Australia has two workplace safety legislative frameworks operating simultaneously. The harmonised Work Health and Safety Act 2011, adopted by the Commonwealth, NSW, Queensland, South Australia, Tasmania, the ACT, and the Northern Territory, establishes the PCBU duty framework that applies across most of the country. Victoria retains its own Occupational Health and Safety Act 2004, which uses an employer-based duty framework. Western Australia has adopted a modified version of the WHS model laws. Understanding the differences between OHS and WHS is essential for PCBUs that operate across state borders, as compliance in one jurisdiction does not automatically ensure compliance in another.
| Aspect | OHS Act 2004 (Victoria) | WHS Act 2011 (Harmonised) |
|---|---|---|
| Primary Duty Holder | Employer (to employees and others) | PCBU (to all workers including contractors and volunteers) |
| Worker Definition | Employee under contract of employment | Any person who carries out work including employees, contractors, subcontractors, labour hire, and volunteers |
| Officer Due Diligence | Officers must take reasonable care (s.144) | Officers must exercise due diligence with six specific elements (s.27) |
| Consultation Mechanism | HSRs, OHS committees, designated work groups | HSRs, health and safety committees, work groups, plus issue resolution processes |
| Penalty Structure | Three-tier penalty system with lower maximums | Three-category system: Category 1 (reckless), Category 2 (failure), Category 3 (breach) |
| Industrial Manslaughter | Workplace Manslaughter offence under Crimes Act (max 25 years) | Industrial manslaughter varies by jurisdiction (QLD 20 years, ACT 20 years) |
| Codes of Practice | Compliance codes have specific legal standing | Codes of practice are admissible evidence; binding under s.26A from 1 July 2026 |
| WEL Transition | Victoria follows its own OEL adoption schedule | WEL values under WHS Regulation 2025 from 1 December 2026 |
PCBUs operating exclusively in Victoria must comply with the OHS Act 2004 and the Occupational Health and Safety Regulations 2017. The Victorian framework applies different terminology, different consultation structures, and different penalty thresholds compared to the harmonised WHS laws. Victorian PCBUs should be aware that while the duty concepts are similar in intent, the legal definitions and procedural requirements differ in important respects. PCBUs that are accustomed to the harmonised WHS framework must adjust their compliance documentation when operating in Victoria.
PCBUs operating in any jurisdiction that has adopted the harmonised WHS Act 2011 must comply with the WHS framework. This includes NSW, Queensland, South Australia, Tasmania, the ACT, the Northern Territory, and the Commonwealth. The WHS Regulation 2025 introduces additional obligations including binding codes of practice under Section 26A from 1 July 2026 and the workplace exposure limit transition by 1 December 2026. PCBUs that operate across multiple harmonised jurisdictions benefit from a largely consistent legal framework, though each jurisdiction retains some state-specific variations.
PCBUs operating across both Victorian and harmonised WHS jurisdictions must maintain dual compliance systems. The employer duty under the OHS Act 2004 and the PCBU duty under the WHS Act 2011 require different documentation, different consultation processes, and different penalty risk assessments. A national company should design its safety management system to satisfy the more demanding requirements of both frameworks, then apply jurisdiction-specific procedures where the requirements diverge. This approach ensures compliance in all operating jurisdictions without maintaining entirely separate systems.
The most common misunderstanding is that OHS and WHS are interchangeable terms for the same legal framework. They are not. A PCBU that designs its compliance system around the WHS Act 2011 and then operates in Victoria without adapting to the OHS Act 2004 will have gaps in its compliance. Similarly, a Victorian employer that expands into NSW must understand that its duties extend to all workers, not just employees, and that the officer due diligence requirements under section 27 are more prescriptive than the Victorian equivalent.
EHS Atlas supports both OHS and WHS regulatory frameworks, enabling PCBUs operating across state borders to maintain compliance in every jurisdiction from a single platform.
Contact Us