Below is a chapter excerpt from the second edition of the Annotated Australian Work Health and Safety Legislation book. This extract only includes the Introduction and Preliminary Part of the model WHS ACT, refer to the title for detailed annotated commentary on each Part of the Act and more.
Since the release of the model Work Health and Safety Act (model WHS Act) by SafeWork Australia in 2009 , all jurisdictions that proceeded to harmonise their work health and safety laws (Harmonised Jurisdictions) have made changes to their respective WHS Acts.
These changes have resulted in there being some differences between the WHS Acts in the Harmonised Jurisdictions. The differences fall generally into four categories:
- differences of a material nature made to address specific concerns that have arisen in the Harmonised Jurisdiction
- differences specifically provided for in the model WHS Act to allow for jurisdictional differences occurring in the Harmonised Jurisdiction
- differences specifically provided for in the model WHS Act to allow for procedural differences occurring in the Harmonised Jurisdiction
- differences of a minor nature mainly to ensure consistency in style and terms already used in legislation in the Harmonised Jurisdiction.
Each of these categories are analysed under the relevant heading of each Part of the model WHS Act, as per the following table:
|Heading||Part of model WHS Act|
|Health and safety duties||Part 2|
|Consultation, representation and participation||Part 5|
|Discriminatory, coercive and misleading conduct||Part 6|
|Workplace entry by WHS entry permit holders||Part 7|
|Securing compliance||Part 9|
|Enforcement measures||Part 10|
|Enforceable undertakings||Part 11|
|Review of decisions||Part 12|
|Legal proceedings||Part 13|
What this analysis shows is that while there are some material differences in some of the Harmonised Jurisdictions, relatively speaking, these differences are small in number and do not impede the regulators and courts from enforcing and administrating the model WHS Act in a consistent manner in the Harmonised Jurisdictions.
Not all Harmonised Jurisdictions commenced their Act on the same date. The following table shows that, to date, harmonisation has been a two-staged process with South Australia and Tasmania enacting the laws one year after the other jurisdictions.
The table also shows that the Northern Territory has uniquely included a reference to ‘‘National Uniform Legislation’’ in the title of their WHS Act (see s 1).
|Harmonised Jurisdiction||Title of WHS Act||Commencement date|
|Australian Capital Territory||Work Health and Safety Act 2011||1 January 2012|
|Commonwealth||Work Health and Safety Act 2011||1 January 2012|
|Northern Territory||Work Health and Safety (National Uniform Legislation) Act 2011||1 January 2012|
|New South Wales||Work Health and Safety Act 2011||1 January 2012|
|Queensland||Work Health and Safety Act 2011||1 January 2012|
|South Australia||Work Health and Safety Act 2011||1 January 2013|
|Tasmania||Work Health and Safety Act 2011||1 January 2013|
The model WHS Act includes detailed definitions of terms used in the Act (see s 4). All Harmonised Jurisdictions have added to these definitions to allow for circumstances that are unique to that jurisdiction. For example, the New South Wales WHS Act includes a definition of a ‘‘mining workplace’’ and then references this to mean activities covered by mining legislation in NSW.
A material difference occurs in the Commonwealth WHS Act where the definition of a ‘‘public authority’’ is defined to include a ‘‘body corporate for a public purpose’’ and a ‘‘Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1997’’. This definition is important as it places companies established for and by the Commonwealth under the regulation of the Commonwealth WHS Act. This is in contrast to non- Commonwealth government companies established under the Corporations Act 2001 (Cth), for whom the relevant state or territory has jurisdiction. In other Harmonised Jurisdictions, ‘‘public authority’’ is instead primarily taken to mean government agencies (eg police), authorities (eg state utilities) and local councils.
Another material difference in the Commonwealth WHS Act is the wider definition given to the term ‘‘worker’’ (see s 7). This definition includes employees of the Australian Federal Police, members of the Australian Defence Force and other people who are declared by the Minister to be a ‘‘worker’’.
In addition, the Commonwealth WHS Act provides for some carve-outs to the scope of the operation of the Commonwealth WHS Act. For example, it will not apply when prejudicial to:
- Australia’s national security or when declared by the Director-General of Security
- Australia’s defence or when declared by the Chief of the Defence Force, or
- a covert operation or international operation of the Australian Federal Police (see s 11).
The Annotated Australian Work Health and Safety Legislation – 2nd Edition title also includes reference to important cases which provide the reader with guidance on how these laws are being interpreted by the Courts as well as the applicable Model Codes of Practice published by SafeWork Australia.
About the Author
Cormack E. Dunn is a Partner at Dentons, the world’s largest law firm with 139 offices in 51 countries. Cormack has over 20 years’ experience and is recognised as a leading safety lawyer with clients throughout the Asia Pacific region. Cormack is also a leading commentator on safety issues and his books are widely used in industry, tertiary study and the legal community.
In addition to this book, Cormack is also the editor and co-author of the Australian and New Zealand Master Work Health and Safety Guide 2017.