Implementing WHS

harmonisation in your
workplace
www.workplaceohs.com.au
Contents
Introduction

Page
2

What has changed?

Step 1: Are you a PCBU?

Step 2: Understand the concept of Officers

Step 3: Identify your Officers

Step 4: Review and conduct due diligence

Step 5: Consult on WHS

Step 6: Where there is more than one WHS duty holder

FAQs

Implementing the changes

Resources

11

Introduction
On 1 January 2012 new harmonised workplace health and safety (WHS) laws commenced for
businesses in New South Wales, Queensland, the ACT and the Northern Territory and also for
Commonwealth government employers.
Harmonised legislation means that each jurisdiction has its own Act, Regulations and
supporting Codes of Practice which are based on model legislation which has been
developed with their input. There are some differences between jurisdictions but in general,
these are not major.
Victoria has indicated that it is still assessing the impact of the harmonised regime and
South Australia is unlikely to see its legislation commence before 2013. Tasmania has said it
requires more time before implementation. Western Australia has never committed fully to
harmonisation and is yet to make any changes.
Whether the WHS legislation has already commenced in your state/territory, or is
yet to commence, you will need to address it eventually so now is the best time
to start.
Significant new penalties accompany the new regime: up to $3 million for corporations and
up to $600,000 and/or 5 years jail for officers. Businesses should become familiar with the
new work health and safety (WHS) laws and you would be advised to reassess your WHS
policies and procedures in the light of these new laws. The new laws in each jurisdiction
include (or will include) a Work Health and Safety Act, Work Health and Safety Regulation,
and various Codes of Practice.
The aim of this booklet is to help you to start implementing your new WHS responsibilities.

What has changed?

The following table shows key changes in Australian WHS legislation from previous or
existing legislation:
Key change

Jurisdictions affected

Changes in terminology eg from occupational

health and safety to work health and safety
A broadening of health and safety duties from
an employer to that of a person conducting a
business or undertaking (PCBU). Note that the
PCBU is generally an entity not a person,
although a partner in a partnership and a sole
trader can be a PCBU.
Removal of the reverse onus of proof for
employers by qualifying their primary duty of
care by what is reasonably practicable (rather
than them having to prove that compliance was
not reasonably practicable)
Duty of care to exercise due diligence (as
defined) in
performing a health and safety duty is imposed
on officers.

All
NSW, SA, TAS, VIC, WA

NSW, QLD, TAS

SA and TAS currently have a duty of

care
imposed on responsible officers this
is no longer featured in the new
legislation. Officers, as defined in the
Corporations Act, are a change for all
jurisdictions. More than one person can
be defined as an officer of the PCBU.
An officer has a positive duty, ie he or she must This is a change for all jurisdictions.
act
proactively to ensure health and safety
Responsible officers in SA and TAS
currently have a positive duty,
however this will not be a feature of
the new legislation.
An employer need no longer have a responsible SA, TAS,
officer with specific OHS responsibility
An employer need no longer employ or engage
VIC
(so far as is reasonably practicable) a person
with specific OHS qualifications to provide
advice

Key change
The primary duty of care can apply to multiple
duty holders at the same time

Jurisdictions affected
ACT, NSW, NT, QLD, TAS, VIC, CWLTH

A broadening in the definition of who is a worker NSW, SA, TAS, VIC, WA, CWLTH
to extend beyond the employment relationship
to include anyone who carries out work in any
capacity for the PCBU
Workers and others, including visitors and
All
volunteers, have a duty of care towards their
own and others safety
All duty holders have a duty to consult with
ACT, NSW, NT, SA, TAS, VIC, CWLTH
other duty holders on WHS, with significant
penalties applying to a breach
Consultation must occur in ways which are
NSW, NT, QLD, SA, WA
reasonably practicable
Workers have the right to cease (defined) unsafe NSW, QLD, SA, VIC, CWLTH
work.

HSRs may direct that unsafe work cease

ACT, NSW, QLD, TAS, WA

HSRs may issue a Provisional Improvement

Notice (PIN)
WHSOs are no longer a legal requirement for
employers with more than 30 employees

NSW, TAS

Workplaces must have an agreed Issue

Resolution procedure if no procedure has
been established, the default procedure in the
WHS Regulations will apply
Discrimination, coercion, inducement and
misrepresentation that prevents a person from
being involved in workplace safety is expressly
prohibited
Union right of entry to a workplace if they
suspect a breach of WHS laws (with no notice).
The union official must have a WHS entry
permit and can also enter the workplace to
assist HSRs or to resolve issues as part of the
Issue Resolution procedure
Union right of entry for the purpose of
advising and assisting on workplace
health and safety (with 24 hours notice)

All

QLD

SA currently prohibits coercion only.

SA, TAS, WA, CWLTH

ACT, NSW, QLD, TAS, VIC, WA, CWLTH

When a serious incident occurs, the scene must

be
preserved undisturbed until an inspector attends
or the regulator directs otherwise
Unions may still prosecute breaches, under
certain circumstances

ACT and NSW (previously had a 72hr

and
36hr limit respectively) and WA (no
limit)
NSW

Significant increases in penalties for breaches of

the Act plus other forms of penalties and
additional sentencing options, as well as 3
different categories of offence
Change of focus from primarily civil penalties
to criminal penalties
Persons convicted of serious WHS breaches
may now face imprisonment

All

An increase in imprisonment terms

QLD, WA, CWLTH

A reduction in imprisonment terms

ACT

CWLTH
TAS

Step 1: Are you a PCBU?

The primary duty to ensure workplace health and safety resides with an entity known as a
Person Conducting a Business or Undertaking (PCBU). This term PCBU includes a broader
category of entities than the traditional employer under most previous workplace health
and safety legislation.
Are you:
an employer?
a self-employed person?

yes/n
o
yes/n
o

a sole trader?

yes/n
o
a principle contractor?
yes/n
o
an unincorporated association?
yes/n
o
a partnership?
yes/n
o
a franchisee?
yes/n
o
a volunteer organisation that employs
yes/n
people?
o
If you answered yes to any of the categories above, then you are a PCBU and have a
primary duty of care under the legislation. The primary duty of care under the model Work
Health and Safety Act is owed by a PCBU to workers and others (that is, persons who are
not workers).
Note: The legislation states that a person conducts a business or undertaking whether doing
so alone or with others, and whether or not the business or undertaking is conducted for
profit or gain.
Persons engaged solely as a worker or officer (see below for a summary of who is an
officer under the new legislation) of the business or undertaking are excluded from the
definition of PCBU, as are volunteer associations that consist of a group of volunteers
working together for one or more community purposes where none of the volunteers
employs any person to carry out work for the volunteer organisation. Bodies corporate are
included in the definition of PCBU if they employ persons.
PCBUs involved in the management and control of workplaces also have duties under the
WHS Act, as well as PCBUs with management or control of fixtures, fittings or plant at a
workplace. PCBUs who design, manufacture, import or supply products also have duties, as
do PCBUs who install, construct or commission plant or structures.

What is the PCBUs duty?

A duty imposed on a PCBU to ensure health and safety requires the person (a) to eliminate
risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably
practicable to eliminate risks to health and safety, to minimise those risks so far as is
reasonably practicable.
A PCBU can have more than one duty by virtue of being in more than one class of duty
holder.
PCBUs have the following WHS responsibilities:
n identify and control risks in their workplaces, so far as is

reasonably practicable n provide and maintain a work

environment without risks to health and safety n provide and
maintain safe plant and structures n provide and maintain safe
systems of work
n ensure the safe use, handling, storage and transport of plant, structures and substances

n provide adequate facilities for the welfare at work of workers in carrying out work for the

business or undertaking, including ensuring access to those facilities

n ensure that the health of workers and the conditions at the workplace are monitored for

the purpose of preventing illness or injury of workers arising from the conduct of the
business or undertaking n provide adequate instructions, information and training to workers
n provide supervision to workers to avoid WHS breaches n obtain relevant information to

carry out their WHS obligations n make provision to adequately handle WHS emergencies n
meet the requisite standard re first-aid equipment and staff n consult with workers to
achieve a good standard of WHS.

Do non-PCBUs have WHS duties too?

Workers, visitors, clients, and customers now have more explicit WHS duties than they had
under previous legislation. They now must care for their own and others health and safety,
as well as comply with any reasonable instruction so far as is reasonably able. They must
also cooperate with the PCBUs reasonable WHS policy and procedures (workers) and
instruction (others).
Persons with the management or control of a workplace, or part of a workplace, must ensure,
so far as is reasonably practicable, that the workplace, the means of entering and exiting the
workplace and anything arising from the workplace are without risks to the health and safety
of any person.
Persons with the management or control of fixtures, fittings or plant at a workplace, or part
of a workplace, must ensure, so far as is reasonably practicable, that the fixtures, fittings
and plant are without risks to the health and safety of any person.
Designers, manufacturers, importers and suppliers of plant, substances or structures that are
to be used, or could reasonably be expected to be used at a workplace, have a number of
detailed health and safety duties. Similarly, PCBUs that install, construct or commission plant
or structures also have safety duties.

Step 2: Understand the concept of Officers

If you are a PCBU, next you must identify the Officers within your business or undertaking.
Under the new WHS laws, officers have a positive duty to exercise due diligence in relation
to the organisations WHS responsibilities. This means officers must take steps to ensure the
companys compliance with the law.
The legislation applies the definition of officer contained in the Corporations Act. Thus, an
officer is an individual who makes or participates in making decisions that affect the whole,
or a substantial part of, a business or undertaking for example, a director of a company,
a chief executive officer or a chief financial officer. An officer also includes an officer
of a government department or body corporate. The term is broadly defined and may
include senior managers of an organisation, depending on their organisational structure.
Note: company directors are officers, irrespective of their decision-making status.

Step 3: Identify your Officers

The size of your business or undertaking will usually determine how many officers will be
identified. A large business, with many different business units and workers, is likely to have
more officers than a small one. The key issue is that the individual must make or participate
in making decisions that affect the whole, or a substantial part of, a business or undertaking.

Step 4: Review and conduct due diligence

Now that you have identified and documented who are the officers in your business or
undertaking, these individuals have a positive duty to ensure due diligence in relation to the
organisations WHS responsibilities.
Due diligence is defined as including taking
reasonably practicable steps to:
n acquire and keep up-to-date knowledge of workplace health and safety matters
n understand the operations being carried out by the PCBU they are employed by, and the

hazards and risks associated with the operations

n ensure that the PCBU has, and uses, appropriate resources and processes to eliminate or

minimise health and safety risks arising from work being done
n ensure that the PCBU has appropriate processes in place to receive and respond promptly

to information regarding incidents, hazards and risks n ensure that the PCBU has, and uses,
processes for complying with duties or obligations under the Act, and n verify the provision
and use of these resources and processes.
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. You will need
to ensure that you have a system in place that supports the due diligence process and can
provide proof that it has occurred.

Checklist: Reasonable practicability

Australian Business Lawyers provides the following tips for working out what is reasonably
practicable:
The principle of reasonable practicability expresses the expectation that a person
should do anything that is reasonably able to be done in the circumstances that
confront the person at a particular time. The laws generally describe what a person
should take into account and, from this, it is possible to derive a succinct checklist.
The person responsible should note the following points in order to satisfy the
reasonable practicability requirements:
n The person must take into account the likelihood of a hazard or risk. This will typically

require a consideration of the probability the hazard or risk will occur.

n The person must take into account the degree of harm that might result from the

hazard or risk. This is likely to involve a consideration of the extent of the hazard or
risk and the possible consequences.
n The person must take into account what the person knows or reasonably knows

about the hazard or risk and the ways of eliminating or minimising the risk. This is
likely to involve a consideration of the persons state of knowledge. For example, if

the person is an individual, the persons experience, qualifications and training will
be relevant considerations. In the case of an organisation such as corporations, the
collective knowledge within the organisation will be a relevant consideration.
n The availability and the suitability of ways to eliminate or minimise the risk must be

taken into account. This is likely to involve a consideration of what information and
resources are obtainable, accessible and appropriate to the matter at hand.
n After assessing the extent of the risk and the available ways of eliminating or

minimising it, the person must take into account the cost associated with the
available ways of eliminating or minimising the risk and whether the cost is grossly
disproportionate to the risk.
The principle has been described as an important test insofar as it places the duty of
care within the context of what a reasonable person could have foreseen as a risk and
it encompasses reasonable action by a person to mitigate the risk. Anyone associated
with a workplace should be familiar with it.
Source:
New
WHS
laws
www.workplaceohs.com.au 25/8/11

what

is

reasonably

practicable?

Step 5: Consult on WHS

Consultation is an important aspect of managing work health and safety. Under the model
WHS laws, PCBUs must consult with all stakeholders over how risks are managed.
Mechanisms for consultation between PCBUs and workers include direct consultation and
worker-elected health and safety representatives and committees. Other parties, such
as manufacturers and suppliers, must also be part of the consultation process, as must
volunteers, apprentices, contractors, subcontractors and others.
Health and safety representatives are empowered by the model legislation to stop
work from being performed if there is an immediate risk to the safety and health of persons
at work, and to issue provisional improvement notices (PINs) under some circumstances.
A PIN is a legal instrument that sets out a health or safety improvement which is desired in a
workplace. The notice may require the PCBU to remedy a contravention of the WHS laws,
prevent it from occurring, or remedy the things or operations causing the contravention.
The notice (unless it is subject to a review by an inspector called in for that purpose) has the
same status as a notice issued by an inspector, with the same consequences for a failure to
comply with it. The HSR is entitled to make minor changes to a PIN or cancel it. The HSR
must first consult with the PCBU before issuing a PIN. The HSR may only exercise these
functions if he or she has received the required PCBUfunded training.
The purpose of a health and safety committee is to provide a forum for management and
workers together to identify and resolve health and safety problems, and to develop and
monitor safe systems and procedures. WHS committees may be elected in each workplace
where a committee is requested by five or more workers at that workplace.
Either committees or representatives, or both, may be elected for a workplace depending on
the preferences of the workers and the PCBU. However, committees and HSRs are not
mandatory; a PCBU may consult directly with its workers if this is mutually agreed to (known
as other agreed arrangements in the legislation).

What else do I have to know about?

All workplaces now must have an agreed Issue Resolution procedure you are free to work
out your own procedure, in consultation with all other stakeholders, or the default procedure
in the WHS Regulations will apply instead. If you choose to develop your own procedure, it
must at least meet the requirements of the default procedure.
The new legislation expressly prohibits discrimination, coercion, inducement
misrepresentation that prevents a person from being involved in workplace safety.

and

Step 6: Where there is more than one WHS duty holder

An important change in the new legislation is that where more than one person has a duty
for the same matter, each person retains responsibility for their duty in relation to the
matter and must discharge the duty to the extent to which the person can influence and
control the matter. In these situations, the WHS Act requires that each person with the duty
must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with
all other persons who have a work health or safety duty in relation to the same matter.
Such a situation can arise, for example, where more than one business or undertaking
operates at a workplace and where people share responsibility for work health and safety to
varying degrees, for example shopping centres, construction projects, labour hire, or multitenanted office buildings.
The duty to co-operate and co-ordinate activities requires PCBUs to work together in a
proactive and reciprocal way without gaps or inconsistencies, so that all risks associated with
the activity they are involved in are eliminated or minimised as far as is reasonably
practicable.
View the model Code of Practice WHS Consultation, Co-operation and Co-ordinatio n which
sets out the steps PCBUs should take to meet this duty.

FAQs
A union representative wants to enter my workplace do I have to let him/her in?
Under harmonised legislation unions will have the right of entry to your workplace to advise
and assist on workplace health and safety (with 24 hours notice), or if they suspect a breach
of WHS laws (with no notice). An authorised representative must have a WHS entry
permit and can also enter the workplace to assist HSRs or to resolve issues as part of the
Issue Resolution procedure.
Entry for the purpose of advising and assisting on workplace health and safety (with 24
hours notice) is a broadening of union rights in NSW and the ACT. Queensland and the
Northern Territory already had this right of entry for unions, with the Northern Territory
seeing a slight broadening of this provision so that the union representative may now speak
with the occupier/employer.
When South Australia and Tasmania pass their legislation, this will be a significant change in
those states as unions do not have a right of entry to the workplace in their existing
legislation. Victorias right of entry provisions will be broadened with the introduction of a
right to enter and discuss WHS issues.

What happens if I get it wrong?

The model WHS legislation brings with it significant increases in fines for breaches of the
legislation. There are other forms of penalties as well such as on-the-spot fines,
improvement notices, prohibition notices and revoking of licences and registration and
additional options which give more flexibility to WHS authorities and the courts. These
include enforceable undertakings, remedial orders, adverse publicity orders, training orders,
injunctions, compensation orders and community service orders, in addition to any penalty.
There are now 3 different categories of offence, with the following maximum penalties:

Legislative Provision
A person (including a corporation)
conducting a business or
undertaking must 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 work are
influenced or directed by the
person while the workers are at
work in the business or
undertaking.

Corporation
Penalties
Category 1 offence:
$3 million
Category 2 offence:
$1.5 million
Category 3 offence:
$500,000 (sec 30)

Officer Penalties
Category 1 offence:
$600,000 and/or five
years imprisonment
Category 2 offence:
$300,000
Category 3 offence:
$100,000 (sec 30)

If a body has a duty or obligation

under the Act an officer of that body
must exercise due diligence to
ensure that the body complies with
the duty or obligation.
An officer is defined within the
meaning of section 9 of the
Corporations Act 2001 (Cth).
WHS regulators have indicated that they are keen to assist duty-holders wherever possible
and that they will take an educational and advisory approach to start with. For example,
NSW WorkCover has said: WorkCover and its Inspectors will consider relevant
circumstances before taking any compliance action. (WorkCover NSW, WHS Transitional
Arrangements, 22/12/11)
See the Resources section at the end of this booklet for contact details for government WHS
departments which all have a range of material to assist you.

Implementing the changes

The following suggestions for implementing new harmonised WHS laws are aimed at PCBUs.
You can either do-ityourself or hire an expert.
1. Start with the legislation. All the regulators websites have summarised guidance
information to assist you with identifying the changes between the old and new
legislation (Act, Regulations and Codes of Practice). A list of these departments

appears at the end of this guide. Communicate the changes to the various
stakeholders inside/outside of the business.
2. Review documentation. Review documentation within the business to identify
documents that will need to be updated. This will include policies and procedures,
WHS programs, notices and posters, charts, diagrams and records. Include the new
Work Health and Safety legislation requirements and responsibilities of all staff,
workers, and all levels of management in Position Descriptions and Key Performance
Indicators.
3. New documentation for general distribution should be developed to advise of the
changes to the WHS laws, including: Primary Duty Holder, PCBU, Officers, Health and
Safety Reps, Union entry provisions, Consultation provisions, Penalties, Codes of
Practice, PINs from Health and Safety Reps and other details in the WHS Act and
Regulations.
4. Review transitional arrangements. In general, if a new or significantly modified duty
applies, then a 12 month transitional period is provided to allow duty holders to
implement changes. If a duty is the same or very similar and has the same critical
elements as a duty under pre-harmonised regulations, then it will apply immediately.
Transitional arrangements also apply to areas including plant and structures,
construction, mining, demolition, asbestos, major hazard facilities, and new approved
codes of practice.
Contact your regulator for advice on the transitional periods which apply to you.
5. Meetings and minutes. Include WHS changes in business meetings and minutes.
Maintain documented evidence of the change process and the implementation of new
changes. Ensure that all managers are briefed about the changes and the impact
these changes will have on the business as a whole, and on the departments and sites.
6. Issue resolution procedure. Ensure that your workplace has an agreed procedure for
issue resolution at the workplace that complies with the model Regulation, is set out in
writing, and is communicated to all workers to whom the agreed procedure applies.
7. Elections, training and communication. Hold elections if required for HSR and Safety
Committee members. Identify compulsory training needs for Health and Safety Reps
and Safety Committees if these are present. Also deliver training to all management to
ensure comprehensive understanding of the new requirements. Train staff in changes
as it affects the business. This is also a good opportunity to run WHS Awareness
training for all staff.
8. Formally consult and communicate with all stakeholders. Share information with your
elected WHS Representative and/or Committee, or directly with workers. Ensure
consultation discussions are recorded in minutes of meetings.
9. Develop your risk management documents such as risk registers, hazard checklists,
and safe working procedures. Risk management is a central theme of the new
legislation and will require the most of your time. Continue to assess risk to promote
best practice and assist in demonstrating the qualifier so far as is reasonably
practicable.

Resources
The Commonwealth and each state and territory have established agencies to oversee the
administration of WHS in each jurisdiction. Links to these agencies appear below.
ACT
WorkSafe ACT
Commonwealth
Safe Work Australia (National health and safety
agency) Comcare (Commonwealth employees)
NSW
WorkCover NSW
NT
NT WorkSafe
Qld
Workplace Health and Safety Queensland
SA
SafeWork SA
Tas
Workplace Standards Tasmania
Vic
WorkSafe Victoria
WA
WA WorkSafe

Contributors:
Alison Williams, Editor, WorkplaceInfo.com.au
Gabrielle Grammeno, Writer, WorkplaceInfo.com.au
Deborah Hall, M.OHS.,B.Sc., Chartered Professional Member Safety Institute of Australia,
Registered Safety
Professional (Aust), Accredited OHS Auditor, Accredited WorkCover NSW trainer, OHS
Professional, SAFETYBIZ Australian Business Lawyers

Need more help?

Australian Business Solutions Group can completely cover your workplace health and safety
(WHS) needs, ranging from the latest WHS news and information, to practical tools and
consulting solutions to improve your business safety.
If you are interested in ensuring your workplace health and safety is on track and compliant
with the latest legislation, then please contact us on 1800 505 529 or directly to:
Ramon Gebert
Manager NSW OHS Unit

Australian Business Consulting &

Solutions p> (02) 9458 7615 or M:
0415 857 173 e >
ramon.gebert@australianbusiness.c
om.au
Dr June Dunleavy
Senior Manager HR & WHS Consulting
Services Australian Business
Consulting & Solutions p> (07) 3842
2210 e >
june.dunleavy@australianbusiness.co
m.au Copyright 2012 NSW Business
Chamber (ABN 63 000 014 504).
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