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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Occupational Health and Safety
Amendment Bill 2011
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Occupational Health and Safety Act
2000 No 40 3
Schedule 2 Amendment of Occupational Health and Safety
Regulation 2001 9
b2011-019-33.d11
New South Wales
Occupational Health and Safety
Amendment Bill 2011
No , 2011
A Bill for
An Act to amend the Occupational Health and Safety Act 2000 to adopt some
national work health and safety reforms pending the enactment of new legislation;
and for other purposes.
Clause 1 Occupational Health and Safety Amendment Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Occupational Health and Safety Amendment Act 2011. 3
2 Commencement 4
This Act commences on the date of assent to this Act. 5
Page 2
Occupational Health and Safety Amendment Bill 2011
Amendment of Occupational Health and Safety Act 2000 No 40 Schedule 1
Schedule 1 Amendment of Occupational Health and 1
Safety Act 2000 No 40 2
[1] Section 7A 3
Insert before section 8: 4
7A The concept of ensuring health and safety 5
(1) A duty imposed on a person by this Division (or by any other 6
provision of or made under this Act) to ensure, so far as is 7
reasonably practicable, health and safety requires the person: 8
(a) to eliminate risks to health and safety so far as is 9
reasonably practicable, and 10
(b) if it is not reasonably practicable to eliminate risks to 11
health and safety, to minimise those risks so far as is 12
reasonably practicable. 13
(2) For the purposes of this Division (or of any such other provision), 14
in determining what is (or was at a particular time) reasonably 15
practicable in relation to ensuring health and safety, all relevant 16
matters are to be taken into account and weighed up, including: 17
(a) the likelihood of the hazard or the risk concerned 18
occurring, and 19
(b) the degree of harm that might result from the hazard or the 20
risk, and 21
(c) what the person concerned knows, or ought reasonably to 22
know, about: 23
(i) the hazard or the risk, and 24
(ii) ways of eliminating or minimising the risk, and 25
(d) the availability and suitability of ways to eliminate or 26
minimise the risk, and 27
(e) after assessing the extent of the risk and the available ways 28
of eliminating or minimising the risk, the cost associated 29
with available ways of eliminating or minimising the risk, 30
including whether the cost is grossly disproportionate to 31
the risk. 32
[2] Section 8 Duties of employers 33
Insert ", so far as is reasonably practicable," after "must" wherever occurring 34
in section 8 (1) and (2). 35
Page 3
Occupational Health and Safety Amendment Bill 2011
Schedule 1 Amendment of Occupational Health and Safety Act 2000 No 40
[3] Section 8 (1) 1
Insert ", so far as is reasonably practicable" after "the following". 2
[4] Section 8, note 3
Omit the note. Insert instead: 4
Note. See section 12 for the penalty for an offence against this section 5
and other provisions of this Division. Division 4 makes ancillary provision 6
with respect to those offences, including section 26 (Officers of 7
corporations required to exercise due diligence). 8
See also Division 2 for duty of employer to consult employees. 9
[5] Section 9 Duties of self-employed persons 10
Insert ", so far as is reasonably practicable," after "must". 11
[6] Section 10 Duties of controllers of work premises, plant or substances 12
Insert ", so far as is reasonably practicable," after "must" wherever occurring 13
in section 10 (1) and (2). 14
[7] Section 11 Duties of designers, manufacturers and suppliers of plant 15
and substances for use at work 16
Insert ", so far as is reasonably practicable" after "must" in section 11 (1). 17
[8] Section 20 Duties of employees 18
Insert "reasonably" before "necessary" in section 20 (2). 19
[9] Section 26 20
Omit the section. Insert instead: 21
26 Officers of corporations required to exercise due diligence 22
(1) If a corporation has a duty or obligation under a relevant 23
provision, an officer of the corporation must exercise due 24
diligence to ensure that the corporation complies with that duty 25
or obligation. 26
Maximum penalty: the same maximum penalty that is applicable 27
to a failure by an individual to comply with the duty or obligation. 28
(2) The following provisions are relevant provisions for the 29
purposes of this section: 30
(a) Division 1 (General duties) of Part 2 (Duties relating to 31
health, safety and welfare at work), 32
(b) Division 2 (Duty to consult) of Part 2, 33
Page 4
Occupational Health and Safety Amendment Bill 2011
Amendment of Occupational Health and Safety Act 2000 No 40 Schedule 1
(c) Division 4 (Incidents at places of work) of Part 5 1
(Investigations), 2
(d) any provision of the regulations that is stated to be a 3
relevant provision for the purposes of this section. 4
(3) In this section, due diligence includes taking reasonable steps: 5
(a) to acquire and keep up-to-date knowledge of occupational 6
health and safety matters, and 7
(b) to gain an understanding of the nature of the operations of 8
the trade, business or other undertaking of the corporation 9
and generally of the hazards and risks associated with 10
those operations, and 11
(c) to ensure that the corporation has available for use, and 12
uses, appropriate resources and processes to eliminate or 13
minimise risks to health and safety from work carried out 14
as part of the conduct of the trade, business or other 15
undertaking of the corporation, and 16
(d) to ensure that the corporation has appropriate processes for 17
receiving and considering information regarding incidents, 18
hazards and risks and responding in a timely way to that 19
information, and 20
(e) to ensure that the corporation has, and implements, 21
processes for complying with any duty or obligation of the 22
corporation under the relevant provisions of this Act, and 23
Example. For the purposes of paragraph (e), the duties or 24
obligations of a corporation under the relevant provisions of this 25
Act may include: 26
· giving notice of notifiable incidents, 27
· consulting with employees, 28
· complying with notices issued under this Act, 29
· providing training and instruction to employees about 30
occupational health and safety, 31
· ensuring that OHS representatives undertake any 32
required course of training. 33
(f) to verify the provision and use of the resources and 34
processes referred to in paragraphs (c)-(e). 35
(4) A person may be proceeded against and convicted of an offence 36
under subsection (1) whether or not the corporation has been 37
proceeded against or has been convicted of an offence in relation 38
to the duty or obligation. 39
(5) An officer of a corporation who is a volunteer is not liable to be 40
prosecuted under this section for anything done or omitted to be 41
done by the person as a volunteer. 42
Page 5
Occupational Health and Safety Amendment Bill 2011
Schedule 1 Amendment of Occupational Health and Safety Act 2000 No 40
(6) This section does not affect any liability imposed on a 1
corporation for a failure to comply with the duty or obligation 2
concerned. 3
(7) In this section: 4
corporation means any body corporate (including a body 5
corporate representing the Crown). 6
officer means an officer within the meaning of section 9 of the 7
Corporations Act 2001 of the Commonwealth, but does not 8
include a Minister of the Crown acting in that capacity, an elected 9
member of a local authority acting in that capacity or a partner in 10
a partnership. 11
volunteer has the same meaning as in section 60 of the Civil 12
Liability Act 2002. 13
Note. That section provides that a volunteer is a person who does 14
community work on a voluntary basis. 15
[10] Section 28 Defence 16
Omit the section. 17
[11] Section 32A Reckless conduct causing death at workplace by person 18
with OHS duties 19
Omit the note to section 32A (3). 20
[12] Section 32A (6) 21
Omit the subsection. 22
[13] Section 90 Offence: failure to comply with investigation notice 23
Insert "(unless the occupier has a reasonable excuse for not doing so)" after 24
"must". 25
[14] Section 106 Authority to prosecute 26
Omit section 106 (1) (c) and (d). Insert instead: 27
(c) by an inspector. 28
[15] Schedule 3 Savings, transitional and other provisions 29
Insert at the end of clause 1 (1): 30
Occupational Health and Safety Amendment Act 2011 31
Page 6
Occupational Health and Safety Amendment Bill 2011
Amendment of Occupational Health and Safety Act 2000 No 40 Schedule 1
[16] Schedule 3, Part 7 1
Insert at the end of the Schedule: 2
Part 7 Provisions consequent on enactment of 3
Occupational Health and Safety 4
Amendment Act 2011 5
24 Definition and application 6
(1) In this Part: 7
amending Act means the Occupational Health and Safety 8
Amendment Act 2011. 9
(2) This Part has effect subject to the regulations under Part 1. 10
25 Offence by corporation--liability of directors and managers 11
Section 26 (as substituted by the amending Act) applies only in 12
respect of acts and omissions occurring on or after the date of 13
assent to the amending Act, and that section (as in force 14
immediately before its substitution by the amending Act) 15
continues to apply in respect of any contravention of this Act or 16
the regulations that is alleged to have occurred before the date of 17
assent to the amending Act. 18
26 Qualified general duties amendments 19
(1) The qualified general duties amendments made by the amending 20
Act apply only in respect of acts and omissions occurring on or 21
after the date of assent to the amending Act. 22
(2) The qualified general duties amendments are all of the 23
amendments made by the amending Act except the following 24
amendments: 25
(a) the substitution of section 26, 26
(b) the amendments of sections 32A and 106 and Schedule 3. 27
27 Proceedings instituted by union 28
(1) The repeal of section 106 (1) (d) by the amending Act does not 29
affect the validity of any proceedings for an offence against this 30
Act or the regulations instituted by the secretary of an industrial 31
organisation of employees before the date of the introduction into 32
Parliament of the Bill for the amending Act. Those proceedings 33
may be continued by the secretary of that industrial organisation 34
despite that repeal. 35
Page 7
Occupational Health and Safety Amendment Bill 2011
Schedule 1 Amendment of Occupational Health and Safety Act 2000 No 40
(2) Proceedings for an offence against this Act or the regulations 1
instituted by the secretary of an industrial organisation of 2
employees on or after the date of the introduction into Parliament 3
of the Bill for the amending Act and before the commencement 4
of the amending Act (and pending on that commencement) are 5
terminated. 6
Page 8
Occupational Health and Safety Amendment Bill 2011
Amendment of Occupational Health and Safety Regulation 2001 Schedule 2
Schedule 2 Amendment of Occupational Health and 1
Safety Regulation 2001 2
[1] Clause 6 Application of provisions providing for alternative duties if 3
primary duty not reasonably practicable 4
Omit the note at the end of the clause. Insert instead: 5
Note. Clause 6A provides that the alternative duty applies only so far as 6
is reasonably practicable. 7
[2] Clause 6A 8
Insert after clause 6: 9
6A Duties to apply so far as is reasonably practicable 10
(1) If a provision of this Regulation imposes a duty to take or refrain 11
from taking any action for the protection of health or safety, the 12
duty applies only so far as it is reasonably practicable to take or 13
refrain from taking that action. 14
(2) Subclause (1) extends to provisions of this Regulation made 15
under section 135 or 135A of the Act for the protection of public 16
health or safety. 17
[3] Clause 178 Spray painting outside spray booths--particular risk control 18
measures 19
Omit the note to clause 178 (1). Insert instead: 20
Note. Despite clause 177 (a), an employer may carry out spray painting 21
other than in a spray booth if compliance with that clause is not 22
reasonably practicable (see clause 6A). 23
[4] Clause 178 (3) 24
Omit "(within the meaning of section 28 of the Act)". 25
Page 9
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