WHS vs OHS: What's the Difference in Australia?

WHS vs OHS: A Fundamental Shift

The transition from Occupational Health and Safety (OHS) to Work Health and Safety (WHS) terminology in Australia represents more than just a change in acronym. It reflects a national harmonisation effort aimed at creating a more consistent and effective framework for managing workplace risks.

The OHS Era (Pre-2011)

Prior to the national harmonisation reforms, each Australian state and territory had its own unique Occupational Health and Safety legislation. This resulted in a patchwork of regulations, making compliance challenging for businesses operating in multiple jurisdictions. While the core principles of protecting workers from harm were consistent, the specific duties, definitions, and penalties varied significantly.

In this era, terms like "employer" and "employee" were central to defining duties and relationships. The focus was often on the employer's responsibility to provide a safe workplace for their direct employees. Victoria remains the primary jurisdiction that retains its OHS framework, with the Occupational Health and Safety Act 2004 (Vic) and the associated Occupational Health and Safety Regulations 2017 (Vic) continuing to govern workplace safety.

The WHS Harmonisation (Post-2011)

The Work Health and Safety (WHS) framework emerged from a national initiative to harmonise WHS laws across Australia. This effort culminated in the development of the Model Work Health and Safety Act (the Model WHS Act) and Model Work Health and Safety Regulations. These model laws were designed to be adopted by states and territories, ensuring greater consistency in legislation, codes of practice, and enforcement.

The key driver for this harmonisation was to reduce regulatory burden for businesses, improve safety outcomes, and provide all Australian workers with broadly consistent health and safety protections, regardless of where they work. Significant differences remain in some aspects, particularly penalties and specific regulatory requirements, but the underlying structure and core duties are largely uniform in the adopting jurisdictions.

Who is Covered by WHS? The PCBU Concept

One of the most significant changes introduced by the WHS framework is the shift from "employer/employee" to the broader concept of a "Person Conducting a Business or Undertaking" (PCBU). This redefines who has WHS duties and extends responsibilities beyond traditional employment relationships.

What is a PCBU?

A PCBU is an overarching term used to describe any entity that conducts a business or undertaking, whether for profit or not. This can include, but is not limited to:

• Companies
• Partnerships
• Sole traders
• Government departments and agencies
• Associations and charities

The definition of a business or undertaking is broad and includes any activity that involves work. This means that even a volunteer organisation or a small, informal operation can be classified as a PCBU and therefore have WHS duties.

Key Duties of a PCBU

Under section 19 of the Model WHS Act, a PCBU has a primary duty to ensure, so far as is reasonably practicable, the health and safety of:

1. Workers engaged, or caused to be engaged by the PCBU.
2. Workers whose activities in carrying out work are influenced or directed by the PCBU.
3. Other persons (e.g., visitors, customers) who may be affected by the work carried out by the business or undertaking.

This primary duty is non-delegable and requires proactive risk management. "Reasonably practicable" is a crucial concept, meaning what an individual could reasonably be expected to do in the circumstances, taking into account factors such as:

• The likelihood of the hazard or risk occurring.
• The degree of harm that might result from the hazard or risk.
• What the person knows, or ought reasonably to know, about the hazard or risk and ways of eliminating or minimising it.
• The availability and suitability of ways to eliminate or minimise the hazard or risk.
• The cost of eliminating or minimising the hazard or risk (only considered after assessing the extent of the risk and available control measures).

Jurisdictional Snapshot: Who Adopted What?

While the goal was national harmonisation, some variations and timelines for adoption occurred. Here's a breakdown of the current landscape:

• Model WHS Act Adopted (with minor variations):
  • New South Wales (Work Health and Safety Act 2011 (NSW))
  • Queensland (Work Health and Safety Act 2011 (Qld))
  • South Australia (Work Health and Safety Act 2012 (SA))
  • Tasmania (Work Health and Safety Act 2012 (Tas))
  • Western Australia (Work Health and Safety Act 2020 (WA), phased in from 2022)
  • Australian Capital Territory (Work Health and Safety Act 2011 (ACT))
  • Northern Territory (Work Health and Safety (National Uniform Legislation) Act 2011 (NT))
  • Commonwealth (Work Health and Safety Act 2011 (Cth), covering Commonwealth agencies and entities)
• Victoria: Continues to operate under its distinct OHS framework (Occupational Health and Safety Act 2004 (Vic)). While its legislation shares many core principles with the Model WHS Act, it uses different terminology and specific duty holders.

Businesses operating across state borders must therefore be aware of the specific legislative requirements in each jurisdiction. For comprehensive information on the model laws and their implementation, Safe Work Australia is an essential resource.

Officer Due Diligence: A Personal Responsibility

Another critical aspect of the WHS framework is the explicit duty placed on "officers" of a PCBU. Under section 27 of the Model WHS Act, an officer must exercise "due diligence" to ensure the PCBU complies with its WHS duties.

Who is an Officer?

The definition of an "officer" aligns with the definition in section 9 of the Corporations Act 2001 (Cth). Generally, this includes directors, company secretaries, and other persons who make or participate in making decisions that affect the whole or a substantial part of the business. This means that individuals in senior leadership roles within an organisation bear personal responsibility for WHS compliance.

What does Due Diligence Entail?

Exercising due diligence requires an officer to take reasonable steps to:

• Acquire and keep up-to-date knowledge of WHS matters.
• Gain an understanding of the nature of the operations of the business or undertaking and the general hazards and risks associated with those operations.
• Ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking.
• Ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information.
• Ensure that the PCBU has, and implements, processes for complying with any duty or obligation under the Act (e.g., reporting notifiable incidents, consulting with workers, ensuring compliance with notices).
• Verify the provision and use of the resources and processes mentioned above.

This is a positive, proactive obligation. Officers cannot simply delegate WHS responsibilities away; they must actively engage in ensuring robust WHS governance. Failure to do so can lead to significant personal penalties, including fines and, in serious cases, imprisonment.

Industrial Manslaughter: Escalating Accountability

In response to tragic workplace fatalities, most Australian jurisdictions have introduced industrial manslaughter offences into their WHS legislation. These laws carry severe penalties, including lengthy custodial sentences for individuals and multi-million-dollar fines for corporations.

The introduction of industrial manslaughter provisions underscores the increasing legal and social expectation for businesses and their officers to prioritise WHS. These offences are typically triggered where a PCBU or its officers cause the death of a worker (or other person) through a gross deviation from a standard of care that a reasonable person would have exercised.

For officers, industrial manslaughter provisions reinforce the need for diligent oversight and active participation in managing WHS risks, as demonstrated by the due diligence elements outlined above. It transforms what might have been considered a regulatory breach into a potential criminal offence with profound personal consequences.

Regulators and Enforcement

Each jurisdiction has a primary regulator responsible for administering and enforcing its WHS/OHS laws. These agencies investigate incidents, conduct inspections, provide advice, and prosecute breaches.

• NSW: SafeWork NSW
• VIC: WorkSafe Victoria
• QLD: Workplace Health and Safety Queensland
• SA: SafeWork SA
• TAS: WorkSafe Tasmania
• WA: WorkSafe WA
• ACT: WorkSafe ACT
• NT: NT WorkSafe
• Commonwealth: Comcare (for Commonwealth workplaces and licensees)

These regulators actively monitor compliance and can issue notices, impose penalties, and initiate prosecutions. Their enforcement activities are a critical component of ensuring safe workplaces. Penalties for WHS breaches can be substantial and extend beyond fines to include enforceable undertakings, adverse publicity orders, and, as noted, industrial manslaughter convictions.

Why the Distinction Matters for Your Business

Understanding the WHS/OHS distinction is critical for several reasons:

• Legal Compliance: Ensures your business adheres to the correct legal framework in each jurisdiction it operates.
• Risk Management: Allows for accurate identification and mitigation of specific risks relevant to your operations under the applicable laws.
• Officer Protection: Crucial for directors and senior managers to understand their personal due diligence obligations and avoid significant personal liability.
• Reputation: Demonstrated commitment to WHS fosters a positive reputation, attracting talent and clients.
• Operational Efficiency: Effective WHS management reduces incidents, downtime, and associated costs.

Envision Legal advises businesses on all aspects of WHS compliance, including developing robust WHS management systems, conducting due diligence reviews, and providing training for officers and management. We assist in navigating the complexities of multi-jurisdictional compliance and can help you establish fractional general counsel support to embed WHS governance into your daily operations. For specific advice on your obligations, particularly board governance and officer liability in WHS, please contact us.

This article contains general information only and does not constitute legal advice. While we aim for accuracy, laws can change and their application can vary widely based on specific facts and circumstances. Envision Legal accepts no liability for any loss arising from reliance on this content. You should seek independent legal advice tailored to your specific circumstances.