Understanding the WHS Law in Commonwealth, NSW and ACT
From time to time, I’m contacted by newly appointed Health and Safety Representatives (HSRs) who are keen to complete their initial training but are told they cannot attend a face-to-face course due to internal organisational rules. This is a common issue I see across Commonwealth, NSW, and ACT jurisdictions.
Often, the reason given relates to cost, travel restrictions, internal training policy, or a preference for online learning. While these considerations are understandable from an operational perspective, they don’t always align with what the Work Health and Safety (WHS) legislation actually requires.
This article explains how HSR training entitlements work across these three jurisdictions, where misunderstandings commonly creep in and how the issue is usually resolved without conflict.
A typical situation
The pattern is often the same…
A worker is elected as an HSR and asks to attend the initial 5‑day HSR training.
The employer responds that only online training is permitted, or that face‑to‑face attendance is not approved under internal policy.
Leaving the HSR feeling stuck: they want to do the right thing legally and practically, but they do not want an argument. Deep down, they also know they would get more out of a room‑based course than sitting alone behind a screen, especially when they are already unsure about what the role involves.
For many new HSRs, being able to ask questions in person, hear other workers’ experiences and build confidence in a real classroom setting helps settle the nerves that come with taking on a new legal responsibility.
The legislation is clear, that HSRs are entitled to attend an approved course and that
this entitlement is not optional!
The core legal principle
Across the Commonwealth, NSW and ACT, section 72 of the WHS Act (or its equivalent) sets out a common structure.
- If an HSR requests training, the PCBU must allow them to attend a course that is:
- approved by the regulator; and
- a course the HSR is entitled to attend under the WHS Regulation; and
- chosen by the HSR, in consultation with the PCBU.
- The PCBU must:
- give paid time off work to attend; and
- pay the course fees and reasonable associated costs (for example, travel).
If the HSR and PCBU cannot agree on the course, timing or reasonable costs, either party can ask the regulator to appoint an inspector to decide the matter.
Neither the HSR nor the PCBU has a right to simply “enforce” their preferred course and block the other’s preference. Internal training, procurement or travel policies do not override these statutory obligations.
“Neither the HSR nor the PCBU has a right to simply “enforce” their preferred course and block the other’s”
Commonwealth (Comcare)
In Commonwealth‑regulated workplaces, the regulator is Comcare.
- Section 72 of the Commonwealth WHS Act mirrors the model WHS provisions and requires the PCBU, on request, to allow an HSR to attend:
- a WHS course approved by Comcare; and
- a course the HSR is entitled to under the Regulations; and
- a course chosen by the HSR, in consultation with the PCBU.
- Comcare’s HSR Training Course Requirements specify that initial and refresher HSR training must be delivered “face‑to‑face”, defined as participants being in the same physical room at the same time.
In practice, this means Comcare treats in‑person, room‑based delivery as the default standard for HSR training, and providers seeking approval must design courses on that basis. While some training may use technology within that face‑to‑face framework, a blanket internal rule that “HSR training must be done online” will usually conflict with Comcare’s approved delivery requirements and the HSR’s entitlement under section 72.
NSW (SafeWork NSW)
In NSW, the WHS Act and Regulation adopt the model section 72 framework.
- An HSR who requests training is entitled to attend a HSR course that:
- is approved by SafeWork NSW; and
- is a course the HSR is entitled to under the Regulation; and
- is chosen by the HSR, in consultation with the PCBU.
- The employer must provide paid time off and pay reasonable costs, including where travel is required to attend an approved course.
A NSW Industrial Relations Commission decision (Sydney Trains v SafeWork NSW) clarified several key points.
- An HSR has a right to choose the HSR course they wish to attend, but that choice “cannot be formed independent of consultation with the employer”.
- Neither the HSR nor the PCBU can unilaterally enforce their preferred training course or bar the other party’s preferred course.
- If agreement cannot be reached, an inspector can be asked to decide between alternative approved courses, and that decision can be reviewed internally and, ultimately, by the Commission.
Some NSW HSR courses are approved for online delivery, but that approval does not give employers a general right to insist on online training where an approved face‑to‑face option is reasonably available and the HSR prefers it.
Any disagreement about mode, provider or cost must be worked through using the consultation and inspector pathways in section 72 rather than via blanket internal rules.
ACT (WorkSafe ACT)
In the ACT, the regulator is WorkSafe ACT, and the WHS Act and Regulation follow the model framework for HSR training.
- Section 72 of the ACT WHS Act requires the PCBU to allow an HSR to attend an approved WHS training course they are entitled to, chosen by the HSR in consultation with the PCBU, with paid time off and reasonable costs covered.
- As in other jurisdictions, if the parties cannot agree on the course, time or costs, either may ask the regulator to appoint an inspector to decide the matter.
WorkSafe ACT has confirmed that all ACT‑approved HSR training (initial and refresher) must be delivered face‑to‑face, with participants and trainers physically present in the same room.
This means that while HSRs and PCBUs still choose from the list of approved WorkSafe ACT HSR courses through consultation, those approved courses are required to be in‑person and not delivered online.
Internal organisational preferences for online delivery, or legacy online offerings by providers, cannot override this requirement or substitute for an approved face‑to‑face ACT HSR course.
In practice, issues in the ACT typically arise because of assumptions about travel budgets, an expectation that online training is always “equivalent”, or internal policies written without WHS input. The legislation does not permit those assumptions to displace the HSR’s statutory training entitlement or the consultation and dispute‑resolution process set out in section 72.
Jurisdiction snapshot
| Jurisdiction | Regulator | HSR chooses course (with consultation) | Employer must allow time off | Employer pays costs | Face‑to‑face HSR training |
|---|---|---|---|---|---|
|
Commonwealth |
Comcare |
Yes, from Comcare‑approved courses, in consultation with PCBU |
Yes, with ordinary pay for time off |
Yes, reasonable course and associated costs |
Required as the standard delivery mode for initial and refresher courses |
|
NSW |
SafeWork NSW |
Yes, from SafeWork‑approved courses, in consultation with PCBU |
Yes, with ordinary pay |
Yes, reasonable costs including travel |
Available where approved; employer cannot insist on online‑only where an approved face‑to‑face option is reasonably available |
|
ACT |
WorkSafe ACT |
Yes, from ACT‑approved courses, in consultation with PCBU |
Yes, with pay for time off |
Yes, reasonable costs |
Required as the standard delivery mode for initial and refresher courses |
Penalties for non‑compliance
Failing to comply with section 72 is a failure to comply with a health and safety duty and is treated as a Category 3 offence under the WHS framework.
- As at 1 July 2025, the model WHS Act maximum monetary penalties for Category 3 offences are approximately:
- $159,000 for an individual PCBU or officer;
- $79,000 for an individual otherwise; and
- $795,000 for a body corporate.
These amounts are indexed and actual maximums can vary slightly by jurisdiction and over time, so they should always be checked against current regulator or legislation updates. The key point remains that the potential financial exposure for non‑compliance is far greater than the cost of allowing an HSR to attend an approved course chosen through proper consultation.
“The key point remains that the potential financial exposure for non‑compliance is far greater than the cost of allowing an HSR to attend an approved course chosen through proper consultation.”
Why problems arise
I’ve found that most problems arise from systems and assumptions, not deliberate refusal.
Common causes include:
- Legacy COVID‑era assumptions that all training should be online by default.
- Internal training or travel policies written without explicit WHS input, then treated as if they override legislation.
- Limited awareness of section 72, the HSR’s right to choose an approved course and the role of inspectors in resolving disagreements.
- A belief that any online WHS training is equivalent to an approved HSR course, when regulator approval and delivery mode requirements are more specific.
These issues are usually resolved once section 72 and regulator guidance are brought into the conversation and both parties focus on meeting the legal standard rather than defending internal rules.
Practical guidance for HSRs
HSRs can usually resolve training issues without escalation by keeping the discussion calm and evidence‑based.
- Make the training request in writing, clearly identifying the specific approved course, dates, provider and regulator approval status.
- Refer directly to section 72 of the WHS Act and relevant regulator guidance or course‑approval documents, not to opinions or generic online WHS courses.
- Engage WHS or safety teams early, not only HR, so that those familiar with WHS obligations are involved.
- Treat the discussion as clarifying legal obligations and options, rather than framing it as a dispute from the outset.
If agreement cannot be reached after genuine consultation, an HSR (or the PCBU) can request that the regulator appoint an inspector to decide the matter in line with section 72.
Practical guidance for employers
Employers and PCBUs can avoid disputes and potential enforcement by aligning internal processes with section 72.
- Regularly review your regulator’s list of approved HSR courses and current course‑approval requirements, including delivery mode expectations.
- Make sure internal training and travel policies explicitly recognise that WHS legislative obligations prevail where there is any inconsistency.
- When an HSR requests a particular approved course, focus on consultation about timing and reasonable costs, rather than defaulting to a blanket “online‑only” or “internal course only” position.
Seek early clarification from your regulator or legal advisers if unsure, rather than declining a course request and risking a Category 3 breach.
Final thoughts
HSR training is not a “nice to have”; it is a legal entitlement designed to ensure HSRs can exercise their powers confidently and safely.
Across Commonwealth, NSW and ACT, the intent of the law is consistent:
HSRs are entitled to attend an approved course, chosen by them in consultation with the PCBU, with paid time off and reasonable costs covered.
Where uncertainty exists, an early, informed conversation and if necessary, a regulator inspector’s decision, almost always resolves the issue well before enforcement becomes a real risk.
ABOUT THE Author - Kylie Dowell
Kylie Dowell is a seasoned WHS consultant, trainer, and safety advocate with over 25 years of experience helping Australian businesses create safer, compliant workplaces.
Through her partnership with TEAMS, an accredited Registered Training Organisation, Kylie delivers a wide range of training up to Advanced Diploma level, empowering businesses with the knowledge and skills to manage safety effectively.
As an approved trainer for Health and Safety Representative (HSR) courses by three Safety Regulators, Kylie has guided countless organisations in building stronger safety cultures and fostering healthier work environments.
Specialising in practical and effective safety solutions, she works closely with small and medium-sized businesses to simplify complex WHS requirements, making safety approachable and achievable.
When she’s not delivering high-quality training or conducting ISO 45001-certified audits, Kylie enjoys collaborating with her clients to design tailored workshops and strategies that suit their unique needs.
Ready to make safety simpler? Get in touch with Kylie today for personalised support.