Review of the model WHS laws - terms of reference

Background 

1. In February 2008, the then Workplace Relations Ministers Council agreed that model legislation was the most effective way to achieve harmonisation of Work Health and Safety (WHS) laws. 

2. Safe Work Australia (SWA) was established by the Safe Work Australia Act 2008 with primary responsibility to lead the development of policy to improve WHS and workers’ compensation arrangements across Australia. One of SWA’s statutory functions is to prepare, and if necessary revise, model WHS laws for approval by ministers with responsibility for WHS (WHS ministers), and for adoption as laws of the Commonwealth, the States and Territories. 

3. The model laws comprise the model WHS Act, model WHS Regulations and model Codes of Practice. These elements are supported by the National compliance and enforcement policy, which sets out principles of how WHS regulators monitor and enforce compliance with WHS laws. 

4. Seven of the nine jurisdictions have implemented the model WHS laws. The Commonwealth, Australian Capital Territory, New South Wales, Northern Territory and Queensland implemented the model WHS laws on 1 January 2012; South Australia and Tasmania implemented the laws on 1 January 2013. Western Australia is currently consulting on options to implement elements of the model laws.  Victoria have not implemented the model WHS laws in their jurisdictions. 

Scope of the review 

5. As agreed by WHS ministers, SWA was asked to examine and report on the content and operation of the model WHS laws. 

6. The review was evidence-based and proposed actions that may be taken by WHS ministers to improve the model WHS laws, or identify areas of the model WHS laws that require further assessment and analysis following the review. 

7. In undertaking the review, SWA had regard to the object of the model WHS Act (section 3). 

8. The review considered whether: 

1. the model WHS laws were operating as intended 

2. any areas of the model WHS laws which have resulted in unintended consequences 

3. whether the framework of duties is effective at protecting workers and other persons against harm to their health, safety and welfare and can adapt to changes in work organisation and relationships   

4. the compliance and enforcement provisions, such as penalties and enforceable undertakings, are effective and sufficient to deter non-compliance with the legislation 

5. the consultation, representation and issue resolution provisions are effective and used by duty holders; and workers are protected where they participate in these processes, and 

6. the model WHS Regulations, model Codes of Practice and National compliance and enforcement policy adequately support the object of the model WHS Act. 

9. The review was finalised at the end of 2018 and we provided a written report for WHS ministers to consider.  ​