Frequently asked questions about the new work health and safety laws

No, the Commonwealth and each state and territory will continue to have its own regulator to administer the laws in their jurisdiction.

Section 273 of the WHS Act provides that:

'A PCBU must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety'.

This provision is primarily associated with personal protective equipment (PPE).

A transitional period of 12 months applies to the duties regarding remote and isolated work (i.e. PCBUs have until 1 January 2013 to comply with this duty).

Section 48 of the WHS Regulation requires a PCBU to manage risks to the health and safety of a worker associated with remote or isolated work.

For the purpose of this duty:

• 'remote and isolated work' means work that is isolated from the assistance of other persons because of location, time or the nature of the work
• 'assistance' includes rescue, medical assistance and the attendance of emergency service workers.

Where the risks to the health or safety of workers associated with remote or isolated work cannot be eliminated, then in minimising the risks the PCBU must also provide a system of work that includes effective communication with the worker.

The application of s.48 of the WHS Regulation does not restrict a worker from working alone, or from undertaking remote or isolated work, it requires the PCBU to manage the risks associated with this type of work.

Further, the provision of a system of effective communication alone does not discharge the PCBU's duty to mange the risk associated with remote or isolated work. The provision of a system of effective communication with the worker is required as part of the PCBU's duty to manage the risks to health and safety associated with remote or isolated work.

Yes. In this situation, where an individual ('the resident') chooses to employ a worker rather than engage a contractor for domestic reasons, the resident is entering into an employment relationship and exercises a higher degree of control over the work being carried out by the worker. While the resident is not employing the worker as part of a business, employing the worker to carry out certain duties at the home would be regarded as an undertaking. Consequently, the resident has a duty of care as a PCBU under the new laws and the person employed by the resident has the worker's duty of care.

If you invite or allow your neighbours or friends to visit your property to go trail bike riding simply in a social context, the act is not intended to apply to this situation. However, if you charge a fee for people to use your property for trail bike riding, then this would mean you are more likely to be regarded as conducting a business or undertaking, thereby triggering the application of the Act.

Reasonably practicable is a concept which takes into account a number of factors that can help you decide what is reasonable in terms of controlling risks, such as defective machine guarding. To determine what is (or was at a particular time) reasonably practicable in relation to managing a risk, a person must take into account and weight up all relevant matters, including:

• the likelihood of the hazard or the risk concerned occurring
• the degree of harm that might result
• what the person concerned knows, or ought to know, about: - the hazard or the risk; and - ways of eliminating or minimising the risk
• the availability and suitability of ways to eliminate or minimise the risk.

Only after taking into account these matters, the person may also consider the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

From 1 January 2012 the requirement for employers to appoint WHSOs ceased.

PCBU's are not required to engage a WHSO to ensure compliance with the WHS Act.

However, officers of a PCBU have a duty to exercise due diligence duties under s.27 of the WHS Act.

Retaining a safety advisor with appropriate skills, knowledge and experience will assist officers of the PCBU to meet their due diligence duties under the WHS Act.

Depending on the nature of the business or undertaking and hazards present with the PCBU's operations, a safety advisor may be an employee of the company or a consultant engaged on an as-needs basis.

A former WHSO may fulfil the requirements of a safety advisor with appropriate skills, knowledge and experience.

The duty to exercise due diligence always remain with each individual officer of the company and cannot be delegated to a safety advisor.

The WHS Act imposes a specific duty on officers of PCBU's, to exercise due diligence to ensure that the PCBU meets its work health and safety duties.

This duty requires officers to be proactive in ensuring that the PCBU complies with its work health and safety duties and applies whether or not there has been an incident, and irrespective of whether the PCBU is prosecuted.

In demonstrating due diligence, officers will need to show that they have taken reasonable steps to:

• acquire and update their knowledge of health and safety matters
• understand the operations being carried out by the PCBU in which they are employed, and the hazards and risks associated with the operations
• ensure that the PCBU has, and uses, appropriate resources and processes to eliminate or minimise health and safety risks arising from work being done
• ensure that the PCBU has appropriate processes in place to receive and respond promptly to information regarding incidents, hazards and risks
• ensure that the PCBU has, and uses, processes for complying with duties or obligations under the WHS Act.

This approach emphasises the corporate governance responsibilities of officers as it is critical to the achievement of positive safety outcomes for senior management to lead the corporate safety agenda.

For more information, refer to the fact sheet on due diligence.

There are some differences between the WHS Act and Queensland's previous health and safety laws.

Under the previous legislation, the liability of executive officers was limited to corporations. That is, if a corporation had committed an offence against a provision of the previous legislation, each of the corporation's executive officers had also committed an offence. Each executive officer was then deemed to have failed their duty to ensure that the corporation complied with the relevant provision. The previous legislation also provided two defences for an executive officer:

• they exercised reasonable diligence
• they were not in a position to influence the conduct of the corporation in relation to the offence.

The WHS Act requires officers of corporations, unincorporated bodies (such as clubs) and the Crown to exercise 'due diligence' to ensure that the company, authority or club complies with its duties under the WHS Act. This creates a positive duty that is seen to apply immediately, meaning the officer must be proactive in taking steps to ensure compliance by the corporation, rather than accountability of officers being deemed only after a contravention has occurred. This duty applies whether or not there has been an incident and irrespective of whether the corporation is prosecuted.

The WHS Act and WHS Regulation require the PCBU and workers to negotiate with each other to determine the number and make up of work groups to suit the particular business or undertaking.

The matter that must be taken into account when negotiating the number and make up of work groups is provided at s.17 of the WHS Regulation. Section 16 of the WHS Regulation also requires the negotiations for determination of work groups to be directed at ensuring that the workers are grouped in a way that most effectively and conveniently enables the work health and safety interests of those workers to be represented, and in a way that has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group.

The WHS Act and WHS Regulation also require the PCBU and workers to negotiate the number of HSRs and deputy HSRs (if any) to be elected to each work group; however, there is no requirement for any particular number of HSRs or deputy HSRs to be appointed.

For more information about work groups and HSRs, refer to Safe Work Australia's Health and Safety Representatives legislative fact sheet series.

A 'volunteer' is defined in the WHS Act to mean a person who acts on a voluntary basis, irrespective of whether the person receives out-of-pocket expenses.

Volunteers perform a range of different activities in the community. Some of these may be carried out for an organisation regarded as a 'volunteer association' under the WHS Act.

Volunteer associations are only excluded if they have one or more community purposes and they do not have any employees carrying out work for the association.

The term 'community purposes' is not defined in the WHS Act but is intended to cover purposes including:

• philanthropic or benevolent purposes, including the promotion of art, culture, science, religion, education, medicine or charity, and
• sporting or recreational purposes, including the benefiting of sporting or recreational clubs or associations.

In these circumstances, the volunteer is not performing work for a person conducting a business or undertaking (PCBU) and the WHS Act does not apply (e.g. a junior sports club where the office bearers are volunteers and the organisation, operation and activities of the club are carried out by volunteers such as the parents of the children playing sport).

However, other volunteers perform work for a PCBU. In these circumstances, the volunteer is a 'worker' and the PCBU owes a duty of care to that volunteer. The volunteer also has a worker's duty of care under the WHS Act and must take reasonable care for his or her own health and safety.

If a person is a volunteer 'officer' of a PCBU, the person must comply with the duty of an officer to exercise due diligence under the WHS Act. However, a volunteer officer cannot be prosecuted for failing to comply with their officer duties under the WHS Act.

Find out more about volunteers.

Not-for-profit organisations or charities which have employees will be regarded as a PCBU under the WHS Act. They have a duty of care to ensure, so far as is reasonably practicable, the health and safety of their workers at work and that the health and safety of other people is not affected by the way in which the organisation conducts its business or undertaking.

However, certain 'volunteer associations' are excluded from the primary duty of care owed by a PCBU under the WHS Act. A charity or not-for-profit organisation may be excluded from being considered a PCBU if it meets the definition of a 'volunteer association'.

Volunteer associations are only excluded if they have one or more community purposes and they do not have any employees carrying out work for the association.

The term 'community purposes' is not defined in the WHS Act but is intended to cover purposes including:

• philanthropic or benevolent purposes, including the promotion of art, culture, science, religion, education, medicine or charity, and
• sporting or recreational purposes, including the benefiting of sporting or recreational clubs or associations.

Volunteer associations with one or more employees owe duties of care under the WHS Act to those employees and to any volunteers who carry out work for the association.

Find out more about not-for-profit organisations.

EPC licences to operate certain types of plant are not required under the WHS Act.

The plant which previously fell under the EPC licensing system includes backhoes, front end loaders, excavators, skid steer loaders, road rollers, graders, scrapers, dozers and remote controlled bridge and gantry crane.

Although operators of this type of plant are not required to be licensed under the WHS Act, PCBUs have a duty to ensure the competency of the operator when the plant is operated, so far as is reasonably practicable.

Examples of how to assess the competency of a person to operate a piece of plant could include a review the work history and training records of a person, conduct appropriate challenge tests and have an experienced competent worker of the PCBU 'assess' a new worker on behalf of the PCBU.

Operators of the plant listed above could demonstrate their competency in the operation of particular plant by:

• showing their old EPC licence or ticket as evidence of having undertaken training and assessment in the operation of that plant
• holding a statement of attainment or other nationally recognised qualification
• successfully completing training at an industry training school
• completing on-the-job training under the supervision of an experienced competent person.

Many Registered Training Organisations (RTOs) also provide a fee for service called verification of competency conducted by an accredited assessor aligned to that RTO.

For more information about licensing for EPC occupational classes, refer to the Licensing for earthmoving or particular crane (EPC) occupational classes fact sheet.

Where a PCBU (the client) commissions a construction project which has a total value of $250 000 or more, then that client will be the PC for the construction project.

If the client engages another PCBU and authorises that PCBU to have management and control of the workplace, and to discharge the duties of a PC under Chapter 6 of the WHS Regulation, then the PCBU engaged is the PC of the project [s293(2)].

The WHS Regulation does not require this authorisation to be in writing, but there must be some evidence of the authorisation having occurred. Where evidence of the authorisation is ambiguous or unclear, the client will be considered to be the PC.

A construction project has only one principal contractor at any one specific time.

The WHS Act does not require a PCBU to notify the regulator of the appointment of a PC.

The duties of a PC under Chapter 6 of the WHS Regulation do not apply to construction work unless the total value of the construction work is $250 000 or more.

However, there are duties under both the WHS Act and WHS Regulation that apply to a PCBU with management or control of a workplace (i.e. the place where construction work is carried out will be a workplace). These duties will apply regardless of the cost of construction work.

The PCBU who commissions the construction work can assign all management and control of the workplace to another PCBU. The second PCBU will then solely have duties as the PCBU with management and control of the workplace. However, both management and control must be assigned for these duties to pass; otherwise, both PCBUs will have concurrent duties for the management and control of the workplace.

High risk construction work is defined as construction work that:

• involves a risk of a person falling more than two metres(e.g. installing an evaporative cooler on the roof of a double-storey building)
• is carried out on a telecommunication tower (e.g. installing equipment on a telecommunications tower
• involves demolition of an element of a structure that is load-bearing or otherwise related to the physical integrity of the structure (e.g. knocking down load-bearing walls as part of a warehouse conversion)
• involves, or is likely to involve, the disturbance of asbestos (e.g. removing floor tiles containing asbestos as part of a building refurbishment or cutting or drilling into an asbestos cement sheet wall)
• involves structural alterations or repairs that require temporary support to prevent collapse (e.g. using props to support a ceiling where a load-bearing wall will be removed)
• is carried out in or near a confined space (e.g. connecting a new sewer to an existing sewer main in a 3 metre trench)
• is carried out in or near a shaft or trench with an excavated depth greater than 1.5 metres or is carried out in or near a tunnel (e.g. laying or repairing pipes and conduits in a 2 metre trench, testing drainage pipes in a 2 metre trench, building a tunnel in the course of constructing an underground railway or road)
• involves the use of explosives (e.g. blasting in preparation for the construction of a building or road, breaking up rock during construction of foundations)
• is carried out on or near:
  • pressurised gas distribution mains or piping
  • chemical, fuel or refrigerant lines
  • energised electrical installations or services

  'near' in the above circumstances means close enough that there is a risk of hitting or puncturing the mains, piping, electrical installation or service. High risk construction work is not limited to electrical safety 'no-go zones'. Electrical installations do not include power leads and electrically powered tools. Some examples of high risk construction work include working near overhead or underground power lines, construction work that involves drilling into a wall where live electrical wiring may be present.

• is carried out in an area that may have a contaminated or flammable atmosphere (e.g. demolishing a petrol station and removing old tanks, decommissioning plant and removing pipework that may contain residue of hazardous chemicals)
• involves tilt-up or precast concrete (e.g. building a factory using tilt-up panels, installing a precast drainage pit)
• is carried out on, in or adjacent to a road, railway, shipping lane or other traffic corridor that is in use by traffic other than pedestrians (e.g. breaking up and replacing a footpath alongside a roadway that is in use)
• is carried out in an area at a workplace in which there is any movement of powered mobile plant (e.g. working in an area of a construction site that is not isolated from the movement of skid steer loaders, telehandlers, backhoes, mobile cranes or trucks)
• is carried out in an area in which there are artificial extremes of temperature (e.g. construction work in an operating cool room or freezer or construction work alongside an operating boiler)
• is carried out in or near water or other liquid that involves a risk of drowning (e.g. constructing a bridge over a river or restoring a wharf)
• involves diving work (e.g. divers undertaking structural repairs to jetties, piers or marinas).

The WHS Regulations require a PCBU that includes the carrying out of high risk construction work to:

• ensure that a safe work method statement (SWMS) is prepared before the proposed work commences
• make arrangements to ensure that the high risk construction work is carried out in accordance with the SWMS
• ensure that a copy of the SWMS is given to the principal contractor before the work commences
• ensure that a SWMS is reviewed and revised if necessary
• keep a copy of the SWMS until the high risk construction work is completed.

High risk construction work must not be carried out unless a SWMS is prepared prior to the work commencing.

The primary purpose of a SWMS is to enable supervisors, workers and any other persons at the workplace to understand the requirements that have been established to carry out the high risk construction work in a safe and healthy manner. It sets out the work activities in logical sequences and identifies hazards and describes control measures.

Any activity, no matter how simple or complex can be broken down into a series of basic steps that will permit a systematic analysis of each part of the activity for hazards and potential incidents. The description of the process should not be so broad that it leaves out activities with the potential to cause incidents and prevents proper identification of the hazards nor is it necessary to go into fine detail of the tasks.

The aim of a SWMS is to:

• describe the activity or task to be undertaken
• identify the resources, manpower and skills associated with the task
• assess and select control measures (as appropriate)
• systematically plan the activity so it can be completed efficiently and effectively.

The SWMS must be able to be easily read by those who need to know what has been planned to manage the risks and implement the control measures and ensure the work is being carried out in accordance with the SWMS.

Relevant persons include:

• the supervisor of the high risk construction work
• the worker carrying out the high risk construction work
• the principal contractor (if it is a construction project) or the person who has management and control over the high risk construction work.

A person conducting a business or undertaking (PCBU) that includes the carrying out of high risk construction work must ensure a SWMS is prepared or has already been prepared by another person before the proposed work commences.

If more than one PCBU is involved in the high risk construction work then each PCBU involved in the same matter must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other PCBU's.

A PCBU (in consultation with workers who will be directly engaged in the high risk construction work) is best placed to prepare the SWMS because they understand the work being carried out and the workers undertaking the work and can ensure the SWMS is implemented, monitored and reviewed correctly.

There may be situations where there are different types of high risk construction work occurring at the same time at the same workplace.

When preparing a SWMS the following must be taken into account:

• the circumstance at the workplace that may affect the way in which the high risk construction work is carried out
• on a construction project, the WHS management plan prepared by the principal contractor.
  • identify the work that is high risk construction work
  • specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards
  • describe the measures to be implemented to control the risks
  • describe how the control measures are to be implemented, monitored and reviewed.

The SWMS must:

A SWMS should also include the following information:

• the person conducting a business or undertaking's name, address and ABN (if they have one)
• details of the person(s) responsible for ensuring implementation, monitoring and compliance with the SWMS
• if the work is being carried out at a construction project:
  • the name of the principal contractor
  • the address where the high risk construction work will be carried out
  • the date the SWMS was prepared and the date it was provided to the principal contractor
  • the review date (if any).

A SWMS may also include the names of workers that have been consulted on the content of the SWMS, the date the consultation occurred and the signature of each worker acknowledging their participation in this consultation and the opportunity to discuss the proposed measures.

The content of a SWMS should provide clear direction on the control measures to be implemented. There should be no statements that require a decision to be made by supervisors or workers. For example, the statement 'use appropriate PPE' does not detail the control measures. The control measures should be clearly specified.

Workers and their health and safety representatives should be consulted in the preparation of the SWMS. If there are no workers engaged at the planning stage, consultation should occur with workers when the SWMS is first made available to workers for example, during induction training, or when it is reviewed such as during workplace-specific training or a toolbox talk.

A generic SWMS may be prepared and used for those work activities that are carried out on a regular basis. The content of this type of SWMS may be refined over a number of years and include consultation with workers and other persons conducting a business or undertaking. Prior to each new activity, the SWMS must be reviewed and revised to ensure it applies to the high risk construction work and the actual workplace.

All persons conducting a business or undertaking who are involved in high risk construction work must develop and implement arrangements to ensure the work is carried out in accordance with the SWMS. Arrangements may include a system of routine or random workplace inspections (e.g.. asking workers and supervisors a few questions about the control measures used in the SWMS to see if they understand what has to be done).

If the work is not being carried out in accordance with the SWMS, then the work must stop immediately or as soon as it is safe to do so. Work must not resume until the work can be carried out in accordance with the SWMS. If work is stopped, the work and the SWMS should be reviewed to identify non-compliance and ensure the method in the SWMS is the most practical and safest way of doing the task. If another method is identified as being a safer option, the SWMS should be revised to take into account this change prior to work re-commencing.

If the high risk construction work is being carried out in connection with a construction project, a person conducting a business or undertaking must not commence high risk construction work unless the principal contractor has been provided a copy of the SWMS. If the principal contractor is not aware of the content of the SWMS then they will not be able to comply with their duties. The principal contractor must ensure that the person conducting a business or undertaking does not commence high risk construction work until they have been provided a copy of the SWMS.

A person conducting a business or undertaking must ensure that all workers who will be involved in high risk construction work are provided with information and instruction so they:

• understand the hazards and the risks arising from the work
• understand and implement the risk controls in a SWMS
• know what to do if the work is not being conducted in accordance with the SWMS.

For example, this information and instruction may be provided during induction training, workplace-specific or during a toolbox talk by principal contractor, contractor or subcontractor.

The SWMS must be kept and be available for inspection until at least the high risk construction work is completed. Where a SWMS is revised, all versions should be kept.

If a notifiable incident occurs in relation to high risk construction work to which the SWMS relates, then the SWMS must be kept for at least 2 years from the occurrence of the notifiable incident. If the construction work at the workplace has ceased within that period then the person conducting a business or undertaking should keep the SWMS readily available for inspection.

The SWMS may be kept at the workplace where the high risk construction work will be carried out. If this is not possible, then the SWMS should be kept at a location where it can be delivered to the workplace promptly.

A person conducting a business or undertaking must ensure the SWMS is available

• to any person engaged to carry out the high risk construction work
• for inspection under the WHS Act.

A SWMS must be reviewed regularly to make sure it remains effective. A SWMS must be reviewed (and revised if necessary) if relevant control measures are revised.

The review process should be carried out in consultation with workers (including contractors and subcontractors) who may be affected by the operation of the SWMS and their health and safety representatives who represented that work group at the workplace.

When a SWMS has been revised the person conducting a business or undertaking must ensure:

• all persons involved with the high risk construction work are advised that a revision has been made and how they can access the revised SWMS. For a construction project, the principal contractor should be given a copy of the revised SWMS
• all persons who will need to change a work procedure or system as a result of the review are advised of the changes in a way that will enable them to implement their duties consistently with the revised SWMS
• all workers that will be involved in the high risk construction work are provided with the relevant information and instruction that will assist them to understand and implement the revised SWMS.

Yes. The Queensland Government has determined that separate legislation will be maintained for electrical safety and mining safety.

For more information refer to the Electrical Safety Office and Mining and safety.