Work Health and Safety Act (Australia)
Australia's harmonized workplace safety legislation, adopted by most states and territories, that imposes a primary duty of care on persons conducting a business or undertaking (PCBUs) to ensure the health and safety of workers and others affected by the work.
- What Is the Work Health and Safety Act?
- Duties of a Person Conducting a Business or Undertaking (PCBU)
- Officers' Due Diligence Obligations
- Offence Categories and Penalties
- Worker and Other Persons' Duties
- Health and Safety Representatives and Committees
- WHS Compliance Checklist for HR Teams
- Australian Workplace Safety Statistics [2023-2024]
- Frequently Asked Questions About the Work Health and Safety Act
What Is the Work Health and Safety Act?
Key Takeaways
- ✓The Work Health and Safety Act is model legislation developed by Safe Work Australia to create a consistent national approach to workplace health and safety across all Australian jurisdictions.
- ✓It applies to all "persons conducting a business or undertaking" (PCBUs), a deliberately broad term that covers employers, self-employed people, franchisors, labour hire companies, and anyone else who directs or influences work.
- ✓The Act imposes a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers and others who may be affected by the work.
- ✓Officers (company directors and senior executives) have a personal, non-delegable duty to exercise due diligence in ensuring the PCBU meets its obligations.
- ✓Victoria and Western Australia haven't adopted the model Act, maintaining their own occupational health and safety legislation, though the core principles are similar.
Before 2011, every Australian state and territory had its own workplace safety law. A construction company operating in three states had to comply with three different Acts, three different sets of regulations, and three different codes of practice. The model Work Health and Safety Act was designed to fix this. Safe Work Australia (a national policy body) developed the model legislation. Most jurisdictions adopted it between 2011 and 2012. The Commonwealth, NSW, Queensland, South Australia, Tasmania, ACT, and Northern Territory all have their own WHS Acts based on the model. Victoria kept its Occupational Health and Safety Act 2004, and Western Australia adopted a modified version of the model Act in 2022 that differs in several respects. For HR teams, the WHS Act is the law that makes workplace safety a legal obligation, not just a policy choice. It creates criminal liability for failing to keep people safe at work. And unlike the old OHS laws, it extends beyond traditional employees to cover contractors, volunteers, visitors, and anyone else who enters a workplace or is affected by the work being done.
Duties of a Person Conducting a Business or Undertaking (PCBU)
The PCBU concept is the foundation of the Act. It replaced the old "employer" focus with something much broader.
Primary duty of care
A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers and other persons who are not workers but may be affected by the work. This includes providing and maintaining a safe work environment, safe plant and structures, safe systems of work, adequate facilities (toilets, drinking water, first aid), information, training, instruction and supervision, and monitoring the health of workers and conditions at the workplace. "Reasonably practicable" is the qualifier. It means considering the likelihood of the hazard occurring, the severity of potential harm, what the PCBU knows or ought to know about the risk, the availability and suitability of controls, and the cost (both time and money) of eliminating or minimizing the risk.
Who counts as a PCBU
The term deliberately captures more than traditional employers. A PCBU includes the company that employs the workers, a labour hire company that supplies workers, a franchisor who influences work practices, a principal contractor on a construction site, and a self-employed person conducting their own business. Multiple PCBUs can have overlapping duties at the same workplace. On a construction site, the principal contractor, subcontractors, and the property owner may all be PCBUs with concurrent duties. Each must discharge their own duty to the extent of their influence and control.
Officers' Due Diligence Obligations
Company directors and senior executives have personal liability under the Act.
What officers must do
An officer of a PCBU must exercise due diligence to ensure the PCBU complies with its duties. Due diligence requires: acquiring and keeping up-to-date knowledge of WHS matters, understanding the nature of the PCBU's operations and the associated hazards and risks, ensuring the PCBU has appropriate resources and processes to eliminate or minimize risks, ensuring the PCBU has processes for receiving and considering information about incidents and hazards, and verifying that these resources and processes are actually being provided and used. This isn't a duty that can be delegated to the safety manager. Directors must personally satisfy themselves that the systems are working.
Personal consequences
Officers face personal fines and, for Category 1 offences (reckless conduct), up to 5 years imprisonment. The duty is non-delegable, meaning an officer can't avoid liability by appointing a safety officer or outsourcing safety management. Several Australian directors have been prosecuted and convicted under these provisions, particularly in the construction and mining industries.
Offence Categories and Penalties
The Act creates three categories of offence with escalating penalties.
Industrial manslaughter
Queensland, Victoria, ACT, NT, and WA have added industrial manslaughter as a separate offence. In Queensland, a penalty of up to 20 years imprisonment applies where a worker dies due to negligent conduct by a senior officer. The Commonwealth model Act doesn't include industrial manslaughter, but more jurisdictions are adding it. For HR teams in states with industrial manslaughter laws, this raises the stakes significantly. A workplace death caused by a known, unaddressed hazard can now result in criminal prosecution of individual executives.
| Category | Conduct | PCBU/Body Corporate Penalty | Officer/Individual Penalty |
|---|---|---|---|
| Category 1 | Reckless conduct exposing a person to risk of death, serious injury, or serious illness | Up to $3,818,600 | Up to $763,700 and/or 5 years imprisonment |
| Category 2 | Failure to comply with a health and safety duty exposing a person to risk of death, serious injury, or serious illness | Up to $1,909,300 | Up to $381,860 |
| Category 3 | Failure to comply with a health and safety duty | Up to $636,400 | Up to $127,280 |
Worker and Other Persons' Duties
The Act doesn't just place obligations on employers. Workers and visitors have duties too.
Worker duties
Workers must take reasonable care for their own health and safety, take reasonable care that their acts or omissions don't adversely affect others, comply with reasonable instructions given by the PCBU, and cooperate with any reasonable WHS policy or procedure. A worker who deliberately removes a machine guard, ignores safety signage, or fails to wear required PPE is breaching their own duty under the Act. Workers can face personal penalties for failing to meet these obligations.
Other persons at the workplace
Visitors, customers, and delivery drivers also have duties. They must take reasonable care for their own health and safety, take reasonable care not to adversely affect others, and comply with reasonable instructions given by the PCBU. The scope is obviously more limited than worker duties, but it means a PCBU can lawfully require visitors to wear hard hats on a construction site or follow safety briefing procedures.
Health and Safety Representatives and Committees
The Act gives workers the right to representation on safety matters.
Health and Safety Representatives (HSRs)
Workers can request the establishment of work groups and elect Health and Safety Representatives. HSRs have significant powers: they can inspect the workplace, accompany inspectors, issue Provisional Improvement Notices (PINs) requiring the PCBU to fix a hazard, and direct workers to cease unsafe work. The PCBU must allow HSRs to attend approved training (at the PCBU's expense) and must consult with HSRs on safety matters. Obstructing or failing to consult with an HSR is an offence under the Act.
Health and Safety Committees
In workplaces with 20 or more workers, the PCBU must establish a Health and Safety Committee if requested. The committee facilitates cooperation between the PCBU and workers on WHS matters. At least half the committee members must be workers who haven't been nominated by the PCBU. Committees help develop WHS policies, review incident data, and recommend improvements, but they don't have the same enforcement powers as individual HSRs.
WHS Compliance Checklist for HR Teams
Core actions to meet your obligations under the WHS Act.
- Conduct and document regular risk assessments for all workplace hazards (physical, chemical, biological, psychosocial, ergonomic). Review after any incident, near-miss, or change to work processes.
- Implement a hazard reporting system that workers can access easily and without fear of retaliation. Track reports through to resolution.
- Establish a WHS management system appropriate to your organization's size and risk profile. ISO 45001 is the international standard, but smaller businesses can use Safe Work Australia's model templates.
- Ensure officers (directors and senior executives) receive regular WHS briefings and have mechanisms to verify that safety systems are actually working.
- Provide WHS induction training for all workers, contractors, and visitors. Include site-specific hazards, emergency procedures, and reporting obligations.
- Maintain an incident register and report notifiable incidents to the regulator immediately (deaths, serious injuries, dangerous incidents). Preserve the site until an inspector releases it.
- Consult with workers on WHS matters, including before making changes that may affect safety. Document the consultation. If HSRs have been elected, consult through them.
- Review workers' compensation claims data and incident trends quarterly to identify systemic issues before they escalate.
Australian Workplace Safety Statistics [2023-2024]
Key data on workplace injuries, deaths, and enforcement in Australia.
Frequently Asked Questions
Does the WHS Act apply in every Australian state?
What's the difference between a PCBU and an employer?
Can a worker refuse to do unsafe work?
What is a notifiable incident?
Are psychosocial hazards covered by the WHS Act?
How does workers' compensation interact with the WHS Act?
Written by Adithyan RK