Understanding your legal obligations is the foundation of effective workplace safety. This guide explains the key elements of Australian WHS legislation and what they mean for your business.
The WHS Framework
Australia operates under a harmonized WHS framework that includes:
- Model WHS Act – The primary legislation establishing duties and obligations
- Model WHS Regulations – Detailed requirements for specific hazards and activities
- Codes of Practice – Practical guidance on meeting legal requirements
- Australian Standards – Technical specifications often referenced in legislation
Most states and territories have adopted the model laws, though some variations exist (notably in Victoria and Western Australia).
Key Duty Holders
The WHS Act defines several categories of duty holders, each with specific obligations:
Person Conducting a Business or Undertaking (PCBU)
The PCBU is the central duty holder under the Act. A PCBU can be:
- A company or corporation
- A sole trader
- A partnership
- A government department or agency
- A not-for-profit organization
The PCBU has the primary duty of care to ensure, so far as is reasonably practicable, the health and safety of:
- Workers engaged by the PCBU
- Workers whose work is influenced or directed by the PCBU
- Other persons who may be affected by the work
Officers
Officers (such as company directors) have a duty to exercise due diligence to ensure the PCBU complies with its WHS duties. This includes:
- Acquiring and keeping knowledge of WHS matters
- Understanding the nature and operations of the business
- Ensuring adequate resources and processes for WHS
- Ensuring appropriate reporting and response systems
- Verifying that resources and processes are actually being used
Workers
Workers have duties to:
- Take reasonable care for their own health and safety
- Take reasonable care not to adversely affect others
- Comply with reasonable WHS instructions
- Cooperate with reasonable WHS policies and procedures
Other Persons at Workplaces
Visitors, customers, and other persons at workplaces must:
- Take reasonable care for their own health and safety
- Take reasonable care not to adversely affect others
- Comply with reasonable WHS instructions
The Primary Duty of Care
The PCBU's primary duty requires providing and maintaining, so far as is reasonably practicable:
- A work environment without health and safety risks
- Safe plant and structures
- Safe systems of work
- Safe use, handling, and storage of substances
- Adequate facilities for worker welfare
- Necessary information, training, instruction, and supervision
- Health monitoring and workplace monitoring
What is "Reasonably Practicable"?
This key term means what is reasonably able to be done, taking into account:
- The likelihood of the hazard or risk occurring
- The degree of harm that could result
- What the person knows or ought to know about the hazard
- The availability and suitability of ways to eliminate or minimise the risk
- The cost of eliminating or minimising the risk
Cost can only be considered after the first four factors, and the duty holder must demonstrate that costs are grossly disproportionate to the risk.
Consultation Requirements
PCBUs must consult with workers who are, or are likely to be, affected by WHS matters. This includes:
- Identifying hazards and assessing risks
- Making decisions about risk controls
- Proposing changes that may affect WHS
- Providing information and training
Consultation must be genuine and provide workers with a reasonable opportunity to contribute.
Penalties for Non-Compliance
The WHS Act includes significant penalties for breaches:
Category 1 – Reckless Conduct
- Reckless conduct exposing a person to risk of death or serious injury
- Individual: Up to 5 years imprisonment and/or $600,000 fine
- Body corporate: Up to $3,000,000 fine
Category 2 – Failure to Comply (Exposing to Risk)
- Failure to comply with a duty exposing a person to risk
- Individual: Up to $300,000 fine
- Body corporate: Up to $1,500,000 fine
Category 3 – Failure to Comply
- Failure to comply with a duty
- Individual: Up to $100,000 fine
- Body corporate: Up to $500,000 fine
Industrial Manslaughter
Several jurisdictions now have industrial manslaughter offences with penalties including imprisonment for individuals and fines up to $18,000,000 for corporations.
Key Takeaways
- The WHS Act applies to all businesses regardless of size
- PCBUs have the primary duty to ensure health and safety
- Officers must exercise due diligence – ignorance is not a defence
- "Reasonably practicable" requires balancing risk and effort
- Consultation with workers is a legal requirement
- Penalties for breaches are severe, including imprisonment
Need to document your WHS system? Browse our policies and procedures and management systems.