WHS or OHS? 13 Australian Duties, and Why Victoria Needs Its Own Answer
A London insurance group acquires a Melbourne brokerage. The group safety manager pulls the Australian work health and safety standard off the shared drive, checks it against the model WHS Act, confirms the officer due diligence wording is in there, and signs it off for the new site.
The document is competent and it is also wrong for that office, because Victoria never adopted the model work health and safety laws. Melbourne operates under the Occupational Health and Safety Act 2004, which uses different language, attaches duties to a different class of people, and has no provision called officer due diligence at all.
This is the most common error we see in group standards written for Australia. The model laws were enacted separately by each jurisdiction that adopted them, Victoria did not adopt them, and Western Australia came later with its own variations.
Here are thirteen duties across both models, with what differs.
The jurisdictional map
1. There is no single Australian WHS Act. The model work health and safety laws are a template. Each jurisdiction enacts its own version, so the operative statute in Sydney is the Work Health and Safety Act 2011 (NSW) and in Brisbane the equivalent Queensland Act. Victoria kept its own earlier regime, the Occupational Health and Safety Act 2004.
The practical consequence for a group document is that the statute has to be named per site, not per country. Our note on who is responsible for health and safety covers how the duty splits across roles in the British model by comparison.
2. Model jurisdictions attach duties to a PCBU, Victoria to an employer. SafeWork NSW describes the duty holder as a person conducting a business or undertaking, a deliberately broad term covering all forms of modern working arrangements.
WorkSafe Victoria puts it in older and narrower language: if you have one or more employees you are an employer, and an employer can be a person, company, partnership, unincorporated association, franchising operation or not-for-profit organisation.
3. Model jurisdictions protect workers, Victoria protects employees, and the difference matters. This is the point to take away from the whole article. The model concept of a worker is wide. Victoria's is not: WorkSafe states that you are an employee if you have a contract of employment or a contract of training, that volunteers are not employees, and that independent contractors may be employees.
So a group standard that promises the same protections to every "worker" at every Australian site is making a commitment in Melbourne that the Victorian Act does not itself impose, and may be silent on populations the model jurisdictions clearly cover. Neither error is fatal, but both should be deliberate.
4. The primary duty sits in section 19 in model jurisdictions. SafeWork NSW's primary duty of care guidance confirms the statutory duties are in section 19 of the Work Health and Safety Act 2011, and that as an employer or PCBU you hold the main responsibility for the health and safety of everyone in your workplace, including visitors. A self-employed person holds the primary duty for their own safety and that of others.
The six officer due diligence areas
In model jurisdictions, officers hold a personal duty to exercise due diligence. SafeWork NSW's due diligence guidance sets it out in six areas, and notes that the meaning of diligence was considered in SafeWork NSW v Mitchell Doble [2024] NSWDC 58, where the court referred to a dictionary definition of constant and earnest effort, persistent application and endeavour.
5. Acquire and keep up to date knowledge of WHS matters. Reasonable steps to obtain and maintain current knowledge, which the regulator illustrates with annual WHS governance training for officers and quarterly legal or technical briefings to the board on emerging hazards such as psychosocial risks. The records to point to are officer training records, a board skills matrix and briefing packs.
6. Understand the nature of the operations and their hazards and risks. Reasonable steps to know what the business actually does and what hazards that work creates. For an acquiring group this is the area that fails first, because the parent knows the commercial model of the business it bought and not its hazards.
7. Ensure appropriate resources and processes, and designate a safety expert with authority. The regulator's examples include approving and tracking budget for controls, ensuring sufficient WHS capability, and in terms designating a safety expert with the proper level of authority within the company. That last phrase is the Australian analogue of the appointment duty we see in every other jurisdiction, and our competent person service covers the British version.
8. Ensure processes to receive, consider and respond to incident and hazard information in a timely way. The illustrations are concrete: escalate notifiable incidents, serious hazards and overdue actions to executives with response time targets, and run a standard events to actions workflow naming who analyses, who decides, by when, and how closure is verified. The guidance also points to AS/NZS ISO 45004:2024 for evaluating performance.
9. Ensure processes for complying with every WHS duty. The Act's own examples are reporting notifiable incidents, consulting workers, complying with notices, providing training and instruction, and ensuring health and safety representatives receive their training entitlements.
10. Verify, which means audit rather than read. The sixth area is the one worth quoting to a board. Officers must take reasonable steps to verify the provision and use of the resources and processes in areas three to five, and the regulator is explicit that verify implies actively confirming through audits, inspections, reviews and follow through, not passive receipt of reports.
That is a regulator telling officers in plain terms that being sent a dashboard is not due diligence. Periodic health and safety audits are how the sixth area is discharged, and keeping the evidence in one place alongside the actions it generated is a practical case for health and safety consultants and software working as one system.
What Victoria requires instead
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Victoria has no officer due diligence provision in those terms, but it does have duties that the model jurisdictions express differently or not at all. WorkSafe Victoria's summary of employer and employee legal duties is the source for the following.
11. Reasonably practicable has an express factor list, including cost. To decide what is reasonably practicable a Victorian employer must consider the likelihood of the hazard or risk occurring, the harm that would result, what a person knows or should know about the hazard and the ways to eliminate or reduce it, the availability and suitability of those ways, and the cost of eliminating or reducing the hazard or risk.
British readers should note how plainly cost appears. The practical effect is similar to the domestic test, but the Victorian formulation invites a documented cost argument in a way the British wording does not.
12. Information must be given in appropriate languages. Among the other employer duties, WorkSafe lists giving employees information about workplace health and safety in appropriate languages. For a Melbourne operation with a multilingual workforce this is an express statutory duty rather than good practice, and it is one that an English-only group intranet does not satisfy.
13. Engage people suitably qualified in OHS, and monitor health and conditions. Victoria requires employers to employ or engage persons suitably qualified in occupational health and safety to advise them on employees' health and safety. Alongside that sit duties to monitor employees' health, for example hearing tests where there is high noise exposure, to monitor conditions at the workplace under your management and control, to keep health and safety records, and to consult employees on matters directly affecting their health, safety and welfare.
Employees in Victoria owe reciprocal duties: to take reasonable care for their own health and safety and that of others affected by what they do or fail to do, to co-operate with the employer's compliance measures, and not to intentionally or recklessly interfere with or misuse anything provided for health, safety and welfare.
The thirteen, and where each applies
| Duty | Model WHS jurisdictions | Victoria |
|---|---|---|
| Operative statute named per site | WHS Act of that state or territory | OHS Act 2004 |
| Duty holder | PCBU, broadly defined | Employer, with one or more employees |
| Protected class | Worker, widely drawn | Employee; volunteers excluded |
| Primary duty | Section 19, covers visitors | Employer duty under the OHS Act |
| Officer: current WHS knowledge | Due diligence area 1 | No equivalent provision |
| Officer: understand operations and hazards | Area 2 | No equivalent provision |
| Officer: resources, and a safety expert with authority | Area 3 | Engage suitably qualified OHS advice |
| Officer: timely response to incident information | Area 4 | Monitor conditions, keep records |
| Officer: processes for every duty | Area 5 | Duty specific obligations |
| Officer: verify by audit, not by report | Area 6 | No equivalent provision |
| Reasonably practicable | Regulator guidance | Express factor list, including cost |
| Information in appropriate languages | Good practice | Express employer duty |
| Suitably qualified OHS advice | Via due diligence area 3 | Express employer duty |
Rows three and ten are the two that most often break a group standard. The first because it promises protection to a class Victoria does not define, and the second because officers assume a monthly report discharges a duty the regulator says requires verification.
Why this matters beyond Australia
For groups operating in several countries, Australia is an unusually clean illustration of a pattern we see everywhere, with a twist: here the divergence is inside one country.
The method transfers. A risk management approach, an incident taxonomy and a reporting format can be held once for the whole group. What does not transfer is the hook the law hangs the duty on. Italy attaches it to a non-delegable designation with personal criminal exposure. Spain attaches it to the organisational modality and a statutory audit. The Netherlands requires the assessment to be tested by a certified expert. Germany ties it to the qualification of the appointed person and the works council's consent. In Australia it attaches to the officer personally in most jurisdictions and to the employer in Victoria.
So the rule is the same one we give everywhere. Write the method once, then attach the local duty holder, the local statute and the local verification step per site. Our notes on differences in international legislation and on industrial manslaughter in Australia cover the consequences of getting it wrong, and anyone opening an Australian operation through an intermediary should read our note on employer of record.
Where Arinite fits
Arinite does not act as your Australian regulator contact or issue training certificates. What our Australian WHS work does is establish which statute applies at each site, whether your officers can evidence all six due diligence areas in the model jurisdictions, whether the Victorian sites are being managed against the OHS Act rather than a model WHS template, and whether anybody has verified anything rather than received a report. That is where the finding almost always is. We support 1,500+ businesses in 50+ countries and protect 100,000+ employees, with 95%+ client retention over 15+ years.
Our health and safety consultants work extensively with insurance, legal, IT and software and office-based clients, which is the profile of most foreign-owned Australian operations we assess. Our guide to work health and safety consultants covers how to choose one, and our note on psychosocial risk assessment in Australia deals with the hazard class officers are now briefed on quarterly.
For multi-country groups, our global health and safety consultants attach the local duty holder and statute rather than exporting one national model, and our international health and safety consultants can tell you which sites place the duty on officers personally. For Australia specifically, our country page is the starting point.
Ask two questions this week. Which Act applies at each Australian site? And when did an officer last verify something rather than receive a report about it? Then book a free gap analysis and we will tell you in one call which of the thirteen your sites can evidence.
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Written by
Arinite Health & Safety Consultants
Health & Safety Expert at Arinite
