WHS Law Framework

Weekly WHS Article 31st March 2022

When the Model WHS laws commenced in Australia in 2012 it brought to Australia a new and updated look at workplace health and safety and a return to the “Robens Model” (see Note 1) that was the basis of health and safety law in Australia in the 1970s to the 1980s (see Note 2).

Lord Robens’ Report in 1972 proposed modifications of the regulatory model, and made recommendations that were based on two principal objectives:

1) “… the creation of a more unified and integrated system” (Robens’ Report, para 41).

For Australia this would involve harmonising all state legislation on work health and safety into one umbrella statute containing broad “general duties” covering a range of parties affecting workplace health and safety, including employers, the self-employed, occupiers, designers, manufacturers and suppliers of plant and substances and employees. The skeleton statutory general duties were to be “fleshed out” with standards in regulations and codes of practice. A unified health and safety inspectorate were to have new administrative sanctions (improvement and prohibition notices) to supplement prosecution. Prosecutions were to be brought against corporate officers, as well as against the corporate employer.

2) “…a more effectively self-regulating system” (Robens Report, para 41).

This was proposed to be a system of self-regulation involving workers and management, at workplace level, working together to achieve, and improve upon, the health and safety standards prescribed by the state. The most important element in the Robens’ model of self- regulation was that:

“…there should be a statutory duty on every employer to consult with … employees or their representatives at the workplace on measures for promoting safety and health at work, and to provide for the participation of employees in the development of such measures” (Robens Report, para 70).

The Components of the WHS Law Framework

The WHS Act

The NSW WHS Act is the law passed by NSW Parliament regarding workplace health and safety. A PCBU (business, organisation, corporation) must comply with the actions required by the WHS Act. It sets out the law about matters such as the WHS duties of the PCBU and all persons in a workplace, the WHS requirements for risk management and consultation with workers, and the role of the SafeWork NSW and its enforcement procedure.

The WHS Regulation

The WHS Regulation provides specific requirements for complying with the WHS Act. They are rules or laws made by government departments using the powers given to them by the WHS Act. A PCBU must comply with the requirements set out in the WHS Regulation.

Codes of Practice

"An approved code of practice provides practical guidance on how to achieve compliance with the work health and safety standards required under the WHS Act and the Work Health and Safety Regulation (WHS Regulation), including effective ways to identify and manage risks."

"Codes of practice are admissible in court proceedings under the WHS Act and the WHS Regulation. Courts may regard a code of practice as evidence of what is known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates."

"The words ‘must’ or ‘require’ indicates that a legal requirement exists and must be met, ‘should’ indicates a recommended course of action, and ‘may’ an optional course of action." (The above quotations are from page 4 of the Foreword of the Code of Practice, Managing Psychological Hazards at Work)

Australian Standards

An Australian Standard provides guidelines relating to the design, operation and maintenance of equipment and systems, it sets out technical specifications or other matters necessary to ensure that a material, or method will consistently do the job it is intended to do. The standards are not law but sometimes a State or Federal Government has included an Australian Standard in a law and therefore made it a legal requirement to comply with that standard.

Guidance Notes

Guidance notes or material contain detailed information to assist persons to implement the requirements of legislation, codes and standards. They are issued by organisations such as SafeWork NSW, SafeWork Australia, and Standards Australia.

Notes

1.The Robens Model was derived from a report published in the UK in 1972 by Lord Alfred Robens proposing changes to the UK Occupational Safety and Health system which was perceived to be overly regulatory.

2. Up until the 1970s Australian health and safety law was mostly derived from the 19th century British health and safety legislation (particularly the 1878 Factories Act, and later the 1901 Act.)

3. The quotations from the, Managing Psychosocial Hazards at Work Code of Practice, are used under a Creative Commons Attribution 4.0 Licence. The Department of Customer Service, State of NSW is the owner. For more information, visit www.nsw.gov.au/copyright

31st March 2022. Revised 25 July 2024