WORK HEALTH AND SAFETY BILL 2011

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This is a Bill, not an Act. For current law, see the Acts databases.

WORK HEALTH AND SAFETY BILL 2011

New South Wales Work Health and Safety Bill 2011 Contents Page Part 1 Preliminary Division 1 Introduction 1 Name of Act 2 2 Commencement 2 Division 2 Object 3 Object 2 Division 3 Interpretation Subdivision 1 Definitions 4 Definitions 3 Subdivision 2 Other important terms 5 Meaning of "person conducting a business or undertaking" 6 b2010-047-33.d15 Work Health and Safety Bill 2011 Contents Page 6 Meaning of "supply" 7 7 Meaning of "worker" 8 8 Meaning of "workplace" 9 9 Examples and notes 9 Division 4 Application of Act 10 Act binds the Crown 9 11 Extraterritorial application 9 12 Scope 9 Offences are offences of strict liability 9 Part 2 Health and safety duties Division 1 Introductory Subdivision 1 Principles that apply to duties 13 Principles that apply to duties 10 14 Duties not transferrable 10 15 Person may have more than one duty 10 16 More than one person can have a duty 10 17 Management of risks 10 Subdivision 2 What is reasonably practicable 18 What is "reasonably practicable" in ensuring health and safety 11 Division 2 Primary duty of care 19 Primary duty of care 11 Division 3 Further duties of persons conducting businesses or undertakings 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces 12 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces 13 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures 13 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures 15 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures 16 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures 18 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures 19 Contents page 2 Work Health and Safety Bill 2011 Contents Page Division 4 Duty of officers, workers and other persons 27 Duty of officers 20 28 Duties of workers 21 29 Duties of other persons at the workplace 21 Division 5 Offences and penalties 30 Health and safety duty 22 31 Reckless conduct--Category 1 22 32 Failure to comply with health and safety duty--Category 2 22 33 Failure to comply with health and safety duty--Category 3 23 34 Exceptions 23 Part 3 Incident notification 35 What is a "notifiable incident" 24 36 What is a "serious injury or illness" 24 37 What is a "dangerous incident" 24 38 Duty to notify of notifiable incidents 25 39 Duty to preserve incident sites 26 Part 4 Authorisations 40 Meaning of "authorised" 27 41 Requirements for authorisation of workplaces 27 42 Requirements for authorisation of plant or substance 27 43 Requirements for authorisation of work 28 44 Requirements for prescribed qualifications or experience 28 45 Requirement to comply with conditions of authorisation 29 Part 5 Consultation, representation and participation Division 1 Consultation, co-operation and co-ordination between duty holders 46 Duty to consult with other duty holders 30 Division 2 Consultation with workers 47 Duty to consult workers 30 48 Nature of consultation 30 49 When consultation is required 31 Division 3 Health and safety representatives Subdivision 1 Request for election of health and safety representatives 50 Request for election of health and safety representative 31 Contents page 3 Work Health and Safety Bill 2011 Contents Page Subdivision 2 Determination of work groups 51 Determination of work groups 32 52 Negotiations for agreement for work group 32 53 Notice to workers 33 54 Failure of negotiations 33 Subdivision 3 Multiple-business work groups 55 Determination of work groups of multiple businesses 34 56 Negotiation of agreement for work groups of multiple businesses 34 57 Notice to workers 35 58 Withdrawal from negotiations or agreement involving multiple businesses 36 59 Effect of Subdivision on other arrangements 36 Subdivision 4 Election of health and safety representatives 60 Eligibility to be elected 36 61 Procedure for election of health and safety representatives 36 62 Eligibility to vote 37 63 When election not required 37 64 Term of office of health and safety representative 37 65 Disqualification of health and safety representatives 38 66 Immunity of health and safety representatives 38 67 Deputy health and safety representatives 38 Subdivision 5 Powers and functions of health and safety representatives 68 Powers and functions of health and safety representatives 39 69 Powers and functions generally limited to the particular work group 40 Subdivision 6 Obligations of person conducting business or undertaking to health and safety representatives 70 General obligations of person conducting business or undertaking 41 71 Exceptions from obligations under section 70 (1) 42 72 Obligation to train health and safety representatives 43 73 Obligation to share costs if multiple businesses or undertakings 44 74 List of health and safety representatives 45 Division 4 Health and safety committees 75 Health and safety committees 45 Contents page 4 Work Health and Safety Bill 2011 Contents Page 76 Constitution of committee 46 76A Special provision for coal and mine workplaces 46 77 Functions of committee 47 78 Meetings of committee 47 79 Duties of person conducting business or undertaking 47 Division 5 Issue resolution 80 Parties to an issue 48 81 Resolution of health and safety issues 48 82 Referral of issue to regulator for resolution by inspector 49 Division 6 Right to cease or direct cessation of unsafe work 83 Definition of "cease work under this Division" 49 84 Right of worker to cease unsafe work 49 85 Health and safety representative may direct that unsafe work cease 49 86 Worker to notify if ceases work 50 87 Alternative work 50 88 Continuity of engagement of worker 51 89 Request to regulator to appoint inspector to assist 51 Division 7 Provisional improvement notices 90 Provisional improvement notices 51 91 Provisional improvement notice to be in writing 52 92 Contents of provisional improvement notice 52 93 Provisional improvement notice may give directions to remedy contravention 52 94 Minor changes to provisional improvement notice 52 95 Issue of provisional improvement notice 53 96 Health and safety representative may cancel notice 53 97 Display of provisional improvement notice 53 98 Formal irregularities or defects in notice 53 99 Offence to contravene a provisional improvement notice 53 100 Request for review of provisional improvement notice 54 101 Regulator to appoint inspector to review notice 54 102 Decision of inspector on review of provisional improvement notice 54 Division 8 Part not to apply to prisoners 103 Part does not apply to prisoners 55 Contents page 5 Work Health and Safety Bill 2011 Contents Page Part 6 Discriminatory, coercive and misleading conduct Division 1 Prohibition of discriminatory, coercive or misleading conduct 104 Prohibition of discriminatory conduct 56 105 What is "discriminatory conduct" 56 106 What is a "prohibited reason" 57 107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct 58 108 Prohibition of coercion or inducement 58 109 Misrepresentation 59 Division 2 Criminal proceedings in relation to discriminatory conduct 110 Proof of discriminatory conduct 59 111 Order for compensation or reinstatement 60 Division 3 Civil proceedings in relation to discriminatory or coercive conduct 112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct 60 113 Procedure for civil actions for discriminatory conduct 61 Division 4 General 114 General provisions relating to orders 62 115 Prohibition of multiple actions 62 Part 7 Workplace entry by WHS entry permit holders Division 1 Introductory 116 Definitions 63 Division 2 Entry to inquire into suspected contraventions 117 Entry to inquire into suspected contraventions 63 118 Rights that may be exercised while at workplace 63 119 Notice of entry 64 120 Entry to inspect employee records or information held by another person 65 Division 3 Entry to consult and advise workers 121 Entry to consult and advise workers 65 122 Notice of entry 66 Contents page 6 Work Health and Safety Bill 2011 Contents Page Division 4 Requirements for WHS entry permit holders 123 Contravening WHS entry permit conditions 66 124 WHS entry permit holder must also hold permit under other law 66 125 WHS entry permit to be available for inspection 66 126 When right may be exercised 66 127 Where the right may be exercised 67 128 Work health and safety requirements 67 129 Residential premises 67 130 WHS entry permit holder not required to disclose names of workers 67 Division 5 WHS entry permits 131 Application for WHS entry permit 67 132 Consideration of application 68 133 Eligibility criteria 68 134 Issue of WHS entry permit 68 135 Conditions on WHS entry permit 68 136 Term of WHS entry permit 68 137 Expiry of WHS entry permit 69 138 Application to revoke WHS entry permit 69 139 Authorising authority must permit WHS entry permit holder to show cause 70 140 Determination of application 70 Division 6 Dealing with disputes 141 Application for assistance of inspector to resolve dispute 71 142 Authorising authority may deal with a dispute about a right of entry under this Act 71 143 Contravening order made to deal with dispute 72 Division 7 Prohibitions 144 Person must not refuse or delay entry of WHS entry permit holder 72 145 Person must not hinder or obstruct WHS entry permit holder 73 146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace 73 147 Misrepresentations about things authorised by this Part 73 148 Unauthorised use or disclosure of information or documents 73 Division 8 General 149 Return of WHS entry permits 75 150 Union to provide information to authorising authority 75 151 Register of WHS entry permit holders 76 Contents page 7 Work Health and Safety Bill 2011 Contents Page Part 8 The regulator Division 1 Functions of regulator 152 Functions of regulator 77 153 Powers of regulator 77 154 Delegation by regulator 77 Division 2 Powers of regulator to obtain information 155 Powers of regulator to obtain information 78 Part 9 Securing compliance Division 1 Appointment of inspectors 156 Appointment of inspectors 80 156A Special provision for mining and coal workplace inspectors 80 157 Identity cards 81 158 Accountability of inspectors 81 159 Suspension and ending of appointment of inspectors 81 Division 2 Functions and powers of inspectors 160 Functions and powers of inspectors 81 161 Conditions on inspectors' compliance powers 82 162 Inspectors subject to regulator's directions 82 Exercise of inspector functions outside area of jurisdiction 82 Division 3 Powers relating to entry Subdivision 1 General powers of entry 163 Powers of entry 84 164 Notification of entry 84 165 General powers on entry 85 165A Special powers of entry for coal and mining workplaces 86 166 Persons assisting inspectors 86 166A Special provision for coal and mining workplaces--consultation with employee representative 87 Subdivision 2 Search warrants 167 Search warrant 87 168 Announcement before entry on warrant 88 169 Copy of warrant to be given to person with management or control of place 88 Subdivision 3 Limitation on entry powers 170 Places used for residential purposes 88 Contents page 8 Work Health and Safety Bill 2011 Contents Page Subdivision 4 Specific powers on entry 171 Power to require production of documents and answers to questions 88 172 Abrogation of privilege against self-incrimination 89 173 Warning to be given 89 174 Powers to copy and retain documents 90 175 Power to seize evidence etc 90 176 Inspector's power to seize dangerous workplaces and things 91 177 Powers supporting seizure 91 178 Receipt for seized things 92 179 Forfeiture of seized things 92 180 Return of seized things 93 181 Access to seized things 94 Division 4 Damage and compensation 182 Damage etc to be minimised 94 183 Inspector to give notice of damage 94 184 Compensation 94 Division 5 Other matters 185 Power to require name and address 95 186 Inspector may take affidavits 95 187 Attendance of inspector at coronial inquests 96 Division 6 Offences in relation to inspectors 188 Offence to hinder or obstruct inspector 96 189 Offence to impersonate inspector 96 190 Offence to assault, threaten or intimidate inspector 96 Part 10 Enforcement measures Division 1 Improvement notices 191 Issue of improvement notices 97 192 Contents of improvement notices 97 193 Compliance with improvement notice 98 194 Extension of time for compliance with improvement notices 98 Division 2 Prohibition notices 195 Power to issue prohibition notice 98 196 Contents of prohibition notice 99 197 Compliance with prohibition notice 99 Contents page 9 Work Health and Safety Bill 2011 Contents Page Division 3 Non-disturbance notices 198 Issue of non-disturbance notice 99 199 Contents of non-disturbance notice 100 200 Compliance with non-disturbance notice 100 201 Issue of subsequent notices 100 Division 4 General requirements applying to notices 202 Application of Division 101 203 Notice to be in writing 101 204 Directions in notices 101 205 Recommendations in notice 101 206 Changes to notice by inspector 101 207 Regulator may vary or cancel notice 101 208 Formal irregularities or defects in notice 101 209 Issue and giving of notice 102 210 Display of notice 102 Division 5 Remedial action 211 When regulator may carry out action 102 212 Power of the regulator to take other remedial action 103 213 Costs of remedial or other action 103 Division 6 Injunctions 214 Application of Division 103 215 Injunctions for noncompliance with notices 103 Part 11 Enforceable undertakings 216 Regulator may accept WHS undertakings 104 217 Notice of decision and reasons for decision 104 218 When a WHS undertaking is enforceable 104 219 Compliance with WHS undertaking 104 220 Contravention of WHS undertaking 104 221 Withdrawal or variation of WHS undertaking 105 222 Proceeding for alleged contravention 105 Part 12 Review of decisions Division 1 Reviewable decisions 223 Which decisions are reviewable 107 Division 2 Internal review 224 Application for internal review 112 225 Internal reviewer 112 Contents page 10 Work Health and Safety Bill 2011 Contents Page 226 Decision of internal reviewer 112 227 Decision on internal review 113 228 Stays of reviewable decisions 113 Division 3 External review 229 Application for external review 113 Part 13 Legal proceedings Division 1 General matters 229A Part extends to mines and coal workplaces 115 229B Procedure for offences 115 230 Prosecutions 115 231 Procedure if prosecution is not brought 116 232 Limitation period for prosecutions 117 233 Multiple contraventions of health and safety duty provision 117 Division 2 Sentencing for offences 234 Application of this Division 118 235 Orders generally 118 236 Adverse publicity orders 118 237 Orders for restoration 119 238 Work health and safety project orders 119 239 Release on the giving of a court-ordered WHS undertaking 119 240 Injunctions 120 241 Training orders 120 242 Offence to fail to comply with order 120 Division 2A Sentencing guidelines 242A Definitions 121 242B Guideline judgments on application of Attorney General 121 242C Peak councils may intervene 121 242D Court may give persons or organisations leave to appear 122 242E Alteration of guideline judgments 122 242F Discretion of Court preserved 122 242G Rules of court 122 242H Use of evidence in giving guideline judgments 122 Division 3 Penalty notices 243 Penalty notices 123 Contents page 11 Work Health and Safety Bill 2011 Contents Page Division 4 Offences by bodies corporate 244 Imputing conduct to bodies corporate 124 Division 5 The Crown 245 Offences and the Crown 124 246 WHS civil penalty provisions and the Crown 125 247 Officers 125 248 Responsible agency for the Crown 125 Division 6 Public authorities 249 Application to public authorities that are bodies corporate 126 250 Proceedings against public authorities 126 251 Imputing conduct to public authorities 126 252 Officer of public authority 127 253 Proceedings against successors to public authorities 127 Division 7 WHS civil penalty provisions 254 When is a provision a WHS civil penalty provision 127 255 Proceedings for contravention of WHS civil penalty provision 128 256 Involvement in contravention treated in same way as actual contravention 128 257 Contravening a civil penalty provision is not an offence 128 258 Civil proceeding rules and procedure to apply 128 259 Proceeding for a contravention of a WHS civil penalty provision 128 260 Proceedings may be brought by the regulator or an inspector 129 261 Limitation period for WHS civil penalty proceedings 129 262 Recovery of a monetary penalty 129 263 Civil double jeopardy 129 264 Criminal proceedings during civil proceedings 129 265 Criminal proceedings after civil proceedings 130 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings 130 Division 8 Civil liability not affected by this Act 267 Civil liability not affected by this Act 130 Part 14 General Division 1 General provisions 268 Offence to give false or misleading information 131 269 Act does not affect legal professional privilege 131 Contents page 12 Work Health and Safety Bill 2011 Contents Page 270 Immunity from liability 132 271 Confidentiality of information 132 272 No contracting out 133 273 Person not to levy workers 133 Division 2 Codes of practice 274 Approved codes of practice 133 275 Use of codes of practice in proceedings 134 Division 3 Regulation-making powers 276 Regulation-making powers 135 Division 3A Miscellaneous 276A Application of Act to mining workplaces and coal workplaces--references to regulator 136 276B Review of Act 136 276C Repeals 136 Schedule 1 Application of Act to dangerous goods and high risk plant 137 Schedule 2 The regulator and local tripartite consultation arrangements and other local arrangements 138 Schedule 3 Regulation-making powers 139 Schedule 4 Savings, transitional and other provisions 143 Schedule 5 Amendment of other legislation 146 Contents page 13 New South Wales Work Health and Safety Bill 2011 No , 2011 A Bill for An Act to secure the health, safety and welfare of persons at work; to repeal the Occupational Health and Safety Act 2000; and for other purposes. See also Occupational Health and Safety Amendment Bill 2011. Clause 1 Work Health and Safety Bill 2011 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 Division 1 Introduction 3 1 Name of Act 4 This Act is the Work Health and Safety Act 2011. 5 2 Commencement 6 This Act commences on 1 January 2012. 7 Division 2 Object 8 3 Object 9 (1) The main object of this Act is to provide for a balanced and nationally 10 consistent framework to secure the health and safety of workers and 11 workplaces by: 12 (a) protecting workers and other persons against harm to their health, 13 safety and welfare through the elimination or minimisation of 14 risks arising from work or from specified types of substances or 15 plant, and 16 (b) providing for fair and effective workplace representation, 17 consultation, co-operation and issue resolution in relation to 18 work health and safety, and 19 (c) encouraging unions and employer organisations to take a 20 constructive role in promoting improvements in work health and 21 safety practices, and assisting persons conducting businesses or 22 undertakings and workers to achieve a healthier and safer 23 working environment, and 24 (d) promoting the provision of advice, information, education and 25 training in relation to work health and safety, and 26 (e) securing compliance with this Act through effective and 27 appropriate compliance and enforcement measures, and 28 (f) ensuring appropriate scrutiny and review of actions taken by 29 persons exercising powers and performing functions under this 30 Act, and 31 (g) providing a framework for continuous improvement and 32 progressively higher standards of work health and safety, and 33 Page 2 Work Health and Safety Bill 2011 Clause 4 Preliminary Part 1 (h) maintaining and strengthening the national harmonisation of 1 laws relating to work health and safety and to facilitate a 2 consistent national approach to work health and safety in this 3 jurisdiction. 4 (2) In furthering subsection (1) (a), regard must be had to the principle that 5 workers and other persons should be given the highest level of 6 protection against harm to their health, safety and welfare from hazards 7 and risks arising from work or from specified types of substances or 8 plant as is reasonably practicable. 9 Division 3 Interpretation 10 Subdivision 1 Definitions 11 4 Definitions 12 In this Act: 13 approved code of practice means a code of practice approved under 14 Part 14. 15 authorised, in Part 4--see section 40. 16 authorising authority means the Industrial Relations Commission. 17 Category 1 offence--see section 31. 18 Category 2 offence--see section 32. 19 Category 3 offence--see section 33. 20 coal workplace means a place of work to which the Coal Mine Health 21 and Safety Act 2002 applies. 22 compliance powers means the functions and powers conferred on an 23 inspector under this Act. 24 condition includes limitation and restriction. 25 construct includes assemble, erect, reconstruct, reassemble and 26 re-erect. 27 corresponding regulator means the holder of a public office, or a public 28 authority, of the Commonwealth, or of a State, who or which is 29 responsible for administering a corresponding WHS law. 30 corresponding WHS law means: 31 (a) a law of an Australian jurisdiction that has the same name as this 32 Act, and 33 (b) a law of an Australian jurisdiction that is prescribed by the 34 regulations as a corresponding WHS law. 35 court means the court having jurisdiction in the matter concerned. 36 dangerous incident, in Part 3--see section 37. 37 Page 3 Clause 4 Work Health and Safety Bill 2011 Part 1 Preliminary demolition includes deconstruction. 1 design, in relation to plant, a substance or a structure includes: 2 (a) design of part of the plant, substance or structure, and 3 (b) redesign or modify a design. 4 disclose, in relation to information, includes divulge or communicate to 5 any person or publish. 6 discriminatory conduct, in Part 6--see section 105. 7 document includes record. 8 employee record, in relation to an employee, has the same meaning as 9 it has in the Privacy Act 1988 of the Commonwealth. 10 employer organisation means an organisation of employers. 11 engage in conduct means doing an act or omitting to do an act. 12 Fair Work Act means the Fair Work Act 2009 of the Commonwealth. 13 handling includes transport. 14 health means physical and psychological health. 15 health and safety duty--see section 30. 16 health and safety representative, in relation to a worker, means the 17 health and safety representative elected under Part 5 for the work group 18 of which the worker is a member. 19 import means to bring into the jurisdiction from outside Australia. 20 inspector means an inspector appointed under Part 9. 21 internal reviewer means: 22 (a) the regulator, or 23 (b) a person appointed by the regulator under section 225. 24 local authority means a council or county council under the Local 25 Government Act 1993. 26 medical treatment means treatment by a medical practitioner registered 27 under the Health Practitioner Regulation National Law (NSW). 28 mining workplace means a place of work: 29 (a) that is a mine to which the Mine Health and Safety Act 2004 30 applies, or 31 (b) at which activities under the Petroleum (Onshore) Act 1991 or 32 the Petroleum (Offshore) Act 1982 are carried out. 33 notifiable incident--see section 35. 34 officer means: 35 (a) an officer within the meaning of section 9 of the Corporations 36 Act 2001 of the Commonwealth other than a partner in a 37 partnership, or 38 Page 4 Work Health and Safety Bill 2011 Clause 4 Preliminary Part 1 (b) an officer of the Crown within the meaning of section 247, or 1 (c) an officer of a public authority within the meaning of section 252, 2 other than an elected member of a local authority acting in that capacity. 3 official of a union, in Part 7--see section 116. 4 person conducting a business or undertaking--see section 5. 5 personal information has the same meaning as it has in the Privacy Act 6 1988 of the Commonwealth. 7 plant includes: 8 (a) any machinery, equipment, appliance, container, implement and 9 tool, and 10 (b) any component of any of those things, and 11 (c) anything fitted or connected to any of those things. 12 prohibited reason, in Part 6--see section 106. 13 public authority means: 14 (a) a Division of the Government Service, or 15 (b) a NSW Government agency, or 16 (c) a local authority, or 17 (d) any other public or local authority constituted by or under an Act. 18 reasonably practicable, in relation to a duty to ensure health and 19 safety--see section 18. 20 regulator means the WorkCover Authority constituted under the 21 Workplace Injury Management and Workers Compensation Act 1998. 22 Note. Section 276A authorises the regulations to provide that a reference in any 23 provision of this Act to the regulator, or to an officer of the regulator, in 24 connection with the application of the provision to a mining workplace or a coal 25 workplace, is taken to be or include a reference to a specified government 26 department or agency, or an officer of a government department or agency, 27 exercising functions in connection with the administration of the Mine Health 28 and Safety Act 2004, the Petroleum (Onshore) Act 1991, the Petroleum 29 (Offshore) Act 1982 or the Coal Mine Health and Safety Act 2002, or a reference 30 to the Minister administering any of those Acts. 31 relevant person conducting a business or undertaking, in Part 7--see 32 section 116. 33 relevant union, in Part 7--see section 116. 34 relevant worker, in Part 7--see section 116. 35 representative, in relation to a worker, means: 36 (a) the health and safety representative for the worker, or 37 (b) a union representing the worker, or 38 (c) any other person the worker authorises to represent him or her. 39 Page 5 Clause 5 Work Health and Safety Bill 2011 Part 1 Preliminary serious injury or illness, in Part 3--see section 36. 1 State includes Territory. 2 State or Territory industrial law has the same meaning as it has in the 3 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 form 11 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) Act 17 2009 of the Commonwealth, or 18 (b) an association of employees or independent contractors, or both, 19 that is registered or recognised as such an association (however 20 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 expenses). 23 WHS entry permit means a WHS entry permit issued under Part 7. 24 WHS entry permit holder means a person who holds a WHS entry 25 permit. 26 WHS undertaking means an undertaking given under section 216 (1). 27 work group means a work group determined under Part 5. 28 worker--see section 7. 29 workplace--see section 8. 30 Subdivision 2 Other important terms 31 5 Meaning of "person conducting a business or undertaking" 32 (1) For the purposes of this Act, a person conducts a business or 33 undertaking: 34 (a) whether the person conducts the business or undertaking alone or 35 with others, and 36 Page 6 Work Health and Safety Bill 2011 Clause 6 Preliminary Part 1 (b) whether or not the business or undertaking is conducted for profit 1 or gain. 2 (2) A business or undertaking conducted by a person includes a business or 3 undertaking conducted by a partnership or an unincorporated 4 association. 5 (3) If a business or undertaking is conducted by a partnership (other than an 6 incorporated partnership), a reference in this Act to a person conducting 7 the business or undertaking is to be read as a reference to each partner 8 in the partnership. 9 (4) A person does not conduct a business or undertaking to the extent that 10 the person is engaged solely as a worker in, or as an officer of, that 11 business or undertaking. 12 (5) An elected member of a local authority does not in that capacity conduct 13 a business or undertaking. 14 (6) The regulations may specify the circumstances in which a person may 15 be taken not to be a person who conducts a business or undertaking for 16 the purposes of this Act or any provision of this Act. 17 (7) A volunteer association does not conduct a business or undertaking for 18 the purposes of this Act. 19 (8) In this section, volunteer association means a group of volunteers 20 working together for one or more community purposes where none of 21 the volunteers, whether alone or jointly with any other volunteers, 22 employs any person to carry out work for the volunteer association. 23 6 Meaning of "supply" 24 (1) A supply of a thing includes a supply and a resupply of the thing by way 25 of sale, exchange, lease, hire or hire-purchase, whether as principal or 26 agent. 27 (2) A supply of a thing occurs on the passing of possession of the thing to 28 the person or an agent of the person to be supplied. 29 (3) A supply of a thing does not include: 30 (a) the return of possession of a thing to the owner of the thing at the 31 end of a lease or other agreement, or 32 (b) a prescribed supply. 33 Page 7 Clause 7 Work Health and Safety Bill 2011 Part 1 Preliminary (4) A financier is taken not to supply plant, a substance or a structure for the 1 purposes of this Act if: 2 (a) the financier has, in the course of the financier's business as a 3 financier, acquired ownership of, or another right in, the plant, 4 substance or structure on behalf of a customer of the financier, 5 and 6 (b) the action by the financier, that would be a supply but for this 7 subsection, is taken by the financier for, or on behalf of, that 8 customer. 9 (5) If subsection (4) applies, the person (other than the financier) who had 10 possession of the plant, substance or structure immediately before the 11 financier's customer obtained possession of the plant, substance or 12 structure is taken for the purposes of this Act to have supplied the plant, 13 substance or structure to the financier's customer. 14 7 Meaning of "worker" 15 (1) A person is a worker if the person carries out work in any capacity for 16 a person conducting a business or undertaking, including work as: 17 (a) an employee, or 18 (b) a contractor or subcontractor, or 19 (c) an employee of a contractor or subcontractor, or 20 (d) an employee of a labour hire company who has been assigned to 21 work in the person's business or undertaking, or 22 (e) an outworker, or 23 (f) an apprentice or trainee, or 24 (g) a student gaining work experience, or 25 (h) a volunteer, or 26 (i) a person of a prescribed class. 27 (2) For the purposes of this Act, a police officer is: 28 (a) a worker, and 29 (b) at work throughout the time when the officer is on duty or 30 lawfully performing the functions of a police officer, but not 31 otherwise. 32 (3) The person conducting the business or undertaking is also a worker if 33 the person is an individual who carries out work in that business or 34 undertaking. 35 Page 8 Work Health and Safety Bill 2011 Clause 8 Preliminary Part 1 8 Meaning of "workplace" 1 (1) A workplace is a place where work is carried out for a business or 2 undertaking and includes any place where a worker goes, or is likely to 3 be, while at work. 4 (2) In this section, place includes: 5 (a) a vehicle, vessel, aircraft or other mobile structure, and 6 (b) any waters and any installation on land, on the bed of any waters 7 or floating on any waters. 8 9 Examples and notes 9 (1) An example at the foot of a provision forms part of this Act. 10 (2) A note at the foot of a provision forms part of this Act. 11 Division 4 Application of Act 12 10 Act binds the Crown 13 (1) This Act binds the Crown in right of this jurisdiction and, in so far as the 14 legislative power of the Parliament of this jurisdiction permits, the 15 Crown in all its other capacities. 16 (2) The Crown is liable for an offence against this Act. 17 (3) Without limiting subsection (1), the Crown is liable for a contravention 18 of a WHS civil penalty provision. 19 11 Extraterritorial application 20 ***** Note. Not required in NSW. 21 12 Scope 22 ***** Note. Not required in NSW. 23 12A Offences are offences of strict liability 24 Strict liability applies to each physical element of each offence under 25 this Act unless otherwise stated in the section containing the offence. 26 Page 9 Clause 13 Work Health and Safety Bill 2011 Part 2 Health and safety duties 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 this 7 Act such as duties relating to incident notification and consultation. 8 14 Duties not transferrable 9 A duty cannot be transferred to another person. 10 15 Person may have more than one duty 11 A person can have more than one duty by virtue of being in more than 12 one class of duty holder. 13 16 More than one person can have a duty 14 (1) More than one person can concurrently have the same duty. 15 (2) Each duty holder must comply with that duty to the standard required 16 by this Act even if another duty holder has the same duty. 17 (3) If more than one person has a duty for the same matter, each person: 18 (a) retains responsibility for the person's duty in relation to the 19 matter, and 20 (b) must discharge the person's duty to the extent to which the person 21 has the capacity to influence and control the matter or would have 22 had that capacity but for an agreement or arrangement purporting 23 to limit or remove that capacity. 24 17 Management of risks 25 A duty imposed on a person to ensure health and safety requires the 26 person: 27 (a) to eliminate risks to health and safety, so far as is reasonably 28 practicable, and 29 (b) if it is not reasonably practicable to eliminate risks to health and 30 safety, to minimise those risks so far as is reasonably practicable. 31 Page 10 Work Health and Safety Bill 2011 Clause 18 Health and safety duties Part 2 Subdivision 2 What is reasonably practicable 1 18 What is "reasonably practicable" in ensuring health and safety 2 In this Act, reasonably practicable, in relation to a duty to ensure health 3 and safety, means that which is, or was at a particular time, reasonably 4 able to be done in relation to ensuring health and safety, taking into 5 account and weighing up all relevant matters including: 6 (a) the likelihood of the hazard or the risk concerned occurring, and 7 (b) the degree of harm that might result from the hazard or the risk, 8 and 9 (c) what the person concerned knows, or ought reasonably to know, 10 about: 11 (i) the hazard or the risk, and 12 (ii) ways of eliminating or minimising the risk, and 13 (d) the availability and suitability of ways to eliminate or minimise 14 the risk, and 15 (e) after assessing the extent of the risk and the available ways of 16 eliminating or minimising the risk, the cost associated with 17 available ways of eliminating or minimising the risk, including 18 whether the cost is grossly disproportionate to the risk. 19 Division 2 Primary duty of care 20 19 Primary duty of care 21 (1) A person conducting a business or undertaking must ensure, so far as is 22 reasonably practicable, the health and safety of: 23 (a) workers engaged, or caused to be engaged by the person, and 24 (b) workers whose activities in carrying out work are influenced or 25 directed by the person, 26 while the workers are at work in the business or undertaking. 27 (2) A person conducting a business or undertaking must ensure, so far as is 28 reasonably practicable, that the health and safety of other persons is not 29 put at risk from work carried out as part of the conduct of the business 30 or undertaking. 31 (3) Without limiting subsections (1) and (2), a person conducting a business 32 or undertaking must ensure, so far as is reasonably practicable: 33 (a) the provision and maintenance of a work environment without 34 risks to health and safety, and 35 (b) the provision and maintenance of safe plant and structures, and 36 Page 11 Clause 20 Work Health and Safety Bill 2011 Part 2 Health and safety duties (c) the provision and maintenance of safe systems of work, and 1 (d) the safe use, handling, and storage of plant, structures and 2 substances, and 3 (e) the provision of adequate facilities for the welfare at work of 4 workers in carrying out work for the business or undertaking, 5 including ensuring access to those facilities, and 6 (f) the provision of any information, training, instruction or 7 supervision that is necessary to protect all persons from risks to 8 their health and safety arising from work carried out as part of the 9 conduct of the business or undertaking, and 10 (g) that the health of workers and the conditions at the workplace are 11 monitored for the purpose of preventing illness or injury of 12 workers arising from the conduct of the business or undertaking. 13 (4) If: 14 (a) a worker occupies accommodation that is owned by or under the 15 management or control of the person conducting the business or 16 undertaking, and 17 (b) the occupancy is necessary for the purposes of the worker's 18 engagement because other accommodation is not reasonably 19 available, 20 the person conducting the business or undertaking must, so far as is 21 reasonably practicable, maintain the premises so that the worker 22 occupying the premises is not exposed to risks to health and safety. 23 (5) A self-employed person must ensure, so far as is reasonably practicable, 24 his or her own health and safety while at work. 25 Note. A self-employed person is also a person conducting a business or 26 undertaking for the purposes of this section. 27 Division 3 Further duties of persons conducting businesses 28 or undertakings 29 20 Duty of persons conducting businesses or undertakings involving 30 management or control of workplaces 31 (1) In this section, person with management or control of a workplace 32 means a person conducting a business or undertaking to the extent that 33 the business or undertaking involves the management or control, in 34 whole or in part, of the workplace but does not include: 35 (a) the occupier of a residence, unless the residence is occupied for 36 the purposes of, or as part of, the conduct of a business or 37 undertaking, or 38 (b) a prescribed person. 39 Page 12 Work Health and Safety Bill 2011 Clause 21 Health and safety duties Part 2 (2) The person with management or control of a workplace must ensure, so 1 far as is reasonably practicable, that the workplace, the means of 2 entering and exiting the workplace and anything arising from the 3 workplace are without risks to the health and safety of any person. 4 21 Duty of persons conducting businesses or undertakings involving 5 management or control of fixtures, fittings or plant at workplaces 6 (1) In this section, person with management or control of fixtures, fittings 7 or plant at a workplace means a person conducting a business or 8 undertaking to the extent that the business or undertaking involves the 9 management or control of fixtures, fittings or plant, in whole or in part, 10 at a workplace, but does not include: 11 (a) the occupier of a residence, unless the residence is occupied for 12 the purposes of, or as part of, the conduct of a business or 13 undertaking, or 14 (b) a prescribed person. 15 (2) The person with management or control of fixtures, fittings or plant at 16 a workplace must ensure, so far as is reasonably practicable, that the 17 fixtures, fittings and plant are without risks to the health and safety of 18 any person. 19 22 Duties of persons conducting businesses or undertakings that design 20 plant, substances or structures 21 (1) This section applies to a person (the designer) who conducts a business 22 or undertaking that designs: 23 (a) plant that is to be used, or could reasonably be expected to be 24 used, as, or at, a workplace, or 25 (b) a substance that is to be used, or could reasonably be expected to 26 be used, at a workplace, or 27 (c) a structure that is to be used, or could reasonably be expected to 28 be used, as, or at, a workplace. 29 (2) The designer must ensure, so far as is reasonably practicable, that the 30 plant, substance or structure is designed to be without risks to the health 31 and safety of persons: 32 (a) who, at a workplace, use the plant, substance or structure for a 33 purpose for which it was designed, or 34 (b) who handle the substance at a workplace, or 35 (c) who store the plant or substance at a workplace, or 36 (d) who construct the structure at a workplace, or 37 Page 13 Clause 22 Work Health and Safety Bill 2011 Part 2 Health and safety duties (e) who carry out any reasonably foreseeable activity at a workplace 1 in relation to: 2 (i) the manufacture, assembly or use of the plant for a purpose 3 for which it was designed, or the proper storage, 4 decommissioning, dismantling or disposal of the plant, or 5 (ii) the manufacture or use of the substance for a purpose for 6 which it was designed or the proper handling, storage or 7 disposal of the substance, or 8 (iii) the manufacture, assembly or use of the structure for a 9 purpose for which it was designed or the proper demolition 10 or disposal of the structure, or 11 Example. Inspection, operation, cleaning, maintenance or repair of 12 plant. 13 (f) who are at or in the vicinity of a workplace and who are exposed 14 to the plant, substance or structure at the workplace or whose 15 health or safety may be affected by a use or activity referred to in 16 paragraph (a), (b), (c), (d) or (e). 17 (3) The designer must carry out, or arrange the carrying out of, any 18 calculations, analysis, testing or examination that may be necessary for 19 the performance of the duty imposed by subsection (2). 20 (4) The designer must give adequate information to each person who is 21 provided with the design for the purpose of giving effect to it 22 concerning: 23 (a) each purpose for which the plant, substance or structure was 24 designed, and 25 (b) the results of any calculations, analysis, testing or examination 26 referred to in subsection (3), including, in relation to a substance, 27 any hazardous properties of the substance identified by testing, 28 and 29 (c) any conditions necessary to ensure that the plant, substance or 30 structure is without risks to health and safety when used for a 31 purpose for which it was designed or when carrying out any 32 activity referred to in subsection (2) (a)-(e). 33 (5) The designer, on request, must, so far as is reasonably practicable, give 34 current relevant information on the matters referred to in subsection (4) 35 to a person who carries out, or is to carry out, any of the activities 36 referred to in subsection (2) (a)-(e). 37 Page 14 Work Health and Safety Bill 2011 Clause 23 Health and safety duties Part 2 23 Duties of persons conducting businesses or undertakings that 1 manufacture plant, substances or structures 2 (1) This section applies to a person (the manufacturer) who conducts a 3 business or undertaking that manufactures: 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 expected to 7 be used, at a workplace, or 8 (c) a structure that is to be used, or could reasonably be expected to 9 be used, as, or at, a workplace. 10 (2) The manufacturer must ensure, so far as is reasonably practicable, that 11 the plant, substance or structure is manufactured to be without risks to 12 the health and safety of persons: 13 (a) who, at a workplace, use the plant, substance or structure for a 14 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 workplace 19 in relation to: 20 (i) the assembly or use of the plant for a purpose for which it 21 was designed or manufactured or the proper storage, 22 decommissioning, dismantling or disposal of the plant, or 23 (ii) the use of the substance for a purpose for which it was 24 designed or manufactured or the proper handling, storage 25 or disposal of the substance, or 26 (iii) the assembly or use of the structure for a purpose for which 27 it was designed or manufactured or the proper demolition 28 or disposal of the structure, or 29 Example. Inspection, operation, cleaning, maintenance or repair of 30 plant. 31 (f) who are at or in the vicinity of a workplace and who are exposed 32 to the plant, substance or structure at the workplace or whose 33 health or safety may be affected by a use or activity referred to in 34 paragraph (a), (b), (c), (d) or (e). 35 (3) The manufacturer must carry out, or arrange the carrying out of, any 36 calculations, analysis, testing or examination that may be necessary for 37 the performance of the duty imposed by subsection (2). 38 Page 15 Clause 24 Work Health and Safety Bill 2011 Part 2 Health and safety duties (4) The manufacturer must give adequate information to each person to 1 whom the manufacturer provides the plant, substance or structure 2 concerning: 3 (a) each purpose for which the plant, substance or structure was 4 designed or manufactured, and 5 (b) the results of any calculations, analysis, testing or examination 6 referred to in subsection (3), including, in relation to a substance, 7 any hazardous properties of the substance identified by testing, 8 and 9 (c) any conditions necessary to ensure that the plant, substance or 10 structure is without risks to health and safety when used for a 11 purpose for which it was designed or manufactured or when 12 carrying out any activity referred to in subsection (2) (a)-(e). 13 (5) The manufacturer, on request, must, so far as is reasonably practicable, 14 give current relevant information on the matters referred to in 15 subsection (4) to a person who carries out, or is to carry out, any of the 16 activities referred to in subsection (2) (a)-(e). 17 24 Duties of persons conducting businesses or undertakings that import 18 plant, substances or structures 19 (1) This section applies to a person (the importer) who conducts a business 20 or undertaking that imports: 21 (a) plant that is to be used, or could reasonably be expected to be 22 used, as, or at, a workplace, or 23 (b) a substance that is to be used, or could reasonably be expected to 24 be used, at a workplace, or 25 (c) a structure that is to be used, or could reasonably be expected to 26 be used, as, or at, a workplace. 27 (2) The importer must ensure, so far as is reasonably practicable, that the 28 plant, substance or structure is without risks to the health and safety of 29 persons: 30 (a) who, at a workplace, use the plant, substance or structure for a 31 purpose for which it was designed or manufactured, or 32 (b) who handle the substance at a workplace, or 33 (c) who store the plant or substance at a workplace, or 34 (d) who construct the structure at a workplace, or 35 Page 16 Work Health and Safety Bill 2011 Clause 24 Health and safety duties Part 2 (e) who carry out any reasonably foreseeable activity at a workplace 1 in relation to: 2 (i) the assembly or use of the plant for a purpose for which it 3 was designed or manufactured or the proper storage, 4 decommissioning, dismantling or disposal of the plant, or 5 (ii) the use of the substance for a purpose for which it was 6 designed or manufactured or the proper handling, storage 7 or disposal of the substance, or 8 (iii) the assembly or use of the structure for a purpose for which 9 it was designed or manufactured or the proper demolition 10 or disposal of the structure, or 11 Example. Inspection, operation, cleaning, maintenance or repair of 12 plant. 13 (f) who are at or in the vicinity of a workplace and who are exposed 14 to the plant, substance or structure at the workplace or whose 15 health or safety may be affected by a use or activity referred to in 16 paragraph (a), (b), (c), (d) or (e). 17 (3) The importer must: 18 (a) carry out, or arrange the carrying out of, any calculations, 19 analysis, testing or examination that may be necessary for the 20 performance of the duty imposed by subsection (2), or 21 (b) ensure that the calculations, analysis, testing or examination have 22 been carried out. 23 (4) The importer must give adequate information to each person to whom 24 the importer provides the plant, substance or structure concerning: 25 (a) each purpose for which the plant, substance or structure was 26 designed or manufactured, and 27 (b) the results of any calculations, analysis, testing or examination 28 referred to in subsection (3), including, in relation to a substance, 29 any hazardous properties of the substance identified by testing, 30 and 31 (c) any conditions necessary to ensure that the plant, substance or 32 structure is without risks to health and safety when used for a 33 purpose for which it was designed or manufactured or when 34 carrying out any activity referred to in subsection (2) (a)-(e). 35 (5) The importer, on request, must, so far as is reasonably practicable, give 36 current relevant information on the matters referred to in subsection (4) 37 to a person who carries out, or is to carry out, any of the activities 38 referred to in subsection (2) (a)-(e). 39 Page 17 Clause 25 Work Health and Safety Bill 2011 Part 2 Health and safety duties 25 Duties of persons conducting businesses or undertakings that supply 1 plant, substances or structures 2 (1) This section applies to a person (the supplier) who conducts a business 3 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 expected to 7 be used, at a workplace, or 8 (c) a structure that is to be used, or could reasonably be expected to 9 be used, as, or at, a workplace. 10 (2) The supplier must ensure, so far as is reasonably practicable, that the 11 plant, substance or structure is without risks to the health and safety of 12 persons: 13 (a) who, at a workplace, use the plant or substance or structure for a 14 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 workplace 19 in relation to: 20 (i) the assembly or use of the plant for a purpose for which it 21 was designed or manufactured or the proper storage, 22 decommissioning, dismantling or disposal of the plant, or 23 (ii) the use of the substance for a purpose for which it was 24 designed or manufactured or the proper handling, storage 25 or disposal of the substance, or 26 (iii) the assembly or use of the structure for a purpose for which 27 it was designed or manufactured or the proper demolition 28 or disposal of the structure, or 29 Example. Inspection, storage, operation, cleaning, maintenance or 30 repair of plant. 31 (f) who are at or in the vicinity of a workplace and who are exposed 32 to the plant, substance or structure at the workplace or whose 33 health or safety may be affected by a use or activity referred to in 34 paragraph (a), (b), (c), (d) or (e). 35 (3) The supplier must: 36 (a) carry out, or arrange the carrying out of, any calculations, 37 analysis, testing or examination that may be necessary for the 38 performance of the duty imposed by subsection (2), or 39 Page 18 Work Health and Safety Bill 2011 Clause 26 Health and safety duties Part 2 (b) ensure that the calculations, analysis, testing or examination have 1 been carried out. 2 (4) The supplier must give adequate information to each person to whom 3 the supplier supplies the plant, substance or structure concerning: 4 (a) each purpose for which the plant, substance or structure was 5 designed or manufactured, and 6 (b) the results of any calculations, analysis, testing or examination 7 referred to in subsection (3), including, in relation to a substance, 8 any hazardous properties of the substance identified by testing, 9 and 10 (c) any conditions necessary to ensure that the plant, substance or 11 structure is without risks to health and safety when used for a 12 purpose for which it was designed or manufactured or when 13 carrying out any activity referred to in subsection (2) (a)-(e). 14 (5) The supplier, on request, must, so far as is reasonably practicable, give 15 current relevant information on the matters referred to in subsection (4) 16 to a person who carries out, or is to carry out, any of the activities 17 referred to in subsection (2) (a)-(e). 18 26 Duty of persons conducting businesses or undertakings that install, 19 construct or commission plant or structures 20 (1) This section applies to a person who conducts a business or undertaking 21 that installs, constructs or commissions plant or a structure that is to be 22 used, or could reasonably be expected to be used, as, or at, a workplace. 23 (2) The person must ensure, so far as is reasonably practicable, that the way 24 in which the plant or structure is installed, constructed or commissioned 25 ensures that the plant or structure is without risks to the health and safety 26 of persons: 27 (a) who install or construct the plant or structure at a workplace, or 28 (b) who use the plant or structure at a workplace for a purpose for 29 which it was installed, constructed or commissioned, or 30 (c) who carry out any reasonably foreseeable activity at a workplace 31 in relation to the proper use, decommissioning or dismantling of 32 the plant or demolition or disposal of the structure, or 33 (d) who are at or in the vicinity of a workplace and whose health or 34 safety may be affected by a use or activity referred to in 35 paragraph (a), (b) or (c). 36 Page 19 Clause 27 Work Health and Safety Bill 2011 Part 2 Health and safety duties 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 obligation 3 under this Act, an officer of the person conducting the business or 4 undertaking must exercise due diligence to ensure that the person 5 conducting the business or undertaking complies with that duty or 6 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 officer 9 under this section is the maximum penalty fixed for an officer of a 10 person conducting a business or undertaking for that offence. 11 (3) Despite anything to the contrary in section 33, if the duty or obligation 12 of a person conducting a business or undertaking was imposed under a 13 provision other than a provision of Division 2 or 3 of this Part or this 14 Division, the maximum penalty under section 33 for an offence by an 15 officer under section 33 in relation to the duty or obligation is the 16 maximum penalty fixed under the provision creating the duty or 17 obligation for an individual who fails to comply with the duty or 18 obligation. 19 (4) An officer of a person conducting a business or undertaking may be 20 convicted or found guilty of an offence under this Act relating to a duty 21 under this section whether or not the person conducting the business or 22 undertaking has been convicted or found guilty of an offence under this 23 Act relating to the duty or obligation. 24 (5) In this section, due diligence includes taking reasonable steps: 25 (a) to acquire and keep up-to-date knowledge of work health and 26 safety matters, and 27 (b) to gain an understanding of the nature of the operations of the 28 business or undertaking of the person conducting the business or 29 undertaking and generally of the hazards and risks associated 30 with those operations, and 31 (c) to ensure that the person conducting the business or undertaking 32 has available for use, and uses, appropriate resources and 33 processes to eliminate or minimise risks to health and safety from 34 work carried out as part of the conduct of the business or 35 undertaking, and 36 (d) to ensure that the person conducting the business or undertaking 37 has appropriate processes for receiving and considering 38 information regarding incidents, hazards and risks and 39 responding in a timely way to that information, and 40 Page 20 Work Health and Safety Bill 2011 Clause 28 Health and safety duties Part 2 (e) to ensure that the person conducting the business or undertaking 1 has, and implements, processes for complying with any duty or 2 obligation of the person conducting the business or undertaking 3 under this Act, and 4 Example. For the purposes of paragraph (e), the duties or obligations 5 under this Act of a person conducting a business or undertaking may 6 include: 7 � reporting notifiable incidents, 8 � consulting with workers, 9 � ensuring compliance with notices issued under this Act, 10 � ensuring the provision of training and instruction to workers about 11 work health and safety, 12 � ensuring that health and safety representatives receive their 13 entitlements to training. 14 (f) to verify the provision and use of the resources and processes 15 referred to in paragraphs (c)-(e). 16 28 Duties of workers 17 While at work, a worker must: 18 (a) take reasonable care for his or her own health and safety, and 19 (b) take reasonable care that his or her acts or omissions do not 20 adversely affect the health and safety of other persons, and 21 (c) comply, so far as the worker is reasonably able, with any 22 reasonable instruction that is given by the person conducting the 23 business or undertaking to allow the person to comply with this 24 Act, and 25 (d) co-operate with any reasonable policy or procedure of the person 26 conducting the business or undertaking relating to health or 27 safety at the workplace that has been notified to workers. 28 29 Duties of other persons at the workplace 29 A person at a workplace (whether or not the person has another duty 30 under this Part) must: 31 (a) take reasonable care for his or her own health and safety, and 32 (b) take reasonable care that his or her acts or omissions do not 33 adversely affect the health and safety of other persons, and 34 (c) comply, so far as the person is reasonably able, with any 35 reasonable instruction that is given by the person conducting the 36 business or undertaking to allow the person conducting the 37 business or undertaking to comply with this Act. 38 Page 21 Clause 30 Work Health and Safety Bill 2011 Part 2 Health and safety duties Division 5 Offences and penalties 1 30 Health and safety duty 2 In this Division, health and safety duty means a duty imposed under 3 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 that 8 exposes an individual to whom that duty is owed to a risk of death 9 or serious injury or illness, and 10 (c) the person is reckless as to the risk to an individual of death or 11 serious injury or illness. 12 Maximum penalty: 13 (a) in the case of an offence committed by an individual (other than 14 as a person conducting a business or undertaking or as an officer 15 of a person conducting a business or undertaking)--$300,000 or 16 5 years imprisonment or both, or 17 (b) in the case of an offence committed by an individual as a person 18 conducting a business or undertaking or as an officer of a person 19 conducting a business or undertaking--$600,000 or 5 years 20 imprisonment or both, or 21 (c) in the case of an offence committed by a body corporate-- 22 $3,000,000. 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 Maximum penalty: 32 (a) in the case of an offence committed by an individual (other than 33 as a person conducting a business or undertaking or as an officer 34 of a person conducting a business or undertaking)--$150,000, or 35 Page 22 Work Health and Safety Bill 2011 Clause 33 Health and safety duties Part 2 (b) in the case of an offence committed by an individual as a person 1 conducting a business or undertaking or as an officer of a person 2 conducting a business or undertaking--$300,000, or 3 (c) in the case of an offence committed by a body corporate-- 4 $1,500,000. 5 33 Failure to comply with health and safety duty--Category 3 6 A person commits a Category 3 offence if: 7 (a) the person has a health and safety duty, and 8 (b) the person fails to comply with that duty. 9 Maximum penalty: 10 (a) in the case of an offence committed by an individual (other than 11 as a person conducting a business or undertaking or as an officer 12 of a person conducting a business or undertaking)--$50,000, or 13 (b) in the case of an offence committed by an individual as a person 14 conducting a business or undertaking or as an officer of a person 15 conducting a business or undertaking--$100,000, or 16 (c) in the case of an offence committed by a body corporate-- 17 $500,000. 18 34 Exceptions 19 (1) A volunteer does not commit an offence under this Division for a failure 20 to comply with a health and safety duty, except a duty under section 28 21 or 29. 22 (2) An unincorporated association does not commit an offence under this 23 Act, and is not liable for a civil penalty under this Act, for a failure to 24 comply with a duty or obligation imposed on the unincorporated 25 association under this Act. 26 (3) However: 27 (a) an officer of an unincorporated association (other than a 28 volunteer) may be liable for a failure to comply with a duty under 29 section 27, and 30 (b) a member of an unincorporated association may be liable for 31 failure to comply with a duty under section 28 or 29. 32 Page 23 Clause 35 Work Health and Safety Bill 2011 Part 3 Incident notification Part 3 Incident notification 1 35 What is a "notifiable incident" 2 In this Act, notifiable incident means: 3 (a) the death of a person, or 4 (b) a serious injury or illness of a person, or 5 (c) a dangerous incident. 6 36 What is a "serious injury or illness" 7 In this Part, serious injury or illness of a person means an injury or 8 illness requiring the person to have: 9 (a) immediate treatment as an in-patient in a hospital, or 10 (b) immediate treatment for: 11 (i) the amputation of any part of his or her body, or 12 (ii) a serious head injury, or 13 (iii) a serious eye injury, or 14 (iv) a serious burn, or 15 (v) the separation of his or her skin from an underlying tissue 16 (such as degloving or scalping), or 17 (vi) a spinal injury, or 18 (vii) the loss of a bodily function, or 19 (viii) serious lacerations, or 20 (c) medical treatment within 48 hours of exposure to a substance, 21 and includes any other injury or illness prescribed by the regulations but 22 does not include an illness or injury of a prescribed kind. 23 37 What is a "dangerous incident" 24 In this Part, a dangerous incident means an incident in relation to a 25 workplace that exposes a worker or any other person to a serious risk to 26 a person's health or safety emanating from an immediate or imminent 27 exposure to: 28 (a) an uncontrolled escape, spillage or leakage of a substance, or 29 (b) an uncontrolled implosion, explosion or fire, or 30 (c) an uncontrolled escape of gas or steam, or 31 (d) an uncontrolled escape of a pressurised substance, or 32 (e) electric shock, or 33 (f) the fall or release from a height of any plant, substance or thing, 34 or 35 Page 24 Work Health and Safety Bill 2011 Clause 38 Incident notification Part 3 (g) the collapse, overturning, failure or malfunction of, or damage to, 1 any plant that is required to be authorised for use in accordance 2 with the regulations, or 3 (h) the collapse or partial collapse of a structure, or 4 (i) the collapse or failure of an excavation or of any shoring 5 supporting an excavation, or 6 (j) the inrush of water, mud or gas in workings, in an underground 7 excavation or tunnel, or 8 (k) the interruption of the main system of ventilation in an 9 underground excavation or tunnel, or 10 (l) any other event prescribed by the regulations, 11 but does not include an incident of a prescribed kind. 12 38 Duty to notify of notifiable incidents 13 (1) A person who conducts a business or undertaking must ensure that the 14 regulator is notified immediately after becoming aware that a notifiable 15 incident arising out of the conduct of the business or undertaking has 16 occurred. 17 Maximum penalty: 18 (a) in the case of an individual--$10,000, or 19 (b) in the case of a body corporate--$50,000. 20 (2) The notice must be given in accordance with this section and by the 21 fastest possible means. 22 (3) The notice must be given: 23 (a) by telephone, or 24 (b) in writing. 25 Example. The written notice can be given by facsimile, email or other electronic 26 means. 27 (4) A person giving notice by telephone must: 28 (a) give the details of the incident requested by the regulator, and 29 (b) if required by the regulator, give a written notice of the incident 30 within 48 hours of that requirement being made. 31 (5) A written notice must be in a form, or contain the details, approved by 32 the regulator. 33 (6) If the regulator receives a notice by telephone and a written notice is not 34 required, the regulator must give the person conducting the business or 35 undertaking: 36 (a) details of the information received, or 37 Page 25 Clause 39 Work Health and Safety Bill 2011 Part 3 Incident notification (b) an acknowledgement of receiving the notice. 1 (7) A person conducting a business or undertaking must keep a record of 2 each notifiable incident for at least 5 years from the day that notice of 3 the incident is given to the regulator under this section. 4 Maximum penalty: 5 (a) in the case of an individual--$5,000, or 6 (b) in the case of a body corporate--$25,000. 7 (8) Despite subsection (1), a person is not required to give notice under this 8 section of an incident if: 9 (a) the person has given notice of the incident in accordance with 10 section 44 (2) of the Workplace Injury Management and Workers 11 Compensation Act 1998, or 12 (b) the incident occurs at a mine to which the Mine Health and Safety 13 Act 2004 applies or at a coal workplace. 14 39 Duty to preserve incident sites 15 (1) The person with management or control of a workplace at which a 16 notifiable incident has occurred must ensure so far as is reasonably 17 practicable, that the site where the incident occurred is not disturbed 18 until an inspector arrives at the site or any earlier time that an inspector 19 directs. 20 Maximum penalty: 21 (a) in the case of an individual--$10,000, or 22 (b) in the case of a body corporate--$50,000. 23 (2) In subsection (1) a reference to a site includes any plant, substance, 24 structure or thing associated with the notifiable incident. 25 (3) Subsection (1) does not prevent any action: 26 (a) to assist an injured person, or 27 (b) to remove a deceased person, or 28 (c) that is essential to make the site safe or to minimise the risk of a 29 further notifiable incident, or 30 (d) that is associated with a police investigation, or 31 (e) for which an inspector or the regulator has given permission. 32 (4) This section does not apply to a mine to which the Mine Health and 33 Safety Act 2004 applies or to a coal workplace. 34 Page 26 Work Health and Safety Bill 2011 Clause 40 Authorisations Part 4 Part 4 Authorisations 1 40 Meaning of "authorised" 2 In this Part, authorised means authorised by a licence, permit, 3 registration or other authority (however described) as required by the 4 regulations. 5 41 Requirements for authorisation of workplaces 6 A person must not conduct a business or undertaking at a workplace or 7 direct or allow a worker to carry out work at a workplace if: 8 (a) the regulations require the workplace or workplaces in that class 9 of workplace to be authorised, and 10 (b) the workplace is not authorised in accordance with the 11 regulations. 12 Maximum penalty: 13 (a) in the case of an individual--$50,000, or 14 (b) in the case of a body corporate--$250,000. 15 42 Requirements for authorisation of plant or substance 16 (1) A person must not use plant or a substance at a workplace if: 17 (a) the regulations require the plant or substance or its design to be 18 authorised, and 19 (b) the plant or substance or its design is not authorised in accordance 20 with the regulations. 21 Maximum penalty: 22 (a) in the case of an individual--$20,000, or 23 (b) in the case of a body corporate--$100,000. 24 (2) A person who conducts a business or undertaking must not direct or 25 allow a worker to use the plant or substance at a workplace if: 26 (a) the regulations require the plant or substance or its design to be 27 authorised, and 28 (b) the plant or substance or its design is not authorised in accordance 29 with the regulations. 30 Maximum penalty: 31 (a) in the case of an individual--$20,000, or 32 (b) in the case of a body corporate--$100,000. 33 Page 27 Clause 43 Work Health and Safety Bill 2011 Part 4 Authorisations 43 Requirements for authorisation of work 1 (1) A person must not carry out work at a workplace if: 2 (a) the regulations require the work, or class of work, to be carried 3 out by, or on behalf of, a person who is authorised, and 4 (b) the person, or the person on whose behalf the work is carried out, 5 is not authorised in accordance with the regulations. 6 Maximum penalty: 7 (a) in the case of an individual--$20,000, or 8 (b) in the case of a body corporate--$100,000. 9 (2) A person who conducts a business or undertaking must not direct or 10 allow a worker to carry out work at a workplace if: 11 (a) the regulations require the work, or class of work, to be carried 12 out by, or on behalf of, a person who is authorised, and 13 (b) the person, or the person on whose behalf the work is to be carried 14 out, is not authorised in accordance with the regulations. 15 Maximum penalty: 16 (a) in the case of an individual--$20,000, or 17 (b) in the case of a body corporate--$100,000. 18 44 Requirements for prescribed qualifications or experience 19 (1) A person must not carry out work at a workplace if: 20 (a) the regulations require the work, or class of work, to be carried 21 out by, or under the supervision of, a person who has prescribed 22 qualifications or experience, and 23 (b) the person does not have the prescribed qualifications or 24 experience or the work is not carried out under the supervision of 25 a person who has the prescribed qualifications or experience. 26 Maximum penalty: 27 (a) in the case of an individual--$20,000, or 28 (b) in the case of a body corporate--$100,000. 29 (2) A person who conducts a business or undertaking must not direct or 30 allow a worker to carry out work at a workplace if: 31 (a) the regulations require the work, or class of work, to be carried 32 out by, or under the supervision of, a person who has prescribed 33 qualifications or experience, and 34 Page 28 Work Health and Safety Bill 2011 Clause 45 Authorisations Part 4 (b) the worker does not have the prescribed qualifications or 1 experience or the work is not carried out under the supervision of 2 a person who has the prescribed qualifications or experience. 3 Maximum penalty: 4 (a) in the case of an individual--$20,000, or 5 (b) in the case of a body corporate--$100,000. 6 45 Requirement to comply with conditions of authorisation 7 A person must comply with the conditions of any authorisation given to 8 that person under the regulations. 9 Maximum penalty: 10 (a) in the case of an individual--$20,000, or 11 (b) in the case of a body corporate--$100,000. 12 Page 29 Clause 46 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation Part 5 Consultation, representation and participation 1 Division 1 Consultation, co-operation and co-ordination 2 between duty holders 3 46 Duty to consult with other duty holders 4 If more than one person has a duty in relation to the same matter under 5 this Act, each person with the duty must, so far as is reasonably 6 practicable, consult, co-operate and co-ordinate activities with all other 7 persons who have a duty in relation to the same matter. 8 Maximum penalty: 9 (a) in the case of an individual--$20,000, or 10 (b) in the case of a body corporate--$100,000. 11 Division 2 Consultation with workers 12 47 Duty to consult workers 13 (1) The person conducting a business or undertaking must, so far as is 14 reasonably practicable, consult, in accordance with this Division and 15 the regulations, with workers who carry out work for the business or 16 undertaking who are, or are likely to be, directly affected by a matter 17 relating to work health or safety. 18 Maximum penalty: 19 (a) in the case of an individual--$20,000, or 20 (b) in the case of a body corporate--$100,000. 21 (2) If the person conducting the business or undertaking and the workers 22 have agreed to procedures for consultation, the consultation must be in 23 accordance with those procedures. 24 (3) The agreed procedures must not be inconsistent with section 48. 25 48 Nature of consultation 26 (1) Consultation under this Division requires: 27 (a) that relevant information about the matter is shared with workers, 28 and 29 (b) that workers be given a reasonable opportunity: 30 (i) to express their views and to raise work health or safety 31 issues in relation to the matter, and 32 (ii) to contribute to the decision-making process relating to the 33 matter, and 34 Page 30 Work Health and Safety Bill 2011 Clause 49 Consultation, representation and participation Part 5 (c) that the views of workers are taken into account by the person 1 conducting the business or undertaking, and 2 (d) that the workers consulted are advised of the outcome of the 3 consultation in a timely manner. 4 (2) If the workers are represented by a health and safety representative, the 5 consultation must involve that representative. 6 49 When consultation is required 7 Consultation under this Division is required in relation to the following 8 health and safety matters: 9 (a) when identifying hazards and assessing risks to health and safety 10 arising from the work carried out or to be carried out by the 11 business or undertaking, 12 (b) when making decisions about ways to eliminate or minimise 13 those risks, 14 (c) when making decisions about the adequacy of facilities for the 15 welfare of workers, 16 (d) when proposing changes that may affect the health or safety of 17 workers, 18 (e) when making decisions about the procedures for: 19 (i) consulting with workers, or 20 (ii) resolving work health or safety issues at the workplace, or 21 (iii) monitoring the health of workers, or 22 (iv) monitoring the conditions at any workplace under the 23 management or control of the person conducting the 24 business or undertaking, or 25 (v) providing information and training for workers, or 26 (f) when carrying out any other activity prescribed by the regulations 27 for the purposes of this section. 28 Division 3 Health and safety representatives 29 Subdivision 1 Request for election of health and safety 30 representatives 31 50 Request for election of health and safety representative 32 A worker who carries out work for a business or undertaking may ask 33 the person conducting the business or undertaking to facilitate the 34 conduct of an election for one or more health and safety representatives 35 Page 31 Clause 51 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation to represent workers who carry out work for the business or 1 undertaking. 2 Subdivision 2 Determination of work groups 3 51 Determination of work groups 4 (1) If a request is made under section 50, the person conducting the 5 business or undertaking must facilitate the determination of one or more 6 work groups of workers. 7 (2) The purpose of determining a work group is to facilitate the 8 representation of workers in the work group by one or more health and 9 safety representatives. 10 (3) A work group may be determined for workers at one or more 11 workplaces. 12 52 Negotiations for agreement for work group 13 (1) A work group is to be determined by negotiation and agreement 14 between: 15 (a) the person conducting the business or undertaking, and 16 (b) the workers who will form the work group or their 17 representatives. 18 (2) The person conducting the business or undertaking must take all 19 reasonable steps to commence negotiations with the workers within 14 20 days after a request is made under section 50. 21 (3) The purpose of the negotiations is to determine: 22 (a) the number and composition of work groups to be represented by 23 health and safety representatives, and 24 (b) the number of health and safety representatives and deputy health 25 and safety representatives (if any) to be elected, and 26 (c) the workplace or workplaces to which the work groups will 27 apply, and 28 (d) the businesses or undertakings to which the work groups will 29 apply. 30 (4) The parties to an agreement concerning the determination of a work 31 group or groups may, at any time, negotiate a variation of the 32 agreement. 33 (5) The person conducting the business or undertaking must, if asked by a 34 worker, negotiate with the worker's representative in negotiations under 35 Page 32 Work Health and Safety Bill 2011 Clause 53 Consultation, representation and participation Part 5 this section (including negotiations for a variation of an agreement) and 1 must not exclude the representative from those negotiations. 2 Maximum penalty: 3 (a) in the case of an individual--$10,000, or 4 (b) in the case of a body corporate--$50,000. 5 (6) The regulations may prescribe the matters that must be taken into 6 account in negotiations for and determination of work groups and 7 variations of agreements concerning work groups. 8 53 Notice to workers 9 (1) The person conducting a business or undertaking involved in 10 negotiations to determine a work group must, as soon as practicable 11 after the negotiations are completed, notify the workers of the outcome 12 of the negotiations and of any work groups determined by agreement. 13 Maximum penalty: 14 (a) in the case of an individual--$2,000, or 15 (b) in the case of a body corporate--$10,000. 16 (2) The person conducting a business or undertaking involved in 17 negotiations for the variation of an agreement concerning the 18 determination of a work group or groups must, as soon as practicable 19 after the negotiations are completed, notify the workers of the outcome 20 of the negotiations and of the variation (if any) to the agreement. 21 Maximum penalty: 22 (a) in the case of an individual--$2,000, or 23 (b) in the case of a body corporate--$10,000. 24 54 Failure of negotiations 25 (1) If there is a failure of negotiations (including negotiations concerning 26 the variation of an agreement), any person who is or would be a party to 27 the negotiations may ask the regulator to appoint an inspector for the 28 purposes of this section. 29 (2) An inspector appointed under subsection (1) may decide: 30 (a) the matters referred to in section 52 (3), or any of those matters 31 which is the subject of the proposed variation (as the case 32 requires), or 33 (b) that work groups should not be determined or that the agreement 34 should not be varied (as the case requires). 35 Page 33 Clause 55 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (3) For the purposes of this section, there is a failure of negotiations if: 1 (a) the person conducting the business or undertaking has not taken 2 all reasonable steps to commence negotiations with the workers 3 and negotiations have not commenced within 14 days after: 4 (i) a request is made under section 50, or 5 (ii) a party to the agreement requests the variation of the 6 agreement, or 7 (b) agreement cannot be reached on a matter relating to the 8 determination of a work group (or the variation of an agreement 9 concerning a work group) within a reasonable time after 10 negotiations commence. 11 (4) A decision under this section is taken to be an agreement under 12 section 52. 13 Subdivision 3 Multiple-business work groups 14 55 Determination of work groups of multiple businesses 15 (1) Work groups may be determined for workers carrying out work for 2 or 16 more persons conducting businesses or undertakings at one or more 17 workplaces. 18 (2) The particulars of the work groups are to be determined by negotiation 19 and agreement, in accordance with section 56, between each of the 20 persons conducting the businesses or undertakings and the workers. 21 (3) The parties to an agreement concerning the determination of a work 22 group or groups may, at any time, negotiate a variation of the 23 agreement. 24 (4) The determination of one or more work groups under this Subdivision 25 does not: 26 (a) prevent the determination under this Subdivision or 27 Subdivision 2 of any other work group of the workers concerned, 28 or 29 (b) affect any work groups of those workers that have already been 30 determined under this Subdivision or Subdivision 2. 31 56 Negotiation of agreement for work groups of multiple businesses 32 (1) Negotiations concerning work groups under this Subdivision must be 33 directed only at the following: 34 (a) the number and composition of work groups to be represented by 35 health and safety representatives, 36 Page 34 Work Health and Safety Bill 2011 Clause 57 Consultation, representation and participation Part 5 (b) the number of health and safety representatives and deputy health 1 and safety representatives (if any) for each work group, 2 (c) the workplace or workplaces to which the work groups will 3 apply, 4 (d) the businesses or undertakings to which the work groups will 5 apply. 6 (2) A person conducting a business or undertaking must, if asked by a 7 worker, negotiate with the worker's representative in negotiations under 8 this section (including negotiations for a variation of an agreement) and 9 must not exclude the representative from those negotiations. 10 Maximum penalty: 11 (a) in the case of an individual--$10,000, or 12 (b) in the case of a body corporate--$50,000. 13 (3) If agreement cannot be reached on a matter relating to the determination 14 of a work group (or a variation of an agreement) within a reasonable 15 time after negotiations commence under this Subdivision, any party to 16 the negotiations may ask the regulator to appoint an inspector to assist 17 the negotiations in relation to that matter. 18 (4) 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. 21 57 Notice to workers 22 (1) A person conducting a business or undertaking involved in negotiations 23 to determine a work group must, as soon as practicable after the 24 negotiations are completed, notify the workers of the outcome of the 25 negotiations and of any work groups determined by agreement. 26 Maximum penalty: 27 (a) in the case of an individual--$2,000, or 28 (b) in the case of a body corporate--$10,000. 29 (2) A person conducting a business or undertaking involved in negotiations 30 for the variation of an agreement concerning the determination of a 31 work group or groups must, as soon as practicable after the negotiations 32 are completed, notify the workers of the outcome of the negotiations 33 and of the variation (if any) to the agreement. 34 Maximum penalty: 35 (a) in the case of an individual--$2,000, or 36 (b) in the case of a body corporate--$10,000. 37 Page 35 Clause 58 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation 58 Withdrawal from negotiations or agreement involving multiple 1 businesses 2 (1) A party to a negotiation for an agreement, or to an agreement, 3 concerning a work group under this Subdivision may withdraw from the 4 negotiation or agreement at any time by giving reasonable notice (in 5 writing) to the other parties. 6 (2) If a party withdraws from an agreement concerning a work group under 7 this Subdivision: 8 (a) the other parties must negotiate a variation to the agreement in 9 accordance with section 56, and 10 (b) the withdrawal does not affect the validity of the agreement 11 between the other parties in the meantime. 12 59 Effect of Subdivision on other arrangements 13 To avoid doubt, nothing in this Subdivision affects the capacity of 2 or 14 more persons conducting businesses or undertakings and their workers 15 to enter into other agreements or make other arrangements, in addition 16 to complying with this Part, concerning the representation of those 17 workers. 18 Subdivision 4 Election of health and safety representatives 19 60 Eligibility to be elected 20 A worker is: 21 (a) eligible to be elected as a health and safety representative for a 22 work group only if he or she is a member of that work group, and 23 (b) not eligible to be elected as a health and safety representative if 24 he or she is disqualified under section 65 from being a health and 25 safety representative. 26 61 Procedure for election of health and safety representatives 27 (1) The workers in a work group may determine how an election of a health 28 and safety representative for the work group is to be conducted. 29 (2) However, an election must comply with the procedures (if any) 30 prescribed by the regulations. 31 (3) If a majority of the workers in a work group so determine, the election 32 may be conducted with the assistance of a union or other person or 33 organisation. 34 Page 36 Work Health and Safety Bill 2011 Clause 62 Consultation, representation and participation Part 5 (4) The person conducting the business or undertaking to which the work 1 group relates must provide any resources, facilities and assistance that 2 are reasonably necessary or are prescribed by the regulations to enable 3 elections to be conducted. 4 Maximum penalty: 5 (a) in the case of an individual--$10,000, or 6 (b) in the case of a body corporate--$50,000. 7 62 Eligibility to vote 8 (1) A health and safety representative for a work group is to be elected by 9 members of that work group. 10 (2) All workers in a work group are entitled to vote for the election of a 11 health and safety representative for that work group. 12 63 When election not required 13 If the number of candidates for election as a health and safety 14 representative for a work group equals the number of vacancies, the 15 election need not be conducted and each candidate is to be taken to have 16 been elected as a health and safety representative for the work group. 17 64 Term of office of health and safety representative 18 (1) A health and safety representative for a work group holds office for 19 3 years. 20 (2) However a person ceases to hold office as a health and safety 21 representative for a work group if: 22 (a) the person resigns as a health and safety representative for the 23 work group by written notice given to the person conducting the 24 relevant business or undertaking, or 25 (b) the person ceases to be a worker in the work group for which he 26 or she was elected as a health and safety representative, or 27 (c) the person is disqualified under section 65 from acting as a health 28 and safety representative, or 29 (d) the person is removed from that position by a majority of the 30 members of the work group in accordance with the regulations. 31 (3) A health and safety representative is eligible for re-election. 32 Page 37 Clause 65 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation 65 Disqualification of health and safety representatives 1 (1) An application may be made to the Industrial Relations Commission to 2 disqualify a health and safety representative on the ground that the 3 representative has: 4 (a) exercised a power or performed a function as a health and safety 5 representative for an improper purpose, or 6 (b) used or disclosed any information he or she acquired as a health 7 and safety representative for a purpose other than in connection 8 with the role of health and safety representative. 9 (2) The following persons may make an application under this section: 10 (a) any person adversely affected by: 11 (i) the exercise of a power or the performance of a function 12 referred to in subsection (1) (a), or 13 (ii) the use or disclosure of information referred to in 14 subsection (1) (b), 15 (b) the regulator. 16 (3) If the Industrial Relations Commission is satisfied that a ground in 17 subsection (1) is made out, the Commission may disqualify the health 18 and safety representative for a specified period or indefinitely. 19 66 Immunity of health and safety representatives 20 A health and safety representative is not personally liable for anything 21 done or omitted to be done in good faith: 22 (a) in exercising a power or performing a function under this Act, or 23 (b) in the reasonable belief that the thing was done or omitted to be 24 done in the exercise of a power or the performance of a function 25 under this Act. 26 67 Deputy health and safety representatives 27 (1) Each deputy health and safety representative for a work group is to be 28 elected in the same way as a health and safety representative for the 29 work group. 30 (2) If the health and safety representative for a work group ceases to hold 31 office or is unable (because of absence or any other reason) to exercise 32 the powers or perform the functions of a health and safety representative 33 under this Act: 34 (a) the powers and functions may be exercised or performed by a 35 deputy health and safety representative for the work group, and 36 Page 38 Work Health and Safety Bill 2011 Clause 68 Consultation, representation and participation Part 5 (b) this Act applies in relation to the deputy health and safety 1 representative as if he or she were the health and safety 2 representative. 3 (3) Sections 64, 65, 66, 72 and 73 apply to deputy health and safety 4 representatives in the same way as they apply to health and safety 5 representatives. 6 Subdivision 5 Powers and functions of health and safety 7 representatives 8 68 Powers and functions of health and safety representatives 9 (1) The powers and functions of a health and safety representative for a 10 work group are: 11 (a) to represent the workers in the work group in matters relating to 12 work health and safety, and 13 (b) to monitor the measures taken by the person conducting the 14 relevant business or undertaking or that person's representative 15 in compliance with this Act in relation to workers in the work 16 group, and 17 (c) to investigate complaints from members of the work group 18 relating to work health and safety, and 19 (d) to inquire into anything that appears to be a risk to the health or 20 safety of workers in the work group, arising from the conduct of 21 the business or undertaking. 22 (2) In exercising a power or performing a function, the health and safety 23 representative may: 24 (a) inspect the workplace or any part of the workplace at which a 25 worker in the work group works: 26 (i) at any time after giving reasonable notice to the person 27 conducting the business or undertaking at that workplace, 28 and 29 (ii) at any time, without notice, in the event of an incident, or 30 any situation involving a serious risk to the health or safety 31 of a person emanating from an immediate or imminent 32 exposure to a hazard, and 33 (b) accompany an inspector during an inspection of the workplace or 34 part of the workplace at which a worker in the work group works, 35 and 36 Page 39 Clause 69 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (c) with the consent of a worker that the health and safety 1 representative represents, be present at an interview concerning 2 work health and safety between the worker and: 3 (i) an inspector, or 4 (ii) the person conducting the business or undertaking at that 5 workplace or the person's representative, and 6 (d) with the consent of one or more workers that the health and safety 7 representative represents, be present at an interview concerning 8 work health and safety between a group of workers, which 9 includes the workers who gave the consent, and: 10 (i) an inspector, or 11 (ii) the person conducting the business or undertaking at that 12 workplace or the person's representative, and 13 (e) request the establishment of a health and safety committee, and 14 (f) receive information concerning the work health and safety of 15 workers in the work group, and 16 (g) whenever necessary, request the assistance of any person. 17 Note. A health and safety representative also has a power under Division 6 of 18 this Part to direct work to cease in certain circumstances and under Division 7 19 of this Part to issue provisional improvement notices. 20 (3) Despite subsection (2) (f), a health and safety representative is not 21 entitled to have access to any personal or medical information 22 concerning a worker without the worker's consent unless the 23 information is in a form that: 24 (a) does not identify the worker, and 25 (b) could not reasonably be expected to lead to the identification of 26 the worker. 27 (4) Nothing in this Act imposes or is taken to impose a duty on a health and 28 safety representative in that capacity. 29 69 Powers and functions generally limited to the particular work group 30 (1) A health and safety representative for a work group may exercise 31 powers and perform functions under this Act only in relation to matters 32 that affect, or may affect, workers in that group. 33 (2) Subsection (1) does not apply if: 34 (a) there is a serious risk to health or safety emanating from an 35 immediate or imminent exposure to a hazard that affects or may 36 affect a member of another work group, or 37 Page 40 Work Health and Safety Bill 2011 Clause 70 Consultation, representation and participation Part 5 (b) a member of another work group asks for the representative's 1 assistance, 2 and the health and safety representative (and any deputy health and 3 safety representative) for that other work group is found, after 4 reasonable inquiry, to be unavailable. 5 (3) In this section, another work group means another work group of 6 workers carrying out work for a business or undertaking to which the 7 work group that the health and safety representative represents relates. 8 Subdivision 6 Obligations of person conducting business or 9 undertaking to health and safety 10 representatives 11 70 General obligations of person conducting business or undertaking 12 (1) The person conducting a business or undertaking must: 13 (a) consult, so far as is reasonably practicable, on work health and 14 safety matters with any health and safety representative for a 15 work group of workers carrying out work for the business or 16 undertaking, and 17 (b) confer with a health and safety representative for a work group, 18 whenever reasonably requested by the representative, for the 19 purpose of ensuring the health and safety of the workers in the 20 work group, and 21 (c) allow any health and safety representative for the work group to 22 have access to information that the person has relating to: 23 (i) hazards (including associated risks) at the workplace 24 affecting workers in the work group, and 25 (ii) the health and safety of the workers in the work group, and 26 (d) with the consent of a worker that the health and safety 27 representative represents, allow the health and safety 28 representative to be present at an interview concerning work 29 health and safety between the worker and: 30 (i) an inspector, or 31 (ii) the person conducting the business or undertaking at that 32 workplace or the person's representative, and 33 (e) with the consent of one or more workers that the health and safety 34 representative represents, allow the health and safety 35 representative to be present at an interview concerning work 36 health and safety between a group of workers, which includes the 37 workers who gave the consent, and: 38 (i) an inspector, or 39 Page 41 Clause 71 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (ii) the person conducting the business or undertaking at that 1 workplace or the person's representative, and 2 (f) provide any resources, facilities and assistance to a health and 3 safety representative for the work group that are reasonably 4 necessary or prescribed by the regulations to enable the 5 representative to exercise his or her powers or perform his or her 6 functions under this Act, and 7 (g) allow a person assisting a health and safety representative for the 8 work group to have access to the workplace if that is necessary to 9 enable the assistance to be provided, and 10 (h) permit a health and safety representative for the work group to 11 accompany an inspector during an inspection of any part of the 12 workplace where a worker in the work group works, and 13 (i) provide any other assistance to the health and safety 14 representative for the work group that may be required by the 15 regulations. 16 Maximum penalty: 17 (a) in the case of an individual--$10,000, or 18 (b) in the case of a body corporate--$50,000. 19 (2) The person conducting a business or undertaking must allow a health 20 and safety representative to spend such time as is reasonably necessary 21 to exercise his or her powers and perform his or her functions under 22 this Act. 23 Maximum penalty: 24 (a) in the case of an individual--$10,000, or 25 (b) in the case of a body corporate--$50,000. 26 (3) Any time that a health and safety representative spends for the purposes 27 of exercising his or her powers or performing his or her functions under 28 this Act must be with the pay that he or she would otherwise be entitled 29 to receive for performing his or her normal duties during that period. 30 71 Exceptions from obligations under section 70 (1) 31 (1) This section applies despite section 70 (1). 32 (2) The person conducting a business or undertaking must not allow a 33 health and safety representative to have access to any personal or 34 medical information concerning a worker without the worker's consent 35 unless the information is in a form that: 36 (a) does not identify the worker, and 37 Page 42 Work Health and Safety Bill 2011 Clause 72 Consultation, representation and participation Part 5 (b) could not reasonably be expected to lead to the identification of 1 the worker. 2 Maximum penalty: 3 (a) in the case of an individual--$10,000, or 4 (b) in the case of a body corporate--$50,000. 5 (3) The person conducting a business or undertaking is not required to give 6 financial assistance to a health and safety representative for the purpose 7 of the assistance referred to in section 70 (1) (f). 8 (4) The person conducting a business or undertaking is not required to 9 allow a person assisting a health and safety representative for a work 10 group to have access to the workplace: 11 (a) if the assistant has had his or her WHS entry permit revoked, or 12 (b) during any period that the assistant's WHS entry permit is 13 suspended or the assistant is disqualified from holding a WHS 14 entry permit. 15 (5) The person conducting a business or undertaking may refuse on 16 reasonable grounds to grant access to the workplace to a person 17 assisting a health and safety representative for a work group. 18 (6) If access is refused to a person assisting a health and safety 19 representative under subsection (5), the health and safety representative 20 may ask the regulator to appoint an inspector to assist in resolving the 21 matter. 22 72 Obligation to train health and safety representatives 23 (1) The person conducting a business or undertaking must, if requested by 24 a health and safety representative for a work group for that business or 25 undertaking, allow the health and safety representative to attend a 26 course of training in work health and safety that is: 27 (a) approved by the regulator, and 28 (b) a course that the health and safety representative is entitled under 29 the regulations to attend, and 30 (c) subject to subsection (5), chosen by the health and safety 31 representative, in consultation with the person conducting the 32 business or undertaking. 33 (2) The person conducting the business or undertaking must: 34 (a) as soon as practicable within the period of 3 months after the 35 request is made, allow the health and safety representative time 36 off work to attend the course of training, and 37 Page 43 Clause 73 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (b) pay the course fees and any other reasonable costs associated 1 with the health and safety representative's attendance at the 2 course of training. 3 (3) If: 4 (a) a health and safety representative represents a work group of the 5 workers of more than one business or undertaking, and 6 (b) the person conducting any of those businesses or undertakings 7 has complied with this section in relation to the representative, 8 each of the persons conducting those businesses or undertakings is to be 9 taken to have complied with this section in relation to the representative. 10 (4) Any time that a health and safety representative is given off work to 11 attend the course of training must be with the pay that he or she would 12 otherwise be entitled to receive for performing his or her normal duties 13 during that period. 14 (5) If agreement cannot be reached between the person conducting the 15 business or undertaking and the health and safety representative within 16 the time required by subsection (2) as to the matters set out in 17 subsections (1) (c) and (2), either party may ask the regulator to appoint 18 an inspector to decide the matter. 19 (6) The inspector may decide the matter in accordance with this section. 20 (7) A person conducting a business or undertaking must allow a health and 21 safety representative to attend a course decided by the inspector and pay 22 the costs decided by the inspector under subsection (6). 23 Maximum penalty: 24 (a) in the case of an individual--$10,000, or 25 (b) in the case of a body corporate--$50,000. 26 73 Obligation to share costs if multiple businesses or undertakings 27 (1) If a health and safety representative, or deputy health and safety 28 representative (if any), represents a work group of workers carrying out 29 work for 2 or more persons conducting businesses or undertakings: 30 (a) the costs of the representative exercising powers and performing 31 functions under this Act, and 32 (b) the costs referred to in section 72 (2) (b), 33 for which any of the persons conducting those businesses or 34 undertakings are liable must be apportioned equally between each of 35 those persons unless they agree otherwise. 36 Page 44 Work Health and Safety Bill 2011 Clause 74 Consultation, representation and participation Part 5 (2) An agreement to apportion the costs in another way may be varied at 1 any time by negotiation and agreement between each of the persons 2 conducting the businesses or undertakings. 3 74 List of health and safety representatives 4 (1) A person conducting a business or undertaking must ensure that: 5 (a) a list of each health and safety representative and deputy health 6 and safety representative (if any) for each work group of workers 7 carrying out work for the business or undertaking is prepared and 8 kept up to date, and 9 (b) a copy of the up-to-date list is displayed: 10 (i) at the principal place of business of the business or 11 undertaking, and 12 (ii) at any other workplace that is appropriate taking into 13 account the constitution of the relevant work group or 14 work groups, 15 in a manner that is readily accessible to workers in the relevant 16 work group or work groups. 17 Maximum penalty: 18 (a) in the case of an individual--$2,000, or 19 (b) in the case of a body corporate--$10,000. 20 (2) A person conducting a business or undertaking must provide a copy of 21 the up-to-date list prepared under subsection (1) to the regulator as soon 22 as practicable after it is prepared. 23 Division 4 Health and safety committees 24 75 Health and safety committees 25 (1) The person conducting a business or undertaking at a workplace must 26 establish a health and safety committee for the business or undertaking 27 or part of the business or undertaking: 28 (a) within 2 months after being requested to do so by: 29 (i) a health and safety representative for a work group of 30 workers carrying out work at that workplace, or 31 (ii) 5 or more workers at that workplace, or 32 (b) if required by the regulations to do so, within the time prescribed 33 by the regulations. 34 Maximum penalty: 35 (a) in the case of an individual--$5,000, or 36 (b) in the case of a body corporate--$25,000. 37 Page 45 Clause 76 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (2) A person conducting a business or undertaking at a workplace may 1 establish a health and safety committee for the workplace or part of the 2 workplace on the person's own initiative. 3 Note. If a health and safety committee is not required to be established, other 4 consultation procedures can be established for a workplace--see Division 2 of 5 this Part. 6 76 Constitution of committee 7 (1) Subject to subsections (2)-(4), the constitution of a health and safety 8 committee may be agreed between the person conducting the business 9 or undertaking and the workers at the workplace. 10 (2) If there is a health and safety representative at a workplace, that 11 representative, if he or she consents, is a member of the committee. 12 (3) If there are 2 or more health and safety representatives at a workplace, 13 those representatives may choose one or more of their number (who 14 consent) to be members of the committee. 15 (4) At least half of the members of the committee must be workers who are 16 not nominated by the person conducting the business or undertaking. 17 (5) If agreement is not reached under this section within a reasonable time, 18 any party may ask the regulator to appoint an inspector to decide the 19 matter. 20 (6) An inspector appointed on a request under subsection (5) may decide 21 the constitution of the health and safety committee or that the committee 22 should not be established. 23 (7) A decision of an inspector under this section is taken to be an agreement 24 under this section between the parties. 25 76A Special provision for coal and mine workplaces 26 (1) In the case of a coal workplace, a site check inspector and the electrical 27 check inspector (within the meaning of the Coal Mine Health and Safety 28 Act 2002) for that workplace must be members of any health and safety 29 committee for that workplace. 30 Note. The Coal Mine Health and Safety Act 2002 makes provision for the 31 election or appointment of certain people to carry out inspections and perform 32 other functions on behalf of people who work at a coal workplace. 33 (2) In the case of a place of work that is a mine within the meaning of the 34 Mine Health and Safety Act 2004, a site check inspector (within the 35 meaning of that Act) for the mine must be a member of any health and 36 safety committee for that place of work. 37 Note. The Mine Health and Safety Act 2004 makes provision for the election or 38 appointment of certain persons to carry out inspections and perform other 39 functions on behalf of persons who work at mines within the meaning of that Act. 40 Page 46 Work Health and Safety Bill 2011 Clause 77 Consultation, representation and participation Part 5 77 Functions of committee 1 The functions of a health and safety committee are: 2 (a) to facilitate co-operation between the person conducting a 3 business or undertaking and workers in instigating, developing 4 and carrying out measures designed to ensure the workers' health 5 and safety at work, and 6 (b) to assist in developing standards, rules and procedures relating to 7 health and safety that are to be followed or complied with at the 8 workplace, and 9 (c) any other functions prescribed by the regulations or agreed 10 between the person conducting the business or undertaking and 11 the committee. 12 78 Meetings of committee 13 A health and safety committee must meet: 14 (a) at least once every 3 months, and 15 (b) at any reasonable time at the request of at least half of the 16 members of the committee. 17 79 Duties of person conducting business or undertaking 18 (1) The person conducting a business or undertaking must allow each 19 member of the health and safety committee to spend the time that is 20 reasonably necessary to attend meetings of the committee or to carry out 21 functions as a member of the committee. 22 Maximum penalty: 23 (a) in the case of an individual--$10,000, or 24 (b) in the case of a body corporate--$50,000. 25 (2) Any time that a member of a health and safety committee spends for the 26 purposes set out in subsection (1) must be with the pay that he or she 27 would otherwise be entitled to receive for performing his or her normal 28 duties during that period. 29 (3) The person conducting a business or undertaking must allow the health 30 and safety committee for a workplace to have access to information that 31 the person has relating to: 32 (a) hazards (including associated risks) at the workplace, and 33 (b) the health and safety of the workers at the workplace. 34 Maximum penalty: 35 (a) in the case of an individual--$10,000, or 36 (b) in the case of a body corporate--$50,000. 37 Page 47 Clause 80 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (4) Despite subsection (3), the person conducting a business or undertaking 1 must not allow the health and safety committee to have access to any 2 personal or medical information concerning a worker without the 3 worker's consent unless the information is in a form that: 4 (a) does not identify the worker, and 5 (b) could not reasonably be expected to lead to the identification of 6 the worker. 7 Maximum penalty: 8 (a) in the case of an individual--$10,000, or 9 (b) in the case of a body corporate--$50,000. 10 Division 5 Issue resolution 11 80 Parties to an issue 12 (1) In this Division, parties, in relation to an issue, means the following: 13 (a) the person conducting the business or undertaking or the person's 14 representative, 15 (b) if the issue involves more than one business or undertaking, the 16 person conducting each business or undertaking or the person's 17 representative, 18 (c) if the worker or workers affected by the issue are in a work group, 19 the health and safety representative for that work group or his or 20 her representative, 21 (d) if the worker or workers affected by the issue are not in a work 22 group, the worker or workers or their representative. 23 (2) A person conducting a business or undertaking must ensure that the 24 person's representative (if any) for the purposes of this Division: 25 (a) is not a health and safety representative, and 26 (b) has an appropriate level of seniority, and is sufficiently 27 competent, to act as the person's representative. 28 81 Resolution of health and safety issues 29 (1) This section applies if a matter about work health and safety arises at a 30 workplace or from the conduct of a business or undertaking and the 31 matter is not resolved after discussion between the parties to the issue. 32 (2) The parties must make reasonable efforts to achieve a timely, final and 33 effective resolution of the issue in accordance with the relevant agreed 34 procedure, or if there is no agreed procedure, the default procedure 35 prescribed in the regulations. 36 Page 48 Work Health and Safety Bill 2011 Clause 82 Consultation, representation and participation Part 5 (3) A representative of a party to an issue may enter the workplace for the 1 purpose of attending discussions with a view to resolving the issue. 2 82 Referral of issue to regulator for resolution by inspector 3 (1) This section applies if an issue has not been resolved after reasonable 4 efforts have been made to achieve an effective resolution of the issue. 5 (2) A party to the issue may ask the regulator to appoint an inspector to 6 attend the workplace to assist in resolving the issue. 7 (3) A request to the regulator under this section does not prevent: 8 (a) a worker from exercising the right under Division 6 of this Part 9 to cease work, or 10 (b) a health and safety representative from issuing a provisional 11 improvement notice or a direction under Division 6 of this Part to 12 cease work. 13 (4) On attending a workplace under this section, an inspector may exercise 14 any of the inspector's compliance powers under this Act in relation to 15 the workplace. 16 Division 6 Right to cease or direct cessation of unsafe work 17 83 Definition of "cease work under this Division" 18 In this Division, cease work under this Division means: 19 (a) to cease, or refuse, to carry out work under section 84, or 20 (b) to cease work on a direction under section 85. 21 84 Right of worker to cease unsafe work 22 A worker may cease, or refuse to carry out, work if the worker has a 23 reasonable concern that to carry out the work would expose the worker 24 to a serious risk to the worker's health or safety, emanating from an 25 immediate or imminent exposure to a hazard. 26 85 Health and safety representative may direct that unsafe work cease 27 (1) A health and safety representative may direct a worker who is in a work 28 group represented by the representative to cease work if the 29 representative has a reasonable concern that to carry out the work would 30 expose the worker to a serious risk to the worker's health or safety, 31 emanating from an immediate or imminent exposure to a hazard. 32 Page 49 Clause 86 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (2) However, the health and safety representative must not give a worker a 1 direction to cease work unless the matter is not resolved after: 2 (a) consulting about the matter with the person conducting the 3 business or undertaking for whom the workers are carrying out 4 work, and 5 (b) attempting to resolve the matter as an issue under Division 5 of 6 this Part. 7 (3) The health and safety representative may direct the worker to cease 8 work without carrying out that consultation or attempting to resolve the 9 matter as an issue under Division 5 of this Part if the risk is so serious 10 and immediate or imminent that it is not reasonable to consult before 11 giving the direction. 12 (4) The health and safety representative must carry out the consultation as 13 soon as practicable after giving a direction under subsection (3). 14 (5) The health and safety representative must inform the person conducting 15 the business or undertaking of any direction given by the health and 16 safety representative to workers under this section. 17 (6) A health and safety representative cannot give a direction under this 18 section unless the representative has: 19 (a) completed initial training prescribed by the regulations referred 20 to in section 72 (1) (b), or 21 (b) previously completed that training when acting as a health and 22 safety representative for another work group, or 23 (c) completed training equivalent to that training under a 24 corresponding WHS law. 25 86 Worker to notify if ceases work 26 A worker who ceases work under this Division must: 27 (a) as soon as practicable, notify the person conducting the business 28 or undertaking that the worker has ceased work under this 29 Division unless the worker ceased work under a direction from a 30 health and safety representative, and 31 (b) remain available to carry out suitable alternative work. 32 87 Alternative work 33 If a worker ceases work under this Division, the person conducting the 34 business or undertaking may direct the worker to carry out suitable 35 alternative work at the same or another workplace if that work is safe 36 and appropriate for the worker to carry out until the worker can resume 37 normal duties. 38 Page 50 Work Health and Safety Bill 2011 Clause 88 Consultation, representation and participation Part 5 88 Continuity of engagement of worker 1 If a worker ceases work under this Division, that action does not affect 2 the continuity of engagement of the worker for prescribed purposes if 3 the worker has not unreasonably failed to comply with a direction to 4 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 appoint 10 an inspector to attend the workplace to assist in resolving an issue 11 arising in relation to the cessation of work. 12 Note. The issue resolution procedures in Division 5 of this Part can also be used 13 to resolve an issue arising in relation to the cessation of work. 14 Division 7 Provisional improvement notices 15 90 Provisional improvement notices 16 (1) This section applies if a health and safety representative reasonably 17 believes that a person: 18 (a) is contravening a provision of this Act, or 19 (b) has contravened a provision of this Act in circumstances that 20 make it likely that the contravention will continue or be repeated. 21 (2) The health and safety representative may issue a provisional 22 improvement notice requiring the person to: 23 (a) remedy the contravention, or 24 (b) prevent a likely contravention from occurring, or 25 (c) remedy the things or operations causing the contravention or 26 likely contravention. 27 (3) However, the health and safety representative must not issue a 28 provisional improvement notice to a person unless he or she has first 29 consulted the person. 30 (4) A health and safety representative cannot issue a provisional 31 improvement notice unless the representative has: 32 (a) completed initial training prescribed by the regulations referred 33 to in section 72 (1) (b), or 34 (b) previously completed that training when acting as a health and 35 safety representative for another work group, or 36 Page 51 Clause 91 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (c) completed training equivalent to that training under a 1 corresponding WHS law. 2 (5) A health and safety representative cannot issue a provisional 3 improvement notice in relation to a matter if an inspector has already 4 issued (or decided not to issue) an improvement notice or prohibition 5 notice in relation to the same matter. 6 91 Provisional improvement notice to be in writing 7 A provisional improvement notice must be in writing. 8 92 Contents of provisional improvement notice 9 A provisional improvement notice must state: 10 (a) that the health and safety representative believes the person: 11 (i) is contravening a provision of this Act, or 12 (ii) has contravened a provision of this Act in circumstances 13 that make it likely that the contravention will continue or 14 be repeated, and 15 (b) the provision the representative believes is being, or has been, 16 contravened, and 17 (c) briefly, how the provision is being, or has been contravened, and 18 (d) the day, at least 8 days after the notice is issued, by which the 19 person is required to remedy the contravention or likely 20 contravention. 21 93 Provisional improvement notice may give directions to remedy 22 contravention 23 (1) A provisional improvement notice may include directions concerning 24 the measures to be taken to remedy the contravention or prevent the 25 likely contravention or the matters or activities causing the 26 contravention or likely contravention to which the notice relates. 27 (2) A direction included in a provisional improvement notice may: 28 (a) refer to a code of practice, and 29 (b) offer the person to whom it is issued a choice of ways in which to 30 remedy the contravention. 31 94 Minor changes to provisional improvement notice 32 A health and safety representative may make minor changes to a 33 provisional improvement notice: 34 (a) for clarification, or 35 Page 52 Work Health and Safety Bill 2011 Clause 95 Consultation, representation and participation Part 5 (b) to correct errors or references, or 1 (c) to reflect changes of address or other circumstances. 2 95 Issue of provisional improvement notice 3 A provisional improvement notice may be issued to a person in 4 accordance with section 209. 5 96 Health and safety representative may cancel notice 6 The health and safety representative may at any time cancel a 7 provisional improvement notice issued to a person by written notice 8 given to that person. 9 97 Display of provisional improvement notice 10 (1) A person to whom a provisional improvement notice is issued must as 11 soon as practicable display a copy of the notice in a prominent place at 12 or near the workplace, or part of the workplace, at which work is being 13 carried out that is affected by the notice. 14 Maximum penalty: 15 (a) in the case of an individual--$5,000, or 16 (b) in the case of a body corporate--$25,000. 17 (2) A person must not intentionally remove, destroy, damage or deface a 18 notice displayed under subsection (1) during the period that the notice 19 is in force. 20 Maximum penalty: 21 (a) in the case of an individual--$5,000, or 22 (b) in the case of a body corporate--$25,000. 23 98 Formal irregularities or defects in notice 24 A provisional improvement notice is not invalid only because of: 25 (a) a formal defect or irregularity in the notice unless the defect or 26 irregularity causes or is likely to cause substantial injustice, or 27 (b) a failure to use the correct name of the person to whom the notice 28 is issued if the notice sufficiently identifies the person. 29 99 Offence to contravene a provisional improvement notice 30 (1) This section applies if a provisional improvement notice has been issued 31 to a person and an inspector has not been required under section 101 to 32 attend at the workplace. 33 Page 53 Clause 100 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation (2) The person must comply with the provisional improvement notice 1 within the time specified in the notice. 2 Maximum penalty: 3 (a) in the case of an individual--$50,000, or 4 (b) in the case of a body corporate--$250,000. 5 100 Request for review of provisional improvement notice 6 (1) Within 7 days after a provisional improvement notice is issued to a 7 person: 8 (a) the person to whom it was issued, or 9 (b) if the person is a worker, the person conducting the business or 10 undertaking at the workplace at which the worker carries out 11 work, 12 may ask the regulator to appoint an inspector to review the notice. 13 (2) If a request is made under subsection (1), the operation of the 14 provisional improvement notice is stayed until the inspector makes a 15 decision on the review. 16 101 Regulator to appoint inspector to review notice 17 (1) The regulator must ensure that an inspector attends the workplace as 18 soon as practicable after a request is made under section 100. 19 (2) The inspector must review the provisional improvement notice and 20 inquire into the circumstances that are the subject of the provisional 21 improvement notice. 22 (3) An inspector may review a provisional improvement notice even if the 23 period for compliance with the notice has expired. 24 102 Decision of inspector on review of provisional improvement notice 25 (1) After reviewing the provisional improvement notice, the inspector 26 must: 27 (a) confirm the provisional improvement notice, or 28 (b) confirm the provisional improvement notice with changes, or 29 (c) cancel the provisional improvement notice. 30 (2) The inspector must give a copy of his or her decision to: 31 (a) the applicant for the review of the provisional improvement 32 notice, and 33 (b) the health and safety representative who issued the notice. 34 Page 54 Work Health and Safety Bill 2011 Clause 103 Consultation, representation and participation Part 5 (3) A provisional improvement notice that is confirmed (with or without 1 changes) by an inspector is taken to be an improvement notice issued by 2 the inspector under this Act. 3 Division 8 Part not to apply to prisoners 4 103 Part does not apply to prisoners 5 Nothing in this Part applies to a worker who is in lawful detention or 6 custody. 7 Page 55 Clause 104 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct 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 prohibited 6 reason. 7 Maximum penalty: 8 (a) in the case of an individual--$100,000, or 9 (b) in the case of a body corporate--$500,000. 10 (2) A person commits an offence under subsection (1) only if the reason 11 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 relation 14 to discriminatory conduct engaged in for a prohibited reason. 15 105 What is "discriminatory conduct" 16 (1) For the purposes of this Part, a person engages in discriminatory 17 conduct if: 18 (a) the person: 19 (i) dismisses a worker, or 20 (ii) terminates a contract for services with a worker, or 21 (iii) puts a worker to his or her detriment in the engagement of 22 the worker, or 23 (iv) alters the position of a worker to the worker's detriment, or 24 (b) the person: 25 (i) refuses or fails to offer to engage a prospective worker, or 26 (ii) treats a prospective worker less favourably than another 27 prospective worker would be treated in offering terms of 28 engagement, or 29 (c) the person terminates a commercial arrangement with another 30 person, or 31 (d) the person refuses or fails to enter into a commercial arrangement 32 with another person. 33 (2) For the purposes of this Part, a person also engages in discriminatory 34 conduct if the person organises to take any action referred to in 35 subsection (1) or threatens to organise or take that action. 36 Page 56 Work Health and Safety Bill 2011 Clause 106 Discriminatory, coercive and misleading conduct Part 6 106 What is a "prohibited reason" 1 Conduct referred to in section 105 is engaged in for a prohibited reason 2 if it is engaged in because the worker or prospective worker or the 3 person referred to in section 105 (1) (c) or (d) (as the case requires): 4 (a) is, has been or proposes to be a health and safety representative 5 or a member of a health and safety committee, or 6 (b) undertakes, has undertaken or proposes to undertake another role 7 under this Act, or 8 (c) exercises a power or performs a function or has exercised a power 9 or performed a function or proposes to exercise a power or 10 perform a function as a health and safety representative or as a 11 member of a health and safety committee, or 12 (d) exercises, has exercised or proposes to exercise a power under 13 this Act or exercises, has exercised or proposes to exercise a 14 power under this Act in a particular way, or 15 (e) performs, has performed or proposes to perform a function under 16 this Act or performs, has performed or proposes to perform a 17 function under this Act in a particular way, or 18 (f) refrains from, has refrained from or proposes to refrain from 19 exercising a power or performing a function under this Act or 20 refrains from, has refrained from or proposes to refrain from 21 exercising a power or performing a function under this Act in a 22 particular way, or 23 (g) assists or has assisted or proposes to assist, or gives or has given 24 or proposes to give any information to any person exercising a 25 power or performing a function under this Act, or 26 (h) raises or has raised or proposes to raise an issue or concern about 27 work health and safety with: 28 (i) the person conducting a business or undertaking, or 29 (ii) an inspector, or 30 (iii) a WHS entry permit holder, or 31 (iv) a health and safety representative, or 32 (v) a member of a health and safety committee, or 33 (vi) another worker, or 34 (vii) any other person who has a duty under this Act in relation 35 to the matter, or 36 (viii) any other person exercising a power or performing a 37 function under this Act, or 38 (i) is involved in, has been involved in or proposes to be involved in 39 resolving a work health and safety issue under this Act, or 40 Page 57 Clause 107 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct (j) is taking action, has taken action or proposes to take action to 1 seek compliance by any person with any duty or obligation under 2 this Act. 3 107 Prohibition of requesting, instructing, inducing, encouraging, 4 authorising or assisting discriminatory conduct 5 A person must not request, instruct, induce, encourage, authorise or 6 assist another person to engage in discriminatory conduct in 7 contravention of section 104. 8 Maximum penalty: 9 (a) in the case of an individual--$100,000, or 10 (b) in the case of a body corporate--$500,000. 11 Note. Civil proceedings may be brought under Division 3 of this Part if a person 12 requested, instructed, induced, encouraged, authorised or assisted another 13 person to engage in discriminatory conduct for a prohibited reason. 14 108 Prohibition of coercion or inducement 15 (1) A person must not organise or take, or threaten to organise or take, any 16 action against another person with intent to coerce or induce the other 17 person, or a third person: 18 (a) to exercise or not to exercise a power, or to propose to exercise or 19 not to exercise a power, under this Act, or 20 (b) to perform or not to perform a function, or to propose to perform 21 or not to perform a function, under this Act, or 22 (c) to exercise or not to exercise a power or perform a function, or to 23 propose to exercise or not to exercise a power or perform a 24 function, in a particular way, or 25 (d) to refrain from seeking, or continuing to undertake, a role under 26 this Act. 27 Maximum penalty: 28 (a) in the case of an individual--$100,000, or 29 (b) in the case of a body corporate--$500,000. 30 Note. Civil proceedings may be brought under Division 3 of this Part in relation 31 to a contravention of this section. 32 (2) In this section, a reference to taking action or threatening to take action 33 against a person includes a reference to not taking a particular action or 34 threatening not to take a particular action in relation to that person. 35 (3) To avoid doubt, a reasonable direction given by an emergency services 36 worker in an emergency is not an action with intent to coerce or induce 37 a person. 38 Page 58 Work Health and Safety Bill 2011 Clause 109 Discriminatory, coercive and misleading conduct Part 6 (4) In this section, emergency services worker includes an officer, 1 employee or member of any of the following: 2 (a) the Ambulance Service of NSW, 3 (b) Fire and Rescue NSW, 4 (c) the NSW Rural Fire Service, 5 (d) the NSW Police Force, 6 (e) the State Emergency Service, 7 (f) the NSW Volunteer Rescue Association Inc, 8 (g) the New South Wales Mines Rescue Brigade established under 9 the Coal Industry Act 2001, 10 (h) an accredited rescue unit within the meaning of the State 11 Emergency and Rescue Management Act 1989. 12 109 Misrepresentation 13 (1) A person must not knowingly or recklessly make a false or misleading 14 representation to another person about that other person's: 15 (a) rights or obligations under this Act, or 16 (b) ability to initiate, or participate in, a process or proceedings under 17 this Act, or 18 (c) ability to make a complaint or inquiry to a person or body 19 empowered under this Act to seek compliance with this Act. 20 Maximum penalty: 21 (a) in the case of an individual--$100,000, or 22 (b) in the case of a body corporate--$500,000. 23 (2) Subsection (1) does not apply if the person to whom the representation 24 is made would not be expected to rely on it. 25 Division 2 Criminal proceedings in relation to discriminatory 26 conduct 27 110 Proof of discriminatory conduct 28 (1) This section applies if in proceedings for an offence of contravening 29 section 104 or 107, the prosecution: 30 (a) proves that the discriminatory conduct was engaged in, and 31 (b) proves that a circumstance referred to in section 106 (a)-(j) 32 existed at the time the discriminatory conduct was engaged in, 33 and 34 Page 59 Clause 111 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct (c) adduces evidence that the discriminatory conduct was engaged in 1 for a prohibited reason. 2 (2) The reason alleged for the discriminatory conduct is presumed to be the 3 dominant reason for that conduct unless the accused proves on the 4 balance of probabilities, that the reason was not the dominant reason for 5 the conduct. 6 (3) To avoid doubt, the burden of proof on the accused under subsection (2) 7 is a legal burden of proof. 8 111 Order for compensation or reinstatement 9 If a person is convicted or found guilty of an offence under section 104 10 or 107, the court may (in addition to imposing a penalty) make either or 11 both of the following orders: 12 (a) an order that the offender pay (within a specified period) the 13 compensation to the person who was the subject of the 14 discriminatory conduct that the court considers appropriate, 15 (b) in relation to a person who was or is an employee or prospective 16 employee, an order that: 17 (i) the person be reinstated or reemployed in his or her former 18 position or, if that position is not available, in a similar 19 position, or 20 (ii) the person be employed in the position for which he or she 21 had applied or a similar position. 22 Division 3 Civil proceedings in relation to discriminatory or 23 coercive conduct 24 112 Civil proceedings in relation to engaging in or inducing discriminatory or 25 coercive conduct 26 (1) An eligible person may apply to the District Court for an order under 27 this section. 28 (2) The District Court may make one or more of the orders set out in 29 subsection (3) in relation to a person who has: 30 (a) engaged in discriminatory conduct for a prohibited reason, or 31 (b) requested, instructed, induced, encouraged, authorised or assisted 32 another person to engage in discriminatory conduct for a 33 prohibited reason, or 34 (c) contravened section 108. 35 Page 60 Work Health and Safety Bill 2011 Clause 113 Discriminatory, coercive and misleading conduct Part 6 (3) For the purposes of subsection (2), the orders that the District Court may 1 make are: 2 (a) an injunction, 3 (b) in the case of conduct referred to in subsection (2) (a) or (b), an 4 order that the person pay (within a specified period) the 5 compensation to the person who was the subject of the 6 discriminatory conduct that the District Court considers 7 appropriate, 8 (c) in the case of conduct referred to in subsection (2) (a) in relation 9 to a worker who was or is an employee or prospective employee, 10 an order that: 11 (i) the worker be reinstated or reemployed in his or her former 12 position or, if that position is not available, in a similar 13 position, or 14 (ii) the prospective worker be employed in the position for 15 which he or she had applied or a similar position, 16 (d) any other order that the District Court considers appropriate. 17 (4) For the purposes of this section, a person may be found to have engaged 18 in discriminatory conduct for a prohibited reason only if a reason 19 referred to in section 106 was a substantial reason for the conduct. 20 (5) Nothing in this section is to be construed as limiting any other power of 21 the District Court. 22 (6) For the purposes of this section, each of the following is an eligible 23 person: 24 (a) a person affected by the contravention, 25 (b) a person authorised as a representative by a person referred to in 26 paragraph (a). 27 113 Procedure for civil actions for discriminatory conduct 28 (1) A proceeding brought under section 112 must be commenced not more 29 than 1 year after the date on which the applicant knew or ought to have 30 known that the cause of action accrued. 31 (2) In a proceeding under section 112 in relation to conduct referred to in 32 section 112 (2) (a) or (b), if a prohibited reason is alleged for 33 discriminatory conduct, that reason is presumed to be a substantial 34 reason for that conduct unless the defendant proves, on the balance of 35 probabilities, that the reason was not a substantial reason for the 36 conduct. 37 Page 61 Clause 114 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct (3) It is a defence to a proceeding under section 112 in relation to conduct 1 referred to in section 112 (2) (a) or (b) if the defendant proves that: 2 (a) the conduct was reasonable in the circumstances, and 3 (b) a substantial reason for the conduct was to comply with the 4 requirements of this Act or a corresponding WHS law. 5 (4) To avoid doubt, the burden of proof on the defendant under 6 subsections (2) and (3) is a legal burden of proof. 7 Division 4 General 8 114 General provisions relating to orders 9 (1) The making of an order in a proceeding under section 112 in relation to 10 conduct referred to in section 112 (2) (a) or (b) does not prevent the 11 bringing of a proceeding for an offence under section 104 or 107 in 12 relation to the same conduct. 13 (2) If the District Court makes an order under section 112 in a proceeding 14 in relation to conduct referred to in section 112 (2) (a) or (b), the court 15 cannot make an order under section 111 in a proceeding for an offence 16 under section 104 or 107 in relation to the same conduct. 17 (3) If the court makes an order under section 111 in a proceeding for an 18 offence under section 104 or 107, the District Court cannot make an 19 order under section 112 in a proceeding in relation to conduct referred 20 to in section 112 (2) (a) or (b) that is the same conduct. 21 115 Prohibition of multiple actions 22 A person cannot: 23 (a) commence a proceeding under Division 3 of this Part if the 24 person has commenced a proceeding or made an application or 25 complaint in relation to the same matter under a law of the 26 Commonwealth or a State and that proceeding, application or 27 complaint has not been withdrawn, or 28 (b) recover any compensation under Division 3 of this Part if the 29 person has received compensation for the matter under a law of 30 the Commonwealth or a State, or 31 (c) commence or continue an application under Division 3 of this 32 Part if the person has failed in a proceeding, application or 33 complaint in relation to the same matter under a law of the 34 Commonwealth or a State, other than a proceeding, application or 35 complaint relating to workers' compensation. 36 Page 62 Work Health and Safety Bill 2011 Clause 116 Workplace entry by WHS entry permit holders Part 7 Part 7 Workplace entry by WHS entry permit holders 1 Note. Division 7 of Part 13 sets out the procedure in relation to the bringing of proceedings in 2 relation to WHS civil penalty provisions. 3 Division 1 Introductory 4 116 Definitions 5 In this Part: 6 official of a union means a person who holds an office in, or is an 7 employee of, the union. 8 relevant person conducting a business or undertaking means a person 9 conducting a business or undertaking in relation to which the WHS 10 entry permit holder is exercising or proposes to exercise the right of 11 entry. 12 relevant union means the union that a WHS entry permit holder 13 represents. 14 relevant worker, in relation to a workplace, means a worker: 15 (a) who is a member, or eligible to be a member, of a relevant union, 16 and 17 (b) whose industrial interests the relevant union is entitled to 18 represent, and 19 (c) who works at that workplace. 20 Division 2 Entry to inquire into suspected contraventions 21 117 Entry to inquire into suspected contraventions 22 (1) A WHS entry permit holder may enter a workplace for the purpose of 23 inquiring into a suspected contravention of this Act that relates to, or 24 affects, a relevant worker. 25 (2) The WHS entry permit holder must reasonably suspect before entering 26 the workplace that the contravention has occurred or is occurring. 27 118 Rights that may be exercised while at workplace 28 (1) While at the workplace under this Division, the WHS entry permit 29 holder may do all or any of the following in relation to the suspected 30 contravention of this Act: 31 (a) inspect any work system, plant, substance, structure or other 32 thing relevant to the suspected contravention, 33 (b) consult with the relevant workers in relation to the suspected 34 contravention, 35 Page 63 Clause 119 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders (c) consult with the relevant person conducting a business or 1 undertaking about the suspected contravention, 2 (d) require the relevant person conducting a business or undertaking 3 to allow the WHS entry permit holder to inspect, and make copies 4 of, any document that is directly relevant to the suspected 5 contravention and that: 6 (i) is kept at the workplace, or 7 (ii) is accessible from a computer that is kept at the workplace, 8 (e) warn any person whom the WHS entry permit holder reasonably 9 believes to be exposed to a serious risk to his or her health or 10 safety emanating from an immediate or imminent exposure to a 11 hazard, of that risk. 12 (2) However, the relevant person conducting the business or undertaking is 13 not required under subsection (1) (d) to allow the WHS entry permit 14 holder to inspect or make copies of a document if to do so would 15 contravene a law of the Commonwealth or a law of a State. 16 (3) A relevant person conducting a business or undertaking must not, 17 without reasonable excuse, refuse or fail to comply with a requirement 18 under subsection (1) (d). 19 WHS civil penalty provision. 20 Maximum penalty: 21 (a) in the case of an individual--$10,000, or 22 (b) in the case of a body corporate--$50,000. 23 (4) Subsection (3) places an evidential burden on the defendant to show a 24 reasonable excuse. 25 Notes. 26 1 At least 24 hours notice is required for an entry to a workplace to inspect 27 employee records or other documents held by someone other than a 28 person conducting a business or undertaking. See section 120. 29 2 The use or disclosure of personal information obtained under this 30 section is regulated under the Privacy Act 1988 of the Commonwealth. 31 119 Notice of entry 32 (1) A WHS entry permit holder must, as soon as is reasonably practicable 33 after entering a workplace under this Division, give notice of the entry 34 and the suspected contravention, in accordance with the regulations, to: 35 (a) the relevant person conducting a business or undertaking, and 36 (b) the person with management or control of the workplace. 37 (2) Subsection (1) does not apply if to give the notice would: 38 (a) defeat the purpose of the entry to the workplace, or 39 Page 64 Work Health and Safety Bill 2011 Clause 120 Workplace entry by WHS entry permit holders Part 7 (b) unreasonably delay the WHS entry permit holder in an urgent 1 case. 2 (3) Subsection (1) does not apply to an entry to a workplace under this 3 Division to inspect or make copies of documents referred to in 4 section 120. 5 120 Entry to inspect employee records or information held by another 6 person 7 (1) This section applies if a WHS entry permit holder is entitled under 8 section 117 to enter a workplace to inquire into a suspected 9 contravention of this Act. 10 (2) For the purposes of the inquiry into the suspected contravention, the 11 WHS entry permit holder may enter any workplace for the purpose of 12 inspecting, or making copies of: 13 (a) employee records that are directly relevant to a suspected 14 contravention, or 15 (b) other documents that are directly relevant to a suspected 16 contravention and that are not held by the relevant person 17 conducting a business or undertaking. 18 (3) Before doing so, the WHS entry permit holder must give notice of the 19 proposed entry to the person from whom the documents are requested 20 and the relevant person conducting a business or undertaking. 21 (4) The notice must comply with the regulations. 22 (5) The notice must be given during usual working hours at that workplace 23 at least 24 hours, but not more than 14 days, before the entry. 24 Note. The use or disclosure of personal information obtained under this section 25 is regulated under the Privacy Act 1988 of the Commonwealth. 26 Division 3 Entry to consult and advise workers 27 121 Entry to consult and advise workers 28 (1) A WHS entry permit holder may enter a workplace to consult on work 29 health and safety matters with, and provide advice on those matters to, 30 one or more relevant workers who wish to participate in the discussions. 31 (2) A WHS entry permit holder may, after entering a workplace under this 32 Division, warn any person whom the WHS entry permit holder 33 reasonably believes to be exposed to a serious risk to his or her health 34 or safety, emanating from an immediate or imminent exposure to a 35 hazard, of that risk. 36 Page 65 Clause 122 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders 122 Notice of entry 1 (1) Before entering a workplace under this Division, a WHS entry permit 2 holder must give notice of the proposed entry to the relevant person 3 conducting a business or undertaking. 4 (2) The notice must comply with the regulations. 5 (3) The notice must be given during the usual working hours at that 6 workplace at least 24 hours, but not more than 14 days, before the entry. 7 Division 4 Requirements for WHS entry permit holders 8 123 Contravening WHS entry permit conditions 9 A WHS entry permit holder must not contravene a condition imposed 10 on the WHS entry permit. 11 WHS civil penalty provision. 12 Maximum penalty: $10,000. 13 124 WHS entry permit holder must also hold permit under other law 14 A WHS entry permit holder must not enter a workplace unless he or she 15 also holds an entry permit under the Fair Work Act or the Industrial 16 Relations Act 1996. 17 WHS civil penalty provision. 18 Maximum penalty: $10,000. 19 125 WHS entry permit to be available for inspection 20 A WHS entry permit holder must, at all times that he or she is at a 21 workplace under a right of entry under Division 2 or 3 of this Part, have 22 his or her WHS entry permit and photographic identification available 23 for inspection by any person on request. 24 WHS civil penalty provision. 25 Maximum penalty: $10,000. 26 126 When right may be exercised 27 A WHS entry permit holder may exercise a right under Division 2 or 3 28 of this Part only during the usual working hours at the workplace. 29 WHS civil penalty provision. 30 Maximum penalty: $10,000. 31 Page 66 Work Health and Safety Bill 2011 Clause 127 Workplace entry by WHS entry permit holders Part 7 127 Where the right may be exercised 1 A WHS entry permit holder may exercise a right of entry to a workplace 2 only in relation to: 3 (a) the area of the workplace where the relevant workers work, or 4 (b) any other work area that directly affects the health or safety of 5 those workers. 6 128 Work health and safety requirements 7 A WHS entry permit holder must not exercise a right of entry to a 8 workplace under Division 2 or 3 of this Part unless he or she complies 9 with any reasonable request by the relevant person conducting a 10 business or undertaking or the person with management or control of 11 the workplace to comply with: 12 (a) any work health and safety requirement that applies to the 13 workplace, and 14 (b) any other legislated requirement that applies to that type of 15 workplace. 16 WHS civil penalty provision. 17 Maximum penalty: $10,000. 18 129 Residential premises 19 A WHS entry permit holder must not enter any part of a workplace that 20 is used only for residential purposes. 21 WHS civil penalty provision. 22 Maximum penalty: $10,000. 23 130 WHS entry permit holder not required to disclose names of workers 24 (1) A WHS entry permit holder is not required to disclose to the relevant 25 person conducting a business or undertaking or the person with 26 management or control of the workplace the name of any worker at the 27 workplace. 28 (2) A WHS entry permit holder who wishes to disclose to the relevant 29 person conducting a business or undertaking or the person with 30 management or control of the workplace the name of any worker may 31 only do so with the consent of the worker. 32 Division 5 WHS entry permits 33 131 Application for WHS entry permit 34 (1) A union may apply to the authorising authority for the issue of a WHS 35 entry permit to a person who is an official of the union. 36 Page 67 Clause 132 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders (2) The application must specify the person who is to hold the WHS entry 1 permit and include a statutory declaration by that person declaring that 2 he or she: 3 (a) is an official of the union, and 4 (b) has satisfactorily completed the prescribed training, and 5 (c) holds, or will hold, an entry permit under: 6 (i) the Fair Work Act, or, 7 (ii) the Industrial Relations Act 1996. 8 132 Consideration of application 9 In considering whether to issue a WHS entry permit, the authorising 10 authority must take into account: 11 (a) the object of this Act, and 12 (b) the object of allowing union right of entry to workplaces for work 13 health and safety purposes. 14 133 Eligibility criteria 15 The authorising authority must not issue a WHS entry permit to an 16 official of a union unless the authorising authority is satisfied that the 17 official: 18 (a) is an official of the union, and 19 (b) has satisfactorily completed the prescribed training, and 20 (c) holds, or will hold, an entry permit under: 21 (i) the Fair Work Act, or 22 (ii) the Industrial Relations Act 1996. 23 134 Issue of WHS entry permit 24 The authorising authority may issue a WHS entry permit to a person if 25 the authorising authority has taken into account the matters in 26 section 132 and is satisfied about the matters in section 133. 27 135 Conditions on WHS entry permit 28 The authorising authority may impose conditions on a WHS entry 29 permit. 30 136 Term of WHS entry permit 31 A WHS entry permit has effect for a term of 3 years from the date it is 32 issued. 33 Page 68 Work Health and Safety Bill 2011 Clause 137 Workplace entry by WHS entry permit holders Part 7 137 Expiry of WHS entry permit 1 (1) Unless it is earlier revoked, a WHS entry permit expires at the first of 2 the following to occur: 3 (a) at the end of the term of the WHS entry permit, 4 (b) at the end of the term of the entry permit held by the WHS entry 5 permit holder under: 6 (i) the Fair Work Act, or 7 (ii) the Industrial Relations Act 1996, 8 (c) when the permit holder ceases to be an official of the union that 9 applied for the permit, 10 (d) the union that applied for the permit ceases to be: 11 (i) an organisation that is registered, or taken to be registered, 12 under the Fair Work (Registered Organisations) Act 2009 13 of the Commonwealth, or 14 (ii) an association of employees or independent contractors, or 15 both, that is registered or recognised as such an association 16 (however described) under the Industrial Relations Act 17 1996. 18 (2) An application may be made for the issue of a subsequent WHS entry 19 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 this 27 Part, 28 (d) any other person affected by the exercise or purported exercise of 29 a right under this Part by a WHS entry permit holder. 30 (2) The grounds for an application for revocation of a WHS entry permit 31 are: 32 (a) that the permit holder no longer satisfies the eligibility criteria for 33 a WHS entry permit or an entry permit under a corresponding 34 WHS law, or the Fair Work Act or the Workplace Relations Act 35 1996 of the Commonwealth or the Industrial Relations Act 1996, 36 or 37 Page 69 Clause 139 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders (b) that the permit holder has contravened any condition of the WHS 1 entry permit, or 2 (c) that the permit holder has acted or purported to act in an improper 3 manner in the exercise of any right under this Act, or 4 (d) in exercising or purporting to exercise a right under this Part, that 5 the permit holder has intentionally hindered or obstructed a 6 person conducting the business or undertaking or workers at a 7 workplace. 8 (3) The applicant must give written notice of the application, setting out the 9 grounds for the application, to the person who holds the WHS entry 10 permit and the union concerned. 11 (4) The person who holds the WHS entry permit and the union that the 12 WHS entry permit holder represents are parties to the application. 13 139 Authorising authority must permit WHS entry permit holder to show 14 cause 15 (1) If, on an application under section 138, the authorising authority is 16 satisfied that a ground may exist for the revocation of the WHS entry 17 permit under section 138 (2), the authorising authority must: 18 (a) give the WHS entry permit holder written notice (a show cause 19 notice), and 20 (b) if the authorising authority considers it appropriate, suspend the 21 operation of the WHS entry permit until the authorising authority 22 decides the application for revocation. 23 (2) The show cause notice must: 24 (a) contain a statement to the effect that the WHS entry permit holder 25 may, not later than 21 days after the day the WHS entry permit 26 holder is given the notice, give the authorising authority written 27 reasons explaining why the WHS entry permit should not be 28 revoked, and 29 (b) be accompanied by a summary of the reasons for the application, 30 and 31 (c) if applicable, be accompanied by a notice of suspension of the 32 permit. 33 140 Determination of application 34 (1) If the authorising authority is satisfied on the balance of probabilities 35 about any of the matters in section 138 (2), it may make one or more of 36 the following orders: 37 (a) an order imposing conditions on the WHS entry permit, 38 Page 70 Work Health and Safety Bill 2011 Clause 141 Workplace entry by WHS entry permit holders Part 7 (b) an order suspending the WHS entry permit, 1 (c) an order revoking the WHS entry permit, 2 (d) an order about the future issue of a WHS entry permit to the 3 person whose WHS entry permit is revoked, 4 (e) an order imposing any alternative action the authorising authority 5 considers appropriate. 6 (2) In deciding what action to take under subsection (1), in relation to a 7 person, the authorising authority must take into account: 8 (a) the seriousness of any findings of the authorising authority 9 having regard to the object of this Act, and 10 (b) any other matters the authority considers relevant. 11 Division 6 Dealing with disputes 12 141 Application for assistance of inspector to resolve dispute 13 If a dispute arises about the exercise or purported exercise by a WHS 14 entry permit holder of a right of entry under this Act, any party to the 15 dispute may ask the regulator to appoint an inspector to attend the 16 workplace to assist in resolving the dispute. 17 142 Authorising authority may deal with a dispute about a right of entry 18 under this Act 19 (1) The authorising authority may deal with a dispute about the exercise or 20 purported exercise by a WHS entry permit holder of a right of entry 21 under this Act (including a dispute about whether a request under 22 section 128 is reasonable). 23 (2) The authorising authority may deal with the dispute in any manner it 24 thinks fit, including by means of mediation, conciliation or arbitration. 25 (3) If the authorising authority deals with the dispute by arbitration, it may 26 make one or more of the following orders: 27 (a) an order imposing conditions on a WHS entry permit, 28 (b) an order suspending a WHS entry permit, 29 (c) an order revoking a WHS entry permit, 30 (d) an order about the future issue of WHS entry permits to one or 31 more persons, 32 (e) any other order it considers appropriate. 33 (4) The authorising authority may deal with the dispute: 34 (a) on its own initiative, or 35 Page 71 Clause 143 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders (b) on application by any of the following to whom the dispute 1 relates: 2 (i) a WHS entry permit holder, 3 (ii) the relevant union, 4 (iii) the relevant person conducting a business or undertaking, 5 (iv) any other person in relation to whom the WHS entry 6 permit holder has exercised or purported to exercise the 7 right of entry, 8 (v) any other person affected by the exercise or purported 9 exercise of the right of entry by a WHS entry permit 10 holder, 11 (vi) the regulator. 12 (5) In dealing with a dispute, the authorising authority must not confer any 13 rights on the WHS entry permit holder that are additional to, or 14 inconsistent with, rights exercisable by the WHS entry permit holder 15 under this Part. 16 143 Contravening order made to deal with dispute 17 A person must not contravene an order under section 142 (3). 18 WHS civil penalty provision. 19 Maximum penalty: 20 (a) in the case of an individual--$10,000, or 21 (b) in the case of a body corporate--$50,000. 22 Division 7 Prohibitions 23 144 Person must not refuse or delay entry of WHS entry permit holder 24 (1) A person must not, without reasonable excuse, refuse or unduly delay 25 entry into a workplace by a WHS entry permit holder who is entitled to 26 enter the workplace under this Part. 27 WHS civil penalty provision. 28 Maximum penalty: 29 (a) in the case of an individual--$10,000, or 30 (b) in the case of a body corporate--$50,000. 31 (2) Subsection (1) places an evidential burden on the accused to show a 32 reasonable excuse. 33 Page 72 Work Health and Safety Bill 2011 Clause 145 Workplace entry by WHS entry permit holders Part 7 145 Person must not hinder or obstruct WHS entry permit holder 1 A person must not intentionally and unreasonably hinder or obstruct a 2 WHS entry permit holder in entering a workplace or in exercising any 3 rights at a workplace in accordance with this Part. 4 WHS civil penalty provision. 5 Maximum penalty: 6 (a) in the case of an individual--$10,000, or 7 (b) in the case of a body corporate--$50,000. 8 146 WHS entry permit holder must not delay, hinder or obstruct any person 9 or disrupt work at workplace 10 A WHS entry permit holder exercising, or seeking to exercise, rights in 11 accordance with this Part must not intentionally and unreasonably 12 delay, hinder or obstruct any person or disrupt any work at a workplace, 13 or otherwise act in an improper manner. 14 WHS civil penalty provision. 15 Maximum penalty: 16 (a) in the case of an individual--$10,000, or 17 (b) in the case of a body corporate--$50,000. 18 147 Misrepresentations about things authorised by this Part 19 (1) A person must not take action: 20 (a) with the intention of giving the impression, or 21 (b) reckless as to whether the impression is given, 22 that the doing of a thing is authorised by this Part if it is not so 23 authorised. 24 WHS civil penalty provision. 25 Maximum penalty: 26 (a) in the case of an individual--$10,000, or 27 (b) in the case of a body corporate--$50,000. 28 (2) Subsection (1) does not apply if the person reasonably believes that the 29 doing of the thing is authorised. 30 148 Unauthorised use or disclosure of information or documents 31 A person must not use or disclose information or a document obtained 32 under Division 2 of this Part in an inquiry into a suspected contravention 33 Page 73 Clause 148 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders for a purpose that is not related to the inquiry or rectifying the suspected 1 contravention, unless: 2 (a) the person reasonably believes that the use or disclosure is 3 necessary to lessen or prevent: 4 (i) a serious risk to a person's health or safety, or 5 (ii) a serious threat to public health or safety, or 6 (b) the person has reason to suspect that unlawful activity has been, 7 is being or may be engaged in, and uses or discloses the 8 information or document as a necessary part of an investigation 9 of the matter or in reporting concerns to relevant persons or 10 authorities, or 11 (c) the use or disclosure is required or authorised by or under law, or 12 (d) the person reasonably believes that the use or disclosure is 13 reasonably necessary for one or more of the following by, or on 14 behalf of, an enforcement body (within the meaning of the 15 Privacy Act 1988 of the Commonwealth): 16 (i) the prevention, detection, investigation, prosecution or 17 punishment of criminal offences, breaches of a law 18 imposing a penalty or sanction or breaches of a prescribed 19 law, 20 (ii) the enforcement of laws relating to the confiscation of the 21 proceeds of crime, 22 (iii) the protection of the public revenue, 23 (iv) the prevention, detection, investigation or remedying of 24 seriously improper conduct or prescribed conduct, 25 (v) the preparation for, or conduct of, proceedings before any 26 court or tribunal, or implementation of the orders of a court 27 or tribunal, or 28 (e) if the information is, or the document contains, personal 29 information--the use or disclosure is made with the consent of 30 the individual to whom the information relates. 31 WHS civil penalty provision. 32 Maximum penalty: 33 (a) in the case of an individual--$10,000, or 34 (b) in the case of a body corporate--$50,000. 35 Page 74 Work Health and Safety Bill 2011 Clause 149 Workplace entry by WHS entry permit holders Part 7 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 Maximum penalty: $2,000. 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 person to 11 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 leaves the 18 union, or 19 (b) the WHS entry permit holder has had any entry permit granted 20 under a corresponding WHS law, or the Fair Work Act or the 21 Workplace Relations Act 1996 of the Commonwealth or the 22 Industrial Relations Act 1996 (no matter when in force) cancelled 23 or suspended, or 24 (c) the union ceases to be: 25 (i) an organisation that is registered, or taken to be registered, 26 under the Fair Work (Registered Organisations) Act 2009 27 of the Commonwealth, or 28 (ii) an association of employees or independent contractors, or 29 both, that is registered or recognised as such an association 30 (however described) under the Industrial Relations Act 31 1996. 32 WHS civil penalty provision. 33 Maximum penalty: 34 (a) in the case of an individual--$5,000, or 35 (b) in the case of a body corporate--$25,000. 36 Page 75 Clause 151 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders 151 Register of WHS entry permit holders 1 The authorising authority must keep available for public access an 2 up-to-date register of WHS entry permit holders in accordance with the 3 regulations. 4 Page 76 Work Health and Safety Bill 2011 Clause 152 The regulator Part 8 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 report 5 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 to 8 duty holders under this Act and to the community, 9 (d) to collect, analyse and publish statistics relating to work health 10 and safety, 11 (e) to foster a co-operative, consultative relationship between duty 12 holders and the persons to whom they owe duties and their 13 representatives in relation to work health and safety matters, 14 (f) to promote and support education and training on matters relating 15 to work health and safety, 16 (g) to engage in, promote and co-ordinate the sharing of information 17 to achieve the object of this Act, including the sharing of 18 information with a corresponding regulator, 19 (h) to conduct and defend proceedings under this Act before a court 20 or tribunal, 21 (i) any other function conferred on the regulator by this Act. 22 153 Powers of regulator 23 (1) Subject to this Act, the regulator has the power to do all things necessary 24 or convenient to be done for or in connection with the performance of 25 its functions. 26 (2) Without limiting subsection (1), the regulator has all the powers and 27 functions that an inspector has under this Act. 28 154 Delegation by regulator 29 ***** Note. Not required in NSW. 30 Page 77 Clause 155 Work Health and Safety Bill 2011 Part 8 The regulator 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 believe 3 that a person is capable of giving information, providing documents or 4 giving evidence in relation to a possible contravention of this Act or that 5 will assist the regulator to monitor or enforce compliance with this Act. 6 (2) The regulator may, by written notice served on the person, require the 7 person to do one or more of the following: 8 (a) to give the regulator, in writing signed by the person (or in the 9 case of a body corporate, by a competent officer of the body 10 corporate) and within the time and in the manner specified in the 11 notice, that information of which the person has knowledge, 12 (b) to produce to the regulator, in accordance with the notice, those 13 documents, 14 (c) to appear before a person appointed by the regulator on a day, and 15 at a time and place, specified in the notice (being a day, time and 16 place that are reasonable in the circumstances) and give either 17 orally or in writing that evidence and produce those documents. 18 (3) The notice must: 19 (a) state that the requirement is made under this section, and 20 (b) contain a statement to the effect that a failure to comply with a 21 requirement is an offence, and 22 (c) if the notice requires the person to provide information or 23 documents or answer questions: 24 (i) contain a statement about the effect of sections 172 and 25 269, and 26 (ii) state that the person may attend with a legal practitioner. 27 (4) The regulator must not make a requirement under subsection (2) (c) 28 unless the regulator has taken all reasonable steps to obtain the 29 information under subsections (2) (a) and (b) and has been unable to do 30 so. 31 (5) A person must not, without reasonable excuse, refuse or fail to comply 32 with a requirement under this section. 33 Maximum penalty: 34 (a) in the case of an individual--$10,000, or 35 (b) in the case of a body corporate--$50,000. 36 Page 78 Work Health and Safety Bill 2011 Clause 155 The regulator Part 8 (6) Subsection (5) places an evidential burden on the accused to show a 1 reasonable excuse. 2 (7) Section 172 (with any necessary changes) applies to a requirement 3 under this section. 4 Page 79 Clause 156 Work Health and Safety Bill 2011 Part 9 Securing compliance 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 an 4 inspector: 5 (a) an officer or employee of a public authority, 6 (b) the holder of a statutory office, 7 (c) a person who is appointed as an inspector under a corresponding 8 WHS law, 9 (d) a person in a prescribed class of persons. 10 156A Special provision for mining and coal workplace inspectors 11 (1) An inspector appointed under section 156 (an appointed inspector) is 12 not authorised to exercise functions under this Act in relation to a 13 mining workplace or a coal workplace. 14 (2) A person who is a government official under the Mine Health and Safety 15 Act 2004 is an inspector (a mines WHS inspector) for the purposes of 16 this Act. A mines WHS inspector is only authorised to exercise 17 functions under this Act in relation to a mining workplace, but may 18 exercise compliance powers in relation to premises other than a mining 19 workplace for the purpose of investigating any matter under this Act in 20 relation to a mining workplace. 21 (3) A person who is a government official under the Coal Mine Health and 22 Safety Act 2002 is an inspector (a coal mines WHS inspector) for the 23 purposes of this Act. A coal mines WHS inspector is only authorised to 24 exercise functions under this Act in relation to a coal workplace, but 25 may exercise compliance powers in relation to premises other than a 26 coal workplace for the purpose of investigating any matter under this 27 Act in relation to a coal workplace. 28 (4) An inspector's identity card for a mines WHS inspector or coal mines 29 WHS inspector is to be issued by the Minister or a person authorised by 30 the Minister, instead of by the regulator. 31 (5) A single identity card may be issued to a person in relation to functions 32 to be exercised as an inspector under this Act and functions to be 33 exercised under the Coal Mine Health and Safety Act 2002 or the Mine 34 Health and Safety Act 2004, or both. 35 Page 80 Work Health and Safety Bill 2011 Clause 157 Securing compliance Part 9 157 Identity cards 1 (1) The regulator must give each inspector an identity card that states the 2 person's name and appointment as an inspector and includes any other 3 matter prescribed by the regulations. 4 (2) An inspector must produce his or her identity card for inspection on 5 request when exercising compliance powers. 6 (3) If a person to whom an identity card has been issued ceases to be an 7 inspector, the person must return the identity card to the regulator as 8 soon as practicable. 9 158 Accountability of inspectors 10 (1) An inspector must give written notice to the regulator of all interests, 11 pecuniary or otherwise, that the inspector has, or acquires, and that 12 conflict or could conflict with the proper performance of the inspector's 13 functions. 14 (2) The regulator must give a direction to an inspector not to deal, or to no 15 longer deal, with a matter if the regulator becomes aware that the 16 inspector has a potential conflict of interest in relation to a matter and 17 the regulator considers that the inspector should not deal, or should no 18 longer deal, with the matter. 19 159 Suspension and ending of appointment of inspectors 20 (1) The regulator may suspend or end the appointment of an inspector. 21 (2) A person's appointment as an inspector ends when the person ceases to 22 be eligible for appointment as an inspector. 23 Division 2 Functions and powers of inspectors 24 160 Functions and powers of inspectors 25 An inspector has the following functions and powers under this Act: 26 (a) to provide information and advice about compliance with this 27 Act, 28 (b) to assist in the resolution of: 29 (i) work health and safety issues at workplaces, and 30 (ii) issues related to access to a workplace by an assistant to a 31 health and safety representative, and 32 (iii) issues related to the exercise or purported exercise of a 33 right of entry under Part 7, 34 (c) to review disputed provisional improvement notices, 35 Page 81 Clause 161 Work Health and Safety Bill 2011 Part 9 Securing compliance (d) to require compliance with this Act through the issuing of 1 notices, 2 (e) to investigate contraventions of this Act and assist in the 3 prosecution of offences, 4 (f) to attend coronial inquests in relation to work-related deaths and 5 examine witnesses. 6 161 Conditions on inspectors' compliance powers 7 An inspector's compliance powers are subject to any conditions 8 specified in the instrument of the inspector's appointment. 9 162 Inspectors subject to regulator's directions 10 (1) An inspector is subject to the regulator's directions in the exercise of the 11 inspector's compliance powers. 12 (2) A direction under subsection (1) may be of a general nature or may 13 relate to a specified matter or specified class of matter. 14 162A Exercise of inspector functions outside area of jurisdiction 15 (1) This section applies if an inspector, in good faith, exercises functions 16 under any relevant legislation in relation to a workplace that is not a 17 workplace in relation to which the inspector has authority. 18 (2) An inspector must, as soon as practicable after becoming aware of 19 exercising functions in relation to such a workplace, either: 20 (a) notify the appropriate authority in writing of the functions so 21 exercised, or 22 (b) if the regulations require the inspector to notify another specified 23 person--notify that specified person. 24 (3) An appropriate authority may, by notice in writing, direct an inspector 25 not to exercise functions in relation to an activity, work, plant or place 26 if it becomes aware that the inspector is exercising, or has exercised, 27 such functions in relation to that activity, work, plant or place and is not 28 authorised to do so. 29 (4) If an inspector (the relevant inspector) ceases, or is required to cease, 30 exercising functions because of this section: 31 (a) the appropriate authority or an appropriate inspector may 32 continue to exercise any functions commenced by the relevant 33 inspector as if the functions had been exercised by the 34 appropriate authority or the appropriate inspector, and 35 Page 82 Work Health and Safety Bill 2011 Clause 162A Securing compliance Part 9 (b) the appropriate authority or an appropriate inspector may 1 continue any relevant investigation and any subsequent 2 proceedings that the authority or inspector has power to continue. 3 (5) For the purposes of the relevant legislation and any proceedings: 4 (a) any function previously exercised by the relevant inspector 5 relating to the activity, work, plant or place concerned is taken to 6 have been exercised by the appropriate authority or an 7 appropriate inspector, and the relevant legislation applies 8 accordingly, and 9 (b) any notice issued by the relevant inspector relating to the activity, 10 work, plant or place concerned is taken to have been issued by the 11 appropriate authority or an appropriate inspector, and can be 12 enforced or otherwise dealt with as if the applicable relevant 13 legislation authorised its issue, and 14 (c) any evidence collected by the relevant inspector relating to the 15 activity, work, plant or place concerned is taken to have been 16 collected by the appropriate authority or an appropriate inspector 17 for the purposes of determining its admissibility in subsequent 18 proceedings. 19 (6) The regulations may require a person notified under subsection (2) (b) 20 to give notice of the matters so notified to the appropriate authority. 21 (7) In this section: 22 appropriate authority means: 23 (a) in relation to a workplace to which this Act applies that is not a 24 mining workplace or a coal workplace--the regulator, or 25 (b) in relation to a mining workplace--the Chief Inspector appointed 26 under the Mine Health and Safety Act 2004, or, if the regulations 27 specify another person, that person, or 28 (c) in relation to a coal workplace--the Chief Inspector appointed 29 under the Coal Mine Health and Safety Act 2002, or, if the 30 regulations specify another person, that person. 31 appropriate inspector means: 32 (a) in relation to a workplace to which this Act applies and that is not 33 a mining workplace or a coal workplace--an inspector appointed 34 under Division 1, or 35 (b) in relation to a mining workplace--a person who is an inspector 36 under this Act because the person is a government official under 37 the Mine Health and Safety Act 2004, or 38 Page 83 Clause 163 Work Health and Safety Bill 2011 Part 9 Securing compliance (c) in relation to a coal workplace--a person who is an inspector 1 under this Act because the person is a government official under 2 the Coal Mine Health and Safety Act 2002. 3 inspector means: 4 (a) an inspector appointed under Division 1, or 5 (b) a person who is an inspector under this Act because the person is 6 a government official under the Mine Health and Safety Act 2004, 7 or 8 (c) a person who is an inspector under this Act because the person is 9 a government official under the Coal Mine Health and Safety Act 10 2002. 11 relevant legislation means any of the following Acts and the regulations 12 made under those Acts: 13 (a) this Act, 14 (b) the Mine Health and Safety Act 2004, 15 (c) the Coal Mine Health and Safety Act 2002, 16 (d) the Petroleum (Onshore) Act 1991, 17 (e) the Petroleum (Offshore) Act 1982. 18 Division 3 Powers relating to entry 19 Subdivision 1 General powers of entry 20 163 Powers of entry 21 (1) An inspector may at any time enter a place that is, or that the inspector 22 reasonably suspects is, a workplace. 23 (2) An entry may be made under subsection (1) with, or without, the 24 consent of the person with management or control of the workplace. 25 (3) If an inspector enters a place under subsection (1) and it is not a 26 workplace, the inspector must leave the place immediately. 27 (4) An inspector may enter any place if the entry is authorised by a search 28 warrant. 29 Note. An inspector may enter residential premises to gain access to a 30 workplace (see section 170 (c)). 31 164 Notification of entry 32 (1) An inspector may enter a place under section 163 without prior notice 33 to any person. 34 Page 84 Work Health and Safety Bill 2011 Clause 165 Securing compliance Part 9 (2) An inspector must, as soon as practicable after entry to a workplace or 1 suspected workplace, take all reasonable steps to notify the following 2 persons of the entry and the purpose of the entry: 3 (a) the relevant person conducting a business or undertaking at the 4 workplace, 5 (b) the person with management or control of the workplace, 6 (c) any health and safety representative for workers carrying out 7 work for that business or undertaking at the workplace. 8 (3) However, an inspector is not required to notify any person if to do so 9 would defeat the purpose for which the place was entered or cause 10 unreasonable delay. 11 (4) In this section, relevant person conducting a business or undertaking 12 means the person conducting any business or undertaking in relation to 13 which the inspector is exercising the powers of entry. 14 165 General powers on entry 15 (1) An inspector who enters a workplace under this Division may do all or 16 any of the following: 17 (a) inspect, examine and make inquiries at the workplace, 18 (b) inspect and examine anything (including a document) at the 19 workplace, 20 (c) bring to the workplace and use any equipment or materials that 21 may be required, 22 (d) take measurements, conduct tests and make sketches or 23 recordings (including photographs, films, audio, video, digital or 24 other recordings), 25 (e) take and remove for analysis a sample of any substance or thing 26 without paying for it, 27 (f) require a person at the workplace to give the inspector reasonable 28 help to exercise the inspector's powers under paragraphs (a) 29 to (e), 30 (g) exercise any compliance power or other power that is reasonably 31 necessary to be exercised by the inspector for the purposes of this 32 Act. 33 (2) A person required to give reasonable help under subsection (1) (f) must 34 not, without reasonable excuse, refuse or fail to comply with the 35 requirement. 36 Maximum penalty: 37 (a) in the case of an individual--$10,000, or 38 Page 85 Clause 165A Work Health and Safety Bill 2011 Part 9 Securing compliance (b) in the case of a body corporate--$50,000. 1 (3) Subsection (2) places an evidential burden on the accused to show a 2 reasonable excuse. 3 165A Special powers of entry for coal and mining workplaces 4 (1) An authorised representative of an industrial organisation of employees 5 may, for the purpose of investigating any suspected breach of the Coal 6 Mine Health and Safety Act 2002 or the Mine Health and Safety Act 7 2004, enter any premises the representative has reason to believe is a 8 place of work where members of that organisation (or persons who are 9 eligible to be members of that organisation) work. 10 (2) For the purpose of investigating any suspected breach of the Coal Mine 11 Health and Safety Act 2002 or the Mine Health and Safety Act 2004 an 12 authorised representative who enters premises under this section may 13 do any of the following: 14 (a) make searches and inspections (and take photographs and make 15 video and audio recordings), 16 (b) require the occupier of those premises to provide the authorised 17 representative with such assistance and facilities as is or are 18 reasonably necessary to enable the representative to exercise his 19 or her functions under this section, 20 (c) require the production of and inspect any documents in or about 21 those premises that directly affect or directly deal with the work 22 health and safety of employees working at those premises, 23 (d) take copies of or extracts from any such documents. 24 166 Persons assisting inspectors 25 (1) A person (the assistant), including an interpreter, may accompany the 26 inspector entering a workplace under section 165 to assist the inspector 27 if the inspector considers the assistance is necessary. 28 (2) The assistant: 29 (a) may do the things at the place and in the manner that the inspector 30 reasonably requires to assist the inspector to exercise compliance 31 powers, but 32 (b) must not do anything that the inspector does not have power to 33 do, except as permitted under a search warrant. 34 (3) Anything done lawfully by the assistant is taken for all purposes to have 35 been done by the inspector. 36 Page 86 Work Health and Safety Bill 2011 Clause 166A Securing compliance Part 9 166A Special provision for coal and mining workplaces--consultation with 1 employee representative 2 (1) An inspector who is proposing to enter a coal workplace or a workplace 3 that is a mine within the meaning of the Mine Health and Safety Act 4 2004 in connection with a matter that may affect the health, safety or 5 welfare of employees at the workplace: 6 (a) must, to the extent that it is practicable, consult a representative 7 of the employees or an industrial organisation of employees 8 whose members are employed at the workplace, and 9 (b) must, if requested to do so by the representative, take the 10 representative on any such inspection. 11 (2) In the case of a coal workplace, the representative of the employees 12 referred to in this section should, to the extent practicable, be a site 13 check inspector elected under the Coal Mine Health and Safety Act 14 2002 for that workplace. 15 (3) In the case of a workplace that is a mine within the meaning of the Mine 16 Health and Safety Act 2004, the representative of the employees 17 referred to in this section should, to the extent practicable, be a site 18 check inspector elected under that Act for that mine. 19 Subdivision 2 Search warrants 20 167 Search warrant 21 (1) An inspector may apply to an authorised officer for a search warrant if 22 the inspector believes on reasonable grounds that a provision of this Act 23 has been or is being or is about to be contravened in or about any 24 premises. 25 (2) An authorised officer to whom an application is made under this section 26 may, if satisfied that there are reasonable grounds for doing so, issue a 27 search warrant authorising the inspector named in the warrant to enter 28 the premises and to search the premises for evidence of a contravention 29 of this Act. 30 (3) Division 4 of Part 5 of the Law Enforcement (Powers and 31 Responsibilities) Act 2002 applies to a search warrant issued under this 32 section. 33 (4) In this section: 34 authorised officer has the same meaning as it has in the Law 35 Enforcement (Powers and Responsibilities) Act 2002. 36 Page 87 Clause 168 Work Health and Safety Bill 2011 Part 9 Securing compliance 168 Announcement before entry on warrant 1 ***** Note. Not required in NSW. 2 169 Copy of warrant to be given to person with management or control of 3 place 4 ***** Note. Not required in NSW. 5 Subdivision 3 Limitation on entry powers 6 170 Places used for residential purposes 7 Despite anything else in this Division, the powers of an inspector under 8 this Division in relation to entering a place are not exercisable in 9 relation to any part of a place that is used only for residential purposes 10 except: 11 (a) with the consent of the person with management or control of the 12 place, or 13 (b) under the authority conferred by a search warrant, or 14 (c) for the purpose only of gaining access to a suspected workplace, 15 but only: 16 (i) if the inspector reasonably believes that no reasonable 17 alternative access is available, and 18 (ii) at a reasonable time having regard to the times at which the 19 inspector believes work is being carried out at the place to 20 which access is sought. 21 Subdivision 4 Specific powers on entry 22 171 Power to require production of documents and answers to questions 23 (1) An inspector who enters a workplace under this Division may: 24 (a) require a person to tell the inspector who has custody of, or access 25 to, a document, or 26 (b) require a person who has custody of, or access to, a document to 27 produce that document to the inspector while the inspector is at 28 that workplace or within a specified period, or 29 (c) require a person at the workplace to answer any questions put by 30 the inspector. 31 (2) A requirement under subsection (1) (b) must be made by written notice 32 unless the circumstances require the inspector to have immediate access 33 to the document. 34 Page 88 Work Health and Safety Bill 2011 Clause 172 Securing compliance Part 9 (3) An interview conducted by an inspector under subsection (1) (c) must 1 be conducted in private if: 2 (a) the inspector considers it appropriate, or 3 (b) the person being interviewed so requests. 4 (4) Subsection (3) does not limit the operation of section 166 or prevent a 5 representative of the person being interviewed from being present at the 6 interview. 7 (5) Subsection (3) may be invoked during an interview by: 8 (a) the inspector, or 9 (b) the person being interviewed, 10 in which case the subsection applies to the remainder of the interview. 11 (6) A person must not, without reasonable excuse, refuse or fail to comply 12 with a requirement under this section. 13 Maximum penalty: 14 (a) in the case of an individual--$10,000, or 15 (b) in the case of a body corporate--$50,000. 16 Note. See sections 172 and 173 in relation to self-incrimination and section 269 17 in relation to legal professional privilege. 18 (7) Subsection (6) places an evidential burden on the accused to show a 19 reasonable excuse. 20 172 Abrogation of privilege against self-incrimination 21 (1) A person is not excused from answering a question or providing 22 information or a document under this Part on the ground that the answer 23 to the question, or the information or document, may tend to incriminate 24 the person or expose the person to a penalty. 25 (2) However, the answer to a question or information or a document 26 provided by an individual is not admissible as evidence against that 27 individual in civil or criminal proceedings other than proceedings 28 arising out of the false or misleading nature of the answer, information 29 or document. 30 173 Warning to be given 31 (1) Before requiring a person to answer a question or provide information 32 or a document under this Part, an inspector must: 33 (a) identify himself or herself to the person as an inspector by 34 producing the inspector's identity card or in some other way, and 35 Page 89 Clause 174 Work Health and Safety Bill 2011 Part 9 Securing compliance (b) warn the person that failure to comply with the requirement or to 1 answer the question, without reasonable excuse, would constitute 2 an offence, and 3 (c) warn the person about the effect of section 172, and 4 (d) advise the person about the effect of section 269. 5 (2) It is not an offence for an individual to refuse to answer a question put 6 by an inspector or provide information or a document to an inspector 7 under this Part on the ground that the question, information or document 8 might tend to incriminate him or her, unless he or she was first given the 9 warning in subsection (1) (c). 10 (3) Nothing in this section prevents an inspector from obtaining and using 11 evidence given to the inspector voluntarily by any person. 12 174 Powers to copy and retain documents 13 (1) An inspector may: 14 (a) make copies of, or take extracts from, a document given to the 15 inspector in accordance with a requirement under this Act, and 16 (b) keep that document for the period that the inspector considers 17 necessary. 18 (2) While an inspector retains custody of a document, the inspector must 19 permit the following persons to inspect or make copies of the document 20 at all reasonable times: 21 (a) the person who produced the document, 22 (b) the owner of the document, 23 (c) a person authorised by a person referred to in paragraph (a) or (b). 24 175 Power to seize evidence etc 25 (1) An inspector who enters a workplace under this Part may: 26 (a) seize anything (including a document) at the place if the inspector 27 reasonably believes the thing is evidence of an offence against 28 this Act, or 29 (b) take and remove for analysis, testing or examination a sample of 30 any substance or thing without paying for it. 31 (2) An inspector who enters a place with a search warrant may seize the 32 evidence for which the warrant was issued. 33 (3) An inspector may also seize anything else at the place if the inspector 34 reasonably believes: 35 (a) the thing is evidence of an offence against this Act, and 36 Page 90 Work Health and Safety Bill 2011 Clause 176 Securing compliance Part 9 (b) the seizure is necessary to prevent the thing being hidden, lost or 1 destroyed or used to continue or repeat the offence. 2 176 Inspector's power to seize dangerous workplaces and things 3 (1) This section applies if an inspector who enters a workplace under this 4 Part reasonably believes that: 5 (a) the workplace or part of the workplace, or 6 (b) plant at the workplace, or 7 (c) a substance at the workplace or part of the workplace, or 8 (d) a structure at a workplace, 9 is defective or hazardous to a degree likely to cause serious injury or 10 illness or a dangerous incident to occur. 11 (2) The inspector may seize the workplace or part, the plant, the substance 12 or the structure. 13 177 Powers supporting seizure 14 (1) Having seized a thing, an inspector may: 15 (a) move the thing from the place where it was seized (the place of 16 seizure), or 17 (b) leave the thing at the place of seizure but take reasonable action 18 to restrict access to it, or 19 Examples 20 Sealing a thing and marking it to show access to it is restricted. 21 Sealing the entrance to a room where the seized thing is situated and 22 marking it to show access to it is restricted. 23 (c) if the thing is plant or a structure--dismantle or cause to be 24 dismantled the plant or structure. 25 (2) If an inspector restricts access to a seized thing, a person must not 26 tamper, or attempt to tamper, with the thing or something restricting 27 access to the thing without an inspector's approval. 28 Maximum penalty: 29 (a) in the case of an individual--$10,000, or 30 (b) in the case of a body corporate--$50,000. 31 (3) To enable a thing to be seized, an inspector may require the person in 32 control of it: 33 (a) to take it to a stated reasonable place by a stated reasonable time, 34 and 35 (b) if necessary, to remain in control of it at the stated place for a 36 reasonable time. 37 Page 91 Clause 178 Work Health and Safety Bill 2011 Part 9 Securing compliance (4) The requirement: 1 (a) must be made by written notice, or 2 (b) if for any reason it is not practicable to give the notice, may be 3 made orally and confirmed by written notice as soon as 4 practicable. 5 (5) A further requirement may be made under this section in relation to the 6 same thing if it is necessary and reasonable to make the further 7 requirement. 8 (6) The person must not, without reasonable excuse, refuse or fail to 9 comply with a requirement under subsection (3) or (5). 10 Maximum penalty: 11 (a) in the case of an individual--$10,000, or 12 (b) in the case of a body corporate--$50,000. 13 (7) Subsection (6) places an evidential burden on the accused to show a 14 reasonable excuse. 15 178 Receipt for seized things 16 (1) As soon as practicable after an inspector seizes a thing, the inspector 17 must give a receipt for it to the person from whom it was seized. 18 (2) However, if for any reason it is not practicable to comply with 19 subsection (1), the inspector must leave the receipt in a conspicuous 20 position and in a reasonably secure way at the place of seizure. 21 (3) The receipt must describe generally each thing seized and its condition. 22 (4) This section does not apply to a thing if it is impracticable or would be 23 unreasonable to give the receipt required by this section (given the 24 thing's nature, condition and value). 25 179 Forfeiture of seized things 26 (1) A seized thing is forfeited to the State if the regulator: 27 (a) cannot find the person entitled to the thing after making 28 reasonable inquiries, or 29 (b) cannot return it to the person entitled to it, after making 30 reasonable efforts, or 31 (c) reasonably believes it is necessary to forfeit the thing to prevent 32 it being used to commit an offence against this Act. 33 (2) Subsection (1) (a) does not require the regulator to make inquiries if it 34 would be unreasonable to make inquiries to find the person entitled to 35 the thing. 36 Page 92 Work Health and Safety Bill 2011 Clause 180 Securing compliance Part 9 (3) Subsection (1) (b) does not require the regulator to make efforts if it 1 would be unreasonable to make efforts to return the thing to the person 2 entitled to it. 3 (4) If the regulator decides to forfeit the thing under subsection (1) (c), the 4 regulator must tell the person entitled to the thing of the decision by 5 written notice. 6 (5) Subsection (4) does not apply if: 7 (a) the regulator cannot find the person entitled to the thing, after 8 making reasonable inquiries, or 9 (b) it is impracticable or would be unreasonable to give the notice. 10 (6) The notice must state: 11 (a) the reasons for the decision, and 12 (b) that the person entitled to the thing may apply within 28 days 13 after the date of the notice for the decision to be reviewed, and 14 (c) how the person may apply for the review, and 15 (d) that the person may apply for a stay of the decision if the person 16 applies for a review. 17 (7) In deciding whether and, if so, what inquiries and efforts are reasonable 18 or whether it would be unreasonable to give notice about a thing, regard 19 must be had to the thing's nature, condition and value. 20 (8) Any costs reasonably incurred by the State in storing or disposing of a 21 thing forfeited under subsection (1) (c) may be recovered in a court of 22 competent jurisdiction as a debt due to the State from that person. 23 (9) In this section, person entitled to a thing means the person from whom 24 it was seized unless that person is not entitled to possess it in which case 25 it means the owner of the thing. 26 180 Return of seized things 27 (1) If a seized thing has not been forfeited, the person entitled to the thing 28 may apply to the regulator for the return of the thing after the end of 6 29 months after it was seized. 30 (2) The regulator must return the thing to the applicant under subsection (1) 31 unless the regulator has reasonable grounds to retain the thing. 32 (3) The regulator may impose any conditions on the return of the thing 33 under this section that the regulator considers appropriate to eliminate 34 or minimise any risk to work health or safety related to the thing. 35 (4) In this section, person entitled to a thing means the person entitled to 36 possess the thing or the owner of the thing. 37 Page 93 Clause 181 Work Health and Safety Bill 2011 Part 9 Securing compliance 181 Access to seized things 1 (1) Until a seized thing is forfeited or returned, the regulator must permit 2 the following persons to inspect it and, if it is a document, to make 3 copies of it at all reasonable times: 4 (a) the person from whom the thing was seized, 5 (b) the owner of the thing, 6 (c) a person authorised by a person referred to in paragraph (a) or (b). 7 (2) Subsection (1) does not apply if it is impracticable or would be 8 unreasonable to allow inspection or copying. 9 Division 4 Damage and compensation 10 182 Damage etc to be minimised 11 In the exercise, or purported exercise, of a compliance power, an 12 inspector must take all reasonable steps to ensure that the inspector, and 13 any assistant to the inspector, cause as little inconvenience, detriment 14 and damage as is practicable. 15 183 Inspector to give notice of damage 16 (1) This section applies if an inspector or an assistant to an inspector 17 damages a thing when exercising or purporting to exercise a compliance 18 power. 19 (2) The inspector must, as soon as practicable, give written notice of the 20 damage to the person who the inspector believes on reasonable grounds, 21 is the person in control of the thing. 22 (3) If the inspector believes the damage was caused by a latent defect in the 23 thing or circumstances beyond the inspector's or assistant's control, the 24 inspector may state it in the notice. 25 (4) If, for any reason, it is impracticable to comply with subsection (2), the 26 inspector must leave the notice in a conspicuous position and in a 27 reasonably secure way where the damage happened. 28 (5) This section does not apply to damage the inspector reasonably believes 29 is trivial. 30 184 Compensation 31 (1) A person may claim compensation from the State if the person incurs 32 loss or expense because of the exercise or purported exercise of a power 33 under Division 3 of this Part. 34 Page 94 Work Health and Safety Bill 2011 Clause 185 Securing compliance Part 9 (2) Compensation may be claimed and ordered in a proceeding: 1 (a) brought in a court of competent jurisdiction, or 2 (b) for an offence against this Act brought against the person 3 claiming compensation. 4 (3) The court may order compensation to be paid only if it is satisfied it is 5 just to make the order in the circumstances of the particular case. 6 (4) The regulations may prescribe matters that may, or must, be taken into 7 account by the court when considering whether it is just to make the 8 order. 9 Division 5 Other matters 10 185 Power to require name and address 11 (1) An inspector may require a person to provide the person's name and 12 residential address if: 13 (a) the inspector finds the person committing an offence against this 14 Act, or 15 (b) the inspector finds the person in circumstances that lead, or has 16 information that leads, the inspector to reasonably suspect the 17 person has committed an offence against this Act. 18 (2) When asking a person to provide his or her name and residential 19 address, the inspector must: 20 (a) tell the person the reason for the requirement to provide their 21 name and residential address, and 22 (b) warn the person that it is an offence to fail to state that name and 23 residential address, unless the person has a reasonable excuse. 24 (3) If the inspector reasonably believes that the name or residential address 25 is false, the inspector may ask the person to give evidence of its 26 correctness. It is not an offence for a person to fail to give that evidence. 27 (4) A person must not, without reasonable excuse, refuse or fail to comply 28 with a requirement under subsection (1). 29 Maximum penalty: $10,000. 30 (5) Subsection (4) places an evidential burden on the accused to show a 31 reasonable excuse. 32 186 Inspector may take affidavits 33 An inspector is authorised to take affidavits for any purpose relating or 34 incidental to the exercise of his or her compliance powers. 35 Page 95 Clause 187 Work Health and Safety Bill 2011 Part 9 Securing compliance 187 Attendance of inspector at coronial inquests 1 An inspector may attend and has authority to examine witnesses at any 2 inquest into the cause of death of a worker while carrying out work. 3 Division 6 Offences in relation to inspectors 4 188 Offence to hinder or obstruct inspector 5 A person must not intentionally hinder or obstruct an inspector in 6 exercising his or her compliance powers, or induce or attempt to induce 7 any other person to do so. 8 Maximum penalty: 9 (a) in the case of an individual--$10,000, or 10 (b) in the case of a body corporate--$50,000. 11 189 Offence to impersonate inspector 12 A person who is not an inspector must not, in any way, hold himself or 13 herself out to be an inspector. 14 Maximum penalty: $10,000. 15 190 Offence to assault, threaten or intimidate inspector 16 A person must not directly or indirectly assault, threaten or intimidate, 17 or attempt to assault, threaten or intimidate, an inspector or a person 18 assisting an inspector. 19 Maximum penalty: 20 (a) in the case of an individual--$50,000 or imprisonment for 21 2 years or both, or 22 (b) in the case of a body corporate--$250,000. 23 Page 96 Work Health and Safety Bill 2011 Clause 191 Enforcement measures Part 10 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 person: 4 (a) is contravening a provision of this Act, or 5 (b) has contravened a provision in circumstances that make it likely 6 that the contravention will continue or be repeated. 7 (2) The inspector may issue an improvement notice requiring the person to: 8 (a) remedy the contravention, or 9 (b) prevent a likely contravention from occurring, or 10 (c) remedy the things or operations causing the contravention or 11 likely contravention. 12 192 Contents of improvement notices 13 (1) An improvement notice must state: 14 (a) that the inspector believes the person: 15 (i) is contravening a provision of this Act, or 16 (ii) has contravened a provision in circumstances that make it 17 likely that the contravention will continue or be repeated, 18 and 19 (b) the provision the inspector believes is being, or has been, 20 contravened, and 21 (c) briefly, how the provision is being, or has been, contravened, and 22 (d) the day by which the person is required to remedy the 23 contravention or likely contravention. 24 (2) An improvement notice may include directions concerning the 25 measures to be taken to remedy the contravention or prevent the likely 26 contravention, or the matters or activities causing the contravention or 27 likely contravention, to which the notice relates. 28 (3) The day stated for compliance with the improvement notice must be 29 reasonable in all the circumstances. 30 Page 97 Clause 193 Work Health and Safety Bill 2011 Part 10 Enforcement measures 193 Compliance with improvement notice 1 The person to whom an improvement notice is issued must comply with 2 the notice within the period specified in the notice. 3 Maximum penalty: 4 (a) in the case of an individual--$50,000, or 5 (b) in the case of a body corporate--$250,000. 6 194 Extension of time for compliance with improvement notices 7 (1) This section applies if a person has been issued with an improvement 8 notice. 9 (2) An inspector may, by written notice given to the person, extend the 10 compliance period for the improvement notice. 11 (3) However, the inspector may extend the compliance period only if the 12 period has not ended. 13 (4) In this section: 14 compliance period means the period stated in the improvement notice 15 under section 192, and includes that period as extended under this 16 section. 17 Division 2 Prohibition notices 18 195 Power to issue prohibition notice 19 (1) This section applies if an inspector reasonably believes that: 20 (a) an activity is occurring at a workplace that involves or will 21 involve a serious risk to the health or safety of a person emanating 22 from an immediate or imminent exposure to a hazard, or 23 (b) an activity may occur at a workplace that, if it occurs, will involve 24 a serious risk to the health or safety of a person emanating from 25 an immediate or imminent exposure to a hazard. 26 (2) The inspector may give a person who has control over the activity a 27 direction prohibiting the carrying on of the activity, or the carrying on 28 of the activity in a specified way, until an inspector is satisfied that the 29 matters that give or will give rise to the risk have been remedied. 30 (3) The direction may be given orally, but must be confirmed by written 31 notice (a prohibition notice) issued to the person as soon as practicable. 32 Page 98 Work Health and Safety Bill 2011 Clause 196 Enforcement measures Part 10 196 Contents of prohibition notice 1 (1) A prohibition notice must state: 2 (a) that the inspector believes that grounds for the issue of the 3 prohibition notice exist and the basis for that belief, and 4 (b) briefly, the activity that the inspector believes involves or will 5 involve the risk and the matters that give or will give rise to the 6 risk, and 7 (c) the provision of this Act that the inspector believes is being, or is 8 likely to be, contravened by that activity. 9 (2) A prohibition notice may include directions on the measures to be taken 10 to remedy the risk, activities or matters to which the notice relates, or 11 the contravention or likely contravention referred to in subsection 12 (1) (c). 13 (3) Without limiting section 195, a prohibition notice that prohibits the 14 carrying on of an activity in a specified way may do so by specifying 15 one or more of the following: 16 (a) a workplace, or part of a workplace, at which the activity is not to 17 be carried out, 18 (b) anything that is not to be used in connection with the activity, 19 (c) any procedure that is not to be followed in connection with the 20 activity. 21 197 Compliance with prohibition notice 22 The person to whom a direction is given under section 195 (2) or a 23 prohibition notice is issued must comply with the direction or notice. 24 Maximum penalty: 25 (a) in the case of an individual--$100,000, or 26 (b) in the case of a body corporate--$500,000. 27 Division 3 Non-disturbance notices 28 198 Issue of non-disturbance notice 29 An inspector may issue a non-disturbance notice to the person with 30 management or control of a workplace if the inspector reasonably 31 believes that it is necessary to do so to facilitate the exercise of his or 32 her compliance powers. 33 Page 99 Clause 199 Work Health and Safety Bill 2011 Part 10 Enforcement measures 199 Contents of non-disturbance notice 1 (1) A non-disturbance notice may require the person to: 2 (a) preserve the site at which a notifiable incident has occurred for a 3 specified period, or 4 (b) prevent the disturbance of a particular site (including the 5 operation of plant) in other circumstances for a specified period 6 that is reasonable in the circumstances. 7 (2) A non-disturbance notice must specify the period (of no more than 8 7 days) for which it applies and set out: 9 (a) the obligations of the person to whom the notice is issued, and 10 (b) the measures to be taken to preserve a site or prevent disturbance 11 of a site, and 12 (c) the penalty for contravening the notice. 13 (3) In subsection (1) a reference to a site includes any plant, substance, 14 structure or thing associated with the site. 15 (4) A non-disturbance notice does not prevent any action: 16 (a) to assist an injured person, or 17 (b) to remove a deceased person, or 18 (c) that is essential to make the site safe or to prevent a further 19 incident, or 20 (d) that is associated with a police investigation, or 21 (e) for which an inspector has given permission. 22 200 Compliance with non-disturbance notice 23 (1) A person must not, without reasonable excuse, refuse or fail to comply 24 with a non-disturbance notice issued to the person. 25 Maximum penalty: 26 (a) in the case of an individual--$50,000, or 27 (b) in the case of a body corporate--$250,000. 28 (2) Subsection (1) places an evidential burden on the accused to show a 29 reasonable excuse. 30 201 Issue of subsequent notices 31 If an inspector considers it necessary to do so, he or she may issue one 32 or more subsequent non-disturbance notices to a person, whether before 33 or after the expiry of the previous notice, each of which must comply 34 with section 199. 35 Page 100 Work Health and Safety Bill 2011 Clause 202 Enforcement measures Part 10 Division 4 General requirements applying to notices 1 202 Application of Division 2 In this Division, notice means improvement notice, prohibition notice 3 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 notice 8 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 which to 11 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 notice. 16 206 Changes to notice by inspector 17 (1) An inspector may make minor changes to a notice: 18 (a) for clarification, or 19 (b) to correct errors or references, or 20 (c) to reflect changes of address or other circumstances. 21 (2) An inspector may also, in accordance with section 194, extend the 22 compliance period for an improvement notice. 23 207 Regulator may vary or cancel notice 24 Except as provided in section 206, a notice issued by an inspector may 25 only be varied or cancelled by the regulator. 26 208 Formal irregularities or defects in notice 27 A notice is not invalid only because of: 28 (a) a formal defect or irregularity in the notice unless the defect or 29 irregularity causes or is likely to cause substantial injustice, or 30 (b) a failure to use the correct name of the person to whom the notice 31 is issued if the notice sufficiently identifies the person and is 32 issued or given to the person in accordance with section 209. 33 Page 101 Clause 209 Work Health and Safety Bill 2011 Part 10 Enforcement measures 209 Issue and giving of notice 1 (1) A notice may be issued or given to a person: 2 (a) by delivering it personally to the person or sending it by post or 3 facsimile or electronic transmission to the person's usual or last 4 known place of residence or business, or 5 (b) by leaving it for the person at the person's usual or last known 6 place of residence or business with a person who appears to be 7 over 16 years and who appears to reside or work there, or 8 (c) by leaving it for the person at the workplace to which the notice 9 relates with a person who is or appears to be the person with 10 management or control of the workplace, or 11 (d) in a prescribed manner. 12 (2) The regulations may prescribe: 13 (a) the manner of issuing a notice, and 14 (b) the steps a person to whom a notice is issued must take to bring 15 it to the attention of other persons. 16 210 Display of notice 17 (1) A person to whom a notice is issued must, as soon as possible, display 18 a copy of the notice in a prominent place at or near the workplace, or 19 part of the workplace, at which work is being carried out that is affected 20 by the notice. 21 Maximum penalty: 22 (a) in the case of an individual--$5,000, or 23 (b) in the case of a body corporate--$25,000. 24 (2) A person must not intentionally remove, destroy, damage or deface a 25 notice displayed under subsection (1) while the notice is in force. 26 Maximum penalty: 27 (a) in the case of an individual--$5,000, or 28 (b) in the case of a body corporate--$25,000. 29 Division 5 Remedial action 30 211 When regulator may carry out action 31 (1) This section applies if a person to whom a prohibition notice is issued 32 fails to take reasonable steps to comply with the notice. 33 Page 102 Work Health and Safety Bill 2011 Clause 212 Enforcement measures Part 10 (2) The regulator may take any remedial action the regulator believes 1 reasonable to make the workplace or situation safe after giving written 2 notice to the person to whom the prohibition notice was issued of: 3 (a) the regulator's intention to take that action, and 4 (b) the owner's or person's liability for the costs of that action. 5 212 Power of the regulator to take other remedial action 6 (1) This section applies if the regulator reasonably believes that: 7 (a) circumstances in which a prohibition notice can be issued exist, 8 and 9 (b) a prohibition notice cannot be issued at a workplace because, 10 after taking reasonable steps, the person with management or 11 control of the workplace cannot be found. 12 (2) The regulator may take any remedial action necessary to make the 13 workplace safe. 14 213 Costs of remedial or other action 15 The regulator may recover the reasonable costs of any remedial action 16 taken under: 17 (a) section 211 from the person to whom the notice is issued, or 18 (b) section 212 from any person to whom the prohibition notice 19 could have been issued in relation to the matter, 20 as a debt due to the regulator. 21 Division 6 Injunctions 22 214 Application of Division 23 In this Division, notice means improvement notice, prohibition notice 24 or non-disturbance notice. 25 215 Injunctions for noncompliance with notices 26 (1) The regulator may apply to the District Court for an injunction: 27 (a) compelling a person to comply with a notice, or 28 (b) restraining a person from contravening a notice. 29 (2) The regulator may do so: 30 (a) whether or not proceedings have been brought for an offence 31 against this Act in connection with any matter in relation to which 32 the notice was issued, and 33 (b) whether any period for compliance with the notice has expired. 34 Page 103 Clause 216 Work Health and Safety Bill 2011 Part 11 Enforceable undertakings Part 11 Enforceable undertakings 1 216 Regulator may accept WHS undertakings 2 (1) The regulator may accept a written undertaking (a WHS undertaking) 3 given by a person in connection with a matter relating to a contravention 4 or alleged contravention by the person of this Act. 5 Note. Section 230 (3) requires the regulator to publish guidelines in relation to 6 the acceptance of WHS undertakings. 7 (2) A WHS undertaking cannot be accepted for a contravention or alleged 8 contravention that is a Category 1 offence. 9 (3) The giving of a WHS undertaking does not constitute an admission of 10 guilt by the person giving it in relation to the contravention or alleged 11 contravention to which the undertaking relates. 12 217 Notice of decision and reasons for decision 13 (1) The regulator must give the person seeking to make a WHS undertaking 14 written notice of the regulator's decision to accept or reject the WHS 15 undertaking and of the reasons for the decision. 16 (2) The regulator must publish, on the regulator's website, notice of a 17 decision to accept a WHS undertaking and the reasons for that decision. 18 218 When a WHS undertaking is enforceable 19 A WHS undertaking takes effect and becomes enforceable when the 20 regulator's decision to accept the undertaking is given to the person who 21 made the undertaking or at any later date specified by the regulator. 22 219 Compliance with WHS undertaking 23 A person must not contravene a WHS undertaking made by that person 24 that is in effect. 25 Maximum penalty: 26 (a) in the case of an individual--$50,000, or 27 (b) in the case of a body corporate--$250,000. 28 220 Contravention of WHS undertaking 29 (1) The regulator may apply to the District Court for an order if a person 30 contravenes a WHS undertaking. 31 Page 104 Work Health and Safety Bill 2011 Clause 221 Enforceable undertakings Part 11 (2) If the Court is satisfied that the person who made the WHS undertaking 1 has contravened the undertaking, the Court, in addition to the 2 imposition of any penalty, may make one or both of the following 3 orders: 4 (a) an order directing the person to comply with the undertaking, 5 (b) an order discharging the undertaking. 6 (3) In addition to the orders referred to in subsection (2), the Court may 7 make any other order that the Court considers appropriate in the 8 circumstances, including orders directing the person to pay to the State: 9 (a) the costs of the proceedings, and 10 (b) the reasonable costs of the regulator in monitoring compliance 11 with the WHS undertaking in the future. 12 (4) Nothing in this section prevents proceedings being brought for the 13 contravention or alleged contravention of this Act to which the WHS 14 undertaking relates. 15 Note. Section 222 specifies circumstances affecting proceedings for a 16 contravention for which a WHS undertaking has been given. 17 221 Withdrawal or variation of WHS undertaking 18 (1) A person who has made a WHS undertaking may at any time, with the 19 written agreement of the regulator: 20 (a) withdraw the undertaking, or 21 (b) vary the undertaking. 22 (2) However, the provisions of the undertaking cannot be varied to provide 23 for a different alleged contravention of the Act. 24 (3) The regulator must publish, on the regulator's website, notice of the 25 withdrawal or variation of a WHS undertaking. 26 222 Proceeding for alleged contravention 27 (1) Subject to this section, no proceedings for a contravention or alleged 28 contravention of this Act may be brought against a person if a WHS 29 undertaking is in effect in relation to that contravention. 30 (2) No proceedings may be brought for a contravention or alleged 31 contravention of this Act against a person who has made a WHS 32 undertaking in relation to that contravention and has completely 33 discharged the WHS undertaking. 34 Page 105 Clause 222 Work Health and Safety Bill 2011 Part 11 Enforceable undertakings (3) The regulator may accept a WHS undertaking in relation to a 1 contravention or alleged contravention before proceedings in relation to 2 that contravention have been finalised. 3 (4) If the regulator accepts a WHS undertaking before the proceedings are 4 finalised, the regulator must take all reasonable steps to have the 5 proceedings discontinued as soon as possible. 6 Page 106 Work Health and Safety Bill 2011 Clause 223 Review of decisions Part 12 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 accordance 5 with this Part (reviewable decisions), and 6 (b) who is eligible to apply for review of a reviewable decision (the 7 eligible person). 8 Item Provision under which Eligible person in relation to reviewable decision is reviewable decision made 1 Section 54 (2) (decision (1) A worker whose interests following failure to commence are affected by the decision negotiations) 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 (1) A person conducting a relation to training of health and business or undertaking safety representative) 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 (1) A worker whose interests to health and safety committee) are affected by the decision. (2) A person conducting a business or undertaking whose interests are affected by the decision. Page 107 Clause 223 Work Health and Safety Bill 2011 Part 12 Review of decisions Item Provision under which Eligible person in relation to reviewable decision is reviewable decision made (3) A health and safety representative who represents a worker whose interests are affected by the decision. 4 Section 102 (decision on review (1) The person to whom the of provisional improvement provisional improvement notice) 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 seized The person entitled to the thing. thing) 6 Section 180 (return of seized The person entitled to the thing. things) 7 Section 191 (issue of (1) The person to whom the improvement notice) 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. Page 108 Work Health and Safety Bill 2011 Clause 223 Review of decisions Part 12 Item Provision under which Eligible person in relation to reviewable decision is reviewable decision made 8 Section 194 (extension of time (1) The person to whom the for compliance with notice was issued. improvement notice) (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. 9 Section 195 (issue of prohibition (1) The person to whom the notice) 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 (1) The person to whom the non-disturbance notice) notice was issued. Page 109 Clause 223 Work Health and Safety Bill 2011 Part 12 Review of decisions Item Provision under which Eligible person in relation to reviewable decision is reviewable decision made (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. 11 Section 201 (issue of subsequent (1) The person to whom the notice) 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 (1) The person to whom the regulator to vary or cancel notice was issued. notice) (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. Page 110 Work Health and Safety Bill 2011 Clause 223 Review of decisions Part 12 Item Provision under which Eligible person in relation to reviewable decision is reviewable decision made (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 A person prescribed by the regulations regulations as eligible to apply for review of the reviewable decision. (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, 4 (b) giving, suspending, revoking or refusing to give a direction, 5 approval, consent or permission, 6 (c) issuing, suspending, revoking or refusing to issue an 7 authorisation, 8 (d) imposing a condition, 9 (e) making a declaration, demand or requirement, 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 whom 13 it was seized unless that person is not entitled to possess it, in which case 14 it means the owner of the thing. 15 Note. Decisions under the regulations that will be reviewable decisions will be 16 set out in the regulations. 17 Page 111 Clause 224 Work Health and Safety Bill 2011 Part 12 Review of decisions 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 apply 4 to the regulator for review (an internal review) of the decision within: 5 (a) the prescribed time after the day on which the decision first came 6 to the eligible person's notice, or 7 (b) such longer period as the regulator allows. 8 (2) The application must be made in the manner and form required by the 9 regulator. 10 (3) For the purposes of this section, the prescribed time is: 11 (a) in the case of a decision to issue an improvement notice the 12 period specified in the notice for compliance with the notice or 13 14 days, whichever is the lesser, and 14 (b) in any other case, 14 days. 15 225 Internal reviewer 16 (1) The regulator may appoint a person or body to review decisions on 17 applications under this Division. 18 (2) The person who made the decision cannot be an internal reviewer in 19 relation to that decision. 20 226 Decision of internal reviewer 21 (1) The internal reviewer must review the reviewable decision and make a 22 decision as soon as is reasonably practicable and within 14 days after 23 the application for internal review is received. 24 (2) The decision may be: 25 (a) to confirm or vary the reviewable decision, or 26 (b) to set aside the reviewable decision and substitute another 27 decision that the internal reviewer considers appropriate. 28 (3) If the internal reviewer seeks further information from the applicant, the 29 14-day period ceases to run until the applicant provides the information 30 to the internal reviewer. 31 (4) The applicant must provide the further information within the time 32 (being not less than 7 days) specified by the internal reviewer in the 33 request for information. 34 Page 112 Work Health and Safety Bill 2011 Clause 227 Review of decisions Part 12 (5) If the applicant does not provide the further information within the 1 required time, the decision is taken to have been confirmed by the 2 internal reviewer at the end of that time. 3 (6) If the reviewable decision is not varied or set aside within the 14-day 4 period, the decision is taken to have been confirmed by the internal 5 reviewer. 6 227 Decision on internal review 7 As soon as practicable after reviewing the decision, the internal 8 reviewer must give the applicant in writing: 9 (a) the decision on the internal review, and 10 (b) the reasons for the decision. 11 228 Stays of reviewable decisions 12 (1) An application for an internal review of a reviewable decision (other 13 than a decision to issue a prohibition notice or a non-disturbance notice) 14 stays the operation of the decision. 15 (2) If an application is made for internal review of a decision to issue a 16 prohibition notice or a non-disturbance notice, the reviewer may stay 17 the operation of the decision. 18 (3) The reviewer may make the decision to stay the operation of a decision 19 on the reviewer's own initiative or on the application of the applicant for 20 review. 21 (4) The reviewer must make a decision on an application for a stay within 22 one working day after the reviewer receives the application. 23 (5) If the reviewer has not made a decision to stay a decision within the time 24 set out in subsection (4), the reviewer is taken to have made a decision 25 to grant a stay. 26 (6) A stay of the operation of a decision pending a decision on an internal 27 review continues until whichever of the following is the earlier: 28 (a) the end of the prescribed period for applying for an external 29 review of the decision made on the internal review, 30 (b) an application for external review is made. 31 Division 3 External review 32 229 Application for external review 33 (1) An eligible person may apply to the Industrial Relations Commission 34 for review (an external review) of: 35 (a) a reviewable decision made by the regulator, or 36 Page 113 Clause 229 Work Health and Safety Bill 2011 Part 12 Review of decisions (b) a decision made, or taken to have been made, on an internal 1 review. 2 (2) The application must be made: 3 (a) if the decision was to forfeit a thing (including a document), 4 within 28 days after the day on which the decision first came to 5 the applicant's notice, or 6 (b) in the case of any other decision, within 14 days after the day on 7 which the decision first came to the applicant's notice, or 8 (c) if the regulator is required by the Industrial Relations 9 Commission to give the eligible person a statement of reasons, 10 within 14 days after the day on which the statement is provided. 11 (3) The Industrial Relations Commission may stay the operation of a 12 decision that is the subject of an external review pending a decision on 13 the review. 14 (4) The Industrial Relations Commission may, on an external review, 15 confirm, vary or revoke the decision concerned. 16 Page 114 Work Health and Safety Bill 2011 Clause 229A Legal proceedings Part 13 Part 13 Legal proceedings 1 Division 1 General matters 2 229A Part extends to mines and coal workplaces 3 (1) This Part extends to proceedings in connection with the Coal Mine 4 Health and Safety Act 2002 or the Mine Health and Safety Act 2004 or 5 the regulations under either of those Acts. 6 (2) For the purposes of those proceedings: 7 (a) a reference in this Part to this Act or the regulations includes a 8 reference to those Acts or those regulations, and 9 (b) a reference in this Part to the regulator is a reference to the 10 Department of Primary Industries. 11 (3) The regulations may make provision modifying the application of this 12 Part to proceedings in connection with the Coal Mine Health and Safety 13 Act 2002 or the Mine Health and Safety Act 2004 and the regulations 14 under those Acts. 15 229B Procedure for offences 16 (1) Except as provided by this section, proceedings for an offence against 17 this Act or the regulations are to be dealt with summarily: 18 (a) before the Local Court, or 19 (b) before the District Court in its summary jurisdiction. 20 (2) The maximum monetary penalty that may be imposed in those 21 proceedings by the Local Court is $50,000, despite any higher 22 maximum monetary penalty provided in relation to the offence. 23 (3) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to 24 proceedings for an offence taken before the District Court in its 25 summary jurisdiction. 26 (4) Proceedings for an offence under section 31 (Reckless conduct-- 27 Category 1) committed by an individual are to be taken on indictment. 28 230 Prosecutions 29 (1) Subject to subsection (4), proceedings for an offence against this Act 30 may only be brought by: 31 (a) the regulator, or 32 (b) an inspector with the written authorisation of the regulator (either 33 generally or in a particular case). 34 Page 115 Clause 231 Work Health and Safety Bill 2011 Part 13 Legal proceedings (2) An authorisation under subsection (1) (b) is sufficient authority to 1 continue proceedings in any case where the court amends the charge, 2 warrant or summons. 3 (3) The regulator must issue, and publish on the regulator's website, 4 general guidelines for or in relation to: 5 (a) the prosecution of offences under this Act, and 6 (b) the acceptance of WHS undertakings under this Act. 7 (4) Nothing in this section affects the ability of the Director of Public 8 Prosecutions to bring proceedings for an offence against this Act. 9 231 Procedure if prosecution is not brought 10 (1) If: 11 (a) a person reasonably considers that the occurrence of an act, 12 matter or thing constitutes a Category 1 offence or a Category 2 13 offence, and 14 (b) no prosecution has been brought in relation to the occurrence of 15 the act, matter or thing after 6 months but not later than 12 months 16 after that occurrence, 17 the person may make a written request to the regulator that a 18 prosecution be brought. 19 (2) Within 3 months after the regulator receives a request the regulator 20 must: 21 (a) advise the person (in writing): 22 (i) whether the investigation is complete, and 23 (ii) if the investigation is complete, whether a prosecution has 24 been or will be brought or give reasons why a prosecution 25 will not be brought, and 26 (b) advise the person who the applicant believes committed the 27 offence of the application and of the matters set out in paragraph 28 (a). 29 (3) If the regulator advises the person that a prosecution for a Category 1 or 30 Category 2 offence will not be brought, the regulator must: 31 (a) advise the person that the person may ask the regulator to refer 32 the matter to the Director of Public Prosecutions for 33 consideration, and 34 (b) if the person makes a written request to the regulator to do so, 35 refer the matter to the Director of Public Prosecutions within 36 1 month of the request. 37 Page 116 Work Health and Safety Bill 2011 Clause 232

egal proceedings Part 13 (4) The Director of Public Prosecutions must consider the matter and advise 1 (in writing) the regulator within 1 month as to whether the Director 2 considers that a prosecution should be brought. 3 (5) The regulator must ensure a copy of the advice is given to: 4 (a) the person who made the request, and 5 (b) the person who the applicant believes committed the offence. 6 (6) If the regulator declines to follow the advice of the Director of Public 7 Prosecutions to bring proceedings, the regulator must give written 8 reasons for the decision to any person to whom a copy of the advice is 9 given under subsection (5). 10 (7) In this section a reference to the occurrence of an act, matter or thing 11 includes a reference to a failure in relation to an act, matter or thing. 12 232 Limitation period for prosecutions 13 (1) Proceedings for an offence against this Act may be brought within the 14 latest of the following periods to occur: 15 (a) within 2 years after the offence first comes to the notice of the 16 regulator, 17 (b) within 1 year after a coronial report was made or a coronial 18 inquiry or inquest ended, if it appeared from the report or the 19 proceedings at the inquiry or inquest that an offence had been 20 committed against this Act, 21 (c) if a WHS undertaking has been given in relation to the offence, 22 within 6 months after: 23 (i) the WHS undertaking is contravened, or 24 (ii) it comes to the notice of the regulator that the WHS 25 undertaking has been contravened, or 26 (iii) the regulator has agreed under section 221 to the 27 withdrawal of the WHS undertaking. 28 (2) A proceeding for a Category 1 offence may be brought after the end of 29 the applicable limitation period in subsection (1) if fresh evidence 30 relevant to the offence is discovered and the court is satisfied that the 31 evidence could not reasonably have been discovered within the relevant 32 limitation period. 33 233 Multiple contraventions of health and safety duty provision 34 (1) 2 or more contraventions of a health and safety duty provision by a 35 person that arise out of the same factual circumstances may be charged 36 as a single offence or as separate offences. 37 Page 117 Clause 234 Work Health and Safety Bill 2011 Part 13 Legal proceedings (2) This section does not authorise contraventions of 2 or more health and 1 safety duty provisions to be charged as a single offence. 2 (3) A single penalty only may be imposed in relation to 2 or more 3 contraventions of a health and safety duty provision that are charged as 4 a single offence. 5 (4) In this section health and safety duty provision means a provision of 6 Division 2, 3 or 4 of Part 2. 7 Division 2 Sentencing for offences 8 234 Application of this Division 9 This Division applies if a court convicts a person, or finds a person 10 guilty (the offender), of an offence against this Act. 11 235 Orders generally 12 (1) One or more orders may be made under this Division against the 13 offender. 14 (2) Orders may be made under this Division in addition to any penalty that 15 may be imposed or any other action that may be taken in relation to the 16 offence. 17 236 Adverse publicity orders 18 (1) The court may make an order (an adverse publicity order) in relation to 19 the offender requiring the offender: 20 (a) to take either or both of the following actions within the period 21 specified in the order: 22 (i) to publicise, in the way specified in the order, the offence, 23 its consequences, the penalty imposed and any other 24 related matter, and 25 (ii) to notify a specified person or specified class of persons, in 26 the way specified in the order, of the offence, its 27 consequences, the penalty imposed and any other related 28 matter, and 29 (b) to give the regulator, within 7 days after the end of the period 30 specified in the order, evidence that the action or actions were 31 taken by the offender in accordance with the order. 32 (2) The court may make an adverse publicity order on its own initiative or 33 on the application of the person prosecuting the offence. 34 (3) If the offender fails to give evidence to the regulator in accordance with 35 subsection (1) (b), the regulator, or a person authorised in writing by the 36 regulator, may take the action or actions specified in the order. 37 Page 118 Work Health and Safety Bill 2011 Clause 237

egal proceedings Part 13 (4) However, if: 1 (a) the offender gives evidence to the regulator in accordance with 2 subsection (1) (b), and 3 (b) despite that evidence, the regulator is not satisfied that the 4 offender has taken the action or actions specified in the order in 5 accordance with the order, 6 the regulator may apply to the court for an order authorising the 7 regulator, or a person authorised in writing by the regulator, to take the 8 action or actions. 9 (5) If the regulator or a person authorised in writing by the regulator takes 10 an action or actions in accordance with subsection (3) or an order under 11 subsection (4), the regulator is entitled to recover from the offender, by 12 action in a court of competent jurisdiction, an amount in relation to the 13 reasonable expenses of taking the action or actions as a debt due to the 14 regulator. 15 237 Orders for restoration 16 (1) The court may order the offender to take such steps as are specified in 17 the order, within the period so specified, to remedy any matter caused 18 by the commission of the offence that appears to the court to be within 19 the offender's power to remedy. 20 (2) The period in which an order under this section must be complied with 21 may be extended, or further extended, by order of the court but only if 22 an application for the extension is made before the end of that period. 23 238 Work health and safety project orders 24 (1) The court may make an order requiring the offender to undertake a 25 specified project for the general improvement of work health and safety 26 within the period specified in the order. 27 (2) The order may specify conditions that must be complied with in 28 undertaking the specified project. 29 239 Release on the giving of a court-ordered WHS undertaking 30 (1) The court may (with or without recording a conviction) adjourn the 31 proceeding for a period of up to 2 years and make an order for the 32 release of the offender on the offender giving an undertaking with 33 specified conditions (a court-ordered WHS undertaking). 34 Page 119 Clause 240 Work Health and Safety Bill 2011 Part 13 Legal proceedings (2) A court-ordered WHS undertaking must specify the following 1 conditions: 2 (a) that the offender appears before the court if called on to do so 3 during the period of the adjournment and, if the court so specifies, 4 at the time to which the further hearing is adjourned, 5 (b) that the offender does not commit, during the period of the 6 adjournment, any offence against this Act, 7 (c) that the offender observes any special conditions imposed by the 8 court. 9 (3) An offender who has given a court-ordered WHS undertaking under this 10 section may be called on to appear before the court by order of the court. 11 (4) An order under subsection (3) must be served on the offender not less 12 than 4 days before the time specified in it for the appearance. 13 (5) If the court is satisfied at the time to which a further hearing of a 14 proceeding is adjourned that the offender has observed the conditions of 15 the court-ordered WHS undertaking, it must discharge the offender 16 without any further hearing of the proceeding. 17 240 Injunctions 18 If a court finds a person guilty of an offence against this Act, the court 19 may issue an injunction requiring the person to cease contravening this 20 Act. 21 Note. An injunction may also be obtained under section 215 for noncompliance 22 with a non-disturbance notice, improvement notice or prohibition notice. 23 241 Training orders 24 The court may make an order requiring the person to undertake or 25 arrange for one or more workers to undertake a specified course of 26 training. 27 242 Offence to fail to comply with order 28 (1) A person must not, without reasonable excuse, fail to comply with an 29 order under this Division. 30 Maximum penalty: 31 (a) in the case of an individual--$50,000, or 32 (b) in the case of a body corporate--$250,000. 33 (2) Subsection (1) places an evidential burden on the accused to show a 34 reasonable excuse. 35 (3) This section does not apply to an order or injunction under section 239 36 or 240. 37 Page 120 Work Health and Safety Bill 2011 Clause 242A Legal proceedings Part 13 Division 2A Sentencing guidelines 1 242A Definitions 2 In this Division: 3 guideline judgment means a judgment of the District Court containing 4 guidelines to be taken into account by the Local Court or the District 5 Court in sentencing persons convicted of an offence being: 6 (a) guidelines that apply generally, or 7 (b) guidelines that apply to particular courts or classes of courts, to 8 particular offences or classes of offences, to particular penalties 9 or classes of penalties or to particular classes of persons 10 convicted of an offence (but not to particular persons). 11 guideline proceedings means proceedings under section 242B on an 12 application for a guideline judgment referred to in that section. 13 offence means an offence under this Act or the regulations. 14 State peak council has the meaning that it has in the Industrial 15 Relations Act 1996. 16 242B Guideline judgments on application of Attorney General 17 (1) The District Court may give a guideline judgment on application of the 18 Attorney General. 19 (2) An application for a guideline judgment may include submissions in 20 relation to the framing of the guidelines. 21 (3) An application is not to be made in any proceedings before the District 22 Court in relation to any particular person. 23 (4) The powers and jurisdiction of the District Court to give a guideline 24 judgment in proceedings under this section in relation to an offence are 25 the same as the powers and jurisdiction that the Court of Criminal 26 Appeal has to give a guideline judgment in a proceeding under 27 section 37A of the Crimes (Sentencing Procedure) Act 1999. 28 (5) A guideline judgment under this section may be given separately or may 29 be included in any judgment of the District Court that it considers 30 appropriate. 31 242C Peak councils may intervene 32 (1) A State peak council, or a representative of a State peak council who is 33 an Australian legal practitioner, may appear in guideline proceedings. 34 (2) Without limiting subsection (1), a State peak council or its 35 representative may do either or both of the following: 36 (a) make submissions in relation to the framing of the guidelines, 37 Page 121 Clause 242D Work Health and Safety Bill 2011 Part 13 Legal proceedings (b) assist the District Court in relation to any relevant matter. 1 242D Court may give persons or organisations leave to appear 2 (1) The District Court may grant leave to any person, organisation or 3 government department or agency (or a representative of any person, 4 organisation, department or agency who is an Australian legal 5 practitioner) to appear in guideline proceedings. 6 (2) Without limiting subsection (1), any person, organisation, government 7 department or agency that is granted leave to appear (or its 8 representative, if any) may do either or both of the following: 9 (a) make submissions in relation to the framing of the guidelines, 10 (b) assist the District Court in relation to any relevant matter. 11 (3) This section does not apply to State peak councils. 12 242E Alteration of guideline judgments 13 A guideline judgment given in proceedings under this Division may be 14 reviewed, varied or revoked in a subsequent guideline judgment of the 15 District Court, whether made under this Division or apart from it. 16 242F Discretion of Court preserved 17 Nothing in this Division: 18 (a) limits any power or jurisdiction of the District Court to give a 19 guideline judgment that the District Court has apart from this 20 Division, or 21 (b) requires the District Court to give any guideline judgment under 22 this Division if it considers it inappropriate to do so. 23 242G Rules of court 24 Rules of the District Court may be made under the District Court Act 25 1973 in relation to applications, and proceedings to determine 26 applications, under this Division. 27 242H Use of evidence in giving guideline judgments 28 (1) Nothing in section 12 of the Criminal Appeal Act 1912 limits the 29 evidence or other matters that the District Court may take into 30 consideration in giving a guideline judgment (whether or not on an 31 application under this Division) and the District Court may inform itself 32 as it sees fit. 33 Page 122 Work Health and Safety Bill 2011 Clause 243

egal proceedings Part 13 (2) The District Court must not increase a sentence in any appeal by reason 1 of, or in consideration of, any evidence that is used by the District Court 2 in giving a guideline judgment in the appeal but was not given in the 3 original proceedings. 4 Division 3 Penalty notices 5 243 Penalty notices 6 (1) An authorised officer may serve a penalty notice on a person if it 7 appears to the officer that the person has committed an offence against 8 this Act, being an offence prescribed by the regulations as a penalty 9 notice offence. 10 (2) A penalty notice is a notice to the effect that, if the person served does 11 not wish to have the matter determined by a court, the person can pay, 12 within the time and to the person specified in the notice, the amount of 13 the penalty prescribed by the regulations for the offence if dealt with 14 under this section. 15 (3) A penalty notice under this section is declared to be a penalty notice for 16 the purposes of the Fines Act 1996. 17 (4) A penalty notice may be served personally or by post. 18 (5) If the amount of penalty prescribed for an alleged offence is paid under 19 this section, no person is liable to any further proceedings for the 20 alleged offence. 21 (6) Payment under this section is not to be regarded as an admission of 22 liability for the purpose of, and does not in any way affect or prejudice, 23 any civil claim, action or proceeding arising out of the same occurrence. 24 (7) The regulations may: 25 (a) prescribe an offence for the purposes of this section by specifying 26 the offence or by referring to the provision creating the offence, 27 and 28 (b) prescribe the amount of penalty payable for the offence if dealt 29 with under this section, and 30 (c) prescribe different amounts of penalties for different offences or 31 classes of offences. 32 (8) The amount of a penalty prescribed under this section for an offence is 33 not to exceed 20% of the maximum amount of penalty that could be 34 imposed for the offence by a court. 35 (9) This section does not limit the operation of any other provision of, or 36 made under, this or any other Act relating to proceedings that may be 37 taken in relation to offences. 38 Page 123 Clause 244 Work Health and Safety Bill 2011 Part 13 Legal proceedings (10) In this section, authorised officer means a member of staff of the 1 regulator authorised in writing by the regulator as an authorised officer 2 for the purposes of this section. 3 Division 4 Offences by bodies corporate 4 244 Imputing conduct to bodies corporate 5 (1) For the purposes of this Act, any conduct engaged in on behalf of a body 6 corporate by an employee, agent or officer of the body corporate acting 7 within the actual or apparent scope of his or her employment, or within 8 his or her actual or apparent authority, is conduct also engaged in by the 9 body corporate. 10 (2) If an offence under this Act requires proof of knowledge, intention or 11 recklessness, it is sufficient in proceedings against a body corporate for 12 that offence to prove that the person referred to in subsection (1) had the 13 relevant knowledge, intention or recklessness. 14 (3) If for an offence against this Act mistake of fact is relevant to 15 determining liability, it is sufficient in proceedings against a body 16 corporate for that offence if the person referred to in subsection (1) 17 made that mistake of fact. 18 Division 5 The Crown 19 245 Offences and the Crown 20 (1) If the Crown is guilty of an offence against this Act, the penalty to be 21 imposed on the Crown is the penalty applicable to a body corporate. 22 (2) For the purposes of this Act, any conduct engaged in on behalf of the 23 Crown by an employee, agent or officer of the Crown acting within the 24 actual or apparent scope of his or her employment, or within his or her 25 actual or apparent authority, is conduct also engaged in by the Crown. 26 (3) If an offence under this Act requires proof of knowledge, intention or 27 recklessness, it is sufficient in proceedings against the Crown for that 28 offence to prove that the person referred to in subsection (2) had the 29 relevant knowledge, intention or recklessness. 30 (4) If for an offence against this Act mistake of fact is relevant to 31 determining liability, it is sufficient in proceedings against the Crown 32 for that offence if the person referred to in subsection (2) made that 33 mistake of fact. 34 Page 124 Work Health and Safety Bill 2011 Clause 246

egal proceedings Part 13 246 WHS civil penalty provisions and the Crown 1 (1) If the Crown contravenes a WHS civil penalty provision, the monetary 2 penalty to be imposed on the Crown is the penalty applicable to a body 3 corporate. 4 (2) For the purposes of a WHS civil penalty provision, any conduct 5 engaged in on behalf of the Crown by an employee, agent or officer of 6 the Crown acting within the actual or apparent scope of his or her 7 employment, or within his or her actual or apparent authority, is conduct 8 also engaged in by the Crown. 9 (3) If a WHS civil penalty provision requires proof of knowledge, it is 10 sufficient in proceedings against the Crown for a contravention of that 11 provision to prove that the person referred to in subsection (2) had that 12 knowledge. 13 247 Officers 14 (1) A person who makes, or participates in making, decisions that affect the 15 whole, or a substantial part, of the business or undertaking of the Crown 16 is taken to be an officer of the Crown for the purposes of this Act. 17 (2) A Minister of a State or the Commonwealth is not in that capacity an 18 officer for the purposes of this Act. 19 248 Responsible agency for the Crown 20 (1) A provisional improvement notice, improvement notice, prohibition 21 notice, non-disturbance notice, penalty notice or notice of entry under 22 Part 7 to be given to or served on the Crown under this Act may be given 23 to or served on the responsible agency. 24 (2) If a penalty notice is to be served on the Crown for an offence against 25 this Act, the responsible agency may be specified in the penalty notice. 26 (3) If proceedings are brought against the Crown for an offence against this 27 Act or in relation to a contravention of this Act, the responsible agency 28 in relation to the offence or contravention may be specified in any 29 document initiating, or relating to, the proceedings. 30 (4) The responsible agency in relation to an offence or a contravention of 31 this Act is entitled to act in proceedings against the Crown for the 32 offence or relating to the contravention and, subject to any relevant rules 33 of court, the procedural rights and obligations of the Crown as the 34 accused or defendant in the proceedings are conferred or imposed on the 35 responsible agency. 36 (5) The person prosecuting the offence or bringing the proceedings may 37 change the responsible agency during the proceedings with the court's 38 leave. 39 Page 125 Clause 249 Work Health and Safety Bill 2011 Part 13 Legal proceedings (6) In this section, the responsible agency: 1 (a) in relation to a notice referred to in subsection (1) is: 2 (i) in the case of a provisional improvement notice, 3 improvement notice or penalty notice, the agency of the 4 Crown the acts or omissions of which are alleged to 5 contravene this Act, 6 (ii) in the case of a prohibition notice, the agency of the Crown 7 which has control over the activity referred to in section 8 195 (1) (a) or (b), 9 (iii) in the case of a non-disturbance notice, the agency of the 10 Crown with the management and control of the workplace, 11 (iv) in the case of a notice of entry under Part 7, the agency of 12 the Crown conducting the relevant business or undertaking 13 or with the management and control of the workplace, and 14 (b) in relation to an offence or proceedings for a contravention of this 15 Act, is the agency of the Crown: 16 (i) the acts or omissions of which are alleged to constitute the 17 offence or contravention, or 18 (ii) if that agency has ceased to exist, that is the successor of 19 that agency, or 20 (iii) if that agency has ceased to exist and there is no clear 21 successor, that the court declares to be the responsible 22 agency. 23 Division 6 Public authorities 24 249 Application to public authorities that are bodies corporate 25 This Division applies only to public authorities that are bodies 26 corporate. 27 250 Proceedings against public authorities 28 (1) Proceedings may be brought under this Act against a public authority in 29 its own name. 30 (2) Nothing in this Division affects any privileges that a public authority 31 may have under the Crown. 32 251 Imputing conduct to public authorities 33 (1) For the purposes of this Act, any conduct engaged in on behalf of a 34 public authority by an employee, agent or officer of the public authority 35 acting within the actual or apparent scope of his or her employment, or 36 Page 126 Work Health and Safety Bill 2011 Clause 252

egal proceedings Part 13 within his or her actual or apparent authority, is conduct also engaged 1 in by the public authority. 2 (2) If an offence under this Act requires proof of knowledge, intention or 3 recklessness, it is sufficient in proceedings against the public authority 4 for that offence to prove that the person referred to in subsection (1) had 5 the relevant knowledge, intention or recklessness. 6 (3) If for an offence against this Act mistake of fact is relevant to 7 determining liability, it is sufficient in proceedings against the public 8 authority for that offence if the person referred to in subsection (1) made 9 that mistake of fact. 10 252 Officer of public authority 11 A person who makes, or participates in making, decisions that affect the 12 whole, or a substantial part, of the business or undertaking of a public 13 authority is taken to be an officer of the public authority for the purposes 14 of this Act. 15 253 Proceedings against successors to public authorities 16 (1) Proceedings for an offence against this Act that were instituted against 17 a public authority before its dissolution, or that could have been 18 instituted against a public authority if not for its dissolution, may be 19 continued or instituted against its successor if the successor is a public 20 authority. 21 (2) A penalty notice served on a public authority for an offence against this 22 Act is taken to be a penalty notice served on its successor if the 23 successor is a public authority. 24 (3) Similarly, any penalty paid by a public authority in relation to an 25 penalty notice is taken to be a penalty paid by its successor if the 26 successor is a public authority. 27 Division 7 WHS civil penalty provisions 28 254 When is a provision a WHS civil penalty provision 29 (1) A subsection of Part 7 (or a section of Part 7 that is not divided into 30 subsections) is a WHS civil penalty provision if: 31 (a) the words "WHS civil penalty provision" and one or more 32 amounts by way of monetary penalty are set out at the foot of the 33 subsection (or section), or 34 (b) another provision of Part 7 specifies that the subsection (or 35 section) is a WHS civil penalty provision. 36 Page 127 Clause 255 Work Health and Safety Bill 2011 Part 13 Legal proceedings (2) A subclause of the regulations (or a clause of the regulations that is not 1 divided into subclauses) is a WHS civil penalty provision if: 2 (a) the words "WHS civil penalty provision" and one or more 3 amounts by way of monetary penalty are set out at the foot of the 4 subclause (or clause), or 5 (b) another provision of the regulations specifies that the subclause 6 (or clause) is a WHS civil penalty provision. 7 255 Proceedings for contravention of WHS civil penalty provision 8 Subject to this Division, proceedings may be brought in the Local Court 9 or the District Court against a person for a contravention of a WHS civil 10 penalty provision. 11 256 Involvement in contravention treated in same way as actual 12 contravention 13 (1) A person who is involved in a contravention of a WHS civil penalty 14 provision is taken to have contravened that provision. 15 (2) A person is involved in a contravention of a civil penalty provision if, 16 and only if, the person: 17 (a) has aided, abetted, counselled or procured the contravention, or 18 (b) has induced the contravention, whether by threats or promises or 19 otherwise, or 20 (c) has been in any way, by act or omission, directly or indirectly, 21 knowingly concerned in or party to the contravention, or 22 (d) has conspired with others to effect the contravention. 23 257 Contravening a civil penalty provision is not an offence 24 A contravention of a WHS civil penalty provision is not an offence. 25 258 Civil proceeding rules and procedure to apply 26 A court must apply the rules of evidence and procedure for civil 27 proceedings when hearing proceedings for a contravention of a WHS 28 civil penalty provision. 29 259 Proceeding for a contravention of a WHS civil penalty provision 30 (1) In a proceeding for a contravention of a WHS civil penalty provision, if 31 the court is satisfied that a person has contravened a WHS civil penalty 32 provision, the court may: 33 (a) order the person to pay a monetary penalty that the court 34 considers appropriate, and 35 Page 128 Work Health and Safety Bill 2011 Clause 260

egal proceedings Part 13 (b) make any other order that the court considers appropriate, 1 including an injunction. 2 (2) A monetary penalty imposed under subsection (1) must not exceed the 3 relevant maximum amount of monetary penalty specified under Part 7 4 or the regulations in relation to a contravention of that WHS civil 5 penalty provision. 6 260 Proceedings may be brought by the regulator or an inspector 7 Proceedings for a contravention of a WHS civil penalty provision may 8 only be brought by: 9 (a) the regulator, or 10 (b) an inspector with the written authorisation of the regulator (either 11 generally or in a particular case). 12 261 Limitation period for WHS civil penalty proceedings 13 Proceedings for a contravention of a WHS civil penalty provision may 14 be brought within 2 years after the contravention first comes to the 15 notice of the regulator. 16 262 Recovery of a monetary penalty 17 If the court orders a person to pay a monetary penalty: 18 (a) the penalty is payable to the State, and 19 (b) the State may enforce the order as if it were a judgment of the 20 court. 21 263 Civil double jeopardy 22 A court must not make an order against a person under section 259 for 23 contravention of a WHS civil penalty provision if an order has been 24 made against the person under a civil penalty provision under an Act of 25 the Commonwealth or a State in relation to conduct that is substantially 26 the same as the conduct constituting the contravention. 27 264 Criminal proceedings during civil proceedings 28 (1) Proceedings against a person for a contravention of a WHS civil penalty 29 provision are stayed if: 30 (a) criminal proceedings are commenced or have already 31 commenced against the person for an offence, and 32 (b) the offence is constituted by conduct that is substantially the 33 same as the conduct alleged to constitute the contravention of the 34 WHS civil penalty provision. 35 Page 129 Clause 265 Work Health and Safety Bill 2011 Part 13 Legal proceedings (2) The proceedings for the order may be resumed if the person is not 1 convicted or found guilty of the offence. Otherwise, the proceedings for 2 the order are dismissed. 3 265 Criminal proceedings after civil proceedings 4 Criminal proceedings may be commenced against a person for conduct 5 that is substantially the same as conduct constituting a contravention of 6 a WHS civil penalty provision regardless of whether an order has been 7 made against the person under section 259. 8 266 Evidence given in proceedings for contravention of WHS civil penalty 9 provision not admissible in criminal proceedings 10 (1) Evidence of information given, or evidence of production of 11 documents, by an individual is not admissible in criminal proceedings 12 against the individual if: 13 (a) the individual previously gave the information or produced the 14 documents in proceedings against the individual for a 15 contravention of a WHS civil penalty provision (whether or not 16 the order was made), and 17 (b) the conduct alleged to constitute the offence is substantially the 18 same as the conduct alleged to constitute the contravention of the 19 WHS civil penalty provision. 20 (2) However, this does not apply to criminal proceedings in relation to the 21 falsity of the evidence given by the individual in the proceedings for the 22 contravention of the WHS civil penalty provision. 23 Division 8 Civil liability not affected by this Act 24 267 Civil liability not affected by this Act 25 Except as provided in Part 6 and Part 7 and Division 7 of this Part, 26 nothing in this Act is to be construed as: 27 (a) conferring a right of action in civil proceedings in relation to a 28 contravention of a provision of this Act, or 29 (b) conferring a defence to an action in civil proceedings or 30 otherwise affecting a right of action in civil proceedings, or 31 (c) affecting the extent (if any) to which a right of action arises, or 32 civil proceedings may be brought, in relation to breaches of 33 duties or obligations imposed by the regulations. 34 Page 130 Work Health and Safety Bill 2011 Clause 268 General Part 14 Part 14 General 1 Division 1 General provisions 2 268 Offence to give false or misleading information 3 (1) A person must not give information in complying or purportedly 4 complying with this Act that the person knows: 5 (a) to be false or misleading in a material particular, or 6 (b) omits any matter or thing without which the information is 7 misleading. 8 Maximum penalty: 9 (a) in the case of an individual--$10,000, or 10 (b) in the case of a body corporate--$50,000. 11 (2) A person must not produce a document in complying or purportedly 12 complying with this Act that the person knows to be false or misleading 13 in a material particular without: 14 (a) indicating the respect in which it is false or misleading and, if 15 practicable, providing correct information, or 16 (b) accompanying the document with a written statement signed by 17 the person or, in the case of a body corporate, by a competent 18 officer of the body corporate: 19 (i) stating that the document is, to the knowledge of the 20 firstmentioned person, false or misleading in a material 21 particular, and 22 (ii) setting out, or referring to, the material particular in which 23 the document is, to the knowledge of the firstmentioned 24 person, false or misleading. 25 Maximum penalty: 26 (a) in the case of an individual--$10,000, or 27 (b) in the case of a body corporate--$50,000. 28 (3) Subsection (2) places an evidential burden on the accused to show that 29 the accused had indicated the extent to which the document was false or 30 misleading or that the accompanying document sufficiently explained 31 the extent to which the document was false or misleading. 32 269 Act does not affect legal professional privilege 33 Nothing in this Act requires a person to produce a document that would 34 disclose information, or otherwise provide information, that is the 35 subject of legal professional privilege. 36 Page 131 Clause 270 Work Health and Safety Bill 2011 Part 14 General 270 Immunity from liability 1 (1) An inspector, or other person engaged in the administration of this Act, 2 incurs no civil liability for an act or omission done or omitted to be done 3 in good faith and in the execution or purported execution of powers and 4 functions under this Act. 5 (2) A civil liability that would, but for subsection (1), attach to a person, 6 attaches instead to the State. 7 271 Confidentiality of information 8 (1) This section applies if a person obtains information or gains access to a 9 document in exercising any power or function under this Act (other than 10 under Part 7). 11 (2) The person must not do any of the following: 12 (a) disclose to anyone else: 13 (i) the information, or 14 (ii) the contents of or information contained in the document, 15 (b) give access to the document to anyone else, 16 (c) use the information or document for any purpose. 17 Maximum penalty: 18 (a) in the case of an individual--$10,000, or 19 (b) in the case of a body corporate--$50,000. 20 (3) Subsection (2) does not apply to the disclosure of information, or the 21 giving of access to a document or the use of information or a document: 22 (a) about a person, with the person's consent, or 23 (b) that is necessary for the exercise of a power or function under this 24 Act, or 25 (c) that is made or given by the regulator or a person authorised by 26 the regulator if the regulator reasonably believes the disclosure, 27 access or use: 28 (i) is necessary for administering, or monitoring or enforcing 29 compliance with, this Act, or 30 (ii) is necessary for the administration or enforcement of 31 another Act prescribed by the regulations, or 32 (iii) is necessary for the administration or enforcement of 33 another Act or law, if the disclosure, access or use is 34 necessary to lessen or prevent a serious risk to public 35 health or safety, or 36 (iv) is necessary for the recognition of authorisations under a 37 corresponding WHS law, or 38 Page 132 Work Health and Safety Bill 2011 Clause 272 General Part 14 (v) is required for the exercise of a power or function under a 1 corresponding WHS law, or 2 (d) that is required by any court, tribunal, authority or person having 3 lawful authority to require the production of documents or the 4 answering of questions, or 5 (e) that is required or authorised under a law, or 6 (f) to a Minister. 7 (4) A person must not intentionally disclose to another person the name of 8 an individual who has made a complaint in relation to that other person 9 unless: 10 (a) the disclosure is made with the consent of the complainant, or 11 (b) the disclosure is required under a law. 12 Maximum penalty: 13 (a) in the case of an individual--$10,000, or 14 (b) in the case of a body corporate--$50,000. 15 272 No contracting out 16 A term of any agreement or contract that purports to exclude, limit or 17 modify the operation of this Act or any duty owed under this Act or to 18 transfer to another person any duty owed under this Act is void. 19 273 Person not to levy workers 20 A person conducting a business or undertaking must not impose a levy 21 or charge on a worker, or permit a levy or charge to be imposed on a 22 worker, for anything done, or provided, in relation to work health and 23 safety. 24 Maximum penalty: 25 (a) in the case of an individual--$5,000, or 26 (b) in the case of a body corporate--$25,000. 27 Division 2 Codes of practice 28 274 Approved codes of practice 29 (1) The Minister may approve a code of practice for the purposes of this Act 30 and may vary or revoke an approved code of practice. 31 (2) The Minister may only approve, vary or revoke a code of practice under 32 subsection (1) if that code of practice, variation or revocation was 33 developed by a process that involved consultation between: 34 Page 133 Clause 275 Work Health and Safety Bill 2011 Part 14 General (a) the Governments of the Commonwealth and each State and 1 Territory, and 2 (b) unions, and 3 (c) employer organisations. 4 (3) A code of practice may apply, adopt or incorporate any matter contained 5 in a document formulated, issued or published by a person or body 6 whether: 7 (a) with or without modification, or 8 (b) as in force at a particular time or from time to time. 9 (4) An approval of a code of practice, or a variation or revocation of an 10 approved code of practice, takes effect when notice of it is published in 11 the Gazette or on such later date as is specified in the approval, variation 12 or revocation. 13 (5) As soon as practicable after approving a code of practice, or varying or 14 revoking an approved code of practice, the Minister must ensure that 15 notice of the approval, variation or revocation is published in the 16 Gazette and a newspaper circulating generally throughout the State. 17 (6) The regulator must ensure that a copy of: 18 (a) each code of practice that is currently approved, and 19 (b) each document applied, adopted or incorporated (to any extent) 20 by an approved code of practice, 21 is available for inspection by members of the public without charge at 22 the office of the regulator during normal business hours. 23 275 Use of codes of practice in proceedings 24 (1) This section applies in a proceeding for an offence against this Act. 25 (2) An approved code of practice is admissible in the proceeding as 26 evidence of whether or not a duty or obligation under this Act has been 27 complied with. 28 (3) The court may: 29 (a) have regard to the code as evidence of what is known about a 30 hazard or risk, risk assessment or risk control to which the code 31 relates, and 32 (b) rely on the code in determining what is reasonably practicable in 33 the circumstances to which the code relates. 34 Note. See section 18 for the meaning of reasonably practicable. 35 Page 134 Work Health and Safety Bill 2011 Clause 276 General Part 14 (4) Nothing in this section prevents a person from introducing evidence of 1 compliance with this Act in a manner that is different from the code but 2 provides a standard of work health and safety that is equivalent to or 3 higher than the standard required in the code. 4 Division 3 Regulation-making powers 5 276 Regulation-making powers 6 (1) The Governor may make regulations in relation to: 7 (a) any matter relating to work health and safety, and 8 (b) any matter or thing required or permitted by this Act to be 9 prescribed or that is necessary or convenient to be prescribed to 10 give effect to this Act. 11 (2) Without limiting subsection (1), the regulations may make provision for 12 or in relation to matters set out in Schedule 3. 13 (3) The regulations may: 14 (a) be of general or limited application, or 15 (b) differ according to differences in time, place or circumstance, or 16 (c) leave any matter or thing to be, from time to time, determined, 17 applied or approved by the regulator, an inspector or any other 18 prescribed person or body of persons, or 19 (d) apply, adopt or incorporate any matter contained in any 20 document formulated, issued or published by a person or body 21 whether: 22 (i) with or without modification, or 23 (ii) as in force at a particular time or as in force or remade from 24 time to time, or 25 (e) prescribe exemptions from complying with any of the regulations 26 on the terms and conditions (if any) prescribed, or 27 (f) allow the regulator to provide exemptions from complying with 28 any of the regulations on the terms and conditions (if any) 29 prescribed or, if the regulations allow, on the terms and 30 conditions (if any) determined by the regulator, or 31 (g) prescribe fees for doing any act or providing any service for the 32 purposes of this Act and prescribe the circumstances and way in 33 which fees can be refunded, waived or reduced, or 34 (h) prescribe a penalty for any contravention of the regulations not 35 exceeding $30,000. 36 Page 135 Clause 276A Work Health and Safety Bill 2011 Part 14 General Division 3A Miscellaneous 1 276A Application of Act to mining workplaces and coal workplaces-- 2 references to regulator 3 The regulations may provide that a reference in any provision of this 4 Act to the regulator, or to an officer of the regulator, in connection with 5 the application of the provision to a mining workplace or a coal 6 workplace, is taken to be or include a reference to a specified 7 government department or agency, or an officer of a government 8 department or agency, exercising functions in connection with the 9 administration of the Mine Health and Safety Act 2004, the Petroleum 10 (Onshore) Act 1991, the Petroleum (Offshore) Act 1982 or the Coal 11 Mine Health and Safety Act 2002, or a reference to the Minister 12 administering any of those Acts. 13 276B Review of Act 14 (1) The Minister is to review this Act to determine whether the policy 15 objectives of the Act remain valid and whether the terms of the Act 16 remain appropriate for securing those objectives. 17 (2) The review is to be undertaken as soon as possible after the period of 18 5 years from the date of assent to this Act. 19 (3) A report on the outcome of the review is to be tabled in each House of 20 Parliament within 12 months after the end of the period of 5 years. 21 276C Repeals 22 The following are repealed: 23 Occupational Health and Safety Act 2000 24 Occupational Health and Safety Regulation 2001 25 Page 136 Work Health and Safety Bill 2011 Application of Act to dangerous goods and high risk plant Schedule 1 Schedule 1 Application of Act to dangerous goods 1 and high risk plant 2 1 This Act applies to the storage and handling of dangerous goods even if 3 the dangerous goods are not at a workplace or for use in carrying out 4 work. 5 2 For the purposes of clause 1: 6 (a) a reference in this Act to carrying out work includes a reference 7 to the storage or handling of dangerous goods, and 8 (b) a reference in this Act to a workplace includes a reference to the 9 premises at or in which the dangerous goods are stored or 10 handled, and 11 (c) a reference in this Act to work health and safety (however 12 expressed) includes a reference to public health and safety. 13 3 This Act applies to the operation or use of high risk plant, affecting 14 public safety, even if the plant is not situated, operated or used at a 15 workplace or for use in carrying out work. 16 4 For the purposes of clause 3: 17 (a) a reference in this Act to carrying out work includes a reference 18 to the operation and use of high risk plant affecting public safety, 19 and 20 (b) a reference in this Act to a workplace includes a reference to any 21 high risk plant affecting public safety and the premises at or in 22 which the plant is situated or used, and 23 (c) a reference in this Act to work health and safety (however 24 expressed) includes a reference to public health and safety. 25 5 The operation of this Schedule is subject to any exclusions or 26 modifications prescribed by the regulations. 27 6 In this Schedule: 28 dangerous goods means anything prescribed as dangerous goods. 29 high risk plant means plant prescribed as high risk plant. 30 Page 137 Work Health and Safety Bill 2011 Schedule 2 The regulator and local tripartite consultation arrangements and other local arrangements Schedule 2 The regulator and local tripartite 1 consultation arrangements and other 2 local arrangements 3 ***** Note. Not required in NSW. 4 Page 138 Work Health and Safety Bill 2011 Regulation-making powers Schedule 3 Schedule 3 Regulation-making powers 1 1 Duties 2 (1) Matters relating to the way in which duties imposed by this Act are to 3 be performed. 4 (2) Matters relating to the regulation or prohibition of specified activities or 5 a specified class of activities: 6 (a) at workplaces or a specified class of workplaces, or 7 (b) by a specified class of persons on whom duties or obligations are 8 imposed by this Act, 9 to eliminate or minimise risks to health and safety. 10 (3) Imposing duties on persons in relation to any matter provided for under 11 the regulations. 12 2 Incidents 13 Matters relating to incidents at workplaces including: 14 (a) regulating or requiring the taking of any action to avoid an 15 incident at a workplace or in the course of conducting a business 16 or undertaking, and 17 (b) regulating, requiring or prohibiting the taking of any action in the 18 event of an incident at a workplace or in the conduct of a business 19 or undertaking. 20 3 Plant, substances or structures 21 Matters relating to plant, substances or structures, including: 22 (a) regulating the storage and handling of plant, substances and 23 structures, and 24 (b) regulating or requiring: 25 (i) the examination, testing, labelling, maintenance or repair 26 of plant and structures, or 27 (ii) the examination, testing, analysis or labelling of any 28 substance. 29 4 Protection and welfare of workers 30 Matters relating to the protection and welfare of workers including: 31 (a) regulating or requiring the provision and use of protective 32 clothing or equipment, or rescue equipment, in specified 33 circumstances, and 34 Page 139 Work Health and Safety Bill 2011 Schedule 3 Regulation-making powers (b) regulating or requiring the provision of specified facilities for the 1 welfare of workers at the workplace, and 2 (c) matters relating to health and safety in relation to accommodation 3 provided to workers. 4 5 Hazards and risks 5 Matters relating to hazards and risks including: 6 (a) the prescribing of standards relating to the use of or exposure to 7 any physical, biological, chemical or psychological hazard, and 8 (b) matters relating to safety cases, safety management plans and 9 safety management systems (however described), and 10 (c) matters relating to measures to control risks. 11 6 Records and notices 12 (1) The keeping and availability of records of health and safety 13 representatives and deputy health and safety representatives. 14 (2) The keeping of records in relation to incidents. 15 (3) The keeping of records of specified activities, matters or things to be 16 kept by specified persons. 17 (4) The giving of notice of or information about specified activities, matters 18 or things to the regulator, an inspector or other specified person. 19 7 Authorisations 20 (1) Matters relating to authorisations (including licences, registrations and 21 permits) and qualifications, and experience for the purposes of Part 4 or 22 the regulations including providing for: 23 (a) applications for the grant, issue, renewal, variation, suspension 24 and cancellation of authorisations, including the minimum age to 25 be eligible for an authorisation, and 26 (b) the evidence and information to be provided in relation to 27 applications including the provision of statutory declarations, and 28 (c) exemptions, and 29 (d) variations of authorisations by the regulator whether on 30 application or otherwise, and 31 (e) authorisation of persons as trainers and assessors, and 32 (f) examination of applicants for authorisations, and 33 (g) conditions of authorisations, and 34 (h) fees for applications for the grant, issue, renewal and variation of 35 authorisations. 36 Page 140 Work Health and Safety Bill 2011 Regulation-making powers Schedule 3 (2) The recognition of authorisations under corresponding WHS laws and 1 exceptions to recognition. 2 (3) The sharing of information with corresponding regulators relating to the 3 grant, issue, renewal, variation, suspension or cancellation of 4 authorisations. 5 8 Work groups 6 Matters relating to work groups and variation of work groups and 7 agreements or variations of agreements relating to the determination of 8 work groups. 9 9 Health and safety committees and health and safety representatives 10 Matters relating to health and safety committees and health and safety 11 representatives. 12 10 Issue resolution 13 Matters relating to issue resolution including: 14 (a) the minimum requirements for an agreed procedure for resolving 15 an issue, and 16 (b) the requirements for a default issue resolution procedure where 17 there is no agreed procedure. 18 11 WHS entry permits 19 Matters relating to WHS entry permits, including providing for: 20 (a) eligibility for WHS entry permits, and 21 (b) procedures for applications for WHS entry permits and 22 objections to applications for WHS entry permits, and 23 (c) conditions of WHS entry permits, and 24 (d) the form of WHS entry permits, and 25 (e) requirements for training, and 26 (f) records of WHS entry permits. 27 12 Identity cards 28 Matters relating to identity cards. 29 13 Forfeiture 30 Matters relating to: 31 (a) costs of forfeiture and disposal of forfeited things, and 32 (b) disposal of seized things and forfeited things. 33 Page 141 Work Health and Safety Bill 2011 Schedule 3 Regulation-making powers 14 Review of decisions 1 Matters relating to the review of decisions under the regulations 2 including: 3 (a) prescribing decisions as reviewable decisions for the purposes of 4 Part 12 or for the purposes of the regulations, and 5 (b) prescribing procedures for internal and external review of 6 decisions under the regulations, and 7 (c) conferring jurisdiction on the Local Court or the Industrial 8 Relations Commission to conduct reviews under the regulations. 9 Page 142 Work Health and Safety Bill 2011 Savings, transitional and other provisions Schedule 4 Schedule 4 Savings, transitional and other 1 provisions 2 Part 1 General 3 1 Regulations 4 (1) The regulations may contain provisions of a savings or transitional 5 nature consequent on the enactment of the following Acts: 6 this Act 7 (2) Any such provision may, if the regulations so provide, take effect from 8 the date of assent to the Act concerned or a later date. 9 (3) To the extent to which any such provision takes effect from a date that 10 is earlier than the date of its publication on the NSW legislation website, 11 the provision does not operate so as: 12 (a) to affect, in a manner prejudicial to any person (other than the 13 State or an authority of the State), the rights of that person 14 existing before the date of its publication, or 15 (b) to impose liabilities on any person (other than the State or an 16 authority of the State) in respect of anything done or omitted to 17 be done before the date of its publication. 18 Part 2 Provision consequent on enactment of this Act 19 2 Definition 20 In this Part: 21 OHS Act means the Occupational Health and Safety Act 2000. 22 3 Industry codes of practice 23 An industry code of practice approved and in force under Part 4 of the 24 OHS Act immediately before the repeal of that Act is taken to be an 25 approved code of practice under Part 14 of this Act. 26 4 Improvement or prohibition notices 27 (1) An improvement notice or provisional improvement notice may be 28 issued under this Act in relation to a contravention of the OHS Act or 29 the regulations under the OHS Act that occurred before the 30 commencement of this Act. 31 (2) An improvement notice or prohibition notice issued under the OHS Act 32 and in force on the commencement of this Act is taken to be an 33 improvement notice or prohibition notice issued under this Act. 34 Page 143 Work Health and Safety Bill 2011 Schedule 4 Savings, transitional and other provisions (3) Any appeal, review or other proceeding pending under the OHS Act in 1 relation to an improvement notice or prohibition notice issued under the 2 OHS Act is taken to be a proceeding pending under the corresponding 3 provision of this Act. 4 5 Inspectors 5 (1) A person appointed as an inspector under the OHS Act and holding 6 office on the repeal of the OHS Act is taken to be appointed as an 7 inspector under this Act, subject to the regulations under this Schedule. 8 (2) An identification card issued to the inspector under the OHS Act is 9 taken to be an identity card issued under this Act until its replacement 10 under this Act, and may be used by the inspector even though it refers 11 to provisions of the OHS Act. 12 6 Investigative powers and related matters 13 Part 9 (Securing compliance) extends to the exercise of powers in 14 connection with the OHS Act or a regulation under the OHS Act in 15 relation to offences committed against the OHS Act or the regulation 16 before its repeal or in relation to any other matter that continues to have 17 any force or effect (except as provided by or under this Schedule). 18 7 Criminal and other proceedings for offences under OHS Act 19 (1) Part 13 (Legal proceedings) extends (subject to this clause) to 20 proceedings in connection with the OHS Act in relation to offences 21 committed against the OHS Act before its repeal or in relation to any 22 related matter that continues to have force or effect. 23 (2) This clause applies whether any such proceedings are pending on the 24 repeal of the OHS Act or whether the proceedings are instituted after 25 that repeal. 26 (3) Part 13 applies with such modifications as are prescribed by the 27 regulations or as are necessary for the purposes of applying that Part to 28 any such proceedings. 29 8 Sentencing guidelines 30 A guideline judgement given under Division 4 of Part 7 of the OHS Act 31 and in force immediately before the repeal of that Division is taken to 32 be a guideline judgement given under Division 2A of Part 13 of this Act. 33 9 Existing notices, exemptions etc 34 A notice, direction, order, requirement or exemption that: 35 (a) is given, issued or made under the OHS Act, and 36 Page 144 Work Health and Safety Bill 2011 Savings, transitional and other provisions Schedule 4 (b) is in force on the repeal of the OHS Act, 1 has effect for the purposes of any corresponding provision of or made 2 under this Act, unless this Act or the regulations otherwise provide. 3 10 General saving 4 Anything done under the OHS Act or a provision of the OHS Act that 5 has any force or effect immediately before its repeal is taken to have 6 been done under the corresponding provision of this Act, subject to any 7 express or implied provision to the contrary in this Act or the 8 regulations made under this Act. 9 Page 145 Work Health and Safety Bill 2011 Schedule 5 Amendment of other legislation Schedule 5 Amendment of other legislation 1 5.1 Criminal Procedure Regulation 2010 2 Clause 103 Offences not within jurisdiction of District Court 3 Insert ", and section 31 of the Work Health and Safety Act 2011," after "Crimes 4 Act 1900". 5 5.2 Fines Act 1996 No 99 6 Schedule 1 Statutory provisions under which penalty notices issued 7 Omit "Occupational Health and Safety Act 2000, section 108". 8 Page 146

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