occupational health and safety laws in each Australian state and territory will be reformed to 'harmonise' occupational health and safety principles, obligations and procedures across Australia. This was achieved through the adoption of the Model Work Health and Safety (WHS) Act (model act) by the states and territories.

Currently, South Australia, Queensland and New South Wales have all passed legislation to bring this change into effect. Western Australia has indicated that it will adopt the majority of the model act (albeit not in its entirety) while the remaining states, territories and the Commonwealth are expected to introduce their legislation before the end of the year.

Although the model act draws on existing workplace health and safety laws, it changes the manner in which businesses, their employees and workplace representatives interact to protect and promote health and safety in the workplace.

The degree to which these changes will be felt by businesses will largely be determined by the location of operations and manner in which work practices need to be modified in order to be compliant with the new regime. Accordingly, harmonisation with the model act will require different degrees of change from each state and territory.

In many cases, this will mean that businesses, and persons involved in the businesses, will have more onerous obligations in the provision of workplace health and safety than under previous legislative regimes.This article discusses a number of the key changes associated with the harmonisation process relevant to businesses, in particular focusing on duties of relevant parties, consultation requirements and workplace entry by permit holders under the model act.

DUTY HOLDERS  Persons conducting a business or undertaking

  • A person conducting a business or undertaking (PCBU) will have the primary duty of care under the model act to ensure, so far as is reasonably practicable, the health and safety of:workers it engages or causes to be engaged; and
  • workers whose activities in carrying out work are influenced or directed by the business or undertaking, while the workers are at work in the business or undertaking.

Under the model act, the term 'worker' is taken to mean a person who carries out work in any capacity for the PCBU including a contractor, subcontractor, labour hire worker and volunteer. The expansive definition of worker will mean that businesses will owe a duty to a larger category of individuals. 

A PCBU will also be required, so far as reasonably practicable, to ensure that the health and safety of other persons is not put at risk as a result of work carried out as part of the conduct of their business or undertaking, such as customers, suppliers and members of the public.


Under the model act, officers have a positive duty to exercise 'due diligence' to ensure that a PCBU complies with any duty or obligation. An officer is broadly defined and is likely to include senior managers of an organisation. Due diligence is defined as including taking reasonable steps to:

  • acquire and keep up-to-date knowledge of workplace health and safety matters;
  • understand the operations being carried out by the PCBU they are employed by, and the hazards and risks associated with the operations;
  • ensure that the PCBU has, and uses, appropriate resources and processes to eliminate or minimise health and safety risks arising from work being done;
  • ensure that the PCBU has appropriate processes in place to receive and respond promptly to information regarding incidents, hazards and risks; and
  • ensure that the PCBU has, and uses, processes for complying with duties or obligations under the model act.

If officers fail to exercise due diligence they may be liable for penalties and/or imprisonment irrespective of whether there has been an injury or incident at the workplace.


Workers will owe a duty to take reasonable care for their own health and safety while at work and to comply with any reasonable instruction, policy or procedure concerning workplace health and safety. Workers are also required to take reasonable care so that their acts or omissions do not adversely affect the health and safety of other persons at the workplace.

Other persons at the workplace

Similarly, other persons at the workplace will have a duty to take reasonable care for their own health and safety, and to take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of others. These individuals will also be required, as far as they reasonably can, to comply with a reasonable instruction given by the PCBU to ensure compliance with the model act.


Under the model act, a PCBU will be required to consult with their workers who may be directly affected by matters relating to workplace health or safety. Consultation will need to be commensurate with the significance of the issue raised, urgency of the required change and availability of affected workers and their representatives.

Practically this means that PCBUs  will need to:

  • share relevant information about workplace health or safety matters with their workers;
  • provide a reasonable opportunity for workers to express views and raise issues;
  • consider workers' views in relation to workplace health or safety matters;
  • advise workers of relevant outcomes in a timely matter; and
  • ensure they involve any relevant health and safety representatives in this process.


The model act makes provision for the appointment of Health and Safety Representatives (HSR).

In essence HSRs will represent the interests of particular workgroups and, upon agreement between relevant parties, operate across multiple businesses or undertakings.

Under the model act, HSRs will have the power to undertake various forms of action including, but not limited to, directing work to cease in circumstances where work poses an immediate threat to a person, issuing provisional improvement notices, monitoring PCBU compliance with the new legislation and investigating complaints from workers about health and safety matters.

Workers in a work group will have the power to determine how an election of a HSR is to be conducted, as long as it complies with the regulations, and can choose to be assisted by a union if the majority so determine. Importantly, a PCBU must provide reasonable resources, facilities and assistance to enable the elections to be conducted.


PCBUs must establish a health and safety committee if requested to do so by a HSR or five or more workers, or if required to do so under a regulation.

The Health and Safety Committee can assist in facilitating co-operation between the PCBU and the relevant workers in instigating, developing and carrying out measures designed to ensure workplace health and safety, assisting to develop relevant standards, rules and procedures for the workplace and any other functions agreed between the PCBU and the committee or as prescribed under the regulations.

Importantly the PCBU must allow health and safety committee members to attend committee meetings (held at least once every three months) and pay them for their attendance. The PCBU must allow the committee access to information relating to hazards at the workplace and the health and safety of the workers at the workplace. This does not include personal or medical information unless the person consents.


Under the model act, an office holder or an employee of a union (WHS entry permit holder) can enter a workplace in order to enquire about a suspected contravention of the new legislation that relates to a relevant worker and to consult in relation to health and safety matters with a relevant worker.

When entering a relevant workplace to investigate a suspected contravention, WHS entry permit holders can:

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

A WHS entry permit holder cannot enter a workplace unless he or she also holds an entry permit under the Fair Work Act 2009 (Cth) or is authorised to enter a workplace under another state workplace law.

Under the model act, unions will no longer have the power to prosecute for breach of an occupational health and safety law, with the regulator performing this function. Controversially, New South Wales has retained the right of unions to prosecute breaches of the act.


Businesses need to ensure that by 1 January 2012:

  • new workplace health and safety systems and processes are in place that comply with the new legislation; and  
  • all duty holders are aware of their responsibilities under the new legislation and the powers that can be exercised in respect of their workplaces.

Cooper Grace Ward was named Best Australian Law Firm in the BRW Client Choice Awards 2010 - Revenue < $50m. Joint Best Australian Law Firm in the BRW Client Choice Awards 2009 - Revenue < $50m.
The firm has also been named as the fastest growing law firm in Australia for 2009 by The Australian.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.