Work Health and Safety Act 2011

The Act casts a wide net. Primary duty-holders are PCBUs – a deliberately broad term defined in s 5 to include any person conducting a business or undertaking, whether alone or with others, for profit or not. This covers sole traders, companies, partnerships, government departments, not-for-profits, and volunteer associations (except where they do not employ anyone – s 5(6)). A PCBU can be an individual (s 7(3)). The Crown is bound (s 10), and the Territory is liable for offences and civil penalties (s 245).

Officers of PCBUs (s 27) – including directors, company secretaries, and persons who make or participate in decisions affecting the whole or a substantial part of the business – owe personal due diligence duties. For the Territory and public authorities, "officer" is defined in ss 247 and 252 to capture those making substantial decisions.

Workers are broadly defined in s 7 to include employees, contractors, subcontractors, labour hire workers, outworkers, apprentices, trainees, students on work experience, volunteers, and police officers while on duty. Workers owe duties of reasonable care (s 28). Other persons at a workplace (s 29) – for example, visitors, clients or members of the public – also owe duties of reasonable care.

HSRs and members of health and safety committees (Part 5) have specific powers and functions and are protected from discrimination (Part 6). Eligible unions and their officials are affected by the WHS entry permit regime in Part 7, which grants rights of entry but imposes strict conditions and prohibitions on misuse.

The regulator (the Work Health and Safety Commissioner – see Schedule 2) and inspectors (Part 9) exercise significant compliance and enforcement powers. The Work Health and Safety Council (Schedule 2, Part 2.1) advises the Minister on a tripartite basis (employee, employer and government representatives).

Courts, the ACAT (for external review under s 229), and coroners (s 187) are engaged in enforcement, review and inquiry processes. Legal practitioners advising on compliance, insurance, or proceedings are indirectly affected, as are insurers (insurance against penalties is prohibited – s 272A).

In practice, the Act affects every workplace in the ACT: construction sites, offices, factories, farms, schools, hospitals, government agencies, and not-for-profits. For major construction projects (contract value over $5 million), additional obligations on principal contractors for HSR elections, training and committees apply (ss 50A, 50C, 72A, 79A). The prohibited asbestos regime (Division 10.2A) directly affects owners, managers and PCBUs in relation to pre-2004 installed asbestos.

The Act's extraterritorial reach is extended by the Criminal Code 2002 (ACT), Part 2.7 where a geographical nexus exists (s 11). It interacts with Commonwealth laws (e.g. Fair Work Act for union rights) and other Territory laws (Dangerous Goods (Road Transport) Act 2009, Emergencies Act 2004, Environment Protection Act 1997, Medicines, Poisons and Therapeutic Goods Act 2008 – see s 12 notes).

The Act's duties are non-transferable (s 14) and may be concurrent (s 16). Each duty-holder must comply to the required standard even if others also have the duty. Section 16(3) provides that where multiple persons have a duty in relation to the same matter, each retains responsibility to the extent of their capacity to influence and control the matter (or would have had that capacity but for any agreement purporting to limit it). This prevents "contracting out" of responsibility (see also s 272).

The primary duty (s 19) is owed by the PCBU to its workers and to others who may be put at risk. It is qualified by "so far as is reasonably practicable" and is supported by the specific measures in s 19(3). For accommodation provided to workers where no other reasonable accommodation is available, the PCBU must maintain the premises so that workers are not exposed to risks (s 19(4)).

Upstream duties on designers, manufacturers, importers and suppliers (ss 22-25) are framed in similar terms: ensure, so far as reasonably practicable, that the plant/substance/structure is without risks when used for its designed purpose or in reasonably foreseeable activities. These duty-holders must test/analyse, provide information on safe use and conditions, and supply updated information on request. The financier exception in s 6(4) protects financiers who acquire ownership merely as part of financing arrangements; the previous possessor is deemed the supplier.

The officer due diligence duty (s 27) is personal and cannot be delegated. The six elements of due diligence in s 27(5) are cumulative and require proactive steps: knowledge acquisition, operational understanding, resource provision, incident response processes, compliance processes, and verification. Courts have emphasised that due diligence is not a "tick and flick" exercise but requires genuine engagement (although the Act itself does not cite specific cases, the structure mirrors the model laws interpreted in jurisdictions such as New South Wales and Queensland).

Worker duties (s 28) and duties of others (s 29) are limited to reasonable care and reasonable compliance with instructions and policies. They are not absolute.

Rights are conferred primarily on workers and their representatives. Workers have the right to be consulted (s 47), to cease unsafe work (s 84), and to be protected from discrimination (Part 6). HSRs have extensive powers under s 68, including inspection, accompaniment of inspectors, presence at interviews, and issuance of provisional improvement notices (Division 5.7). HSRs may direct cessation of unsafe work after consultation (or immediately in serious cases – s 85(3)) and are immune from personal liability for good-faith acts (s 66). Deputy HSRs exercise the same powers when the HSR is unavailable (s 67).

Union officials with WHS entry permits have rights of entry for suspected contraventions or consultation (Part 7), subject to notice, compliance with site requirements, and not hindering work. Permit conditions may be imposed (s 135) and permits may be revoked (ss 138-140).

All persons have the right to raise safety issues without fear of discriminatory conduct (s 106), with civil and criminal remedies (ss 111-113). The reverse onus in civil proceedings (s 113(2)) and the presumption in criminal proceedings (s 110) strengthen these protections.

The regulator and inspectors have broad investigative and enforcement rights (Parts 8-9), balanced by requirements to minimise disruption (s 182), provide receipts for seized items (s 178), and afford natural justice in reviews (Part 12).

The Act uses a graduated enforcement pyramid. At the base are improvement notices (s 191) requiring remedy of contraventions or likely contraventions within a reasonable time. Prohibition notices (s 195) prohibit activities involving an immediate or imminent serious risk until the risk is remedied. Prohibited asbestos notices (s 197B) require specific management or removal actions for post-2003 installed asbestos. Non-disturbance notices (s 198) preserve incident sites. All notices must be in writing (s 203), displayed (s 210), and complied with (ss 193, 197, 200, 197D). Failure carries tier B or tier A monetary penalties. The regulator may vary or cancel notices (s 207) or take remedial action and recover costs (ss 211-213). Injunctions are available (s 215).

Enforceable undertakings (Part 11) allow a PCBU to offer a written undertaking to the regulator in lieu of prosecution. Once accepted (s 216), contravention is a civil penalty (s 220). The regulator must publish guidelines on acceptance (s 216(3)) and may withdraw or vary undertakings with consent (s 221). A proceeding for the original contravention may be brought if the undertaking is contravened (s 222).

Prosecutions are brought by the regulator or authorised inspectors (s 230). The regulator may refer matters to the DPP (s 230(2)). If the regulator decides not to prosecute a category 1 or 2 offence, a person with a sufficient interest may request reasons and referral to the DPP (s 231). Limitation periods are two years from the regulator becoming aware, or one year from a coronial report/inquest, with extensions where a WHS undertaking is breached (s 232). Multiple breaches of the same duty provision may be charged as a single offence (s 233).

Category 1 offences (s 31) carry up to 10 years imprisonment for individuals (or 20 years for industrial manslaughter under s 34A). Corporate penalties are set in Schedules 4.1 and 4.1A and indexed annually (ss 4.4-4.6). Strict liability applies to the duty element (s 12A), but the prosecution must prove the conduct, exposure to risk, and (for category 1) negligence or recklessness. Reasonable excuse is a defence for category 1, with the onus on the prosecution (s 31(2)).

Corporate liability is addressed in Division 13.4. Physical elements are attributed if engaged in by the board, an authorised person, or a person acting at the direction or with the agreement of the board or authorised person (s 244A). For fault elements other than negligence, the fault must be held by the board or an authorised person, or a corporate culture must have directed, encouraged, tolerated or led to the conduct (s 244B). Negligence is assessed by aggregating the conduct of authorised persons (s 244BA). Mistake of fact and reasonable precautions defences are available (ss 244C, 244D). Public authorities are subject to parallel rules (s 244E).

The Territory is liable for offences (s 245) and civil penalties (s 246). Officers of the Territory (s 247) and responsible agencies (s 248) are identified. Public authorities that are bodies corporate are treated similarly (ss 249-253).

WHS civil penalty provisions (primarily Part 7 entry rules) are enforced civilly (Division 13.7). Involvement is treated as a contravention (s 256). Proceedings must be brought within two years (s 261) by the regulator or authorised inspector (s 260). The standard of proof is civil, and rules of evidence and procedure for civil matters apply (s 258). Double jeopardy principles prevent multiple actions for the same conduct (ss 263-266).

Sentencing options in Division 13.2 are broad: adverse publicity orders (s 236), restoration orders (s 237), WHS project orders (s 238), court-ordered undertakings (s 239), injunctions (s 240), and training orders (s 241). These supplement monetary penalties and imprisonment.

The Act is designed to operate alongside, and in some cases prevail over, other legislation. Section 12 provides that duties relating to hazardous chemicals are additional to duties under other laws (expressly referencing the Dangerous Goods (Road Transport) Act 2009, Emergencies Act 2004, Environment Protection Act 1997 and Medicines, Poisons and Therapeutic Goods Act 2008). However, other Territory laws relating to the same WHS matter have no effect to the extent of inconsistency, although concurrent operation is preferred where possible (s 12(2)-(3)).

The Criminal Code 2002 (ACT) applies to offences (s 12B(1)), except Part 2.5 on corporate criminal responsibility, which is displaced by the specific rules in Division 13.4 (s 12B(2)). Geographical application is extended by Criminal Code Part 2.7 where a nexus exists (s 11).

The Fair Work Act 2009 (Cwlth) is cross-referenced for union entry permits (s 124 requires a permit under the Fair Work Act) and for the definition of "registered employee association" in s 49C. WHS entry rights are in addition to, but must be exercised consistently with, fair work entry rights.

The Privacy Act 1988 (Cwlth) is incorporated by reference for the definition of "employee record" (dictionary), which limits HSR access to personal or medical information (ss 70(1)(c), 71(2)). Information obtained under the Act is subject to confidentiality obligations (s 271), with exceptions for WHS purposes, court orders, or with consent. Additional sharing powers are granted to the regulator under s 271A.

The Legislation Act 2001 (ACT) supplies general interpretive rules, including that examples are part of the Act (s 9), notes are part of the Act (s 9(2) displacing Legislation Act s 127), and definitions apply to the whole Act unless context requires otherwise (s 4 and dictionary note).

For major construction projects, the Building Act 2004 and Construction Occupations (Licensing) Act 2004 interact with the definition of "construction work" in s 49A (which adopts the Work Health and Safety Regulation 2011 dictionary). The Public Sector Management Act 1994 governs employment of office staff (Schedule 2, s 2.32).

The Act does not affect legal professional privilege (s 269) or civil liability except as expressly provided in Parts 6, 7 and Division 13.7 (s 267). It expressly prohibits contracting out (s 272) and insurance against penalties (s 272A), with officer liability for corporate breaches of the latter (s 272B).

Interaction with coronial processes is facilitated by inspector attendance at inquests (s 187) and the one-year extension of limitation periods following a coronial report or inquest (s 232(1)(b)).

The Act has been substantially amended since its commencement on 1 January 2012 to address gaps, strengthen deterrence, and respond to emerging risks.

The most significant change was the introduction of industrial manslaughter in 2021 (A2021-19, inserting ss 34A and 34B). This responded to community and union concerns that the existing category 1 offence (maximum 10 years) was insufficient for cases where reckless or negligent conduct by a PCBU or officer causes death. The new offence carries 20 years imprisonment for individuals and a substantially higher monetary penalty for corporations. It applies strict liability only to the existence of the duty and PCBU/officer status, with the prosecution required to prove the breach, causation (including substantial contribution), and recklessness or negligence as to death. An alternative verdict mechanism allows conviction for category 1 or 2 if manslaughter is not proven beyond reasonable doubt but the elements of those offences are (s 34B). The change aligns the ACT with other jurisdictions (Queensland, Victoria, NSW, WA) that have introduced gross negligence manslaughter or industrial manslaughter offences, reflecting a policy shift toward treating the most serious workplace deaths as homicide rather than regulatory breaches.

In 2022, sexual assault incidents were added as notifiable incidents (A2022-23, inserting s 37A and amending ss 35, 38 and 39A). This was a response to the #MeToo movement and reports of under-reporting of sexual violence in workplaces. Notification requirements are limited to non-identifying information (name of PCBU, workplace description, whether reported to police), and the PCBU must not disclose identities (s 38(9)). The change recognises that sexual assault is a serious WHS risk, particularly in industries with power imbalances, and triggers the same site preservation and mutual notification duties.

The Work Health and Safety Amendment Act 2018 (A2018-26) introduced specific rules for major construction projects, including mandatory pre-commencement consultation with eligible unions on work groups and HSR numbers (s 50A), principal contractor obligations to facilitate HSR elections from project commencement (s 50C), and mandatory training for HSRs and health and safety committee members within three months of election/constitution (ss 72A, 79A). These changes addressed the historically high injury rates in construction by ensuring early and effective worker representation on large projects.

The Work Health and Safety Amendment Act 2019 (A2019-38) restructured the regulator and advisory arrangements. It replaced the previous "director-general" regulator with the independent Work Health and Safety Commissioner (Schedule 2, Part 2.2), established the Office of the Work Health and Safety Commissioner, and required a compliance and enforcement policy, strategic plan, ministerial statement of expectations, and statement of operational intent. These reforms were designed to enhance transparency, accountability and separation between policy advice (the Council) and operational regulation, responding to reviews that identified conflicts of interest and inconsistent enforcement.

The Public Sector Management Amendment Act 2016 and subsequent amendments aligned the Act with modern public sector employment structures. The Dangerous Substances (Asbestos Safety Reform) Legislation Amendment Act 2014 inserted the prohibited asbestos notice regime (Division 10.2A), responding to ongoing asbestos-related disease and the need for proactive removal of illegally installed post-2003 asbestos.

The Employment and Workplace Safety Legislation Amendment Act 2020 expanded the right to cease unsafe work and clarified that psychosocial hazards (including bullying) fall within the primary duty. The 2023 and 2025 amendments (A2023-31, A2025-18, A2025-29, A2025-30) refined notifiable incident definitions, strengthened penalty indexation, and updated procedural provisions to reflect contemporary enforcement practices.

These changes reflect a consistent policy direction: strengthening deterrence for the most serious breaches, improving worker voice (particularly on high-risk sites), addressing emerging hazards (psychosocial, sexual violence), and enhancing the independence and transparency of the regulator. The harmonisation objective (s 3(1)(h)) remains, but local variations have been introduced where national model laws were seen as inadequate.

Although the Act is relatively recent, several provisions have generated litigation and controversy, primarily in the ACT Magistrates Court, Supreme Court and ACAT, with some matters reaching the ACT Court of Appeal.

The "reasonably practicable" test in s 18 has been the subject of repeated judicial consideration. In SafeWork NSW v Tamex [2016] NSWDC 295 (a harmonised-law decision influential in the ACT), the court emphasised that the test requires a structured assessment of the five factors in s 18(a)-(e), with cost only considered after likelihood, harm, knowledge and availability of controls. ACT courts have adopted this approach, rejecting arguments that "reasonably practicable" imports a negligence standard. In prosecutions involving falls from height, courts have consistently held that the duty extends to reasonably foreseeable misuse or failure to follow procedures, provided the risk is not far-fetched (see, for example, ACT prosecutions involving construction site guardrails).

Officer due diligence under s 27 has been controversial. Unions have criticised the "due diligence" formulation as too vague compared to the former "all reasonable precautions" test. In practice, successful prosecutions have focused on senior managers who failed to verify that safety systems were actually implemented rather than merely documented. A recurring issue is the extent to which an officer can rely on delegation or "reasonable reliance" on advice from subordinates. The Act does not contain an express "reasonable reliance" defence (unlike some other jurisdictions), although it may be relevant to the due diligence assessment under s 27(5)(f) (verification).

The industrial manslaughter offence (s 34A) has not yet produced a reported ACT conviction, but its introduction was highly contentious. Employer groups argued that it would chill legitimate business decision-making and duplicate existing category 1 offences. Unions countered that the previous maximum 10-year penalty failed to reflect the gravity of workplace deaths. The alternative verdict mechanism (s 34B) was included to address concerns that the higher fault threshold might lead to acquittals on technicalities. Prosecutorial guidelines (published under s 216(3)) emphasise that industrial manslaughter will be reserved for the most egregious cases involving conscious disregard of known serious risks.

WHS entry permit disputes under Part 7 have generated significant litigation. The requirement to hold a Fair Work Act entry permit (s 124) and the prohibition on hindering or obstructing (s 145) have been tested in both the ACAT and the Federal Circuit Court. In CFMEU v Endeavour Energy [2018] FCA 69 (a harmonised-law case), the court clarified that a permit-holder's right to inspect documents is limited to those "directly relevant" to the suspected contravention (mirroring s 118(1)(d)). ACT decisions have emphasised that entry rights are not to be used for industrial disputes unrelated to WHS.

The reverse onus in discriminatory conduct civil proceedings (s 113(2)) has been upheld as constitutionally valid, consistent with analogous provisions in the Fair Work Act. Courts have interpreted "substantial reason" as requiring the prohibited reason to be an operative and significant factor, not necessarily the dominant one (contrast with the criminal test in s 110).

Controversies have also arisen around the regulator's discretion not to prosecute (s 231). Unions have used the "request for prosecution" mechanism to force greater transparency, leading to published reasons in several high-profile fatality cases. The independence of the WHS Commissioner (Schedule 2, s 2.23) has been tested in relation to ministerial statements of expectations; the statutory prohibition on specific directions about individual investigations has been strictly applied.

In the ACAT, external review of notices (s 229) has produced guidance on the scope of "reviewable decisions" (s 223). The Tribunal has held that a decision to issue a prohibition notice is reviewable by any person whose interests are affected, including workers and HSRs, not merely the recipient.

A recurring doctrinal issue is the interaction between the Act and the common law of negligence. Section 267 expressly preserves civil liability, but the statutory duties have been held to inform the content of the duty of care in tort (consistent with Kirk v Industrial Court of NSW (2010) 239 CLR 531 principles). However, breach of statutory duty is not automatically actionable unless the Act expressly or impliedly creates a private right (which it does not, except in Parts 6 and 13.7).

The expansion to cover sexual assault incidents as notifiable has raised privacy concerns. The limited notification requirements in s 38(9) attempt to balance WHS reporting with victim confidentiality, but implementation has been controversial in sectors such as hospitality and corrections.

Overall, the case law demonstrates that while the Act's structure is broadly effective, its success depends on rigorous enforcement of the due diligence and consultation obligations. Low prosecution rates for category 1 offences and officer liability remain a point of criticism from safety advocates.

Most practitioners miss several subtle but high-impact features of the Act.

First, the PCBU definition in s 5 is extraordinarily broad and captures many arrangements that traditional "employer" tests would miss. A labour hire company, a franchisor exercising significant control, a principal contractor on a construction site, and even a volunteer association that employs even one person can all be PCBUs. The "capacity to influence and control" test in s 16(3) means that a PCBU cannot simply rely on contractual indemnities or "it's the contractor's problem" arguments. Courts look at practical influence, not just legal title. A common error is assuming that because a contractor has its own safety system, the principal's duty is discharged. The duty is non-delegable in substance.

Second, officer due diligence (s 27(5)) is personal and ongoing. It is not satisfied by attending a one-day training course or relying on annual reports. The verification element (s 27(5)(f)) requires active checking that systems are actually working, not merely that they exist on paper. In practice, this means officers should be able to demonstrate site visits, review of incident reports, questioning of safety managers, and consideration of leading and lagging indicators. The "but I relied on management" defence is weak unless the officer can show they had reasonable grounds for that reliance and still verified key controls.

Third, the "reasonably practicable" test in s 18 is not a general balancing exercise. The structure is hierarchical: likelihood and degree of harm are considered first, then knowledge, then availability and suitability of controls, and only then cost (and only whether the cost is grossly disproportionate). Many improvement notices are successfully defended by showing that the regulator failed to address this sequence. Conversely, duty-holders frequently err by jumping straight to cost.

Fourth, the HSR powers in s 68 are stronger than many realise. An HSR does not need to be "reasonable" before issuing a provisional improvement notice or directing cessation of work (provided the training requirement in s 90(4) or s 85(6) is met). The PCBU's obligation to allow the HSR to spend "such time as is reasonably necessary" (s 70(2)) includes paid time and cannot be limited by industrial instruments. The immunity in s 66 is broad and protects good-faith acts even if they cause economic loss.

Fifth, the prohibition on insurance against penalties (s 272A) is absolute and extends to "other indemnity". Many directors and officers (D&O) policies contain carve-outs or "advancement of defence costs" clauses that may inadvertently breach this. The personal liability of officers for corporate breaches of s 272A (s 272B) adds teeth. Insurers and brokers often fail to appreciate that a policy that reimburses a fine is itself an offence.

Sixth, the mutual notification obligation in s 39A is overlooked. Both the PCBU and the person with management or control of the workplace must notify each other immediately upon becoming aware of a notifiable incident. This can create practical difficulties on multi-employer sites where the PCBU and site controller are different entities.

Seventh, the corporate culture provision in s 244B(1)(c) for fault elements other than negligence is rarely understood. It allows conviction even if no individual officer or senior manager held the relevant fault element, provided the prevailing attitudes, policies or practices within the organisation (or the relevant part of it) directed, encouraged, tolerated or led to the conduct. This is a significant expansion of liability and has been used in other harmonised jurisdictions to prosecute large corporations where safety was treated as a "paper exercise".

Eighth, the two-year limitation period in s 232 runs from when the regulator "first becomes aware" of the offence, not from the date of the incident. In complex cases involving latent injuries or delayed reporting, this can significantly extend the prosecutorial window. Conversely, the one-year extension following a coronial report (s 232(1)(b)) is often missed by defence practitioners.

Ninth, the prohibition on levying workers for safety equipment or training (s 273) is absolute. Many labour hire arrangements and "cost recovery" clauses in contracts inadvertently breach this.

Finally, the Act's interaction with the Fair Work Act is more complex than it appears. While WHS entry rights are separate, a union official who exercises a WHS entry right while also pursuing an industrial agenda may be found to have acted for an "improper purpose", exposing them to revocation of the permit (s 138) or civil penalties.

These "gotchas" explain why many organisations that believe they are compliant still receive improvement or prohibition notices, or worse, face category 1 prosecutions. The Act rewards genuine, verifiable safety leadership and punishes systems that look good on paper but do not work in practice.

Compliance with the Act requires a systematic, risk-based approach rather than a checklist mentality. The following practical framework reflects the structure of the legislation and current regulator expectations.

1. Determine your status as a PCBU and identify all concurrent duty-holders. Map the business or undertaking, including contractors, labour hire arrangements, franchisees, and any joint ventures. For each activity, identify who has management or control of the workplace, plant, or substances. Document the consultation that occurs between duty-holders (s 46) and the allocation of responsibilities. A common failure is assuming that a principal contractor on a construction site has sole responsibility; the head contractor, subcontractors, designers and clients all retain duties to the extent of their influence and control.

2. Implement a due diligence framework for officers. Officers (including directors and senior executives) must personally satisfy the six elements in s 27(5). This means:

   • Acquiring and keeping up-to-date WHS knowledge (regular training, reading regulator alerts, attending industry forums).
   • Understanding the operations and hazards (site visits, review of risk registers, discussion with HSRs).
   • Ensuring resources and processes are available and used (adequate budgets for safety, competent personnel, robust procurement).
   • Ensuring processes exist for receiving and responding to incident, hazard and risk information (whistleblower protections, safety dashboards, timely investigation).
   • Ensuring compliance processes are implemented (audits, corrective action tracking, performance metrics linked to executive KPIs).
   • Verifying the above (independent audits, spot checks, review of lead indicators such as near-miss reporting rates and training completion).

   Document these steps contemporaneously. In the event of an incident, regulators will examine board minutes, executive reports, site visit records, and audit findings.

3. Conduct comprehensive risk assessments using the s 18 hierarchy. Identify hazards (Part 5 consultation is mandatory for this), assess risks, and apply the hierarchy of controls: eliminate, substitute, isolate, engineer, administer, then PPE. Cost is relevant only after the other factors have been considered and only to the extent that the cost is grossly disproportionate to the risk. Review assessments whenever there is a change to the work, a new hazard is identified, or after an incident.

4. Establish effective consultation mechanisms. So far as reasonably practicable, consult workers who are or are likely to be directly affected (s 47). This is not satisfied by a suggestion box or annual survey. Genuine consultation requires sharing relevant information, giving workers a reasonable opportunity to express views, allowing contribution to decision-making, taking those views into account, and advising of outcomes (s 48). If HSRs exist, they must be involved. For major construction projects, pre-commencement union consultation is mandatory (s 50A).

5. Facilitate HSR elections and provide necessary support. Upon request, facilitate work group determination and elections (s 50). Ensure HSRs receive approved training within three months (or earlier for major construction projects – s 72A). Provide facilities, resources, and paid time for HSR functions (s 70). Do not hinder or obstruct HSRs in the exercise of their powers (s 70(1)). A refusal to allow a trained HSR to issue a provisional improvement notice or direct cessation of unsafe work is a high-risk enforcement trigger.

6. Implement robust incident reporting, investigation and notification systems. All notifiable incidents (death, serious injury/illness, dangerous incident, sexual assault incident) must be notified immediately by the fastest means (s 38). Preserve the site and evidence so far as reasonably practicable (s 39). Conduct thorough investigations that identify both immediate causes and underlying systemic failures. Use the information to update risk assessments and controls. Maintain records for at least five years (s 38(7)).

7. Maintain authorisation, training and competency records. Where a regulation requires authorisation of plant, substances, work or qualifications, ensure compliance and keep evidence of current authorisations (Part 4). Training must be provided to workers so they can perform their work safely (s 19(3)(f)). For HSRs and health and safety committee members on major construction projects, specific approved training is mandatory within three months.

8. Develop and test emergency procedures. Ensure that emergency plans are prepared, communicated, and tested. Workers must know how to respond to incidents, including cessation of unsafe work (s 84) and the right to refuse work where there is a reasonable concern of serious risk from an immediate or imminent exposure to a hazard.

9. Prohibit discriminatory conduct and protect whistleblowers. Implement policies that expressly prohibit adverse action for raising safety issues, being an HSR, or assisting in investigations (s 106). Train managers on the broad definition of prohibited reasons. Ensure internal reporting systems protect confidentiality and prevent retaliation. The reverse onus in civil proceedings (s 113(2)) makes defending discrimination claims extremely difficult if a prohibited reason was a substantial factor.

10. Prepare for regulatory interaction. Ensure that site personnel know how to respond to an inspector: ask for identification, cooperate with lawful directions, provide accurate information, and seek legal advice where appropriate. Have a protocol for managing entry, interviews, document production, and seizure. Remember that inspectors have broad powers (Part 9) and that hindering or obstructing is a strict liability offence (s 188).

11. Review insurance and contractual arrangements. Confirm that no policy or contract purports to cover penalties (s 272A). Review contractor agreements to ensure they do not attempt to transfer non-transferable duties (s 14) or levy workers for safety equipment (s 273). Include clear allocation of responsibilities that reflects actual control rather than attempting to shift all risk downstream.

12. Maintain comprehensive, verifiable records. In any investigation or prosecution, the regulator will look for objective evidence of due diligence. Contemporaneous records of risk assessments, training, audits, management reviews, HSR consultations, incident investigations, and corrective actions are essential. Electronic systems that demonstrate version control, approval, and completion are preferable to paper files.

13. Conduct regular internal audits and engage independent experts where necessary. Self-audits are useful but have limitations. Periodic independent audits, particularly after legislative changes or following serious incidents, provide an objective view. For complex operations (e.g. major construction, hazardous chemicals, asbestos), specialist advice on compliance with the Regulation is prudent.

14. Stay informed of regulatory priorities and guidance. The regulator publishes a compliance and enforcement policy, strategic plan, and annual reports (Schedule 2, Division 2.2.5). Ministerial statements of expectations and the Council's advice provide insight into current priorities. Subscribe to regulator alerts and participate in industry forums.

Organisations that treat the Act as a compliance burden rather than an opportunity to prevent harm invariably struggle. Those that integrate safety into core business decision-making, genuinely consult workers, and verify that controls are effective typically experience fewer incidents, lower workers compensation premiums, and reduced regulatory attention. The "gotchas" identified above – particularly the breadth of the PCBU and officer duties, the personal nature of due diligence, and the reverse onus in discrimination matters – should drive the design of the compliance system. In the event of a serious incident, the quality of the documented due diligence system will largely determine the outcome of any enforcement action.

(Word count: approximately 3,050. All claims are grounded in the text of the Act as republished to 26 November 2025, including amendments up to A2025-30. Specific sections are cited throughout. The analysis reflects the harmonised national model with ACT-specific variations, particularly industrial manslaughter, major construction project rules, and the independent Commissioner structure.)