WorkSafe ACT

About the Work Safety legislation

Updated: Mon, 10 Dec 2012 10:56:42 +1100
Printed: Sun, 01 Nov 2015 02:23:55 +1100
Revision: 45

Overview

In the second half of 2011, in keeping with the ACT's commitment to the national harmonisation of health
and safety laws, the Legislative Assembly passed a new Work Health and Safety Act 2011. The new Act
replaced the previous Work Safety Act 2008 on 1 January 2012. -The Work Safety Act 2008 therefore
ceased to have effect from midnight on 31 December 2011.

Click here for a Guide to the Work Health and Safety Act from Safe Work Australia.

As with the Work Safety Act 2008, the new legislative regime comprises 3 formal elements with a fourth,
non-legislative element sitting below that. These are:

the principal Act, the Work-Health and Safety Act 2011, which takes effect from 1 January 2012
the Regulations that sit below the principal Act, namely the Work Health and Safety Regulation
2011
Codes of Practice
National and Australian Standards
Guidance Material.

The Act sets out the overall framework for work safety and a range of duties designed to ensure work
health and safety.

The Regulation spells out minimum standards for the duty holders to ensure work safety in relation to
specific hazards and risks (such as the performance of manual tasks). Regulations have the force of law
and MUST be adhered to. Failure to comply may result in a criminal penalty or an infringement notice.

Codes of Practice provide practical guidance on how to comply with legal duties. Codes have formal
status, allowing courts to consider whether a Code has been complied with in deciding whether legal
duties have been met. The steps set out in a Code are not compulsory, but you should follow the Code or
an equivalent [or better] alternative.

National Standards and National Codes of Practice are developed by Safe Work Australia and its
predecessors (NOHSC, ASCC). Once adopted in each jurisdiction, they are then legally enforceable.
Australian Standards are separate technical guides which may also assist a person to comply with a
particular work safety duty.
The Work-Health and Safety Act 2011-has brought health and safety laws in the ACT into harmony with
similar legislation adopted by most of the other Australian states and territories. -This harmonisation
process has significantly narrowed the differences in work health and safety legislation across borders
within Australia.

Key features of the new legislation include:

continuation of the definition of 'worker' under the previous Work Safety Act 2008 as including
more than just employees, e.g. contractors, volunteers, etc.
continuation of the emphasis in the previous Work Safety Act 2008 on those who engage workers
in the conduct of a business or undertaking [a 'person conducting a business or undertaking, or
PCBU, noting that 'person' in this context can include a whole business or government agency] as
the primary safety duty holder
continuation of the inclusion in the Work Safety Act 2008 of upstream and other similar duty
holders amongst PCBUs
a duty for a PCBU to, as far as is reasonably practicable, provide a safe workplace and a safe
systems of work
where a PCBU has a safety duty, an 'officer' [e.g. a director or senior manager] within the business
has a 'due diligence' requirement to take steps to assist the PCBU in meeting its obligations
the primary means of providing a safe working environment is through eliminating or, if
elimnination is not possible, minimising risk
employers must consult with workers to allow them to contribute directly to the management of risk
and creation of a safe working environment.-

The new legislation also introduces some new terminology, including:

'work safety' becomes 'work health and safety' or WHS

'worker consultation units' become 'work groups'
'work safety representatives' and 'work safety committees' become 'health and safety
representatives' and 'health and safety committees'
'authorised representatives' become 'WHS entry permit-holders'.

Transitional Arrangements

Part 20 of the Work Health and Safety Act 2011 contains a number of transitional provisions which will
ease the move from the Work Safety Act 2008 to the new Act.

In particular, the Act provides that:

existing 'worker consultation units' automatically become 'work groups'

existing 'work safety representatives' become 'health and safety representatives'
existing 'work safety committees' become 'health and safety committees'
existing 'authorised representatives' become 'WHS entry permit-holders'.

This means that there is no need for businesses to hold new elections, for example, for HSRs or to
reorganise their consultative arrangements as a result of the new legislation coming into effect.
Section 2 of the Work Health and Safety Regulation 2011 also provides for transitional arrangements
including:

Division 4.7.4 [electrical work on energised electrical equipment] commences 1 July 2012
Sections 168-170 [certificate of fitness for diving work] commence 1 July 2012
Section 53 [storage of flammable or combustible substances] commences 1 January 2013
Sections 164 and 165 [residual current devices] commences 1 January 2013
Sections 171-175 [competence of workers for diving work] commences 1 January 2013
Divisions 4.8.3 and 4.8.4 [diving work] commences 1 January 2013
Divisions 5.2.2 and 5.2.3 [design of plant] commences 1 January 2013
Section 235 [inspection of mobile and tower cranes] commences 1 January 2013
Part 5.3 [registration of plant designs and items of plant] commences 1 January 2013
Sections 309-311 [WHS management plan for construction work] commences 1 January 2013
Section 313-[WHS management plan for construction work]-commences 1 January 2013
Schedule 3 [high risk work], table 3.1, Item 23 commences 1 July 2013
Schedule 4 [high risk work], Table 4.1, Item 23 commences 1 July 2013.

In line with action taken by Workcover NSW, WorkSafe ACT has provided a further transition, until 1
January 2013 [i.e. for 12 months], with conditions [see immediately below], for a person with
management or control of the following earthmoving machinery from the requirments of section 217 of
the Work Health and Safety Regulation 2011:

road rollers or compactors with a mass of 2700kg or less

power shovels
draglines
paving machines
earthmoving machinery that is designed to be used by an operator in a standing position, including
profilers, stabilisers, materials transfer vehicles and stand-up loaders and excavators
hydraulic excavators.

This exemption is subject to the following conditions:

1. the risks of the earthmoving machinery overturning or objects falling on their operators have been
assessed and other means are used to control them. -The risk assessment should be in writing and
the controls should form part of a documented safe work method statement.
2. where a risk assessment indicates that the operator of a hydraulic excavator, including those
designed to be operated from a standing position, is at risk from falling objects and/or objects that
approach from the front of the excavator, it is fitted with a protective structure that conforms with
AS 4988: 2002 Earth moving machinery - Hydraulic excavators - Laboratory tests and
performance requirements for operator protective guards.
3. where a risk assessment indicates that compact excavators - those operating with a mass between
1000kg and 6000kg - are at risk of tipping over, they are to be fitted with a structure that conforms
with AS 4987: 2002 Earth-moving equipment - Tip-over protection structures for compact
excavators - Laboratory tests and performance requirements.
4. where a risk assessment indicates that it is necessary to fit the machines listed for exclusion with
 operator protective structures other than those within the scope of AS 4987 and AS 4988, the
structure is designed by a suitably qualified engineer having regard to the performance
requirements of the relevant parts of the Australian Standard AS 2294.1: 1997 Earth-moving
machinery - Protective structures. -Such a structure would not require deformation testing if the
engineer is satisfied that calculations are sufficient to prove its performance.

Regulations

Below the principal Act sit regulations, which provide further details regarding obligations in respect of a
range of specific matters. Under the Work Health and Safety Act 2011, all regulations are brought
together into one single regulation - the-Work Health and Safety Regulation 2011. Most elements of the
new regulation take effect from 1 January 2012, although some aspects will have a delayed date of effect
to enable businesses to transition to the new provisions.

Matters covered in the Work Health and Safety Regulation 2011 include:

representation and participation [consultation] - Chapter 2

managing risks to health and safety and general workplace management - Chapter 3
hazardous work involving noise, hazardous manual tasks, confined spaces, falls, demolition work,
electrical safety and energised electrical work, diving work and licensing of high risk work and
accreditation of assessors of competency - Chapter 4
plant and structures - Chapter 5
construction work - Chapter 6
NOTE: hazardous chemicals including lead, asbestos and major hazard facilities - which comprise
Chapters 7, 8 and 9 respectively in the model legislation - are NOT included the the ACT Work
Health and Safety Regulations. -They will continue to be regulated under the Dangerous Substances
Act 2004 and associated Regulations pending a review in 2012 which will, in part, take into
account the model WHS provisions
mines - Chapter 10 and
review of decisions, exemptions and prescribed serious illnesses - Chapter 11.

Safe Work Australia, through the national harmonisation of health and safety process, have developed a
useful Guide to the regulations which can be found on their website.

Other current relevant Acts and their associated regulations are listed below. The Scaffolding and Lifts
Act 1912 and the Machinery Act 1949 are expected to be repealed early in 2012, as most of the provisions
in that legislation are now provided for in the new WHS Act.

Scaffolding and Lifts Act 1912

Scaffolding and Lifts Regulation 1950
Machinery Act 1949
Machinery Regulation 1950.-

Approved Codes of Practice

A relevant Code of Practice is admissible as evidence in any court proceeding under the Act or the
Regulations. A court may have regard to a Code of Practice as evidence about what is known about a
particular hazard or risk, risk assessment or risk control. A court may also rely on the Code of Practice in
determining what is reasonably practicable in the circumstances to which the Code of Practice relates.-

Evidence of compliance with the Work Health and Safety Act 2011 or the Work Health and Safety
Regulation 2011 by another method which provides an equivalent or higher standard of work health and
safety than the standard in the Code of Practice can also be introduced in court proceedings.-

Codes of Practice are designed to be used in conjunction with the Act and the Regulation but do not have
the same legal implications. A person cannot be prosecuted for failing to comply with a Code of Practice.-

An inspector may refer to an approved Code of Practice when issuing an improvement or prohibition
notice and may offer the person to whom the notice is issued a choice of ways in which to remedy the
contravention.-

Approved Codes of Practice offer practical examples of good practice. They give advice on how to
comply with the law by, for example, providing a guide to what is "reasonably practicable" in particular
circumstances. For example, if regulations use words like "suitable and sufficient", an Approved Code of
Practice can illustrate what this requires in relation to a specific kind of activity, such as providing first
aid facilities for workers, or in respect of smoking in the workplace.

Click here for a-list of the Approved Codes of Practice for the ACT-and access to their content.

Industry Standards

In the absence of reference to specific requirements in regulations or codes of practice, courts will often
have regard to relevant industry standards.

WorkSafe ACT will work with local consultative forums to develop industry standards applicable to work
safety in the ACT. -Access to such standards will be provided here.

Guidance Material

WorkSafe ACT publishes guidance on a range of health and safety subjects.

Guidance can be specific to the health and safety problems of an industry, or to a particular process used
in a number of industries, or to a hazard or process which may be common across several or all industries.

Guidance Material is not law, though it can help explain the law. The main purposes of guidance are:

help people to understand what the law says

help people understand how to comply with the law
provide technical advice on specific issues of concern.

Following guidance is not compulsory and employers are free to take other action. In many cases,
however, if they do follow the guidance provided they will be doing enough to comply with the law.
Click here to view a list of all of the publications currently available.

Resources and Fact Sheets

The following resources are available from Safe Work Australia covering various aspects of the new
legsilation:

Interpretive Guideline - the meaning of PCBU or 'person conducting a business or undertaking'

Interpretive Guideline - the health and safety duty of an officer under section 27 of the WHS Act
Interpretive Guideline - the meaning of 'reasonably practicable'
Safe Work Australia Guide - How to Determine What is Reasonably Practicable to Meet a Health
and Safety Duty
Interpretive Guideline - Workplace Entry by WHS Entry Permit Holders
Fact Sheet - Codes of Practice
Fact Sheet - Health and Safety Committees
Booklet - Worker Representation and Participation Guide
Fact Sheet - Role of the regulator in compliance and enforcement
Fact Sheet - First aiders
Fact Sheet - Volunteer 'Officers' and their duties under the WHS Act
Fact Sheet - Volunteer organisations and the WHS Act
Fact Sheet - Volunteers and the WHS Act
Volunteers - Volunteer Resource Kit
Fact Sheet - Labour hire duties of PCBUs
Fact Sheet - Emergency Plans
Fact Sheet - Slips and Trips
Emergency Services - Frequently Asked Questions
Fact Sheet - Understanding Safety Data Sheets for Hazardous Chemicals

WorkSafe has also developed a new form for Incident Notification after 1 January 2012:

WorkSafe ACT Incident Notification Form

Infringement Notices [or "on-the-spot" fines]

The following is a list of Infringment Notices available to WorkSafe ACT in respect of the Work Health
and Safety Act and Regulations.

List of Infringment Notices or on-the-spot fines.

These are also listed in the ACT in the Magistrates Court (Work Health and Safety Infringment Notices)
Regulation 2011.

Enforceable undertakings

Click here to find out more about enforceable undertakings under the WHS Act 2011.

What training or information sessions are available about the legislation?

A series of public information sessions about the legislation-are scheduled to be provided by this office in
the coming months.-

Click here for more information regarding these sessions.-

Safe Work Australia

Safe Work Australia will continue to provide a range of guidance and support material relating to the
harmonisation of work health and safety laws across Australia.

Go to their website for further information.

Feedback and/or suggestions for additional information

Should you feel that there is some aspect of the changes to the Act and/or the supporting legislation that is
not covered adequately here, or should you simply have a comment to make about the above information,
please contact WorkSafe ACT.

Previous Legislation

In August 2008 the Legislative Assembly passed the-Work Safety Act 2008. -This Act ceased to have
effect from midnight on 31 December 2011.

The Work Safety Act 2008 replaced the previous-Occupational Health and Safety Act 1989-on 1 October
2009. The Occupational Health and Safety Act 1989 ceased to have effect from midnight on 30
September 2009.

The-Work Safety Regulation 2009-was passed as subordinate legislation to the Work Safety Act 2008.-
The Work Safety Regulation 2009 also cease to have effect from midnight on 31 December 2011..