WHS Obligations Australia 2025 | Compliance Guide

WHS Legislation in Australia — The Current Landscape

Workplace Health and Safety legislation in Australia operates at both Commonwealth and state/territory level. Most jurisdictions have adopted the model WHS laws developed by Safe Work Australia, creating substantial national consistency while retaining some state-specific variations.

For businesses in NSW, the primary legislation is the Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulation 2017 (NSW). These laws, together with industry-specific codes of practice, define your legal duties and the minimum standards your business must meet.

As a WHS consultant serving businesses across Sydney and NSW, Hendricks Australia helps organisations navigate these obligations — not just to avoid prosecution, but to build systems that genuinely protect people.

Who Has WHS Duties?

The WHS Act creates duties for a range of duty holders, not just employers:

Person Conducting a Business or Undertaking (PCBU)

The primary duty holder. PCBUs must ensure, so far as is reasonably practicable, the health and safety of workers and others (visitors, contractors, members of the public) who may be affected by their work. This duty is broad and cannot be contracted away.

Officers

Company directors and senior executives must exercise due diligence to ensure the business complies with its WHS duties. This is a personal, non-delegable duty. Officers can be prosecuted individually even if the business is also prosecuted.

Workers

Workers have a duty to take reasonable care for their own health and safety and that of others, comply with reasonable instructions, and cooperate with the PCBU's WHS policies.

Designers, Manufacturers, and Suppliers

These parties have duties in relation to plant, structures, and substances they design, manufacture, or supply — ensuring these items are safe when used as intended.

Understanding "Reasonably Practicable"

The central standard in Australian WHS law is "so far as is reasonably practicable." This requires businesses to weigh up what is possible in the circumstances against what is reasonable — considering:

• The likelihood of the hazard causing harm
• The degree of harm that could result
• What the person knows or reasonably ought to know about the hazard and its controls
• The availability and suitability of ways to eliminate or minimise the risk
• The cost of eliminating or minimising the risk

"Reasonably practicable" is not the same as "cheapest" or "easiest." Cost is a factor but a minor one — if a control is reasonably available and the risk is significant, cost alone is unlikely to be a valid reason not to implement it.

Officer Due Diligence Requirements

Under section 27 of the WHS Act, officers must exercise due diligence by:

• Acquiring and keeping up-to-date knowledge of WHS matters
• Understanding the nature of the PCBU's operations and the hazards and risks involved
• Ensuring the PCBU has appropriate resources and processes to manage WHS
• Ensuring the PCBU has processes for receiving and considering information about incidents, hazards, and risks
• Ensuring the PCBU has processes for complying with WHS duties
• Verifying that the required resources and processes are being used

This is not a passive duty. Officers must actively verify, not just assume, that their business is meeting its WHS obligations. Our WHS audit and advisory services help officers discharge their due diligence requirements.

Worker Consultation — A Legal Requirement

Effective consultation with workers is both a legal requirement and a cornerstone of positive safety culture. PCBUs must consult with workers who are (or likely to be) directly affected by WHS matters. Consultation must be genuine — workers must be given a real opportunity to contribute before decisions are made.

Consultation mechanisms include: - Health and Safety Committees (HSCs) - Health and Safety Representatives (HSRs) - Direct consultation (toolbox talks, team meetings, surveys)

Workers can also raise issues with their HSR or directly with management, and businesses must have processes to respond promptly to safety concerns raised by workers.

Managing Psychosocial Hazards — 2024 and Beyond

One of the most significant developments in Australian WHS law in recent years has been the explicit recognition of psychosocial hazards as a legal WHS obligation. The model WHS Regulations (2022 amendments) introduced specific duties to identify and manage psychosocial risks.

Psychosocial hazards include: - Excessive workload or work demands - Exposure to traumatic events or material - Low job control or lack of role clarity - Workplace conflict, bullying, or harassment - Remote or isolated work - Poor organisational change management

The management approach mirrors physical risk management: identify hazards, assess risks, implement controls (prioritising systemic controls over individual supports), review effectiveness. Our psychosocial risk assessment services help businesses meet these new obligations.

Notifiable Incidents and Reporting

Certain incidents must be reported to SafeWork NSW (or the relevant regulator) immediately. Notifiable incidents include:

• Death of a person
• Serious injury or illness: requiring immediate treatment as an in-patient, immediate treatment for amputation, serious head or eye injury, serious burns, separation of skin from underlying tissue, spinal injury, loss of bodily function, or serious lacerations
• Dangerous incidents: uncontrolled escape of hazardous substances, uncontrolled implosion/explosion/fire, uncontrolled release of pressurised substances, electric shock, fall from height, collapse of scaffolding, train derailment, collision of vessels, or damage to load-bearing part of an amusement device

Failure to notify is a criminal offence under the WHS Act.

Consequences of Non-Compliance

WHS prosecutions in NSW can result in severe penalties:

• Category 1 offences (reckless conduct exposing persons to risk of death or serious injury): Up to $3 million for a PCBU (body corporate), $600,000 and/or 5 years imprisonment for an individual
• Category 2 offences (failure to comply with WHS duty, exposure to risk): Up to $1.5 million for a PCBU, $300,000 for an individual
• Category 3 offences (failure to comply with WHS duty): Up to $500,000 for a PCBU, $100,000 for an individual

Beyond prosecution, WHS failures result in workers compensation claims, increased premiums, reputational damage, and the immeasurable cost of harm to workers and their families.

Ready to review your WHS compliance position? Contact Hendricks Australia for a confidential consultation.