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This is a Bill, not an Act. For current law, see the Acts databases.
WORK HEALTH AND SAFETY BILL 2011
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Work Health and Safety Bill 2011
No. , 2011
(Education, Employment and Workplace Relations)
A Bill for an Act relating to work health and safety,
and for related purposes
i Work Health and Safety Bill 2011 No. , 2011
Contents
Part 1--Preliminary
1
Division 1--Introduction
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
Division 2--Object
2
3 Object
.................................................................................................
2
Division 3--Interpretation
3
Subdivision 1--Definitions
3
4 Definitions
.........................................................................................
3
Subdivision 2--Other important terms
9
5 Meaning
of
person conducting a business or undertaking ................ 9
6 Meaning
of
supply ........................................................................... 10
7 Meaning
of
worker .......................................................................... 10
8 Meaning
of
workplace ..................................................................... 14
9 Examples
and
notes
.........................................................................
14
Division 4--Application of Act
15
10
Act binds the Commonwealth .......................................................... 15
11 Extraterritorial
application ............................................................... 15
12 Scope
...............................................................................................
15
12A
Act does not apply to certain vessels, structures and facilities ........ 17
12B
Duty to consult etc. where law of more than one jurisdiction
applies to the same matter ................................................................ 18
12C
Act not to prejudice national security .............................................. 18
12D
Act not to prejudice Australia's defence .......................................... 18
12E
Act not to prejudice certain police operations ................................. 19
12F Interaction
with
Commonwealth criminal law ................................. 20
Part 2--Health and safety duties
21
Division 1--Introductory
21
Subdivision 1--Principles that apply to duties
21
13 Principles
that
apply to duties .......................................................... 21
14 Duties
not
transferrable
....................................................................
21
15
Person may have more than 1 duty .................................................. 21
16
More than 1 person can have a duty ................................................ 21
17 Management
of risks ........................................................................ 22
Subdivision 2--What is reasonably practicable
22
18 What
is
reasonably practicable in ensuring health and safety ......... 22
Work Health and Safety Bill 2011 No. , 2011 ii
Division 2--Primary duty of care
23
19
Primary duty of care ........................................................................ 23
Division 3--Further duties of persons conducting businesses or
undertakings
25
20
Duty of persons conducting businesses or undertakings
involving management or control of workplaces ............................. 25
21
Duty of persons conducting businesses or undertakings
involving management or control of fixtures, fittings or plant
at workplaces ................................................................................... 25
22
Duties of persons conducting businesses or undertakings that
design plant, substances or structures .............................................. 26
23
Duties of persons conducting businesses or undertakings that
manufacture plant, substances or structures ..................................... 27
24
Duties of persons conducting businesses or undertakings that
import plant, substances or structures .............................................. 29
25
Duties of persons conducting businesses or undertakings that
supply plant, substances or structures .............................................. 31
26
Duty of persons conducting businesses or undertakings that
install, construct or commission plant or structures ......................... 32
Division 4--Duty of officers, workers and other persons
34
27
Duty of officers ................................................................................ 34
28
Duties of workers ............................................................................. 35
29
Duties of other persons at the workplace ......................................... 36
Division 5--Offences and penalties
37
30
Health and safety duty ..................................................................... 37
31 Reckless
conduct--Category 1 ........................................................ 37
32
Failure to comply with health and safety duty--Category 2 ........... 37
33
Failure to comply with health and safety duty--Category 3 ........... 38
34 Exceptions
.......................................................................................
38
Part 3--Incident notification
40
35
What is a notifiable incident ............................................................ 40
36
What is a serious injury or illness .................................................... 40
37
What is a dangerous incident ........................................................... 40
38
Duty to notify of notifiable incidents ............................................... 41
39
Duty to preserve incident sites ......................................................... 42
Part 4--Authorisations
44
40 Meaning
of
authorised ..................................................................... 44
41 Requirements
for
authorisation of workplaces ................................ 44
42 Requirements
for
authorisation of plant or substance ...................... 44
43 Requirements
for
authorisation of work .......................................... 45
iii Work Health and Safety Bill 2011 No. , 2011
44
Requirements for prescribed qualifications or experience ............... 45
45
Requirement to comply with conditions of authorisation ................ 46
Part 5--Consultation, representation and participation
47
Division 1--Consultation, co-operation and co-ordination
between duty holders
47
46
Duty to consult with other duty holders ........................................... 47
Division 2--Consultation with workers
48
47
Duty to consult workers ................................................................... 48
48 Nature
of
consultation
......................................................................
48
49 When
consultation is required ......................................................... 49
Division 3--Health and safety representatives
50
Subdivision 1--Request for election of health and safety
representatives
50
50
Request for election of health and safety representative .................. 50
Subdivision 2--Determination of work groups
50
51 Determination
of
work groups ......................................................... 50
52
Negotiations for agreement for work group ..................................... 50
53 Notice
to
workers
.............................................................................
51
54 Failure
of
negotiations
.....................................................................
52
Subdivision 3--Multiple-business work groups
53
55
Determination of work groups of multiple businesses ..................... 53
56 Negotiation
of
agreement
for work groups of multiple
businesses ........................................................................................ 53
57 Notice
to
workers
.............................................................................
54
58
Withdrawal from negotiations or agreement involving
multiple businesses .......................................................................... 55
59
Effect of Subdivision on other arrangements ................................... 55
Subdivision 4--Election of health and safety representatives
55
60
Eligibility to be elected .................................................................... 55
61
Procedure for election of health and safety representatives ............. 56
62
Eligibility to vote ............................................................................. 56
63 When
election
not required .............................................................. 56
64
Term of office of health and safety representative ........................... 57
65
Disqualification of health and safety representatives ....................... 57
66
Immunity of health and safety representatives ................................ 58
67
Deputy health and safety representatives ......................................... 58
Subdivision 5--Powers and functions of health and safety
representatives
59
Work Health and Safety Bill 2011 No. , 2011 iv
68
Powers and functions of health and safety representatives .............. 59
69
Powers and functions generally limited to the particular work
group ................................................................................................ 60
Subdivision 6--Obligations of person conducting business or
undertaking to health and safety representatives
61
70
General obligations of person conducting business or
undertaking ...................................................................................... 61
71
Exceptions from obligations under section 70(1) ............................ 63
72
Obligation to train health and safety representatives ....................... 64
73
Obligation to share costs if multiple businesses or
undertakings ..................................................................................... 65
74
List of health and safety representatives .......................................... 65
Division 4--Health and safety committees
67
75
Health and safety committees .......................................................... 67
76 Constitution
of committee ............................................................... 67
77 Functions
of committee ................................................................... 68
78 Meetings
of committee .................................................................... 68
79
Duties of person conducting business or undertaking ...................... 68
Division 5--Issue resolution
70
80 Parties
to
an issue ............................................................................. 70
81
Resolution of health and safety issues ............................................. 70
82
Referral of issue to regulator for resolution by inspector................. 71
Division 6--Right to cease or direct cessation of unsafe work
72
83 Definition
of
cease work under this Division .................................. 72
84
Right of worker to cease unsafe work .............................................. 72
85
Health and safety representative may direct that unsafe work
cease ................................................................................................. 72
86 Worker
to
notify
if ceases work ....................................................... 73
87 Alternative
work
..............................................................................
73
88
Continuity of engagement of worker ............................................... 74
89
Request to regulator to appoint inspector to assist ........................... 74
Division 7--Provisional improvement notices
75
90 Provisional
improvement notices ..................................................... 75
91
Provisional improvement notice to be in writing ............................. 75
92
Contents of provisional improvement notice ................................... 76
93
Provisional improvement notice may give directions to
remedy contravention ...................................................................... 76
94
Minor changes to provisional improvement notice .......................... 76
95
Issue of provisional improvement notice ......................................... 77
96
Health and safety representative may cancel notice ........................ 77
v Work Health and Safety Bill 2011 No. , 2011
97
Display of provisional improvement notice ..................................... 77
98 Formal
irregularities
or defects in notice ......................................... 77
99
Offence to contravene a provisional improvement notice ............... 78
100
Request for review of provisional improvement notice ................... 78
101
Regulator to appoint inspector to review notice .............................. 78
102
Decision of inspector on review of provisional improvement
notice ............................................................................................... 79
Division 8--Part not to apply to prisoners
80
103
Part does not apply to prisoners ....................................................... 80
Part 6--Discriminatory, coercive and misleading conduct
81
Division 1--Prohibition of discriminatory, coercive or
misleading conduct
81
104
Prohibition of discriminatory conduct ............................................. 81
105 What
is
discriminatory conduct ....................................................... 81
106
What is a prohibited reason ............................................................. 82
107
Prohibition of requesting, instructing, inducing, encouraging,
authorising or assisting discriminatory conduct ............................... 83
108
Prohibition of coercion or inducement............................................. 84
109 Misrepresentation
............................................................................
85
Division 2--Criminal proceedings in relation to discriminatory
conduct
86
110
Proof of discriminatory conduct ...................................................... 86
111
Order for compensation or reinstatement ......................................... 86
Division 3--Civil proceedings in relation to discriminatory or
coercive conduct
87
112
Civil proceedings in relation to engaging in or inducing
discriminatory or coercive conduct .................................................. 87
113
Procedure for civil actions for discriminatory conduct .................... 88
Division 4--General
89
114
General provisions relating to orders ............................................... 89
115 Prohibition
of
multiple actions ......................................................... 89
Part 7--Workplace entry by WHS entry permit holders
90
Division 1--Introductory
90
116 Definitions
.......................................................................................
90
Division 2--Entry to inquire into suspected contraventions
91
117
Entry to inquire into suspected contraventions ................................ 91
118
Rights that may be exercised while at workplace ............................ 91
119 Notice
of
entry
.................................................................................
92
Work Health and Safety Bill 2011 No. , 2011 vi
120
Entry to inspect employee records or information held by
another person .................................................................................. 93
Division 3--Entry to consult and advise workers
94
121
Entry to consult and advise workers ................................................ 94
122 Notice
of
entry
.................................................................................
94
Division 4--Requirements for WHS entry permit holders
95
123 Contravening
WHS
entry permit conditions .................................... 95
124
WHS entry permit holder must also hold permit under other
law ................................................................................................... 95
125
WHS entry permit to be available for inspection ............................. 95
126
When right may be exercised ........................................................... 95
127
Where the right may be exercised .................................................... 96
128
Work health and safety requirements ............................................... 96
129 Residential
premises
........................................................................
96
130
WHS entry permit holder not required to disclose names of
workers ............................................................................................ 96
Division 5--WHS entry permits
98
131 Application
for
WHS entry permit .................................................. 98
132 Consideration
of application ............................................................ 98
133 Eligibility
criteria
.............................................................................
98
134
Issue of WHS entry permit .............................................................. 98
135 Conditions
on
WHS entry permit .................................................... 99
136
Term of WHS entry permit .............................................................. 99
137 Expiry
of
WHS
entry permit ............................................................ 99
138 Application
to
revoke WHS entry permit ........................................ 99
139
Authorising authority must permit WHS entry permit holder
to show cause ................................................................................. 100
140 Determination
of application ......................................................... 101
Division 6--Dealing with disputes
102
141
Application for assistance of inspector to resolve dispute ............. 102
142
Authorising authority may deal with a dispute about a right
of entry under this Act ................................................................... 102
143
Contravening order made to deal with dispute .............................. 103
Division 7--Prohibitions
104
144
Person must not refuse or delay entry of WHS entry permit
holder ............................................................................................. 104
145
Person must not hinder or obstruct WHS entry permit holder ....... 104
146
WHS entry permit holder must not delay, hinder or obstruct
any person or disrupt work at workplace ....................................... 104
147
Misrepresentations about things authorised by this Part ................ 105
vii Work Health and Safety Bill 2011 No. , 2011
148
Unauthorised use or disclosure of information or documents ........ 105
Division 8--General
107
149 Return
of
WHS
entry permits ........................................................ 107
150
Union to provide information to authorising authority .................. 107
151
Register of WHS entry permit holders ........................................... 108
Part 8--The regulator
109
Division 1--Functions of regulator
109
152
Functions of regulator .................................................................... 109
153 Powers
of
regulator
........................................................................
109
154
Delegation by regulator ................................................................. 110
Division 2--Powers of regulator to obtain information
111
155
Powers of regulator to obtain information ..................................... 111
Part 9--Securing compliance
113
Division 1--Appointment of inspectors
113
156 Appointment
of
inspectors ............................................................. 113
157 Identity
cards
.................................................................................
113
158 Accountability
of
inspectors .......................................................... 113
159
Suspension and ending of appointment of inspectors .................... 114
Division 2--Functions and powers of inspectors
115
160 Functions
and
powers
of inspectors ............................................... 115
161
Conditions on inspectors' compliance powers ............................... 115
162
Inspectors subject to regulator's directions .................................... 115
Division 3--Powers relating to entry
116
Subdivision 1--General powers of entry
116
163 Powers
of
entry
..............................................................................
116
164
Notification of entry....................................................................... 116
165 General
powers
on entry ................................................................ 117
165A Powers
relating
to
electronic equipment ........................................ 118
165B
Expert assistance to operate electronic equipment ......................... 119
166 Persons
assisting
inspectors ........................................................... 120
Subdivision 2--Search warrants
120
167 Search
warrants
..............................................................................
120
168 Announcement
before
entry on warrant ......................................... 121
169
Copy of warrant to be given to person with management or
control of place .............................................................................. 122
Subdivision 3--Limitation on entry powers
122
170
Places used for residential purposes .............................................. 122
Work Health and Safety Bill 2011 No. , 2011 viii
Subdivision 4--Specific powers on entry
122
171
Power to require production of documents and answers to
questions ........................................................................................ 122
172
Abrogation of privilege against self-incrimination ........................ 123
173
Warning to be given ....................................................................... 124
174
Powers to copy and retain documents ............................................ 124
175
Power to seize evidence etc. .......................................................... 125
176
Inspector's power to seize dangerous workplaces and things ........ 125
177 Powers
supporting seizure ............................................................. 126
178
Receipt for seized things ................................................................ 127
179 Forfeiture
of
seized things ............................................................. 127
180
Return of seized things .................................................................. 129
181
Access to seized things .................................................................. 129
Division 4--Damage and compensation
130
182
Damage etc. to be minimised ......................................................... 130
183
Inspector to give notice of damage ................................................ 130
184 Compensation
................................................................................
130
Division 5--Other matters
132
185
Power to require name and address ............................................... 132
186 Inspector
may
take affidavits ......................................................... 132
187
Attendance of inspector at coronial inquests ................................. 133
Division 6--Offences in relation to inspectors
134
188
Offence to hinder or obstruct inspector .......................................... 134
189
Offence to impersonate inspector .................................................. 134
190
Offence to assault, threaten or intimidate inspector ....................... 134
Part 10--Enforcement measures
135
Division 1--Improvement notices
135
191
Issue of improvement notices ........................................................ 135
192
Contents of improvement notices .................................................. 135
193 Compliance
with
improvement notice ........................................... 136
194
Extension of time for compliance with improvement notices ........ 136
Division 2--Prohibition notices
137
195
Power to issue prohibition notice ................................................... 137
196
Contents of prohibition notice ....................................................... 137
197 Compliance
with
prohibition notice ............................................... 138
Division 3--Non-disturbance notices
139
198
Issue of non-disturbance notice ..................................................... 139
199
Contents of non-disturbance notice ............................................... 139
ix Work Health and Safety Bill 2011 No. , 2011
200 Compliance
with
non-disturbance notice ....................................... 140
201
Issue of subsequent notices ............................................................ 140
Division 4--General requirements applying to notices
141
202 Application
of
Division ................................................................. 141
203
Notice to be in writing ................................................................... 141
204
Directions in notices ...................................................................... 141
205 Recommendations
in notice ........................................................... 141
206
Changes to notice by inspector ...................................................... 141
207 Regulator
may
vary
or cancel notice ............................................. 142
208 Formal
irregularities
or defects in notice ....................................... 142
209
Issue and giving of notice .............................................................. 142
210
Display of notice ............................................................................ 143
Division 5--Remedial action
144
211
When regulator may carry out action ............................................. 144
212
Power of the regulator to take other remedial action ..................... 144
213
Costs of remedial or other action ................................................... 144
Division 6--Injunctions
145
214 Application
of
Division ................................................................. 145
215 Injunctions
for
noncompliance with notices .................................. 145
Part 11--Enforceable undertakings
146
216
Regulator may accept WHS undertakings ..................................... 146
217
Notice of decision and reasons for decision ................................... 146
218
When a WHS undertaking is enforceable ...................................... 146
219 Compliance
with
WHS undertaking .............................................. 146
220 Contravention
of
WHS undertaking .............................................. 147
221
Withdrawal or variation of WHS undertaking ............................... 147
222 Proceeding
for
alleged contravention ............................................ 148
Part 12--Review of decisions
149
Division 1--Reviewable decisions
149
223 Which
decisions
are reviewable ..................................................... 149
Division 2--Internal review
154
224 Application
for
internal review ...................................................... 154
225 Internal
reviewer
............................................................................
154
226
Decision of internal reviewer ......................................................... 154
227
Decision on internal review ........................................................... 155
228
Stays of reviewable decisions on internal review .......................... 155
Division 3--External review
157
229 Application
for
external review ..................................................... 157
Work Health and Safety Bill 2011 No. , 2011 x
Part 13--Legal proceedings
158
Division 1--General matters
158
230 Prosecutions
...................................................................................
158
231
Procedure if prosecution is not brought ......................................... 158
232
Limitation period for prosecutions ................................................. 160
233
Multiple contraventions of health and safety duty provision ......... 161
Division 2--Sentencing for offences
162
234
Application of this Division ........................................................... 162
235 Orders
generally
.............................................................................
162
236
Adverse publicity orders ................................................................ 162
237
Orders for restoration ..................................................................... 163
238
Work health and safety project orders ........................................... 163
239
Release on the giving of a court-ordered WHS undertaking ......... 164
240 Injunctions
.....................................................................................
164
241 Training
orders
...............................................................................
165
242
Offence to fail to comply with order .............................................. 165
Division 3--Infringement notices
166
243 Infringement
notices
......................................................................
166
243A
Matters to be included in an infringement notice ........................... 166
243B
Extension of time to pay amount ................................................... 168
243C
Withdrawal of an infringement notice ........................................... 168
243D
Effect of payment of amount ......................................................... 170
243E
Effect of this Division .................................................................... 170
Division 4--Offences by bodies corporate
172
244
Imputing conduct to bodies corporate ............................................ 172
Division 5--The Commonwealth
173
245
Offences and the Commonwealth .................................................. 173
246
WHS civil penalty provisions and the Commonwealth ................. 173
247 Officers
..........................................................................................
174
248 Responsible
agency
for the Commonwealth .................................. 174
Division 6--Public authorities
176
249
Application to public authorities that are bodies corporate ............ 176
250 Proceedings
against
public authorities ........................................... 176
251
Imputing conduct to public authorities .......................................... 176
252 Officer
of
public authority ............................................................. 176
253
Proceedings against successors to public authorities ..................... 177
Division 7--WHS civil penalty provisions
178
254
When is a provision a WHS civil penalty provision ...................... 178
xi Work Health and Safety Bill 2011 No. , 2011
255
Proceedings for contravention of WHS civil penalty
provision ........................................................................................ 178
256
Involvement in contravention treated in same way as actual
contravention ................................................................................. 178
257
Contravening a civil penalty provision is not an offence ............... 179
258
Civil proceeding rules and procedure to apply .............................. 179
259
Proceeding for a contravention of a WHS civil penalty
provision ........................................................................................ 179
260
Proceeding may be brought by the regulator or an inspector ......... 179
261
Limitation period for WHS civil penalty proceedings ................... 180
262
Recovery of a monetary penalty .................................................... 180
263 Civil
double
jeopardy ..................................................................... 180
264 Criminal
proceedings
during civil proceedings ............................. 180
265 Criminal
proceedings
after civil proceedings ................................ 180
266
Evidence given in proceedings for contravention of WHS
civil penalty provision not admissible in criminal
proceedings .................................................................................... 181
Division 8--Civil liability not affected by this Act
182
267
Civil liability not affected by this Act ............................................ 182
Part 14--General
183
Division 1--General provisions
183
268
Offence to give false or misleading information ............................ 183
269
Act does not affect legal professional privilege ............................. 183
270 Immunity
from
liability ................................................................. 183
271 Confidentiality
of information ....................................................... 183
272 No
contracting
out
.........................................................................
185
273 Person
not
to
levy workers ............................................................. 185
273A
Conferral of jurisdiction ................................................................. 185
273B
Application of the Legislative Instruments Act 2003 ..................... 187
Division 2--Codes of practice
188
274 Approved
codes
of practice ........................................................... 188
275
Use of codes of practice in proceedings ......................................... 189
Division 3--Regulation-making powers
189
276 Regulation-making powers ............................................................ 189
Work Health and Safety Bill 2011 No. , 2011 xii
Schedule 1--Application of Act to dangerous goods
and high risk plant
191
Schedule 2--The regulator and local tripartite
consultation arrangements and other
local arrangements
192
Part 1--Preliminary
192
1 Definitions
.....................................................................................
192
Part 2--The Commission
193
2 Functions
.......................................................................................
193
Part 3--Comcare
194
3 Annual
reports
...............................................................................
194
Part 4--Other persons
195
4 Annual
reports
...............................................................................
195
Schedule 3--Regulation-making powers
196
1 Duties
.............................................................................................
196
2 Incidents
.........................................................................................
196
3 Plant,
substances
or structures ....................................................... 196
4 Protection
and
welfare of workers ................................................. 197
5 Hazards
and
risks
...........................................................................
197
6 Records
and
notices
.......................................................................
197
7 Authorisations
................................................................................
197
8 Work
groups
..................................................................................
198
9
Health and safety committees and health and safety
representatives ............................................................................... 198
10 Issue
resolution
..............................................................................
198
11
WHS entry permits ........................................................................ 199
12 Identity
cards
.................................................................................
199
13 Forfeiture
.......................................................................................
199
14
Review of decisions ....................................................................... 199
Work Health and Safety Bill 2011 No. , 2011 1
A Bill for an Act relating to work health and safety,
1
and for related purposes
2
The Parliament of Australia enacts:
3
Part 1--Preliminary
4
Division 1--Introduction
5
1 Short title
6
This Act may be cited as the Work Health and Safety Act 2011.
7
2 Commencement
8
This Act commences on 1 January 2012.
9
Part 1 Preliminary
Division 2 Object
Section 3
2 Work Health and Safety Bill 2011 No. , 2011
Division 2--Object
1
3 Object
2
(1) The main object of this Act is to provide for a balanced and
3
nationally consistent framework to secure the health and safety of
4
workers and workplaces by:
5
(a) protecting workers and other persons against harm to their
6
health, safety and welfare through the elimination or
7
minimisation of risks arising from work; and
8
(b) providing for fair and effective workplace representation,
9
consultation, co-operation and issue resolution in relation to
10
work health and safety; and
11
(c) encouraging unions and employer organisations to take a
12
constructive role in promoting improvements in work health
13
and safety practices, and assisting persons conducting
14
businesses or undertakings and workers to achieve a healthier
15
and safer working environment; and
16
(d) promoting the provision of advice, information, education
17
and training in relation to work health and safety; and
18
(e) securing compliance with this Act through effective and
19
appropriate compliance and enforcement measures; and
20
(f) ensuring appropriate scrutiny and review of actions taken by
21
persons exercising powers and performing functions under
22
this Act; and
23
(g) providing a framework for continuous improvement and
24
progressively higher standards of work health and safety; and
25
(h) maintaining and strengthening the national harmonisation of
26
laws relating to work health and safety and to facilitate a
27
consistent national approach to work health and safety in this
28
jurisdiction.
29
(2) In furthering subsection (1)(a), regard must be had to the principle
30
that workers and other persons should be given the highest level of
31
protection against harm to their health, safety and welfare from
32
hazards and risks arising from work as is reasonably practicable.
33
34
Preliminary Part 1
Interpretation Division 3
Section 4
Work Health and Safety Bill 2011 No. , 2011 3
Division 3--Interpretation
1
Subdivision 1--Definitions
2
4 Definitions
3
In this Act:
4
approved code of practice means a code of practice approved
5
under Part 14.
6
Australia, when used in its geographical sense, includes the
7
external Territories.
8
authorised, in Part 4--see section 40.
9
authorising authority means Fair Work Australia.
10
Category 1 offence--see section 31.
11
Category 2 offence--see section 32.
12
Category 3 offence--see section 33.
13
Comcare means the body corporate established under section 68 of
14
the Safety, Rehabilitation and Compensation Act 1988.
15
Commonwealth includes any person or body, other than a public
16
authority, that is an agency within the meaning of the Financial
17
Management and Accountability Act 1997.
18
compliance powers means the functions and powers conferred on
19
an inspector under this Act.
20
condition includes limitation and restriction.
21
construct includes assemble, erect, reconstruct, reassemble and
22
re-erect.
23
corresponding regulator means a regulator under a corresponding
24
WHS law.
25
corresponding WHS law means each of the following:
26
Part 1 Preliminary
Division 3 Interpretation
Section 4
4 Work Health and Safety Bill 2011 No. , 2011
(a)
the
Work Health and Safety Act 2011 of New South Wales;
1
(b)
the
Work Health and Safety Act 2011 of Victoria;
2
(c)
the
Work Health and Safety Act 2011 of Queensland;
3
(d)
the
Work Health and Safety Act 2011 of Western Australia;
4
(e)
the
Work Health and Safety Act 2011 of South Australia;
5
(f)
the
Work Health and Safety Act 2011 of Tasmania;
6
(g)
the
Work Health and Safety Act 2011 of the Australian
7
Capital Territory;
8
(h)
the
Work Health and Safety Act 2011 of the Northern
9
Territory;
10
(i) any other law of a State or Territory prescribed by the
11
regulations.
12
court means:
13
(a) the Federal Court of Australia; and
14
(b) the Federal Magistrates Court; and
15
(c) the Supreme Court of a State or of the Australian Capital
16
Territory or the Northern Territory; and
17
(d) a court of a State or Territory prescribed by the regulations
18
for the purposes of section 275A.
19
dangerous incident, in Part 3--see section 37.
20
demolition includes deconstruction.
21
design, in relation to plant, a substance or a structure includes:
22
(a) design of part of the plant, substance or structure; and
23
(b) redesign or modify a design.
24
disclose, in relation to information, includes divulge or
25
communicate to any person or publish.
26
discriminatory conduct, in Part 6--see section 105.
27
document includes record.
28
emergency services worker means:
29
(a) a member of 1 of the following:
30
(i) a police force or service;
31
Preliminary Part 1
Interpretation Division 3
Section 4
Work Health and Safety Bill 2011 No. , 2011 5
(ii)
a
fire
service;
1
(iii) an ambulance service;
2
(iv) a coast guard service, rescue service or emergency
3
service;
4
(v) any other organisation prescribed by the regulations for
5
the purposes of this subparagraph; or
6
(b) a member of the Defence Force who is engaged civil
7
emergency or disaster relief operations; or
8
(c) a person who is an emergency services worker under a
9
corresponding WHS law.
10
employee record, in relation to an employee, has the same meaning
11
as it has in the Privacy Act 1988.
12
employer organisation means an organisation of employers.
13
engage in conduct means doing an act or omitting to do an act.
14
Fair Work Act means the Fair Work Act 2009.
15
Fair Work Australia means the body established under section 575
16
of the Fair Work Act 2009.
17
handling includes transport.
18
health means physical and psychological health.
19
health and safety duty--see section 30.
20
health and safety representative, in relation to a worker, means the
21
health and safety representative elected under Part 5 for the work
22
group of which the worker is a member.
23
import means to bring into the jurisdiction from outside Australia.
24
inspector means an inspector appointed under Part 9.
25
internal reviewer means:
26
(a) the regulator; or
27
(b) a person appointed by the regulator under section 225.
28
Part 1 Preliminary
Division 3 Interpretation
Section 4
6 Work Health and Safety Bill 2011 No. , 2011
legal practitioner means a person who is admitted to the legal
1
profession by a federal court or a Supreme Court of a State or
2
Territory.
3
local authority means a local authority under a corresponding
4
WHS law.
5
medical treatment means treatment by a medical practitioner
6
registered or licensed under a State or Territory law that provides
7
for the registration or licensing of medical practitioners.
8
modifications include additions, omissions and substitutions.
9
non-Commonwealth licensee means a body corporate that was a
10
non-Commonwealth licensee for the purposes of the Occupational
11
Health and Safety Act 1991 immediately before the
12
commencement of this Act.
13
notifiable incident--see section 35.
14
officer means:
15
(a) an officer within the meaning of section 9 of the
16
Corporations Act 2001 other than a partner in a partnership;
17
or
18
(b) an officer of the Commonwealth within the meaning of
19
section 247; or
20
(c) an officer of a public authority within the meaning of
21
section 252;
22
other than an elected member of a local authority acting in that
23
capacity.
24
official of a union, in Part 7--see section 116.
25
person conducting a business or undertaking--see section 5.
26
personal information has the same meaning as it has in the
27
Privacy Act 1988.
28
plant includes:
29
(a) any machinery, equipment, appliance, container, implement
30
and tool; and
31
(b) any component of any of those things; and
32
Preliminary Part 1
Interpretation Division 3
Section 4
Work Health and Safety Bill 2011 No. , 2011 7
(c) anything fitted or connected to any of those things.
1
prohibited reason, in Part 6--see section 106.
2
public authority means:
3
(a) a body corporate established for a public purpose by or under
4
a law of the Commonwealth or a law of a Territory (other
5
than the Australian Capital Territory, the Northern Territory
6
or Norfolk Island), but does not include a body corporate
7
prescribed by the regulations to be a body corporate to which
8
this Act does not apply; and
9
(b) a Commonwealth company within the meaning of the
10
Commonwealth Authorities and Companies Act 1997, other
11
than a Commonwealth company prescribed by the
12
regulations to be a Commonwealth company to which this
13
Act does not apply; and
14
(c) a body corporate prescribed by the regulations to be a public
15
authority for the purposes of this Act.
16
reasonably practicable, in relation to a duty to ensure health and
17
safety--see section 18.
18
regulator means Comcare.
19
relevant person conducting a business or undertaking, in Part 7--
20
see section 116.
21
relevant State or Territory industrial law, in Part 7--see
22
section 116.
23
relevant union, in Part 7--see section 116.
24
relevant worker, in Part 7--see section 116.
25
representative, in relation to a worker, means:
26
(a) the health and safety representative for the worker; or
27
(b) a union representing the worker; or
28
(c) any other person the worker authorises to represent him or
29
her.
30
serious injury or illness, in Part 3--see section 36.
31
Part 1 Preliminary
Division 3 Interpretation
Section 4
8 Work Health and Safety Bill 2011 No. , 2011
State includes the Australian Capital Territory and the Northern
1
Territory.
2
State or Territory industrial law has the same meaning as it has in
3
the Fair Work Act.
4
structure means anything that is constructed, whether fixed or
5
moveable, temporary or permanent, and includes:
6
(a) buildings, masts, towers, framework, pipelines, transport
7
infrastructure and underground works (shafts or tunnels); and
8
(b) any component of a structure; and
9
(c) part of a structure.
10
substance means any natural or artificial substance, whether in the
11
form of a solid, liquid, gas or vapour.
12
supply--see section 6.
13
this Act includes the regulations.
14
union means:
15
(a) an employee organisation that is registered, or taken to be
16
registered, under the Fair Work (Registered Organisations)
17
Act 2009 of the Commonwealth; or
18
(b) an association of employees or independent contractors, or
19
both, that is registered or recognised as such an association
20
(however described) under a State or Territory industrial law.
21
volunteer means a person who is acting on a voluntary basis
22
(irrespective of whether the person receives out-of-pocket
23
expenses).
24
WHS entry permit means a WHS entry permit issued under Part 7
25
or the equivalent Part of a corresponding WHS law.
26
WHS entry permit holder means a person who holds a WHS entry
27
permit.
28
WHS undertaking means an undertaking given under
29
section 216(1).
30
work group means a work group determined under Part 5.
31
Preliminary Part 1
Interpretation Division 3
Section 5
Work Health and Safety Bill 2011 No. , 2011 9
worker--see section 7.
1
workplace--see section 8.
2
Subdivision 2--Other important terms
3
5 Meaning of person conducting a business or undertaking
4
(1) For the purposes of this Act, a person conducts a business or
5
undertaking:
6
(a) whether the person conducts the business or undertaking
7
alone or with others; and
8
(b) whether or not the business or undertaking is conducted for
9
profit or gain.
10
(2) A business or undertaking conducted by a person includes a
11
business or undertaking conducted by a partnership or an
12
unincorporated association.
13
(3) If a business or undertaking is conducted by a partnership (other
14
than an incorporated partnership), a reference in this Act to a
15
person conducting the business or undertaking is to be read as a
16
reference to each partner in the partnership.
17
(4) A person does not conduct a business or undertaking to the extent
18
that the person is engaged solely as a worker in, or as an officer of,
19
that business or undertaking.
20
(5) An elected member of a local authority does not in that capacity
21
conduct a business or undertaking.
22
(6) The regulations may specify the circumstances in which a person
23
may be taken not to be a person who conducts a business or
24
undertaking for the purposes of this Act or any provision of this
25
Act.
26
(7) A volunteer association does not conduct a business or undertaking
27
for the purposes of this Act.
28
(8) In this section, volunteer association means a group of volunteers
29
working together for 1 or more community purposes where none of
30
Part 1 Preliminary
Division 3 Interpretation
Section 6
10 Work Health and Safety Bill 2011 No. , 2011
the volunteers, whether alone or jointly with any other volunteers,
1
employs any person to carry out work for the volunteer association.
2
6 Meaning of supply
3
(1)
A
supply of a thing includes a supply and a resupply of the thing
4
by way of sale, exchange, lease, hire or hire-purchase, whether as
5
principal or agent.
6
(2) A supply of a thing occurs on the passing of possession of the thing
7
to the person or an agent of the person to be supplied.
8
(3) A supply of a thing does not include:
9
(a) the return of possession of a thing to the owner of the thing at
10
the end of a lease or other agreement; or
11
(b) a prescribed supply.
12
(4) A financier is taken not to supply plant, a substance or a structure
13
for the purposes of this Act if:
14
(a) the financier has, in the course of the financier's business as a
15
financier, acquired ownership of, or another right in, the
16
plant, substance or structure on behalf of a customer of the
17
financier; and
18
(b) the action by the financier, that would be a supply but for this
19
subsection, is taken by the financier for, or on behalf of, that
20
customer.
21
(5) If subsection (4) applies, the person (other than the financier) who
22
had possession of the plant, substance or structure immediately
23
before the financier's customer obtained possession of the plant,
24
substance or structure is taken for the purposes of this Act to have
25
supplied the plant, substance or structure to the financier's
26
customer.
27
7 Meaning of worker
28
(1) A person is a worker if the person carries out work in any capacity
29
for a person conducting a business or undertaking, including work
30
as:
31
(a) an employee; or
32
Preliminary Part 1
Interpretation Division 3
Section 7
Work Health and Safety Bill 2011 No. , 2011 11
(b) a contractor or subcontractor; or
1
(c) an employee of a contractor or subcontractor; or
2
(d) an employee of a labour hire company who has been
3
assigned to work in the person's business or undertaking; or
4
(e) an outworker; or
5
(f) an apprentice or trainee; or
6
(g) a student gaining work experience; or
7
(h) a volunteer; or
8
(i) a person of a prescribed class.
9
(2) For the purposes of this Act, the Commissioner of the Australian
10
Federal Police, a Deputy Commissioner of the Australian Federal
11
Police or an AFP employee (all within the meaning of the
12
Australian Federal Police Act 1979) is:
13
(a) a worker; and
14
(b) at work throughout the time when the person is on duty or
15
lawfully performing the functions of the Commissioner of the
16
Australian Federal Police, a Deputy Commissioner of the
17
Australian Federal Police or an AFP employee, but not
18
otherwise; and
19
(c) carrying out work for a business or undertaking conducted by
20
the Commonwealth when the person is on duty or lawfully
21
performing the functions of the Commissioner of the
22
Australian Federal Police, a Deputy Commissioner of the
23
Australian Federal Police or an AFP employee, but not
24
otherwise; and
25
(d) an employee of the Commonwealth.
26
(2A) For the purposes of this Act, a member of the Defence Force is:
27
(a) a worker; and
28
(b) at work throughout the time when the person is lawfully
29
performing the functions of a member of the Defence Force,
30
but not otherwise; and
31
(c) carrying out work for a business or undertaking conducted by
32
the Commonwealth when the person is lawfully performing
33
those functions, but not otherwise; and
34
(d) an employee of the Commonwealth.
35
Part 1 Preliminary
Division 3 Interpretation
Section 7
12 Work Health and Safety Bill 2011 No. , 2011
(2B) For the purposes of this Act, a person who is the holder of, or
1
acting in, an office established by a law of the Commonwealth or a
2
law of a Territory (other than the Australian Capital Territory, the
3
Northern Territory or Norfolk Island) is:
4
(a) a worker; and
5
(b) at work throughout the time when the person is lawfully
6
performing the functions of that office, but not otherwise;
7
and
8
(c) carrying out work for a business or undertaking conducted by
9
the Commonwealth when the person is lawfully performing
10
those functions, but not otherwise; and
11
(d) an employee of the Commonwealth.
12
(2C) For the purposes of this Act, a person who constitutes, or is acting
13
as the person constituting, a public authority is:
14
(a) a worker; and
15
(b) at work throughout the time when the person is lawfully
16
performing the functions of that authority, but not otherwise;
17
and
18
(c) carrying out work for a business or undertaking conducted by
19
the public authority when the person is lawfully performing
20
those functions, but not otherwise; and
21
(d) an employee of the public authority.
22
(2D) For the purposes of this Act, a person who is, or is acting as, a
23
member or a deputy member of a public authority is:
24
(a) a worker; and
25
(b) at work throughout the time when the person is lawfully
26
performing the functions of the public authority, but not
27
otherwise; and
28
(c) carrying out work for a business or undertaking conducted by
29
the public authority when the person is lawfully performing
30
those functions, but not otherwise; and
31
(d) an employee of the public authority.
32
(2E) For the purposes of this Act, a person who is, or is acting as, a
33
member or a deputy member of a body established by or under an
34
Act establishing a public authority for a purpose associated with
35
the performance of the functions of the public authority is:
36
Preliminary Part 1
Interpretation Division 3
Section 7
Work Health and Safety Bill 2011 No. , 2011 13
(a) a worker; and
1
(b) at work throughout the time when the person is lawfully
2
performing the functions of the body, but not otherwise; and
3
(c) carrying out work for a business or undertaking conducted by
4
the public authority when the person is lawfully performing
5
those functions, but not otherwise; and
6
(d) an employee of the public authority.
7
(2F) The Minister may, by instrument in writing, declare that a person
8
of a class specified in the declaration is, for the purposes of this
9
Act:
10
(a) a worker; and
11
(b) at work throughout the time specified in the declaration; and
12
(c) carrying out work for a business or undertaking conducted by
13
the Commonwealth, or a public authority specified in the
14
declaration, when the person is performing functions of the
15
kind specified in the declaration; and
16
(d) an employee of the Commonwealth, or a public authority
17
specified in the declaration.
18
(2G) A declaration under subsection (2F) may only be made in relation
19
to a class of persons if persons of that class engage in activities or
20
perform acts:
21
(a) where the declaration specifies that persons of that class are
22
carrying out work for a business or undertaking conducted by
23
the Commonwealth, or are employees of the Commonwealth:
24
(i) at the request or direction of the Commonwealth; or
25
(ii) for the benefit of the Commonwealth; or
26
(iii) by or under a law of the Commonwealth or of a
27
Territory (other than the Australian Capital Territory,
28
the Northern Territory or Norfolk Island); or
29
(b) where the declaration specifies that persons of that class are
30
carrying out work for a business or undertaking conducted by
31
a public authority specified in the declaration, or are
32
employees of a public authority specified in the declaration:
33
(i) at the request or direction of the public authority; or
34
(ii) for the benefit of the public authority.
35
Part 1 Preliminary
Division 3 Interpretation
Section 8
14 Work Health and Safety Bill 2011 No. , 2011
(2H) A declaration under subsection (2F) has effect according to its
1
terms.
2
(3) The person conducting the business or undertaking is also a worker
3
if the person is an individual who carries out work in that business
4
or undertaking.
5
8 Meaning of workplace
6
(1)
A
workplace is a place where work is carried out for a business or
7
undertaking and includes any place where a worker goes, or is
8
likely to be, while at work.
9
(2) In this section, place includes:
10
(a) a vehicle, vessel, aircraft or other mobile structure; and
11
(b) any waters and any installation on land, on the bed of any
12
waters or floating on any waters.
13
9 Examples and notes
14
(1) An example at the foot of a provision forms part of this Act.
15
(2) A note at the foot of a provision forms part of this Act.
16
17
Preliminary Part 1
Application of Act Division 4
Section 10
Work Health and Safety Bill 2011 No. , 2011 15
Division 4--Application of Act
1
10 Act binds the Commonwealth
2
(1) This Act binds the Commonwealth.
3
(2) The Commonwealth is liable for an offence against this Act.
4
(3) Without limiting subsection (1), the Commonwealth is liable for a
5
contravention of a WHS civil penalty provision.
6
11 Extraterritorial application
7
This Act extends to every external Territory.
8
12 Scope
9
The Commonwealth and public authorities
10
(1) This Act applies in relation to each of the following:
11
(a) if the Commonwealth is conducting a business or
12
undertaking:
13
(i) the Commonwealth; and
14
(ii) an officer of the Commonwealth;
15
(b) if a public authority is conducting a business or undertaking:
16
(i) the public authority; and
17
(ii) an officer of the public authority;
18
(c) to the extent that a person is a worker and carries out work in
19
any capacity for a business or undertaking conducted by the
20
Commonwealth or a public authority--that person;
21
(d) to the extent that a person is a worker and is taken to carry
22
out work for a business or undertaking conducted by the
23
Commonwealth or a public authority because of section 7--
24
that person;
25
(e) if work is carried out by a worker at a place (as defined for
26
the purposes of section 8) for a business or undertaking
27
conducted by the Commonwealth or a public authority--that
28
place;
29
Part 1 Preliminary
Division 4 Application of Act
Section 12
16 Work Health and Safety Bill 2011 No. , 2011
(f) if work is taken to be carried out by a worker at a place (as
1
defined for the purposes of section 8) for a business or
2
undertaking conducted by the Commonwealth or a public
3
authority because of section 7--that place.
4
(2) For the purposes of this Act, the administration of the Australian
5
Capital Territory, the Northern Territory or Norfolk Island is not a
6
business or undertaking conducted by the Commonwealth.
7
(3) A corresponding WHS law does not apply in relation to the
8
Commonwealth or a public authority.
9
Non-Commonwealth licensees
10
(4) During the transitional period for a non-Commonwealth licensee,
11
this Act applies in relation to each of the following:
12
(a) if the non-Commonwealth licensee is conducting a business
13
or undertaking--the non-Commonwealth licensee;
14
(b) to the extent that a person carries out work in any capacity
15
for the non-Commonwealth licensee--the person;
16
(c) if work is carried out at a place (as defined for the purposes
17
of section 8) for a business or undertaking conducted by the
18
non-Commonwealth licensee--that place.
19
(5) During the transitional period for a non-Commonwealth licensee, a
20
corresponding WHS law does not apply in relation to the
21
non-Commonwealth licensee.
22
(6)
The
transitional period for a non-Commonwealth licensee:
23
(a) begins on the commencement of this Act; and
24
(b) ends on a day prescribed by the regulations for the
25
non-Commonwealth licensee, or a class of
26
non-Commonwealth licensees of which the
27
non-Commonwealth licensee is a member.
28
(7) The regulations may make provisions of a transitional, application
29
or saving nature relating to non-Commonwealth licensees.
30
(8) Without limiting subsection (7), regulations made for the purposes
31
of that subsection may make modifications to the provisions of this
32
Act, the Occupational Health and Safety Act 1991 and any
33
Preliminary Part 1
Application of Act Division 4
Section 12A
Work Health and Safety Bill 2011 No. , 2011 17
instrument made under this Act or the Occupational Health and
1
Safety Act 1991.
2
Concurrent operation
3
(9) Both this Act and a corresponding WHS law may apply in relation
4
to a worker or a workplace.
5
Double jeopardy
6
(10) If a person is convicted of an offence under this Act in relation to
7
an act or omission, the person is not liable to be convicted of the
8
same offence under a corresponding WHS law in relation to the
9
same act or omission.
10
(11) If a person is convicted of an offence under a corresponding WHS
11
law in relation to an act or omission, the person is not liable to be
12
convicted of the same offence under this Act in relation to the same
13
act or omission.
14
(12) If a monetary penalty is imposed on a person under this Act in
15
relation to an act or omission that contravenes a WHS civil penalty
16
provision, the person is not liable to a monetary penalty under a
17
corresponding WHS law for the contravention of the same WHS
18
civil penalty provision under that law by the same act or omission.
19
(13) If a monetary penalty is imposed on a person under a
20
corresponding WHS law in relation to an act or omission that
21
contravenes a WHS civil penalty provision, the person is not liable
22
to a monetary penalty under this Act for the contravention of the
23
same WHS civil penalty provision under this Act by the same act
24
or omission.
25
12A Act does not apply to certain vessels, structures and facilities
26
(1) This Act does not apply in relation to any vessel (including a ship
27
or a barge) or any structure to which the Occupational Health and
28
Safety (Maritime Industry) Act 1993 applies.
29
(2) This Act does not apply in relation to a facility to which
30
Schedule 3 to the Offshore Petroleum and Greenhouse Gas
31
Storage Act 2006 applies.
32
Part 1 Preliminary
Division 4 Application of Act
Section 12B
18 Work Health and Safety Bill 2011 No. , 2011
12B Duty to consult etc. where law of more than one jurisdiction
1
applies to the same matter
2
If a person has a duty in relation to a matter under this Act and
3
another person has a duty under a corresponding WHS law in
4
relation to the same matter, the person who has the duty under this
5
Act must consult, co-operate and co-ordinate activities with the
6
other person.
7
12C Act not to prejudice national security
8
(1) Nothing in this Act requires or permits a person to take any action,
9
or to refrain from taking any action, that would be, or could
10
reasonably be expected to be, prejudicial to Australia's national
11
security.
12
(2) Without limiting the generality of subsection (1), the
13
Director-General of Security may, by instrument in writing, declare
14
that specified provisions of this Act do not apply, or apply subject
15
to modifications set out in the declaration, in relation to a person
16
carrying out work for the Director-General of Security.
17
(3) A declaration under subsection (2) may only be made with the
18
approval of the Minister and, if made with that approval, has effect
19
according to its terms.
20
(4) In administering the Australian Security Intelligence Organisation
21
and in the exercise of the power under subsection (2), the
22
Director-General of Security must take into account the need to
23
promote the objects of this Act to the greatest extent consistent
24
with the maintenance of Australia's national security.
25
12D Act not to prejudice Australia's defence
26
(1) Nothing in this Act requires or permits a person to take any action,
27
or to refrain from taking any action, that would be, or could
28
reasonably be expected to be, prejudicial to Australia's defence.
29
(2) Without limiting the generality of subsection (1), the Chief of the
30
Defence Force may, by instrument in writing, declare that specified
31
Preliminary Part 1
Application of Act Division 4
Section 12E
Work Health and Safety Bill 2011 No. , 2011 19
provisions of this Act do not apply, or apply subject to such
1
modifications as are set out in the declaration, in relation to:
2
(a) a specified activity; or
3
(b) a specified member of the Defence Force; or
4
(c) members of the Defence Force included in a specified class
5
of such members.
6
(3) A declaration under subsection (2) may only be made with the
7
approval of the Minister and, if made with that approval, has effect
8
according to its terms.
9
(4) In the exercise of the power under subsection (2), the Chief of the
10
Defence Force must take into account the need to promote the
11
objects of this Act to the greatest extent consistent with the
12
maintenance of Australia's defence.
13
12E Act not to prejudice certain police operations
14
(1) Nothing in this Act requires or permits a person to take any action,
15
or to refrain from taking any action, that would be, or could
16
reasonably be expected to be, prejudicial to:
17
(a) an existing or future covert operation of the Australian
18
Federal Police; or
19
(b) an existing or future international operation of the Australian
20
Federal Police.
21
Note 1:
Under section 12C, this Act does not require or permit a person to take
22
action or refrain from taking action if that action would be, or could
23
reasonably be expected to be, prejudicial to Australia's national
24
security. This might occur, for example, where the Australian Federal
25
Police work in cooperation with an intelligence agency or respond to
26
an imminent terrorist threat.
27
Note 2:
Under section 12D, this Act does not require or permit a person to
28
take action or refrain from taking action if that action would be, or
29
could reasonably be expected to be, prejudicial to Australia's defence.
30
(2) In this section:
31
AFP appointee has the same meaning as in the Australian Federal
32
Police Act 1979.
33
Part 1 Preliminary
Division 4 Application of Act
Section 12F
20 Work Health and Safety Bill 2011 No. , 2011
covert operation means the performance of a function or service
1
under section 8 of the Australian Federal Police Act 1979 where
2
knowledge of the operation by an unauthorised person, may:
3
(a) reduce the effectiveness of the performance of the function or
4
service; or
5
(b) expose a person to the danger of physical harm or death
6
arising from the actions of another person.
7
Note:
A covert operation might, for example, include an undercover
8
operation to identify those involved in drug trafficking, but would not
9
include general duties policing.
10
international operation means an operation to maintain order in a
11
foreign country where:
12
(a) because of the environment in which the operation is
13
undertaken, it is not reasonably practicable to eliminate risks
14
to the health and safety of an AFP appointee involved in the
15
operation; and
16
(b) the Commissioner of the Australian Federal Police has taken
17
all steps reasonably practicable to minimise risks to the
18
health and safety of an AFP appointee involved in the
19
operation.
20
unauthorised person in relation to a covert operation, means a
21
person, including an AFP appointee, who is not involved in the
22
approval, planning or execution of the operation.
23
12F Interaction with Commonwealth criminal law
24
(1) Section 4AB of the Crimes Act 1914 does not apply to the
25
provisions of this Act.
26
(2) Strict liability applies to each physical element of each offence
27
under this Act, unless otherwise stated.
28
(3) Section 15.1 of the Criminal Code (extended geographical
29
jurisdiction--category A) applies to an offence against this Act.
30
31
Health and safety duties Part 2
Introductory Division 1
Section 13
Work Health and Safety Bill 2011 No. , 2011 21
Part 2--Health and safety duties
1
Division 1--Introductory
2
Subdivision 1--Principles that apply to duties
3
13 Principles that apply to duties
4
This Subdivision sets out the principles that apply to all duties that
5
persons have under this Act.
6
Note:
The principles will apply to duties under this Part and other Parts of
7
this Act such as duties relating to incident notification and
8
consultation.
9
14 Duties not transferrable
10
A duty cannot be transferred to another person.
11
15 Person may have more than 1 duty
12
A person can have more than 1 duty by virtue of being in more
13
than 1 class of duty holder.
14
16 More than 1 person can have a duty
15
(1) More than 1 person can concurrently have the same duty.
16
(2) Each duty holder must comply with that duty to the standard
17
required by this Act even if another duty holder has the same duty.
18
(3) If more than 1 person has a duty for the same matter, each person:
19
(a) retains responsibility for the person's duty in relation to the
20
matter; and
21
(b) must discharge the person's duty to the extent to which the
22
person has the capacity to influence and control the matter or
23
would have had that capacity but for an agreement or
24
arrangement purporting to limit or remove that capacity.
25
Part 2 Health and safety duties
Division 1 Introductory
Section 17
22 Work Health and Safety Bill 2011 No. , 2011
17 Management of risks
1
A duty imposed on a person to ensure health and safety requires
2
the person:
3
(a) to eliminate risks to health and safety, so far as is reasonably
4
practicable; and
5
(b) if it is not reasonably practicable to eliminate risks to health
6
and safety, to minimise those risks so far as is reasonably
7
practicable.
8
Subdivision 2--What is reasonably practicable
9
18 What is reasonably practicable in ensuring health and safety
10
In this Act, reasonably practicable, in relation to a duty to ensure
11
health and safety, means that which is, or was at a particular time,
12
reasonably able to be done in relation to ensuring health and safety,
13
taking into account and weighing up all relevant matters including:
14
(a) the likelihood of the hazard or the risk concerned occurring;
15
and
16
(b) the degree of harm that might result from the hazard or the
17
risk; and
18
(c) what the person concerned knows, or ought reasonably to
19
know, about:
20
(i) the hazard or the risk; and
21
(ii) ways of eliminating or minimising the risk; and
22
(d) the availability and suitability of ways to eliminate or
23
minimise the risk; and
24
(e) after assessing the extent of the risk and the available ways of
25
eliminating or minimising the risk, the cost associated with
26
available ways of eliminating or minimising the risk,
27
including whether the cost is grossly disproportionate to the
28
risk.
29
30
Health and safety duties Part 2
Primary duty of care Division 2
Section 19
Work Health and Safety Bill 2011 No. , 2011 23
Division 2--Primary duty of care
1
19 Primary duty of care
2
(1) A person conducting a business or undertaking must ensure, so far
3
as is reasonably practicable, the health and safety of:
4
(a) workers engaged, or caused to be engaged by the person; and
5
(b) workers whose activities in carrying out work are influenced
6
or directed by the person;
7
while the workers are at work in the business or undertaking.
8
(2) A person conducting a business or undertaking must ensure, so far
9
as is reasonably practicable, that the health and safety of other
10
persons is not put at risk from work carried out as part of the
11
conduct of the business or undertaking.
12
(3) Without limiting subsections (1) and (2), a person conducting a
13
business or undertaking must ensure, so far as is reasonably
14
practicable:
15
(a) the provision and maintenance of a work environment
16
without risks to health and safety; and
17
(b) the provision and maintenance of safe plant and structures;
18
and
19
(c) the provision and maintenance of safe systems of work; and
20
(d) the safe use, handling and storage of plant, structures and
21
substances; and
22
(e) the provision of adequate facilities for the welfare at work of
23
workers in carrying out work for the business or undertaking,
24
including ensuring access to those facilities; and
25
(f) the provision of any information, training, instruction or
26
supervision that is necessary to protect all persons from risks
27
to their health and safety arising from work carried out as
28
part of the conduct of the business or undertaking; and
29
(g) that the health of workers and the conditions at the workplace
30
are monitored for the purpose of preventing illness or injury
31
of workers arising from the conduct of the business or
32
undertaking.
33
(4)
If:
34
Part 2 Health and safety duties
Division 2 Primary duty of care
Section 19
24 Work Health and Safety Bill 2011 No. , 2011
(a) a worker occupies accommodation that is owned by or under
1
the management or control of the person conducting the
2
business or undertaking; and
3
(b) the occupancy is necessary for the purposes of the worker's
4
engagement because other accommodation is not reasonably
5
available;
6
the person conducting the business or undertaking must, so far as is
7
reasonably practicable, maintain the premises so that the worker
8
occupying the premises is not exposed to risks to health and safety.
9
(5) A self-employed person must ensure, so far as is reasonably
10
practicable, his or her own health and safety while at work.
11
Note:
A self-employed person is also a person conducting a business or
12
undertaking for the purposes of this section.
13
14
Health and safety duties Part 2
Further duties of persons conducting businesses or undertakings Division 3
Section 20
Work Health and Safety Bill 2011 No. , 2011 25
Division 3--Further duties of persons conducting
1
businesses or undertakings
2
20 Duty of persons conducting businesses or undertakings involving
3
management or control of workplaces
4
(1) In this section, person with management or control of a
5
workplace means a person conducting a business or undertaking to
6
the extent that the business or undertaking involves the
7
management or control, in whole or in part, of the workplace but
8
does not include:
9
(a) the occupier of a residence, unless the residence is occupied
10
for the purposes of, or as part of, the conduct of a business or
11
undertaking; or
12
(b) a prescribed person.
13
(2) The person with management or control of a workplace must
14
ensure, so far as is reasonably practicable, that the workplace, the
15
means of entering and exiting the workplace and anything arising
16
from the workplace are without risks to the health and safety of any
17
person.
18
21 Duty of persons conducting businesses or undertakings involving
19
management or control of fixtures, fittings or plant at
20
workplaces
21
(1) In this section, person with management or control of fixtures,
22
fittings or plant at a workplace means a person conducting a
23
business or undertaking to the extent that the business or
24
undertaking involves the management or control of fixtures,
25
fittings or plant, in whole or in part, at a workplace, but does not
26
include:
27
(a) the occupier of a residence, unless the residence is occupied
28
for the purposes of, or as part of, the conduct of a business or
29
undertaking; or
30
(b) a prescribed person.
31
(2) The person with management or control of fixtures, fittings or
32
plant at a workplace must ensure, so far as is reasonably
33
Part 2 Health and safety duties
Division 3 Further duties of persons conducting businesses or undertakings
Section 22
26 Work Health and Safety Bill 2011 No. , 2011
practicable, that the fixtures, fittings and plant are without risks to
1
the health and safety of any person.
2
22 Duties of persons conducting businesses or undertakings that
3
design plant, substances or structures
4
(1) This section applies to a person (the designer) who conducts a
5
business or undertaking that designs:
6
(a) plant that is to be used, or could reasonably be expected to be
7
used, as, or at, a workplace; or
8
(b) a substance that is to be used, or could reasonably be
9
expected to be used, at a workplace; or
10
(c) a structure that is to be used, or could reasonably be expected
11
to be used, as, or at, a workplace.
12
(2) The designer must ensure, so far as is reasonably practicable, that
13
the plant, substance or structure is designed to be without risks to
14
the health and safety of persons:
15
(a) who, at a workplace, use the plant, substance or structure for
16
a purpose for which it was designed; or
17
(b) who handle the substance at a workplace; or
18
(c) who store the plant or substance at a workplace; or
19
(d) who construct the structure at a workplace; or
20
(e) who carry out any reasonably foreseeable activity at a
21
workplace in relation to:
22
(i) the manufacture, assembly or use of the plant for a
23
purpose for which it was designed, or the proper
24
storage, decommissioning, dismantling or disposal of
25
the plant; or
26
(ii) the manufacture or use of the substance for a purpose
27
for which it was designed or the proper handling,
28
storage or disposal of the substance; or
29
(iii) the manufacture, assembly or use of the structure for a
30
purpose for which it was designed or the proper
31
demolition or disposal of the structure; or
32
Example: Inspection, operation, cleaning, maintenance or repair of plant.
33
(f) who are at or in the vicinity of a workplace and who are
34
exposed to the plant, substance or structure at the workplace
35
Health and safety duties Part 2
Further duties of persons conducting businesses or undertakings Division 3
Section 23
Work Health and Safety Bill 2011 No. , 2011 27
or whose health or safety may be affected by a use or activity
1
referred to in paragraph (a), (b), (c), (d) or (e).
2
(3) The designer must carry out, or arrange the carrying out of, any
3
calculations, analysis, testing or examination that may be necessary
4
for the performance of the duty imposed by subsection (2).
5
(4) The designer must give adequate information to each person who is
6
provided with the design for the purpose of giving effect to it
7
concerning:
8
(a) each purpose for which the plant, substance or structure was
9
designed; and
10
(b) the results of any calculations, analysis, testing or
11
examination referred to in subsection (3), including, in
12
relation to a substance, any hazardous properties of the
13
substance identified by testing; and
14
(c) any conditions necessary to ensure that the plant, substance
15
or structure is without risks to health and safety when used
16
for a purpose for which it was designed or when carrying out
17
any activity referred to in subsection (2)(a) to (e).
18
(5) The designer, on request, must, so far as is reasonably practicable,
19
give current relevant information on the matters referred to in
20
subsection (4) to a person who carries out, or is to carry out, any of
21
the activities referred to in subsection (2)(a) to (e).
22
23 Duties of persons conducting businesses or undertakings that
23
manufacture plant, substances or structures
24
(1) This section applies to a person (the manufacturer) who conducts
25
a business or undertaking that manufactures:
26
(a) plant that is to be used, or could reasonably be expected to be
27
used, as, or at, a workplace; or
28
(b) a substance that is to be used, or could reasonably be
29
expected to be used, at a workplace; or
30
(c) a structure that is to be used, or could reasonably be expected
31
to be used, as, or at, a workplace.
32
Part 2 Health and safety duties
Division 3 Further duties of persons conducting businesses or undertakings
Section 23
28 Work Health and Safety Bill 2011 No. , 2011
(2) The manufacturer must ensure, so far as is reasonably practicable,
1
that the plant, substance or structure is manufactured to be without
2
risks to the health and safety of persons:
3
(a) who, at a workplace, use the plant, substance or structure for
4
a purpose for which it was designed or manufactured; or
5
(b) who handle the substance at a workplace; or
6
(c) who store the plant or substance at a workplace; or
7
(d) who construct the structure at a workplace; or
8
(e) who carry out any reasonably foreseeable activity at a
9
workplace in relation to:
10
(i) the assembly or use of the plant for a purpose for which
11
it was designed or manufactured or the proper storage,
12
decommissioning, dismantling or disposal of the plant;
13
or
14
(ii) the use of the substance for a purpose for which it was
15
designed or manufactured or the proper handling,
16
storage or disposal of the substance; or
17
(iii) the assembly or use of the structure for a purpose for
18
which it was designed or manufactured or the proper
19
demolition or disposal of the structure; or
20
Example: Inspection, operation, cleaning, maintenance or repair of plant.
21
(f) who are at or in the vicinity of a workplace and who are
22
exposed to the plant, substance or structure at the workplace
23
or whose health or safety may be affected by a use or activity
24
referred to in paragraph (a), (b), (c), (d) or (e).
25
(3) The manufacturer must carry out, or arrange the carrying out of,
26
any calculations, analysis, testing or examination that may be
27
necessary for the performance of the duty imposed by
28
subsection (2).
29
(4) The manufacturer must give adequate information to each person
30
to whom the manufacturer provides the plant, substance or
31
structure concerning:
32
(a) each purpose for which the plant, substance or structure was
33
designed or manufactured; and
34
(b) the results of any calculations, analysis, testing or
35
examination referred to in subsection (3), including, in
36
Health and safety duties Part 2
Further duties of persons conducting businesses or undertakings Division 3
Section 24
Work Health and Safety Bill 2011 No. , 2011 29
relation to a substance, any hazardous properties of the
1
substance identified by testing; and
2
(c) any conditions necessary to ensure that the plant, substance
3
or structure is without risks to health and safety when used
4
for a purpose for which it was designed or manufactured or
5
when carrying out any activity referred to in subsection (2)(a)
6
to (e).
7
(5) The manufacturer, on request, must, so far as is reasonably
8
practicable, give current relevant information on the matters
9
referred to in subsection (4) to a person who carries out, or is to
10
carry out, any of the activities referred to in subsection (2)(a) to (e).
11
24 Duties of persons conducting businesses or undertakings that
12
import plant, substances or structures
13
(1) This section applies to a person (the importer) who conducts a
14
business or undertaking that imports:
15
(a) plant that is to be used, or could reasonably be expected to be
16
used, as, or at, a workplace; or
17
(b) a substance that is to be used, or could reasonably be
18
expected to be used, at a workplace; or
19
(c) a structure that is to be used, or could reasonably be expected
20
to be used, as, or at, a workplace.
21
(2) The importer must ensure, so far as is reasonably practicable, that
22
the plant, substance or structure is without risks to the health and
23
safety of persons:
24
(a) who, at a workplace, use the plant, substance or structure for
25
a purpose for which it was designed or manufactured; or
26
(b) who handle the substance at a workplace; or
27
(c) who store the plant or substance at a workplace; or
28
(d) who construct the structure at a workplace; or
29
(e) who carry out any reasonably foreseeable activity at a
30
workplace in relation to:
31
(i) the assembly or use of the plant for a purpose for which
32
it was designed or manufactured or the proper storage,
33
decommissioning, dismantling or disposal of the plant;
34
or
35
Part 2 Health and safety duties
Division 3 Further duties of persons conducting businesses or undertakings
Section 24
30 Work Health and Safety Bill 2011 No. , 2011
(ii) the use of the substance for a purpose for which it was
1
designed or manufactured or the proper handling,
2
storage or disposal of the substance; or
3
(iii) the assembly or use of the structure for a purpose for
4
which it was designed or manufactured or the proper
5
demolition or disposal of the structure; or
6
Example: Inspection, operation, cleaning, maintenance or repair of plant.
7
(f) who are at or in the vicinity of a workplace and who are
8
exposed to the plant, substance or structure at the workplace
9
or whose health or safety may be affected by a use or activity
10
referred to in paragraph (a), (b), (c), (d) or (e).
11
(3) The importer must:
12
(a) carry out, or arrange the carrying out of, any calculations,
13
analysis, testing or examination that may be necessary for the
14
performance of the duty imposed by subsection (2); or
15
(b) ensure that the calculations, analysis, testing or examination
16
have been carried out.
17
(4) The importer must give adequate information to each person to
18
whom the importer provides the plant, substance or structure
19
concerning:
20
(a) each purpose for which the plant, substance or structure was
21
designed or manufactured; and
22
(b) the results of any calculations, analysis, testing or
23
examination referred to in subsection (3), including, in
24
relation to a substance, any hazardous properties of the
25
substance identified by testing; and
26
(c) any conditions necessary to ensure that the plant, substance
27
or structure is without risks to health and safety when used
28
for a purpose for which it was designed or manufactured or
29
when carrying out any activity referred to in subsection (2)(a)
30
to (e).
31
(5) The importer, on request, must, so far as is reasonably practicable,
32
give current relevant information on the matters referred to in
33
subsection (4) to a person who carries out, or is to carry out, any of
34
the activities referred to in subsection (2)(a) to (e).
35
Health and safety duties Part 2
Further duties of persons conducting businesses or undertakings Division 3
Section 25
Work Health and Safety Bill 2011 No. , 2011 31
25 Duties of persons conducting businesses or undertakings that
1
supply plant, substances or structures
2
(1) This section applies to a person (the supplier) who conducts a
3
business or undertaking that supplies:
4
(a) plant that is to be used, or could reasonably be expected to be
5
used, as, or at, a workplace; or
6
(b) a substance that is to be used, or could reasonably be
7
expected to be used, at a workplace; or
8
(c) a structure that is to be used, or could reasonably be expected
9
to be used, as, or at, a workplace.
10
(2) The supplier must ensure, so far as is reasonably practicable, that
11
the plant, substance or structure is without risks to the health and
12
safety of persons:
13
(a) who, at a workplace, use the plant or substance or structure
14
for a purpose for which it was designed or manufactured; or
15
(b) who handle the substance at a workplace; or
16
(c) who store the plant or substance at a workplace; or
17
(d) who construct the structure at a workplace; or
18
(e) who carry out any reasonably foreseeable activity at a
19
workplace in relation to:
20
(i) the assembly or use of the plant for a purpose for which
21
it was designed or manufactured or the proper storage,
22
decommissioning, dismantling or disposal of the plant;
23
or
24
(ii) the use of the substance for a purpose for which it was
25
designed or manufactured or the proper handling,
26
storage or disposal of the substance; or
27
(iii) the assembly or use of the structure for a purpose for
28
which it was designed or manufactured or the proper
29
demolition or disposal of the structure; or
30
Example: Inspection, storage, operation, cleaning, maintenance or repair of
31
plant.
32
(f) who are at or in the vicinity of a workplace and who are
33
exposed to the plant, substance or structure at the workplace
34
or whose health or safety may be affected by a use or activity
35
referred to in paragraph (a), (b), (c), (d) or (e).
36
Part 2 Health and safety duties
Division 3 Further duties of persons conducting businesses or undertakings
Section 26
32 Work Health and Safety Bill 2011 No. , 2011
(3) The supplier must:
1
(a) carry out, or arrange the carrying out of, any calculations,
2
analysis, testing or examination that may be necessary for the
3
performance of the duty imposed by subsection (2); or
4
(b) ensure that the calculations, analysis, testing or examination
5
have been carried out.
6
(4) The supplier must give adequate information to each person to
7
whom the supplier supplies the plant, substance or structure
8
concerning:
9
(a) each purpose for which the plant, substance or structure was
10
designed or manufactured; and
11
(b) the results of any calculations, analysis, testing or
12
examination referred to in subsection (3), including, in
13
relation to a substance, any hazardous properties of the
14
substance identified by testing; and
15
(c) any conditions necessary to ensure that the plant, substance
16
or structure is without risks to health and safety when used
17
for a purpose for which it was designed or manufactured or
18
when carrying out any activity referred to in subsection (2)(a)
19
to (e).
20
(5) The supplier, on request, must, so far as is reasonably practicable,
21
give current relevant information on the matters referred to in
22
subsection (4) to a person who carries out, or is to carry out, any of
23
the activities referred to in subsection (2)(a) to (e).
24
26 Duty of persons conducting businesses or undertakings that
25
install, construct or commission plant or structures
26
(1) This section applies to a person who conducts a business or
27
undertaking that installs, constructs or commissions plant or a
28
structure that is to be used, or could reasonably be expected to be
29
used, as, or at, a workplace.
30
(2) The person must ensure, so far as is reasonably practicable, that the
31
way in which the plant or structure is installed, constructed or
32
commissioned ensures that the plant or structure is without risks to
33
the health and safety of persons:
34
Health and safety duties Part 2
Further duties of persons conducting businesses or undertakings Division 3
Section 26
Work Health and Safety Bill 2011 No. , 2011 33
(a) who install or construct the plant or structure at a workplace;
1
or
2
(b) who use the plant or structure at a workplace for a purpose
3
for which it was installed, constructed or commissioned; or
4
(c) who carry out any reasonably foreseeable activity at a
5
workplace in relation to the proper use, decommissioning or
6
dismantling of the plant or demolition or disposal of the
7
structure; or
8
(d) who are at or in the vicinity of a workplace and whose health
9
or safety may be affected by a use or activity referred to in
10
paragraph (a), (b) or (c).
11
12
Part 2 Health and safety duties
Division 4 Duty of officers, workers and other persons
Section 27
34 Work Health and Safety Bill 2011 No. , 2011
Division 4--Duty of officers, workers and other persons
1
27 Duty of officers
2
(1) If a person conducting a business or undertaking has a duty or
3
obligation under this Act, an officer of the person conducting the
4
business or undertaking must exercise due diligence to ensure that
5
the person conducting the business or undertaking complies with
6
that duty or obligation.
7
(2) Subject to subsection (3), the maximum penalty applicable under
8
Division 5 of this Part for an offence relating to the duty of an
9
officer under this section is the maximum penalty fixed for an
10
officer of a person conducting a business or undertaking for that
11
offence.
12
(3) Despite anything to the contrary in section 33, if the duty or
13
obligation of a person conducting a business or undertaking was
14
imposed under a provision other than a provision of Division 2 or 3
15
of this Part or this Division, the maximum penalty under section 33
16
for an offence by an officer under section 33 in relation to the duty
17
or obligation is the maximum penalty fixed under the provision
18
creating the duty or obligation for an individual who fails to
19
comply with the duty or obligation.
20
(4) An officer of a person conducting a business or undertaking may
21
be convicted or found guilty of an offence under this Act relating
22
to a duty under this section whether or not the person conducting
23
the business or undertaking has been convicted or found guilty of
24
an offence under this Act relating to the duty or obligation.
25
(5) In this section, due diligence includes taking reasonable steps:
26
(a) to acquire and keep up-to-date knowledge of work health and
27
safety matters; and
28
(b) to gain an understanding of the nature of the operations of the
29
business or undertaking of the person conducting the
30
business or undertaking and generally of the hazards and
31
risks associated with those operations; and
32
(c) to ensure that the person conducting the business or
33
undertaking has available for use, and uses, appropriate
34
Health and safety duties Part 2
Duty of officers, workers and other persons Division 4
Section 28
Work Health and Safety Bill 2011 No. , 2011 35
resources and processes to eliminate or minimise risks to
1
health and safety from work carried out as part of the conduct
2
of the business or undertaking; and
3
(d) to ensure that the person conducting the business or
4
undertaking has appropriate processes for receiving and
5
considering information regarding incidents, hazards and
6
risks and responding in a timely way to that information; and
7
(e) to ensure that the person conducting the business or
8
undertaking has, and implements, processes for complying
9
with any duty or obligation of the person conducting the
10
business or undertaking under this Act; and
11
(f) to verify the provision and use of the resources and processes
12
referred to in paragraphs (c) to (e).
13
Examples: For the purposes of paragraph (e), the duties or obligations under this
14
Act of a person conducting a business or undertaking may include:
15
(a) reporting notifiable incidents;
16
(b) consulting
with
workers;
17
(c) ensuring compliance with notices issued under this Act;
18
(d) ensuring the provision of training and instruction to workers
19
about work health and safety;
20
(e) ensuring that health and safety representatives receive their
21
entitlements to training.
22
28 Duties of workers
23
While at work, a worker must:
24
(a) take reasonable care for his or her own health and safety; and
25
(b) take reasonable care that his or her acts or omissions do not
26
adversely affect the health and safety of other persons; and
27
(c) comply, so far as the worker is reasonably able, with any
28
reasonable instruction that is given by the person conducting
29
the business or undertaking to allow the person to comply
30
with this Act; and
31
(d) co-operate with any reasonable policy or procedure of the
32
person conducting the business or undertaking relating to
33
health or safety at the workplace that has been notified to
34
workers.
35
Part 2 Health and safety duties
Division 4 Duty of officers, workers and other persons
Section 29
36 Work Health and Safety Bill 2011 No. , 2011
29 Duties of other persons at the workplace
1
A person at a workplace (whether or not the person has another
2
duty under this Part) must:
3
(a) take reasonable care for his or her own health and safety; and
4
(b) take reasonable care that his or her acts or omissions do not
5
adversely affect the health and safety of other persons; and
6
(c) comply, so far as the person is reasonably able, with any
7
reasonable instruction that is given by the person conducting
8
the business or undertaking to allow the person conducting
9
the business or undertaking to comply with this Act.
10
11
Health and safety duties Part 2
Offences and penalties Division 5
Section 30
Work Health and Safety Bill 2011 No. , 2011 37
Division 5--Offences and penalties
1
30 Health and safety duty
2
In this Division, health and safety duty means a duty imposed
3
under Division 2, 3 or 4 of this Part.
4
31 Reckless conduct--Category 1
5
(1) A person commits a Category 1 offence if:
6
(a) the person has a health and safety duty; and
7
(b) the person, without reasonable excuse, engages in conduct
8
that exposes an individual to whom that duty is owed to a
9
risk of death or serious injury or illness; and
10
(c) the person is reckless as to the risk to an individual of death
11
or serious injury or illness.
12
Penalty:
13
(a) In the case of an offence committed by an individual (other
14
than as a person conducting a business or undertaking or as
15
an officer of a person conducting a business or
16
undertaking)--$300 000 or 5 years imprisonment or both.
17
(b) In the case of an offence committed by an individual as a
18
person conducting a business or undertaking or as an officer
19
of a person conducting a business or undertaking--$600 000
20
or 5 years imprisonment or both.
21
(c) In the case of an offence committed by a body corporate--$3
22
000 000.
23
(2) The prosecution bears the burden of proving that the conduct was
24
engaged in without reasonable excuse.
25
32 Failure to comply with health and safety duty--Category 2
26
A person commits a Category 2 offence if:
27
(a) the person has a health and safety duty; and
28
(b) the person fails to comply with that duty; and
29
(c) the failure exposes an individual to a risk of death or serious
30
injury or illness.
31
Part 2 Health and safety duties
Division 5 Offences and penalties
Section 33
38 Work Health and Safety Bill 2011 No. , 2011
Penalty:
1
(a) In the case of an offence committed by an individual (other
2
than as a person conducting a business or undertaking or as
3
an officer of a person conducting a business or
4
undertaking)--$150 000.
5
(b) In the case of an offence committed by an individual as a
6
person conducting a business or undertaking or as an officer
7
of a person conducting a business or undertaking--$300 000.
8
(c) In the case of an offence committed by a body corporate--$1
9
500 000.
10
33 Failure to comply with health and safety duty--Category 3
11
A person commits a Category 3 offence if:
12
(a) the person has a health and safety duty; and
13
(b) the person fails to comply with that duty.
14
Penalty:
15
(a) In the case of an offence committed by an individual (other
16
than as a person conducting a business or undertaking or as
17
an officer of a person conducting a business or
18
undertaking)--$50 000.
19
(b) In the case of an offence committed by an individual as a
20
person conducting a business or undertaking or as an officer
21
of a person conducting a business or undertaking--$100 000.
22
(c) In the case of an offence committed by a body corporate--
23
$500 000.
24
34 Exceptions
25
(1) A volunteer does not commit an offence under this Division for a
26
failure to comply with a health and safety duty, except a duty under
27
section 28 or 29.
28
(2) An unincorporated association does not commit an offence under
29
this Act, and is not liable for a civil penalty under this Act, for a
30
failure to comply with a duty or obligation imposed on the
31
unincorporated association under this Act.
32
(3)
However:
33
Health and safety duties Part 2
Offences and penalties Division 5
Section 34
Work Health and Safety Bill 2011 No. , 2011 39
(a) an officer of an unincorporated association (other than a
1
volunteer) may be liable for a failure to comply with a duty
2
under section 27; and
3
(b) a member of an unincorporated association may be liable for
4
failure to comply with a duty under section 28 or 29.
5
6
Part 3 Incident notification
Section 35
40 Work Health and Safety Bill 2011 No. , 2011
Part 3--Incident notification
1
2
35 What is a notifiable incident
3
In this Act, notifiable incident means:
4
(a) the death of a person; or
5
(b) a serious injury or illness of a person; or
6
(c) a dangerous incident.
7
36 What is a serious injury or illness
8
In this Part, serious injury or illness of a person means an injury or
9
illness requiring the person to have:
10
(a) immediate treatment as an in-patient in a hospital; or
11
(b) immediate treatment for:
12
(i) the amputation of any part of his or her body; or
13
(ii) a serious head injury; or
14
(iii) a serious eye injury; or
15
(iv) a serious burn; or
16
(v) the separation of his or her skin from an underlying
17
tissue (such as degloving or scalping); or
18
(vi) a spinal injury; or
19
(vii) the loss of a bodily function; or
20
(viii) serious lacerations; or
21
(c) medical treatment within 48 hours of exposure to a
22
substance;
23
and includes any other injury or illness prescribed by the
24
regulations but does not include an illness or injury of a prescribed
25
kind.
26
37 What is a dangerous incident
27
In this Part, a dangerous incident means an incident in relation to a
28
workplace that exposes a worker or any other person to a serious
29
risk to a person's health or safety emanating from an immediate or
30
imminent exposure to:
31
Incident notification Part 3
Section 38
Work Health and Safety Bill 2011 No. , 2011 41
(a) an uncontrolled escape, spillage or leakage of a substance; or
1
(b) an uncontrolled implosion, explosion or fire; or
2
(c) an uncontrolled escape of gas or steam; or
3
(d) an uncontrolled escape of a pressurised substance; or
4
(e) electric shock; or
5
(f) the fall or release from a height of any plant, substance or
6
thing; or
7
(g) the collapse, overturning, failure or malfunction of, or
8
damage to, any plant that is required to be authorised for use
9
in accordance with the regulations; or
10
(h) the collapse or partial collapse of a structure; or
11
(i) the collapse or failure of an excavation or of any shoring
12
supporting an excavation; or
13
(j) the inrush of water, mud or gas in workings, in an
14
underground excavation or tunnel; or
15
(k) the interruption of the main system of ventilation in an
16
underground excavation or tunnel; or
17
(l) any other event prescribed by the regulations;
18
but does not include an incident of a prescribed kind.
19
38 Duty to notify of notifiable incidents
20
(1) A person who conducts a business or undertaking must ensure that
21
the regulator is notified immediately after becoming aware that a
22
notifiable incident arising out of the conduct of the business or
23
undertaking has occurred.
24
Penalty:
25
(a) In the case of an individual--$10 000.
26
(b) In the case of a body corporate--$50 000.
27
(2) The notice must be given in accordance with this section and by
28
the fastest possible means.
29
(3) The notice must be given:
30
(a) by telephone; or
31
(b)
in
writing.
32
Part 3 Incident notification
Section 39
42 Work Health and Safety Bill 2011 No. , 2011
Example: The written notice can be given by facsimile, email or other electronic
1
means.
2
(4) A person giving notice by telephone must:
3
(a) give the details of the incident requested by the regulator; and
4
(b) if required by the regulator, give a written notice of the
5
incident within 48 hours of that requirement being made.
6
(5) A written notice must be in a form, or contain the details, approved
7
by the regulator.
8
(6) If the regulator receives a notice by telephone and a written notice
9
is not required, the regulator must give the person conducting the
10
business or undertaking:
11
(a) details of the information received; or
12
(b) an acknowledgement of receiving the notice.
13
(7) A person conducting a business or undertaking must keep a record
14
of each notifiable incident for at least 5 years from the day that
15
notice of the incident is given to the regulator under this section.
16
Penalty:
17
(a) In the case of an individual--$5000.
18
(b) In the case of a body corporate--$25 000.
19
39 Duty to preserve incident sites
20
(1) The person with management or control of a workplace at which a
21
notifiable incident has occurred must ensure so far as is reasonably
22
practicable, that the site where the incident occurred is not
23
disturbed until an inspector arrives at the site or any earlier time
24
that an inspector directs.
25
Penalty:
26
(a) In the case of an individual--$10 000.
27
(b) In the case of a body corporate--$50 000.
28
(2) In subsection (1) a reference to a site includes any plant, substance,
29
structure or thing associated with the notifiable incident.
30
(3) Subsection (1) does not prevent any action:
31
Incident notification Part 3
Section 39
Work Health and Safety Bill 2011 No. , 2011 43
(a) to assist an injured person; or
1
(b) to remove a deceased person; or
2
(c) that is essential to make the site safe or to minimise the risk
3
of a further notifiable incident; or
4
(d) that is associated with a police investigation; or
5
(e) for which an inspector or the regulator has given permission.
6
7
Part 4 Authorisations
Section 40
44 Work Health and Safety Bill 2011 No. , 2011
Part 4--Authorisations
1
2
40 Meaning of authorised
3
In this Part, authorised means authorised by a licence, permit,
4
registration or other authority (however described) as required by
5
the regulations.
6
41 Requirements for authorisation of workplaces
7
A person must not conduct a business or undertaking at a
8
workplace or direct or allow a worker to carry out work at a
9
workplace if:
10
(a) the regulations require the workplace or workplaces in that
11
class of workplace to be authorised; and
12
(b) the workplace is not authorised in accordance with the
13
regulations.
14
Penalty:
15
(a) In the case of an individual--$50 000.
16
(b) In the case of a body corporate--$250 000.
17
42 Requirements for authorisation of plant or substance
18
(1) A person must not use plant or a substance at a workplace if:
19
(a) the regulations require the plant or substance or its design to
20
be authorised; and
21
(b) the plant or substance or its design is not authorised in
22
accordance with the regulations.
23
Penalty:
24
(a) In the case of an individual--$20 000.
25
(b) In the case of a body corporate--$100 000.
26
(2) A person who conducts a business or undertaking must not direct
27
or allow a worker to use the plant or substance at a workplace if:
28
(a) the regulations require the plant or substance or its design to
29
be authorised; and
30
Authorisations Part 4
Section 43
Work Health and Safety Bill 2011 No. , 2011 45
(b) the plant or substance or its design is not authorised in
1
accordance with the regulations.
2
Penalty:
3
(a) In the case of an individual--$20 000.
4
(b) In the case of a body corporate--$100 000.
5
43 Requirements for authorisation of work
6
(1) A person must not carry out work at a workplace if:
7
(a) the regulations require the work, or class of work, to be
8
carried out by, or on behalf of, a person who is authorised;
9
and
10
(b) the person, or the person on whose behalf the work is carried
11
out, is not authorised in accordance with the regulations.
12
Penalty:
13
(a) In the case of an individual--$20 000.
14
(b) In the case of a body corporate--$100 000.
15
(2) A person who conducts a business or undertaking must not direct
16
or allow a worker to carry out work at a workplace if:
17
(a) the regulations require the work, or class of work, to be
18
carried out by, or on behalf of, a person who is authorised;
19
and
20
(b) the person, or the person on whose behalf the work is to be
21
carried out, is not authorised in accordance with the
22
regulations.
23
Penalty:
24
(a) In the case of an individual--$20 000.
25
(b) In the case of a body corporate--$100 000.
26
44 Requirements for prescribed qualifications or experience
27
(1) A person must not carry out work at a workplace if:
28
(a) the regulations require the work, or class of work, to be
29
carried out by, or under the supervision of, a person who has
30
prescribed qualifications or experience; and
31
Part 4 Authorisations
Section 45
46 Work Health and Safety Bill 2011 No. , 2011
(b) the person does not have the prescribed qualifications or
1
experience or the work is not carried out under the
2
supervision of a person who has the prescribed qualifications
3
or experience.
4
Penalty:
5
(a) In the case of an individual--$20 000.
6
(b) In the case of a body corporate--$100 000.
7
(2) A person who conducts a business or undertaking must not direct
8
or allow a worker to carry out work at a workplace if:
9
(a) the regulations require the work, or class of work, to be
10
carried out by, or under the supervision of, a person who has
11
prescribed qualifications or experience; and
12
(b) the worker does not have the prescribed qualifications or
13
experience or the work is not carried out under the
14
supervision of a person who has the prescribed qualifications
15
or experience.
16
Penalty:
17
(a) In the case of an individual--$20 000.
18
(b) In the case of a body corporate--$100 000.
19
45 Requirement to comply with conditions of authorisation
20
A person must comply with the conditions of any authorisation
21
given to that person under the regulations.
22
Penalty:
23
(a) In the case of an individual--$20 000.
24
(b) In the case of a body corporate--$100 000.
25
26
Consultation, representation and participation Part 5
Consultation, co-operation and co-ordination between duty holders Division 1
Section 46
Work Health and Safety Bill 2011 No. , 2011 47
Part 5--Consultation, representation and
1
participation
2
Division 1--Consultation, co-operation and co-ordination
3
between duty holders
4
46 Duty to consult with other duty holders
5
If more than one person has a duty in relation to the same matter
6
under this Act, each person with the duty must, so far as is
7
reasonably practicable, consult, co-operate and co-ordinate
8
activities with all other persons who have a duty in relation to the
9
same matter.
10
Penalty:
11
(a) In the case of an individual--$20 000.
12
(b) In the case of a body corporate--$100 000.
13
14
Part 5 Consultation, representation and participation
Division 2 Consultation with workers
Section 47
48 Work Health and Safety Bill 2011 No. , 2011
Division 2--Consultation with workers
1
47 Duty to consult workers
2
(1) The person conducting a business or undertaking must, so far as is
3
reasonably practicable, consult, in accordance with this Division
4
and the regulations, with workers who carry out work for the
5
business or undertaking who are, or are likely to be, directly
6
affected by a matter relating to work health or safety.
7
Penalty:
8
(a) In the case of an individual--$20 000.
9
(b) In the case of a body corporate--$100 000.
10
(2) If the person conducting the business or undertaking and the
11
workers have agreed to procedures for consultation, the
12
consultation must be in accordance with those procedures.
13
(3) The agreed procedures must not be inconsistent with section 48.
14
48 Nature of consultation
15
(1) Consultation under this Division requires:
16
(a) that relevant information about the matter is shared with
17
workers; and
18
(b) that workers be given a reasonable opportunity:
19
(i) to express their views and to raise work health or safety
20
issues in relation to the matter; and
21
(ii) to contribute to the decision-making process relating to
22
the matter; and
23
(c) that the views of workers are taken into account by the
24
person conducting the business or undertaking; and
25
(d) that the workers consulted are advised of the outcome of the
26
consultation in a timely manner.
27
(2) If the workers are represented by a health and safety representative,
28
the consultation must involve that representative.
29
Consultation, representation and participation Part 5
Consultation with workers Division 2
Section 49
Work Health and Safety Bill 2011 No. , 2011 49
49 When consultation is required
1
Consultation under this Division is required in relation to the
2
following health and safety matters:
3
(a) when identifying hazards and assessing risks to health and
4
safety arising from the work carried out or to be carried out
5
by the business or undertaking;
6
(b) when making decisions about ways to eliminate or minimise
7
those risks;
8
(c) when making decisions about the adequacy of facilities for
9
the welfare of workers;
10
(d) when proposing changes that may affect the health or safety
11
of workers;
12
(e) when making decisions about the procedures for:
13
(i) consulting with workers; or
14
(ii) resolving work health or safety issues at the workplace;
15
or
16
(iii) monitoring the health of workers; or
17
(iv) monitoring the conditions at any workplace under the
18
management or control of the person conducting the
19
business or undertaking; or
20
(v) providing information and training for workers;
21
(f) when carrying out any other activity prescribed by the
22
regulations for the purposes of this section.
23
24
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 50
50 Work Health and Safety Bill 2011 No. , 2011
Division 3--Health and safety representatives
1
Subdivision 1--Request for election of health and safety
2
representatives
3
50 Request for election of health and safety representative
4
A worker who carries out work for a business or undertaking may
5
ask the person conducting the business or undertaking to facilitate
6
the conduct of an election for 1 or more health and safety
7
representatives to represent workers who carry out work for the
8
business or undertaking.
9
Subdivision 2--Determination of work groups
10
51 Determination of work groups
11
(1) If a request is made under section 50, the person conducting the
12
business or undertaking must facilitate the determination of 1 or
13
more work groups of workers.
14
(2) The purpose of determining a work group is to facilitate the
15
representation of workers in the work group by 1 or more health
16
and safety representatives.
17
(3) A work group may be determined for workers at 1 or more
18
workplaces.
19
52 Negotiations for agreement for work group
20
(1) A work group is to be determined by negotiation and agreement
21
between:
22
(a) the person conducting the business or undertaking; and
23
(b) the workers who will form the work group or their
24
representatives.
25
(2) The person conducting the business or undertaking must take all
26
reasonable steps to commence negotiations with the workers within
27
14 days after a request is made under section 50.
28
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 53
Work Health and Safety Bill 2011 No. , 2011 51
(3) The purpose of the negotiations is to determine:
1
(a) the number and composition of work groups to be
2
represented by health and safety representatives; and
3
(b) the number of health and safety representatives and deputy
4
health and safety representatives (if any) to be elected; and
5
(c) the workplace or workplaces to which the work groups will
6
apply.
7
(4) The parties to an agreement concerning the determination of a
8
work group or groups may, at any time, negotiate a variation of the
9
agreement.
10
(5) The person conducting the business or undertaking must, if asked
11
by a worker, negotiate with the worker's representative in
12
negotiations under this section (including negotiations for a
13
variation of an agreement) and must not exclude the representative
14
from those negotiations.
15
Penalty:
16
(a) In the case of an individual--$10 000.
17
(b) In the case of a body corporate--$50 000.
18
(6) The regulations may prescribe the matters that must be taken into
19
account in negotiations for and determination of work groups and
20
variations of agreements concerning work groups.
21
53 Notice to workers
22
(1) The person conducting a business or undertaking involved in
23
negotiations to determine a work group must, as soon as
24
practicable after the negotiations are completed, notify the workers
25
of the outcome of the negotiations and of any work groups
26
determined by agreement.
27
Penalty:
28
(a) In the case of an individual--$2000.
29
(b) In the case of a body corporate--$10 000.
30
(2) The person conducting a business or undertaking involved in
31
negotiations for the variation of an agreement concerning the
32
determination of a work group or groups must, as soon as
33
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 54
52 Work Health and Safety Bill 2011 No. , 2011
practicable after the negotiations are completed, notify the workers
1
of the outcome of the negotiations and of the variation (if any) to
2
the agreement.
3
Penalty:
4
(a) In the case of an individual--$2000.
5
(b) In the case of a body corporate--$10 000.
6
54 Failure of negotiations
7
(1) If there is a failure of negotiations (including negotiations
8
concerning the variation of an agreement), any person who is or
9
would be a party to the negotiations may ask the regulator to
10
appoint an inspector for the purposes of this section.
11
(2) An inspector appointed under subsection (1) may decide:
12
(a) the matters referred to in section 52(3), or any of those
13
matters which is the subject of the proposed variation (as the
14
case requires); or
15
(b) that work groups should not be determined or that the
16
agreement should not be varied (as the case requires).
17
(3) For the purposes of this section, there is a failure of negotiations
18
if:
19
(a) the person conducting the business or undertaking has not
20
taken all reasonable steps to commence negotiations with the
21
workers and negotiations have not commenced within 14
22
days after:
23
(i) a request is made under section 50; or
24
(ii) a party to the agreement requests the variation of the
25
agreement; or
26
(b) agreement cannot be reached on a matter relating to the
27
determination of a work group (or the variation of an
28
agreement concerning a work group) within a reasonable
29
time after negotiations commence.
30
(4) A decision under this section is taken to be an agreement under
31
section 52.
32
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 55
Work Health and Safety Bill 2011 No. , 2011 53
Subdivision 3--Multiple-business work groups
1
55 Determination of work groups of multiple businesses
2
(1) Work groups may be determined for workers carrying out work for
3
2 or more persons conducting businesses or undertakings at 1 or
4
more workplaces.
5
(2) The particulars of the work groups are to be determined by
6
negotiation and agreement, in accordance with section 56, between
7
each of the persons conducting the businesses or undertakings and
8
the workers.
9
(3) The parties to an agreement concerning the determination of a
10
work group or groups may, at any time, negotiate a variation of the
11
agreement.
12
(4) The determination of 1 or more work groups under this
13
Subdivision does not:
14
(a) prevent the determination under this Subdivision or
15
Subdivision 2 of any other work group of the workers
16
concerned; or
17
(b) affect any work groups of those workers that have already
18
been determined under this Subdivision or Subdivision 2.
19
56 Negotiation of agreement for work groups of multiple businesses
20
(1) Negotiations concerning work groups under this Subdivision must
21
be directed only at the following:
22
(a) the number and composition of work groups to be
23
represented by health and safety representatives;
24
(b) the number of health and safety representatives and deputy
25
health and safety representatives (if any) for each work
26
group;
27
(c) the workplace or workplaces to which the work groups will
28
apply;
29
(d) the businesses or undertakings to which the work groups will
30
apply.
31
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 57
54 Work Health and Safety Bill 2011 No. , 2011
(2) A person conducting a business or undertaking must, if asked by a
1
worker, negotiate with the worker's representative in negotiations
2
under this section (including negotiations for a variation of an
3
agreement) and must not exclude the representative from those
4
negotiations.
5
Penalty:
6
(a) In the case of an individual--$10 000.
7
(b) In the case of a body corporate--$50 000.
8
(3) If agreement cannot be reached on a matter relating to the
9
determination of a work group (or a variation of an agreement)
10
within a reasonable time after negotiations commence under this
11
Subdivision, any party to the negotiations may ask the regulator to
12
appoint an inspector to assist the negotiations in relation to that
13
matter.
14
(4) The regulations may prescribe the matters that must be taken into
15
account in negotiations for and determination of work groups and
16
variations of agreements.
17
57 Notice to workers
18
(1) A person conducting a business or undertaking involved in
19
negotiations to determine a work group must, as soon as
20
practicable after the negotiations are completed, notify the workers
21
of the outcome of the negotiations and of any work groups
22
determined by agreement.
23
Penalty:
24
(a) In the case of an individual--$2000.
25
(b) In the case of a body corporate--$10 000.
26
(2) A person conducting a business or undertaking involved in
27
negotiations for the variation of an agreement concerning the
28
determination of a work group or groups must, as soon as
29
practicable after the negotiations are completed, notify the workers
30
of the outcome of the negotiations and of the variation (if any) to
31
the agreement.
32
Penalty:
33
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 58
Work Health and Safety Bill 2011 No. , 2011 55
(a) In the case of an individual--$2000.
1
(b) In the case of a body corporate--$10 000.
2
58 Withdrawal from negotiations or agreement involving multiple
3
businesses
4
(1) A party to a negotiation for an agreement, or to an agreement,
5
concerning a work group under this Subdivision may withdraw
6
from the negotiation or agreement at any time by giving reasonable
7
notice (in writing) to the other parties.
8
(2) If a party withdraws from an agreement concerning a work group
9
under this Subdivision:
10
(a) the other parties must negotiate a variation to the agreement
11
in accordance with section 56; and
12
(b) the withdrawal does not affect the validity of the agreement
13
between the other parties in the meantime.
14
59 Effect of Subdivision on other arrangements
15
To avoid doubt, nothing in this Subdivision affects the capacity of
16
2 or more persons conducting businesses or undertakings and their
17
workers to enter into other agreements or make other
18
arrangements, in addition to complying with this Part, concerning
19
the representation of those workers.
20
Subdivision 4--Election of health and safety representatives
21
60 Eligibility to be elected
22
A worker is:
23
(a) eligible to be elected as a health and safety representative for
24
a work group only if he or she is a member of that work
25
group; and
26
(b) not eligible to be elected as a health and safety representative
27
if he or she is disqualified under section 65 from being a
28
health and safety representative.
29
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 61
56 Work Health and Safety Bill 2011 No. , 2011
61 Procedure for election of health and safety representatives
1
(1) The workers in a work group may determine how an election of a
2
health and safety representative for the work group is to be
3
conducted.
4
(2) However, an election must comply with the procedures (if any)
5
prescribed by the regulations.
6
(3) If a majority of the workers in a work group so determine, the
7
election may be conducted with the assistance of a union or other
8
person or organisation.
9
(4) The person conducting the business or undertaking to which the
10
work group relates must provide any resources, facilities and
11
assistance that are reasonably necessary or are prescribed by the
12
regulations to enable elections to be conducted.
13
Penalty:
14
(a) In the case of an individual--$10 000.
15
(b) In the case of a body corporate--$50 000.
16
62 Eligibility to vote
17
(1) A health and safety representative for a work group is to be elected
18
by members of that work group.
19
(2) All workers in a work group are entitled to vote for the election of
20
a health and safety representative for that work group.
21
63 When election not required
22
If the number of candidates for election as a health and safety
23
representative for a work group equals the number of vacancies,
24
the election need not be conducted and each candidate is to be
25
taken to have been elected as a health and safety representative for
26
the work group.
27
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 64
Work Health and Safety Bill 2011 No. , 2011 57
64 Term of office of health and safety representative
1
(1) A health and safety representative for a work group holds office for
2
3 years.
3
(2) However a person ceases to hold office as a health and safety
4
representative for a work group if:
5
(a) the person resigns as a health and safety representative for
6
the work group by written notice given to the person
7
conducting the relevant business or undertaking; or
8
(b) the person ceases to be a worker in the work group for which
9
he or she was elected as a health and safety representative; or
10
(c) the person is disqualified under section 65 from acting as a
11
health and safety representative; or
12
(d) the person is removed from that position by a majority of the
13
members of the work group in accordance with the
14
regulations.
15
(3) A health and safety representative is eligible for re-election.
16
65 Disqualification of health and safety representatives
17
(1) An application may be made to a court to disqualify a health and
18
safety representative on the ground that the representative has:
19
(a) exercised a power or performed a function as a health and
20
safety representative for an improper purpose; or
21
(b) used or disclosed any information he or she acquired as a
22
health and safety representative for a purpose other than in
23
connection with the role of health and safety representative.
24
(2) The following persons may make an application under this section:
25
(a) any person adversely affected by:
26
(i) the exercise of a power or the performance of a function
27
referred to in subsection (1)(a); or
28
(ii) the use or disclosure of information referred to in
29
subsection (1)(b);
30
(b)
the
regulator.
31
Part 5 Consultation, representation and participation
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Section 66
58 Work Health and Safety Bill 2011 No. , 2011
(3) If the court is satisfied that a ground in subsection (1) is made out,
1
the court may disqualify the health and safety representative for a
2
specified period or indefinitely.
3
66 Immunity of health and safety representatives
4
A health and safety representative is not personally liable for
5
anything done or omitted to be done in good faith:
6
(a) in exercising a power or performing a function under this
7
Act; or
8
(b) in the reasonable belief that the thing was done or omitted to
9
be done in the exercise of a power or the performance of a
10
function under this Act.
11
67 Deputy health and safety representatives
12
(1) Each deputy health and safety representative for a work group is to
13
be elected in the same way as a health and safety representative for
14
the work group.
15
(2) If the health and safety representative for a work group ceases to
16
hold office or is unable (because of absence or any other reason) to
17
exercise the powers or perform the functions of a health and safety
18
representative under this Act:
19
(a) the powers and functions may be exercised or performed by a
20
deputy health and safety representative for the work group;
21
and
22
(b) this Act applies in relation to the deputy health and safety
23
representative as if he or she were the health and safety
24
representative.
25
(3) Sections 64, 65, 66, 72 and 73 apply to deputy health and safety
26
representatives in the same way as they apply to health and safety
27
representatives.
28
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 68
Work Health and Safety Bill 2011 No. , 2011 59
Subdivision 5--Powers and functions of health and safety
1
representatives
2
68 Powers and functions of health and safety representatives
3
(1) The powers and functions of a health and safety representative for
4
a work group are:
5
(a) to represent the workers in the work group in matters relating
6
to work health and safety; and
7
(b) to monitor the measures taken by the person conducting the
8
relevant business or undertaking or that person's
9
representative in compliance with this Act in relation to
10
workers in the work group; and
11
(c) to investigate complaints from members of the work group
12
relating to work health and safety; and
13
(d) to inquire into anything that appears to be a risk to the health
14
or safety of workers in the work group, arising from the
15
conduct of the business or undertaking.
16
(2) In exercising a power or performing a function, the health and
17
safety representative may:
18
(a) inspect the workplace or any part of the workplace at which a
19
worker in the work group works:
20
(i) at any time after giving reasonable notice to the person
21
conducting the business or undertaking at that
22
workplace; and
23
(ii) at any time, without notice, in the event of an incident,
24
or any situation involving a serious risk to the health or
25
safety of a person emanating from an immediate or
26
imminent exposure to a hazard; and
27
(b) accompany an inspector during an inspection of the
28
workplace or part of the workplace at which a worker in the
29
work group works; and
30
(c) with the consent of a worker that the health and safety
31
representative represents, be present at an interview
32
concerning work health and safety between the worker and:
33
(i) an inspector; or
34
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 69
60 Work Health and Safety Bill 2011 No. , 2011
(ii) the person conducting the business or undertaking at
1
that workplace or the person's representative; and
2
(d) with the consent of 1 or more workers that the health and
3
safety representative represents, be present at an interview
4
concerning work health and safety between a group of
5
workers, which includes the workers who gave the consent,
6
and:
7
(i) an inspector; or
8
(ii) the person conducting the business or undertaking at
9
that workplace or the person's representative; and
10
(e) request the establishment of a health and safety committee;
11
and
12
(f) receive information concerning the work health and safety of
13
workers in the work group; and
14
(g) whenever necessary, request the assistance of any person.
15
Note:
A health and safety representative also has a power under Division 6
16
of this Part to direct work to cease in certain circumstances and under
17
Division 7 of this Part to issue provisional improvement notices.
18
(3) Despite subsection (2)(f), a health and safety representative is not
19
entitled to have access to any personal or medical information
20
concerning a worker without the worker's consent unless the
21
information is in a form that:
22
(a) does not identify the worker; and
23
(b) could not reasonably be expected to lead to the identification
24
of the worker.
25
(4) Nothing in this Act imposes or is taken to impose a duty on a
26
health and safety representative in that capacity.
27
69 Powers and functions generally limited to the particular work
28
group
29
(1) A health and safety representative for a work group may exercise
30
powers and perform functions under this Act only in relation to
31
matters that affect, or may affect, workers in that group.
32
(2) Subsection (1) does not apply if:
33
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 70
Work Health and Safety Bill 2011 No. , 2011 61
(a) there is a serious risk to health or safety emanating from an
1
immediate or imminent exposure to a hazard that affects or
2
may affect a member of another work group; or
3
(b) a member of another work group asks for the representative's
4
assistance;
5
and the health and safety representative (and any deputy health and
6
safety representative) for that other work group is found, after
7
reasonable inquiry, to be unavailable.
8
(3) In this section, another work group means another work group of
9
workers carrying out work for a business or undertaking to which
10
the work group that the health and safety representative represents
11
relates.
12
Subdivision 6--Obligations of person conducting business or
13
undertaking to health and safety representatives
14
70 General obligations of person conducting business or
15
undertaking
16
(1) The person conducting a business or undertaking must:
17
(a) consult, so far as is reasonably practicable, on work health
18
and safety matters with any health and safety representative
19
for a work group of workers carrying out work for the
20
business or undertaking; and
21
(b) confer with a health and safety representative for a work
22
group, whenever reasonably requested by the representative,
23
for the purpose of ensuring the health and safety of the
24
workers in the work group; and
25
(c) allow any health and safety representative for the work group
26
to have access to information that the person has relating to:
27
(i) hazards (including associated risks) at the workplace
28
affecting workers in the work group; and
29
(ii) the health and safety of the workers in the work group;
30
and
31
(d) with the consent of a worker that the health and safety
32
representative represents, allow the health and safety
33
representative to be present at an interview concerning work
34
health and safety between the worker and:
35
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 70
62 Work Health and Safety Bill 2011 No. , 2011
(i) an inspector; or
1
(ii) the person conducting the business or undertaking at
2
that workplace or the person's representative; and
3
(e) with the consent of 1 or more workers that the health and
4
safety representative represents, allow the health and safety
5
representative to be present at an interview concerning work
6
health and safety between a group of workers, which includes
7
the workers who gave the consent, and:
8
(i) an inspector; or
9
(ii) the person conducting the business or undertaking at
10
that workplace or the person's representative; and
11
(f) provide any resources, facilities and assistance to a health
12
and safety representative for the work group that are
13
reasonably necessary or prescribed by the regulations to
14
enable the representative to exercise his or her powers or
15
perform his or her functions under this Act; and
16
(g) allow a person assisting a health and safety representative for
17
the work group to have access to the workplace if that is
18
necessary to enable the assistance to be provided; and
19
(h) permit a health and safety representative for the work group
20
to accompany an inspector during an inspection of any part
21
of the workplace where a worker in the work group works;
22
and
23
(i) provide any other assistance to the health and safety
24
representative for the work group that may be required by the
25
regulations.
26
Penalty:
27
(a) In the case of an individual--$10 000.
28
(b) In the case of a body corporate--$50 000.
29
(2) The person conducting a business or undertaking must allow a
30
health and safety representative to spend such time as is reasonably
31
necessary to exercise his or her powers and perform his or her
32
functions under this Act.
33
Penalty:
34
(a) In the case of an individual--$10 000.
35
(b) In the case of a body corporate--$50 000.
36
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 71
Work Health and Safety Bill 2011 No. , 2011 63
(3) Any time that a health and safety representative spends for the
1
purposes of exercising his or her powers or performing his or her
2
functions under this Act must be with the pay that he or she would
3
otherwise be entitled to receive for performing his or her normal
4
duties during that period.
5
71 Exceptions from obligations under section 70(1)
6
(1) This section applies despite section 70(1).
7
(2) The person conducting a business or undertaking must not allow a
8
health and safety representative to have access to any personal or
9
medical information concerning a worker without the worker's
10
consent unless the information is in a form that:
11
(a) does not identify the worker; and
12
(b) could not reasonably be expected to lead to the identification
13
of the worker.
14
Penalty:
15
(a) In the case of an individual--$10 000.
16
(b) In the case of a body corporate--$50 000.
17
(3) The person conducting a business or undertaking is not required to
18
give financial assistance to a health and safety representative for
19
the purpose of the assistance referred to in section 70(1)(g).
20
(4) The person conducting a business or undertaking is not required to
21
allow a person assisting a health and safety representative for a
22
work group to have access to the workplace:
23
(a) if the assistant has had his or her WHS entry permit revoked;
24
or
25
(b) during any period that the assistant's WHS entry permit is
26
suspended or the assistant is disqualified from holding a
27
WHS entry permit.
28
(5) The person conducting a business or undertaking may refuse on
29
reasonable grounds to grant access to the workplace to a person
30
assisting a health and safety representative for a work group.
31
(6) If access is refused to a person assisting a health and safety
32
representative under subsection (5), the health and safety
33
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 72
64 Work Health and Safety Bill 2011 No. , 2011
representative may ask the regulator to appoint an inspector to
1
assist in resolving the matter.
2
72 Obligation to train health and safety representatives
3
(1) The person conducting a business or undertaking must, if requested
4
by a health and safety representative for a work group for that
5
business or undertaking, allow the health and safety representative
6
to attend a course of training in work health and safety that is:
7
(a) approved by the regulator; and
8
(b) a course that the health and safety representative is entitled
9
under the regulations to attend; and
10
(c) subject to subsection (5), chosen by the health and safety
11
representative, in consultation with the person conducting the
12
business or undertaking.
13
(2) The person conducting the business or undertaking must:
14
(a) as soon as practicable within the period of 3 months after the
15
request is made, allow the health and safety representative
16
time off work to attend the course of training; and
17
(b) pay the course fees and any other reasonable costs associated
18
with the health and safety representative's attendance at the
19
course of training.
20
(3)
If:
21
(a) a health and safety representative represents a work group of
22
the workers of more than 1 business or undertaking; and
23
(b) the person conducting any of those businesses or
24
undertakings has complied with this section in relation to the
25
representative;
26
each of the persons conducting those businesses or undertakings is
27
to be taken to have complied with this section in relation to the
28
representative.
29
(4) Any time that a health and safety representative is given off work
30
to attend the course of training must be with the pay that he or she
31
would otherwise be entitled to receive for performing his or her
32
normal duties during that period.
33
Consultation, representation and participation Part 5
Health and safety representatives Division 3
Section 73
Work Health and Safety Bill 2011 No. , 2011 65
(5) If agreement cannot be reached between the person conducting the
1
business or undertaking and the health and safety representative
2
within the time required by subsection (2) as to the matters set out
3
in subsections (1)(c) and (2), either party may ask the regulator to
4
appoint an inspector to decide the matter.
5
(6) The inspector may decide the matter in accordance with this
6
section.
7
(7) A person conducting a business or undertaking must allow a health
8
and safety representative to attend a course decided by the
9
inspector and pay the costs decided by the inspector under
10
subsection (6).
11
Penalty:
12
(a) In the case of an individual--$10 000.
13
(b) In the case of a body corporate--$50 000.
14
73 Obligation to share costs if multiple businesses or undertakings
15
(1) If a health and safety representative, or deputy health and safety
16
representative (if any), represents a work group of workers
17
carrying out work for 2 or more persons conducting businesses or
18
undertakings:
19
(a) the costs of the representative exercising powers and
20
performing functions under this Act; and
21
(b) the costs referred to in section 72(2)(b);
22
for which any of the persons conducting those businesses or
23
undertakings are liable must be apportioned equally between each
24
of those persons unless they agree otherwise.
25
(2) An agreement to apportion the costs in another way may be varied
26
at any time by negotiation and agreement between each of the
27
persons conducting the businesses or undertakings.
28
74 List of health and safety representatives
29
(1) A person conducting a business or undertaking must ensure that:
30
(a) a list of each health and safety representative and deputy
31
health and safety representative (if any) for each work group
32
Part 5 Consultation, representation and participation
Division 3 Health and safety representatives
Section 74
66 Work Health and Safety Bill 2011 No. , 2011
of workers carrying out work for the business or undertaking
1
is prepared and kept up to date; and
2
(b) a copy of the up-to-date list is displayed:
3
(i) at the principal place of business of the business or
4
undertaking; and
5
(ii) at any other workplace that is appropriate taking into
6
account the constitution of the relevant work group or
7
work groups;
8
in a manner that is readily accessible to workers in the
9
relevant work group or work groups.
10
Penalty:
11
(a) In the case of an individual--$2000.
12
(b) In the case of a body corporate--$10 000.
13
(2) A person conducting a business or undertaking must provide a
14
copy of the up-to-date list prepared under subsection (1) to the
15
regulator as soon as practicable after it is prepared.
16
17
Consultation, representation and participation Part 5
Health and safety committees Division 4
Section 75
Work Health and Safety Bill 2011 No. , 2011 67
Division 4--Health and safety committees
1
75 Health and safety committees
2
(1) The person conducting a business or undertaking at a workplace
3
must establish a health and safety committee for the business or
4
undertaking or part of the business or undertaking:
5
(a) within 2 months after being requested to do so by:
6
(i) a health and safety representative for a work group of
7
workers carrying out work at that workplace; or
8
(ii) 5 or more workers at that workplace; or
9
(b) if required by the regulations to do so, within the time
10
prescribed by the regulations.
11
Penalty:
12
(a) In the case of an individual--$5000.
13
(b) In the case of a body corporate--$25 000.
14
(1A) Section 4K of the Crimes Act 1914 does not apply in relation to the
15
offence in subsection (1).
16
(2) A person conducting a business or undertaking at a workplace may
17
establish a health and safety committee for the workplace or part of
18
the workplace on the person's own initiative.
19
Note:
If a health and safety committee is not required to be established, other
20
consultation procedures can be established for a workplace--see
21
Division 2 of this Part.
22
76 Constitution of committee
23
(1) Subject to subsections (2) to (4), the constitution of a health and
24
safety committee may be agreed between the person conducting
25
the business or undertaking and the workers at the workplace.
26
(2) If there is a health and safety representative at a workplace, that
27
representative, if he or she consents, is a member of the committee.
28
(3) If there are 2 or more health and safety representatives at a
29
workplace, those representatives may choose 1 or more of their
30
number (who consent) to be members of the committee.
31
Part 5 Consultation, representation and participation
Division 4 Health and safety committees
Section 77
68 Work Health and Safety Bill 2011 No. , 2011
(4) At least half of the members of the committee must be workers
1
who are not nominated by the person conducting the business or
2
undertaking.
3
(5) If agreement is not reached under this section within a reasonable
4
time, any party may ask the regulator to appoint an inspector to
5
decide the matter.
6
(6) An inspector appointed on a request under subsection (5) may
7
decide the constitution of the health and safety committee or that
8
the committee should not be established.
9
(7) A decision of an inspector under this section is taken to be an
10
agreement under this section between the parties.
11
77 Functions of committee
12
The functions of a health and safety committee are:
13
(a) to facilitate co-operation between the person conducting a
14
business or undertaking and workers in instigating,
15
developing and carrying out measures designed to ensure the
16
workers' health and safety at work; and
17
(b) to assist in developing standards, rules and procedures
18
relating to health and safety that are to be followed or
19
complied with at the workplace; and
20
(c) any other functions prescribed by the regulations or agreed
21
between the person conducting the business or undertaking
22
and the committee.
23
78 Meetings of committee
24
A health and safety committee must meet:
25
(a) at least once every 3 months; and
26
(b) at any reasonable time at the request of at least half of the
27
members of the committee.
28
79 Duties of person conducting business or undertaking
29
(1) The person conducting a business or undertaking must allow each
30
member of the health and safety committee to spend the time that
31
Consultation, representation and participation Part 5
Health and safety committees Division 4
Section 79
Work Health and Safety Bill 2011 No. , 2011 69
is reasonably necessary to attend meetings of the committee or to
1
carry out functions as a member of the committee.
2
Penalty:
3
(a) In the case of an individual--$10 000.
4
(b) In the case of a body corporate--$50 000.
5
(2) Any time that a member of a health and safety committee spends
6
for the purposes set out in subsection (1) must be with the pay that
7
he or she would otherwise be entitled to receive for performing his
8
or her normal duties during that period.
9
(3) The person conducting a business or undertaking must allow the
10
health and safety committee for a workplace to have access to
11
information that the person has relating to:
12
(a) hazards (including associated risks) at the workplace; and
13
(b) the health and safety of the workers at the workplace.
14
Penalty:
15
(a) In the case of an individual--$10 000.
16
(b) In the case of a body corporate--$50 000.
17
(4) Despite subsection (3), the person conducting a business or
18
undertaking must not allow the health and safety committee to
19
have access to any personal or medical information concerning a
20
worker without the worker's consent unless the information is in a
21
form that:
22
(a) does not identify the worker; and
23
(b) could not reasonably be expected to lead to the identification
24
of the worker.
25
Penalty:
26
(a) In the case of an individual--$10 000.
27
(b) In the case of a body corporate--$50 000.
28
29
Part 5 Consultation, representation and participation
Division 5 Issue resolution
Section 80
70 Work Health and Safety Bill 2011 No. , 2011
Division 5--Issue resolution
1
80 Parties to an issue
2
(1) In this Division, parties, in relation to an issue, means the
3
following:
4
(a) the person conducting the business or undertaking or the
5
person's representative;
6
(b) if the issue involves more than 1 business or undertaking, the
7
person conducting each business or undertaking or the
8
person's representative;
9
(c) if the worker or workers affected by the issue are in a work
10
group, the health and safety representative for that work
11
group or his or her representative;
12
(d) if the worker or workers affected by the issue are not in a
13
work group, the worker or workers or their representative.
14
(2) A person conducting a business or undertaking must ensure that the
15
person's representative (if any) for the purposes of this Division:
16
(a) is not a health and safety representative; and
17
(b) has an appropriate level of seniority, and is sufficiently
18
competent, to act as the person's representative.
19
81 Resolution of health and safety issues
20
(1) This section applies if a matter about work health and safety arises
21
at a workplace or from the conduct of a business or undertaking
22
and the matter is not resolved after discussion between the parties
23
to the issue.
24
(2) The parties must make reasonable efforts to achieve a timely, final
25
and effective resolution of the issue in accordance with the relevant
26
agreed procedure, or if there is no agreed procedure, the default
27
procedure prescribed in the regulations.
28
(3) A representative of a party to an issue may enter the workplace for
29
the purpose of attending discussions with a view to resolving the
30
issue.
31
Consultation, representation and participation Part 5
Issue resolution Division 5
Section 82
Work Health and Safety Bill 2011 No. , 2011 71
82 Referral of issue to regulator for resolution by inspector
1
(1) This section applies if an issue has not been resolved after
2
reasonable efforts have been made to achieve an effective
3
resolution of the issue.
4
(2) A party to the issue may ask the regulator to appoint an inspector
5
to attend the workplace to assist in resolving the issue.
6
(3) A request to the regulator under this section does not prevent:
7
(a) a worker from exercising the right under Division 6 of this
8
Part to cease work; or
9
(b) a health and safety representative from issuing a provisional
10
improvement notice or a direction under Division 6 of this
11
Part to cease work.
12
(4) On attending a workplace under this section, an inspector may
13
exercise any of the inspector's compliance powers under this Act
14
in relation to the workplace.
15
16
Part 5 Consultation, representation and participation
Division 6 Right to cease or direct cessation of unsafe work
Section 83
72 Work Health and Safety Bill 2011 No. , 2011
Division 6--Right to cease or direct cessation of unsafe
1
work
2
83 Definition of cease work under this Division
3
In this Division, cease work under this Division means:
4
(a) to cease, or refuse, to carry out work under section 84; or
5
(b) to cease work on a direction under section 85.
6
84 Right of worker to cease unsafe work
7
A worker may cease, or refuse to carry out, work if the worker has
8
a reasonable concern that to carry out the work would expose the
9
worker to a serious risk to the worker's health or safety, emanating
10
from an immediate or imminent exposure to a hazard.
11
85 Health and safety representative may direct that unsafe work
12
cease
13
(1) A health and safety representative may direct a worker who is in a
14
work group represented by the representative to cease work if the
15
representative has a reasonable concern that to carry out the work
16
would expose the worker to a serious risk to the worker's health or
17
safety, emanating from an immediate or imminent exposure to a
18
hazard.
19
(2) However, the health and safety representative must not give a
20
worker a direction to cease work unless the matter is not resolved
21
after:
22
(a) consulting about the matter with the person conducting the
23
business or undertaking for whom the workers are carrying
24
out work; and
25
(b) attempting to resolve the matter as an issue under Division 5
26
of this Part.
27
(3) The health and safety representative may direct the worker to cease
28
work without carrying out that consultation or attempting to
29
resolve the matter as an issue under Division 5 of this Part if the
30
Consultation, representation and participation Part 5
Right to cease or direct cessation of unsafe work Division 6
Section 86
Work Health and Safety Bill 2011 No. , 2011 73
risk is so serious and immediate or imminent that it is not
1
reasonable to consult before giving the direction.
2
(4) The health and safety representative must carry out the
3
consultation as soon as practicable after giving a direction under
4
subsection (3).
5
(5) The health and safety representative must inform the person
6
conducting the business or undertaking of any direction given by
7
the health and safety representative to workers under this section.
8
(6) A health and safety representative cannot give a direction under
9
this section unless the representative has:
10
(a) completed initial training prescribed by the regulations
11
referred to in section 72(1)(b); or
12
(b) previously completed that training when acting as a health
13
and safety representative for another work group; or
14
(c) completed training equivalent to that training under a
15
corresponding WHS law.
16
86 Worker to notify if ceases work
17
A worker who ceases work under this Division must:
18
(a) as soon as practicable, notify the person conducting the
19
business or undertaking that the worker has ceased work
20
under this Division unless the worker ceased work under a
21
direction from a health and safety representative; and
22
(b) remain available to carry out suitable alternative work.
23
87 Alternative work
24
If a worker ceases work under this Division, the person conducting
25
the business or undertaking may direct the worker to carry out
26
suitable alternative work at the same or another workplace if that
27
work is safe and appropriate for the worker to carry out until the
28
worker can resume normal duties.
29
Part 5 Consultation, representation and participation
Division 6 Right to cease or direct cessation of unsafe work
Section 88
74 Work Health and Safety Bill 2011 No. , 2011
88 Continuity of engagement of worker
1
If a worker ceases work under this Division, that action does not
2
affect the continuity of engagement of the worker for prescribed
3
purposes if the worker has not unreasonably failed to comply with
4
a direction to carry out suitable alternative work:
5
(a) at the same or another workplace; and
6
(b) that was safe and appropriate for the worker to carry out.
7
89 Request to regulator to appoint inspector to assist
8
The health and safety representative or the person conducting the
9
business or undertaking or the worker may ask the regulator to
10
appoint an inspector to attend the workplace to assist in resolving
11
an issue arising in relation to the cessation of work.
12
Note:
The issue resolution procedures in Division 5 of this Part can also be
13
used to resolve an issue arising in relation to the cessation of work.
14
15
Consultation, representation and participation Part 5
Provisional improvement notices Division 7
Section 90
Work Health and Safety Bill 2011 No. , 2011 75
Division 7--Provisional improvement notices
1
90 Provisional improvement notices
2
(1) This section applies if a health and safety representative reasonably
3
believes that a person:
4
(a) is contravening a provision of this Act; or
5
(b) has contravened a provision of this Act in circumstances that
6
make it likely that the contravention will continue or be
7
repeated.
8
(2) The health and safety representative may issue a provisional
9
improvement notice requiring the person to:
10
(a) remedy the contravention; or
11
(b) prevent a likely contravention from occurring; or
12
(c) remedy the things or operations causing the contravention or
13
likely contravention.
14
(3) However, the health and safety representative must not issue a
15
provisional improvement notice to a person unless he or she has
16
first consulted the person.
17
(4) A health and safety representative cannot issue a provisional
18
improvement notice unless the representative has:
19
(a) completed initial training prescribed by the regulations
20
referred to in section 72(1)(b); or
21
(b) previously completed that training when acting as a health
22
and safety representative for another work group; or
23
(c) completed training equivalent to that training under a
24
corresponding WHS law.
25
(5) A health and safety representative cannot issue a provisional
26
improvement notice in relation to a matter if an inspector has
27
already issued (or decided not to issue) an improvement notice or
28
prohibition notice in relation to the same matter.
29
91 Provisional improvement notice to be in writing
30
A provisional improvement notice must be in writing.
31
Part 5 Consultation, representation and participation
Division 7 Provisional improvement notices
Section 92
76 Work Health and Safety Bill 2011 No. , 2011
92 Contents of provisional improvement notice
1
A provisional improvement notice must state:
2
(a) that the health and safety representative believes the person:
3
(i) is contravening a provision of this Act; or
4
(ii) has contravened a provision of this Act in circumstances
5
that make it likely that the contravention will continue
6
or be repeated; and
7
(b) the provision the representative believes is being, or has
8
been, contravened; and
9
(c) briefly, how the provision is being, or has been contravened;
10
and
11
(d) the day, at least 8 days after the notice is issued, by which the
12
person is required to remedy the contravention or likely
13
contravention.
14
93 Provisional improvement notice may give directions to remedy
15
contravention
16
(1) A provisional improvement notice may include directions
17
concerning the measures to be taken to remedy the contravention
18
or prevent the likely contravention or the matters or activities
19
causing the contravention or likely contravention to which the
20
notice relates.
21
(2) A direction included in a provisional improvement notice may:
22
(a) refer to a code of practice; and
23
(b) offer the person to whom it is issued a choice of ways in
24
which to remedy the contravention.
25
94 Minor changes to provisional improvement notice
26
A health and safety representative may make minor changes to a
27
provisional improvement notice:
28
(a) for clarification; or
29
(b) to correct errors or references; or
30
(c) to reflect changes of address or other circumstances.
31
Consultation, representation and participation Part 5
Provisional improvement notices Division 7
Section 95
Work Health and Safety Bill 2011 No. , 2011 77
95 Issue of provisional improvement notice
1
A provisional improvement notice may be issued to a person in
2
accordance with section 209.
3
96 Health and safety representative may cancel notice
4
The health and safety representative may at any time cancel a
5
provisional improvement notice issued to a person by written
6
notice given to that person.
7
97 Display of provisional improvement notice
8
(1) A person to whom a provisional improvement notice is issued must
9
as soon as practicable display a copy of the notice in a prominent
10
place at or near the workplace, or part of the workplace, at which
11
work is being carried out that is affected by the notice.
12
Penalty:
13
(a) In the case of an individual--$5000.
14
(b) In the case of a body corporate--$25 000.
15
(2) A person must not intentionally remove, destroy, damage or deface
16
a notice displayed under subsection (1) during the period that the
17
notice is in force.
18
Penalty:
19
(a) In the case of an individual--$5000.
20
(b) In the case of a body corporate--$25 000.
21
98 Formal irregularities or defects in notice
22
A provisional improvement notice is not invalid only because of:
23
(a) a formal defect or irregularity in the notice unless the defect
24
or irregularity causes or is likely to cause substantial
25
injustice; or
26
(b) a failure to use the correct name of the person to whom the
27
notice is issued if the notice sufficiently identifies the person.
28
Part 5 Consultation, representation and participation
Division 7 Provisional improvement notices
Section 99
78 Work Health and Safety Bill 2011 No. , 2011
99 Offence to contravene a provisional improvement notice
1
(1) This section applies if a provisional improvement notice has been
2
issued to a person and an inspector has not been required under
3
section 101 to attend at the workplace.
4
(2) The person must comply with the provisional improvement notice
5
within the time specified in the notice.
6
Penalty:
7
(a) In the case of an individual--$50 000.
8
(b) In the case of a body corporate--$250 000.
9
100 Request for review of provisional improvement notice
10
(1) Within 7 days after a provisional improvement notice is issued to a
11
person:
12
(a) the person to whom it was issued; or
13
(b) if the person is a worker, the person conducting the business
14
or undertaking at the workplace at which the worker carries
15
out work;
16
may ask the regulator to appoint an inspector to review the notice.
17
(2) If a request is made under subsection (1), the operation of the
18
provisional improvement notice is stayed until the inspector makes
19
a decision on the review.
20
101 Regulator to appoint inspector to review notice
21
(1) The regulator must ensure that an inspector attends the workplace
22
as soon as practicable after a request is made under section 100.
23
(2) The inspector must review the provisional improvement notice and
24
inquire into the circumstances that are the subject of the
25
provisional improvement notice.
26
(3) An inspector may review a provisional improvement notice even if
27
the period for compliance with the notice has expired.
28
Consultation, representation and participation Part 5
Provisional improvement notices Division 7
Section 102
Work Health and Safety Bill 2011 No. , 2011 79
102 Decision of inspector on review of provisional improvement
1
notice
2
(1) After reviewing the provisional improvement notice, the inspector
3
must:
4
(a) confirm the provisional improvement notice; or
5
(b) confirm the provisional improvement notice with changes; or
6
(c) cancel the provisional improvement notice.
7
(2) The inspector must give a copy of his or her decision to:
8
(a) the applicant for the review of the provisional improvement
9
notice; and
10
(b) the health and safety representative who issued the notice.
11
(3) A provisional improvement notice that is confirmed (with or
12
without changes) by an inspector is taken to be an improvement
13
notice issued by the inspector under this Act.
14
15
Part 5 Consultation, representation and participation
Division 8 Part not to apply to prisoners
Section 103
80 Work Health and Safety Bill 2011 No. , 2011
Division 8--Part not to apply to prisoners
1
103 Part does not apply to prisoners
2
Nothing in this Part applies to a worker who is a prisoner in
3
custody in a prison or police gaol.
4
5
Discriminatory, coercive and misleading conduct Part 6
Prohibition of discriminatory, coercive or misleading conduct Division 1
Section 104
Work Health and Safety Bill 2011 No. , 2011 81
Part 6--Discriminatory, coercive and misleading
1
conduct
2
Division 1--Prohibition of discriminatory, coercive or
3
misleading conduct
4
104 Prohibition of discriminatory conduct
5
(1) A person must not engage in discriminatory conduct for a
6
prohibited reason.
7
Penalty:
8
(a) In the case of an individual--$100 000.
9
(b) In the case of a body corporate--$500 000.
10
(2) A person commits an offence under subsection (1) only if the
11
reason referred to in section 106 was the dominant reason for the
12
discriminatory conduct.
13
Note:
Civil proceedings may be brought under Division 3 of this Part in
14
relation to discriminatory conduct engaged in for a prohibited reason.
15
(3) For the purposes of the application of the Criminal Code in relation
16
to an offence under subsection (1), intention is the fault element for
17
the physical element of engaging in conduct.
18
105 What is discriminatory conduct
19
(1) For the purposes of this Part, a person engages in discriminatory
20
conduct if:
21
(a)
the
person:
22
(i) dismisses a worker; or
23
(ii) terminates a contract for services with a worker; or
24
(iii) puts a worker to his or her detriment in the engagement
25
of the worker; or
26
(iv) alters the position of a worker to the worker's detriment;
27
or
28
(b)
the
person:
29
Part 6 Discriminatory, coercive and misleading conduct
Division 1 Prohibition of discriminatory, coercive or misleading conduct
Section 106
82 Work Health and Safety Bill 2011 No. , 2011
(i) refuses or fails to offer to engage a prospective worker;
1
or
2
(ii) treats a prospective worker less favourably than another
3
prospective worker would be treated in offering terms of
4
engagement; or
5
(c) the person terminates a commercial arrangement with another
6
person; or
7
(d) the person refuses or fails to enter into a commercial
8
arrangement with another person.
9
(2) For the purposes of this Part, a person also engages in
10
discriminatory conduct if the person organises to take any action
11
referred to in subsection (1) or threatens to organise or take that
12
action.
13
106 What is a prohibited reason
14
Conduct referred to in section 105 is engaged in for a prohibited
15
reason if it is engaged in because the worker or prospective worker
16
or the person referred to in section 105(1)(c) or (d) (as the case
17
requires):
18
(a) is, has been or proposes to be a health and safety
19
representative or a member of a health and safety committee;
20
or
21
(b) undertakes, has undertaken or proposes to undertake another
22
role under this Act; or
23
(c) exercises a power or performs a function or has exercised a
24
power or performed a function or proposes to exercise a
25
power or perform a function as a health and safety
26
representative or as a member of a health and safety
27
committee; or
28
(d) exercises, has exercised or proposes to exercise a power
29
under this Act or exercises, has exercised or proposes to
30
exercise a power under this Act in a particular way; or
31
(e) performs, has performed or proposes to perform a function
32
under this Act or performs, has performed or proposes to
33
perform a function under this Act in a particular way; or
34
(f) refrains from, has refrained from or proposes to refrain from
35
exercising a power or performing a function under this Act or
36
Discriminatory, coercive and misleading conduct Part 6
Prohibition of discriminatory, coercive or misleading conduct Division 1
Section 107
Work Health and Safety Bill 2011 No. , 2011 83
refrains from, has refrained from or proposes to refrain from
1
exercising a power or performing a function under this Act in
2
a particular way; or
3
(g) assists or has assisted or proposes to assist, or gives or has
4
given or proposes to give any information to any person
5
exercising a power or performing a function under this Act;
6
or
7
(h) raises or has raised or proposes to raise an issue or concern
8
about work health and safety with:
9
(i) the person conducting a business or undertaking; or
10
(ii) an inspector; or
11
(iii) a WHS entry permit holder; or
12
(iv) a health and safety representative; or
13
(v) a member of a health and safety committee; or
14
(vi) another worker; or
15
(vii) any other person who has a duty under this Act in
16
relation to the matter; or
17
(viii) any other person exercising a power or performing a
18
function under this Act; or
19
(i) is involved in, has been involved in or proposes to be
20
involved in resolving a work health and safety issue under
21
this Act; or
22
(j) is taking action, has taken action or proposes to take action to
23
seek compliance by any person with any duty or obligation
24
under this Act.
25
107 Prohibition of requesting, instructing, inducing, encouraging,
26
authorising or assisting discriminatory conduct
27
(1) A person must not request, instruct, induce, encourage, authorise or
28
assist another person to engage in discriminatory conduct in
29
contravention of section 104.
30
Penalty:
31
(a) In the case of an individual--$100 000.
32
(b) In the case of a body corporate--$500 000.
33
Note:
Civil proceedings may be brought under Division 3 of this Part if a
34
person requested, instructed, induced, encouraged, authorised or
35
Part 6 Discriminatory, coercive and misleading conduct
Division 1 Prohibition of discriminatory, coercive or misleading conduct
Section 108
84 Work Health and Safety Bill 2011 No. , 2011
assisted another person to engage in discriminatory conduct for a
1
prohibited reason.
2
(2) For the purposes of the application of the Criminal Code in relation
3
to an offence under subsection (1), intention is the fault element for
4
the physical element of requesting, instructing, inducing,
5
encouraging, authorising or assisting another person to engage in
6
conduct.
7
108 Prohibition of coercion or inducement
8
(1) A person must not organise or take, or threaten to organise or take,
9
any action against another person with intent to coerce or induce
10
the other person, or a third person:
11
(a) to exercise or not to exercise a power, or to propose to
12
exercise or not to exercise a power, under this Act; or
13
(b) to perform or not to perform a function, or to propose to
14
perform or not to perform a function, under this Act; or
15
(c) to exercise or not to exercise a power or perform a function,
16
or to propose to exercise or not to exercise a power or
17
perform a function, in a particular way; or
18
(d) to refrain from seeking, or continuing to undertake, a role
19
under this Act.
20
Penalty:
21
(a) In the case of an individual--$100 000.
22
(b) In the case of a body corporate--$500 000.
23
Note:
Civil proceedings may be brought under Division 3 of this Part in
24
relation to a contravention of this section.
25
(2) In this section, a reference to taking action or threatening to take
26
action against a person includes a reference to not taking a
27
particular action or threatening not to take a particular action in
28
relation to that person.
29
(3) To avoid doubt, a reasonable direction given by an emergency
30
services worker in an emergency is not an action with intent to
31
coerce or induce a person.
32
Discriminatory, coercive and misleading conduct Part 6
Prohibition of discriminatory, coercive or misleading conduct Division 1
Section 109
Work Health and Safety Bill 2011 No. , 2011 85
109 Misrepresentation
1
(1) A person must not knowingly or recklessly make a false or
2
misleading representation to another person about that other
3
person's:
4
(a) rights or obligations under this Act; or
5
(b) ability to initiate, or participate in, a process or proceedings
6
under this Act; or
7
(c) ability to make a complaint or inquiry to a person or body
8
empowered under this Act to seek compliance with this Act.
9
Penalty:
10
(a) In the case of an individual--$100 000.
11
(b) In the case of a body corporate--$500 000.
12
(2) Subsection (1) does not apply if the person to whom the
13
representation is made would not be expected to rely on it.
14
15
Part 6 Discriminatory, coercive and misleading conduct
Division 2 Criminal proceedings in relation to discriminatory conduct
Section 110
86 Work Health and Safety Bill 2011 No. , 2011
Division 2--Criminal proceedings in relation to
1
discriminatory conduct
2
110 Proof of discriminatory conduct
3
(1) This section applies if in proceedings for an offence of
4
contravening section 104 or 107, the prosecution:
5
(a) proves that the discriminatory conduct was engaged in; and
6
(b) proves that a circumstance referred to in section 106(a) to (j)
7
existed at the time the discriminatory conduct was engaged
8
in; and
9
(c) adduces evidence that the discriminatory conduct was
10
engaged in for a prohibited reason.
11
(2) The reason alleged for the discriminatory conduct is presumed to
12
be the dominant reason for that conduct unless the accused proves
13
on the balance of probabilities, that the reason was not the
14
dominant reason for the conduct.
15
(3) To avoid doubt, the burden of proof on the accused under
16
subsection (2) is a legal burden of proof.
17
111 Order for compensation or reinstatement
18
If a person is convicted or found guilty of an offence under
19
section 104 or 107, the court may (in addition to imposing a
20
penalty) make either or both of the following orders:
21
(a) an order that the offender pay (within a specified period) the
22
compensation to the person who was the subject of the
23
discriminatory conduct that the court considers appropriate;
24
(b) in relation to a person who was or is an employee or
25
prospective employee, an order that:
26
(i) the person be reinstated or re-employed in his or her
27
former position or, if that position is not available, in a
28
similar position; or
29
(ii) the person be employed in the position for which he or
30
she had applied or a similar position.
31
32
Discriminatory, coercive and misleading conduct Part 6
Civil proceedings in relation to discriminatory or coercive conduct Division 3
Section 112
Work Health and Safety Bill 2011 No. , 2011 87
Division 3--Civil proceedings in relation to discriminatory
1
or coercive conduct
2
112 Civil proceedings in relation to engaging in or inducing
3
discriminatory or coercive conduct
4
(1) An eligible person may apply to a court for an order under this
5
section.
6
(2) The court may make 1 or more of the orders set out in
7
subsection (3) in relation to a person who has:
8
(a) engaged in discriminatory conduct for a prohibited reason; or
9
(b) requested, instructed, induced, encouraged, authorised or
10
assisted another person to engage in discriminatory conduct
11
for a prohibited reason; or
12
(c) contravened section 108.
13
(3) For the purposes of subsection (2), the orders that the court may
14
make are:
15
(a) an injunction; or
16
(b) in the case of conduct referred to in subsection (2)(a) or (b),
17
an order that the person pay (within a specified period) the
18
compensation to the person who was the subject of the
19
discriminatory conduct that the court considers appropriate;
20
or
21
(c) in the case of conduct referred to in subsection (2)(a) in
22
relation to a worker who was or is an employee or
23
prospective employee, an order that:
24
(i) the worker be reinstated or re-employed in his or her
25
former position or, if that position is not available, in a
26
similar position; or
27
(ii) the prospective worker be employed in the position for
28
which he or she had applied or a similar position; or
29
(d) any other order that the court considers appropriate.
30
(4) For the purposes of this section, a person may be found to have
31
engaged in discriminatory conduct for a prohibited reason only if a
32
reason referred to in section 106 was a substantial reason for the
33
conduct.
34
Part 6 Discriminatory, coercive and misleading conduct
Division 3 Civil proceedings in relation to discriminatory or coercive conduct
Section 113
88 Work Health and Safety Bill 2011 No. , 2011
(5) Nothing in this section is to be construed as limiting any other
1
power of the court.
2
(6) For the purposes of this section, each of the following is an eligible
3
person:
4
(a) a person affected by the contravention;
5
(b) a person authorised as a representative by a person referred to
6
in paragraph (a).
7
113 Procedure for civil actions for discriminatory conduct
8
(1) A proceeding brought under section 112 must be commenced not
9
more than 1 year after the date on which the applicant knew or
10
ought to have known that the cause of action accrued.
11
(2) In a proceeding under section 112 in relation to conduct referred to
12
in section 112(2)(a) or (b), if a prohibited reason is alleged for
13
discriminatory conduct, that reason is presumed to be a substantial
14
reason for that conduct unless the defendant proves, on the balance
15
of probabilities, that the reason was not a substantial reason for the
16
conduct.
17
(3) It is a defence to a proceeding under section 112 in relation to
18
conduct referred to in section 112(2)(a) or (b) if the defendant
19
proves that:
20
(a) the conduct was reasonable in the circumstances; and
21
(b) a substantial reason for the conduct was to comply with the
22
requirements of this Act or a corresponding WHS law.
23
(4) To avoid doubt, the burden of proof on the defendant under
24
subsections (2) and (3) is a legal burden of proof.
25
26
Discriminatory, coercive and misleading conduct Part 6
General Division 4
Section 114
Work Health and Safety Bill 2011 No. , 2011 89
Division 4--General
1
114 General provisions relating to orders
2
(1) The making of an order in a proceeding under section 112 in
3
relation to conduct referred to in section 112(2)(a) or (b) does not
4
prevent the bringing of a proceeding for an offence under
5
section 104 or 107 in relation to the same conduct.
6
(2) If the court makes an order under section 112 in a proceeding in
7
relation to conduct referred to in section 112(2)(a) or (b), the court
8
cannot make an order under section 111 in a proceeding for an
9
offence under section 104 or 107 in relation to the same conduct.
10
(3) If the court makes an order under section 111 in a proceeding for
11
an offence under section 104 or 107, the court cannot make an
12
order under section 112 in a proceeding in relation to conduct
13
referred to in section 112(2)(a) or (b) that is the same conduct.
14
115 Prohibition of multiple actions
15
A person cannot:
16
(a) commence a proceeding under Division 3 of this Part if the
17
person has commenced a proceeding or made an application
18
or complaint in relation to the same matter under a law of the
19
Commonwealth or a State and that proceeding, application or
20
complaint has not been withdrawn; or
21
(b) recover any compensation under Division 3 of this Part if the
22
person has received compensation for the matter under a law
23
of the Commonwealth or a State; or
24
(c) commence or continue an application under Division 3 of this
25
Part if the person has failed in a proceeding, application or
26
complaint in relation to the same matter under a law of the
27
Commonwealth or a State, other than a proceeding,
28
application or complaint relating to workers' compensation.
29
30
Part 7 Workplace entry by WHS entry permit holders
Division 1 Introductory
Section 116
90 Work Health and Safety Bill 2011 No. , 2011
Part 7--Workplace entry by WHS entry permit
1
holders
2
Note:
Division 7 of Part 13 sets out the procedure in relation to the bringing of proceedings in
3
respect of WHS civil penalty provisions.
4
Division 1--Introductory
5
116 Definitions
6
In this Part:
7
official of a union means a person who holds an office in, or is an
8
employee of, the union.
9
relevant person conducting a business or undertaking means a
10
person conducting a business or undertaking in relation to which
11
the WHS entry permit holder is exercising or proposes to exercise
12
the right of entry.
13
relevant union means the union that a WHS entry permit holder
14
represents.
15
relevant worker, in relation to a workplace, means a worker:
16
(a) who is a member, or eligible to be a member, of a relevant
17
union; and
18
(b) whose industrial interests the relevant union is entitled to
19
represent; and
20
(c) who works at that workplace.
21
22
Workplace entry by WHS entry permit holders Part 7
Entry to inquire into suspected contraventions Division 2
Section 117
Work Health and Safety Bill 2011 No. , 2011 91
Division 2--Entry to inquire into suspected contraventions
1
117 Entry to inquire into suspected contraventions
2
(1) A WHS entry permit holder may enter a workplace for the purpose
3
of inquiring into a suspected contravention of this Act that relates
4
to, or affects, a relevant worker.
5
(2) The WHS entry permit holder must reasonably suspect before
6
entering the workplace that the contravention has occurred or is
7
occurring.
8
118 Rights that may be exercised while at workplace
9
(1) While at the workplace under this Division, the WHS entry permit
10
holder may do all or any of the following in relation to the
11
suspected contravention of this Act:
12
(a) inspect any work system, plant, substance, structure or other
13
thing relevant to the suspected contravention;
14
(b) consult with the relevant workers in relation to the suspected
15
contravention;
16
(c) consult with the relevant person conducting a business or
17
undertaking about the suspected contravention;
18
(d) require the relevant person conducting a business or
19
undertaking to allow the WHS entry permit holder to inspect,
20
and make copies of, any document that is directly relevant to
21
the suspected contravention and that:
22
(i) is kept at the workplace; or
23
(ii) is accessible from a computer that is kept at the
24
workplace;
25
(e) warn any person whom the WHS entry permit holder
26
reasonably believes to be exposed to a serious risk to his or
27
her health or safety emanating from an immediate or
28
imminent exposure to a hazard, of that risk.
29
(2) However, the relevant person conducting the business or
30
undertaking is not required under subsection (1)(d) to allow the
31
WHS entry permit holder to inspect or make copies of a document
32
Part 7 Workplace entry by WHS entry permit holders
Division 2 Entry to inquire into suspected contraventions
Section 119
92 Work Health and Safety Bill 2011 No. , 2011
if to do so would contravene a law of the Commonwealth or a law
1
of a State.
2
(3) A relevant person conducting a business or undertaking must not,
3
without reasonable excuse, refuse or fail to comply with a
4
requirement under subsection (1)(d).
5
WHS civil penalty provision.
6
Penalty:
7
(a) In the case of an individual--$10 000.
8
(b) In the case of a body corporate--$50 000.
9
(4) Subsection (3) places an evidential burden on the defendant to
10
show a reasonable excuse.
11
Note 1:
At least 24 hours notice is required for an entry to a workplace to
12
inspect employee records or other documents held by someone other
13
than a person conducting a business or undertaking. See section 120.
14
Note 2:
The use or disclosure of personal information obtained under this
15
section is regulated under the Privacy Act 1988.
16
119 Notice of entry
17
(1) A WHS entry permit holder must, as soon as is reasonably
18
practicable after entering a workplace under this Division, give
19
notice of the entry and the suspected contravention, in accordance
20
with the regulations, to:
21
(a) the relevant person conducting a business or undertaking; and
22
(b) the person with management or control of the workplace.
23
(2) Subsection (1) does not apply if to give the notice would:
24
(a) defeat the purpose of the entry to the workplace; or
25
(b) unreasonably delay the WHS entry permit holder in an urgent
26
case.
27
(3) Subsection (1) does not apply to an entry to a workplace under this
28
Division to inspect or make copies of documents referred to in
29
section 120.
30
Workplace entry by WHS entry permit holders Part 7
Entry to inquire into suspected contraventions Division 2
Section 120
Work Health and Safety Bill 2011 No. , 2011 93
120 Entry to inspect employee records or information held by
1
another person
2
(1) This section applies if a WHS entry permit holder is entitled under
3
section 117 to enter a workplace to inquire into a suspected
4
contravention of this Act.
5
(2) For the purposes of the inquiry into the suspected contravention,
6
the WHS entry permit holder may enter any workplace for the
7
purpose of inspecting, or making copies of:
8
(a) employee records that are directly relevant to a suspected
9
contravention; or
10
(b) other documents that are directly relevant to a suspected
11
contravention and that are not held by the relevant person
12
conducting a business or undertaking.
13
(3) Before doing so, the WHS entry permit holder must give notice of
14
the proposed entry to the person from whom the documents are
15
requested and the relevant person conducting a business or
16
undertaking.
17
(4) The notice must comply with the regulations.
18
(5) The notice must be given during usual working hours at that
19
workplace at least 24 hours, but not more than 14 days, before the
20
entry.
21
Note:
The use or disclosure of personal information obtained under this
22
section is regulated under the Privacy Act 1988.
23
24
Part 7 Workplace entry by WHS entry permit holders
Division 3 Entry to consult and advise workers
Section 121
94 Work Health and Safety Bill 2011 No. , 2011
Division 3--Entry to consult and advise workers
1
121 Entry to consult and advise workers
2
(1) A WHS entry permit holder may enter a workplace to consult on
3
work health and safety matters with, and provide advice on those
4
matters to, 1 or more relevant workers who wish to participate in
5
the discussions.
6
(2) A WHS entry permit holder may, after entering a workplace under
7
this Division, warn any person whom the WHS entry permit holder
8
reasonably believes to be exposed to a serious risk to his or her
9
health or safety, emanating from an immediate or imminent
10
exposure to a hazard, of that risk.
11
122 Notice of entry
12
(1) Before entering a workplace under this Division, a WHS entry
13
permit holder must give notice of the proposed entry to the relevant
14
person conducting a business or undertaking.
15
(2) The notice must comply with the regulations.
16
(3) The notice must be given during the usual working hours at that
17
workplace at least 24 hours, but not more than 14 days, before the
18
entry.
19
20
Workplace entry by WHS entry permit holders Part 7
Requirements for WHS entry permit holders Division 4
Section 123
Work Health and Safety Bill 2011 No. , 2011 95
Division 4--Requirements for WHS entry permit holders
1
123 Contravening WHS entry permit conditions
2
A WHS entry permit holder must not contravene a condition
3
imposed on the WHS entry permit.
4
WHS civil penalty provision.
5
Penalty: $10 000.
6
124 WHS entry permit holder must also hold permit under other
7
law
8
A WHS entry permit holder must not enter a workplace unless he
9
or she also holds an entry permit under the Fair Work Act.
10
WHS civil penalty provision.
11
Penalty: $10 000.
12
125 WHS entry permit to be available for inspection
13
A WHS entry permit holder must, at all times that he or she is at a
14
workplace under a right of entry under Division 2 or 3 of this Part,
15
have his or her WHS entry permit and photographic identification
16
available for inspection by any person on request.
17
WHS civil penalty provision.
18
Penalty: $10 000.
19
126 When right may be exercised
20
A WHS entry permit holder may exercise a right under Division 2
21
or 3 of this Part only during the usual working hours at the
22
workplace.
23
WHS civil penalty provision.
24
Penalty: $10 000.
25
Part 7 Workplace entry by WHS entry permit holders
Division 4 Requirements for WHS entry permit holders
Section 127
96 Work Health and Safety Bill 2011 No. , 2011
127 Where the right may be exercised
1
A WHS entry permit holder may exercise a right of entry to a
2
workplace only in relation to:
3
(a) the area of the workplace where the relevant workers work;
4
or
5
(b) any other work area that directly affects the health or safety
6
of those workers.
7
128 Work health and safety requirements
8
A WHS entry permit holder must not exercise a right of entry to a
9
workplace under Division 2 or 3 of this Part unless he or she
10
complies with any reasonable request by the relevant person
11
conducting a business or undertaking or the person with
12
management or control of the workplace to comply with:
13
(a) any work health and safety requirement that applies to the
14
workplace; and
15
(b) any other legislated requirement that applies to that type of
16
workplace.
17
WHS civil penalty provision.
18
Penalty: $10 000.
19
129 Residential premises
20
A WHS entry permit holder must not enter any part of a workplace
21
that is used only for residential purposes.
22
WHS civil penalty provision.
23
Penalty: $10 000.
24
130 WHS entry permit holder not required to disclose names of
25
workers
26
(1) A WHS entry permit holder is not required to disclose to the
27
relevant person conducting a business or undertaking or the person
28
Workplace entry by WHS entry permit holders Part 7
Requirements for WHS entry permit holders Division 4
Section 130
Work Health and Safety Bill 2011 No. , 2011 97
with management or control of the workplace the name of any
1
worker at the workplace.
2
(2) A WHS entry permit holder who wishes to disclose to the relevant
3
person conducting a business or undertaking or the person with
4
management or control of the workplace the name of any worker
5
may only do so with the consent of the worker.
6
7
Part 7 Workplace entry by WHS entry permit holders
Division 5 WHS entry permits
Section 131
98 Work Health and Safety Bill 2011 No. , 2011
Division 5--WHS entry permits
1
131 Application for WHS entry permit
2
(1) A union may apply to the authorising authority for the issue of a
3
WHS entry permit to a person who is an official of the union.
4
(2) The application must specify the person who is to hold the WHS
5
entry permit and include a statutory declaration by that person
6
declaring that he or she:
7
(a) is an official of the union; and
8
(b) has satisfactorily completed the prescribed training; and
9
(c) holds, or will hold, an entry permit under the Fair Work Act.
10
132 Consideration of application
11
In considering whether to issue a WHS entry permit, the
12
authorising authority must take into account:
13
(a) the object of this Act; and
14
(b) the object of allowing union right of entry to workplaces for
15
work health and safety purposes.
16
133 Eligibility criteria
17
The authorising authority must not issue a WHS entry permit to an
18
official of a union unless the authorising authority is satisfied that
19
the official:
20
(a) is an official of the union; and
21
(b) has satisfactorily completed the prescribed training; and
22
(c) holds, or will hold, an entry permit under the Fair Work Act.
23
134 Issue of WHS entry permit
24
The authorising authority may issue a WHS entry permit to a
25
person if the authorising authority has taken into account the
26
matters in section 132 and is satisfied about the matters in
27
section 133.
28
Workplace entry by WHS entry permit holders Part 7
WHS entry permits Division 5
Section 135
Work Health and Safety Bill 2011 No. , 2011 99
135 Conditions on WHS entry permit
1
The authorising authority may impose conditions on a WHS entry
2
permit.
3
136 Term of WHS entry permit
4
A WHS entry permit has effect for a term of 3 years from the date
5
it is issued.
6
137 Expiry of WHS entry permit
7
(1) Unless it is earlier revoked, a WHS entry permit expires at the first
8
of the following to occur:
9
(a) at the end of the term of the WHS entry permit;
10
(b) at the end of the term of the entry permit held by the WHS
11
entry permit holder under the Fair Work Act;
12
(c) when the permit holder ceases to be an official of the union
13
that applied for the permit;
14
(d) the union that applied for the permit ceases to be an
15
organisation that is registered, or taken to be registered, under
16
the Fair Work (Registered Organisations) Act 2009 of the
17
Commonwealth.
18
(2) An application may be made for the issue of a subsequent WHS
19
entry permit before or after the current WHS entry permit expires.
20
138 Application to revoke WHS entry permit
21
(1) The following persons may apply to the authorising authority for a
22
WHS entry permit held by a person to be revoked:
23
(a)
the
regulator;
24
(b) the relevant person conducting a business or undertaking;
25
(c) any other person in relation to whom the WHS entry permit
26
holder has exercised or purported to exercise a right under
27
this Part;
28
(d) any other person affected by the exercise or purported
29
exercise of a right under this Part by a WHS entry permit
30
holder.
31
Part 7 Workplace entry by WHS entry permit holders
Division 5 WHS entry permits
Section 139
100 Work Health and Safety Bill 2011 No. , 2011
(2) The grounds for an application for revocation of a WHS entry
1
permit are:
2
(a) that the permit holder no longer satisfies the eligibility
3
criteria for a WHS entry permit or an entry permit under a
4
corresponding WHS law, or the Fair Work Act or the
5
Workplace Relations Act 1996 of the Commonwealth; or
6
(b) that the permit holder has contravened any condition of the
7
WHS entry permit; or
8
(c) that the permit holder has acted or purported to act in an
9
improper manner in the exercise of any right under this Act;
10
or
11
(d) in exercising or purporting to exercise a right under this Part,
12
that the permit holder has intentionally hindered or
13
obstructed a person conducting the business or undertaking
14
or workers at a workplace.
15
(3) The applicant must give written notice of the application, setting
16
out the grounds for the application, to the person who holds the
17
WHS entry permit and the union concerned.
18
(4) The person who holds the WHS entry permit and the union that the
19
WHS entry permit holder represents are parties to the application.
20
139 Authorising authority must permit WHS entry permit holder to
21
show cause
22
(1) If, on an application under section 138, the authorising authority is
23
satisfied that a ground may exist for the revocation of the WHS
24
entry permit under section 138(2), the authorising authority must:
25
(a) give the WHS entry permit holder written notice (a show
26
cause notice); and
27
(b) if the authorising authority considers it appropriate, suspend
28
the operation of the WHS entry permit until the authorising
29
authority decides the application for revocation.
30
(2) The show cause notice must:
31
(a) contain a statement to the effect that the WHS entry permit
32
holder may, not later than 21 days after the day the WHS
33
entry permit holder is given the notice, give the authorising
34
Workplace entry by WHS entry permit holders Part 7
WHS entry permits Division 5
Section 140
Work Health and Safety Bill 2011 No. , 2011 101
authority written reasons explaining why the WHS entry
1
permit should not be revoked; and
2
(b) be accompanied by a summary of the reasons for the
3
application; and
4
(c) if applicable, be accompanied by a notice of suspension of
5
the permit.
6
140 Determination of application
7
(1) If the authorising authority is satisfied on the balance of
8
probabilities about any of the matters in section 138(2), it may
9
make 1 or more of the following orders:
10
(a) an order imposing conditions on the WHS entry permit;
11
(b) an order suspending the WHS entry permit;
12
(c) an order revoking the WHS entry permit;
13
(d) an order about the future issue of a WHS entry permit to the
14
person whose WHS entry permit is revoked;
15
(e) an order imposing any alternative action the authorising
16
authority considers appropriate.
17
(2) In deciding what action to take under subsection (1), in relation to
18
a person, the authorising authority must take into account:
19
(a) the seriousness of any findings of the authorising authority
20
having regard to the object of this Act; and
21
(b) any other matters the authority considers relevant.
22
23
Part 7 Workplace entry by WHS entry permit holders
Division 6 Dealing with disputes
Section 141
102 Work Health and Safety Bill 2011 No. , 2011
Division 6--Dealing with disputes
1
141 Application for assistance of inspector to resolve dispute
2
If a dispute arises about the exercise or purported exercise by a
3
WHS entry permit holder of a right of entry under this Act, any
4
party to the dispute may ask the regulator to appoint an inspector to
5
attend the workplace to assist in resolving the dispute.
6
142 Authorising authority may deal with a dispute about a right of
7
entry under this Act
8
(1) The authorising authority may deal with a dispute about the
9
exercise or purported exercise by a WHS entry permit holder of a
10
right of entry under this Act (including a dispute about whether a
11
request under section 128 is reasonable).
12
(2) The authorising authority may deal with the dispute in any manner
13
it thinks fit, including by means of mediation, conciliation or
14
arbitration.
15
(3) If the authorising authority deals with the dispute by arbitration, it
16
may make 1 or more of the following orders:
17
(a) an order imposing conditions on a WHS entry permit;
18
(b) an order suspending a WHS entry permit;
19
(c) an order revoking a WHS entry permit;
20
(d) an order about the future issue of WHS entry permits to 1 or
21
more persons;
22
(e) any other order it considers appropriate.
23
(4) The authorising authority may deal with the dispute:
24
(a) on its own initiative; or
25
(b) on application by any of the following to whom the dispute
26
relates:
27
(i) a WHS entry permit holder;
28
(ii) the relevant union;
29
(iii) the relevant person conducting a business or
30
undertaking;
31
Workplace entry by WHS entry permit holders Part 7
Dealing with disputes Division 6
Section 143
Work Health and Safety Bill 2011 No. , 2011 103
(iv) any other person in relation to whom the WHS entry
1
permit holder has exercised or purported to exercise the
2
right of entry;
3
(v) any other person affected by the exercise or purported
4
exercise of the right of entry by a WHS entry permit
5
holder;
6
(vi)
the
regulator.
7
(5) In dealing with a dispute, the authorising authority must not confer
8
any rights on the WHS entry permit holder that are additional to, or
9
inconsistent with, rights exercisable by the WHS entry permit
10
holder under this Part.
11
(6) This section applies despite section 595 of the Fair Work Act.
12
143 Contravening order made to deal with dispute
13
A person must not contravene an order under section 142(3).
14
WHS civil penalty provision.
15
Penalty:
16
(a) In the case of an individual--$10 000.
17
(b) In the case of a body corporate--$50 000.
18
19
Part 7 Workplace entry by WHS entry permit holders
Division 7 Prohibitions
Section 144
104 Work Health and Safety Bill 2011 No. , 2011
Division 7--Prohibitions
1
144 Person must not refuse or delay entry of WHS entry permit
2
holder
3
(1) A person must not, without reasonable excuse, refuse or unduly
4
delay entry into a workplace by a WHS entry permit holder who is
5
entitled to enter the workplace under this Part.
6
WHS civil penalty provision.
7
Penalty:
8
(a) In the case of an individual--$10 000.
9
(b) In the case of a body corporate--$50 000.
10
(2) Subsection (1) places an evidential burden on the accused to show
11
a reasonable excuse.
12
145 Person must not hinder or obstruct WHS entry permit holder
13
A person must not intentionally and unreasonably hinder or
14
obstruct a WHS entry permit holder in entering a workplace or in
15
exercising any rights at a workplace in accordance with this Part.
16
WHS civil penalty provision.
17
Penalty:
18
(a) In the case of an individual--$10 000.
19
(b) In the case of a body corporate--$50 000.
20
146 WHS entry permit holder must not delay, hinder or obstruct
21
any person or disrupt work at workplace
22
A WHS entry permit holder exercising, or seeking to exercise,
23
rights in accordance with this Part must not intentionally and
24
unreasonably delay, hinder or obstruct any person or disrupt any
25
work at a workplace, or otherwise act in an improper manner.
26
Workplace entry by WHS entry permit holders Part 7
Prohibitions Division 7
Section 147
Work Health and Safety Bill 2011 No. , 2011 105
WHS civil penalty provision.
1
Penalty: $10 000.
2
147 Misrepresentations about things authorised by this Part
3
(1) A person must not take action:
4
(a) with the intention of giving the impression; or
5
(b) reckless as to whether the impression is given;
6
that the doing of a thing is authorised by this Part if it is not so
7
authorised.
8
WHS civil penalty provision.
9
Penalty:
10
(a) In the case of an individual--$10 000.
11
(b) In the case of a body corporate--$50 000.
12
(2) Subsection (1) does not apply if the person reasonably believes that
13
the doing of the thing is authorised.
14
148 Unauthorised use or disclosure of information or documents
15
A person must not use or disclose information or a document
16
obtained under Division 2 of this Part in an inquiry into a suspected
17
contravention for a purpose that is not related to the inquiry or
18
rectifying the suspected contravention, unless:
19
(a) the person reasonably believes that the use or disclosure is
20
necessary to lessen or prevent:
21
(i) a serious risk to a person's health or safety; or
22
(ii) a serious threat to public health or safety; or
23
(b) the person has reason to suspect that unlawful activity has
24
been, is being or may be engaged in, and uses or discloses the
25
information or document as a necessary part of an
26
investigation of the matter or in reporting concerns to
27
relevant persons or authorities; or
28
(c) the use or disclosure is required or authorised by or under
29
law; or
30
Part 7 Workplace entry by WHS entry permit holders
Division 7 Prohibitions
Section 148
106 Work Health and Safety Bill 2011 No. , 2011
(d) the person reasonably believes that the use or disclosure is
1
reasonably necessary for 1 or more of the following by, or on
2
behalf of, an enforcement body (within the meaning of the
3
Privacy Act 1988):
4
(i) the prevention, detection, investigation, prosecution or
5
punishment of criminal offences, breaches of a law
6
imposing a penalty or sanction or breaches of a
7
prescribed law;
8
(ii) the enforcement of laws relating to the confiscation of
9
the proceeds of crime;
10
(iii) the protection of the public revenue;
11
(iv) the prevention, detection, investigation or remedying of
12
seriously improper conduct or prescribed conduct;
13
(v) the preparation for, or conduct of, proceedings before
14
any court or tribunal, or implementation of the orders of
15
a court or tribunal; or
16
(e) if the information is, or the document contains, personal
17
information--the use or disclosure is made with the consent
18
of the individual to whom the information relates.
19
WHS civil penalty provision.
20
Penalty:
21
(a) In the case of an individual--$10 000.
22
(b) In the case of a body corporate--$50 000.
23
24
Workplace entry by WHS entry permit holders Part 7
General Division 8
Section 149
Work Health and Safety Bill 2011 No. , 2011 107
Division 8--General
1
149 Return of WHS entry permits
2
(1) The person to whom a WHS entry permit is issued must return the
3
permit to the authorising authority within 14 days of any of the
4
following things happening:
5
(a) the permit is revoked or suspended;
6
(b) the permit expires.
7
WHS civil penalty provision.
8
Penalty: $2000.
9
(2) After the end of a period of suspension of a WHS entry permit, the
10
authorising authority must return the WHS entry permit to the
11
person to whom it was issued if:
12
(a) the person, or the person's union, applies to the authorising
13
authority for the return of the permit; and
14
(b) the permit has not expired.
15
150 Union to provide information to authorising authority
16
The relevant union must advise the authorising authority if:
17
(a) the WHS entry permit holder resigns from or otherwise
18
leaves the union; or
19
(b) the WHS entry permit holder has had any entry permit
20
granted under a corresponding WHS law, or the Fair Work
21
Act or the Workplace Relations Act 1996 of the
22
Commonwealth or a State or Territory industrial law (no
23
matter when in force) cancelled or suspended; or
24
(c) the union ceases to be an organisation that is registered, or
25
taken to be registered, under the Fair Work (Registered
26
Organisations) Act 2009.
27
WHS civil penalty provision.
28
Penalty:
29
(a) In the case of an individual--$5000.
30
Part 7 Workplace entry by WHS entry permit holders
Division 8 General
Section 151
108 Work Health and Safety Bill 2011 No. , 2011
(b) In the case of a body corporate--$25 000.
1
151 Register of WHS entry permit holders
2
The authorising authority must keep available for public access an
3
up-to-date register of WHS entry permit holders in accordance
4
with the regulations.
5
6
The regulator Part 8
Functions of regulator Division 1
Section 152
Work Health and Safety Bill 2011 No. , 2011 109
Part 8--The regulator
1
Division 1--Functions of regulator
2
152 Functions of regulator
3
The regulator has the following functions:
4
(a) to advise and make recommendations to the Minister and
5
report on the operation and effectiveness of this Act;
6
(b) to monitor and enforce compliance with this Act;
7
(c) to provide advice and information on work health and safety
8
to duty holders under this Act and to the community;
9
(d) to collect, analyse and publish statistics relating to work
10
health and safety;
11
(e) to foster a co-operative, consultative relationship between
12
duty holders and the persons to whom they owe duties and
13
their representatives in relation to work health and safety
14
matters;
15
(f) to promote and support education and training on matters
16
relating to work health and safety;
17
(g) to engage in, promote and co-ordinate the sharing of
18
information to achieve the object of this Act, including the
19
sharing of information with a corresponding regulator;
20
(h) to conduct and defend proceedings under this Act before a
21
court or tribunal;
22
(i) any other function conferred on the regulator by this Act.
23
153 Powers of regulator
24
(1) Subject to this Act, the regulator has the power to do all things
25
necessary or convenient to be done for or in connection with the
26
performance of its functions.
27
(2) Without limiting subsection (1), the regulator has all the powers
28
and functions that an inspector has under this Act.
29
Part 8 The regulator
Division 1 Functions of regulator
Section 154
110 Work Health and Safety Bill 2011 No. , 2011
154 Delegation by regulator
1
(1) The regulator may, by instrument in writing, delegate a power or
2
function under this Act other than this power of delegation to:
3
(a) a member of the staff of the regulator who is an SES
4
employee or an acting SES employee; or
5
(b) an inspector; or
6
(c) a member of the staff of the regulator prescribed by
7
regulations.
8
(2) A delegation under this section may be made subject to such
9
conditions as the regulator thinks fit.
10
Note:
For further provisions relating to delegations and the revocation of
11
delegations, see the Acts Interpretation Act 1901.
12
13
The regulator Part 8
Powers of regulator to obtain information Division 2
Section 155
Work Health and Safety Bill 2011 No. , 2011 111
Division 2--Powers of regulator to obtain information
1
155 Powers of regulator to obtain information
2
(1) This section applies if the regulator has reasonable grounds to
3
believe that a person is capable of giving information, providing
4
documents or giving evidence in relation to a possible
5
contravention of this Act or that will assist the regulator to monitor
6
or enforce compliance with this Act.
7
(2) The regulator may, by written notice served on the person, require
8
the person to do 1 or more of the following:
9
(a) to give the regulator, in writing signed by the person (or in
10
the case of a body corporate, by a competent officer of the
11
body corporate) and within the time and in the manner
12
specified in the notice, that information of which the person
13
has knowledge;
14
(b) to produce to the regulator, in accordance with the notice,
15
those documents;
16
(c) to appear before a person appointed by the regulator on a
17
day, and at a time and place, specified in the notice (being a
18
day, time and place that are reasonable in the circumstances)
19
and give either orally or in writing that evidence and produce
20
those documents.
21
(3) The notice must:
22
(a) state that the requirement is made under this section; and
23
(b) contain a statement to the effect that a failure to comply with
24
a requirement is an offence; and
25
(c) if the notice requires the person to provide information or
26
documents or answer questions:
27
(i) contain a statement about the effect of sections 172 and
28
269; and
29
(ii) state that the person may attend with a legal practitioner.
30
(4) The regulator must not make a requirement under subsection (2)(c)
31
unless the regulator has taken all reasonable steps to obtain the
32
information under subsections (2)(a) and (b) and has been unable
33
to do so.
34
Part 8 The regulator
Division 2 Powers of regulator to obtain information
Section 155
112 Work Health and Safety Bill 2011 No. , 2011
(5) A person must not, without reasonable excuse, refuse or fail to
1
comply with a requirement under this section.
2
Penalty:
3
(a) In the case of an individual--$10 000.
4
(b) In the case of a body corporate--$50 000.
5
(6) Subsection (5) places an evidential burden on the accused to show
6
a reasonable excuse.
7
(7) Section 172 (with any necessary changes) applies to a requirement
8
under this section.
9
10
Securing compliance Part 9
Appointment of inspectors Division 1
Section 156
Work Health and Safety Bill 2011 No. , 2011 113
Part 9--Securing compliance
1
Division 1--Appointment of inspectors
2
156 Appointment of inspectors
3
The regulator may, by instrument, appoint any of the following as
4
an inspector:
5
(a) a member of the staff of the regulator;
6
(b) a person who is appointed as an inspector under a
7
corresponding WHS law of a State;
8
(c) a person in a prescribed class of persons.
9
157 Identity cards
10
(1) The regulator must give each inspector an identity card that states
11
the person's name and appointment as an inspector and includes
12
any other matter prescribed by the regulations.
13
(2) An inspector must produce his or her identity card for inspection
14
on request when exercising compliance powers.
15
(3) If a person to whom an identity card has been issued ceases to be
16
an inspector, the person must return the identity card to the
17
regulator as soon as practicable.
18
158 Accountability of inspectors
19
(1) An inspector must give written notice to the regulator of all
20
interests, pecuniary or otherwise, that the inspector has, or
21
acquires, and that conflict or could conflict with the proper
22
performance of the inspector's functions.
23
(2) The regulator must give a direction to an inspector not to deal, or to
24
no longer deal, with a matter if the regulator becomes aware that
25
the inspector has a potential conflict of interest in relation to a
26
matter and the regulator considers that the inspector should not
27
deal, or should no longer deal, with the matter.
28
Part 9 Securing compliance
Division 1 Appointment of inspectors
Section 159
114 Work Health and Safety Bill 2011 No. , 2011
159 Suspension and ending of appointment of inspectors
1
(1) The regulator may suspend or end the appointment of an inspector.
2
(2) A person's appointment as an inspector ends when the person
3
ceases to be eligible for appointment as an inspector.
4
5
Securing compliance Part 9
Functions and powers of inspectors Division 2
Section 160
Work Health and Safety Bill 2011 No. , 2011 115
Division 2--Functions and powers of inspectors
1
160 Functions and powers of inspectors
2
An inspector has the following functions and powers under this
3
Act:
4
(a) to provide information and advice about compliance with this
5
Act;
6
(b) to assist in the resolution of:
7
(i) work health and safety issues at workplaces; and
8
(ii) issues related to access to a workplace by an assistant to
9
a health and safety representative; and
10
(iii) issues related to the exercise or purported exercise of a
11
right of entry under Part 7;
12
(c) to review disputed provisional improvement notices;
13
(d) to require compliance with this Act through the issuing of
14
notices;
15
(e) to investigate contraventions of this Act and assist in the
16
prosecution of offences;
17
(f) to monitor compliance with this Act.
18
161 Conditions on inspectors' compliance powers
19
An inspector's compliance powers are subject to any conditions
20
specified in the instrument of the inspector's appointment.
21
162 Inspectors subject to regulator's directions
22
(1) An inspector is subject to the regulator's directions in the exercise
23
of the inspector's compliance powers.
24
(2) A direction under subsection (1) may be of a general nature or may
25
relate to a specified matter or specified class of matter.
26
27
Part 9 Securing compliance
Division 3 Powers relating to entry
Section 163
116 Work Health and Safety Bill 2011 No. , 2011
Division 3--Powers relating to entry
1
Subdivision 1--General powers of entry
2
163 Powers of entry
3
(1) An inspector may at any time enter a place that is, or that the
4
inspector reasonably suspects is, a workplace.
5
(2) An entry may be made under subsection (1) with, or without, the
6
consent of the person with management or control of the
7
workplace.
8
(3) If an inspector enters a place under subsection (1) and it is not a
9
workplace, the inspector must leave the place immediately.
10
(4) An inspector may enter any place if the entry is authorised by a
11
search warrant.
12
Note:
An inspector may enter residential premises to gain access to a
13
workplace (see section 170(c)).
14
164 Notification of entry
15
(1) An inspector may enter a place under section 163 without prior
16
notice to any person.
17
(2) An inspector must, as soon as practicable after entry to a workplace
18
or suspected workplace, take all reasonable steps to notify the
19
following persons of the entry and the purpose of the entry:
20
(a) the relevant person conducting a business or undertaking at
21
the workplace;
22
(b) the person with management or control of the workplace;
23
(c) any health and safety representative for workers carrying out
24
work for that business or undertaking at the workplace.
25
(3) However, an inspector is not required to notify any person if to do
26
so would defeat the purpose for which the place was entered or
27
cause unreasonable delay.
28
(4) In this section relevant person conducting a business or
29
undertaking means the person conducting any business or
30
Securing compliance Part 9
Powers relating to entry Division 3
Section 165
Work Health and Safety Bill 2011 No. , 2011 117
undertaking in relation to which the inspector is exercising the
1
powers of entry.
2
165 General powers on entry
3
(1) An inspector who enters a workplace under section 163 may do all
4
or any of the following:
5
(a) inspect, examine and make inquiries at the workplace;
6
(b) inspect and examine anything (including a document) at the
7
workplace;
8
(c) bring to the workplace and use any equipment or materials
9
that may be required;
10
(d) take measurements, conduct tests and make sketches or
11
recordings (including photographs, films, audio, video,
12
digital or other recordings);
13
(e) take and remove for analysis a sample of any substance or
14
thing;
15
(f) require a person at the workplace to give the inspector
16
reasonable help to exercise the inspector's powers under
17
paragraphs (a) to (e);
18
(g) exercise any compliance power or other power that is
19
reasonably necessary to be exercised by the inspector for the
20
purposes of this Act.
21
(2) A person required to give reasonable help under subsection (1)(f)
22
must not, without reasonable excuse, refuse or fail to comply with
23
the requirement.
24
Penalty:
25
(a) In the case of an individual--$10 000.
26
(b) In the case of a body corporate--$50 000.
27
(3) Subsection (2) places an evidential burden on the accused to show
28
a reasonable excuse.
29
Part 9 Securing compliance
Division 3 Powers relating to entry
Section 165A
118 Work Health and Safety Bill 2011 No. , 2011
165A Powers relating to electronic equipment
1
(1) The powers of an inspector who enters a workplace under this
2
Division include the power to operate electronic equipment on the
3
premises to see whether:
4
(a) the equipment; or
5
(b) a disk, tape or other storage device that:
6
(i) is on the premises; and
7
(ii) can be used with the equipment or is associated with it;
8
contains information relevant to whether this Act has been
9
complied with.
10
(2) The powers of an inspector who enters a workplace under this
11
Division include the following powers in relation to information
12
found in the exercise of the power under subsection (1):
13
(a) if entry to the premises is under a warrant--the power to
14
seize the equipment and the disk, tape or other storage device
15
referred to in that subsection;
16
(b) the power to operate electronic equipment on the premises to
17
put the information in documentary form and remove the
18
documents so produced from the premises;
19
(c) the power to operate electronic equipment on the premises to
20
transfer the information to a disk, tape or other storage device
21
that:
22
(i) is brought to the premises for the exercise of the power;
23
or
24
(ii) is on the premises and the use of which for that purpose
25
has been agreed in writing by the occupier of the
26
premises;
27
and remove the disk, tape or other storage device from the
28
premises.
29
(3) An inspector may operate electronic equipment as mentioned in
30
subsection (1) or (2) only if he or she believes on reasonable
31
grounds that the operation of the equipment can be carried out
32
without damage to the equipment.
33
(4) An inspector may seize equipment or a disk, tape or other storage
34
device as mentioned in subsection (2)(a) only if:
35
Securing compliance Part 9
Powers relating to entry Division 3
Section 165B
Work Health and Safety Bill 2011 No. , 2011 119
(a) it is not practicable to put the information in documentary
1
form as mentioned in subsection (2)(b) or to transfer the
2
information as mentioned in subsection (2)(c); or
3
(b) possession of the equipment or the disk, tape or other storage
4
device by the occupier could constitute an offence against a
5
law of the Commonwealth.
6
165B Expert assistance to operate electronic equipment
7
(1) This section applies to premises to which a warrant relates.
8
Securing equipment
9
(2) If an inspector believes on reasonable grounds that:
10
(a) there is on the premises evidence of the kind specified in the
11
warrant that may be accessible by operating electronic
12
equipment on the premises; and
13
(b) expert assistance is required to operate the equipment; and
14
(c) if he or she does not take action under this subsection, the
15
evidence may be destroyed, altered or otherwise interfered
16
with;
17
he or she may do whatever is necessary to secure the equipment,
18
whether by locking it up, placing a guard or other means.
19
(3) The inspector must give notice to the occupier of the premises, or
20
another person who apparently represents the occupier, of his or
21
her intention to secure the equipment and of the fact that the
22
equipment may be secured for up to 24 hours.
23
Period equipment may be secured
24
(4) The equipment may be secured:
25
(a) until the 24-hour period ends; or
26
(b) until the equipment has been operated by the expert;
27
whichever happens first.
28
Part 9 Securing compliance
Division 3 Powers relating to entry
Section 166
120 Work Health and Safety Bill 2011 No. , 2011
Extensions
1
(5) If an inspector believes on reasonable grounds that the equipment
2
needs to be secured for more than 24 hours, he or she may apply to
3
a magistrate for an extension of that period.
4
(6) The inspector must give notice to the occupier of the premises, or
5
another person who apparently represents the occupier, of his or
6
her intention to apply for an extension. The occupier or other
7
person is entitled to be heard in relation to that application.
8
(7) The provisions of this Division relating to the issue of warrants
9
apply, with such modifications as are necessary, to the issue of an
10
extension.
11
(8) The 24-hour period may be extended more than once.
12
166 Persons assisting inspectors
13
(1) A person (the assistant), including an interpreter, may accompany
14
the inspector entering a workplace under section 163 to assist the
15
inspector if the inspector considers the assistance is necessary.
16
(2)
The
assistant:
17
(a) may do the things at the place and in the manner that the
18
inspector reasonably requires to assist the inspector to
19
exercise compliance powers; but
20
(b) must not do anything that the inspector does not have power
21
to do, except as permitted under a search warrant.
22
(3) Anything done lawfully by the assistant is taken for all purposes to
23
have been done by the inspector.
24
Subdivision 2--Search warrants
25
167 Search warrants
26
(1) An inspector may apply to a magistrate for a search warrant for a
27
place.
28
(2) The application must be sworn and state the grounds on which the
29
warrant is sought.
30
Securing compliance Part 9
Powers relating to entry Division 3
Section 168
Work Health and Safety Bill 2011 No. , 2011 121
(3) The magistrate may refuse to consider the application until the
1
inspector gives the magistrate all the information the magistrate
2
requires about the application in the way the magistrate requires.
3
Example: The magistrate may require additional information supporting the
4
application to be given by statutory declaration.
5
(4) The magistrate may issue a search warrant only if the magistrate is
6
satisfied there are reasonable grounds for suspecting:
7
(a) there is a particular thing or activity (the evidence) that may
8
provide evidence of an offence against this Act; and
9
(b) the evidence is, or may be within the next 72 hours, at the
10
place.
11
(5) The search warrant must state:
12
(a) that a stated inspector may, with necessary and reasonable
13
help and force, enter the place and exercise the inspector's
14
compliance powers; and
15
(b) the offence for which the search warrant is sought; and
16
(c) the evidence that may be seized under the search warrant;
17
and
18
(d) the hours of the day or night when the place may be entered;
19
and
20
(e) the date, within 7 days after the search warrant's issue, the
21
search warrant ends.
22
168 Announcement before entry on warrant
23
(1) Before executing a search warrant, the inspector named in the
24
warrant or an assistant to the inspector must:
25
(a) announce that he or she is authorised by the warrant to enter
26
the place; and
27
(b) give any person at the place an opportunity to allow that
28
entry.
29
(2) However, the inspector or an assistant to the inspector is not
30
required to comply with subsection (1) if he or she believes on
31
reasonable grounds that immediate entry to the place is needed to
32
ensure:
33
(a) the safety of any person; or
34
Part 9 Securing compliance
Division 3 Powers relating to entry
Section 169
122 Work Health and Safety Bill 2011 No. , 2011
(b) that the effective execution of the warrant is not frustrated.
1
169 Copy of warrant to be given to person with management or
2
control of place
3
If the person who has or appears to have management or control of
4
a place is present at the place when a search warrant is being
5
executed, the inspector must:
6
(a) identify himself or herself to that person by producing his or
7
her identity card for inspection; and
8
(b) give that person a copy of the execution copy of the warrant.
9
Subdivision 3--Limitation on entry powers
10
170 Places used for residential purposes
11
Despite anything else in this Division, the powers of an inspector
12
under this Division in relation to entering a place are not
13
exercisable in relation to any part of a place that is used only for
14
residential purposes except:
15
(a) with the consent of the person with management or control of
16
the place; or
17
(b) under the authority conferred by a search warrant; or
18
(c) for the purpose only of gaining access to a suspected
19
workplace, but only:
20
(i) if the inspector reasonably believes that no reasonable
21
alternative access is available; and
22
(ii) at a reasonable time having regard to the times at which
23
the inspector believes work is being carried out at the
24
place to which access is sought.
25
Subdivision 4--Specific powers on entry
26
171 Power to require production of documents and answers to
27
questions
28
(1) An inspector who enters a workplace under this Division may:
29
(a) require a person to tell the inspector who has custody of, or
30
access to, a document; or
31
Securing compliance Part 9
Powers relating to entry Division 3
Section 172
Work Health and Safety Bill 2011 No. , 2011 123
(b) require a person who has custody of, or access to, a document
1
to produce that document to the inspector while the inspector
2
is at that workplace or within a specified period; or
3
(c) require a person at the workplace to answer any questions put
4
by the inspector.
5
(2) A requirement under subsection (1)(b) must be made by written
6
notice unless the circumstances require the inspector to have
7
immediate access to the document.
8
(3) An interview conducted by an inspector under subsection (1)(c)
9
must be conducted in private if:
10
(a) the inspector considers it appropriate; or
11
(b) the person being interviewed so requests.
12
(4) Subsection (3) does not limit the operation of section 166 or
13
prevent a representative of the person being interviewed from
14
being present at the interview.
15
(5) Subsection (3) may be invoked during an interview by:
16
(a) the inspector; or
17
(b) the person being interviewed;
18
in which case the subsection applies to the remainder of the
19
interview.
20
(6) A person must not, without reasonable excuse, refuse or fail to
21
comply with a requirement under this section.
22
Penalty:
23
(a) In the case of an individual--$10 000.
24
(b) In the case of a body corporate--$50 000.
25
Note:
See sections 172 and 173 in relation to self-incrimination and
26
section 269 in relation to legal professional privilege.
27
(7) Subsection (6) places an evidential burden on the accused to show
28
a reasonable excuse.
29
172 Abrogation of privilege against self-incrimination
30
(1) A person is not excused from answering a question or providing
31
information or a document under this Part or Part 8 on the ground
32
Part 9 Securing compliance
Division 3 Powers relating to entry
Section 173
124 Work Health and Safety Bill 2011 No. , 2011
that the answer to the question, or the information or document,
1
may tend to incriminate the person or expose the person to a
2
penalty.
3
(2) However, if the person is an individual, none of the following is
4
admissible in evidence in civil or criminal proceedings against the
5
person:
6
(a) the answer to the question;
7
(b) the production of the information or document;
8
(c) any information, document or thing obtained as a direct or
9
indirect consequence of answering the question or producing
10
the information or document.
11
173 Warning to be given
12
(1) Before requiring a person to answer a question or provide
13
information or a document under this Part, an inspector must:
14
(a) identify himself or herself to the person as an inspector by
15
producing the inspector's identity card or in some other way;
16
and
17
(b) warn the person that failure to comply with the requirement
18
or to answer the question, without reasonable excuse, would
19
constitute an offence; and
20
(c) warn the person about the effect of section 172; and
21
(d) advise the person about the effect of section 269.
22
(2) It is not an offence for an individual to refuse to answer a question
23
put by an inspector or provide information or a document to an
24
inspector under this Part on the ground that the question,
25
information or document might tend to incriminate him or her,
26
unless he or she was first given the warning in subsection (1)(c).
27
(3) Nothing in this section prevents an inspector from obtaining and
28
using evidence given to the inspector voluntarily by any person.
29
174 Powers to copy and retain documents
30
(1) An inspector may:
31
Securing compliance Part 9
Powers relating to entry Division 3
Section 175
Work Health and Safety Bill 2011 No. , 2011 125
(a) make copies of, or take extracts from, a document given to
1
the inspector in accordance with a requirement under this
2
Act; and
3
(b) keep that document for the period that the inspector considers
4
necessary.
5
(2) While an inspector retains custody of a document, the inspector
6
must permit the following persons to inspect or make copies of the
7
document at all reasonable times:
8
(a) the person who produced the document;
9
(b) the owner of the document;
10
(c) a person authorised by a person referred to in paragraph (a)
11
or (b).
12
175 Power to seize evidence etc.
13
(1) An inspector who enters a workplace under section 163 may seize
14
anything (including a document) at the place if the inspector
15
reasonably believes the thing is evidence of an offence against this
16
Act.
17
(2) An inspector who enters a place with a search warrant may seize
18
the evidence for which the warrant was issued.
19
(3) An inspector may also seize anything else at the place if the
20
inspector reasonably believes:
21
(a) the thing is evidence of an offence against this Act; and
22
(b) the seizure is necessary to prevent the thing being hidden,
23
lost or destroyed or used to continue or repeat the offence.
24
176 Inspector's power to seize dangerous workplaces and things
25
(1) This section applies if an inspector who enters a workplace under
26
this Part reasonably believes that:
27
(a) the workplace or part of the workplace; or
28
(b) plant at the workplace; or
29
(c) a substance at the workplace or part of the workplace; or
30
(d) a structure at a workplace;
31
Part 9 Securing compliance
Division 3 Powers relating to entry
Section 177
126 Work Health and Safety Bill 2011 No. , 2011
is defective or hazardous to a degree likely to cause serious injury
1
or illness or a dangerous incident to occur.
2
(2) The inspector may seize the workplace or part, the plant, the
3
substance or the structure.
4
177 Powers supporting seizure
5
(1) Having seized a thing, an inspector may:
6
(a) move the thing from the place where it was seized (the place
7
of seizure); or
8
(b) leave the thing at the place of seizure but take reasonable
9
action to restrict access to it; or
10
Example 1:
Sealing a thing and marking it to show access to it is
11
restricted.
12
Example 2:
Sealing the entrance to a room where the seized thing is
13
situated and marking it to show access to it is restricted.
14
(c) if the thing is plant or a structure--dismantle or cause to be
15
dismantled the plant or structure.
16
(2) If an inspector restricts access to a seized thing, a person must not
17
tamper, or attempt to tamper, with the thing or something
18
restricting access to the thing without an inspector's approval.
19
Penalty:
20
(a) In the case of an individual--$10 000.
21
(b) In the case of a body corporate--$50 000.
22
(3) To enable a thing to be seized, an inspector may require the person
23
in control of it:
24
(a) to take it to a stated reasonable place by a stated reasonable
25
time; and
26
(b) if necessary, to remain in control of it at the stated place for a
27
reasonable time.
28
(4)
The
requirement:
29
(a) must be made by written notice; or
30
(b) if for any reason it is not practicable to give the notice, may
31
be made orally and confirmed by written notice as soon as
32
practicable.
33
Securing compliance Part 9
Powers relating to entry Division 3
Section 178
Work Health and Safety Bill 2011 No. , 2011 127
(5) A further requirement may be made under this section in relation to
1
the same thing if it is necessary and reasonable to make the further
2
requirement.
3
(6) The person must not, without reasonable excuse, refuse or fail to
4
comply with a requirement under subsection (3) or (5).
5
Penalty:
6
(a) In the case of an individual--$10 000.
7
(b) In the case of a body corporate--$50 000.
8
(7) Subsection (6) places an evidential burden on the accused to show
9
a reasonable excuse.
10
178 Receipt for seized things
11
(1) As soon as practicable after an inspector seizes a thing, the
12
inspector must give a receipt for it to the person from whom it was
13
seized.
14
(2) However, if for any reason it is not practicable to comply with
15
subsection (1), the inspector must leave the receipt in a
16
conspicuous position and in a reasonably secure way at the place of
17
seizure.
18
(3) The receipt must describe generally each thing seized and its
19
condition.
20
(4) This section does not apply to a thing if it is impracticable or
21
would be unreasonable to give the receipt required by this section
22
(given the thing's nature, condition and value).
23
179 Forfeiture of seized things
24
(1) A seized thing is forfeited to the Commonwealth if the regulator:
25
(a) cannot find the person entitled to the thing after making
26
reasonable inquiries; or
27
(b) cannot return it to the person entitled to it, after making
28
reasonable efforts; or
29
(c) reasonably believes it is necessary to forfeit the thing to
30
prevent it being used to commit an offence against this Act.
31
Part 9 Securing compliance
Division 3 Powers relating to entry
Section 179
128 Work Health and Safety Bill 2011 No. , 2011
(2) Subsection (1)(a) does not require the regulator to make inquiries if
1
it would be unreasonable to make inquiries to find the person
2
entitled to the thing.
3
(3) Subsection (1)(b) does not require the regulator to make efforts if it
4
would be unreasonable to make efforts to return the thing to the
5
person entitled to it.
6
(4) If the regulator decides to forfeit the thing under subsection (1)(c),
7
the regulator must tell the person entitled to the thing of the
8
decision by written notice.
9
(5) Subsection (4) does not apply if:
10
(a) the regulator cannot find the person entitled to the thing, after
11
making reasonable inquiries; or
12
(b) it is impracticable or would be unreasonable to give the
13
notice.
14
(6) The notice must state:
15
(a) the reasons for the decision; and
16
(b) that the person entitled to the thing may apply within 28 days
17
after the date of the notice for the decision to be reviewed;
18
and
19
(c) how the person may apply for the review; and
20
(d) that the person may apply for a stay of the decision if the
21
person applies for a review.
22
(7) In deciding whether and, if so, what inquiries and efforts are
23
reasonable or whether it would be unreasonable to give notice
24
about a thing, regard must be had to the thing's nature, condition
25
and value.
26
(8) Any costs reasonably incurred by the Commonwealth in storing or
27
disposing of a thing forfeited under subsection (1)(c) may be
28
recovered in a court as a debt due to the Commonwealth from that
29
person.
30
(9) In this section person entitled to a thing means the person from
31
whom it was seized unless that person is not entitled to possess it
32
in which case it means the owner of the thing.
33
Securing compliance Part 9
Powers relating to entry Division 3
Section 180
Work Health and Safety Bill 2011 No. , 2011 129
180 Return of seized things
1
(1) If a seized thing has not been forfeited, the person entitled to the
2
thing may apply to the regulator for the return of the thing after the
3
end of 6 months after it was seized.
4
(2) The regulator must return the thing to the applicant under
5
subsection (1) unless the regulator has reasonable grounds to retain
6
the thing.
7
(3) The regulator may impose any conditions on the return of the thing
8
under this section that the regulator considers appropriate to
9
eliminate or minimise any risk to work health or safety related to
10
the thing.
11
(4) In this section person entitled to a thing means the person entitled
12
to possess the thing or the owner of the thing.
13
181 Access to seized things
14
(1) Until a seized thing is forfeited or returned, the regulator must
15
permit the following persons to inspect it and, if it is a document,
16
to make copies of it at all reasonable times:
17
(a) the person from whom the thing was seized;
18
(b) the owner of the thing;
19
(c) a person authorised by a person referred to in paragraph (a)
20
or (b).
21
(2) Subsection (1) does not apply if it is impracticable or would be
22
unreasonable to allow inspection or copying.
23
24
Part 9 Securing compliance
Division 4 Damage and compensation
Section 182
130 Work Health and Safety Bill 2011 No. , 2011
Division 4--Damage and compensation
1
182 Damage etc. to be minimised
2
In the exercise, or purported exercise, of a compliance power, an
3
inspector must take all reasonable steps to ensure that the
4
inspector, and any assistant to the inspector, cause as little
5
inconvenience, detriment and damage as is practicable.
6
183 Inspector to give notice of damage
7
(1) This section applies if an inspector or an assistant to an inspector
8
damages a thing when exercising or purporting to exercise a
9
compliance power.
10
(2) The inspector must, as soon as practicable, give written notice of
11
the damage to the person who the inspector believes on reasonable
12
grounds, is the person in control of the thing.
13
(3) If the inspector believes the damage was caused by a latent defect
14
in the thing or circumstances beyond the inspector's or assistant's
15
control, the inspector may state it in the notice.
16
(4) If, for any reason, it is impracticable to comply with subsection (2),
17
the inspector must leave the notice in a conspicuous position and in
18
a reasonably secure way where the damage happened.
19
(5) This section does not apply to damage the inspector reasonably
20
believes is trivial.
21
184 Compensation
22
(1) A person may claim compensation from the Commonwealth if the
23
person incurs loss or expense because of the exercise or purported
24
exercise of a power under Division 3 of this Part.
25
(2) Compensation may be claimed and ordered in a proceeding:
26
(a) brought in a court; or
27
(b) for an offence against this Act brought against the person
28
claiming compensation.
29
Securing compliance Part 9
Damage and compensation Division 4
Section 184
Work Health and Safety Bill 2011 No. , 2011 131
(3) The court may order compensation to be paid only if it is satisfied
1
it is just to make the order in the circumstances of the particular
2
case.
3
(4) The regulations may prescribe matters that may, or must, be taken
4
into account by the court when considering whether it is just to
5
make the order.
6
7
Part 9 Securing compliance
Division 5 Other matters
Section 185
132 Work Health and Safety Bill 2011 No. , 2011
Division 5--Other matters
1
185 Power to require name and address
2
(1) An inspector may require a person to provide the person's name
3
and residential address if:
4
(a) the inspector finds the person committing an offence against
5
this Act; or
6
(b) the inspector finds the person in circumstances that lead, or
7
has information that leads, the inspector to reasonably
8
suspect the person has committed an offence against this Act.
9
(2) When asking a person to provide his or her name and residential
10
address, the inspector must:
11
(a) tell the person the reason for the requirement to provide his
12
or her name and residential address; and
13
(b) warn the person that it is an offence to fail to state that name
14
and residential address, unless the person has a reasonable
15
excuse.
16
(3) If the inspector reasonably believes that the name or residential
17
address is false, the inspector may require the person to give
18
evidence of its correctness.
19
(4) A person must not, without reasonable excuse, refuse or fail to
20
comply with a requirement under subsection (1) or (3).
21
Penalty: $10 000.
22
(5) Subsection (4) places an evidential burden on the accused to show
23
a reasonable excuse.
24
186 Inspector may take affidavits
25
An inspector is authorised to take affidavits for any purpose
26
relating or incidental to the exercise of his or her compliance
27
powers.
28
Securing compliance Part 9
Other matters Division 5
Section 187
Work Health and Safety Bill 2011 No. , 2011 133
187 Attendance of inspector at coronial inquests
1
Note:
In some jurisdictions, an inspector may attend coronial inquests and
2
examine witnesses.
3
4
Part 9 Securing compliance
Division 6 Offences in relation to inspectors
Section 188
134 Work Health and Safety Bill 2011 No. , 2011
Division 6--Offences in relation to inspectors
1
188 Offence to hinder or obstruct inspector
2
A person must not intentionally hinder or obstruct an inspector in
3
exercising his or her compliance powers, or induce or attempt to
4
induce any other person to do so.
5
Penalty:
6
(a) In the case of an individual--$10 000.
7
(b) In the case of a body corporate--$50 000.
8
189 Offence to impersonate inspector
9
A person who is not an inspector must not, in any way, recklessly
10
hold himself or herself out to be an inspector.
11
Penalty: $10 000.
12
190 Offence to assault, threaten or intimidate inspector
13
A person commits an offence if:
14
(a) the person engages in conduct; and
15
(b) the person intends, by engaging in that conduct, to directly or
16
indirectly assault, threaten or intimidate another person; and
17
(c) the other person is an inspector or a person assisting an
18
inspector.
19
Penalty:
20
(a) In the case of an individual--$50 000 or imprisonment for 2
21
years or both.
22
(b) In the case of a body corporate--$250 000.
23
24
Enforcement measures Part 10
Improvement notices Division 1
Section 191
Work Health and Safety Bill 2011 No. , 2011 135
Part 10--Enforcement measures
1
Division 1--Improvement notices
2
191 Issue of improvement notices
3
(1) This section applies if an inspector reasonably believes that a
4
person:
5
(a) is contravening a provision of this Act; or
6
(b) has contravened a provision in circumstances that make it
7
likely that the contravention will continue or be repeated.
8
(2) The inspector may issue an improvement notice requiring the
9
person to:
10
(a) remedy the contravention; or
11
(b) prevent a likely contravention from occurring; or
12
(c) remedy the things or operations causing the contravention or
13
likely contravention.
14
192 Contents of improvement notices
15
(1) An improvement notice must state:
16
(a) that the inspector believes the person:
17
(i) is contravening a provision of this Act; or
18
(ii) has contravened a provision in circumstances that make
19
it likely that the contravention will continue or be
20
repeated; and
21
(b) the provision the inspector believes is being, or has been,
22
contravened; and
23
(c) briefly, how the provision is being, or has been, contravened;
24
and
25
(d) the day by which the person is required to remedy the
26
contravention or likely contravention.
27
(2) An improvement notice may include directions concerning the
28
measures to be taken to remedy the contravention or prevent the
29
likely contravention, or the matters or activities causing the
30
contravention or likely contravention, to which the notice relates.
31
Part 10 Enforcement measures
Division 1 Improvement notices
Section 193
136 Work Health and Safety Bill 2011 No. , 2011
(3) The day stated for compliance with the improvement notice must
1
be reasonable in all the circumstances.
2
193 Compliance with improvement notice
3
The person to whom an improvement notice is issued must comply
4
with the notice within the period specified in the notice.
5
Penalty:
6
(a) In the case of an individual--$50 000.
7
(b) In the case of a body corporate--$250 000.
8
194 Extension of time for compliance with improvement notices
9
(1) This section applies if a person has been issued with an
10
improvement notice.
11
(2) An inspector may, by written notice given to the person, extend the
12
compliance period for the improvement notice.
13
(3) However, the inspector may extend the compliance period only if
14
the period has not ended.
15
(4) In this section:
16
compliance period means the period stated in the improvement
17
notice under section 192, and includes that period as extended
18
under this section.
19
20
Enforcement measures Part 10
Prohibition notices Division 2
Section 195
Work Health and Safety Bill 2011 No. , 2011 137
Division 2--Prohibition notices
1
195 Power to issue prohibition notice
2
(1) This section applies if an inspector reasonably believes that:
3
(a) an activity is occurring at a workplace that involves or will
4
involve a serious risk to the health or safety of a person
5
emanating from an immediate or imminent exposure to a
6
hazard; or
7
(b) an activity may occur at a workplace that, if it occurs, will
8
involve a serious risk to the health or safety of a person
9
emanating from an immediate or imminent exposure to a
10
hazard.
11
(2) The inspector may give a person who has control over the activity
12
a direction prohibiting the carrying on of the activity, or the
13
carrying on of the activity in a specified way, until an inspector is
14
satisfied that the matters that give or will give rise to the risk have
15
been remedied.
16
(3) The direction may be given orally, but must be confirmed by
17
written notice (a prohibition notice) issued to the person as soon as
18
practicable.
19
196 Contents of prohibition notice
20
(1) A prohibition notice must state:
21
(a) that the inspector believes that grounds for the issue of the
22
prohibition notice exist and the basis for that belief; and
23
(b) briefly, the activity that the inspector believes involves or
24
will involve the risk and the matters that give or will give rise
25
to the risk; and
26
(c) the provision of this Act that the inspector believes is being,
27
or is likely to be, contravened by that activity.
28
(2) A prohibition notice may include directions on the measures to be
29
taken to remedy the risk, activities or matters to which the notice
30
relates, or the contravention or likely contravention referred to in
31
subsection (1)(c).
32
Part 10 Enforcement measures
Division 2 Prohibition notices
Section 197
138 Work Health and Safety Bill 2011 No. , 2011
(3) Without limiting section 195, a prohibition notice that prohibits the
1
carrying on of an activity in a specified way may do so by
2
specifying 1 or more of the following:
3
(a) a workplace, or part of a workplace, at which the activity is
4
not to be carried out;
5
(b) anything that is not to be used in connection with the activity;
6
(c) any procedure that is not to be followed in connection with
7
the activity.
8
197 Compliance with prohibition notice
9
The person to whom a direction is given under section 195(2) or a
10
prohibition notice is issued must comply with the direction or
11
notice.
12
Penalty:
13
(a) In the case of an individual--$100 000.
14
(b) In the case of a body corporate--$500 000.
15
16
Enforcement measures Part 10
Non-disturbance notices Division 3
Section 198
Work Health and Safety Bill 2011 No. , 2011 139
Division 3--Non-disturbance notices
1
198 Issue of non-disturbance notice
2
An inspector may issue a non-disturbance notice to the person with
3
management or control of a workplace if the inspector reasonably
4
believes that it is necessary to do so to facilitate the exercise of his
5
or her compliance powers.
6
199 Contents of non-disturbance notice
7
(1) A non-disturbance notice may require the person to:
8
(a) preserve the site at which a notifiable incident has occurred
9
for a specified period; or
10
(b) prevent the disturbance of a particular site (including the
11
operation of plant) in other circumstances for a specified
12
period that is reasonable in the circumstances.
13
(2) A non-disturbance notice must specify the period (of no more than
14
7 days) for which it applies and set out:
15
(a) the obligations of the person to whom the notice is issued;
16
and
17
(b) the measures to be taken to preserve a site or prevent
18
disturbance of a site; and
19
(c) the penalty for contravening the notice.
20
(3) In subsection (1) a reference to a site includes any plant, substance,
21
structure or thing associated with the site.
22
(4) A non-disturbance notice does not prevent any action:
23
(a) to assist an injured person; or
24
(b) to remove a deceased person; or
25
(c) that is essential to make the site safe or to prevent a further
26
incident; or
27
(d) that is associated with a police investigation; or
28
(e) for which an inspector has given permission.
29
Part 10 Enforcement measures
Division 3 Non-disturbance notices
Section 200
140 Work Health and Safety Bill 2011 No. , 2011
200 Compliance with non-disturbance notice
1
(1) A person must not, without reasonable excuse, refuse or fail to
2
comply with a non-disturbance notice issued to the person.
3
Penalty:
4
(a) In the case of an individual--$50 000.
5
(b) In the case of a body corporate--$250 000.
6
(2) Subsection (1) places an evidential burden on the accused to show
7
a reasonable excuse.
8
201 Issue of subsequent notices
9
If an inspector considers it necessary to do so, he or she may issue
10
1 or more subsequent non-disturbance notices to a person, whether
11
before or after the expiry of the previous notice, each of which
12
must comply with section 199.
13
14
Enforcement measures Part 10
General requirements applying to notices Division 4
Section 202
Work Health and Safety Bill 2011 No. , 2011 141
Division 4--General requirements applying to notices
1
202 Application of Division
2
In this Division notice means improvement notice, prohibition
3
notice or non-disturbance notice.
4
203 Notice to be in writing
5
A notice must be in writing.
6
204 Directions in notices
7
A direction included in an improvement notice or prohibition
8
notice may:
9
(a) refer to a code of practice; and
10
(b) offer the person to whom it is issued a choice of ways in
11
which to remedy the contravention.
12
205 Recommendations in notice
13
(1) An improvement notice or prohibition notice may include
14
recommendations.
15
(2) It is not an offence to fail to comply with recommendations in a
16
notice.
17
206 Changes to notice by inspector
18
(1) An inspector may make minor changes to a notice:
19
(a) for clarification; or
20
(b) to correct errors or references; or
21
(c) to reflect changes of address or other circumstances.
22
(2) An inspector may also, in accordance with section 194, extend the
23
compliance period for an improvement notice.
24
Part 10 Enforcement measures
Division 4 General requirements applying to notices
Section 207
142 Work Health and Safety Bill 2011 No. , 2011
207 Regulator may vary or cancel notice
1
Except as provided in section 206, a notice issued by an inspector
2
may only be varied or cancelled by the regulator.
3
208 Formal irregularities or defects in notice
4
A notice is not invalid only because of:
5
(a) a formal defect or irregularity in the notice unless the defect
6
or irregularity causes or is likely to cause substantial
7
injustice; or
8
(b) a failure to use the correct name of the person to whom the
9
notice is issued if the notice sufficiently identifies the person
10
and is issued or given to the person in accordance with
11
section 209.
12
209 Issue and giving of notice
13
(1) A notice may be issued or given to a person:
14
(a) by delivering it personally to the person or sending it by post
15
or facsimile or electronic transmission to the person's usual
16
or last known place of residence or business; or
17
(b) by leaving it for the person at the person's usual or last
18
known place of residence or business with a person who
19
appears to be over 16 years and who appears to reside or
20
work there; or
21
(c) by leaving it for the person at the workplace to which the
22
notice relates with a person who is or appears to be the
23
person with management or control of the workplace; or
24
(d) in a prescribed manner.
25
(2) The regulations may prescribe:
26
(a) the manner of issuing a notice; and
27
(b) the steps a person to whom a notice is issued must take to
28
bring it to the attention of other persons.
29
Enforcement measures Part 10
General requirements applying to notices Division 4
Section 210
Work Health and Safety Bill 2011 No. , 2011 143
210 Display of notice
1
(1) A person to whom a notice is issued must, as soon as possible,
2
display a copy of the notice in a prominent place at or near the
3
workplace, or part of the workplace, at which work is being carried
4
out that is affected by the notice.
5
Penalty:
6
(a) In the case of an individual--$5000.
7
(b) In the case of a body corporate--$25 000.
8
(2) A person must not intentionally remove, destroy, damage or deface
9
a notice displayed under subsection (1) while the notice is in force.
10
Penalty:
11
(a) In the case of an individual--$5000.
12
(b) In the case of a body corporate--$25 000.
13
14
Part 10 Enforcement measures
Division 5 Remedial action
Section 211
144 Work Health and Safety Bill 2011 No. , 2011
Division 5--Remedial action
1
211 When regulator may carry out action
2
(1) This section applies if a person to whom a prohibition notice is
3
issued fails to take reasonable steps to comply with the notice.
4
(2) The regulator may take any remedial action the regulator believes
5
reasonable to make the workplace or situation safe after giving
6
written notice to the person to whom the prohibition notice was
7
issued of:
8
(a) the regulator's intention to take that action; and
9
(b) the owner's or person's liability for the costs of that action.
10
212 Power of the regulator to take other remedial action
11
(1) This section applies if the regulator reasonably believes that:
12
(a) circumstances in which a prohibition notice can be issued
13
exist; and
14
(b) a prohibition notice cannot be issued at a workplace because,
15
after taking reasonable steps, the person with management or
16
control of the workplace cannot be found.
17
(2) The regulator may take any remedial action necessary to make the
18
workplace safe.
19
213 Costs of remedial or other action
20
The regulator may recover the reasonable costs of any remedial
21
action taken under:
22
(a) section 211 from the person to whom the notice is issued; or
23
(b) section 212 from any person to whom the prohibition notice
24
could have been issued in relation to the matter;
25
as a debt due to the regulator.
26
27
Enforcement measures Part 10
Injunctions Division 6
Section 214
Work Health and Safety Bill 2011 No. , 2011 145
Division 6--Injunctions
1
214 Application of Division
2
In this Division, notice means improvement notice, prohibition
3
notice or non-disturbance notice.
4
215 Injunctions for noncompliance with notices
5
(1) The regulator may apply to a court for an injunction:
6
(a) compelling a person to comply with a notice; or
7
(b) restraining a person from contravening a notice.
8
(2) The regulator may do so:
9
(a) whether or not proceedings have been brought for an offence
10
against this Act in connection with any matter in relation to
11
which the notice was issued; and
12
(b) whether any period for compliance with the notice has
13
expired.
14
15
Part 11 Enforceable undertakings
Section 216
146 Work Health and Safety Bill 2011 No. , 2011
Part 11--Enforceable undertakings
1
2
216 Regulator may accept WHS undertakings
3
(1) The regulator may accept a written undertaking (a WHS
4
undertaking) given by a person in connection with a matter
5
relating to a contravention or alleged contravention by the person
6
of this Act.
7
Note:
Section 230(3) requires the regulator to publish guidelines in relation
8
to the acceptance of WHS undertakings.
9
(2) A WHS undertaking cannot be accepted for a contravention or
10
alleged contravention that is a Category 1 offence.
11
(3) The giving of a WHS undertaking does not constitute an admission
12
of guilt by the person giving it in relation to the contravention or
13
alleged contravention to which the undertaking relates.
14
217 Notice of decision and reasons for decision
15
(1) The regulator must give the person seeking to make a WHS
16
undertaking written notice of the regulator's decision to accept or
17
reject the WHS undertaking and of the reasons for the decision.
18
(2) The regulator must publish, on the regulator's website, notice of a
19
decision to accept a WHS undertaking and the reasons for that
20
decision.
21
218 When a WHS undertaking is enforceable
22
A WHS undertaking takes effect and becomes enforceable when
23
the regulator's decision to accept the undertaking is given to the
24
person who made the undertaking or at any later date specified by
25
the regulator.
26
219 Compliance with WHS undertaking
27
A person must not contravene a WHS undertaking made by that
28
person that is in effect.
29
Enforceable undertakings Part 11
Section 220
Work Health and Safety Bill 2011 No. , 2011 147
Penalty:
1
(a) In the case of an individual--$50 000.
2
(b) In the case of a body corporate--$250 000.
3
220 Contravention of WHS undertaking
4
(1) The regulator may apply to a court for an order if a person
5
contravenes a WHS undertaking.
6
(2) If the court is satisfied that the person who made the WHS
7
undertaking has contravened the undertaking, the court, in addition
8
to the imposition of any penalty, may make 1 or both of the
9
following orders:
10
(a) an order directing the person to comply with the undertaking;
11
(b) an order discharging the undertaking.
12
(3) In addition to the orders referred to in subsection (2), the court may
13
make any other order that the court considers appropriate in the
14
circumstances, including orders directing the person to pay to the
15
Commonwealth:
16
(a) the costs of the proceedings; and
17
(b) the reasonable costs of the regulator in monitoring
18
compliance with the WHS undertaking in the future.
19
(4) Nothing in this section prevents proceedings being brought for the
20
contravention or alleged contravention of this Act to which the
21
WHS undertaking relates.
22
Note:
Section 222 specifies circumstances affecting proceedings for a
23
contravention for which a WHS undertaking has been given.
24
221 Withdrawal or variation of WHS undertaking
25
(1) A person who has made a WHS undertaking may at any time, with
26
the written agreement of the regulator:
27
(a) withdraw the undertaking; or
28
(b) vary the undertaking.
29
(2) However, the provisions of the undertaking cannot be varied to
30
provide for a different alleged contravention of the Act.
31
Part 11 Enforceable undertakings
Section 222
148 Work Health and Safety Bill 2011 No. , 2011
(3) The regulator must publish, on the regulator's website, notice of
1
the withdrawal or variation of a WHS undertaking.
2
222 Proceeding for alleged contravention
3
(1) Subject to this section, no proceedings for a contravention or
4
alleged contravention of this Act may be brought against a person
5
if a WHS undertaking is in effect in relation to that contravention.
6
(2) No proceedings may be brought for a contravention or alleged
7
contravention of this Act against a person who has made a WHS
8
undertaking in relation to that contravention and has completely
9
discharged the WHS undertaking.
10
(3) The regulator may accept a WHS undertaking in relation to a
11
contravention or alleged contravention before proceedings in
12
relation to that contravention have been finalised.
13
(4) If the regulator accepts a WHS undertaking before the proceedings
14
are finalised, the regulator must take all reasonable steps to have
15
the proceedings discontinued as soon as possible.
16
17
Review of decisions Part 12
Reviewable decisions Division 1
Section 223
Work Health and Safety Bill 2011 No. , 2011 149
Part 12--Review of decisions
1
Division 1--Reviewable decisions
2
223 Which decisions are reviewable
3
(1) The following table sets out:
4
(a) decisions made under this Act that are reviewable in
5
accordance with this Part (reviewable decisions); and
6
(b) who is eligible to apply for review of a reviewable decision
7
(the eligible person).
8
Reviewable decisions
Item
Provision under which
reviewable decision is made
Eligible person in relation to
reviewable decision
1
Section 54(2) (decision following
failure to commence negotiations)
(1) A worker whose interests are
affected by the decision or his or
her representative appointed for
the purpose of section 52(1)(b).
(2) A person conducting a business or
undertaking whose interests are
affected by the decision.
(3) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
2
Section 72(6) (decision in relation
to training of health and safety
representative)
(1) A person conducting a business or
undertaking whose interests are
affected by the decision.
(2) A health and safety representative
whose interests are affected by the
decision.
3
Section 76(6) (decision relating to
health and safety committee)
(1) A worker whose interests are
affected by the decision.
(2) A person conducting a business or
undertaking whose interests are
affected by the decision.
(3) A health and safety representative
who represents a worker whose
interests are affected by the
Part 12 Review of decisions
Division 1 Reviewable decisions
Section 223
150 Work Health and Safety Bill 2011 No. , 2011
Reviewable decisions
Item
Provision under which
reviewable decision is made
Eligible person in relation to
reviewable decision
decision.
4
Section 102 (decision on review of
provisional improvement notice)
(1) The person to whom the
provisional improvement notice
was issued.
(2) The health and safety
representative who issued the
provisional improvement notice.
(3) A worker whose interests are
affected by the decision.
(4) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
(5) A person conducting a business or
undertaking whose interests are
affected by the decision.
5
Section 179 (forfeiture of thing)
The person entitled to the thing.
6
Section 180 (Return of seized
things)
The person entitled to the thing.
7
Section 191 (issue of improvement
notice)
(1) The person to whom the notice
was issued.
(2) A person conducting a business or
undertaking whose interests are
affected by the decision.
(3) A worker whose interests are
affected by the decision.
(4) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
8
Section 194 (extension of time for
compliance with improvement
notice)
(1) The person to whom the notice
was issued.
(2) A person conducting a business or
undertaking whose interests are
affected by the decision.
(3) A worker whose interests are
Review of decisions Part 12
Reviewable decisions Division 1
Section 223
Work Health and Safety Bill 2011 No. , 2011 151
Reviewable decisions
Item
Provision under which
reviewable decision is made
Eligible person in relation to
reviewable decision
affected by the decision.
(4) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
9 Section
195 (issue of prohibition
notice)
(1) The person to whom the notice
was issued.
(2) The person with management or
control of the workplace, plant or
substance.
(3) A person conducting a business or
undertaking whose interests are
affected by the decision.
(4) A worker whose interests are
affected by the decision.
(5) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
(6) A health and safety representative
who gave a direction under
section 85 to cease work, that is
relevant to the prohibition notice.
10 Section
198 (issue of a
non-disturbance notice)
(1) The person to whom the notice
was issued.
(2) The person with management or
control of the workplace.
(3) A person conducting a business or
undertaking whose interests are
affected by the decision.
(4) A worker whose interests are
affected by the decision.
(5) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
Part 12 Review of decisions
Division 1 Reviewable decisions
Section 223
152 Work Health and Safety Bill 2011 No. , 2011
Reviewable decisions
Item
Provision under which
reviewable decision is made
Eligible person in relation to
reviewable decision
11
Section 201 (issue of subsequent
notice)
(1) The person to whom the notice
was issued.
(2) The person with management or
control of the workplace.
(3) A person conducting a business or
undertaking whose interests are
affected by the decision.
(4) A worker whose interests are
affected by the decision.
(5) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
12
Section 207 (Decision of regulator
to vary or cancel notice)
(1) The person to whom the notice
was issued.
(2) The person with management or
control of the workplace.
(3) A person conducting a business or
undertaking whose interests are
affected by the decision.
(4) A worker whose interests are
affected by the decision.
(5) A health and safety representative
who represents a worker whose
interests are affected by the
decision.
(6) In the case of a prohibition notice,
a health and safety representative
whose direction under section 85
to cease work gave rise to the
notice.
13
A prescribed provision of the
regulations
A person prescribed by the
regulations as eligible to apply for
review of the reviewable decision.
1
Review of decisions Part 12
Reviewable decisions Division 1
Section 223
Work Health and Safety Bill 2011 No. , 2011 153
(2) Unless the contrary intention appears, a reference in this Part to a
1
decision includes a reference to:
2
(a) making, suspending, revoking or refusing to make an order,
3
determination or decision; or
4
(b) giving, suspending, revoking or refusing to give a direction,
5
approval, consent or permission; or
6
(c) issuing, suspending, revoking or refusing to issue an
7
authorisation; or
8
(d) imposing a condition; or
9
(e) making a declaration, demand or requirement; or
10
(f) retaining, or refusing to deliver up, a thing; or
11
(g) doing or refusing to do any other act or thing.
12
(3) In this section person entitled to a thing means the person from
13
whom it was seized unless that person is not entitled to possess it,
14
in which case it means the owner of the thing.
15
16
Part 12 Review of decisions
Division 2 Internal review
Section 224
154 Work Health and Safety Bill 2011 No. , 2011
Division 2--Internal review
1
224 Application for internal review
2
(1) An eligible person in relation to a reviewable decision, other than a
3
decision made by the regulator or a delegate of the regulator, may
4
apply to the regulator for review (an internal review) of the
5
decision within:
6
(a) the prescribed time after the day on which the decision first
7
came to the eligible person's notice; or
8
(b) such longer period as the regulator allows.
9
(2) The application must be made in the manner and form required by
10
the regulator.
11
(3) For the purposes of this section, the prescribed time is:
12
(a) in the case of a decision to issue an improvement notice the
13
period specified in the notice for compliance with the notice
14
or 14 days, whichever is the lesser; and
15
(b) in any other case, 14 days.
16
225 Internal reviewer
17
(1) The regulator may appoint a person or body to review decisions on
18
applications under this Division.
19
(2) The person who made the decision cannot be an internal reviewer
20
in relation to that decision.
21
226 Decision of internal reviewer
22
(1) The internal reviewer must review the reviewable decision and
23
make a decision as soon as is reasonably practicable and within 14
24
days after the application for internal review is received.
25
(2) The decision may be:
26
(a) to confirm or vary the reviewable decision; or
27
(b) to set aside the reviewable decision and substitute another
28
decision that the internal reviewer considers appropriate.
29
Review of decisions Part 12
Internal review Division 2
Section 227
Work Health and Safety Bill 2011 No. , 2011 155
(3) If the internal reviewer seeks further information from the
1
applicant, the 14-day period ceases to run until the applicant
2
provides the information to the internal reviewer.
3
(4) The applicant must provide the further information within the time
4
(being not less than 7 days) specified by the internal reviewer in
5
the request for information.
6
(5) If the applicant does not provide the further information within the
7
required time, the decision is taken to have been confirmed by the
8
internal reviewer at the end of that time.
9
(6) If the reviewable decision is not varied or set aside within the
10
14-day period, the decision is taken to have been confirmed by the
11
internal reviewer.
12
227 Decision on internal review
13
As soon as practicable after reviewing the decision, the internal
14
reviewer must give the applicant in writing:
15
(a) the decision on the internal review; and
16
(b) the reasons for the decision.
17
228 Stays of reviewable decisions on internal review
18
(1) An application for an internal review of a reviewable decision
19
(other than a decision to issue a prohibition notice or a
20
non-disturbance notice) stays the operation of the decision.
21
(2) If an application is made for an internal review of a decision to
22
issue a prohibition notice or a non-disturbance notice, the reviewer
23
may stay the operation of the decision.
24
(3) The reviewer may make the decision to stay the operation of a
25
decision on the reviewer's own initiative or on the application of
26
the applicant for review.
27
(4) The reviewer must make a decision on an application for a stay
28
within 1 working day after the reviewer receives the application.
29
Part 12 Review of decisions
Division 2 Internal review
Section 228
156 Work Health and Safety Bill 2011 No. , 2011
(5) If the reviewer has not made a decision to stay a decision within
1
the time set out in subsection (4), the reviewer is taken to have
2
made a decision to grant a stay.
3
(6) A stay of the operation of a decision pending a decision on an
4
internal review continues until whichever of the following is the
5
earlier:
6
(a) the end of the prescribed period for applying for an external
7
review of the decision made on the internal review;
8
(b) an application for external review is made.
9
10
Review of decisions Part 12
External review Division 3
Section 229
Work Health and Safety Bill 2011 No. , 2011 157
Division 3--External review
1
229 Application for external review
2
(1) An eligible person may apply to Fair Work Australia for review
3
(an external review) of:
4
(a) a reviewable decision made by the regulator; or
5
(b) a decision made, or taken to have been made, on an internal
6
review.
7
(2) The application must be made:
8
(a) if the decision was to forfeit a thing (including a document),
9
within 28 days after the day on which the decision first came
10
to the applicant's notice; or
11
(b) in the case of any other decision, within 14 days after the day
12
on which the decision first came to the applicant's notice; or
13
(c) if the regulator is required by the external review body to
14
give the eligible person a statement of reasons, within 14
15
days after the day on which the statement is provided.
16
(3) Fair Work Australia may do any of the following in relation to the
17
decision to which the application relates:
18
(a) confirm the decision;
19
(b) vary the decision;
20
(c) set aside the decision and make a decision in substitution for
21
the decision set aside.
22
23
Part 13 Legal proceedings
Division 1 General matters
Section 230
158 Work Health and Safety Bill 2011 No. , 2011
Part 13--Legal proceedings
1
Division 1--General matters
2
230 Prosecutions
3
(1) Subject to subsection (4), proceedings for an offence against this
4
Act may only be brought by:
5
(a) the regulator; or
6
(b) an inspector with the written authorisation of the regulator
7
(either generally or in a particular case).
8
(2) An authorisation under subsection (1)(b) is sufficient authority to
9
continue proceedings in any case where a court amends the charge,
10
warrant or summons.
11
(3) The regulator must issue, and publish on the regulator's website,
12
general guidelines for or in relation to:
13
(a) the prosecution of offences under this Act; and
14
(b) the acceptance of WHS undertakings under this Act.
15
(4) Nothing in this section affects the ability of the Director of Public
16
Prosecutions to bring proceedings for an offence against this Act.
17
231 Procedure if prosecution is not brought
18
(1)
If:
19
(a) a person reasonably considers that the occurrence of an act,
20
matter or thing constitutes a Category 1 offence or a
21
Category 2 offence; and
22
(b) no prosecution has been brought in relation to the occurrence
23
of the act, matter or thing after 6 months but not later than 12
24
months after that occurrence;
25
the person may make a written request to the regulator that a
26
prosecution be brought.
27
(2) Within 3 months after the regulator receives a request the regulator
28
must:
29
(a) advise the person (in writing):
30
Legal proceedings Part 13
General matters Division 1
Section 231
Work Health and Safety Bill 2011 No. , 2011 159
(i) whether the investigation is complete; and
1
(ii) if the investigation is complete, whether a prosecution
2
has been or will be brought or give reasons why a
3
prosecution will not be brought; and
4
(b) advise the person who the applicant believes committed the
5
offence of the application.
6
(3) If the regulator advises the person that an investigation has been
7
conducted and that a prosecution for a Category 1 or Category 2
8
offence will not be brought, the regulator must:
9
(a) advise the person that the person may ask the regulator to
10
refer the matter to the Director of Public Prosecutions for
11
consideration; and
12
(b) if the person makes a written request to the regulator to do so,
13
refer the matter to the Director of Public Prosecutions within
14
1 month of the request.
15
(4) The Director of Public Prosecutions must consider the matter and
16
advise (in writing) the regulator as soon as is practicable as to
17
whether the Director considers that a prosecution should be
18
brought.
19
(5) The regulator must:
20
(a) notify the following persons in writing whether the Director
21
of Public Prosecutions considers that a prosecution should be
22
brought:
23
(i) the person who made the request;
24
(ii) the person who the applicant believes committed the
25
offence; and
26
(b) must include in the notice given to the person who made the
27
request a summary of the reasons given by the Director of
28
Public Prosecutions for his or her decision.
29
(6) If the regulator declines to follow the advice of the Director of
30
Public Prosecutions to bring proceedings, the regulator must give
31
written reasons for the decision to any person to whom information
32
is given under subsection (5).
33
Part 13 Legal proceedings
Division 1 General matters
Section 232
160 Work Health and Safety Bill 2011 No. , 2011
(7) In this section a reference to the occurrence of an act, matter or
1
thing includes a reference to a failure in relation to an act, matter or
2
thing.
3
232 Limitation period for prosecutions
4
(1) Proceedings for an offence against this Act may be brought within
5
the latest of the following periods to occur:
6
(a) within 2 years after the offence first comes to the notice of
7
the regulator;
8
(b) within 1 year after a coronial report was made or a coronial
9
inquiry or inquest ended, or an official inquiry ended if it
10
appeared from the report or the proceedings at the inquiry or
11
inquest that an offence had been committed against this Act;
12
(c) if a WHS undertaking has been given in relation to the
13
offence, within 6 months after:
14
(i) the WHS undertaking is contravened; or
15
(ii) it comes to the notice of the regulator that the WHS
16
undertaking has been contravened; or
17
(iii) the regulator has agreed under section 221 to the
18
withdrawal of the WHS undertaking.
19
(2) A proceeding for a Category 1 offence may be brought after the
20
end of the applicable limitation period in subsection (1) if fresh
21
evidence relevant to the offence is discovered and the court in
22
which the proceedings are brought is satisfied that the evidence
23
could not reasonably have been discovered within the relevant
24
limitation period.
25
(3) In this section:
26
official inquiry means:
27
(a) a Royal Commission within the meaning of the Royal
28
Commissions Act 1902; or
29
(b) a Royal Commission of a State or Territory; or
30
(c) a commission of inquiry of the Commonwealth or of a State
31
or Territory; or
32
Legal proceedings Part 13
General matters Division 1
Section 233
Work Health and Safety Bill 2011 No. , 2011 161
(d) a court, board or commission of inquiry conducted under
1
regulations made under the Defence Act 1903, the Naval
2
Defence Act 1910 or the Air Force Act 1923; or
3
(e) any other form of inquiry prescribed by regulations for the
4
purposes of this paragraph.
5
233 Multiple contraventions of health and safety duty provision
6
(1) Two or more contraventions of a health and safety duty provision
7
by a person that arise out of the same factual circumstances may be
8
charged as a single offence or as separate offences.
9
(2) This section does not authorise contraventions of 2 or more health
10
and safety duty provisions to be charged as a single offence.
11
(3) A single penalty only may be imposed in relation to 2 or more
12
contraventions of a health and safety duty provision that are
13
charged as a single offence.
14
(4) In this section health and safety duty provision means a provision
15
of Division 2, 3 or 4 of Part 2.
16
17
Part 13 Legal proceedings
Division 2 Sentencing for offences
Section 234
162 Work Health and Safety Bill 2011 No. , 2011
Division 2--Sentencing for offences
1
234 Application of this Division
2
This Division applies if a court convicts a person, or finds a person
3
guilty (the offender), of an offence against this Act.
4
235 Orders generally
5
(1) One or more orders may be made under this Division against the
6
offender.
7
(2) Orders may be made under this Division in addition to any penalty
8
that may be imposed or any other action that may be taken in
9
relation to the offence.
10
236 Adverse publicity orders
11
(1) The court may make an order (an adverse publicity order) in
12
relation to the offender requiring the offender:
13
(a) to take either or both of the following actions within the
14
period specified in the order:
15
(i) to publicise, in the way specified in the order, the
16
offence, its consequences, the penalty imposed and any
17
other related matter;
18
(ii) to notify a specified person or specified class of persons,
19
in the way specified in the order, of the offence, its
20
consequences, the penalty imposed and any other
21
related matter; and
22
(b) to give the regulator, within 7 days after the end of the period
23
specified in the order, evidence that the action or actions
24
were taken by the offender in accordance with the order.
25
(2) The court may make an adverse publicity order on its own
26
initiative or on the application of the person prosecuting the
27
offence.
28
(3) If the offender fails to give evidence to the regulator in accordance
29
with subsection (1)(b), the regulator, or a person authorised in
30
Legal proceedings Part 13
Sentencing for offences Division 2
Section 237
Work Health and Safety Bill 2011 No. , 2011 163
writing by the regulator, may take the action or actions specified in
1
the order.
2
(4)
However,
if:
3
(a) the offender gives evidence to the regulator in accordance
4
with subsection (1)(b); and
5
(b) despite that evidence, the regulator is not satisfied that the
6
offender has taken the action or actions specified in the order
7
in accordance with the order;
8
the regulator may apply to a court for an order authorising the
9
regulator, or a person authorised in writing by the regulator, to take
10
the action or actions.
11
(5) If the regulator or a person authorised in writing by the regulator
12
takes an action or actions in accordance with subsection (3) or an
13
order under subsection (4), the regulator is entitled to recover from
14
the offender, by action in a court, an amount in relation to the
15
reasonable expenses of taking the action or actions as a debt due to
16
the regulator.
17
237 Orders for restoration
18
(1) The court may order the offender to take such steps as are specified
19
in the order, within the period so specified, to remedy any matter
20
caused by the commission of the offence that appears to the court
21
to be within the offender's power to remedy.
22
(2) The period in which an order under this section must be complied
23
with may be extended, or further extended, by order of the court
24
but only if an application for the extension is made before the end
25
of that period.
26
238 Work health and safety project orders
27
(1) The court may make an order requiring the offender to undertake a
28
specified project for the general improvement of work health and
29
safety within the period specified in the order.
30
(2) The order may specify conditions that must be complied with in
31
undertaking the specified project.
32
Part 13 Legal proceedings
Division 2 Sentencing for offences
Section 239
164 Work Health and Safety Bill 2011 No. , 2011
239 Release on the giving of a court-ordered WHS undertaking
1
(1) The court may (with or without recording a conviction) adjourn the
2
proceeding for a period of up to 2 years and make an order for the
3
release of the offender on the offender giving an undertaking with
4
specified conditions (a court-ordered WHS undertaking).
5
(2) A court-ordered WHS undertaking must specify the following
6
conditions:
7
(a) that the offender appears before the court if called on to do so
8
during the period of the adjournment and, if the court so
9
specifies, at the time to which the further hearing is
10
adjourned;
11
(b) that the offender does not commit, during the period of the
12
adjournment, any offence against this Act;
13
(c) that the offender observes any special conditions imposed by
14
the court.
15
(3) An offender who has given a court-ordered WHS undertaking
16
under this section may be called on to appear before the court by
17
order of the court.
18
(4) An order under subsection (3) must be served on the offender not
19
less than 4 days before the time specified in it for the appearance.
20
(5) If the court is satisfied at the time to which a further hearing of a
21
proceeding is adjourned that the offender has observed the
22
conditions of the court-ordered WHS undertaking, it must
23
discharge the offender without any further hearing of the
24
proceeding.
25
240 Injunctions
26
If a court finds a person guilty of an offence against this Act, the
27
court may issue an injunction requiring the person to cease
28
contravening this Act.
29
Note:
An injunction may also be obtained under section 215 for
30
noncompliance with a non-disturbance notice, improvement notice or
31
prohibition notice.
32
Legal proceedings Part 13
Sentencing for offences Division 2
Section 241
Work Health and Safety Bill 2011 No. , 2011 165
241 Training orders
1
The court may make an order requiring the person to undertake or
2
arrange for 1 or more workers to undertake a specified course of
3
training.
4
242 Offence to fail to comply with order
5
(1) A person must not, without reasonable excuse, fail to comply with
6
an order under this Division.
7
Penalty:
8
(a) In the case of an individual--$50 000.
9
(b) In the case of a body corporate--$250 000.
10
(2) Subsection (1) places an evidential burden on the accused to show
11
a reasonable excuse.
12
(3) This section does not apply to an order or injunction under
13
section 239 or 240.
14
15
Part 13 Legal proceedings
Division 3 Infringement notices
Section 243
166 Work Health and Safety Bill 2011 No. , 2011
Division 3--Infringement notices
1
243 Infringement notices
2
(1) If an inspector has reasonable grounds to believe that a person has
3
contravened a provision enforceable under this Division, the
4
inspector may give to the person an infringement notice for the
5
alleged contravention.
6
(2) The infringement notice must be given within 12 months after the
7
day on which the contravention is alleged to have taken place.
8
(3) A single infringement notice must relate only to a single
9
contravention of a single provision enforceable under this Division.
10
(4) The regulations may prescribe provisions that are enforceable
11
under this Division.
12
243A Matters to be included in an infringement notice
13
(1) An infringement notice must:
14
(a) be identified by a unique number; and
15
(b) state the day on which it is given; and
16
(c) state the name of the person to whom the notice is given; and
17
(d) state the name and position of the person who gave the
18
notice; and
19
(e) give brief details of the alleged contravention, including:
20
(i) the provision that was allegedly contravened; and
21
(ii) the maximum penalty that a court could impose for the
22
contravention; and
23
(iii) the time (if known) and day of, and the place of, the
24
alleged contravention; and
25
(f) state the amount that is payable under the notice; and
26
(g) give an explanation of how payment of the amount is to be
27
made; and
28
(h) state that, if the person to whom the notice is given pays the
29
amount within 28 days after the day the notice is given, then
30
(unless the notice is withdrawn):
31
Legal proceedings Part 13
Infringement notices Division 3
Section 243A
Work Health and Safety Bill 2011 No. , 2011 167
(i) if the provision is an offence provision--the person will
1
not be liable to be prosecuted in a court for the alleged
2
contravention; and
3
(ii) if the provision is a WHS civil penalty provision--
4
proceedings seeking an order under section 259 will not
5
be brought in relation to the alleged contravention; and
6
(i) state that payment of the amount is not an admission of guilt
7
or liability; and
8
(j) state that the person may apply to the regulator to have the
9
period in which to pay the amount extended; and
10
(k) state that the person may choose not to pay the amount and, if
11
the person does so:
12
(i) if the provision is an offence provision--the person may
13
be prosecuted in a court for the alleged contravention;
14
and
15
(ii) if the provision is a WHS civil penalty provision--
16
proceedings seeking an order under section 259 may be
17
brought in relation to the alleged contravention; and
18
(l) set out how the notice can be withdrawn; and
19
(m) state that if the notice is withdrawn:
20
(i) any amount paid under the notice must be refunded; and
21
(ii) if the provision is an offence provision--the person may
22
be prosecuted in a court for the alleged contravention;
23
and
24
(iii) if the provision is a WHS civil penalty provision--
25
proceedings seeking an order under section 259 may be
26
brought in relation to the alleged contravention; and
27
(n) state that the person may make written representations to the
28
regulator seeking the withdrawal of the notice.
29
(2) For the purposes of subsection (1)(f), the amount to be stated in an
30
infringement notice for the alleged contravention of a provision by
31
a person must be equal to the amount prescribed for the
32
contravention of the provision by the person.
33
(3) The amount prescribed for the contravention of a provision by a
34
person must be no more than one-fifth of the maximum penalty
35
that a court could impose on the person for a contravention of the
36
provision.
37
Part 13 Legal proceedings
Division 3 Infringement notices
Section 243B
168 Work Health and Safety Bill 2011 No. , 2011
243B Extension of time to pay amount
1
(1) A person to whom an infringement notice has been given may
2
apply to the regulator for an extension of the period referred to in
3
section 243A(1)(h).
4
(2) If the application is made before the end of that period, the
5
regulator may, in writing, extend that period. The regulator may do
6
so before or after the end of that period.
7
(3) If the regulator extends that period, a reference in this Division, or
8
in a notice or other instrument under this Division, to the period
9
referred to in section 243A(1)(h) is taken to be a reference to that
10
period so extended.
11
(4) If the regulator does not extend that period, a reference in this
12
Division, or in a notice or other instrument under this Division, to
13
the period referred to in section 243A(1)(h) is taken to be a
14
reference to the period that ends on the later of the following days:
15
(a) the day that is the last day of the period referred to in
16
section 243A(1)(h);
17
(b) the day that is 7 days after the day the person was given
18
notice of the regulator's decision not to extend.
19
(5) The regulator may extend the period more than once under
20
subsection (2).
21
243C Withdrawal of an infringement notice
22
Representations seeking withdrawal of notice
23
(1) A person to whom an infringement notice has been given may
24
make written representations to the regulator seeking the
25
withdrawal of the notice.
26
Withdrawal of notice
27
(2) The regulator may withdraw an infringement notice given to a
28
person (whether or not the person has made written representations
29
seeking the withdrawal).
30
Legal proceedings Part 13
Infringement notices Division 3
Section 243C
Work Health and Safety Bill 2011 No. , 2011 169
(3) When deciding whether or not to withdraw an infringement notice
1
(the relevant infringement notice), the regulator:
2
(a) must take into account any written representations seeking
3
the withdrawal that were given by the person to the regulator;
4
and
5
(b) may take into account the following:
6
(i) whether a court has previously imposed a penalty on the
7
person for contravention of a provision enforceable
8
under this Division;
9
(ii) the circumstances of the alleged contravention;
10
(iii) whether the person has paid an amount, stated in an
11
earlier infringement notice, for contravention of a
12
provision enforceable under this Division if the
13
contravention is constituted by conduct that is the same,
14
or substantially the same, as the conduct alleged to
15
constitute the contravention in the relevant infringement
16
notice;
17
(iv) any other matter the inspector considers relevant.
18
Notice of withdrawal
19
(4) Notice of the withdrawal of the infringement notice must be given
20
to the person. The withdrawal notice must state:
21
(a) the person's name and address; and
22
(b) the day the infringement notice was given; and
23
(c) the identifying number of the infringement notice; and
24
(d) that the infringement notice is withdrawn; and
25
(e)
either:
26
(i) if the provision that was allegedly contravened is an
27
offence provision--that the person may be prosecuted
28
in a court for the alleged contravention; or
29
(ii) if the provision that was allegedly contravened is a
30
WHS civil penalty provision--that proceedings seeking
31
an order under section 259 may be brought in relation to
32
the alleged contravention.
33
Part 13 Legal proceedings
Division 3 Infringement notices
Section 243D
170 Work Health and Safety Bill 2011 No. , 2011
Refund of amount if infringement notice withdrawn
1
(5)
If:
2
(a) an authorised person withdraws the infringement notice; and
3
(b) the person has already paid the amount stated in the notice;
4
the Commonwealth must refund to the person an amount equal to
5
the amount paid.
6
243D Effect of payment of amount
7
(1) If the person to whom an infringement notice for an alleged
8
contravention of a provision is given pays the amount stated in the
9
notice before the end of the period referred to in
10
section 243A(1)(h):
11
(a) any liability of the person for the alleged contravention is
12
discharged; and
13
(b)
either:
14
(i) if the provision is an offence provision--the person may
15
not be prosecuted in a court for the alleged
16
contravention; or
17
(ii) if the provision is a WHS civil penalty provision--
18
proceedings seeking an order under section 259 may not
19
be brought against the person in relation to the alleged
20
contravention; and
21
(c) the person is not regarded as having admitted guilt or liability
22
for the alleged contravention; and
23
(d) if the provision is an offence provision--the person is not
24
regarded as having been convicted of the alleged offence.
25
(2) Subsection (1) does not apply if the notice has been withdrawn.
26
243E Effect of this Division
27
This Division does not:
28
(a) require an infringement notice to be given to a person for an
29
alleged contravention of a provision enforceable under this
30
Division; or
31
(b) affect the liability of a person for an alleged contravention of
32
a provision enforceable under this Division if:
33
Legal proceedings Part 13
Infringement notices Division 3
Section 243E
Work Health and Safety Bill 2011 No. , 2011 171
(i) the person does not comply with an infringement notice
1
given to the person for the contravention; or
2
(ii) an infringement notice is not given to the person for the
3
contravention; or
4
(iii) an infringement notice is given to the person for the
5
contravention and is subsequently withdrawn; or
6
(c) prevent the giving of 2 or more infringement notices to a
7
person for an alleged contravention of a provision
8
enforceable under this Division; or
9
(d) limit a court's discretion to determine the amount of a
10
penalty to be imposed on a person who is found to have
11
contravened a provision enforceable under this Division.
12
13
Part 13 Legal proceedings
Division 4 Offences by bodies corporate
Section 244
172 Work Health and Safety Bill 2011 No. , 2011
Division 4--Offences by bodies corporate
1
244 Imputing conduct to bodies corporate
2
Note:
Corporate criminal responsibility is dealt with in Part 2.5 of the
3
Criminal Code.
4
5
Legal proceedings Part 13
The Commonwealth Division 5
Section 245
Work Health and Safety Bill 2011 No. , 2011 173
Division 5--The Commonwealth
1
245 Offences and the Commonwealth
2
(1) If the Commonwealth is guilty of an offence against this Act, the
3
penalty to be imposed on the Commonwealth is the penalty
4
applicable to a body corporate.
5
(2) For the purposes of this Act, any conduct engaged in on behalf of
6
the Commonwealth by an employee, agent or officer of the
7
Commonwealth acting within the actual or apparent scope of his or
8
her employment, or within his or her actual or apparent authority,
9
is conduct also engaged in by the Commonwealth.
10
(3) If an offence under this Act requires proof of knowledge, intention
11
or recklessness, it is sufficient in proceedings against the
12
Commonwealth for that offence to prove that the person referred to
13
in subsection (2) had the relevant knowledge, intention or
14
recklessness.
15
(4) If for an offence against this Act mistake of fact is relevant to
16
determining liability, it is sufficient in proceedings against the
17
Commonwealth for that offence if the person referred to in
18
subsection (2) made that mistake of fact.
19
246 WHS civil penalty provisions and the Commonwealth
20
(1) If the Commonwealth contravenes a WHS civil penalty provision,
21
the monetary penalty to be imposed on the Commonwealth is the
22
penalty applicable to a body corporate.
23
(2) For the purposes of a WHS civil penalty provision, any conduct
24
engaged in on behalf of the Commonwealth by an employee, agent
25
or officer of the Commonwealth acting within the actual or
26
apparent scope of his or her employment, or within his or her
27
actual or apparent authority, is conduct also engaged in by the
28
Commonwealth.
29
(3) If a WHS civil penalty provision requires proof of knowledge, it is
30
sufficient in proceedings against the Commonwealth for a
31
Part 13 Legal proceedings
Division 5 The Commonwealth
Section 247
174 Work Health and Safety Bill 2011 No. , 2011
contravention of that provision to prove that the person referred to
1
in subsection (2) had that knowledge.
2
247 Officers
3
(1) A person who makes, or participates in making, decisions that
4
affect the whole, or a substantial part, of a business or undertaking
5
of the Commonwealth is taken to be an officer of the
6
Commonwealth for the purposes of this Act.
7
(2) A Minister of a State or the Commonwealth is not in that capacity
8
an officer for the purposes of this Act.
9
248 Responsible agency for the Commonwealth
10
(1) A provisional improvement notice, improvement notice,
11
prohibition notice, non-disturbance notice, infringement notice or
12
notice of entry under Part 7 to be given to or served on the
13
Commonwealth under this Act may be given to or served on the
14
responsible agency.
15
(2) If an infringement notice is to be served on the Commonwealth for
16
an offence against this Act, the responsible agency may be
17
specified in the infringement notice.
18
(3) If proceedings are brought against the Commonwealth for an
19
offence against this Act or in relation to a contravention of this
20
Act, the responsible agency in relation to the offence or
21
contravention may be specified in any document initiating, or
22
relating to, the proceedings.
23
(4) The responsible agency in relation to an offence or a contravention
24
of this Act is entitled to act in proceedings against the
25
Commonwealth for the offence or relating to the contravention
26
and, subject to any relevant rules of court, the procedural rights and
27
obligations of the Commonwealth as the accused or defendant in
28
the proceedings are conferred or imposed on the responsible
29
agency.
30
Legal proceedings Part 13
The Commonwealth Division 5
Section 248
Work Health and Safety Bill 2011 No. , 2011 175
(5) The person prosecuting the offence or bringing the proceedings
1
may change the responsible agency during the proceedings with
2
the court's leave.
3
(6) In this section, the responsible agency:
4
(a) in relation to a notice referred to in subsection (1) is:
5
(i) in the case of a provisional improvement notice,
6
improvement notice or infringement notice, the agency
7
of the Commonwealth the acts or omissions of which
8
are alleged to contravene this Act;
9
(ii) in the case of a prohibition notice, the agency of the
10
Commonwealth which has control over the activity
11
referred to in section 195(1)(a) or (b);
12
(iii) in the case of a non-disturbance notice, the agency of
13
the Commonwealth with the management and control of
14
the workplace;
15
(iv) in the case of a notice of entry under Part 7, the agency
16
of the Commonwealth conducting the relevant business
17
or undertaking or with the management and control of
18
the workplace; and
19
(b) in relation to an offence or proceedings for a contravention of
20
this Act, is the agency of the Commonwealth:
21
(i) the acts or omissions of which are alleged to constitute
22
the offence or contravention; or
23
(ii) if that agency has ceased to exist, that is the successor of
24
that agency; or
25
(iii) if that agency has ceased to exist and there is no clear
26
successor, that the court declares to be the responsible
27
agency.
28
29
Part 13 Legal proceedings
Division 6 Public authorities
Section 249
176 Work Health and Safety Bill 2011 No. , 2011
Division 6--Public authorities
1
249 Application to public authorities that are bodies corporate
2
This Division applies only to public authorities that are bodies
3
corporate.
4
250 Proceedings against public authorities
5
(1) Proceedings may be brought under this Act against a public
6
authority in its own name.
7
(2) Nothing in this Division affects any privileges that a public
8
authority may have under the Crown.
9
251 Imputing conduct to public authorities
10
(1) For the purposes of this Act, any conduct engaged in on behalf of a
11
public authority by an employee, agent or officer of the public
12
authority acting within the actual or apparent scope of his or her
13
employment, or within his or her actual or apparent authority, is
14
conduct also engaged in by the public authority.
15
(2) If an offence under this Act requires proof of knowledge, intention
16
or recklessness, it is sufficient in proceedings against the public
17
authority for that offence to prove that the person referred to in
18
subsection (1) had the relevant knowledge, intention or
19
recklessness.
20
(3) If for an offence against this Act mistake of fact is relevant to
21
determining liability, it is sufficient in proceedings against the
22
public authority for that offence if the person referred to in
23
subsection (1) made that mistake of fact.
24
252 Officer of public authority
25
A person who makes, or participates in making, decisions that
26
affect the whole, or a substantial part, of the business or
27
undertaking of a public authority is taken to be an officer of the
28
public authority for the purposes of this Act.
29
Legal proceedings Part 13
Public authorities Division 6
Section 253
Work Health and Safety Bill 2011 No. , 2011 177
253 Proceedings against successors to public authorities
1
(1) Proceedings for an offence against this Act that were instituted
2
against a public authority before its dissolution, or that could have
3
been instituted against a public authority if not for its dissolution,
4
may be continued or instituted against its successor if the successor
5
is a public authority.
6
(2) An infringement notice served on a public authority for an offence
7
against this Act is taken to be an infringement notice served on its
8
successor if the successor is a public authority.
9
(3) Similarly, any penalty paid by a public authority in relation to an
10
infringement notice is taken to be a penalty paid by its successor if
11
the successor is a public authority.
12
13
Part 13 Legal proceedings
Division 7 WHS civil penalty provisions
Section 254
178 Work Health and Safety Bill 2011 No. , 2011
Division 7--WHS civil penalty provisions
1
254 When is a provision a WHS civil penalty provision
2
(1) A subsection of Part 7 (or a section of Part 7 that is not divided into
3
subsections) is a WHS civil penalty provision if:
4
(a) the words "WHS civil penalty provision" and 1 or more
5
amounts by way of monetary penalty are set out at the foot of
6
the subsection (or section); or
7
(b) another provision of Part 7 specifies that the subsection (or
8
section) is a WHS civil penalty provision.
9
(2) A subregulation (or a regulation that is not divided into
10
subregulations) is a WHS civil penalty provision if:
11
(a) the words "WHS civil penalty provision" and 1 or more
12
amounts by way of monetary penalty are set out at the foot of
13
the subregulation (or regulation); or
14
(b) another provision of the regulations specifies that the
15
subregulation (or regulation) is a WHS civil penalty
16
provision.
17
255 Proceedings for contravention of WHS civil penalty provision
18
Subject to this Division, proceedings may be brought in a court
19
against a person for a contravention of a WHS civil penalty
20
provision.
21
256 Involvement in contravention treated in same way as actual
22
contravention
23
(1) A person who is involved in a contravention of a WHS civil
24
penalty provision is taken to have contravened that provision.
25
(2) A person is involved in a contravention of a civil penalty provision
26
if, and only if, the person:
27
(a) has aided, abetted, counselled or procured the contravention;
28
or
29
(b) has induced the contravention, whether by threats or
30
promises or otherwise; or
31
Legal proceedings Part 13
WHS civil penalty provisions Division 7
Section 257
Work Health and Safety Bill 2011 No. , 2011 179
(c) has been in any way, by act or omission, directly or
1
indirectly, knowingly concerned in or party to the
2
contravention; or
3
(d) has conspired with others to effect the contravention.
4
257 Contravening a civil penalty provision is not an offence
5
A contravention of a WHS civil penalty provision is not an
6
offence.
7
258 Civil proceeding rules and procedure to apply
8
A court must apply the rules of evidence and procedure for civil
9
proceedings when hearing proceedings for a contravention of a
10
WHS civil penalty provision.
11
259 Proceeding for a contravention of a WHS civil penalty provision
12
(1) In a proceeding for a contravention of a WHS civil penalty
13
provision, if the court is satisfied that a person has contravened a
14
WHS civil penalty provision, the court may:
15
(a) order the person to pay a monetary penalty that the court
16
considers appropriate; and
17
(b) make any other order that the court considers appropriate,
18
including an injunction.
19
(2) A monetary penalty imposed under subsection (1) must not exceed
20
the relevant maximum amount of monetary penalty specified under
21
Part 7 or the regulations in relation to a contravention of that WHS
22
civil penalty provision.
23
260 Proceeding may be brought by the regulator or an inspector
24
Proceedings for a contravention of a WHS civil penalty provision
25
may only be brought by:
26
(a) the regulator; or
27
(b) an inspector with the written authorisation of the regulator
28
(either generally or in a particular case).
29
Part 13 Legal proceedings
Division 7 WHS civil penalty provisions
Section 261
180 Work Health and Safety Bill 2011 No. , 2011
261 Limitation period for WHS civil penalty proceedings
1
Proceedings for a contravention of a WHS civil penalty provision
2
may be brought within 2 years after the contravention first comes
3
to the notice of the regulator.
4
262 Recovery of a monetary penalty
5
If the court orders a person to pay a monetary penalty:
6
(a) the penalty is payable to the Commonwealth; and
7
(b) the regulator may enforce the order as if it were a judgment
8
of the court.
9
263 Civil double jeopardy
10
A court must not make an order against a person under section 259
11
for contravention of a WHS civil penalty provision if an order has
12
been made against the person under a civil penalty provision under
13
an Act of the Commonwealth or a State in relation to conduct that
14
is substantially the same as the conduct constituting the
15
contravention.
16
264 Criminal proceedings during civil proceedings
17
(1) Proceedings against a person for a contravention of a WHS civil
18
penalty provision are stayed if:
19
(a) criminal proceedings are commenced or have already
20
commenced against the person for an offence; and
21
(b) the offence is constituted by conduct that is substantially the
22
same as the conduct alleged to constitute the contravention of
23
the WHS civil penalty provision.
24
(2) The proceedings for the order may be resumed if the person is not
25
convicted or found guilty of the offence. Otherwise, the
26
proceedings for the order are dismissed.
27
265 Criminal proceedings after civil proceedings
28
Criminal proceedings may be commenced against a person for
29
conduct that is substantially the same as conduct constituting a
30
Legal proceedings Part 13
WHS civil penalty provisions Division 7
Section 266
Work Health and Safety Bill 2011 No. , 2011 181
contravention of a WHS civil penalty provision regardless of
1
whether an order has been made against the person under
2
section 259.
3
266 Evidence given in proceedings for contravention of WHS civil
4
penalty provision not admissible in criminal proceedings
5
(1) Evidence of information given, or evidence of production of
6
documents, by an individual is not admissible in criminal
7
proceedings against the individual if:
8
(a) the individual previously gave the information or produced
9
the documents in proceedings against the individual for a
10
contravention of a WHS civil penalty provision (whether or
11
not the order was made); and
12
(b) the conduct alleged to constitute the offence is substantially
13
the same as the conduct alleged to constitute the
14
contravention of the WHS civil penalty provision.
15
(2) However, this does not apply to criminal proceedings in relation to
16
the falsity of the evidence given by the individual in the
17
proceedings for the contravention of the WHS civil penalty
18
provision.
19
20
Part 13 Legal proceedings
Division 8 Civil liability not affected by this Act
Section 267
182 Work Health and Safety Bill 2011 No. , 2011
Division 8--Civil liability not affected by this Act
1
267 Civil liability not affected by this Act
2
Except as provided in Part 6 and Part 7 and Division 7 of this Part,
3
nothing in this Act is to be construed as:
4
(a) conferring a right of action in civil proceedings in relation to
5
a contravention of a provision of this Act; or
6
(b) conferring a defence to an action in civil proceedings or
7
otherwise affecting a right of action in civil proceedings; or
8
(c) affecting the extent (if any) to which a right of action arises,
9
or civil proceedings may be brought, in relation to breaches
10
of duties or obligations imposed by the regulations.
11
12
General Part 14
General provisions Division 1
Section 268
Work Health and Safety Bill 2011 No. , 2011 183
Part 14--General
1
Division 1--General provisions
2
268 Offence to give false or misleading information
3
Note:
Part 7.4 of the Criminal Code contains offences dealing with false and
4
misleading information.
5
269 Act does not affect legal professional privilege
6
Nothing in this Act requires a person to produce a document that
7
would disclose information, or otherwise provide information, that
8
is the subject of legal professional privilege.
9
270 Immunity from liability
10
(1) An inspector, or other person engaged in the administration of this
11
Act, incurs no civil liability for an act or omission done or omitted
12
to be done in good faith and in the execution or purported
13
execution of powers and functions under this Act.
14
(2) A civil liability that would, but for subsection (1), attach to a
15
person, attaches instead to the Commonwealth.
16
271 Confidentiality of information
17
(1) This section applies if a person obtains information or gains access
18
to a document in exercising any power or function under this Act
19
(other than under Part 7).
20
(2) The person must not do any of the following:
21
(a) disclose to anyone else:
22
(i) the information; or
23
(ii) the contents of or information contained in the
24
document;
25
(b) give access to the document to anyone else;
26
(c) use the information or document for any purpose.
27
Penalty:
28
Part 14 General
Division 1 General provisions
Section 271
184 Work Health and Safety Bill 2011 No. , 2011
(a) In the case of an individual--$10 000.
1
(b) In the case of a body corporate--$50 000.
2
(3) Subsection (2) does not apply to the disclosure of information, or
3
the giving of access to a document or the use of information or a
4
document:
5
(a) about a person, with the person's consent; or
6
(b) that is necessary for the exercise of a power or function under
7
this Act; or
8
(c) that is made or given by the regulator or a person authorised
9
by the regulator if the regulator reasonably believes the
10
disclosure, access or use:
11
(i) is necessary for administering, or monitoring or
12
enforcing compliance with, this Act; or
13
(ii) is necessary for the administration or enforcement of
14
another Act prescribed by the regulations; or
15
(iii) is necessary for the administration or enforcement of
16
another Act or law, if the disclosure, access or use is
17
necessary to lessen or prevent a serious risk to public
18
health or safety; or
19
(iv) is necessary for the recognition of authorisations under a
20
corresponding WHS law; or
21
(v) is required for the exercise of a power or function under
22
a corresponding WHS law; or
23
(d) that is required by any court, tribunal, authority or person
24
having lawful authority to require the production of
25
documents or the answering of questions; or
26
(e) that is required or authorised under a law; or
27
(f) to a Minister.
28
(4) A person commits an offence if:
29
(a) the person (the defendant) intentionally discloses to another
30
person the name of an individual; and
31
(b) the individual has made a complaint in relation to the person
32
to whom the individual's name is disclosed; and
33
(c) the defendant knows or is reckless as to that fact.
34
General Part 14
General provisions Division 1
Section 272
Work Health and Safety Bill 2011 No. , 2011 185
However, the defendant does not commit an offence if the
1
disclosure is made with the consent of the individual or is required
2
under a law.
3
Penalty:
4
(a) In the case of an individual--$10 000.
5
(b) In the case of a body corporate--$50 000.
6
272 No contracting out
7
A term of any agreement or contract that purports to exclude, limit
8
or modify the operation of this Act or any duty owed under this
9
Act or to transfer to another person any duty owed under this Act is
10
void.
11
273 Person not to levy workers
12
A person conducting a business or undertaking must not impose a
13
levy or charge on a worker, or permit a levy or charge to be
14
imposed on a worker, for anything done, or provided, in relation to
15
work health and safety.
16
Penalty:
17
(a) In the case of an individual--$5000.
18
(b) In the case of a body corporate--$25 000.
19
273A Conferral of jurisdiction
20
(1) Jurisdiction is conferred on the following courts in relation to any
21
civil matter arising under this Act:
22
(a) the Federal Court of Australia (the Federal Court);
23
(b) the Federal Magistrates Court;
24
(c) the Supreme Court of a State or of the Australian Capital
25
Territory or the Northern Territory;
26
(d) a court of a State or Territory prescribed by the regulations
27
for the purposes of this section.
28
(2) The jurisdiction conferred on the Federal Court in subsection (1) is
29
to be exercised in the Fair Work Division of the Federal Court if:
30
(a) an application is made to the Federal Court under this Act; or
31
Part 14 General
Division 1 General provisions
Section 273A
186 Work Health and Safety Bill 2011 No. , 2011
(b) a writ of mandamus or prohibition or an injunction is sought
1
in the Federal Court against the regulator, the authorising
2
authority or an inspector; or
3
(c) a declaration is sought under section 21 of the Federal Court
4
of Australia Act 1976 in relation to a matter arising under this
5
Act; or
6
(d) an injunction is sought under section 23 of the Federal Court
7
of Australia Act 1976 in relation to a matter arising under this
8
Act; or
9
(e) an appeal is instituted in the Federal Court from a judgment
10
of the Federal Magistrates Court or a court of a State in a
11
matter arising under this Act; or
12
(f) proceedings in relation to a matter arising under this Act are
13
transferred to the Federal Court from the Federal Magistrates
14
Court; or
15
(g) the Federal Magistrates Court or a court of a State states a
16
case or reserves a question for the consideration of the
17
Federal Court in a matter arising under this Act; or
18
(h) the High Court remits a matter arising under this Act to the
19
Federal Court.
20
(3) The jurisdiction conferred on the Federal Magistrates Court in
21
subsection (1) is to be exercised in the Fair Work Division of the
22
Federal Magistrates Court if:
23
(a) an application is made to the Federal Magistrates Court under
24
this Act; or
25
(b) an injunction is sought under section 15 of the Federal
26
Magistrates Act 1999 in relation to a matter arising under this
27
Act; or
28
(c) a declaration is sought under section 16 of the Federal
29
Magistrates Act 1999 in relation to a matter arising under this
30
Act; or
31
(d) proceedings in relation to a matter arising under this Act are
32
transferred to the Federal Magistrates Court from the Federal
33
Court; or
34
(e) the High Court remits a matter arising under this Act to the
35
Federal Magistrates Court.
36
General Part 14
General provisions Division 1
Section 273B
Work Health and Safety Bill 2011 No. , 2011 187
273B Application of the Legislative Instruments Act 2003
1
(1) The following are to be made by legislative instrument:
2
(a) a declaration under section 7(2F) (declaration that persons of
3
a class are workers);
4
(b) a declaration under section 12D(2) (application where Act
5
would prejudice Australia's defence);
6
(c) a general direction or a direction relating to a specified class
7
of matter under section 162(1) (exercise of inspector's
8
powers);
9
(d) a code of practice, or a variation or revocation of a code of
10
practice, that is approved by the Minister under
11
section 274(1).
12
(2) The following are not legislative instruments (if done by an
13
instrument in writing):
14
(a) a declaration under section 12C(2) (application where Act
15
would prejudice Australia's national security);
16
(b) an approval under section 72(1)(a) (approval of course of
17
training);
18
(c) a notice under section 139(1)(a) (show cause notice);
19
(d) a register kept under section 151 (register of WHS entry
20
permit holders);
21
(e) advice or information provided in writing under
22
section 152(c) or 160(a) (provision of advice and information
23
by Comcare and inspectors);
24
(f) a direction relating to a specified matter under section 162(1)
25
(exercise of inspector's powers);
26
(g) a notice under section 191(2) (improvement notice);
27
(h) a notice under section 195(3) (prohibition notice);
28
(i) a notice under section 198 (non-disturbance notice);
29
(j) guidelines issued under section 230(3) (prosecution of
30
offences and acceptance of WHS undertakings);
31
(k) a notice under section 231(5) (notice of conclusion of
32
Director of Public Prosecutions on possible prosecution, and
33
reasons for conclusion).
34
Part 14 General
Division 2 Codes of practice
Section 274
188 Work Health and Safety Bill 2011 No. , 2011
Division 2--Codes of practice
1
274 Approved codes of practice
2
(1) The Minister may approve a code of practice for the purposes of
3
this Act and may vary or revoke an approved code of practice.
4
(2) The Minister may only approve, vary or revoke a code of practice
5
under subsection (1) if that code of practice, variation or revocation
6
was developed by a process that involved consultation between:
7
(a) the Governments of the Commonwealth and each State and
8
Territory; and
9
(b)
unions;
and
10
(c)
employer
organisations.
11
(3) A code of practice may apply, adopt or incorporate any matter
12
contained in a document formulated, issued or published by a
13
person or body whether:
14
(a) with or without modification; or
15
(b) as in force at a particular time or from time to time.
16
Note:
Subsection (4) is included in some jurisdictions to deal with
17
publication and commencement of an approved code of practice.
18
Under this Act, an approved code of practice is a legislative
19
instrument (see section 275B(1)) and so will be registered on the
20
Federal Register of Legislative Instruments and commence in
21
accordance with section 12 of the Legislative Instruments Act 2003.
22
(5) As soon as practicable after approving a code of practice, or
23
varying or revoking an approved code of practice, the Minister
24
must ensure that notice of the approval, variation or revocation is
25
published in a newspaper circulating generally throughout the
26
Commonwealth.
27
(6) The regulator must ensure that a copy of:
28
(a) each code of practice that is currently approved; and
29
(b) each document applied, adopted or incorporated (to any
30
extent) by an approved code of practice;
31
is available for inspection by members of the public without charge
32
at the office of the regulator during normal business hours.
33
General Part 14
Regulation-making powers Division 3
Section 275
Work Health and Safety Bill 2011 No. , 2011 189
275 Use of codes of practice in proceedings
1
(1) This section applies in a proceeding for an offence against this Act.
2
(2) An approved code of practice is admissible in the proceeding as
3
evidence of whether or not a duty or obligation under this Act has
4
been complied with.
5
(3) The court may:
6
(a) have regard to the code as evidence of what is known about a
7
hazard or risk, risk assessment or risk control to which the
8
code relates; and
9
(b) rely on the code in determining what is reasonably
10
practicable in the circumstances to which the code relates.
11
Note:
See section 18 for the meaning of reasonably practicable.
12
(4) Nothing in this section prevents a person from introducing
13
evidence of compliance with this Act in a manner that is different
14
from the code but provides a standard of work health and safety
15
that is equivalent to or higher than the standard required in the
16
code.
17
Division 3--Regulation-making powers
18
276 Regulation-making powers
19
(1) The Governor-General may make regulations in relation to:
20
(a) any matter relating to work health and safety; and
21
(b) any matter or thing required or permitted by this Act to be
22
prescribed or that is necessary or convenient to be prescribed
23
to give effect to this Act.
24
(2) Without limiting subsection (1), the regulations may make
25
provision for or in relation to matters set out in Schedule 3.
26
(3) The regulations may:
27
(a) be of general or limited application; or
28
(b) differ according to differences in time, place or circumstance;
29
or
30
Part 14 General
Division 3 Regulation-making powers
Section 276
190 Work Health and Safety Bill 2011 No. , 2011
(c) leave any matter or thing to be, from time to time,
1
determined, applied or approved by the regulator, an
2
inspector or any other prescribed person or body of persons;
3
or
4
(d) apply, adopt or incorporate any matter contained in any
5
document formulated, issued or published by a person or
6
body whether:
7
(i) with or without modification; or
8
(ii) as in force at a particular time or as in force or remade
9
from time to time; or
10
(e) prescribe exemptions from complying with any of the
11
regulations on the terms and conditions (if any) prescribed; or
12
(f) allow the regulator to provide exemptions from complying
13
with any of the regulations on the terms and conditions (if
14
any) prescribed or, if the regulations allow, on the terms and
15
conditions (if any) determined by the regulator; or
16
(g) prescribe fees for doing any act or providing any service for
17
the purposes of this Act and prescribe the circumstances and
18
way in which fees can be refunded, waived or reduced; or
19
(h) prescribe a penalty for any contravention of the regulations
20
not exceeding $30 000; or
21
(i) prescribe an infringement penalty for each infringement
22
offence which must not exceed 20 per cent of the penalty for
23
the offence which is prescribed as the infringement offence.
24
Application of Act to dangerous goods and high risk plant Schedule 1
Work Health and Safety Bill 2011 No. , 2011 191
Schedule 1--Application of Act to dangerous
1
goods and high risk plant
2
3
4
Note:
In some jurisdictions, Schedule 1 of the corresponding WHS law applies that law to
5
work health and safety issues arising from the storage and handling of dangerous goods
6
and the operation or use of high risk plant. This is not the case under this Act.
7
Schedule 2 The regulator and local tripartite consultation arrangements and other local
arrangements
Part 1 Preliminary
Clause 1
192 Work Health and Safety Bill 2011 No. , 2011
Schedule 2--The regulator and local
1
tripartite consultation arrangements
2
and other local arrangements
3
Part 1--Preliminary
4
5
1 Definitions
6
In this Schedule:
7
Commission means the Safety, Rehabilitation and Compensation
8
Commission established by section 89A of the Safety,
9
Rehabilitation and Compensation Act 1988.
10
11
The regulator and local tripartite consultation arrangements and other local
arrangements Schedule 2
The Commission Part 2
Clause 2
Work Health and Safety Bill 2011 No. , 2011 193
Part 2--The Commission
1
2
2 Functions
3
For the purposes of paragraph 89B(c) of the Safety, Rehabilitation
4
and Compensation Act 1988, the following additional functions are
5
conferred on the Commission:
6
(a) to advise the Minister on the administration of this Act;
7
(b) to advise and make recommendations to the Minister on the
8
most effective means of giving effect to the objects of this
9
Act;
10
(c) to enquire into and make recommendations to the Minister on
11
any matter relating to work health and safety referred to the
12
Commission by the Minister;
13
(d) to provide a forum for consultation between Comcare and
14
persons conducting businesses or undertakings, workers and
15
the bodies that represent them.
16
17
Schedule 2 The regulator and local tripartite consultation arrangements and other local
arrangements
Part 3 Comcare
Clause 3
194 Work Health and Safety Bill 2011 No. , 2011
Part 3--Comcare
1
2
3 Annual reports
3
The annual report of Comcare for a financial year must include:
4
(a) statistics, with appropriate details, of each of the following:
5
(i) notifiable incidents of which Comcare is notified under
6
section 38 during the year;
7
(ii) all investigations conducted by Comcare during the
8
year;
9
(iii) all seizures made under section 175 or 176 during the
10
year;
11
(iv) all improvement notices issued under section 191 during
12
the year;
13
(v) all prohibition notices issued under section 195 during
14
the year;
15
(vi) all non-disturbance notices issued under section 198
16
during the year;
17
(vii) all remedial action taken under section 211 or 212
18
during the year;
19
(viii) all written undertakings accepted by Comcare under
20
section 216 during the year;
21
(ix) all applications for internal review made under
22
section 224 during the year;
23
(x) all applications for external review made under
24
section 229 during the year;
25
(xi) all infringement notices given under section 243 during
26
the year; and
27
(b) details of prosecutions instituted under this Act during the
28
year; and
29
(c) any other matter prescribed.
30
Note:
Under section 90 of the Safety, Rehabilitation and Compensation Act
31
1988, details of any directions given by the Minister under section 73
32
of that Act must also be reported.
33
34
The regulator and local tripartite consultation arrangements and other local
arrangements Schedule 2
Other persons Part 4
Clause 4
Work Health and Safety Bill 2011 No. , 2011 195
Part 4--Other persons
1
2
4 Annual reports
3
(1) Each of the following entities must include the matters mentioned
4
in subclause (2) in its annual report for a financial year:
5
(a) person or body that is an agency within the meaning of the
6
Financial Management and Accountability Act 1997;
7
(b) a public authority.
8
(2) The matters are:
9
(a) initiatives taken during the year to ensure the health, safety
10
and welfare of workers who carry out work for the entity; and
11
(b) health and safety outcomes (including the impact on injury
12
rates of workers) achieved as a result of initiatives mentioned
13
under paragraph (a) or previous initiatives; and
14
(c) statistics of any notifiable incidents of which the entity
15
becomes aware during the year that arose out of the conduct
16
of businesses or undertakings by the entity; and
17
(d) any investigations conducted during the year that relate to
18
businesses or undertakings conducted by the entity, including
19
details of all notices given to the entity during the year under
20
Part 10 of this Act; and
21
(e) such other matters as are required by guidelines approved on
22
behalf of the Parliament by the Joint Committee of Public
23
Accounts and Audit.
24
25
Schedule 3 Regulation-making powers
Clause 1
196 Work Health and Safety Bill 2011 No. , 2011
Schedule 3--Regulation-making powers
1
2
3
1 Duties
4
1.1 Matters relating to the way in which duties imposed by this Act are
5
to be performed.
6
1.2 Matters relating to the regulation or prohibition of specified
7
activities or a specified class of activities:
8
(a) at workplaces or a specified class of workplaces; or
9
(b) by a specified class of persons on whom duties or obligations
10
are imposed by this Act;
11
to eliminate or minimise risks to health and safety.
12
1.3 Imposing duties on persons in relation to any matter provided for
13
under the regulations.
14
2 Incidents
15
Matters relating to incidents at workplaces including:
16
(a) regulating or requiring the taking of any action to avoid an
17
incident at a workplace or in the course of conducting a
18
business or undertaking; and
19
(b) regulating, requiring or prohibiting the taking of any action in
20
the event of an incident at a workplace or in the conduct of a
21
business or undertaking.
22
3 Plant, substances or structures
23
Matters relating to plant, substances or structures, including:
24
(a) regulating the storage and handling of plant, substances and
25
structures; and
26
(b) regulating or requiring:
27
(i) the examination, testing, labelling, maintenance or
28
repair of plant and structures; or
29
(ii) the examination, testing, analysis or labelling of any
30
substance.
31
Regulation-making powers Schedule 3
Clause 4
Work Health and Safety Bill 2011 No. , 2011 197
4 Protection and welfare of workers
1
Matters relating to the protection and welfare of workers including:
2
(a) regulating or requiring the provision and use of protective
3
clothing or equipment, or rescue equipment, in specified
4
circumstances; and
5
(b) regulating or requiring the provision of specified facilities for
6
the welfare of workers at the workplace; and
7
(c) matters relating to health and safety in relation to
8
accommodation provided to workers.
9
5 Hazards and risks
10
Matters relating to hazards and risks including:
11
(a) the prescribing of standards relating to the use of or exposure
12
to any physical, biological, chemical or psychological hazard;
13
and
14
(b) matters relating to safety cases, safety management plans and
15
safety management systems (however described); and
16
(c) matters relating to measures to control risks.
17
6 Records and notices
18
6.1 The keeping and availability of records of health and safety
19
representatives and deputy health and safety representatives.
20
6.2 The keeping of records in relation to incidents.
21
6.3 The keeping of records of specified activities, matters or things to
22
be kept by specified persons.
23
6.4 The giving of notice of or information about specified activities,
24
matters or things to the regulator, an inspector or other specified
25
person.
26
7 Authorisations
27
7.1 Matters relating to authorisations (including licences, registrations
28
and permits) and qualifications, and experience for the purposes of
29
Part 4 or the regulations including providing for:
30
Schedule 3 Regulation-making powers
Clause 8
198 Work Health and Safety Bill 2011 No. , 2011
(a) applications for the grant, issue, renewal, variation,
1
suspension and cancellation of authorisations, including the
2
minimum age to be eligible for an authorisation; and
3
(b) the evidence and information to be provided in relation to
4
applications including the provision of statutory declarations;
5
and
6
(c)
exemptions;
and
7
(d) variations of authorisations by the regulator whether on
8
application or otherwise; and
9
(e) authorisation of persons as trainers and assessors; and
10
(f) examination of applicants for authorisations; and
11
(g) conditions of authorisations; and
12
(h) fees for applications for the grant, issue, renewal and
13
variation of authorisations.
14
7.2 The recognition of authorisations under corresponding WHS laws
15
and exceptions to recognition.
16
7.3 The sharing of information with corresponding regulators relating
17
to the grant, issue, renewal, variation, suspension or cancellation of
18
authorisations.
19
8 Work groups
20
Matters relating to work groups and variation of work groups and
21
agreements or variations of agreements relating to the
22
determination of work groups.
23
9 Health and safety committees and health and safety
24
representatives
25
Matters relating to health and safety committees and health and
26
safety representatives.
27
10 Issue resolution
28
Matters relating to issue resolution including:
29
(a) the minimum requirements for an agreed procedure for
30
resolving an issue; and
31
Regulation-making powers Schedule 3
Clause 11
Work Health and Safety Bill 2011 No. , 2011 199
(b) the requirements for a default issue resolution procedure
1
where there is no agreed procedure.
2
11 WHS entry permits
3
Matters relating to WHS entry permits, including providing for:
4
(a) eligibility for WHS entry permits; and
5
(b) procedures for applications for WHS entry permits and
6
objections to applications for WHS entry permits; and
7
(c) conditions of WHS entry permits; and
8
(d) the form of WHS entry permits; and
9
(e) requirements for training; and
10
(f) records of WHS entry permits.
11
12 Identity cards
12
Matters relating to identity cards.
13
13 Forfeiture
14
Matters relating to:
15
(a) costs of forfeiture and disposal of forfeited things; and
16
(b) disposal of seized things and forfeited things.
17
14 Review of decisions
18
Matters relating to the review of decisions under the regulations
19
including:
20
(a) prescribing decisions as reviewable decisions for the
21
purposes of Part 12 or for the purposes of the regulations; and
22
(b) prescribing procedures for internal and external review of
23
decisions under the regulations; and
24
(c) conferring jurisdiction on Fair Work Australia to conduct
25
reviews under the regulations.
26
Work Health and Safety Bill 2011 No. , 2011 1
1