WHS vs OHS: Framework Differences Across Australian Jurisdictions

What it is

Australia operates two parallel workplace safety frameworks. Seven states and territories (NSW, QLD, WA, SA, TAS, ACT, NT) have adopted the model Work Health and Safety Act. Victoria retains its own Occupational Health and Safety Act 2004 (Vic). The two frameworks are broadly comparable but have distinct terminology, structure and enforcement approach.

The seven model WHS jurisdictions

The model WHS Act was developed by Safe Work Australia as a nationally consistent framework. Adopted in each state and territory as its own Act with local numbering:

• Work Health and Safety Act 2011 (NSW) - commenced 2012
• Work Health and Safety Act 2011 (Qld) - commenced 2012
• Work Health and Safety Act 2011 (ACT) - commenced 2012
• Work Health and Safety (National Uniform Legislation) Act 2011 (NT) - commenced 1 January 2012
• Work Health and Safety Act 2012 (SA) - commenced 2013
• Work Health and Safety Act 2012 (Tas) - commenced 2013
• Work Health and Safety Act 2020 (WA) - commenced 31 March 2022 (last to adopt)

The seven jurisdictions use the same section numbering and definitions, which supports cross-border compliance for builders operating across states.

Victoria's OHS Act framework

Victoria retained the Occupational Health and Safety Act 2004 (Vic) rather than adopting the model WHS Act. The OHS Act framework:

• uses "employer" and "self-employed person" rather than "PCBU"
• has different section numbering (section 21 employer duty rather than section 19 PCBU duty)
• uses "reasonably practicable" test at section 20 rather than section 18
• has separate incident notification requirements at section 38 with automatic 48-hour written notice (differs from model WHS conditional written notice)
• uses "workplace manslaughter" rather than "industrial manslaughter" under section 39G

WorkSafe Victoria enforces the OHS Act framework. A residential builder operating in Victoria and other states cannot rely on model WHS Act compliance to satisfy OHS Act duties.

Common substance across both frameworks

Both frameworks impose:

• primary duty of care to ensure health and safety
• specific duties on plant, structures, systems, substances, welfare, information, training
• officer accountability for corporate duty holders
• category-tier penalty structure
• notifiable incident regime
• worker consultation obligations

The substantive obligations are broadly comparable. Compliance systems designed for one framework can generally be adapted for the other with careful attention to terminology and specific reg requirements.

Category 1-3 offence structure

Both frameworks operate a three-tier offence structure. The tiers correspond approximately across frameworks:

• Category 1 (WHS s 31) / Reckless endangerment (OHS s 32): reckless conduct with high risk
• Category 2 (WHS s 33) / Breach of duty (OHS s 32): failure to comply with duty exposing person to risk
• Category 3 (WHS s 32) / Breach without risk: failure to comply without a specific risk exposure

Penalties vary by jurisdiction but the structure is broadly comparable.

Notifiable incident differences

The most significant operational difference is notifiable incident notification:

• Model WHS Act (7 jurisdictions): immediate telephone notification; written notice only if regulator requests
• OHS Act 2004 (Vic): immediate telephone notification; automatic 48-hour written notice under section 38(4)

Builders operating in Victoria should not follow model WHS practice on written notification.

Industrial manslaughter frameworks

Each jurisdiction has its own industrial manslaughter offence with different penalty scales and elements. See the industrial-manslaughter-comparison-aus entry for the full state-by-state comparison.

Practical compliance approach

A residential builder operating across Victoria and model WHS jurisdictions needs separate compliance analysis for each state. Victoria-specific notification templates, SWMS references and worker consultation approaches are essential. TradeForm operates separate template libraries for each framework.