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GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
OCTOBER 2012
Western AustraliaSAFEWORK
The materials presented in this publication are distributed by Safe Work Australia as an information source only.
The information and data in this publication are subject to change without notice. Safe Work Australia makes no statements, representations, or warranties about the accuracy or completeness of, and you should not rely on, any information contained in this publication.
Safe Work Australia disclaims all responsibility and all liability (including without limitation liability in negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason.
This publication was produced by Safe Work Australia using information originally developed by Work Health and Safety Queensland and WorkSafe Victoria.
ISBN 978-0-642-78409-4 [PDF]
ISBN 978-0-642-78410-1 [DOCX]
Creative Commons
Except for the logos of Safe Work Australia, SafeWork SA, Workplace Standards Tasmania, WorkSafe WA, Workplace Health and Safety QLD, NT WorkSafe, Work Cover NSW, Comcare and WorkSafe ACT, this copyright work is licensed under a Creative Commons Attribution-Noncommercial 3.0 Australia licence. To view a copy of this licence, visit
http://creativecommons.org/licenses/by-nc/3.0/au/
In essence, you are free to copy, communicate and adapt the work for non commercial purposes, as long as you attribute the work to Safe Work Australia and abide by the other licence terms.
Contact information
Safe Work Australia
Phone: +61 2 6121 5317
Email: info@safeworkaustralia.gov.au
Website: www.safeworkaustralia.gov.au
1
TABLE OF CONTENTS
INTRODUCTION 2
WHS REGULATIONS AND CODES OF
PRACTICE ETC. (SECTIONS 274-276) 3
DEFINITIONS (SECTIONS 4-8) 4
WORK HEALTH AND SAFETY DUTIES 6
INCIDENT NOTIFICATION (SECTIONS 35-39) 12
CONSULTATION WITH WORKERS AND
REPRESENTATION OF WORKERS 15
WHS ENTRY PERMIT HOLDERS
(SECTIONS 116-151) 24
THE REGULATOR, INSPECTORS
AND ENFORCEMENT 27
OFFENCES AND PENALTIES 35
AUTHORISATIONS 40
GLOSSARY AND MORE INFORMATION 43
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
2 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
This guide provides an overview of the Work Health and Safety Act (WHS Act). It is
designed to help people generally understand their health and safety duties and rights
at work. Local versions of this guide may also be available at each work health and safety
regulator’s website.
It is not intended to be read in place of the WHS Act. To assist readers cross-references
to specific sections of the WHS Act are provided after each heading.
Nationally harmonised work health and safety laws
The WHS Act like that of most other jurisdictions is based on the ‘model’ WHS Act
developed by Safe Work Australia.
The aim is to provide all workers in Australia with the same standard of health and safety
protection regardless of the work they do or where they work.
A stronger national approach means greater certainty for businesses (particularly those
operating across state borders) and over time reduced compliance costs for business.
More consultation between businesses, workers and their representatives, along with clearer
responsibilities will make workplaces safer for everyone.
The harmonised work health and safety laws apply in the majority of jurisdictions. For more
information about whether they apply in your jurisdiction check with your local regulator.
Purpose of the WHS Act (section 3)
The WHS Act provides a framework to protect the health, safety and welfare of all workers
at work and of other people who might be affected by the work. The WHS Act aims to:
„„ protect the health and safety of workers and other people by eliminating or minimising
risks arising from work or workplaces
„„ ensure fair and effective representation, consultation and cooperation to address and
resolve health and safety issues in the workplace
„„ encourage unions and employer organisations to take a constructive role in improving
work health and safety practices
„„ assisting businesses and workers to achieve a healthier and safer working environment
„„ promote information, education and training on work health and safety
„„ provide effective compliance and enforcement measures, and
„„ deliver continuous improvement and progressively higher standards of work health
and safety.
In furthering these aims regard must be had to the principle that 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 as is reasonably practicable.
For these purposes ‘health’ includes psychological health as well as physical health.
INTRODUCTION
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 3
WHS Regulations
The WHS Regulations specify the way in which some duties under the WHS Act must be
met and prescribes procedural or administrative requirements to support the WHS Act (for
example requiring licences for specific activities and the keeping of records).
Codes of Practice
Codes of Practice provide practical guidance on how to meet the standards set out in the
WHS Act and the WHS Regulations. Codes of Practice are admissible in proceedings as
evidence of whether or not a duty under the WHS laws has been met. They can also be
referred to by an inspector when issuing an improvement or prohibition notice.
It is recognised that equivalent or better ways of achieving the required work health and
safety outcomes may be possible. For that reason compliance with Codes of Practice is not
mandatory providing that any other method used provides an equivalent or higher standard
of work health and safety than suggested by the Code of Practice.
Interpretive guidelines
Interpretive guidelines are a formal statement on how WHS regulators believe key concepts
in the WHS Act operate and in doing so provide an indication of how the laws will be
enforced.
WHS REGULATIONS AND CODES
OF PRACTICE ETC. (SECTIONS 274-276)
4 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
The following terms are used throughout this guide:
Duty Holder – refers to any person who owes a work health and safety duty under the WHS
Act including a person conducting a business or undertaking (PCBU), designer, manufacturer,
importer, supplier, installer of products or plant used at work (upstream duty holders), an
officer and workers. More than one person can concurrently have the same duty in which
case the duty is shared. Duties cannot be transferred.
Health and safety committee (HSC) – a group established under the WHS Act that
facilitates cooperation between a PCBU and workers to provide a safe place of work.
The committee must have at least 50 per cent of members who have not been nominated
by the PCBU, that is workers or HSRs.
Health and safety representative (HSR) – a worker who has been elected by a work group
under the WHS Act to represent them on health and safety issues.
Officer – an officer within the meaning of section 9 of the Corporations Act 2001 (Cth)
other than each partner within a partnership. Broadly, an officer is a person who makes,
or participates in making, decisions that affect the whole, or a substantial part, of the
organisation’s activities. This does not include an elected member of a municipal council
acting in that capacity or a minister of a state, territory or the Commonwealth.
An officer can also be an officer of the Crown or a public authority if they are a person
who makes, or participates in making, decisions that affect the whole, or a substantial part,
of the business or undertaking of the Crown or public authority.
Each partner within a partnership is not an officer but a PCBU in their own right.
For further information on officers please refer to the interpretive guideline on officers
available at www.safeworkaustralia.gov.au.
Person conducting a business or undertaking (PCBU) – a person conducting a business
or undertaking alone or with others, whether or not for profit or gain. A PCBU can be a sole
trader (for example a self-employed person), each partner within a partnership, company,
unincorporated association or government department of public authority (including
a municipal council).
An elected member of a municipal council acting in that capacity is not a PCBU.
A ‘volunteer association’ that does not employ anyone is not a PCBU. If it becomes an
employer it also becomes a PCBU for purposes of the WHS Act.
A ‘strata title body corporate’ that does not employ anyone is not a PCBU, in relation
to any common areas (it is responsible for) used only for residential purposes.
For further information on the meaning of PCBU please refer to the interpretive guideline
on PCBUs available at www.safeworkaustralia.gov.au.
Plant – includes any machinery, equipment, appliance, container, implement or tool,
and any component or anything fitted or connected to these things.
Structure – anything that is constructed, whether fixed or moveable, temporary or
permanent and includes buildings, masts, towers, framework, pipelines, transport
infrastructure and underground works (shafts or tunnels). Includes any component
or part of a structure.
Substance – any natural or artificial substance in the form of a solid, liquid, gas or vapour.
Supply – supply and re-supply of a thing provided by way of sale, exchange, lease, hire
or hire-purchase arrangement, whether as principal or agent.
DEFINITIONS (SECTIONS 4-8)
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 5
Volunteer – a person who acts on a voluntary basis regardless of whether they receive
out of pocket expenses.
Volunteer association – a group of volunteers working together for one or more community
purposes—whether registered or not—that does not employ anyone to carry out work for
the association.
Worker – any person who carries out work for a PCBU, including work as an employee,
contractor, subcontractor, self-employed person, outworker, apprentice or trainee, work
experience student, employee of a labour hire company placed with a ‘host employer’
and volunteers.
Work group – a group of workers represented by an HSR who in many cases share similar
work conditions (for example all the electricians in a factory, all people on night shift, all
people who work in the loading bay of a retail storage facility).
Workplace – any place where a worker goes or is likely to be while work is carried out for
a business or undertaking. This may include offices, factories, shops, construction sites,
vehicles, ships, aircraft or other mobile structures on land or water such as offshore units
and platforms (that are not already covered under the Commonwealth’s offshore WHS laws).
The glossary contains additional definitions of terms used throughout this guide.
Reasonably practicable (section 18)
A guiding principle of the WHS Act is that all people are given the highest level of health
and safety protection from hazards arising from work, so far as is reasonably practicable.
The term ‘reasonably practicable’ means what could reasonably be done at a particular time
to ensure health and safety measures are in place.
In determining what is reasonably practicable, there is a requirement to weigh up all relevant
matters including:
„„ the likelihood of a hazard or risk occurring (in essence the probability of a person being
exposed to harm)
„„ the degree of harm that might result if the hazard or risk occurred (in essence the
potential seriousness of injury or harm)
„„ what the person concerned knows, or ought to reasonably know, about the hazard
or risk and ways of eliminating or minimising it
„„ the availability of suitable ways to eliminate or minimise the hazard or risk, and
„„ the cost of eliminating or minimising the hazard or risk.
Costs may only be considered after assessing the extent of the risk and the available ways
of eliminating or minimising the risk.
Ordinarily cost will not be the key factor in determining what it is reasonably practicable for
a duty holder to do unless it can be shown to be ‘grossly disproportionate’ to the risk. If the
risk is particularly severe a PCBU will need to demonstrate that costly safety measures are
not reasonably practicable due to their expense and that other less costly measures could
also effectively eliminate or minimise the risk.
For more information on what is reasonably practicable please refer to the interpretive
guideline on reasonably practicable available at www.safeworkaustralia.gov.au.
DEFINITIONS (SECTIONS 4-8)
6 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
General principles (sections 13-17)
The WHS Act sets out work health and safety duties for PCBUs, officers, unincorporated
associations, government departments and public authorities including municipal
governments, workers and other people at a workplace.
Coverage
The WHS Act covers:
„„ People who carry out work in any capacity for a person conducting a business or
undertaking including employees, contractors, subcontractors, self-employed persons,
outworkers, apprentices and trainees, work experience students and volunteers who
carry out work.
„„ Other people at a workplace like visitors and customers at a workplace.
The WHS Act does not cover ‘volunteer associations’ who do not employ anyone.
More information about volunteer organisations and volunteers is available on the
Safe Work Australia website and from local work health and safety regulators.
Multiple and shared duties (sections 14-16)
A person may have more than one duty. For example the working director of a company
has duties as an officer of the company and also as a worker.
More than one person may have the same duty. A duty cannot be transferred to another
person.
If more than one person has a duty for the same matter each person retains responsibility
and must discharge their duty to the extent to which the person has the capacity to
influence and control the matter—disregarding any attempts to ‘contract out’ of their
responsibility.
EXAMPLE
A labour hire company hires out its employees to ‘host employers’ to carry out work for
them. Both the labour hire company and the ‘host employer’ owes a duty of care to those
employees. In such cases both are fully responsible for meeting that duty to the extent to
which they have capacity to influence and control the matter. It is not possible to ‘contract
out’ work health and safety duties.
EXAMPLE
A principal contractor and a subcontractor for construction work must ensure, so far as is
reasonably practicable, the provision of adequate facilities for the welfare of the workers
carrying out the construction work. This does not mean that both are responsible for
providing the facilities. One may provide the facilities with the other duty holder satisfying
themselves that their duty is met because the facilities provided by the other duty holder
fulfil their obligations.
WORK HEALTH AND SAFETY DUTIES
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 7
Duties of a PCBU
Primary duty of care (section 19)
The WHS Act requires all PCBUs to ensure, so far as is reasonably practicable, the health
and safety of:
„„ workers engaged, or caused to be engaged by the person, and
„„ workers whose activities in carrying out the work are influenced or directed by
the person,
while workers are at work in the business or undertaking.
This primary duty of care requires duty holders to ensure health and safety, so far as is
reasonably practicable, by eliminating risks to health and safety. If this is not reasonably
practicable, risks must be minimised so far as is reasonably practicable.
PCBUs owe a similar duty of care to other people who may be at risk from work carried
out by the business or undertaking.
A self-employed person must ensure his or her own health and safety while at work,
so far as is reasonably practicable.
Primary duty of care, ‘upstream’ duties and duties of ‘officers’,
workers and other persons (sections 19-28)
Under the primary duty of care a PCBU must ensure, so far as is reasonably practicable:
„„ the provision and maintenance of a working environment that is safe and without risks
to health, including safe access to and exit from the workplace
„„ the provision and maintenance of plant, structure and systems of work that are safe
and do not pose health risks (for example providing effective guards on machines and
regulating the pace and frequency of work)
„„ the safe use, handling, storage and transport of plant, structure and substances
(for example toxic chemicals, dusts and fibres)
„„ the provision of adequate facilities for the welfare of workers at work (for example
access to washrooms, lockers and dining areas)
„„ the provision of information, instruction, training or supervision to workers needed for
them to work without risks to their health and safety and that of others around them
„„ that the health of workers and the conditions of the workplace are monitored to prevent
injury or illness arising out of the conduct of the business or undertaking, and
„„ the maintenance of any accommodation owned or under their management and control
to ensure the health and safety of workers occupying the premises.
WORK HEALTH AND SAFETY DUTIES
8 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
Duty to consult, cooperate and coordinate (sections 46-49)
DUTY TO CONSULT WITH OTHER DUTY HOLDERS
The WHS laws require duty holders with shared responsibilities to work together to make
sure someone does what is needed. This requires consultation, co-operation and coordination
between duty holders.
For example there may be a number of different duty holders involved in influencing how
work is carried out (that is suppliers, contractors and building owners). If more than one
person has a health and safety duty in relation to the same matter, they must consult,
co-operate and coordinate activities so far as is reasonably practicable, in relation to the
matter. Each must share health and safety-related information in a timely manner and
cooperate to meet their shared health and safety obligations.
The duty to ‘consult’ does not require agreement, although each duty holder retains
responsibility for discharging their health and safety duty.
DUTY TO CONSULT WORKERS AND THEIR REPRESENTATIVES
Each PCBU must, so far as is reasonably practicable, consult with workers and HSRs (if any)
about matters that directly affect them. This duty extends to consulting with all kinds of
workers not just the PCBU’s own employees, including any contractors and their workers,
employees of labour hire companies, students on work experience, apprentices and trainees.
Duty of PCBUs with management or control of workplaces
A PCBU with management or control of a workplace must ensure, so far as is reasonably
practicable, that the workplace and anything arising from the workplace does not put
at risk the health or safety of any person.
Duty of PCBUs with management or control of fixtures,
fittings or plant at workplaces
A PCBU with management or control of fixtures, fittings or plant at a workplace must ensure,
so far as is reasonably practicable, that the fixtures, fittings and plant do not put at risk the
health and safety of any person.
A PCBU that installs, erects or commissions plant or structures must ensure all workplace
activity relating to the plant or structure including its decommissioning or dismantling is,
so far as is reasonably practicable, without risks to health and safety.
Duty of officers (section 27)
Officers of corporations and other organisations must manage corporate risks—including
work health and safety risks.
Under the WHS Act an officer of a PCBU must exercise due diligence to ensure the PCBU
complies with its health and safety duties. This duty relates to the strategic, structural,
policy and key resourcing decisions—that is, how the place is run.
Due diligence includes taking reasonable steps to:
WORK HEALTH AND SAFETY DUTIES
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 9
„„ acquire and keep up to date knowledge on work health and safety matters
„„ understand the nature and operations of the work and associated hazards and risks
„„ ensure the PCBU has, and uses, appropriate resources and processes to eliminate or
minimise risks to work health and safety
„„ ensure the PCBU has appropriate processes to receive and consider information about
work-related incidents, hazards and risks, and to respond in a timely manner
„„ ensure the PCBU has, and implements, processes for complying with their duties and
obligations (for example reports notifiable incidents, consults with workers, complies
with notices, provides appropriate training and instruction and ensures HSRs receive
training entitlements), and
„„ verify the provision and use of the relevant resources and processes.
An officer may be charged with an offence under the WHS Act whether or not the PCBU
has been convicted or found guilty of an offence under the Act.
For further information on officers please refer to the interpretative guideline on officers
available at www.safeworkaustralia.gov.au.
Duty of workers (section 28)
While at work, workers must take reasonable care for their own health and safety and that
of others who may be affected by their actions or omissions. They must also:
„„ comply, so far as they are reasonably able, with any reasonable instruction given by
the PCBU to allow the PCBU to comply with WHS laws, and
„„ cooperate with any reasonable policy or procedure of the PCBU relating to health or
safety at the workplace that has been notified to workers.
Duties of other persons at the workplace (section 29)
Similar duties apply to other persons at a workplace. Any person at a workplace, including
customers and visitors, must take reasonable care of their own health and safety and that
of others who may be affected by their actions or omissions. They must also comply, so far
as they are reasonably able, with any reasonable instruction that is given by the PCBU to
comply with WHS laws.
Volunteers (section 34)
Volunteers that owe duties under the WHS laws cannot be prosecuted except in relation
to their worker’s duty.
WORK HEALTH AND SAFETY DUTIES
10 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
Further duties of upstream PCBUs (designers, manufacturers,
importers and suppliers)
Designers, manufacturers, importers and suppliers of plant, structures or substances can influence the safety of these
products before they are used in the workplace. These businesses or undertakings have a responsibility to ensure, so
far as is reasonably practicable, that their products are without risks to health and safety when used at a workplace—
throughout their entire lifecycle.
Duty holder Duty to ensure health and
safety in the workplace
Duty to test Duty to provide information
Designers
of plant,
structures or
substances
(section 22)
A PCBU who is a designer
of a plant, structure or
substance that is to be
used, or could reasonably
be expected to be used, at
a workplace must ensure all
workplace activity relating
to it including its handling
or construction, storage,
dismantling and disposal
is designed, so far as is
reasonably practicable, to
be without risks to health
or safety when used for its
intended purpose.
Designers of the plant,
structure or substance
must carry out tests
and examinations
sufficient to ensure
that when used for
its intended purpose
the plant, structure or
substance meets work
health and safety
requirements.
Adequate information must be
given to those for whom the
plant, structure or substance
was designed about its
intended purpose, test results
and any conditions necessary
to ensure that it is safe and
without risks to health or safety,
when used for its intended
purpose. Current relevant
information must also be
provided, so far as reasonably
practicable, to other end users
at a workplace upon request.
Manufacturers
of plant,
structures or
substances
(section 23)
A PCBU who is a
manufacturer of any plant,
structure or substance which
is manufactured to be used,
or could reasonably be
expected to be used, at a
workplace must ensure all
workplace activity relating
to it including its handling,
storage and disposal or
dismantling is so far as
is reasonably practicable
without risks to health or
safety when used for its
intended purpose.
Manufacturers
must carry out
or arrange tests
and examinations
sufficient to ensure
that the plant,
structure or substance
is manufactured to
meet work health and
safety requirements
when used for a
purpose for which it
was manufactured.
Adequate information must be
given to any person to whom
the product is provided about
the purpose for which it was
manufactured, test results and
any conditions necessary to
ensure that when used for its
intended purpose it is safe and
without risks to health or safety.
Current relevant information
must also be provided, so far as
reasonably practicable, to other
end users at a workplace upon
request.
WORK HEALTH AND SAFETY DUTIES
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 11
Importers
of plant,
substances
or structures
(section 24)
A PCBU who is an importer
of any plant, substance
or structure which is to be
used, or could reasonably
be expected to be used, at
a workplace must ensure all
workplace activity relating
to it including its handling,
storage and disposal or
dismantling is, so far as
is reasonably practicable,
without risks to health or
safety when used for its
intended purpose.
Importers must carry
out or arrange tests
and examinations
sufficient to ensure
that the imported
plant, structure or
substance meets work
health and safety
requirements when
used for its intended
purpose.
Alternatively
importers must ensure
that these tests and
examinations have
been carried out.
Adequate information must
be given to any person who
the importer supplies with the
plant, structure or substance
about its intended purpose,
test results and any conditions
necessary to ensure that when
used for its intended purpose
it is safe and without risks to
health or safety.
Current relevant information
must also be provided, so far as
reasonably practicable, to other
end users at a workplace upon
request.
Duties of
suppliers
of plant,
substances
or structures
(section 25)
A PCBU who is a supplier
of any plant, substance
or structure that is to be
used, or could reasonably
be expected to be used, at
a workplace must ensure all
workplace activity relating
to it including its handling,
storage and disposal or
dismantling is, so far as
is reasonably practicable,
without risks to health or
safety when used for its
intended purpose.
Suppliers must carry
out or arrange tests
and examinations
sufficient to ensure
that the supplied
plant, structure or
substance meets work
health and safety
requirements when
used for its intended
purpose.
Alternatively suppliers
must ensure that
these tests and
examinations have
been carried out.
Adequate information must
be given to any person who
the supplier supplies with the
plant, structure or substance
about its intended purpose,
test results and any conditions
necessary to ensure that when
used for its intended purpose
it is safe and without risks to
health or safety.
Current relevant information
must also be provided, so far as
reasonably practicable, to other
end users at a workplace upon
request.
Duties of
people
installing,
constructing or
commissioning
plant or
structures.
(section 26)
A PCBU who installs,
constructs or commissions
plant or structures must also
ensure, so far as is reasonably
practicable, all workplace
activity relating to the
plant or structure including
its decommissioning or
dismantling is without risks
to health or safety.
n/a n/a
WORK HEALTH AND SAFETY DUTIES
12 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
A PCBU must notify the regulator as soon as they become aware of a death, serious injury
or illness or dangerous incident that arises out of the conduct of the business or undertaking.
A serious injury or illness means work related injury that results in:
„„ immediate hospital treatment as an in-patient
„„ immediate treatment for serious injuries (for example amputation, scalping, a spinal
injury, loss of a bodily function or a serious laceration, burn, head injury or eye injury), or
„„ medical treatment within 48 hours of exposure to a substance.
Trigger Example
Immediate treatment as
an in-patient in a hospital
Admission into a hospital as an in-patient for any duration,
even if the stay is not overnight or longer.
IT DOES NOT INCLUDE:
„„ Out-patient treatment provided by the emergency
section of a hospital (i.e. not requiring admission as
an in-patient) and immediate discharge.
„„ Subsequent corrective surgery such as that required
to fix a fractured nose.
Immediate treatment for
the amputation of any part
of the body
Amputation of a limb such as arm or leg, body part such
as hand, foot or the tip of a finger, toe, nose or ear.
Immediate treatment for
a serious head injury
„„ Fractured skull, loss of consciousness, blood clot
or bleeding in the brain, damage to the skull to the
extent that it is likely to affect organ/face function.
„„ Head injuries resulting in temporary or permanent
amnesia.
Immediate treatment for
a serious eye injury
Injury that results in or is likely to result in the loss
of the eye or total or partial loss of vision.
Injury that involves an object penetrating the eye
(for example metal fragment, wood chip).
Exposure of the eye to a substance which poses
a risk of serious eye damage.
IT DOES NOT INCLUDE:
Eye exposure to a substance that merely causes irritation.
Immediate treatment
for a serious burn
A burn requiring intensive care or critical care which could
require compression garment or a skin graft.
IT DOES NOT INCLUDE:
A burn that merely requires washing the wound and
applying a dressing.
Immediate treatment for
the separation of skin from
an underlying tissue (such
as degloving or scalping)
Separation of skin from an underlying tissue such that
tendon, bone or muscles are exposed (de-gloving or
scalping).
INCIDENT NOTIFICATION (SECTIONS 35-39)
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 13
Immediate treatment for a
spinal injury
Injury to the cervical, thoracic, lumbar or sacral vertebrae
including the discs and spinal cord.
Immediate treatment
for the loss of a bodily
function
Loss of consciousness, loss of movement of a limb or loss
of the sense of smell, taste, sight or hearing, or loss of
function of an internal organ.
IT DOES NOT INCLUDE:
„„ mere fainting, or
„„ a sprain, strain or fracture.
Immediate treatment for
serious lacerations
„„ Serious lacerations that cause muscle, tendon, nerve
or blood vessel damage or permanent impairment.
„„ Deep or extensive cuts.
„„ Tears of wounds to the flesh or tissues—this may
include stitching to prevent loss of blood and/or other
treatment to prevent loss of bodily function and/or
infection.
Medical treatment within
48 hours of exposure to a
substance.
A PCBU must also notify any infection to which the carrying out of work is a significant
contributing factor, including any infection that is reliably attributable to carrying out work:
(i) with micro-organisms
(ii) that involves providing treatment or care to a person
(iii) that involves contact with human blood or body substances, or
(iv) that involves handling or contact with animals, animal hides, skins, wool or hair, animal
carcasses or animal waste products.
The following occupational zoonoses contracted in the course of work involving handling
or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste
products:
(i) Q fever
(ii) Anthrax
(iii) Leptospirosis
(iv) Brucellosis
(v) Hendra Virus
(vi) Avian Influenza, or
(vii) Psittacosis.
TREATMENT
‘Treatment’ means the kind of treatment that would be required for a serious injury or illness
and includes ‘medical treatment’ (i.e. by a registered medical practitioner), treatment by a
paramedic or treatment by a registered nurse practitioner.
INCIDENT NOTIFICATION (SECTIONS 35-39)
14 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
For more information about the kinds of ‘serious’ injuries or illnesses that are notifiable
contact your local regulator or check out their website.
The regulator must also be immediately notified of any dangerous incident that exposes
a person to a serious health or safety risk from immediate or imminent exposure to:
„„ the uncontrolled escape, spillage or leakage of a substance
„„ an uncontrolled implosion, explosion or fire
„„ an uncontrolled escape of gas, steam or a pressurised substance
„„ an electric shock
„„ the fall or release from height of any plant, substance or thing
„„ the collapse, overturning, failure or malfunction of, or damage to, plant that is required
to be licensed or registered
„„ the collapse or partial collapse of a structure, including an excavation or of any shoring
supporting an excavation
„„ the inrush of water, mud or gas into an underground excavation or tunnel
„„ the interruption of the main system of ventilation to an underground excavation
or tunnel, or
„„ other incidents as stated in the WHS Regulations.
Notice of an incident must be given by the fastest possible means, by telephone or in writing
(including electronic means, where available). If notice is given by telephone, the regulator
may request follow-up written notice of the incident. This must be provided within 48 hours
of the request.
A record of each notifiable incident must be kept by the PCBU for at least five years.
The person with management or control of a workplace at which a notifiable incident has
occurred must ensure the site of the incident is not disturbed until an inspector arrives at
the site or directs otherwise. This does not prevent any action required to protect a person’s
health or safety, help someone who is injured or make the site safe.
Further information on notifiable incidents is available on the Safe Work Australia and
regulator websites.
PCBUs are responsible for making decisions regarding health and safety, but may not
have a full understanding of the finer detail or subtleties of the work or working conditions.
It is important that PCBUs obtain information from their workers before making changes or
implementing measures which may adversely affect health and safety. It is also important
that the workers are informed of those measures and their significance to health and
INCIDENT NOTIFICATION (SECTIONS 35-39)
GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 15
safety so that they can implement them and also understand the importance of doing so.
This requires an ongoing exchange of information between the PCBUs and their workers,
directly or through their representatives.
Given the importance of consultation in contributing to work health and safety and the
WHS Act prescribes a general duty to consult.
Consultation with workers (sections 47-49)
PCBUs must so far as reasonably practicable consult with workers who carry out work for
the business or undertaking who are, or are likely to be, directly affected by a matter relating
to health and safety. This includes giving workers a reasonable opportunity to express their
views or raise issues about work health and safety at the workplace.
Consultation is a collaborative process between PCBUs and their workers. It involves sharing
information about work health and safety and ensuring that views of workers are taken
into account when making decisions about health and safety at the workplace. It does not
require agreement to be reached.
If there is an agreed consultation procedure then the consultation must be in accordance
with those procedures.
If an HSR represents workers the consultation must involve the HSR.
A PCBU must consult with workers and take their views into account when:
„„ identifying hazards and assessing risks arising from work
„„ proposing changes that may affect the health and safety of workers, and
„„ whenever specifically required to do so under particular regulations
and when considering making decisions about:
„„ ways to eliminate or minimise risks
„„ the adequacy of facilities for workers’ welfare at work
„„ procedures for consulting with workers
„„ procedures for resolving health and safety issues
„„ procedures for monitoring the health of workers or workplace conditions, and
„„ how to provide health and safety information and training to workers.
Views of workers must be taken into account when consulting under these provisions but
there is no requirement for agreement to be reached.
Workers who have been consulted under these provisions must be advised of the outcome
in a timely manner. There is no particular way this advice must be given—it could for
example be given at a ‘toolbox’ meeting or posted as an intranet news item.
Representation and participation of workers
Workers are entitled to:
CONSULTATION WITH WORKERS
AND REPRESENTATION OF WORKERS
16 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
„„ elect a health and safety representative if they wish to be represented by one
„„ request the formation of a health and safety committee if they wish
„„ cease unsafe work in certain circumstances (see below for more information)
„„ have health and safety issues at the workplace resolved in accordance with an agreed
issue resolution procedure, and
„„ not be discriminated against for raising health and safety issues.
Health and Safety Representatives (HSRs)
Any worker can ask the PCBU for whom they are carrying out work to facilitate the election
of one or more HSRs for the workplace.
An HSR is elected by a work group to represent the health and safety interests of the work
group (and must be a member of that work group). There can be as many HSRs and deputy
HSRs as needed after consultation, negotiation and agreement between workers and the
PCBU.
Once determined the PCBU must keep a current list of all HSRs and deputy HSRs for the
workplace(s) and display a copy at the relevant workplace. A list must also be provided to
the regulator.
Work groups (sections 50-59)
A work group is a group of workers who share a similar work situation. For example a work
group might consist of all workers in the office part of a manufacturing complex, or it might
consist of people of the same trade, or it might consist of all people on the night shift.
If agreed workers from multiple businesses can be part of the same work group which
might include contractors, labour hire staff, outworkers and apprentices.
A work group is set up for the purposes of electing—and being represented by—one or
more HSRs.
If a request is made for the election of an HSR the PCBU must start negotiations with
workers within 14 days to determine the:
„„ number and composition of the work group(s)
„„ number of HSRs and deputy HSRs, and
„„ workplace(s) to which the work group(s) apply.
The PCBU must negotiate about work groups with a worker’s representative (for example
union) if asked by a worker. The PCBU must also notify workers as soon as practicable of
the outcome of the negotiations.
The parties to a work group agreement may negotiate to change the size or membership
of the work group at any time, for example if it could be re-organised to provide for more
effective representation.
Negotiations for the determination and variation of work groups must be aimed at ensuring
workers are grouped in a way that most effectively and conveniently enables their WHS
interests to be represented and allows an HSR to be readily accessible to each worker
in the work group.
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GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 17
If negotiations fail in establishing or varying a work group any person who is a party
to the negotiations can request an inspector to assist in deciding the matter (or if the
matter involves multiple businesses, to assist the negotiations).
Powers and functions of HSRs (sections 68-69)
HSRs:
„„ represent their work group members in matters relating to work health and safety
at the workplace
„„ monitor risk control measures put into place at the workplace to protect their work
group members
„„ investigate complaints from their work group members relating to work health and
safety, and
„„ inquire into anything that appears to be a risk to the health or safety of work group
members.
In limited circumstances HSRs may represent another work group or work group member for
the business or undertaking, that is if:
„„ there is a serious risk to the health or safety of other workers from an immediate hazard,
or
„„ a worker in another work group asks for their assistance and the HSR for that other
work group is not available.
Each HSR must be allowed to spend such time as is reasonably necessary to exercise
their powers or perform their functions under the WHS Act. This must be paid time based
on the rate they would have otherwise been paid at the time.
In exercising their powers or functions an HSR can:
„„ inspect the workplace or any area where work is carried out by a worker in the work
group
„„ at any time after giving relevant notice, or
„„ at any time without notice in the event of an incident or any situation involving a
serious risk to health or safety emanating from an immediate or imminent exposure
to a hazard
„„ accompany an inspector during an inspection of an area where a work group member
works
„„ be present at an interview with a worker that the HSR represents (with their consent)
and the PCBU or an inspector about work health and safety issues
„„ if the interview involves more than one worker, only the consent of one of the HSR’s
work group members is required
„„ receive information about work health and safety of work group members— but not any
personal or medical information that directly or indirectly identifies a worker without the
worker’s consent
„„ request a health and safety committee be established, and
„„ issue a provisional improvement notice (PIN) or direct a person to cease unsafe work in
certain circumstances, but only if they have completed the approved training. (Workers
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18 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
may also cease work in certain circumstances, without direction from an HSR).
Whenever necessary an HSR may request the assistance of any person in relation to their
role under the Act. The PCBU is not required to meet the associated costs. Assistants’ access
to the workplace may be refused on reasonable grounds, in which case the regulator may be
asked to appoint an inspector to resolve the access issue (see sections 70(1)(g), 71(3) and
71(6)).
An HSR is not personally liable for anything done or not done in good faith while carrying
out their role.
Election and eligibility of HSRs (sections 50, 60-67)
The members of a work group elect their own HSR. All members are entitled to vote in an
election. To be eligible for election as a HSR a person must be a member of the work group
and not be disqualified from acting as an HSR.
The PCBU must provide any resources, facilities and assistance that are reasonably necessary
to carry out the election. Members of a work group decide how the election will be
conducted. The election may be conducted with the assistance of a union or other person
or organisation, if supported by a majority of work group members.
Elections for a deputy HSR are carried out in the same way.
Elections are not needed when the number of candidates is the same as the number
of vacancies.
The term of office for an HSR or deputy HSR is three years. They cease to hold office if:
„„ they leave the work group
„„ they are disqualified from being an HSR
„„ they resign as an HSR by written notice, or
„„ the majority of members of the group agree the person should no longer represent
them and they are removed from office in accordance with the WHS Regulations.
HSRs can be re-elected.
Any person adversely affected by a decision or action of an HSR can apply to have them
disqualified in circumstances where an HSR has exercised powers or performed functions
improperly or where an HSR has used or disclosed information for purposes not related to
their role as an HSR.
Training (section 72)
If requested a PCBU must allow HSRs and deputy HSRs to attend a work health and safety
course or training approved by the regulator (approved training).
As soon as practicable and within three months of the request the PCBU must give the
HSR(s) paid time off to attend an agreed course and pay the course costs and reasonable
expenses. The course must be selected in consultation with the PCBU to ensure it is relevant
to the work carried out. If agreement cannot be reached an inspector may assist to resolve
the issue.
The PCBU may consult with the person making the request, and may consider the
whether there is an entitlement in the circumstances and whether any suggested course is
appropriate taking into account all relevant factors. Reasonable time may also be taken to
allow the PCBU to re-configure its work arrangements to replace the worker while away
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GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT 19
on the course or training.
An obligation to share costs applies if multiple PCBUs are involved. Timely consultation
between all relevant PCBUs should be arranged to ensure responsibilities are clear.
HSRs must complete the approved training before they can issue a provisional improvement
notice (PIN) or direct a person to cease unsafe work.
Whether or not the HSR has undergone training, the PCBU must provide the HSR with the
resources, facilities and assistance that are reasonably necessary to enable them to carry
out their functions.
Provisional improvement notices (sections 90-102)
A PIN is a written notice issued by an HSR requiring a contravention against the WHS Act or
Regulations to be remedied within a certain period or a likely contravention to be prevented.
Only an HSR who has completed the approved training may exercise this power.
Before issuing a PIN the HSR must first consult with the person who is to receive the
proposed notice. This could be the PCBU or if the PIN is proposed to be issued to a worker—
that worker.
If consultation is unsuccessful a PIN may be issued in writing. It must state:
„„ that the HSR believes that a provision of the WHS Act or Regulations is being
contravened or has been contravened in circumstances that make it likely that the
contravention will continue or be repeated
„„ the section of the WHS Act or Regulations considered to have been contravened and
how the section is being or has been contravened, and
„„ the date (at least eight days from the issue date) by which the contravention must be
remedied.
A PIN can include directions on how to remedy a contravention. These directions may refer
to a Code of Practice and offer the person a choice of solutions.
A PIN cannot be issued to override an inspector’s decision on a matter.
A person issued with a PIN must display it in a prominent place in the workplace, or part
of the workplace, at which work is being carried out that is affected by the notice. It is an
offence to intentionally remove, destroy, damage or deface the notice, while it is in force.
Within seven days of being issued with a PIN, the affected person (including the PCBU if the
person issued with the PIN is a worker) can ask the regulator to have the notice reviewed by
an inspector. If no review is sought the PIN must be complied with—that is, the contravention
must be remedied within the time allowed or prevented from occurring in the first place
(whichever applies).
If a request is made to review the PIN it ceases to have effect until the inspector makes a
decision on the review. The inspector must either confirm the PIN (with or without changes)
or cancel it. A review may still occur even if the time specified for compliance with the PIN
has expired. A confirmed PIN (with or without changes) must be complied with.
The inspector will give a copy of their decision to the person who applied for the review
and the HSR who issued the notice.
Worker’s right to cease unsafe work (sections 84-89)
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20 GUIDE TO THE MODEL WORK HEALTH AND SAFETY ACT
If a worker has a reasonable concern about a serious risk to their health or safety from
immediate or imminent exposure to a hazard they may cease or refuse to carry out work
that would expose them to that hazard.
A worker who ceases work must notify the PCBU as soon as practicable. Workers can
be redirected to suitable alternative work at their workplace or at another site until they
can resume normal duties.
An affected person including the PCBU, HSR or worker may request an inspector to attend
the workplace to assist in resolving an issue relating to the cessation of work.
A worker cannot be discriminated against in their engagement (for example have pay
deducted) for exercising their right to cease unsafe work under the WHS Act.
Direct workers to cease unsafe work (sections 85-89)
An HSR who has completed the approved training may direct that unsafe work cease in
circumstances where they have a reasonable concern that to continue to carry out the
work would expose a work group member to a serious&