Work Health and Safety (Transitional and Consequential Provisions) Act 2011

The Work Health and Safety (Transitional and Consequential Provisions) Act 2011 is a handover law. Its purpose is to deal with transitional and consequential matters connected with the Work Health and Safety Act 2011. In practical terms, it repealed the old Occupational Health and Safety Act 1991 and set rules for what happened to existing rights, duties, notices, incidents, representatives and enforcement matters when the new Commonwealth WHS regime began.

For business owners and managers, the Act answers a narrow but important question: if a safety issue sits around the 1 January 2012 changeover, which law applies? In many current matters, the answer will simply be the WHS Act. But if the issue involves older conduct, a pre-2012 project, a legacy notice, an old undertaking, or workplace representation arrangements that existed before the changeover, this Act may still control the legal position.

This is not a general operating code for everyday safety compliance. It is mainly a timeline and continuity statute. It tells you when the old OHS Act keeps operating despite repeal, when the WHS Act takes over, and when both regimes may need to be considered for different parts of the same matter.

The Act sits within the Commonwealth WHS framework. Its definitions refer to Comcare, the SRC Act and the WHS Act. The practical audience is organisations in the Commonwealth-regulated work health and safety system, including entities dealing with Comcare-regulated safety matters and legacy issues from the former Commonwealth OHS regime.

That means this page is most relevant if your organisation has a Commonwealth WHS compliance issue, inherited records from the old Occupational Health and Safety Act 1991 system, or a historical matter that may still be affected by transitional rules. It is especially relevant where the matter began before 1 January 2012 or where a document or arrangement was already in force immediately before that date.

It is usually not relevant for businesses whose WHS obligations arise only under state or territory legislation. Those businesses should check the transition arrangements, if any, in their own jurisdiction rather than relying on this Commonwealth Act.

The Act received Royal Assent on 29 November 2011. Sections 1 to 3 commenced on that date. Sections 4 and 5, and Schedules 1 to 4, commenced at the same time as the Work Health and Safety Act 2011, which was 1 January 2012. The Act defines the commencing day as 1 January 2012.

That date matters because Schedule 1 repealed the Occupational Health and Safety Act 1991, while Schedule 2 preserved parts of the old regime for specified situations. So the repeal cannot be read on its own. The transition provisions are what stop older breaches, notices, records and representation arrangements from disappearing automatically on the changeover date.

When reviewing a historical matter, the first practical step is to build a timeline around 1 January 2012. The legal answer often depends less on the label of the issue and more on exactly when the relevant conduct, awareness, process or document existed.

Schedule 2 starts with a broad saving rule. The old OHS Act continues to apply in relation to a breach that occurred before the commencing day, or is alleged to have occurred before that day, as if the OHS Act had not been repealed. This is the core reason the old law can still matter in legacy Commonwealth safety matters.

But the Act also draws a line for continuing conduct. If the action or failure to act that constitutes the breach continues on or after the commencing day, then, subject to other transitional items, the old OHS Act does not apply to that action or failure to act to the extent it occurs on or after 1 January 2012.

In practice, that means a business may need to split one issue into two periods. Pre-2012 conduct may remain governed by the old OHS Act. Conduct from 1 January 2012 onward may fall under the WHS Act, unless a more specific transitional rule says otherwise. This is particularly important for ongoing omissions, continuing unsafe systems, or projects that straddled the changeover.

The Act contains detailed transition rules for duties imposed under the WHS Act on designers, manufacturers, importers, suppliers, and persons who install, construct or commission plant or structures. The common pattern is that if the relevant process started before 1 January 2012, the new WHS duty may not apply immediately for that item. In some categories, the old OHS duty is also expressly preserved despite repeal.

For designers, the WHS designer duties do not apply to plant, substances or structures if the designer started, or started and completed, the design before the commencing day. But if the design was started before 1 January 2012 and not completed by the second anniversary of the commencing day, the designer loses that benefit and must comply with the WHS Act duties of a designer.

For manufacturers, the WHS manufacturer duties do not apply where manufacturing processes started before the commencing day. The Act also preserves certain manufacturer duties under the old OHS Act for plant or substance where the manufacturing process started before that date. If manufacture was not completed by the first anniversary of the commencing day, the manufacturer loses the carve-out and must comply with the WHS Act duties.

For importers, the same broad structure applies. If steps constituting importation started before the commencing day, the WHS importer duties do not apply at first. Certain old OHS duties are preserved for importers treated as manufacturers under the old law. If importing was not completed by the first anniversary of the commencing day, the importer must comply with the WHS Act duties.

For suppliers, if the supply process started before the commencing day, the WHS supplier duties do not apply at first. Certain old OHS supplier duties are preserved for plant or substance supplied under the old regime. If supply was not completed by the first anniversary of the commencing day, the supplier must comply with the WHS Act duties.

For persons who install, construct or commission plant or structures, the WHS duties do not apply at first if the relevant process started before the commencing day. Certain old OHS installer duties are preserved for plant where installation or erection started before that date. If installation, construction or commissioning was not completed by the second anniversary of the commencing day, the WHS duties then apply.

The Act also makes an important qualification for designers, manufacturers, importers and suppliers. Even where the broader carve-out applies, WHS duties can still apply to the results of calculations, analysis, testing or examination relevant to whether the item is without risks to health and safety. So the start date is not the only thing to check. Testing and technical records may also matter.

The Act contains a specific rule for notifiable incidents. The WHS Act applies to a notifiable incident arising out of the conduct of a business or undertaking if the person conducting the business or undertaking becomes aware of the incident on or after the commencing day, even if the incident itself occurred before that day.

That means awareness date matters. A business cannot assume that an incident is outside the WHS notification framework just because the event happened before 1 January 2012. If awareness arose on or after that date, the WHS Act may still govern the notifiable incident aspect.

The Act also preserves old record-keeping duties for some earlier events. If, before the commencing day, a person was required to maintain a record of an accident or dangerous occurrence under section 69 of the old OHS Act, that section and any regulations made under it continue to apply on and after the commencing day in relation to that accident or dangerous occurrence.

So a legacy incident can involve two separate questions. One is whether the WHS Act applies because awareness arose on or after 1 January 2012. The other is whether an older OHS record-keeping duty had already arisen before that date and therefore continues. Businesses should analyse those questions separately rather than assuming one answer resolves both.

The Act preserves continuity for workplace representation structures that were already operating under the old OHS Act. On the commencing day, a designated work group established under the old Act and in operation immediately before that day is taken to have been determined as a work group under the WHS Act.

A person who held office immediately before the commencing day as a health and safety representative or deputy health and safety representative under the old Act is taken to hold the corresponding office under the WHS Act. The term of office is 3 years beginning on the day the person was last selected under the old Act.

A health and safety committee established under the old OHS Act and in operation immediately before the commencing day is taken to be a health and safety committee under the WHS Act. The Act also sets out how committee membership carries over on the commencing day, including existing members and, in some cases, health and safety representatives who consent.

The Act also allows some incomplete pre-commencement processes to be finished under the old OHS Act and then have effect for WHS purposes. This includes processes to establish or vary a designated work group, select a health and safety representative or deputy representative, or establish a health and safety committee. However, the special rule for unfinished selection of a health and safety representative or deputy representative stops applying 3 months after the commencing day. If not completed by then, the process must be recommenced under the WHS Act.

Training is also addressed. A person who completed a course accredited by the Commission for the purposes of section 27 of the old OHS Act is taken to have completed the relevant training required under the WHS Act, but only for 12 months after the commencing day. The Act also carries over certain provisional improvement notices and disqualifications.

The Act defines the residual operation of the OHS Act. This covers the operation of the old Act in relation to actions and failures to act before the commencing day, and also conduct on or after that day to the extent the old Act continues to apply because of this Act or another law.

That definition matters because the Act gives inspectors and Comcare tools to deal with those residual OHS matters after the WHS regime started. A person who held office immediately before the commencing day as an investigator under the old OHS Act and was a member of Comcare staff is taken to have been appointed as an inspector under the WHS Act. Existing identity cards also continue in effect.

An inspector may perform functions or exercise powers under Divisions 3, 4 or 5 of Part 9 of the WHS Act in relation to anything arising in connection with the residual operation of the old OHS Act. The WHS Act then applies to that exercise as if references to the WHS Act included references to the OHS Act. The Act also allows inspectors to exercise the functions and powers of an investigator under the old OHS Act in connection with residual OHS matters.

Comcare may also use its WHS Act investigation power under section 155 in relation to anything arising in connection with the residual operation of the old OHS Act. Again, the WHS Act applies as if references to the WHS Act included references to the OHS Act. The Act also says that action taken or information acquired under these transitional arrangements may be used in relation to the residual operation of the old OHS Act.

For businesses, the practical point is that a legacy OHS matter did not become unenforceable just because the old Act was repealed. The transition law expressly supports continued investigation and enforcement activity for residual OHS issues.

The Act preserves several enforcement measures that were already in effect immediately before the commencing day. If a prohibition notice was in effect under the old OHS Act immediately before 1 January 2012, the old OHS Act continues to apply in relation to the notice and, to the extent the notice relates to a matter, in relation to that matter. The same approach applies to improvement notices.

The Act also deals with written undertakings accepted by Comcare under the old OHS Act. During the transitional period for the undertaking, the old OHS Act continues to apply in relation to the undertaking, and any proceedings in which the undertaking may be relevant, as if the old Act had not been repealed. The transitional period begins at the start of the commencing day and ends 2 years later, or earlier if the undertaking is revoked or otherwise ceases to be in force.

For authorisations, the Act says that a registration, licence, permit, accreditation or other form of authorisation under the old OHS Act can continue under the WHS Act if it is of a class prescribed by regulations. The preserved authorisation then has effect under the WHS Act, subject to any modifications made by regulations for that class.

The same structure applies to exemptions. An exemption under the old OHS Act can continue under the WHS Act if it is of a class prescribed by regulations, again subject to any regulatory modifications.

This means businesses should not assume that every old licence, permit, accreditation or exemption either automatically survived unchanged or automatically expired. The answer depends on whether the relevant class was prescribed by regulations and whether any modifications apply.

The Act includes a provision about codes of practice in Part 7 of Schedule 2, but the available text cuts off part way through that item. Because of that, any detailed explanation about how pre-2012 Commonwealth codes of practice carried over should be checked carefully against the full current Act and any relevant regulations before being relied on.

For businesses, the practical message is straightforward. If you are relying on an old Commonwealth code of practice, do not assume it carried over in full or in the same form. Check the current consolidated legislation and any related instruments before using it as a compliance benchmark.

This is also a reminder that transitional issues are often document-heavy. The legal answer usually depends on what existed immediately before 1 January 2012, what continued after that date, and whether the relevant class of document was preserved by the Act or regulations.

For most organisations in the Commonwealth system, the main operating law today is the Work Health and Safety Act 2011 and any applicable regulations. This transitional Act becomes important only when there is a historical feature that links the matter to the old OHS regime.

A practical reading method is to ask five questions. First, is the organisation actually in the Commonwealth or Comcare system? Secondly, what happened before 1 January 2012 and what happened after? Thirdly, is there a specific transitional item for this category of issue, such as design work, incidents, work groups, notices or authorisations? Fourthly, what records prove the relevant dates and status? Fifthly, are there regulations that preserve or modify the position for a class of authorisation or exemption?

If your files do not clearly show when work started, when it finished, when the business became aware of an incident, or whether a notice or authorisation was in force immediately before the changeover, the main risk may be evidentiary rather than conceptual. Transitional laws are often clear in structure but difficult in application because the records are incomplete.

It is also important not to over-read this Act. It does not replace the current WHS Act for ordinary present-day compliance, and it does not operate as a national transition code for every Australian business. Its role is narrower. It helps Commonwealth-regulated organisations work out how legacy matters were carried across the 2012 changeover and what still needs to be recognised today.