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Frequently asked questions about the WHS Act

Note:These FAQs are updated as required to reflect current legislation changes as they apply to the Commonwealth WHS jurisdiction. The FAQs are based on the WHS Act 2011 (Cth), WHS Regulations 2011 (Cth) and the Approved Codes of Practice that came into effect 1 January 2012.

Part 1—Preliminary (definitions, application of the WHS Act)

Do the WHS laws provide coverage to Commonwealth employees working overseas? (Answer)

Do the WHS Laws apply to external territories? (Answer)

What is the definition of ‘due diligence’? (Answer )

What is ‘reasonably practicable’ in ensuring health and safety? (Answer)

Part 2—Health and safety duties (duty holders, offences and penalties)

Duty holders

Who is a person conducting a business or undertaking (PCBU)? (Answer)

When does a PCBU have upstream duties? (Answer)

Who is responsible for my health and safety whilst I occupy accommodation owned/leased or controlled by the PCBU? (Answer)

What are the boundaries of the 'workplace' when I carry out work for the PCBU? (Answer)

Does the WHS Act apply to workers who are mobile and/or working from home? (Answer)

As a volunteer in an external territory with a Commonwealth PCBU am I owed duties under the WHS Act? (Answer)

Who is an officer under the WHS laws? (Answer)

How does due diligence apply to an officer under the WHS laws? (Answer)

Who is a worker under the WHS Act? (Answer)

Part 3—Incident notification

Incident notifications

What is notifiable to Comcare under the WHS laws? (Answer)

What is the meaning of ‘immediate’ in relation to notifying the regulator? (Answer)

Can we clean up an incident site up so that work can continue? (Answer)

How do I notify Comcare of a regulatory notification? (Answer)

Do non-Commonwealth licensees have to report incidents to both the state regulator where the incident occurred and Comcare? (Answer)

Is there a specific person in a workplace who must notify Comcare of a serious notifiable incident? (Answer)

Part 4—Authorisations

What is an authorisation? (Answer)

What or who needs to be authorised? (Answer)

What authorisations are required by Comcare? (Answer)

Does Comcare recognise certain authorisations provided from other WHS regulators? (Answer)

Part 5—Consultation, representation and participation (work groups, HSRs, committees, issue resolution, right to cease work, provisional improvement notices)

Consultation

What is the meaning of consultation under the WHS Act? (Answer)

What level of consultation needs to occur between different PCBUs? (Answer)

Do we need to consult with other PCBUs and all workers in shared workplaces? (Answer)

Does consultation mean we have to agree? (Answer)

Are we required to have a health and safety committee (HSC)? (Answer)

How should a health and safety committee (HSC) be constituted? (Answer)

How often must a health and safety committee (HSC) meet? (Answer)

Work groups

What is a work group? (Answer)

Who can be in a work group? (Answer)

How is a work group established or varied? (Answer)

Can workers from different businesses be a part of the same work group? (Answer)

How is a work group determined? (Answer)

Health and Safety Representatives (HSR)

How many HSRs can represent a work group under the WHS Act?(Answer)

Can a HSR represent another work group on a health and safety issue? (Answer)

Can a HSR exercise powers if they choose not to undertake training? (Answer)

Who elects a HSR? (Answer)

Who is responsible for delivering HSR training under the new WHS legislation? (Answer)

Can a HSR be held personally liable whilst performing the role of a HSR? (Answer)

Can a HSR be disqualified? (Answer)

If there are multiple HSRs in a work group what happens if they do not agree on an issue? (Answer)

Who can be a HSR? (Answer)

Issue Resolution

What happens if agreement can not be reached on a health and safety issue in the workplace? (Answer)

Part 6—Right to cease or direct cessation of unsafe work

What is the right of the worker to cease unsafe work? (Answer)

Can a worker cease or refuse to carry out unsafe work? (Answer)

Can a HSR cease or direct cessation of unsafe work? (Answer)

What happens if there is a dispute or disagreement over the cessation of work or any outcomes resulting from the cessation of work? (Answer)

Part 7—Workplace entry by WHS entry permit holders

Do WHS entry permit holders have to do training? (Answer)

Does a WHS entry permit holder have to give notice before entering a workplace? (Answer)

When can a WHS entry permit holder enter a workplace without notice? (Answer)

Can an Inspector resolve a dispute over entry into a workplace by a WHS entry permit holder?(Answer)

Can a WHS entry permit holder direct workers of a work group to cease work for an alleged contravention of the WHS Act? (Answer)

If the workplace has no union members, does a union official still have the right to enter the workplace with their WHS entry permit? (Answer)

Does a union official have to produce their permit? (Answer)

What is the union’s right of entry? (Answer)

Can a WHS entry permit holder be refused entry to a workplace? (Answer)

Can a WHS entry permit be revoked? (Answer)

Part 8—Securing compliance (functions and powers of Inspectors)

Can Inspectors enter a workplace without there being an incident? (Answer)

What can an Inspector do upon entry to a workplace? (Answer)

Can an Inspector enter a workplace when an 'officer' or PWMC is not present? (Answer)

Who will receive the Inspector's report and what is the timeframe? (Answer)

Will I be informed prior to an intervention by an Inspector that they will be exercising a search warrant? (Answer)

Do I have to answer all questions an Inspector asks me in relation to an alleged WHS contravention? (Answer)

Can an Inspector seize and remove things from my workplace? (Answer)

Part 9—Enforcement measures (notices, injunctions)

How will Inspectors and Comcare decide when to use different compliance and enforcement tools? (Answer)

Part 10—Enforceable undertakings

Are enforceable undertakings an enforcement option under the WHS laws? (Answer)

When may Comcare accept a written undertaking? (Answer)

When does a WHS undertaking become enforceable? (Answer)

Part 11—Review of decisions

What is a reviewable decision? (Answer)

Who is an eligible person? (Answer)

Will Comcare or an Inspector inform me when I am able to apply for an internal or external review? (Answer)

How long do I have after becoming aware of the decision to apply for an internal review? (Answer)

How do I apply for an internal review? (Answer)

What happens when Comcare receives my application? (Answer)

Stays of reviewable decisions? (Answer)

What do I do if I do not agree with the decision of the internal review? (Answer)

How do I apply for an external review? (Answer)

Part 12—Legal proceedings (crown provisions, civil penalties)

What does the removal of the shield of the crown mean? (Answer)

Will prosecution of offences and acceptance of WHS undertakings be published in the media? (Answer)

Part 13—General (Regulations, Codes of Practice and Schedules)

Do we need to follow the codes of practice under the new WHS laws or are they just guidance? (Answer)

Last updated: 18 Jul 2014