The short version
Everywhere except Victoria works from the model work health and safety laws, adopted separately by each jurisdiction with its own amendments. Victoria runs the Occupational Health and Safety Act 2004 and its own regulations.
The underlying obligation is close in both: manage risk so far as is reasonably practicable, consult the people doing the work, and have someone accountable at the top. What differs is who the Act names as the duty holder, how officers are dealt with, how consultation is structured, and what has to be reported to the regulator and when.
The practical effect is that a system built for one will mostly carry across, but the terminology, the incident notification triggers and the consultation arrangements have to be checked against the Act that applies where the work is happening. Not where your head office is.
Two frameworks
Safe Work Australia maintains the model WHS Act, the model regulations and the model codes of practice. The model laws have no force on their own. Each jurisdiction has to enact them, and each has made changes on the way through, so "the WHS Act" means a slightly different document depending on where you are standing.
Western Australia came to the model laws later than the eastern states, so older guidance and older templates may still describe the framework it replaced. That is worth knowing if you are working from documents someone wrote a few years ago.
Victoria did not adopt them. Its Act predates the model laws and was not replaced by them. So there is no single Australian WHS statute to point at, and a template that says it is compliant with Australian WHS law is telling you very little.
Who holds the duty
Under the model laws the primary duty holder is a person conducting a business or undertaking, usually shortened to PCBU. It is deliberately broad. It covers companies, partnerships and sole traders, and it does not depend on anyone being an employee. A worker, in the same laws, includes employees, contractors, subcontractors, labour hire staff, apprentices and volunteers.
Victoria is built around employer and employee, with duties extending to independent contractors and their employees in relation to matters over which the employer has control, and a separate duty to other people who may be affected by the work.
Different routes, similar destination. In both, you cannot get out of a duty by changing what you call someone. If you direct the work and control the site, you carry something.
The standard of care
Both frameworks use the phrase "so far as is reasonably practicable", and both define it by weighing the likelihood of the hazard, the degree of harm, what is known about the risk and the ways of eliminating or reducing it, and the cost of doing so.
The definitions are not word for word identical, and they have been applied by different courts over different periods. If a decision turns on where that line sits, that is a question for a lawyer working from the Act that applies.
What is safe to say is that the test is not "what we could afford this year". It weighs cost against risk, and it starts from what a reasonable operator in your industry would be expected to know.
Officers, and what they have to be able to show
The model laws put an explicit duty on officers to exercise due diligence, and then spell out what due diligence means: keeping up to date knowledge, understanding the operation and its hazards, making sure there are resources and processes to eliminate or minimise risk, making sure there are processes for receiving information and responding to incidents, and verifying that all of it is happening.
Victoria does not carry that same standalone duty in the same form. It has its own provisions dealing with officer liability where a body corporate commits an offence.
In practice, if you are a director or a senior manager operating across the border, the model law due diligence list is a good structure for what you should be able to evidence anyway. Just do not assume it is the statutory test in Victoria, because it is not.
Consultation and health and safety representatives
Both require consultation with workers on matters that affect their health and safety. Both provide for health and safety representatives elected by work groups, and both give those representatives real powers, which can extend to issuing notices and to directing that unsafe work stop, subject to conditions such as training.
The detail differs: how work groups are negotiated and agreed, what training is required before particular powers can be used, the form the notices take and the timeframes attached to them.
If you have representatives on both sides of the border, do not run one procedure and assume it covers both. That is one of the more common things I find in a system that was written once and copied across.
Notifying the regulator
Both require certain serious incidents to be notified to the regulator immediately, and both require the site to be preserved until told otherwise.
What triggers that notification is set out separately in each Act, and the categories do not line up word for word. Something that is clearly notifiable in one jurisdiction can sit on a line in another.
The practical answer is not to memorise both. Keep a short jurisdiction specific trigger list at each site, on the wall, with the right regulator and the right number on it. The regulators are different bodies: SafeWork NSW, WorkSafe Victoria, Workplace Health and Safety Queensland, SafeWork SA, WorkSafe Tasmania and WorkSafe WA. A national template with one phone number on it is worse than nothing at three in the morning.
What to keep common, and what to keep separate
Keep common: the risk assessments and safe work procedures where the hazard is the same. A confined space is a confined space, an unguarded auger is an unguarded auger, and there is no benefit in maintaining two versions of the same control.
Keep separate: the incident notification trigger list and the regulator contact, the consultation and representative arrangements, the terminology in your policies so it matches the Act that applies, and anything involving licensing or registration, which is jurisdiction by jurisdiction.
Then check which Act applies to the site rather than to the business. Working out of a Victorian office does not make a New South Wales site a Victorian workplace.
Where to check the current position
Safe Work Australia publishes the model Act, the model regulations and the model codes of practice. Each jurisdiction's regulator publishes the version that applies there, along with its own codes and compliance codes, and WorkSafe Victoria publishes the Victorian Act, regulations and compliance codes.
Legislation changes. If you are relying on a detail in this article for a decision that matters, check it against the current instrument for the jurisdiction you are working in, or get advice. I am happy to help work out which one applies to your operation.
This is general information about the documented position, not advice about your situation, and the detail varies between jurisdictions. Check the current instrument for the state you are working in, or ask me and I will help you work out which one applies.
Written by
Jim Rimmer · WHS Specialist
I'm Jim Rimmer, a WHS specialist with more than 32 years leading safety across agriculture, food processing, manufacturing, mining and logistics.
More about Jim Rimmer and his background