WHS Series – Important points to be aware of

Unlike other laws, WHS laws aren’t only contained in an Act and regulations, they include Codes of Practice.

The reason why this is important to know is because:

  • The WHS Act 2011 - contains the legal duties and obligations that everyone in the workplace must comply with.

  • The WHS Regulation 2016 - identify the steps and processes that everyone must follow in order to comply with those duties and obligations.

  • A Code of Practice - provides more detailed information on how everyone can comply with their legal duties and obligations under WHS laws.

The contents of this guide are for information purposes only and should not be treated as being legal advice.

This guide provides an overview of important points to remember about WHS laws.

What WHS Laws are designed to achieve

The object of the WHS laws is “to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces”¹.

This is achieved by:

  • protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising:

    • from work, or

    • from specified types of substances or plant².

  • providing for fair and effective workplace:

    • representation,

    • consultation,

    • co-operation, and

    • issue resolution

    in relation to work health and safety.

  • encouraging unions and employer organisations to take a constructive role in:

    • promoting improvements in work health and safety practices, and

    • assisting persons conducting businesses or undertakings (PCBUs) and workers to achieve a healthier and safer working environment.

  • promoting the provision of:

    • advice,

    • information,

    • education, and

    • training

    in relation to work health and safety.

  • securing compliance with this Act through effective and appropriate compliance and enforcement measures.

  • ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act.

  • providing a framework for continuous improvement and progressively higher standards of work health and safety.

  • maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

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¹ Section 3 of the WHS Act 2011.

² NOTE – under WHS laws, workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.

Health & safety (H&S) duties under WHS laws

Are both ‘risk-based’…

The general rule

In terms of harm, WHS laws are ‘risk-based’.

This means that everyone in the workplace can breach their H&S duty even if their actions do not result in actual harm to anyone.

The exception to this rule

The exception to this rule (for obvious reasons) relates to the offence of industrial manslaughter.

… and ‘outcomes-based’

The duty to ‘ensure health & safety’ are ‘outcomes-based’ in that the duty holder must either:

  • eliminate the risks to health & safety (as far as reasonably practicable), or

  • if it is not reasonably practicable to eliminate the risk, minimise the risks to health & safety (as far as reasonably practicable)³.

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³ Section 17 of the WHS Act 2011.

It is a mistake to think that WHS Laws only relate to health and safety duties.

WHS laws contain other obligations as well.

The main obligations for a PCBU of and others in a small to medium sized business (assuming they have no Health & Safety Representatives or Health and Safety Committees) are illustrated by the diagram on the next page.

WHS laws aren’t just about H&S duties

Other features of WHS laws

WHS laws are part of a national harmonised system

The WHS laws in NSW forms part of a national harmonised system that has been adopted by most other Australian jurisdictions.

Those WHS laws that belong to this system are called ‘model laws’.

However, despite being part of the system, each State and Territory may also include provisions that are specific to them.

The WHS laws that apply to your business will depend on where your business is operating.

This series assumes that you are operating in New South Wales and your regulator is SafeWork NSW.

WHS laws are designed to suit all types of businesses

WHS laws are intended to be:

  • broadly applicable to all organisations regardless of their size or industry; and

  • allow those organisations to tailor their approach to safety to suit their circumstances.

WHS laws are continually revised

When the WHS Act 2011 was first written, it was recognised that workers needed to be protected from new and emerging hazards arising from the changing nature of work and the workplace, so it was written in a way so it could be flexible enough to adapt to those changes.

Because of this, the WHS Act 2011 will be continuously reviewed (and revised) to ensure it remains fit for purpose and remain relevant throughout the evolving nature of work due to new and emerging business models, industries and hazards.

Some recent examples of where WHS laws have been updated include the gig economy and engineered stone.

Conclusion

It is important to understand that:

  • Everyone in the workplace owes a H&S duty
    – including workers and officers of the PCBU.

  • WHS laws are not just about H&S duties
    – they contain other obligations as well.

  • WHS laws in NSW are part of a national system
    – which are designed to be flexible enough to adapt to the changing nature of work and the modern workplace

The next guide in this series explains how everyone in the workplace owes a H&S duty.