WHS v OHS – What’s the difference?

Occupational Health and Safety (OHS) and Work Health and Safety (WHS) are two terms that are often used interchangeably, but they actually have distinct meanings and implications in the field of workplace safety.

The 2 terms (OHS and WHS) specifically refer to the legislative framework and regulations that govern workplace health and safety in particular jurisdictions:

• OHS – Victoria
• WHS – all other States and Territories in Australia

WHS laws are designed to protect the health, safety, and welfare of workers, as well as other people who may be affected by work activities. These laws outline the responsibilities of employers, employees, and other parties in ensuring a safe workplace, as well as the penalties for non-compliance.

PCBU v Employer – What’s the difference? 

In the WHS legislation, (ie everywhere in Australia except Victoria) the legislation refers to Person Carrying out a Business or Undertaking (PCBU). In Victoria the legislation refers to Employer when outlining similar duties.  The PCBU definition is a little broader than employer as it includes a company, an unincorporated body or association, a sole trader or self-employed person. Persons who are in a partnership that is conducting a business or undertaking will individually and collectively be a PCBU.

An employer (in Victorian OHS legislation) is a person who employs one or more persons under contracts of employment or contracts of training.

Both PCBUs and Employers have similar obligations in the legislation.

Worker v Employee – What’s the difference?

In the WHS legislation, (ie everywhere in Australia except Victoria) the legislation refers to a worker which includes any person who works, in any capacity, in or as part of the business or undertaking. You are a worker under WHS legislation if you are an: employee. independent contractor or subcontractor (or their employee).

An employee (in Victorian OHS legislation) is a person employed under a contract of employment or contract of training.

In the WHS legislation, (ie everywhere in Australia except Victoria) Workers have similar obligations and protections as so Employees have in Victorian OHS legislation.

What about an officer?

In all States and Territories of Australia (including Victoria) the WHS/OHS legislation refers to Officers. An officer is a person who makes decisions, or participates in making decisions, that affect the whole, or a substantial part, of a business or undertaking and has the capacity to significantly affect the financial standing of the business or undertaking. If a person is responsible only for implementing those decisions, they are not considered an officer.

An officer must exercise due diligence to ensure that the PCBU/employer complies with their duties under the WHS/OHS legislation. Officers can be convicted of workplace manslaughter if they breach the duty owed by negligent conduct, and there is a workplace accident resulting in death.

So why is Victoria different?

Good question! Here is the answer https://ohsmanagementsystems.com.au/2012/05/07/whs-harmonisation-in-victoria-nope/

Disclaimer – I am not a lawyer, so this is my layperson’s version simplification.