Differences between Model WHS laws and VIC OHS laws

With the exception of the state of Victoria, all other states and territories are on the Model WHS Laws which were enacted in Australia in 2011. While there are similarities between Victorias's OHS laws and the Model WHS Laws, there are a number of differences and variations, and even omissions, that prohibit or limit businesses from other states being able to run their WHS management system in Victoria, and vice versa. Per the Legislation Act 2003 businesses also operating in other states or territories than their own must adhere to the laws and requirements of the other state or territory they also operate in.

Differences in Terminology

Model Laws                                  Victoria Laws

• PCBU                          =          Employer

• workgroup                   =          Designated Workgroup (DWG)

• worker                         =          employee

• Code of Practice         =          Compliance Code

Model WHS Act vs. Vic OHS Act Equivalents

Model WHS Act                                                         Victoria OHS Act

S.17 (duty to manage risks)                     =          S.20(1)

S.18 (what is reasonably practicable)        =          S.20(2)

S.19 (PCBU primary duty)                       =          Sections 21, 22, 34, 24

S.20 (management of workplaces)            =          S.26

S.28 (duty of workers)                             =          S.25

S.34 (volunteers)                                =          S.144(5) and 145(5)

S.47 (duty to consult)                              =          S.35

S.77 (functions of HSCs)                         =          S.72(3)

Model WHS Laws - No VIC equivalents

• Model Act Sections 13,14,15,16. = no VIC stated equivalents

• Model Act Section 21 = no VIC equivalent

• Model Act S.27 (duty of Officers) = No direct VIC equivalent. [Closest is VIC Act, Division 4—Offences by bodies corporate, S. 144 “Liability of officers of bodies corporate.”] Model WHS Act differs in that officers of the PCBU have specific duties they have to actively perform to ensure the PCBU is meeting it’s WHS obligations, whereas VIC has no stated duties for Officers of an Employer and the accountability of any actions or inactions of an Officer are “after-the-fact” and for acts that violate “reasonable care” only.

• Model Act S.29 (duty of others) = No VIC equivalent although violations could be captured under VIC “recklessly endanger” (VIC S.32)

• Model Act S.46 (duty to consult other PCBUs) = No VIC direct equivalent. [Closest is VIC Act S.35(2)(a) as “an employee of an employer” such as an independent contractor employed by the employer. [VIC Act omits employer needing to consult with other employers not in their employ.]

• Model WHS Act Sections 84, 86, 87, 88 and 89 = No VIC equivalent but actions would fall instead under “common law” rights.

VIC OHS Act only: does not apply in Model WHS Act

• VIC Act S.72(1) – HSRs are the only ones that can establish an HSC. See also VIC S.58(1)(c)

  “An employer must establish a health and safety committee in accordance with this section— (a) within 3 months after being requested to do so by a health and safety representative; or (b) if required by the regulations to do so.” (WHS Act states that 5 or more staff, not necessarily HSRs, can request the formation of an HSC. A PCBU may also decide to establish an HSC by themselves.)

• VIC Act S.72(2) – Worker reps of an HSC should be HSRs. (WHS Act does not state HSRs should be on an HSC, just that they "automatically are" unless they choose not to be.)

• VIC Act S.73(3)(b) – re functions of HSC “….to formulate, review and disseminate (in other languages if appropriate) to the employees the standards, rules and procedures relating to health and safety that are to be carried out or complied with at the workplace…” (In the Model WHS Act this is the stated duty of the PCBU under Section 19 re “…provide information…”

• VIC Act S.72(5) an HSC is allowed to determine it’s own procedures as long as they conform to the requirements of the OHS Act and OHS Regulation. (Although not as black and white in the Model WHS Act, Section 47(3) of the Model WHS Act states that agreed procedures for WHS consultation "...must not be inconsistent with Section 48" of the Act. In the same Part, Section 77c of the WHS Act allows a PCBU and HSC to agree to “other functions…” but these agreements must be in accordance with the PCBU’s duty to consult as per S.47(3) of the WHS Act.)

• VIC Act S.32 – “recklessly endanger.”

• VIC Act S.35(1)(e) employer’s duty to determine the membership of an HSC but must consult employees in the process as per S.35 overall.

• VIC Act S.38 employer’s duty to notify each member of the HSC of any notifiable incidents

• VIC Act S.39(g) – workplace manslaughter

• VIC Act S.76 – “Prohibition on discrimination”

• VIC Act S.78B – “Prohibited reasons”

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