WHS Legislative
Compliance Review
Independent review of compliance with Work Health and Safety legislation across Australian jurisdictions. Expert opinion for solicitors, barristers and insurers in workers' compensation and public liability proceedings.
Scope of a WHS Legislative Compliance Review
A WHS legislative compliance review assesses whether a person or organisation met the requirements imposed on them by Work Health and Safety legislation at the time of a workplace incident. It goes beyond simply identifying the applicable law. It applies that law to the specific facts of the matter and gives an opinion on whether the duty holder acted in accordance with their legal obligations.
The review draws on the applicable primary legislation, the relevant regulations, any applicable codes of practice, and the industry standards that were in force at the time. Where legislation differs between jurisdictions, the review identifies the law applicable to the specific workplace and incident.
This type of expert opinion is used by plaintiff and defendant practitioners, as well as insurers and self-insured employers, to understand the WHS legislative position in a matter before proceeding to negotiation, mediation or hearing.
Legal Proceedings and Dispute Resolution
A compliance review is instructed where the central question in a legal matter is whether the workplace met the standard required by WHS law. It is particularly useful in matters where the legislation itself is contested, where multiple jurisdictions are potentially applicable, or where the requirements of industry-specific regulations are in dispute.
The review can address a single question or a range of legislative compliance issues across a matter. It is often prepared alongside or as part of a broader breach analysis and liability assessment.
A legislative compliance review is frequently instructed together with a breach analysis and liability assessment. Both opinions can be delivered in a single expert report where the scope warrants it.
The WHS Act 2011 and Primary Obligations
The Work Health and Safety Act 2011 forms the basis of the national harmonised WHS framework. Most Australian states and territories have adopted this Act or equivalent legislation. The primary obligations imposed on duty holders are assessed against the facts of each matter.
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Primary Duty of Care
Section 19 of the WHS Act requires a PCBU to ensure, so far as is reasonably practicable, the health and safety of workers and others affected by the conduct of the business or undertaking. This is the central obligation assessed in most compliance reviews.
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Duty of Officers
Section 27 requires officers of a PCBU to exercise due diligence to ensure the PCBU meets its WHS obligations. Due diligence includes acquiring and keeping up to date with WHS knowledge and understanding the hazards and risks of the business operations.
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Duties of Workers
Section 28 requires workers to take reasonable care for their own health and safety, to take reasonable care not to adversely affect others, and to comply with reasonable instructions given by the PCBU in relation to health and safety.
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Duty to Consult with Other Duty Holders
Section 46 requires PCBUs who share management or control of a workplace or have overlapping duties to consult, cooperate and coordinate with each other. Failure to do so is particularly relevant in contractor and subcontractor matters.
State and Territory WHS Legislation
While most jurisdictions have adopted the harmonised WHS framework, differences remain. Each compliance review identifies the applicable legislation for the specific workplace and incident location.
Harmonised framework. Personal Injury Commission handles workers' compensation disputes. PIC4 Direction applies to expert evidence.
Victoria has not adopted the harmonised WHS Act. The OHS Act 2004 and OHS Regulations 2017 apply. WorkSafe Victoria administers the scheme.
Harmonised framework. Separate legislation applies to mines and petroleum activities under the Resources Safety and Health Queensland framework.
Western Australia adopted the harmonised WHS framework in 2022 via the WHS Act 2020. Separate legislation applies to the mining industry.
Harmonised framework adopted in 2012. SafeWork SA administers the scheme. Specific regulations apply to construction, agriculture and other industries.
Harmonised framework. WorkSafe ACT administers WHS regulation. The ACT legislation mirrors the model WHS laws with minor local modifications.
Regulations and Codes of Practice Review
WHS legislation is supplemented by regulations and approved codes of practice that impose more specific requirements on duty holders. A compliance review assesses whether those requirements were met in the circumstances of the matter.
Approved codes of practice are admissible in proceedings as evidence of what is known about a hazard or risk and the ways to eliminate or minimise it. While codes of practice do not impose mandatory requirements in the same way that legislation and regulations do, departure from a code is relevant to the assessment of whether a duty holder acted reasonably.
- WHS Regulations applicable to the specific industry
- Approved codes of practice for the relevant hazard type
- Safe Work Australia guidance material
- Industry-specific standards referenced in the regulations
- Australian Standards applied in the relevant field
- Safe work method statement requirements
- Training and competency requirements for specific work
- Plant, equipment and hazardous substances regulations
How Findings Are Structured
The findings of a compliance review are set out clearly in the expert report so that each issue raised in the letter of instruction is addressed in sequence. The structure follows the applicable code of conduct for the relevant court or tribunal.
- Identification of the applicable legislation and jurisdiction
- Identification of the relevant duty holders
- Statement of the obligations each duty holder owed
- Review of the documentary evidence of compliance
- Assessment of any codes of practice or standards applicable
- Finding on whether each obligation was met
- Opinion on any gaps between obligation and practice
- Expert declaration confirming independence and duty to court
Industry-Specific Compliance Assessment
Many industries are subject to specific WHS regulations and standards that go beyond the general requirements of the WHS Act. Karim's 20 years of experience across high-risk industries allows him to assess compliance within industry-specific contexts.
Assessment of compliance with the WHS Construction Work Code of Practice, Safe Work Method Statement requirements, high-risk construction work notifications, and principal contractor obligations.
Assessment of compliance under the applicable mining safety legislation, including site senior executive obligations, safety and health management systems and hazard management plan requirements.
Assessment of compliance with manual handling codes, patient handling requirements, psychosocial hazard regulations and infection control standards applicable to healthcare workplaces.
Assessment of compliance in energy generation, transmission and distribution environments, including high-voltage electrical safety standards and major hazard facility requirements. Karim is currently Head of Occupational Safety at Origin Energy.
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Which jurisdiction's legislation applies to my matter?
The applicable legislation is generally determined by the location of the workplace where the incident occurred, though other factors can be relevant. As part of the compliance review, Karim identifies the applicable legislation and jurisdiction and provides a clear explanation of which laws govern the matter. If jurisdiction is genuinely in dispute, this can also be addressed in the report.
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Does the review cover both state and federal legislation?
Yes. Where a matter involves both state and Commonwealth legislation, such as matters involving Commonwealth employees or contractors, the review addresses both frameworks. For most workplace injury matters in Australia, state or territory WHS legislation applies, but the applicable law is confirmed at the outset of each review.
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Can the compliance review address an incident that occurred several years ago?
Yes. The compliance review assesses the legislation and standards that were in force at the time of the incident, not the current position. Where legislation has changed since the incident, the review identifies the version applicable at the relevant time. Karim has reviewed matters involving incidents across a wide range of dates and can identify the applicable legislative framework for historical incidents.
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Is a compliance review different from a safety audit?
Yes. A safety audit is a proactive assessment of a workplace's current compliance position, typically conducted to identify gaps and improve systems. A WHS legislative compliance review for legal proceedings is a retrospective assessment of whether a workplace met the required legal standard at the time of a specific incident. It is prepared as an expert opinion for use in litigation or dispute resolution, not as an operational improvement tool.
Instruct a Compliance Review
Contact Karim Ali to discuss the matter, the applicable jurisdiction and the scope of the compliance review required.