++ AUDAX : AT: FIDELIS +} Queensland Work Health and Safety Bill 2011 Queensland Work Health and Safety Bill 2011 Contents Part 1 Division 1 Division 2 Division 3 Subdivision 1Subdivision 2 oMWAN DH Division 4 Part 2 Division 1 Subdivision 1 Page Preliminary Introduction Short title 0.0... eee 28 Commencement... .......... 0.00 cece ee eee eee 28 Object Object... 0... cece 28 Interpretation Definitions Definitions... 0.0... 0.2 eee eee 30 Other important terms Meaning of person conducting a business or undertaking. ..... 30 Meaning of supply ............... 02 e cece 31 Meaning of worker .........0. 0.000 cee eee eee eee eee 32 Meaning of workplace ............00 0.00. cece eee eee 32 Section number not used. .... 0.2... . eee eee ee eee 33 Application of Act Act binds all persons ......... 0.00.0 c eee cece eee 33 Section number not used...... 2.0.25... eee eee eee 33 Scope: application of Act to particular matters............... 33 Health and safety duties Introductory Principles that apply to duties Principles that apply to duties.............. 0.0.00... ee eee 34 Duties not transferrable ............0... 0.00 e eee eee 34 Person may have more than 1 duty ...............-...5.05- 34 More than 1 person can have a duty ..............--.0000- 34 Management of risks ... 0.0.2.0... eee cece 35 Work Health and Safety Bill 2011 Contents Subdivision 2 Division 2 Division 3 2325 Division 4Division 5 33A Part 3 Page 2 What is reasonably practicable What is reasonably practicable in ensuring health and safety . . . Primary duty of care Primary duty of care... 6.2... eee eee Further duties of persons conducting businesses or undertakings Duty of persons conducting businesses or undertakings involving management or control of workplaces.............. Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces .... 0... 0.0.0 cee eee Duties of persons conducting businesses or undertakings that design plant, substances or structures..................... Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures................ Duties of persons conducting businesses or undertakings that import plant, substances or structures................0.... Duties of persons conducting businesses or undertakings that supply plant, substances or structures..................... Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures ........... Duty of officers, workers and other persons Duty of officers... 6... eee eee Duties of workers 1.2.0... eee eee Duties of other persons at the workplace..................- Offences and penalties Health and safety duty ........... 0.0... eee eee eee eee Reckless conduct—category 1.....................0.000. Failure to comply with health and safety duty—category 2 ..... Failure to comply with health and safety duty—category 3 ..... Duty prevails over particular excuses. ..................... Exceptions ....... 0.0.0.0... cee eee ee Incident notification What is a notifiable incident ...................00...0000. What is a serious injury or illness.................. 00.000. What is a dangerous incident........................000. Duty to notify of notifiable incidents ....................... Duty to preserve incident sites................0......00.0. 49505152 5354 Part 4 Part 5 Division 1 Division 2 Division 3 Subdivision 1Subdivision 2Subdivision 358 Subdivision 46163 Work Health and Safety Bill 2011 Authorisations Meaning of authorised ........... 00.0.0 Requirements for authorisation of workplaces............. Requirements for authorisation of plant or substance ....... Requirements for authorisation of work ................-- Requirements for prescribed qualifications or experience ... . Requirement to comply with conditions of authorisation .... . Consultation, representation and participation Consultation, cooperation and coordination between duty holders Duty to consult with other duty holders .................. Consultation with workers Duty to consult workers ............... 0.000.000 000005 Nature of consultation ........... 0000... cee eee ee eee When consultation is required ...................2.000. Health and safety representatives Request for election of health and safety representatives Request for election of health and safety representative .... . Determination of work groups Determination of work groups .............00 eee eee eee Negotiations for agreement for work group ............... Notice to workers... 0.2.0... cece cee eee Failure of negotiations .............. 0.0... e ee eee eee eee Multiple-business work groups Determination of work groups of multiple businesses ....... Negotiation of agreement for work groups of multiple businesseS eect tee tee ee Notice to workers ......... 00.00.00 cece eee eee eee Withdrawal from negotiations or agreement involving multiple BUSINESSES .. 1... tee Effect of subdivision on other arrangements .............. Election of health and safety representatives Eligibility to be elected ................ 0.0.0.0 .0..000. Procedure for election of health and safety representatives. . . Eligibility to vote... 0... 2.2 eee eee When election not required ...................0....00. Term of office of health and safety representative .......... Contents . 56 .e 56 . 57 .e 5758 .e 59 . 59 .e 59 .e 60 -: 61 . 61 .: 62 . 63 -: 63 -: 64 -: 64 . 65 . 66 . 66 Work Health and Safety Bill 2011 Contents Subdivision 4A 67A 67B 67C 67D 67E 67F Subdivision 5 Subdivision 67274 Division 47678Division 581Division 684 Page 4 Disqualification of health and safety representatives .......... Immunity of health and safety representatives............... Deputy health and safety representatives .................. Disqualification process Definition for subdivision. ............... 000: e cece eee eee Application of subdivision............ 0.0.0 cee Decision on application may be given on the papers or ata hearing kee eee eee Applications decided on the papers....................0.. Applications decided ata hearing .....................0.. Notice of decision... . 2.0.0.0... eee eee Powers and functions of health and safety representatives Powers and functions of health and safety representatives ..... Powers and functions generally limited to the particular work QOUD eee eee eee Obligations of person conducting business or undertaking to health and safety representatives General obligations of person conducting business or undertaking —-— iw ee eee eee Exceptions from obligations under s 70(1).................. Obligation to train health and safety representatives .......... Obligation to share costs if multiple businesses or undertakings. List of health and safety representatives ................... Health and safety committees Health and safety committees ...................0-.00000. Constitution of committee............... 0c eee eee Functions of committee ............0 00... eee eee eee Meetings of committee... 1.2.0... eee Duties of person conducting business or undertaking......... Issue resolution Parties to ANiSSUC .. 1... ee ee Resolution of health and safety issues..................... Referral of issue to regulator for resolution by inspector ....... Right to cease or direct cessation of unsafe work Definition of cease work under this division................. Right of worker to cease unsafe work ..............-..-040- 6970 7172 778081828486 8789 Division 79193 959799101 Division 8 Part 6 Division 1 105107 109 Division 2111 Work Health and Safety Bill 2011 Contents Health and safety representative may direct that unsafe work CCAS eee eee 86 Worker to notify if ceases work............. 0.00 c ee eee eee 87 Alternative work ... 0.0.0.0... 0.002 c eee eee eee eee 87 Continuity of engagement of worker..............--.--.0-- 87 Request to regulator to appoint inspector to assist ........... 88 Provisional improvement notices Provisional improvement notices .....................000. 88 Provisional improvement notice to be in writing.............. 89 Contents of provisional improvement notice................- 89 Provisional improvement notice may give directions to remedy contravention .. 0.0.0.0... 0... 89 Minor changes to provisional improvement notice............ 90 Issue of provisional improvement notice ................... 90 Health and safety representative may cancel notice .......... 90 Display of provisional improvement notice.................. 90 Formal irregularities or defects in notice................0... 91 Offence to contravene a provisional improvement notice....... 91 Request for review of provisional improvement notice......... 91 Regulator to appoint inspector to review notice .............. 92 Decision of inspector on review of provisional improvement notice eee eee eee eee 92 Part not to apply to prisoners and detainees Part does not apply to prisoners and detainees.............. 93 Discriminatory, coercive and misleading conduct Prohibition of discriminatory, coercive or misleading conduct Prohibition of discriminatory conduct.................00005 93 What is discriminatory conduct ............-..0.0e ee eeeee 94 What is a prohibited reason ............ 200 e ee eee eee eee 94 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct.............. 96 Prohibition of coercion or inducement ..............--.005. 96 Misrepresentation. ........ 0.0.0 e cece eee ee 97 Criminal proceedings in relation to discriminatory conduct Proof of discriminatory conduct ............0.....0000e 00 98 Order for compensation or reinstatement................... 98 Work Health and Safety Bill 2011 Contents Division 3Division 4 Part 7 Division 1Division 2 Division 3122 Division 4124126128130 Division 5132134136 Page 6 Civil proceedings in relation to discriminatory or coercive conduct Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct................0.2..00. Procedure for civil actions for discriminatory conduct ......... General General provisions relating to orders...............02.200. Prohibition of multiple actions..................002000 eee Workplace entry by WHS entry permit holders Introductory Definitions... 0.0... 0... cee ee Entry to inquire into suspected contraventions Entry to inquire into suspected contraventions............... Rights that may be exercised while at workplace............. Notice of entry . 0.2... eee eee Entry to inspect employee records or information held by another person... eee Entry to consult and advise workers Entry to consult and advise workers...................00.. Notice of entry . 0.2... eee eee Requirements for WHS entry permit holders Contravening WHS entry permit conditions................. WHS entry permit holder must also hold permit under other law. WHS entry permit to be available for inspection.............. When right may be exercised. ...............0.0.0.00000. Where the right may be exercised .....................0.. Work health and safety requirements................-..--. Residential premises ..............0 00.000 000 0000000085 WHS entry permit holder not required to disclose names of WOKKEPS tet eet WHS entry permits Application for WHS entry permit......................000. Consideration of application.............0...... 00 eee ae Eligibility criteria... ... 0... 2. eee Issue of WHS entry permit...........00..... 0c ee eee ee Conditions on WHS entry permit ..................2...00. Term of WHS entry permit ...................0 00... e eee 101 103106 107107108109110110 138Division 6142 Division 7146 Division 8 Part 8 Division 1Division 2 Part 9 Division 1Division 2 Work Health and Safety Bill 2011 Contents Expiry of WHS entry permit.................00....000 008 110 Application to revoke WHS entry permit.................... 111 Commission must permit WHS entry permit holder to show CAUSE ett 112 Determination of application................00 00... eee eee 113 Dealing with disputes Application for assistance of inspector to resolve dispute ...... 113 Commission may deal with a dispute about a right of entry under this Act.... 0.0.0... cece cece tees 114 Contravening order made to deal with dispute............... 115 Prohibitions Person must not refuse or delay entry of WHS entry permit older cette eee 115 Person must not hinder or obstruct WHS entry permit holder . . . 115 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace. .............--..-.005 116 Misrepresentations about things authorised by this part ....... 116 Unauthorised use or disclosure of information or documents . . . 116 General Return of WHS entry permits...............00.....000005 118 Union to provide information to industrial registrar............ 118 Register of WHS entry permit holders .................0.0-. 119 The regulator Functions of regulator Functions of regulator............ 0.00... c cee eee eee eee 119 Powers of regulator .......... 0.0... e eee eee eee 120 Delegation by regulator ........ 2.0... eee eee eee 120 Powers of regulator to obtain information Powers of regulator to obtain information................... 121 Securing compliance Appointment of inspectors Appointment of inspectors ............ 0.00 cece eee eee eee 122 Identity cards 2.6.0... eee ee 123 Accountability of inspectors ........... 0.00... cee eee eee 123 Suspension and ending of appointment of inspectors ......... 124 Functions and powers of inspectors Functions and powers of inspectors...............--00005- 124 Work Health and Safety Bill 2011 Contents 161 Conditions on inspectors' compliance powers ............... 124 162 Inspectors subject to regulator's directions ................. 125 Division 3 Powers relating to entry Subdivision 1 General powers of entry 163 Powers of entry... 0.2... eee eee 125 164 Notification of entry... 0.00.0... eee eee ee 125 165 General powers on entry .......... 0... c cece eee eee 126 166 Persons assisting inspectors .............0 0.0 cece e eee 127 Subdivision 2 Search warrants 167 Search warrants... 2... eee 127 167A Electronic application ............. 0.0 eee c cece eee eee 128 168 Announcement before entry on warrant.................00. 130 169 Copy of warrant to be given to person with management or control of place... 6... eee eee 131 Subdivision 3 Limitation on entry powers 170 Places used for residential purposes ................0.200. 131 Subdivision 4 Specific powers on entry 171 Power to require production of documents and answers to QuestionS wk ete 132 172 Abrogation of privilege against self-incrimination............. 133 173 Warning to be given... 1... 0... eects 133 174 Powers to copy and retain documents .............-...-.45 134 175 Power to seize evidence etc. .......... 2. cee eee eee eee 134 176 Inspector's power to seize dangerous workplaces and things . . . 135 177 Powers supporting seizure... 1.2.2... eee eee 135 178 Receipt for seized things .................. 00 e cece eee ee 137 179 Forfeiture of seized things ................. 002. e cece eee 137 180 Return of seized things. ............0... 0.0 c eee eee eee ee 138 181 Access to seized things ............ 00. c eee eee eee 139 Division 4 Damage and compensation 182 Damage etc. to be minimised..............-....00-00 eee 139 183 Inspector to give notice of damage..................00000. 139 184 Compensation ........ 0000... cee cece 140 Division 5 Other matters 185 Power to require name and address................--.000- 140 186 Inspector may take affidavits ................00....000005 141 Page 8 Division 6 Part 10 Division 1Division 2Division 3Division 4Division 5Division 6 Work Health and Safety Bill 2011 Contents Inspector at coronial inquests....................0.00000. 142 Offences in relation to inspectors Offence to hinder or obstruct inspector .................... 142 Offence to impersonate inspector..................0020005 142 Offence to assault, threaten or intimidate inspector........... 142 Enforcement measures Improvement notices Issue of improvement notices...............000.... eee eee 143 Contents of improvement notices.................002..00. 143 Compliance with improvement notice...................00. 144 Extension of time for compliance with improvement notices .... 144 Prohibition notices Power to issue prohibition notice ...................0.00.8. 144 Contents of prohibition notice.............0..... 000 eee 145 Compliance with prohibition notice.................00.200. 146 Non-disturbance notices Issue of non-disturbance notice...................00 ee eee 146 Contents of non-disturbance notice ...............2....00. 146 Compliance with non-disturbance notice ................... 147 Issue of subsequent notices.............. 0.0... e eee ee eee 147 General requirements applying to notices Application of division............. 0.00. ce eee eee eee eee 147 Notice to be in writing. ..... 0.6... ccc eee eee 148 Directions in notices... . 2.6... ee eee 148 Recommendations in notice. .......... 0... eee eee eee eee 148 Changes to notice by inspector ..................002.000. 148 Regulator may vary or cancel notice .................0505- 148 Formal irregularities or defects in notice................2.-. 148 Issue and giving of notice................. 0 eee eee eee 149 Display of notice.... 2... ee eee eee 149 Remedial action When regulator may carry out action..................000. 150 Power of the regulator to take other remedial action .......... 150 Costs of remedial or other action................0002.0008 151 Injunctions Application of division... 2.0.00... 0.00 e cece ee eee eee 151 Work Health and Safety Bill 2011 Contents Part 11 Part 12 Division 1Division 2Division 3Division 4 229A 229B 229C 229D 229E 229F Part 13 Division 1Division 2 Page 10 Injunctions for no ncompliance with notices ................. Enforceable undertakings Regulator may accept WHS undertakings.................. Notice of decision and reasons for decision................. When a WHS undertaking is enforceable .................. Compliance with Contravention of WHS undertaking .................00000, WHS undertaking ....................05. Withdrawal or variation of WHS undertaking ................ Proceeding for al leged contravention...................00. Review of decisions Reviewable decisions Which decisions are reviewable..................0....0005 Internal review Application for internal review................00 cee eee eee Internal reviewer Decision of internal reviewer ...............00-.00 eee ee eee Decision on internal review.................0..00.0000005 Stay of reviewable decisions on internal review.............. External review Application for external review ............. 0.00 e eee eee eee Review by commission Decision...... How to start review.......... 0.0.00... 02. c eee eee eee Stay of operation of decision ......... 0.0... eee eee eee Hearing procedures ............ 0.000.000. cee eee ee eee Powers of commi ission on application....................0. Legal proceedings General matters Prosecutions. . . Procedure if prosecution is not brought...................- Limitation period Multiple contrave: for prosecutions ...............0--00008- ntions of health and safety duty provision..... Sentencing for offences Application of this division ...............0 0.0 ee eee eee eee Orders generally 152153153156157159160160 161163 164 237239241Division 3Division 4Division 5246 248 Division 6251253 Division 7255258260262 Work Health and Safety Bill 2011 Contents Adverse publicity orders... 2.6.0.0... cece eee eee eee 164 Orders for restoration... 0.0... 00.0. e eee 165 Work health and safety project orders ..................0.. 166 Release on the giving of a court-ordered WHS undertaking .. . . 166 Injunctions . 2.2.6... ce eet eee 167 Training Orders... 0... cette ee 167 Offence to fail to comply with order ....................00. 167 Division and section number not used..............-..0-5. 168 Offences by bodies corporate Imputing conduct to bodies corporate .................+..- 168 The State, Commonwealth and other States Offences and the State, Commonwealth and other States ..... 168 WHS civil penalty provisions and the State, Commonwealth and other States ..... 0... ce eee 169 Officers. 2... eee eee 170 Responsible agency for the State, Commonwealth or another State eee 170 Public authorities Application to public authorities that are bodies corporate or local governments .......... 00.00.00 e eee eee 172 Proceedings against public authorities..................... 172 Imputing conduct to public authorities ..................... 172 Officer of public authority .................0....00000 200 173 Proceedings against successors to public authorities ......... 173 WHS civil penalty provisions When is a provision a WHS civil penalty provision............ 173 Proceedings for contravention of WHS civil penalty provision... 174 Involvement in contravention treated in same way as actual contravention ........ 0.0.0.0 c eee eee 174 Contravening a civil penalty provision is not an offence........ 175 Civil proceeding rules and procedure to apply............... 175 Proceeding for a contravention of a WHS civil penalty provision. 175 Proceeding may be taken by the regulator or an inspector ..... 175 Limitation period for WHS civil penalty proceedings .......... 176 Recovery of a monetary penalty...............0.....00005 176 Civil double jeopardy ............0. 0... eee 176 Page 11 Work Health and Safety Bill 2011 Contents 264 Criminal proceedings during civil proceedings............... 176 265 Criminal proceedings after civil proceedings ................ 177 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings. ...... 177 Division 8 Civil liability not affected by this Act 267 Civil liability not affected by this Act.....................0. 178 Part 14 General Division 1 General provisions 268 Offence to give false or misleading information.............. 178 269 Act does not affect legal professional privilege .............. 179 270 Immunity from liability... 0.0.0.0... 00.2 eee eee eee 179 271 Confidentiality of information ..............0.....00000005 180 272 No contracting Out ..... 00... ec eee eee ee 181 273 Person not to levy workers. ..... 0.6.00. 00 cece eee eee eee 181 Division 2 Codes of practice 274 Approved codes of practice .............0 00... eee ee eee 182 275 Use of codes of practice in proceedings ................... 183 Division 3 Regulation-making power 276 Regulation-making power... .......-.. 0.00 c eee eee eee 184 Part 15 Repeals 277 Repeal of Workplace Health and Safety Act 1995............ 185 278 Repeal of Dangerous Goods Safety Management Act 2001.... 185 Part 16 Transitional provisions Division 1 Provisions for the repeal of the Workplace Health and Safety Act 1995 Subdivision 1 Preliminary 279 Definitions for div1........0... 0000s 185 Subdivision 2 Proceedings 280 Application of this Act and repealed Act in relation to particular PrOViSIONS ... 6... eee tet ee 186 281 Application of this Act and repealed Act in relation to other particular provisions... ...... 0.0... eee eee eee eee 186 282 Investigations and proceedings generally .................. 188 Subdivision 3 Status of persons, bodies, processes and other matters 283 Principal contractor. .... 0.6.0... eee ee eee 188 284 Code of practice preserved .............00. 0... c eee eee 189 285 Enforceable undertaking .................. 00 eee eee 189 Page 12 287 290 292294296Division 2 299 302304306 Division 3 Part 17 Division 1 309 Division 2 Work Health and Safety Bill 2011 Contents Appointment to particular board and committee preserved ..... 191 Election of workplace health and safety representative Preserved cette eee 192 Training requirements for workplace health and safety representative 6. eee eee 192 Provisional improvement notices preserved................. 193 Suspension or cancellation relating to workplace health and safety representative preserved...............002. 0. cee 193 Workplace health and safety committee preserved........... 194 Appointment of authorised representative preserved.......... 195 Appointment of inspector ............ 0000... cee eee eee 195 Warrants and actions by inspectors preserved .............. 196 Improvement notice preserved. ............-.0 0c cece eee 196 Prohibition notice preserved. ........... 00.0 c cece eee eee 197 Appeals .... 60... eect eee 197 Provisions for repeal of Dangerous Goods Safety Management Act 2001 Definitions for pt 15, div2......... 0.0.0... c eee eee eee 197 Application of this Act and repealed Act in relation to particular PrOViSIONS ... 6... eee tet ee 198 Application of this Act and repealed Act in relation to other particular provisions... ...... 0.0... eee eee eee eee 198 Investigations and proceedings generally .................. 199 Directive by authorised officer preserved................... 200 Warrants and actions by authorised officer preserved......... 201 Cost recovery notice. ...... 2... eee 201 Appeals .... 60... ect tte eens 202 Regulation-making power for major hazard facility............ 202 Other transitional provisions Power to make subordinate legislation unaffected by direct amendment by Act. ..... 06... c cece eee eee tenes 202 Amendment of asbestos definition Amendment of Coal Mining Safety and Health RegulationRegulation amended .............. 00sec cece 203 Amendment of sch 9 (Dictionary)...............0....0005. 203 Amendment of Public Health Regulation 2005 Regulation amended .............. 00sec cece 204 Work Health and Safety Bill 2011 Contents Division 3 313 Division 4315 Division 5 317 Part 18 Division 1 Subdivision 1 319321323 Subdivision 2 326 Subdivision 3329 Page 14 Amendment of s 2B (Definitions for div 1) .................. Amendment of Mining and Quarrying Safety and Health Regulation 2001 Regulation amended ............. 0.0.0.0. 0.00 c ee eee ee Amendment of sch 7 (Dictionary)..................2-00005 Amendment of Workplace Health and Safety Act 1995 Actamended ......... 0.0 c ce cee cece eee Amendment of sch 3 (Dictionary)... ..............2.....00. Amendment of Workplace Health and Safety Regulation Regulation amended ............... 0.000.000 cee eee eee Replacement of sch 9, s 1 (Amosite, crocidolite, fibrous anthophyllite, tremolite or actinolite)................. Amendment of other legislation relating to safety Building and construction work levy amendments Building and Construction Industry (Portable Long Service Leave) Act 1991 Actamended ......... 2.0 c cece cette eee Amendment of s 3A (Who is an eligible worker).............. Amendment of s 32 (Funds of authority) ................... (Imposition of levies) .................. Amendment of s 72 (Rate of levy) ...........-...--00-00 00s Amendment of s 66 Amendment of sch (Dictionary) ...............0-.002-0 eee Insertion of new pt 11, div7.......... 0... eee eee eee Division 7 Transitional provisions for Work Health and Safety Act 2011 124 Liability to pay fee under regulation preserved. .... . Building and Construction Industry (Portable Long Service Leave) Regulation 2002 Regulation amended ............. 00.0000. 0.0. e eee eee Amendment of s 6 (Building and construction work for which no levy is payable—Act, s 70(2)).... 0.0.2... 2 eee eee eee eee Amendment of s 7 (Prescribed percentage for levy—Act, s 72). . Workplace Health and Safety Regulation 2008 Regulation amended ............. 00.0000. 0.0. e eee eee Omission of pt 9 (Notifiable building and construction work) .... Omission of sch 1, item 1 (Notification of building and construction work) ws eee tee eee 205 206 208209209211 212 Division 2332334 340343 Work Health and Safety Bill 2011 Contents Amendment of Electrical Safety Act 2002 Actamended ....... 00... 0c cece eee teen eeeee 212 Amendment of s 3 (Act binds all persons) .................. 212 Amendment of s 5 (How purpose of Act is to be achieved) .... . 212 Amendment of s 10 (Meanings of electrical risk, electrically safe and electrical safety) ... 0.0... 0... cece eee eee eee eee 212 Replacement of ss 14. and 15................02...00 00 eee 213 14 Meaning of electrical equipment. ................ 213 15 Meaning of electrical installation ................ 214 Replacement of s 18 (Meaning of electrical work)............ 215 18 Meaning of electrical work ..................00. 215 Replacement of s 21 (Meaning of employer) ................ 218 21 Meaning of person conducting a business or undertaking — ww eee eee ee 218 Replacement of s 22 (Meaning of worker) .................. 219 22 Meaning of worker ...............0 002 eee sees 219 Omission of s 23 (Meaning of self-employed person) ......... 220 Amendment of pt 2 hdg (Electrical safety obligations)......... 220 Replacement of pt 2, div 1 (Preliminary) ................... 220 Division 1 Introductory Subdivision 1 Principles that apply to duties 26 Principles that apply to duties................... 221 27 Duties not transferable ...............0.....00. 221 27A Person may have more than 1 duty .............. 221 27B More than 1 person can have a duty ............. 221 Subdivision 2 What is reasonably practicable 28 What is reasonably practicable in ensuring electrical Safety eee eee eee 222 Amendment of pt 2, div 2 heading..................-.000- 222 Amendment of s 29 (Obligation of electricity entity)........... 222 Amendment of s 30 (Obligation of employer or self-employed PEFTSON) eee eee 223 Amendment of s 31 (Obligation of designer of electrical equipment) wee ee eee 223 Amendment of s 32 (Obligation of manufacturer of electrical equipment) eee cette teens 224 Amendment of s 33 (Obligation of importer of electrical equipment) eee cette eee eee 224 Work Health and Safety Bill 2011 Contents 348 Replacement of s 34 (Obligation of supplier of electrical equipment) ws eee eee 225 34 Duty of person conducting business or undertaking that supplies electrical equipment ............... 225 349 Amendment of s 35 (Additional obligations of designer, manufacturer, importer or supplier of electrical equipment)... .. 225 350 Amendment of s 36 (Obligation of installer of electrical equipment or electrical installation) ...................000. 226 351 Amendment of s 37 (Obligation of repairer of electrical equipment or electrical installation) ...................000. 226 352 Amendment of s 38 (Obligation of person in control of electrical equipment) .. 0... 0... eee eee 227 353 Insertion of news 388A... 2.2... eee 227 38A Duty of officers... 2.02.00... eee eee 227 354 Replacement of s 39 (Obligation of worker)................. 229 39 Duty of worker ... 0.0.2.0... 00. e cece ee eee 229 355 Replacement of s 40 (Obligation of other person) ............. 230 40 Duty of other person. ..............002..0000 230 356 Amendment of s 40A (Minister may make recall order)........ 230 357 Renumbering of pt 2, div 2A............... 000 ee cece eee ee 230 358 Insertion of new pt 2, div2A............. 0.0 e eee eee eee 231 Division 2A Offences and penalties 40A Electrical safety duty ...............0.....000. 231 40B Reckless conduct—category 1................-. 231 40C Failure to comply with electrical safety duty—category2 we eee eee eee 232 40D Failure to comply with electrical safety duty—category3 ww ee eee eee 232 40E Duty prevails over particular excuses............. 233 40F Exceptions .... 0.2.0... cece eee eee eee ee 233 359 Amendment of pt 2, div3, hdg................ 0c eee eee eee 234 360 Omission of s 41 (Effect of regulation for discharge of electrical safety obligation) .......... 0.0... eee eee 234 361 Amendment of s 42 (Ministerial notice about discharging electrical safety obligation).................... 00. eee eee 234 362 Amendment of s 43 (Effect of ministerial notice for discharge of electrical safety obligation)...............0.....00 eee eee 234 363 Amendment of s 44 (Code of practice about discharging electrical safety obligation)...............0.....000 eee ee 235 Page 16 366373375377 Work Health and Safety Bill 2011 Contents Replacement of s 45 (Effect of code of practice for discharge of electrical safety obligation)................. 0... e eee eee ee 45 Use of code of practice in proceedings ........... Omission of pt 2, div 4 (Defences).................00.200. Omission of pt 2, div 5 (Effect of Act on civil liability).......... Replacement of pt 3 (Enforceable undertakings)............. Part 3 Enforceable undertakings 49 Regulator may accept an electrical safety undertaking —-—_—iww se eee eee eee eee 50 Notice of decision and reasons for decision. ....... 51 When an electrical safety undertaking is enforceable 52 Compliance with an electrical safety undertaking .. . 53 Contravention of an electrical safety undertaking. . . . 54 Withdrawal or variation of electrical safety undertaking —_—iw se ee eee eee 54A Proceeding for alleged contravention............. Amendment of s 57AA (Employer or self-employed person must ensure workers are appropriately licensed) ................. Amendment of s 57AB (Employers or self-employed persons must keep register of licensed workers)............-..-..-- Amendment of s 57AC (Licence holder engaged by employer or self-employed person must notify changes)................. Amendment of s 63 (Electrical licence conditions and restrictions) eee eee ee eee Amendment of s 67 (Obligation of prescribed electricity entity) . . Amendment of s 77 (Composition of board)................. Amendment of s 94 (Functions of equipment committee) ...... Amendment of pt 10, hdg............. 000. e eee eee eee Renumbering of pt 10, div2................00 0.0.00 ee eee Replacement of pt 10, div1.................00.....00005 Division 1 Regulator 122 Functions of regulator.................-.2-000- 122A Powers of regulator ...........-....0 2002s eee 122B Delegation by regulator ....................0.. 122C Power of regulator to obtain information........... Division 2 Appointment of inspectors 123 Appointment of inspectors ..................... 123A Identity cards ... 0.2... 2. eee eee 235236237237238 241241241243243 Work Health and Safety Bill 2011 Contents Page 18 125127 Accountability of inspectors .................... Suspension and ending of appointment of inspectors Appointment of temporary inspector ............. Exercise of powers by temporary inspector........ Insertion of new section 136B ............... 0.00 eee ee eee 136B Offence to impersonate accredited auditor......... Replacement of pt11......... 0.0... eee eee eee Part 11 Division 1 137A 137B Division 2 Securing compliance Functions and powers of inspectors Functions and powers of inspectors.............. Conditions on inspectors' compliance powers ...... Inspectors subject to regulator's directions ........ Powers relating to entry Subdivision 1 General powers of entry 138A 138B 138C 138D Powers of entry..... 2.2.00... eee eee eee eee Notification of entry..... 2.0.0.0... 0. eee ee eee General powers on entry ................000005 Persons assisting inspectors ................... Analysis ........ 0.000.000 ce eee eee eee eee Subdivision 2. Search warrants 139A 139B 139C Search warrants... .. 0.00.6... cee eee eee Electronic application......................00. Announcement before entry on warrant........... Copy of warrant to be given to person with management or control of place................. Subdivision 3 Limitation on entry powers Places used for residential purposes ............. Subdivision 4 — Specific powers on entry 141A 141B 141C 141D 141E Power to require production of documents and answers to questions ......................000. Abrogation of privilege against self-incrimination. . . . Warning to be given..................0.0.000. Powers to copy and retain documents ............. Power to seize evidence etc. .................-- Inspector's power to seize unsafe electrical equipment at an entered place.................. 246247248248250252254258259 141F 141G 141H141J 141K 141L 141M Division 3 142A 142B Division 4 Division 5144A 144B Division 6145A 145B Part 11A Division 1146A 146B 146C Division 2Division 3 Work Health and Safety Bill 2011 Contents Inspector's power to seize other unsafe electrical equipment — eee ee 261 Powers supporting seizure................-.0-- 261 Inspector may require thing's return.............. 263 Receipt for seized things ...................0.. 263 Forfeiture of seized things ..................... 264 Return of seized thing .....................00. 265 Returning seized electrical equipment that is not electrically safe... 2.0.2.0... 0. eee eee eee 265 Access to seized things ...............-..0-005 266 Damage and compensation Damage etc. to be minimised................... 267 Inspector to give notice of damage. .............. 267 Compensation ..........0. 0.000 e cece e ee eee 267 Serious electrical incident or dangerous electrical event Power to inquire into serious electrical incident or dangerous electrical event..............-..--5- 268 Other matters Power to require name and address ............. 269 Inspector may take affidavits ................02. 270 Inspector at coronial inquests.................-- 270 Offences in relation to inspectors Offence to hinder or obstruct inspector ........... 270 Offence to impersonate inspector................ 270 Offence to assault, threaten or intimidate inspector. . 271 Enforcement measures Improvement notices Issue of improvement notice..................-- 271 Contents of improvement notice................. 271 Compliance with improvement notice............. 272 Extension of time for compliance with improvement MOtICE eee ee 272 Electrical safety protection notices Electrical safety protection notice................ 273 Unsafe equipment notices Unsafe equipment notice ...................00. 274 Work Health and Safety Bill 2011 Contents 381383 386 Page 20 Division 4 Non-disturbance notices 149 Issue of non-disturbance notice................. 149A Contents of non-disturbance notice .............. 149B Compliance with non-disturbance notice .......... 149C Issue of subsequent notices.................0.. Division 5 General requirements applying to notices 150 Application of division.................002..00. 150A Notice to be in writing..................0--000- 150B Directions in notice. .......... 2.6 e eee eee eee ee 150C Recommendations in notice..................-- 150D Changes to notice by inspector ................. 150E Regulator may vary or cancel notice ............. 150F Formal irregularities or defects in notice........... 150G Issue and giving of notice...................00. 150H Display of notice............. 2... cee eee eee Division 6 Remedial action 151 When regulator may carry out action............. 151A Power of the regulator to take other remedial action . 151B Costs of remedial or other action................ Division 7 Injunctions 152 Application of division.................002..00. 152A Injunctions for noncompliance with notices ........ Division 8 Retail entity to give information 153 Provision of information by retail entity............ Replacement of pt 12, hdg (Reviews and appeals) ........... Replacement of pt 12, div 2 hdg (Reviews of decisions) ....... Amendment of s 170 (Review of decisions)................. Replacement of s 171 (Stay of operation of original decision). . . 171 Stay of reviewable decisions on internal review... . . Replacement of pt 12, div 3 (Appeals).................000. Division 3 External review 172 Application for external review .................. Renumbering of pt 14 (Miscellaneous provisions) ............ Replacement of pt 13, divs 2, 2A and3.................... Division 2 Other matters 186 Prosecutions. ...... 0... 00sec ee eee eee eee 275276 276277277278279280 281282282283 186A 186B 186C Division 3 187A 187B 187C 187D 187E 187F 187G 187H187J Division 4Division 5 189A 189B Division 6 190A 190B 190C 190D Division 7 Part 14 Division 1 Work Health and Safety Bill 2011 Contents Procedure if prosecution is not brought........... 284 Limitation period for prosecutions ............... 285 Multiple contraventions of electrical safety duty ProviSiON cette eee 286 Sentencing for offences Application of this division ..................... 287 Orders generally................ 00.0... eee eee 287 Adverse publicity order.................-.0000- 287 Order for restoration. ............000 00.000 e eee 288 Electrical safety project order................... 288 Release on the giving of a court-ordered electrical safety undertaking ....................00.000. 289 Injunction .. 0.2.6... eee cee ee eee 290 Training order... . 1... 26-00. c ee eee ee eee eee 290 Forfeiture on conviction ...................005. 290 Dealing with forfeited thing..................0.. 290 Offence to fail to comply with order .............. 291 Offences by bodies corporate Imputing conduct to body corporate.............. 291 The State, Commonwealth and other States Offence and the State, Commonwealth and other States eee 292 Officers... 0... ee eee eee 292 Responsible agency for the State, Commonwealth or other State ........ 2... eee 293 Public authorities Application to public authorities that are bodies Corporate kee ee eee 294 Proceedings against public authorities............ 294 Imputing conduct to public authorities ............ 295 Officer of public authority ..................000. 295 Proceedings against successors to public authorities 295 Civil liability not affected by this Act Civil liability not affected by this Act.............. 296 General General provisions Offence to give false or misleading information ... . . 296 Work Health and Safety Bill 2011 Contents 389 Division 3 392396398401 Page 22 192A Act does not affect legal professional privilege ..... 297 192B Immunity from liability. ....................002. 297 193 Confidentiality of information ................... 298 194 No contracting Out ............ 0.00. eee eee 299 195 Person not to levy workers. ............-20-0005 299 Replacement of ss 205-205B ..............00 2... cece eee 299 205 Recovery of fee .. 1.2... 2. eee eee eee ee 300 205A Disciplinary action and offences. ................ 300 Omission of s 207 (Delegation by chief executive)............ 300 Insertion of new pt 20........ 2... cee eee ee 301 Part 20 Transitional provisions for Work Health and Safety Act 2011 247A Definitions for pt 20.................000 0.0008 301 248 Proceedings for offence generally ............... 301 249 Enforceable undertaking preserved.............. 302 250 Appointment of inspector...................... 303 251 Improvement notice preserved................-- 303 252 Warrants and actions by inspector preserved ...... 304 253 Reviews and appeals .............-.02-00 ee eee 305 254 Replacement of chief executive by regulator ....... 305 Amendment of sch 2 (Dictionary)...............0....0005. 306 Amendment of Electrical Safety and Other Legislation Amendment Act 2011 Actamended ........... 0 ccc cece ete tenes 309 Omission of s 4 (Amendment of s 26 (Obligations for electrical Safety)) eee eee 309 Amendment of s 5 (Amendment of s 32 (Obligation of manufacturer of electrical equipment))..................... 309 Amendment of s 6 (Amendment of s 33 (Obligation of importer of electrical equipment))...............0.. 00. eee eee eee 309 Amendment of s 7 (Insertion of news 40AA)................ 310 Amendment of s 8 (Insertion of new pt 2A) ................. 310 Amendment of s 10 (Insertion of new pt 14, div1A) .......... 312 Amendment of s 13 (Amendment of sch 2 (Dictionary)) ....... 312 Amendment of s 15 (Replacement of pt 6 and insertion of new PLGA) eee 312 Amendment of s 19 (Amendment of sch 9 (Dictionary)) ....... 312 Commencement provisions ..............00...0 ce eee eee 312 Division 4Division 5 Part 19 406Schedule 1 Part 1 Part 2 Division 1 Division 2 Work Health and Safety Bill 2011 Contents Amendment of Penalties and Sentences Act 1992 Actamended ........... 00.0. cece eee 313 Amendment of s 5 (Meaning of penalty unit)................ 313 General Amendments in sch 4 (Minor and consequential amendments) . 314 Amendment of Workers' Compensation and Rehabilitation Act 2003 Actamended ....... 00... 0c cece eee teen eeeee 314 Amendment of s 108 (Compensation entitlement)............ 314 Insertion of new ch 3, pt2, div5.............. 0.00. 315 Division 5 Compensation and leave entitlements 119A Compensation entitlement does not restrict taking or accrual of leave ..... 0.02... eee eee eee 315 Insertion of newch 14, pt1A........ eee ee eee eee ee 315 Part 1A Information provisions for building and construction industry 576A Definitions for pt1A ............... 0022. e eee 316 576B Who is the principal contractor for a construction proect eee eee ee eee eee 316 576C Principal contractor may require relevant contractor to give document confirming insurance status...... 317 576D Injury data for construction projects.............. 318 576E Restriction on disclosure by principal contractor of information obtained under this part.............. 319 Insertion of new Ss 584A... 1... cee ee 319 584A Reviews of workers' compensation scheme. ....... 319 Amendment of sch 6 (Dictionary)...............0....0000. 319 Application of Act ............00 00... eee eee eee 321 Dangerous goods and high risk plant Application to storage and handling of dangerous goods ...... 321 Relationship with other Acts Mining safety and related matters Relationship with mining Acts..............-.0-.0 eee eee 324 Relationship with other Acts relating to design or manufacture of Operating plant...... 6.2.0... eee eee eee 325 Electrical safety Relationship with Electrical Safety Act 2002 ................ 326 Work Health and Safety Bill 2011 Contents Division 3 Transport rail safety 5 Relationship with Transport (Rail Safety) Act 2010 ........... 327 Division 4 Other legislation 6 Generally... 0.0.0... eee eee 328 Schedule 2 The regulator and local tripartite consultation arrangements and other local arrangements ...................-..--. 329 Part 1 The regulator 1 Appointment of regulator ............ 0.02... c eee eee eee 329 Part 2 Industry consultative arrangements Division 1 Purposes of part 2 Purposes Of part........ 0.000... ccc eee ee 329 Division 2 The board and its functions 3 Work health and safety board.................002...0000- 330 4 Functions of board ...... 0.00.0... cece eee eee eee 330 5 Annual report... 6.6... ett 331 Division 3 Membership and conduct of board proceedings 6 Membership of board... ......... 0.0... c cee eee eee ee 331 7 Times of board meetings ..............02. 0... c eee eee eee 332 8 Conduct of proceedings .............. 0.0 e cece eee eee 332 9 Disclosure of interests ........... 0.00 e cece eee eee eee 333 10 Minutes... 2.0.0... cee tee 333 Division 4 Provisions about appointed board members 11 Duration of appointment. ..........0... 00. eee eee eee 334 12 Leave of absence...... 0... eee eee 334 13 Conditions of appointment ..............0...... eee eee 334 Division 5 Industry sector standing committees 14 Industry sector standing committees ..................000. 335 15 Functions of industry sector standing committees............ 335 Division 6 Membership and conduct of industry sector standing committee proceedings 16 Membership of industry sector standing committee........... 336 17 Times of industry sector standing committee meetings........ 336 18 Conduct of industry sector standing committee proceedings.... 337 19 Disclosure of interests .......... 0.00... c cee eee eee eee 338 20 Minutes... 2.0.0... cee tee 338 Page 24 Division 7 22Part 3 Schedule 2A Schedule 3 OoOMWOAN DOA FWONM = 1113Schedule 4 Work Health and Safety Bill 2011 Provisions about industry sector standing committee members Duration of appointment. ............... 00. e eee eee Leave of absence... ... 0... cee ee eee Conditions of appointment ...............0....0 00a Self-insurance report Application for report relating to workers' compensation self-insurance ke eee eee Plant, substances or structures ................00000005 Protection and welfare of workers .............--00-000- Hazards and risks. ............0 0000000000002. e eee eee Records and notices..................0.0 000000000002 Authorisations..........0 00.00.0000 0 cece eee eee Work groupS.... 22.2... 2. Health and safety committees and health and safety representatives ws eee Issue resolution .... 6.2... eee tees WHS entry permits............0... 0000 e eee eee eee Identity cards ...... 0.0.0.0. eee Forfeiture 2... 2. eee eee Review of decisions .............. 0000. c cece eee eee Minor and consequential amendments ................ Electrical Safety Act 2002 .................000...0 008 Electrical Safety Regulation 2002 ...................0.. Environmental Protection Act 1994 ..................0-- Environmental Protection (Air) Policy 2008 ............... Environmental Protection (Noise) Policy 2008............. Fire and Rescue Service Act 1990...................05. Industrial Relations Act 1999 .................0 0c eee Mining and Quarrying Safety and Health Act 1999 ......... Petroleum and Gas (Production and Safety) Act 2004....... Petroleum and Gas (Production and Safety) Regulation 2004. . . Petroleum (Submerged Lands) Act 1982................. Contents .. 338 -. 339 .. 339 .. 340 .. 341 .. 350 .. 350 .. 350 .. 350 -. 3651 .. 3651 .. 351 -. 352 .. 352 Work Health and Safety Bill 2011 Contents Schedule 5 Page 26 Right to Information Act 2009............... 000... cece ee Statutory Instruments Act 1992 ..................0022000. Sustainable Planning Act 2009 ..................0022000. Tourism Services (Code of Conduct for Inbound Tour Operators) Regulation 2003... 6.2.2... eee ee Transport Infrastructure Act 1994...............0....0000. Transport (Rail Safety) Act 2010 ................0....000. Vocational Education, Training and Employment Act 2000 ..... Workers' Compensation and Rehabilitation Act 2003 ......... Dictionary 362363367371 A Bill An Act to provide comprehensively for work health and safety, to provide for a new definition of asbestos in particular legislation and for a work health and safety levy, to amend other legislation as a consequence, and to amend the Workers' Compensation and Rehabilitation Act 2003 for particular purposes Work Health and Safety Bill 2011 Part 1 Preliminary [s 1] The Parliament of Queensland enacts— Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Work Health and Safety Act 2011. 2 Commencement This Act, other than part 17, part 18, division 1 and part 19, commences on a day to be fixed by proclamation. Division 2 Object 3 Object Page 28 (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by— (a) (b) (c) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and providing for fair and_ effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons 131618 2023 (2) Work Health and Safety Bill 2011 Part 1 Preliminary [s 3] conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and (d) promoting the provision of advice, information, education and training in relation to work health and safety; and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and (f) ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland. In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable. Note— The numbering of this Act closely corresponds to the same numbering in a model Bill prepared for and approved by the Council of Australian Governments. To maximise uniformity between this Act and the model Bill, the numbers of some sections in the model Bill that are not relevant have not been used in the numbering of this Act, unless required for provisions particular to the State. Adoption of the numbering of the model Bill also results in alphanumeric numbering being used to insert further provisions particular to the State. Page 29 COA NAD NPW NY — So RRR WNe RR Re NADWNSH NNNYYNYEY WNR Oo Co ie) aN WWWNHNNNNHYNY NRF COODNDN Work Health and Safety Bill 2011 Part 1 Preliminary [s 4] Division 3 Interpretation Subdivision 1 Definitions 4 Definitions The dictionary in schedule 5 defines particular words used in this Act. Subdivision 2 Other important terms 5 Meaning of person conducting a business or undertaking d) (2) (3) (4) (5) (6) Page 30 For this Act, a person conducts a business or undertaking— (a) whether the person conducts the business or undertaking alone or with others; and (b) whether or not the business or undertaking is conducted for profit or gain. A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. An elected member of a local government does not in that capacity conduct a business or undertaking. A regulation may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. ak 12 141719 2124 2628 7) (8) Work Health and Safety Bill 2011 Part 1 Preliminary [s 6] A volunteer association does not conduct a business or undertaking for the purposes of this Act. In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. Meaning of supply d) (2) (3) (4) (5) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied. A supply of a thing does not include— (a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or (b) aprescribed supply. A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if— (a) the financier has, in the course of the financier's business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and (b) _ the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer. If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier's customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier's customer. Page 31 NADUNBPW NRE 11 13 16 19 2123 25283032 Work Health and Safety Bill 2011 Part 1 Preliminary [s 7] Page 32 Meaning of worker d) (2) (3) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as— (a) an employee; or (b) acontractor or subcontractor; or (c) anemployee of a contractor or subcontractor; or (d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or (e) an outworker; or (f) an apprentice or trainee; or (g) astudent gaining work experience; or (h) a volunteer; or (i) a person of a prescribed class. For this Act, a police officer is— (a) aworker; and (b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise. The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking. Meaning of workplace d) (2) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. In this section, place includes— (a) a vehicle, vessel, aircraft or other mobile structure; and om NI DN FWHY Le el ee ne oo NYA NN fF WN KF CO Nore laa ome <} NNN WN 2629 Work Health and Safety Bill 2011 Part 1 Preliminary [s 9] (b) any waters and any installation on land, on the bed of any waters or floating on any waters. 9 Section number not used See note to section 3. Division 4 Application of Act 10 Act binds all persons (1) This Act binds all persons including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. (2) The State, the Commonwealth and the other States are liable for an offence against this Act. (3) Without limiting subsection (1), the State, the Commonwealth and the other States are liable for a contravention of a WHS civil penalty provision. 11 Section number not used See note to section 3. 12 Scope: application of Act to particular matters Schedule 1 provides for the application of this Act to— (a) dangerous goods and high risk plant; and (b) matters dealt with under other legislation. Page 33 oman a 11 1316 1820 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 13] Part 2 Health and safety duties Division 1 Introductory Subdivision 1 Principles that apply to duties Page 34 Principles that apply to duties This subdivision sets out the principles that apply to all duties that persons have under this Act. Note— The principles will apply to duties under this part and other parts of this Act including, for example, duties relating to incident notification and consultation. Duties not transferrable A duty can not be transferred to another person. Person may have more than 1 duty A person can have more than 1 duty by virtue of being in more than | class of duty holder. More than 1 person can have a duty (1) More than | person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than 1 person has a duty for the same matter, each person— (a) retains responsibility for the person's duty in relation to the matter; and Pom rn aun 12 15 17 1922 24 (b) Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 17] must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 17 Management of risks A duty imposed on a person to ensure health and safety requires the person— (a) (b) to eliminate risks to health and safety, so far as is reasonably practicable; and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. Subdivision 2 What is reasonably practicable 18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including— (a) (b) the likelihood of the hazard or the risk concerned occurring; and the degree of harm that might result from the hazard or the risk; and what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and Page 35 MABWNR aon a 1216 182023 25 27 29 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 19] (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Division 2 Primary duty of care 19 Primary duty of care d) (2) (3) Page 36 A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of— (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable— (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) | the provision and maintenance of safe systems of work; and (d) the safe use, handling and storage of plant, structures and substances; and ANN W NK 11 13 15 1820 2225 27 29 31 (4) (5) (e) (f) (g) (a) (b) Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 19] the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available; the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Note— A self-employed person is also a person conducting a business or undertaking for the purposes of this section. Page 37 OANDN BPWNe RRR WNrF oO — A RRR NDMN Noe laa ome <} NNNN BWNR NN nun N XN YN \ooo Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 20] Division 3 Further duties of persons Page 38 conducting businesses or undertakings Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include— (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or (b) a prescribed person. (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces (1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include— (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or (b) a prescribed person. Wn OCOWAND WHE 12161821242628 30 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 22] (2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures (1) This section applies to a person (the designer) who conducts a business or undertaking that designs— (2) (a) (b) (c) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or a substance that is to be used, or could reasonably be expected to be used, at a workplace; or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons— (a) (b) (c) (d) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed; or who handle the substance at a workplace; or who store the plant or substance at a workplace; or who construct the structure at a workplace; or who carry out any reasonably foreseeable activity at a workplace in relation to— (i) the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or Page 39 BWNR on an 12 14 1619 2124 2628 30 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 22] Page 40 (3) (4) (5) (f) (iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure; or Example— inspection, operation, cleaning, maintenance or repair of plant who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e). The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning— (a) (b) (c) each purpose for which the plant, substance or structure was designed; and the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity mentioned in subsection (2)(a) to (e). The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e). COAND NV FP WNeK — So RR RR BWNR RRR NDMN eR ow NNNW WNrF oO VNNYNN eCrAIDNMNA WWWWN WNrR OO Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 23] 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures d) (2) This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures— (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons— (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or anufactured; or (b) m who handle the substance at a workplace; or (c) who store the plant or substance at a workplace; or w. w. (d) (e) ho construct the structure at a workplace; or ho carry out any reasonably foreseeable activity at a workplace in relation to— (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or Page 41 OoMm AND NP WNHe ee re oO laoreet end MBWN RRR onan NY Ye -e Oo 0 NN WN NNNN AAAH WNN laaome <) WwW WwW Ww WN Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 24] (3) (4) (5) Example— inspection, operation, cleaning, maintenance or repair of plant (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e). The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning— (a) each purpose for which the plant, substance or structure was designed or manufactured; and (b) the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e). The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e). 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures d) Page 42 This section applies to a person (the importer) who conducts a business or undertaking that imports— Om ANADNMNPW Ne ee a) enilandtilend BWN pee nn Noe CoOoOAONn NNOnNnNNNY aABWNR wWNYNNNNY COMMAND 32 34 (2) (a) (b) (c) Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 24] plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or a substance that is to be used, or could reasonably be expected to be used, at a workplace; or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons— (a) (b) (d) (e) (f) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or anufactured; or ho handle the substance at a workplace; or ho construct the structure at a workplace; or m w. who store the plant or substance at a workplace; or w. w. ho carry out any reasonably foreseeable activity at a workplace in relation to— (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or Example— inspection, operation, cleaning, maintenance or repair of plant who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e). Page 43 OAN DUNN FW NH See NRO re Re Re mn Bw Ree a NNR Re OO NNN BWN NNN ADNAN Y wv \o ow WWWW Ww BWNr OO Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 25] Page 44 (3) The importer must— (a) (b) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or ensure that the calculations, analysis, testing or examination have been carried out. (4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning— (a) (b) (c) each purpose for which the plant, substance or structure was designed or manufactured; and the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e). (5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e). Duties of persons conducting businesses or undertakings that supply plant, substances or structures (1) This section applies to a person (the supplier) who conducts a business or undertaking that supplies— (a) (b) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or a substance that is to be used, or could reasonably be expected to be used, at a workplace; or CODA AD NHPWNY — So ao Ne RR RR Nn wW NNR RmOowOeoNn NNNNN DunbBwWhd 28 30 32 34 (c) Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 25] a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons— (a) (b) (c) (d) (f) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or anufactured; or ho handle the substance at a workplace; or ho construct the structure at a workplace; or m w. who store the plant or substance at a workplace; or w. w. ho carry out any reasonably foreseeable activity at a workplace in relation to— (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or Example— inspection, storage, operation, cleaning, maintenance or repair of plant who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e). (3) The supplier must— (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may Page 45 0 MAAIAD NPW NY Se cr SO RR Wn RR ee NAAN Noe laaome <) NNN WN tu nN NN an WWNNN rPOowoANn LoS) N WwW RO Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 26] Page 46 (4) (5) be necessary for the performance of the duty imposed by subsection (2); or (b) ensure that the calculations, analysis, testing or examination have been carried out. The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning— (a) each purpose for which the plant, substance or structure was designed or manufactured; and (b) the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e). The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e). Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures d) (2) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons— Com NDN PW NY RRR WNrF oO RR RRR eCrIDNDMNA NNNYNYe WNrR OO 25 2729 3133 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 27] (a) who install or construct the plant or structure at a workplace; or (b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or (c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or (d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b) or (c). Division 4 Duty of officers, workers and other persons 27 Duty of officers d) (2) (3) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. Subject to subsection (3), the maximum penalty applicable under division 5 for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of division 2 or 3 or this division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. Page 47 OMANAD NHKW NYE See NRO 14 1719222427293133 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 27] Page 48 (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps— (a) (b) (c) (d) to acquire and keep up-to-date knowledge of work health and safety matters; and to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and Example— For paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include— ¢ — reporting notifiable incidents ¢ — consulting with workers * ensuring compliance with notices issued under this Act CNY ANB WNH 1214 16182123262832 34 (f) Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 28] ¢ ensuring the provision of training and instruction to workers about work health and safety ¢ — ensuring that health and safety representatives receive their entitlements to training. to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e). 28 Duties of workers While at work, a worker must— (a) (b) (c) (d) take reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 29 Duties of other persons at the workplace A person at a workplace, whether or not the person has another duty under this part, must— (a) (b) (c) take reasonable care for his or her own health and safety; and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the Page 49 NN BW NR 121517 1921 24 26 2831 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 30] Division 5 Page 50 person conducting the business or undertaking to comply with this Act. Offences and penalties Health and safety duty Health and safety duty means a duty imposed under division 2,3 or 4. Reckless conduct—category 1 (1) A person commits a category 1 offence if— (a) (b) (c) the person has a health and safety duty; and the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and the person is reckless as to the risk to an individual of death or serious injury or illness. Maximum penalty— (a) (b) (c) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3000 penalty units or 5 _ years imprisonment; or for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—6000 penalty units or 5 years imprisonment; or for an offence committed by a body corporate—30000 penalty units. Note— In this division, the penalty applicable to a body corporate is separately expressed. Otherwise the Penalties and Sentences Act 1992, section 181B applies for this Act. 1114 17192224 2629 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 32] (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. (3) Acategory 1 offence is a crime. 32 Failure to comply with health and safety duty—category 2 A person commits a category 2 offence if— (a) _ the person has a health and safety duty; and (b) _ the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. Maximum penalty— (a) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1500 penalty units; or (b) for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3000 penalty units; or (c) for an offence committed by a body corporate—15000 penalty units. Note— See also the note to section 31(1). Failure to comply with health and safety duty—category 3 A person commits a category 3 offence if— (a) _ the person has a health and safety duty; and (b) _ the person fails to comply with that duty. Maximum penalty— (a) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an Page 51 ComArANI DN 1214 1618 20 22 242629 Work Health and Safety Bill 2011 Part 2 Health and safety duties [s 33A] (b) (c) officer of a person conducting a business or undertaking—S00 penalty units; or for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1000 penalty units; or for an offence committed by a body corporate—5000 penalty units. Note— See also the note to section 31(1). 33A Duty prevails over particular excuses For an offence against section 32 or 33, the Criminal Code sections 23(1) and 24 are subject to divisions 1 to 4. 34 Exceptions (1) A volunteer does not commit an offence under this division for a failure to comply with a health and safety duty, except a duty under section 28 or 29. (2) (3) Page 52 An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act. However— (a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and (b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29. 0 OPI ADANFW NY — So 13 161921 2427 Work Health and Safety Bill 2011 Part 3 Incident notification [s 35] Part 3 Incident notification What is a notifiable incident In this Act, notifiable incident means— (a) _ the death of a person; or (b) a serious injury or illness of a person; or (c) a dangerous incident. What is a serious injury or illness In this part, serious injury or illness of a person means an injury or illness requiring the person to have— (a) immediate treatment as an in-patient in a hospital; or (b) immediate treatment for— (i) the amputation of any part of his or her body; or (ii) a serious head injury; or (ili) a serious eye injury; or (iv) aserious burn; or (v) _ the separation of his or her skin from an underlying tissue (for example, degloving or scalping); or (vi) a spinal injury; or (vii) the loss of a bodily function; or (viii) serious lacerations; or (c) medical treatment within 48 hours of exposure to a substance; and includes any other injury or illness prescribed under a regulation but does not include an illness or injury of a prescribed kind. Page 53 nn FW WN nN \o 111315 17 1922 24 Work Health and Safety Bill 2011 Part 3 Incident notification [s 37] 37 What is a dangerous incident 1 In this part, a dangerous incident means an incident in 2 relation to a workplace that exposes a worker or any other 3 person to a serious risk to a person's health or safety 4 emanating from an immediate or imminent exposure to— 5 (a) an uncontrolled escape, spillage or leakage of a 6 substance; or 7 (b) an uncontrolled implosion, explosion or fire; or 8 (c) anuncontrolled escape of gas or steam; or 9 (d) an uncontrolled escape of a pressurised substance; or 10 (e) electric shock; or 11 (f) _ the fall or release from a height of any plant, substance 12 or thing; or 13 (g) the collapse, overturning, failure or malfunction of, or 14 damage to, any plant that is required to be authorised for 15 use under a regulation; or 16 (h) _ the collapse or partial collapse of a structure; or 17 (i) _ the collapse or failure of an excavation or of any shoring 18 supporting an excavation; or 19 G) the inrush of water, mud or gas in workings, in an 20 underground excavation or tunnel; or 21 (k) _ the interruption of the main system of ventilation in an 22 underground excavation or tunnel; or 23 (1) any other event prescribed under a regulation; 24 but does not include an incident of a prescribed kind. 25 38 Duty to notify of notifiable incidents 26 (1) A person who conducts a business or undertaking must ensure 27 that the regulator is notified immediately after becoming 28 aware that a notifiable incident arising out of the conduct of 29 the business or undertaking has occurred. 30 Maximum penalty—100 penalty units. 31 Page 54 (2) (3) (4) (5) (6) 7) Work Health and Safety Bill 2011 Part 3 Incident notification [s 39] The notice must be given as required under this section and by the fastest possible means. The notice must be given— (a) _ by telephone; or (b) in writing. Example— The written notice can be given by facsimile, email or other electronic means. A person giving notice by telephone must— (a) give the details of the incident requested by the regulator; and (b) if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made. A written notice must be in a form, or contain the details, approved by the regulator. If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking— (a) details of the information received; or (b) an acknowledgement of receiving the notice. A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section. Maximum penalty—S0 penalty units. Duty to preserve incident sites d) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs. Page 55 CI DM Bw Ne \o ee re oO PRR WN Ree num RRR oan NY WY r- SO NNONN nNBRWN N n 2931 Work Health and Safety Bill 2011 Part 4 Authorisations [s 40] (2) (3) Part 4 Maximum penalty—100 penalty units. In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident. Subsection (1) does not prevent any action— (a) _ to assist an injured person; or (b) to remove a deceased person; or (c) that is essential to make the site safe or to minimise the risk of a further notifiable incident; or (d) _ that is associated with a police investigation; or (e) for which an inspector or the regulator has given permission. Authorisations 40 Meaning of authorised In this part, authorised means authorised by a licence, permit, registration or other authority (however described) as required under a regulation. 41 Requirements for authorisation of workplaces Page 56 A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if— (a) a regulation requires the workplace or workplaces in that class of workplace to be authorised; and (b) _ the workplace is not authorised under the regulation. Maximum penalty—S00 penalty units. om nt DUN FWHY — So ao Ne 162023 25 Work Health and Safety Bill 2011 Part 4 Authorisations [s 42] 42 Requirements for authorisation of plant or substance d) (2) A person must not use plant or a substance at a workplace if— (a) aregulation requires the plant or substance or its design to be authorised; and (b) the plant or substance or its design is not authorised under the regulation. Maximum penalty—200 penalty units. A person who conducts a business or undertaking must not direct or allow a worker to use plant or a substance at a workplace if— (a) aregulation requires the plant or substance or its design to be authorised; and (b) _ the plant or substance or its design is not authorised in under a regulation. Maximum penalty—200 penalty units. 43 Requirements for authorisation of work d) (2) A person must not carry out work at a workplace if— (a) a regulation requires the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and (b) the person, or the person on whose behalf the work is carried out, is not authorised under a regulation. Maximum penalty—200 penalty units. A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if— (a) a regulation requires the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and (b) _ the person, or the person on whose behalf the work is to be carried out, is not authorised under a regulation. Maximum penalty—200 penalty units. Page 57 om rN AN FW NY — So a Ne pe BW me Nn 17 1922 25 2730 Work Health and Safety Bill 2011 Part 4 Authorisations [s 44] Page 58 Requirements for prescribed qualifications or experience (1) A person must not carry out work at a workplace if— (2) (a) (b) a regulation requires the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. Maximum penalty—200 penalty units. A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if— (a) (b) a regulation requires the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. Maximum penalty—200 penalty units. Requirement to comply with conditions of authorisation A person must comply with the conditions of any authorisation given to that person under a regulation. Maximum penalty—200 penalty units. OAND NSW N — So ao Ne RRR nw RR RR None a men N Oo 23 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 46] Part 5 Consultation, representation and participation Division 1 Consultation, cooperation and coordination between duty holders 46 Duty to consult with other duty holders If more than 1 person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter. Maximum penalty—200 penalty units. Division 2 Consultation with workers 47 Duty to consult workers d) (2) (3) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, as required under in this division and any regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. Maximum penalty—200 penalty units. If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures. The agreed procedures must not be inconsistent with section 48. 48 Nature of consultation d) Consultation under this division requires— Page 59 ww RP KF OMOANDAN NN So 15172124 26 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 49] Page 60 (a) (b) (c) (d) that relevant information about the matter is shared with workers; and that workers be given a reasonable opportunity— (i) to express their views and to raise work health or safety issues in relation to the matter; and (ii) to contribute to the decision-making process relating to the matter; and that the views of workers are taken into account by the person conducting the business or undertaking; and that the workers consulted are advised of the outcome of the consultation in a timely way. (2) If the workers are represented by a health and safety representative, the consultation must involve _ that representative. When consultation is required Consultation under this division is required in relation to the following health and safety matters— (a) (b) (c) (d) (e) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking; when making decisions about ways to eliminate or minimise those risks; when making decisions about the adequacy of facilities for the welfare of workers; when proposing changes that may affect the health or safety of workers; when making decisions about the procedures for— (i) consulting with workers; or (ii) resolving work health or safety issues at the workplace; or (iii) monitoring the health of workers; or COM AND UP WNYE ee re oO enilantilend WN 17 1922 24 26 28 30 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 50] (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or (v) providing information and training for workers; or (f) | when carrying out any other activity prescribed under a regulation for this section. Division 3 Health and safety representatives Subdivision 1 Request for election of health and safety representatives Request for election of health and safety representative A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for 1 or more health and safety representatives to represent workers who carry out work for the business or undertaking. Subdivision 2 Determination of work groups Determination of work groups d) (2) (3) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of 1 or more work groups of workers. The purpose of determining a work group is to facilitate the representation of workers in the work group by 1 or more health and safety representatives. A work group may be determined for workers at 1 or more workplaces. Page 61 Dun fF WNe 1214192225 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 52] Page 62 Negotiations for agreement for work group d) (2) (3) (4) (5) (6) A work group is to be determined by negotiation and agreement between— (a) the person conducting the business or undertaking; and (b) the workers who will form the work group or their representatives. The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50. The purpose of the negotiations is to determine— (a) the number and composition of work groups to be represented by health and safety representatives; and (b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and (c) the workplace or workplaces to which the work groups will apply; and (d) _ the businesses or undertakings to which the work groups will apply. The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. Maximum penalty—100 penalty units. A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups. OMAN DUNN FPF WHY Se cr SO RR Wn RRR Nn RR on Ne ow NNN WN VNNYNN OCAIADNMNSA N \o WWW NRO Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 53] 53 Notice to workers d) (2) The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement. Maximum penalty—20 penalty units. The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement. Maximum penalty—20 penalty units. 54 Failure of negotiations d) (2) (3) If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section. An inspector appointed under subsection (1) may decide— (a) the matters mentioned in section 52(3), or any of those matters which is the subject of the proposed variation (as the case requires); or (b) that work groups should not be determined or that the agreement should not be varied (as the case requires). For this section, there is a failure of negotiations if— (a) the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after— (i) arequest is made under section 50; or (ii) a party to the agreement requests the variation of the agreement; or Page 63 Com NA DUNBWYHY RRR WNrF oO — A 1719 2225 2830 33 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 55] (b) agreement can not be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence. (4) A decision under this section is taken to be an agreement under section 52. Subdivision 3 Multiple-business work groups 55 Determination of work groups of multiple businesses (1) Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces. (2) The particulars of the work groups are to be determined by negotiation and agreement, under section 56, between each of the persons conducting the businesses or undertakings and the workers. (3) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. (4) The determination of 1 or more work groups under this subdivision does not— (a) prevent the determination under this subdivision or subdivision 2 of any other work group of the workers concerned; or (b) affect any work groups of those workers that have already been determined under this subdivision or subdivision 2. 56 Negotiation of agreement for work groups of multiple businesses (1) Negotiations concerning work groups under this subdivision must be directed only at the following— Page 64 Nn BWNeR 11 1315 1720 222528 30 (2) (3) (4) Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 57] (a) the number and composition of work groups to be represented by health and safety representatives; (b) the number of health and safety representatives and deputy health and safety representatives (if any) for each work group; (c) the workplace or workplaces to which the work groups will apply; (d) _ the businesses or undertakings to which the work groups will apply. A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. Maximum penalty—100 penalty units. If agreement can not be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter. A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements. Notice to workers d) (2) A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement. Maximum penalty—20 penalty units. A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the Page 65 Come ND NPW Ne See ee BRWNr OO me Nn NNR eR rPOoUOAmANA NNN BWN 272933 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 58] determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement. Maximum penalty—20 penalty units. 58 Withdrawal from negotiations or agreement involving multiple businesses d) (2) A party to a negotiation for an agreement, or to an agreement, concerning a work group under this subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties. If a party withdraws from an agreement concerning a work group under this subdivision— (a) the other parties must negotiate a variation to the agreement under section 56; and (b) the withdrawal does not affect the validity of the agreement between the other parties in the meantime. 59 Effect of subdivision on other arrangements To remove doubt, it is declared that, nothing in this subdivision affects the capacity of 2 or more persons conducting businesses or undertakings and their workers to enter into other agreements or make other arrangements, in addition to complying with this part, concerning the representation of those workers. Subdivision 4 Election of health and safety representatives 60 Eligibility to be elected Page 66 A worker is— nN BWNre ow NO 11 13 15 17 202224 26 28 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 61] (a) eligible to be elected as a health and _ safety representative for a work group only if he or she is a member of that work group; and (b) not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative. Procedure for election of health and safety representatives d) (2) (3) (4) The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted. However, an election must comply with the procedures (if any) prescribed under a regulation. If a majority of the workers in a work group so determine, the election may be conducted with the assistance of a union or other person or organisation. The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed under a regulation to enable elections to be conducted. Maximum penalty—100 penalty units. Eligibility to vote d) (2) A health and safety representative for a work group is to be elected by members of that work group. All workers in a work group are entitled to vote for the election of a health and safety representative for that work group. When election not required If the number of candidates for election as a health and safety representative for a work group equals the number of vacancies, the election need not be conducted and each Page 67 Dunk WNe 11 13 151820 24 2630 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 64] Page 68 candidate is to be taken to have been elected as a health and safety representative for the work group. Term of office of health and safety representative (1) A health and safety representative for a work group holds (2) office for 3 years. However a person ceases to hold office as a health and safety representative for a work group if— (a) (b) (c) (d) the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking; or the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative; or the person is disqualified under section 65 from acting as a health and safety representative; or the person is removed from that position by a majority of the members of the work group under a regulation. (3) A health and safety representative is eligible for re-election. Disqualification of health and safety representatives (1) An application may be made to the commission to disqualify a health and safety representative on the ground that the representative has— (2) (a) (b) exercised a power or performed a function as a health and safety representative for an improper purpose; or used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative. The following persons may make an application under this section— (a) any person adversely affected by— Noe Om AD NS W 1215 17 2124 2628 30 (3) (4) Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 66] (i) the exercise of a power or the performance of a function mentioned in subsection (1)(a); or (ii) the use or disclosure of information mentioned in subsection (1)(b); (b) the regulator. If the commission is satisfied that a ground in subsection (1) is made out, the commission may disqualify the health and safety representative for a stated period or indefinitely. A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 1999, chapter 9. Note— See the /ndustrial Relations Act 1999, sections 341(1) and 342(6). 66 Immunity of health and safety representatives A health and safety representative is not personally liable for anything done or omitted to be done in good faith— (a) in exercising a power or performing a function under this Act; or (b) in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act. 67 Deputy health and safety representatives d) (2) Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group. If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act— Page 69 CID WN BW NE \o 11 13 16 18 20242729 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 67A] (a) _ the powers and functions may be exercised or performed by a deputy health and safety representative for the work group; and (b) this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety representative. (3) Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives. Subdivision 4A _ Disqualification process 67A Definition for subdivision In this subdivision— applicant means— (a) if the application under section 65 is made by the regulator—the regulator; or (b) if the application under section 65 is made by a person other than the regulator—the person and the regulator. Note— In relation to the numbering of this subdivision, see the note to section 3. 67B_ = Application of subdivision This subdivision applies for the purpose of an application to the commission under section 65 to disqualify a health and safety representative. 67C ___ Decision on application may be given on the papers or at a hearing The commission may decide whether or not to take action on the application entirely or partly from a consideration of the documents filed. Page 70 COAN DANK WNK 12 15 17 20 2326 28 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 67D] 67D Applications decided on the papers d) (2) (3) (4) This section applies if the commission decides to decide the application after a consideration of the documents filed and without a hearing. The commission must give the applicant and _ the representative a written notice stating— (a) the commission is considering whether to disqualify the representative for a period or indefinitely (the proposed action); and (b) _ the reason for the proposed action; and (c) if the proposed action is disqualification for a period—the proposed suspension period; and (d) an invitation— (i) to the representative to show in writing, within a stated time of at least 14 days after the date of the notice, why the proposed action should not be taken; and (ii) to the applicant to comment in writing, within a stated time of at least 14 days after the date of the notice, on the appropriateness of the proposed action. The commission may take action under section 65(3) after considering all documents filed in the application and all written submissions made within the time allowed under subsection (2)(d). Under section 65(3), the commission may— (a) if the proposed action is to disqualify the representative for a period—disqualify the representative for a stated period that is no longer than the proposed disqualification period; or (b) _ if the proposed action is to disqualify the representative for an indefinite period—disqualify the representative indefinitely or for a period. Page 71 OAN DN PWN — So ao Ne me ww ei alll otras ADWNH NNR Re OO NNNN nNRWN N n wWNnvnny lane Nonc | WwW WwW Ww WN Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 67E] 67E 67F Page 72 Applications decided at a hearing d) (2) (3) (4) (5) This section applies if the commission decides to decide the application at a hearing. The commission must give the applicant and _ the representative at least 14 days notice of the hearing date. To the extent practicable, the hearing is to be conducted under the rules applying to hearings of the commission under the Industrial Relations Act 1999 with necessary changes or, if the rules make no provision or insufficient provision, in accordance with directions of the commission. The commission may take action under section 65(3) after considering the evidence and submissions in relation to the application. The commission may— (a) disqualify the representative for a stated period; or (b) disqualify the representative indefinitely. Notice of decision The commission must give the applicant and the representative a written notice stating— (a) the decision; and (b) the reasons for the decision; and (c) that the applicant or the representative may appeal against the decision under the Jndustrial Relations Act 1999, chapter 9. OAND NH WN — So RRR WN re Re eR nn 19 21 23 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 68] Subdivision 5 Powers and functions of health and safety representatives 68 Powers and functions of health and safety representatives (1) The powers and functions of a health and safety representative for a work group are— (2) (a) (b) (c) (d) to represent the workers in the work group in matters relating to work health and safety; and to monitor the measures taken by the person conducting the relevant business or undertaking or that person's representative in compliance with this Act in relation to workers in the work group; and to investigate complaints from members of the work group relating to work health and safety; and to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking. In exercising a power or performing a function, the health and safety representative may— (a) (b) inspect the workplace or any part of the workplace at which a worker in the work group works— (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; and accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works; and with the consent of a worker that the health and safety representative represents, be present at an interview Page 73 on AN WwW 1114 1619 21 232628 3033 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 68] Page 74 (3) (4) concerning work health and safety between the worker and— (i) an inspector; or (ii) the person conducting the business or undertaking at that workplace or the person's representative; and (d) with the consent of 1 or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and— (i) an inspector; or (ii) the person conducting the business or undertaking at that workplace or the person's representative; and (e) request the establishment of a health and _ safety committee; and (f) receive information concerning the work health and safety of workers in the work group; and (g) whenever necessary, request the assistance of any person. Note— A health and safety representative also has a power under division 6 to direct work to cease in certain circumstances and under division 7 to issue provisional improvement notices. Despite subsection (2)(f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that— (a) does not identify the worker; and (b) could not reasonably be expected to lead to the identification of the worker. Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity. COMA ANF W Ne 11 1417 19 21 242729 32 34 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 69] 69 Powers and functions generally limited to the particular work group (1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group. (2) Subsection (1) does not apply if— (a) _ there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or (b) a member of another work group asks for the representative's assistance; and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable. (3) In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates. Subdivision 6 Obligations of person conducting business or undertaking to health and safety representatives 70 General obligations of person conducting business or undertaking (1) The person conducting a business or undertaking must— (a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking; and (b) confer with a health and safety representative for a work group, whenever reasonably requested by the Page 75 Com IY ANNPW NK ee re oO tiled Wh tletiire nNANnt LO ell cell eel CoOMAN 2225 2830 32 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 70] Page 76 (c) (d) (e) (f) representative, for the purpose of ensuring the health and safety of the workers in the work group; and allow any health and safety representative for the work group to have access to information that the person has relating to— (i) hazards (including associated risks) at the workplace affecting workers in the work group; and (ii) the health and safety of the workers in the work group; and with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and— (i) an inspector; or (ii) the person conducting the business or undertaking at that workplace or the person's representative; and with the consent of 1 or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and— (i) an inspector; or (ii) the person conducting the business or undertaking at that workplace or the person's representative; and provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed under a regulation to enable the representative to exercise his or her powers or perform his or her functions under this Act; and CID NRW NE 1214 17202224 27303234 (2) (3) Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 71] (g) allow a person assisting a health and_ safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and (h) permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works; and (i) provide any other assistance to the health and safety representative for the work group that may be required under a regulation. Maximum penalty—100 penalty units. The person conducting a business or undertaking must allow a health and safety representative to spend the time reasonably necessary to exercise his or her powers and perform his or her functions under this Act. Maximum penalty—100 penalty units. Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. Exceptions from obligations under s 70(1) d) (2) This section applies despite section 70(1). The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that— (a) does not identify the worker; and (b) could not reasonably be expected to lead to the identification of the worker. Maximum penalty—100 penalty units. Page 77 CADN PWN \o 11 1416 192124 2628 31 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 72] Page 78 (3) (4) (5) (6) The person conducting a business or undertaking is not required to give financial assistance to a health and safety representative for the purpose of the assistance mentioned in section 70(1)(f). The person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a work group to have access to the workplace— (a) if the assistant has had his or her WHS entry permit revoked; or (b) during any period that the assistant's WHS entry permit is suspended or the assistant is disqualified from holding a WHS entry permit. The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group. If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter. Obligation to train health and safety representatives d) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is— (a) approved by the regulator; and (b) a course that the health and safety representative is entitled under a regulation to attend; and (c) subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking. CIADN RWNY 121517 1921 242630 32 (2) (3) (4) (5) (6) 7) Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 72] The person conducting the business or undertaking must— (a) as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training; and (b) pay the course fees and any other reasonable costs associated with the health and safety representative's attendance at the course of training. If— (a) a health and safety representative represents a work group of the workers of more than 1 business or undertaking; and (b) the person conducting any of those businesses or undertakings has complied with this section in relation to the representative; each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative. Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. If agreement can not be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1)(c) and (2), either party may ask the regulator to appoint an inspector to decide the matter. The inspector may decide the matter under this section. A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6). Maximum penalty—100 penalty units. Page 79 OND NABWN 1114172022 242628 3133 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 73] Page 80 Obligation to share costs if multiple businesses or undertakings d) (2) If a health and safety representative, or deputy health and safety representative (if any), represents a work group of workers carrying out work for 2 or more persons conducting businesses or undertakings— (a) the costs of the representative exercising powers and performing functions under this Act; and (b) the costs mentioned in section 72(2)(b); for which any of the persons conducting those businesses or undertakings are liable must be apportioned equally between each of those persons unless they agree otherwise. An agreement to apportion the costs in another way may be varied at any time by negotiation and agreement between each of the persons conducting the businesses or undertakings. List of health and safety representatives d) A person conducting a business or undertaking must ensure that— (a) a list of each health and safety representative and deputy health and safety representative (if any) for each work group of workers carrying out work for the business or undertaking is prepared and kept up to date; and (b) acopy of the up-to-date list is displayed— (i) at the principal place of business of the business or undertaking; and (ii) at any other workplace that is appropriate taking into account the constitution of the relevant work group or work groups; in a way that is readily accessible to workers in the relevant work group or work groups. Maximum penalty—20 penalty units. Or ANBW Ne 111418 2022 25 2730 (2) Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 75] A person conducting a business or undertaking must provide a copy of the up-to-date list prepared under subsection (1) to the regulator as soon as practicable after it is prepared. Maximum penalty—20 penalty units. Division 4 Health and safety committees 75 Health and safety committees d) (2) The person conducting a business or undertaking at a workplace must establish a health and safety committee for the business or undertaking or part of the business or undertaking— (a) within 2 months after being requested to do so by— (i) ahealth and safety representative for a work group of workers carrying out work at that workplace; or (i) 5 or more workers at that workplace; or (b) if required under a regulation to do so, within the time prescribed under a regulation. Maximum penalty—S0 penalty units. A person conducting a business or undertaking at a workplace may establish a health and safety committee for the workplace or part of the workplace on the person's own initiative. Note— If a health and safety committee is not required to be established, other consultation procedures can be established for a workplace—see division 2. 76 Constitution of committee d) Subject to subsections (2) to (4), the constitution of a health and safety committee may be agreed between the person conducting the business or undertaking and the workers at the workplace. Page 81 wn BB WNe oman a 11 13 16 19232729 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 77] (2) (3) (4) (5) (6) 7) If there is a health and safety representative at a workplace, that representative, if he or she consents, is a member of the committee. If there are 2 or more health and safety representatives at a workplace, those representatives may choose | or more of their number (who consent) to be members of the committee. At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking. If agreement is not reached under this section within a reasonable time, any party may ask the regulator to appoint an inspector to decide the matter. An inspector appointed on a request under subsection (5) may decide the constitution of the health and safety committee or that the committee should not be established. A decision of an inspector under this section is taken to be an agreement under this section between the parties. 77 Functions of committee The functions of a health and safety committee are— (a) _ to facilitate cooperation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers' health and safety at work; and (b) to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace; and (c) any other functions prescribed under a regulation or agreed between the person conducting the business or undertaking and the committee. 78 Meetings of committee Page 82 A health and safety committee must meet— OMANI DANK WNKe See NRO eiinatiend nw RR on 19 2123 252831 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 79] (a) at least once every 3 months; and (b) at any reasonable time at the request of at least half of the members of the committee. Duties of person conducting business or undertaking (1) The person conducting a business or undertaking must allow each member of the health and safety committee to spend the time that is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee. Maximum penalty—100 penalty units. (2) Any time that a member of a health and safety committee spends for the purposes set out in subsection (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (3) The person conducting a business or undertaking must allow the health and safety committee for a workplace to have access to information that the person has relating to— (a) hazards (including associated risks) at the workplace; and (b) _ the health and safety of the workers at the workplace. Maximum penalty—100 penalty units. (4) Despite subsection (3), the person conducting a business or undertaking must not allow the health and safety committee to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that— (a) does not identify the worker; and (b) could not reasonably be expected to lead to the identification of the worker. Maximum penalty—100 penalty units. Page 83 Wn OCOmMDANDN FS 1214 1619 21 232529 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 80] Division 5 Issue resolution 80 Parties to an issue (1) In this division, parties, in relation to an issue, means the following— (a) _ the person conducting the business or undertaking or the person's representative; (b) if the issue involves more than 1 business or undertaking, the person conducting each business or undertaking or the person's representative; (c) if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative; (d) if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative. (2) A person conducting a business or undertaking must ensure that the person's representative (if any) for the purposes of this division— (a) is not a health and safety representative; and (b) _ has an appropriate level of seniority, and is sufficiently competent, to act as the person's representative. 81 Resolution of health and safety issues Page 84 d) (2) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue. The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed under a regulation. OmAN AN FW WV 11141721 2426 2830 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 82] (3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue. Referral of issue to regulator for resolution by inspector (1) This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue. (2) A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue. (3) A request to the regulator under this section does not prevent— (a) a worker from exercising the right under division 6 to cease work; or (b) a health and safety representative from issuing a provisional improvement notice or a direction under division 6 to cease work. (4) On attending a workplace under this section, an inspector may exercise any of the inspector's compliance powers under this Act in relation to the workplace. Division 6 Right to cease or direct cessation of unsafe work Definition of cease work under this division In this division, cease work under this division means— (a) to cease, or refuse, to carry out work under section 84; or (b) to cease work on a direction under section 85. Page 85 WNe Com NANDN 12 14 161922 24 26 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 84] 84 Right of worker to cease unsafe work A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. 85 Health and safety representative may direct that unsafe work cease d) (2) (3) (4) (5) Page 86 A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after— (a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and (b) attempting to resolve the matter as an issue under division 5. The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under division 5 if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction. The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3). The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section. DAnkRwWN 1113161922 2426293234 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 86] (6) A health and safety representative can not give a direction under this section unless the representative has— (a) completed initial training prescribed under a regulation mentioned in section 72(1)(b); or (b) previously completed that training when acting as a health and safety representative for another work group; or (c) completed training equivalent to that training under a corresponding WHS law. Worker to notify if ceases work A worker who ceases work under this division must— (a) as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this division unless the worker ceased work under a direction from a health and safety representative; and (b) remain available to carry out suitable alternative work. Alternative work If a worker ceases work under this division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties. Continuity of engagement of worker If a worker ceases work under this division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work— (a) at the same or another workplace; and (b) | that was safe and appropriate for the worker to carry out. Page 87 Com ADM PW NRE 11 1315 1921252730 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 89] Request to regulator to appoint inspector to assist The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work. Note— The issue resolution procedures in division 5 can also be used to resolve an issue arising in relation to the cessation of work. Division 7 Provisional improvement notices Page 88 Provisional improvement notices d) (2) (3) (4) This section applies if a health and safety representative reasonably believes that a person— (a) is contravening a provision of this Act; or (b) _ has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated. The health and safety representative may issue a provisional improvement notice requiring the person to— (a) remedy the contravention; or (b) | prevent a likely contravention from occurring; or (c) remedy the things or operations causing the contravention or likely contravention. However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person. A health and safety representative can not issue a provisional improvement notice unless the representative has— (a) completed initial training prescribed under a regulation mentioned in section 72(1)(b); or wom INI DNR WNY 13 1619 21 23 2528 30 (b) (c) Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 91] previously completed that training when acting as a health and safety representative for another work group; or completed training equivalent to that training under a corresponding WHS law. (5) A health and safety representative can not issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter. 91 Provisional improvement notice to be in writing A provisional improvement notice must be in writing. 92 Contents of provisional improvement notice A provisional improvement notice must state— (a) (b) (c) (d) that the health and safety representative believes the person— (i) is contravening a provision of this Act; or (ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated; and the provision the representative believes is being, or has been, contravened; and briefly, how the provision is being, or has been contravened; and the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention. 93 Provisional improvement notice may give directions to remedy contravention (1) A provisional improvement notice may include directions concerning the measures to be taken to remedy the Page 89 OMAND NH WNK 11 13 15 1821 23 2528 30 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 94] contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates. (2) A direction included in a provisional improvement notice may— (a) refer to a code of practice; and (b) _ offer the person to whom it is issued a choice of ways in which to remedy the contravention. 94 Minor changes to provisional improvement notice A health and safety representative may make minor changes to a provisional improvement notice— (a) for clarification; or (b) to correct errors or references; or (c) to reflect changes of address or other circumstances. 95 Issue of provisional improvement notice A provisional improvement notice may be issued to a person under section 209. 96 Health and safety representative may cancel notice The health and safety representative may at any time cancel a provisional improvement notice issued to a person by written notice given to that person. 97 Display of provisional improvement notice (1) A person to whom a provisional improvement notice is issued must as soon as practicable display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. Maximum penalty—S0 penalty units. Page 90 ON ND WB WNK 11 1317 202426 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 98] (2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) during the period that the notice is in force. Maximum penalty—S0 penalty units. 98 Formal irregularities or defects in notice A provisional improvement notice is not invalid only because of— (a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or (b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person. 99 Offence to contravene a provisional improvement notice (1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace. (2) The person must comply with the provisional improvement notice within the time stated in the notice. Maximum penalty—S00 penalty units. 100 Request for review of provisional improvement notice (1) Within 7 days after a provisional improvement notice is issued to a person— (a) the person to whom it was issued; or (b) if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work; may ask the regulator to appoint an inspector to review the notice. Page 91 BR WNR Om ANN 121619 23 2629 Work Health and Safety Bill 2011 Part 5 Consultation, representation and participation [s 101] Page 92 (2) If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review. Regulator to appoint inspector to review notice d) (2) (3) The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100. The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice. An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired. Decision of inspector on review of provisional improvement notice d) (2) (3) After reviewing the provisional improvement notice, the inspector must— (a) confirm the provisional improvement notice; or (b) confirm the provisional improvement notice with changes; or (c) cancel the provisional improvement notice. The inspector must give a copy of his or her decision to— (a) the applicant for the review of the provisional improvement notice; and (b) the health and safety representative who issued the notice. A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act. WNe Com NANDN 12 14 16 19 21 23 25 27 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 103] Division 8 Part not to apply to prisoners and detainees 103 Part does not apply to prisoners and detainees Nothing in this part applies to a worker who is— (a) under the Corrective Services Act 2006, a prisoner detained in a corrective services facility; or (b) under the Youth Justice Act 1992, a person detained in a detention centre; or (c) under the Police Powers and Responsibilities Act 2000, a person in custody in a watch-house. Part 6 Discriminatory, coercive and misleading conduct Division 1 Prohibition of discriminatory, coercive or misleading conduct 104 Prohibition of discriminatory conduct d) (2) A person must not engage in discriminatory conduct for a prohibited reason. Maximum penalty—1000 penalty units. A person commits an offence under subsection (1) only if the reason mentioned in section 106 was the dominant reason for the discriminatory conduct. Note— Civil proceedings may be taken under division 3 in relation to discriminatory conduct engaged in for a prohibited reason. Page 93 FO wmOyN AN FW 12 14 17 2024 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 105] 105 What is discriminatory conduct (1) For this part, a person engages in discriminatory conduct if— (a) the person— (i) dismisses a worker; or (ii) terminates a contract for services with a worker; or (iii) puts a worker to his or her detriment in the engagement of the worker; or (iv) alters the position of a worker to the worker's detriment; or (b) the person— (i) refuses or fails to offer to engage a prospective worker; or (ii) treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or (c) the person terminates a commercial arrangement with another person; or (d) the person refuses or fails to enter into a commercial arrangement with another person. (2) For this part, a person also engages in discriminatory conduct if the person organises to take any action mentioned in subsection (1) or threatens to organise or take that action. 106 Whatis a prohibited reason Conduct mentioned in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person mentioned in section 105(1)(c) or (d) (as the case requires) — (a) is, has been or proposes to be a health and safety representative or a member of a health and safety committee; or Page 94 Com AND UN FWY — So ao Ne RRR nw Re eon Ree Nemec) NNW NRO 2527 29 (b) (d) (f) (g) (h) Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 106] undertakes, has undertaken or proposes to undertake another role under this Act; or exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee; or exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way; or performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way; or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way; or assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act; or raises or has raised or proposes to raise an issue or concern about work health and safety with— (i) the person conducting a business or undertaking; or (ii) an inspector; or (iii) a WHS entry permit holder; or (iv) ahealth and safety representative; or (v) amember of a health and safety committee; or (vi) another worker; or (vii) any other person who has a duty under this Act in relation to the matter; or Page 95 Om ADNBPW NE — So RRR BRWNFe [eel alll etl alll oot COMANDN NNNWY WNrF oO NWN AK Nw NO OW WwW wn NY NF OO WwW RO Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 107] (viii) any other person exercising a power or performing a function under this Act; or (i) _ is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act; or G) is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act. 107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104. Maximum penalty—1000 penalty units. Note— Civil proceedings may be taken under division 3 if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason. 108 Prohibition of coercion or inducement (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person— (a) to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act; or (b) to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act; or (c) to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way; or (d) to refrain from seeking, or continuing to undertake, a role under this Act. Page 96 CID WPW NE 11 1316 182225 27 2932 (2) (3) (4) Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 109] Maximum penalty—1000 penalty units. Note— Civil proceedings may be taken under division 3 in relation to a contravention of this section. In this section, a reference to taking action or threatening to take action against a person includes a reference to not taking a particular action or threatening not to take a particular action in relation to that person. To remove doubt it is declared that, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person. In this section— emergency services worker means a person who under an Act is authorised to give directions to anyone else for the purposes of an emergency. Misrepresentation d) (2) A person must not knowingly or recklessly make a false or misleading representation to another person about that other person's— (a) _ rights or obligations under this Act; or (b) ability to initiate, or participate in, a process or proceedings under this Act; or (c) ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act. Maximum penalty—1000 penalty units. Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. Page 97 COAIDN FWY \o 11 141822 2428 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 110] Division 2 Criminal proceedings in relation to Page 98 discriminatory conduct Proof of discriminatory conduct d) (2) (3) This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution— (a) proves that the discriminatory conduct was engaged in; and (b) proves that a circumstance mentioned in section 106(a) to (j) existed at the time the discriminatory conduct was engaged in. If it is alleged that the discriminatory conduct was engaged in for a prohibited reason, that reason is presumed to be the dominant reason for that conduct unless the defendant proves on the balance of probabilities, that the reason was not the dominant reason for the conduct. To remove doubt it is declared that, the burden of proof on the defendant under subsection (2) is a legal burden of proof. Order for compensation or reinstatement If a person is convicted or found guilty of an offence against section 104 or 107, the court may (in addition to imposing a penalty) make either or both of the following orders— (a) an order that the offender pay (within a stated period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate; (b) in relation to a person who was or is an employee or prospective employee, an order that— (i) the person be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or COm AD NH W 121417 202325 27 29 Division 3 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 112] (ii) the person be employed in the position for which he or she had applied or a similar position. Civil proceedings in relation to discriminatory or coercive conduct 112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct (1) An eligible person may apply to a Magistrates Court for an order under this section. (2) (3) Note— The Uniform Civil Procedure Rules 1999 generally apply. The court may make 1 or more of the orders set out in subsection (3) in relation to a person who has— (a) (b) (c) engaged in discriminatory conduct for a prohibited reason; or requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or contravened section 108. For subsection (2), the orders that the court may make are— (a) (b) (c) an injunction; or in the case of conduct mentioned in subsection (2)(a) or (b), an order that the person pay (within a stated period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate; or in the case of conduct mentioned in subsection (2)(a) in relation to a worker who was or is an employee or prospective employee, an order that— (i) the worker be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or Page 99 ww Oo MOAN AN 12 14 161922242730 Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 113] (4) (5) (6) (ii) the prospective worker be employed in the position for which he or she had applied or a similar position; or (d) any other order that the court considers appropriate. For this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason mentioned in section 106 was a substantial reason for the conduct. Nothing in this section is to be construed as limiting any other power of the court. For this section, each of the following is an eligible person— (a) a person affected by the contravention; (b) a person authorised as a representative by a person mentioned in paragraph (a). 113 Procedure for civil actions for discriminatory conduct d) (2) (3) Page 100 A proceeding taken under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued. In a proceeding under section 112 in relation to conduct mentioned in section 112(2)(a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct. It is a defence to a proceeding under section 112 in relation to conduct mentioned in section 112(2)(a) or (b) if the defendant proves that— (a) the conduct was reasonable in the circumstances; and (b) asubstantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law. CIDNW BR WNeE \o 1114 17202224 2630 (4) Work Health and Safety Bill 2011 Part 6 Discriminatory, coercive and misleading conduct [s 114] To remove doubt, it is declared that, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof. Division 4 General 114 General provisions relating to orders d) (2) (3) The making of an order in a proceeding under section 112 in relation to conduct mentioned in section 112(2)(a) or (b) does not prevent the bringing of a proceeding for an offence under section 104 or 107 in relation to the same conduct. If a court makes an order under section 112 in a proceeding in relation to conduct mentioned in section 112(2)(a) or (b), a court can not make an order under section 111 in a proceeding for an offence under section 104 or 107 in relation to the same conduct. If a court makes an order under section 111 in a proceeding for an offence under section 104 or 107, a court can not make an order under section 112 in a proceeding in relation to conduct mentioned in section 112(2)(a) or (b) that is the same conduct. 115 Prohibition of multiple actions A person can not— (a) commence a proceeding under division 3 if the person has commenced a proceeding or made an application or complaint in relation to the same matter under a law of the Commonwealth or a State and that proceeding, application or complaint has not been withdrawn; or (b) recover any compensation under division 3 if the person has received compensation for the matter under a law of the Commonwealth or a State; or (c) commence or continue an application under division 3 if the person has failed in a proceeding, application or Page 101 WN OAAND MN 1113161821 23252831 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 116] complaint in relation to the same matter under a law of the Commonwealth or a State, other than a proceeding, application or complaint relating to workers' compensation. Part 7 Workplace entry by WHS entry permit holders Division 1 Introductory 116 Definitions In this part— Page 102 official of a union means a person who holds an office in, or is an employee of, the union. relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry. relevant union means the union that a WHS entry permit holder represents. relevant worker, in relation to a workplace, means a worker— (a) who is a member, or eligible to be a member, of a relevant union; and (b) whose industrial interests the relevant union is entitled to represent; and (c) who works at that workplace. BWNR 11 1315 17 20 22 Division 2 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 117] Entry to inquire into suspected contraventions 117 Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. 118 Rights that may be exercised while at workplace (1) While at the workplace under this division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act— (a) (b) (c) (d) (e) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention; consult with the relevant workers in relation to the suspected contravention; consult with the relevant person conducting a business or undertaking about the suspected contravention; require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that— (i) is kept at the workplace; or (ii) is accessible from a computer that is kept at the workplace; warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk. Page 103 COmMAANI ANS W 1215 17 19 212327 2931 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 119] (2) (3) (4) However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d). WHS civil penalty provision. Maximum penalty—100 penalty units. Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. Notes— 1 At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120. 2 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth. 119 Notice of entry d) (2) Page 104 A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this division, give notice of the entry and the suspected contravention, as provided under a regulation, to— (a) the relevant person conducting a _ business or undertaking; and (b) the person with management or control of the workplace. Subsection (1) does not apply if to give the notice would— (a) defeat the purpose of the entry to the workplace; or (b) unreasonably delay the WHS entry permit holder in an urgent case. 0 OAD NHWNY — So ao Ne me ww Re Ree NADNH Nore Coon 2325 27 29 31 33 (3) Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 120] Subsection (1) does not apply to an entry to a workplace under this division to inspect or make copies of documents mentioned in section 120. 120 Entry to inspect employee records or information held by another person d) (2) (3) (4) (5) This section applies if a WHS entry permit holder is entitled under section 117 to enter a workplace to inquire into a suspected contravention of this Act. For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of— (a) employee records that are directly relevant to a suspected contravention; or (b) other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking. Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking. The notice must comply with a regulation made for this section. The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Note— The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth. Page 105 WNe CAND NS \o 1114 161921 23 2529 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 121] Division 3 Entry to consult and advise workers 121 ~~ Entry to consult and advise workers d) (2) A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, 1 or more relevant workers who wish to participate in the discussions. A WHS entry permit holder may, after entering a workplace under this division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk. 122 Notice of entry d) (2) (3) Before entering a workplace under this division, a WHS entry permit holder must give notice of the proposed entry to the relevant person conducting a business or undertaking. The notice must comply with a regulation made for this section. The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Division 4 Requirements for WHS entry permit holders 123 Contravening WHS entry permit conditions Page 106 A WHS entry permit holder must not contravene a condition imposed on the WHS entry permit. WHS civil penalty provision. Maximum penalty—100 penalty units. rere OMANI ANFW LY re oO 1417 1922 25 27 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 124] WHS entry permit holder must also hold permit under other law A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or an industrial officer authority. WHS civil penalty provision. Maximum penalty—100 penalty units. WHS entry permit to be available for inspection A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under division 2 or 3, have his or her WHS entry permit and photographic identification available for inspection by any person on request. WHS civil penalty provision. Maximum penalty—100 penalty units. When right may be exercised A WHS entry permit holder may exercise a right under division 2 or 3 only during the usual working hours at the workplace. WHS civil penalty provision. Maximum penalty—100 penalty units. Where the right may be exercised A WHS entry permit holder may exercise a right of entry to a workplace only in relation to— (a) the area of the workplace where the relevant workers work; or (b) any other work area that directly affects the health or safety of those workers. Page 107 ND NSW NK 1113 15 1821 24 26 28 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 128] 128 Work health and safety requirements A WHS entry permit holder must not exercise a right of entry to a workplace under division 2 or 3 unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with— (a) any work health and safety requirement that applies to the workplace; and (b) any other legislated requirement that applies to that type of workplace. WHS civil penalty provision. Maximum penalty—100 penalty units. 129 Residential premises A WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes. WHS civil penalty provision. Maximum penalty—100 penalty units. 130 WHS entry permit holder not required to disclose names of workers d) (2) Page 108 A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace. A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker. Cr ANBWNY 1115 17 19 2123 2527 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 131] Division 5 WHS entry permits 131 Application for WHS entry permit (1) A union may apply to the industrial registrar for the issue of a WHS entry permit to a person who is an official of the union. (2) The application must specify the person who is to hold the WHS entry permit and include a statutory declaration by that person declaring that he or she— (a) is an official of the union; and (b) _ has satisfactorily completed the prescribed training; and (c) _ holds, or will hold, an entry permit under the Fair Work Act or an industrial officer authority. 132 Consideration of application In considering whether to issue a WHS entry permit, the industrial registrar must take into account— (a) _ the object of this Act; and (b) _ the object of allowing union right of entry to workplaces for work health and safety purposes. 133 — Eligibility criteria The industrial registrar must not issue a WHS entry permit to an official of a union unless the industrial registrar is satisfied that the official— (a) is an official of the union; and (b) _ has satisfactorily completed the prescribed training; and (c) _ holds, or will hold, an entry permit under the Fair Work Act or an industrial officer authority. Page 109 Ree OO OADM FW WV re oO 14 17 2023 25 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders in [s 134] 134 Issue of WHS entry permit (1) The industrial registrar may issue a WHS entry permit to a person if the industrial registrar has taken into account the matters in section 132 and is satisfied about the matters section 133. (2) A person dissatisfied with the decision of the industrial registrar may appeal under the Industrial Relations Act 1999, chapter 9. Note— See the /ndustrial Relations Act 1999, sections 341(1) and 342(6). 135 Conditions on WHS entry permit The industrial registrar may impose conditions on a WHS entry permit. 136 Term of WHS entry permit A WHS entry permit has effect for a term of 3 years from the date it is issued. 137 Expiry of WHS entry permit (1) Unless it is earlier revoked, a WHS entry permit expires at t Page 110 first of the following to occur— (a) at the end of the term of the WHS entry permit; (b) at the end of the term of the entry permit held by t WHS entry permit holder under the Fair Work Act or the industrial officer authority; (c) when the permit holder ceases to be an official of t union that applied for the permit; (d) _ the union that applied for the permit ceases to be— (i) an organisation that is registered, or taken to ne he of ne be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or 0 MAD NEWNY — So 13 16 19 2225 28 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 138] (ii) an association of employees or independent contractors, or both, that is registered or recognised as an association of that type (however described) under the Jndustrial Relations Act 1999. (2) An application may be made for the issue of a subsequent WHS entry permit before or after the current WHS entry permit expires. 138 Application to revoke WHS entry permit (1) The following persons may apply to the commission for a WHS entry permit held by a person to be revoked— (2) (a) (b) (c) (d) the regulator; the relevant person conducting a _ business or undertaking; any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this part; any other person affected by the exercise or purported exercise of a right under this part by a WHS entry permit holder. The grounds for an application for revocation of a WHS entry permit are— (a) (b) (c) (d) that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or for an industrial officer authority; or that the permit holder has contravened any condition of the WHS entry permit; or that the permit holder has acted or purported to act in an improper way in the exercise of any right under this Act; or in exercising or purporting to exercise a right under this part, that the permit holder has intentionally hindered or Page 111 YAW BWNHH 11 13 151821 232528 3033 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 139] obstructed a person conducting the business or undertaking or workers at a workplace. (3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned. (4) The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application. 139 Commission must permit WHS entry permit holder to show cause (1) If, on an application under section 138, the commission is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the commission must— (2) Page 112 (a) (b) give the WHS entry permit holder written notice (a show cause notice); and if the commission considers it appropriate, suspend the operation of the WHS entry permit until the commission decides the application for revocation. The show cause notice must— (a) (b) contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the commission written reasons explaining why the WHS entry permit should not be revoked; and be accompanied by a summary of the reasons for the application; and if applicable, be accompanied by a notice of suspension of the permit. CID NWRW NE 1214 16 18222427 29 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 140] 140 Determination of application d) (2) (3) If the commission is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make 1 or more of the following orders— (a) an order imposing conditions on the WHS entry permit; (b) an order suspending the WHS entry permit; (c) an order revoking the WHS entry permit; (d) an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked; (e) anorder imposing any alternative action the commission considers appropriate. In deciding what action to take under subsection (1), in relation to a person, the commission must take into account— (a) the seriousness of any findings of the commission having regard to the object of this Act; and (b) any other matters the commission considers relevant. A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 1999, chapter 9. Note— See the /ndustrial Relations Act 1999, sections 341(1) and 342(1). Division 6 Dealing with disputes 141 Application for assistance of inspector to resolve dispute If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. Page 113 om NI DN FWHY ee re oO RR Wn ine ns — lon RRR own NY WY re oO 2527 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 142] 142 Commission may deal with a dispute about a right of entry under this Act d) (2) (3) (4) Page 114 The commission may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable). The commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration. If the commission deals with the dispute by arbitration, it may make | or more of the following orders— (a) an order imposing conditions on a WHS entry permit; (b) an order suspending a WHS entry permit; (c) an order revoking a WHS entry permit; (d) an order about the future issue of WHS entry permits to 1 or more persons; (e) any other order it considers appropriate. The commission may deal with the dispute— (a) onits own initiative; or (b) on application by any of the following to whom the dispute relates— (i) a WHS entry permit holder; (ii) the relevant union; (iii) the relevant person conducting a business or undertaking; (iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry; (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder; (vi) the regulator. OMANI ANBRW NY ee a) eiiilendiiilend WN eR nun re Re eR Cowon NW a) NN wiN NWN As NNW ona WwWwWhN No) uw N Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 143] (5) In dealing with a dispute, the commission must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this part. (6) A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 1999, chapter 9. Note— See the Jndustrial Relations Act 1999, sections 341(1) and 342(1) 143 Contravening order made to deal with dispute A person must not contravene an order under section 142(3). WHS civil penalty provision. Maximum penalty—100 penalty units. Division 7 Prohibitions 144 Person must not refuse or delay entry of WHS entry permit holder (1) A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under this part. WHS civil penalty provision. Maximum penalty—100 penalty units. (2) Subsection (1) places an evidential burden on the defendant to show a reasonable excuse. 145 Person must not hinder or obstruct WHS entry permit holder A person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace under this part. Page 115 COoMmAAIDMN FPWNe 1113 16 1821 23 25 27 Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 146] WHS civil penalty provision. Maximum penalty—100 penalty units. 146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace A WHS entry permit holder exercising, or seeking to exercise, rights under this part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper way. WHS civil penalty provision. Maximum penalty—100 penalty units. 147 Misrepresentations about things authorised by this part d) (2) A person must not take action— (a) with the intention of giving the impression; or (b) _ reckless as to whether the impression is given; that the doing of a thing is authorised by this part if it is not so authorised. WHS civil penalty provision. Maximum penalty—100 penalty units. Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised. 148 Unauthorised use or disclosure of information or documents Page 116 A person must not use or disclose information or a document obtained under division 2 in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless— (a) _ the person reasonably believes that the use or disclosure is necessary to lessen or prevent— N 0 OADM FW ll1316 18 20 22 2426 28 (b) (c) (d) Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 148] (i) aserious risk to a person's health or safety; or (ii) a serious threat to public health or safety; or the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or the use or disclosure is required or authorised by or under law; or the person reasonably believes that the use or disclosure is reasonably necessary for 1 or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 of the Commonwealth)— (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; (ii) the enforcement of laws relating to the confiscation of the proceeds of crime; (iii) the protection of the public revenue; (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or if the information is, or the document contains, personal information—the use or disclosure is made with the consent of the individual to whom the information relates. WHS civil penalty provision. Maximum penalty—100 penalty units. Page 117 Om ADNNSPW YN eet cell eel el oe' BWNr CO RR RR eornan Ne ow N e NNN BWN NNN AUDN WwWNWN rPoOowo oC WwW WwW N Work Health and Safety Bill 2011 Part 7 Workplace entry by WHS entry permit holders [s 149] Division 8 General 149 Return of WHS entry permits d) (2) The person to whom a WHS entry permit is issued must return the permit to the industrial registrar within 14 days of any of the following things happening— (a) _ the permit is revoked or suspended; (b) _ the permit expires. WHS civil penalty provision. Maximum penalty—20 penalty units. After the end of a period of suspension of a WHS entry permit, the industrial registrar must return the WHS entry permit to the person to whom it was issued if— (a) the person, or the person's union, applies to the industrial registrar for the return of the permit; and (b) _ the permit has not expired. 150 Union to provide information to industrial registrar Page 118 The relevant union must advise the industrial registrar if— (a) the WHS entry permit holder resigns from or otherwise leaves the union; or (b) the WHS entry permit holder has had any entry permit granted under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth (no matter when in force), or an industrial officer authority, cancelled or suspended; or (c) the union ceases to be— (i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (ii) an association of employees or independent contractors, or both, that is registered or recognised worANInN NPW WYN 1114 17 19 21232730 Work Health and Safety Bill 2011 Part 8 The regulator [s 151] as an association of that type (however described) under the Jndustrial Relations Act 1999. WHS civil penalty provision. Maximum penalty—S0 penalty units. 151 Register of WHS entry permit holders The industrial registrar must keep available for public access an up-to-date register of WHS entry permit holders as provided under a regulation. Part 8 The regulator Division 1 Functions of regulator 152 Functions of regulator The regulator has the following functions— (a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act; (b) to monitor and enforce compliance with this Act; (c) to provide advice and information on work health and safety to duty holders under this Act and to the community; (d) to collect, analyse and publish statistics relating to work health and safety; (e) to foster a cooperative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters; (f) to promote and support education and training on matters relating to work health and safety; Page 119 BW NR OAD MN 12 14 1720 2224 26 Work Health and Safety Bill 2011 Part 8 The regulator [s 153] (g) to engage in, promote and coordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator; (h) to conduct and defend proceedings under this Act before a court or tribunal; (i) any other function conferred on the regulator under this Act. Note— The regulator is appointed under schedule 2, part 1. 153 Powers of regulator (1) Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of the regulator's functions. (2) Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act. 154 Delegation by regulator (1) The regulator may delegate to an inspector, appropriately qualified public service employee or a person prescribed under a regulation a function or power under this Act. (2) In this section— appropriately qualified includes having the qualifications, experience or standing appropriate to perform the function or exercise the power. Example of standing— a person's classification level in the public service Page 120 Oo MI AUN PWNK — So 1316 192326 Division 2 Work Health and Safety Bill 2011 Part 8 The regulator [s 155] Powers of regulator to obtain information 155 Powers of regulator to obtain information (1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act. (2) (3) The regulator may, by written notice served on the person, require the person to do one or more of the following— (a) (b) (c) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the way stated in the notice, that information of which the person has knowledge; to produce to the regulator, in accordance with the notice, those documents; to appear before a person appointed by the regulator on a day, and at a time and place, stated in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents. The notice must— (a) (b) (c) state that the requirement is made under this section; and contain a statement to the effect that a failure to comply with a requirement is an offence; and if the notice requires the person to provide information or documents or answer questions— (i) contain a statement about the effect of sections 172 and 269; and (ii) state that the person may attend with a legal practitioner. Page 121 OADM H W \o 121417 192125 27 29 31 33 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 156] (4) The regulator must not make a requirement under subsection (2)(c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2)(a) and (b) and has been unable to do so. (5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty—100 penalty units. (6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse. (7) Section 172, with any necessary changes, applies to a requirement under this section. Part 9 Securing compliance Division 1 Appointment of inspectors 156 Appointment of inspectors d) (2) Page 122 The regulator may, by instrument, appoint any of the following as an inspector— (a) a public service employee; (b) an employee of a public authority; (c) _ the holder of a statutory office; (d) a person who is appointed as an inspector under a corresponding WHS law; (e) aperson of a class prescribed under a regulation. Without limiting subsection (1)(d), arrangements may be made for that paragraph under the Public Service Act 2008, sections 183 and 184 as if reference in those sections to the chief executive were a reference to the regulator. RePe OA NN DUN FWNeK re oO 16 1821 2426 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 157] Identity cards d) (2) (3) (4) The regulator must give each inspector an identity card that states the person's name and appointment as an inspector and includes any other matter prescribed under a regulation. In exercising a compliance power in relation to a person, an inspector must— (a) produce the inspector's identity card for the person's inspection before exercising the power; or (b) _ have the identity card displayed so it is clearly visible to the person when exercising the power. However, if it is not practicable to comply with subsection (2), the inspector must produce the identity card for the person's inspection at the first reasonable opportunity. If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the regulator as soon as practicable. Maximum penalty—40 penalty units. Accountability of inspectors d) (2) An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector's functions. The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter and the regulator considers that the inspector should not deal, or should no longer deal, with the matter. Note— Failure to comply with subsection (1) or (2) may result in action by the regulator under section 159 (Suspension and ending of appointment of inspectors) or disciplinary action under the Public Service Act 2008. Page 123 CON AN BWN 12152022 242628 31 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 159] 159 Suspension and ending of appointment of inspectors (1) The regulator may suspend or end the appointment of an inspector. (2) A person's appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector. Division 2 Functions and powers of inspectors 160 Functions and powers of inspectors An inspector has the following functions and powers under this Act— (a) to provide information and advice about compliance with this Act; (b) to assist in the resolution of— (i) work health and safety issues at workplaces; and (ii) issues related to access to a workplace by an assistant to a health and safety representative; and (iii) issues related to the exercise or purported exercise of a right of entry under part 7; (c) to review disputed provisional improvement notices; (d) to require compliance with this Act through the issuing of notices; (e) to investigate contraventions of this Act and assist in the prosecution of offences. 161 Conditions on inspectors' compliance powers An inspector's compliance powers are subject to any conditions stated in the instrument of the inspector's appointment. Page 124 nab WN 11 13 15 17 20 22 25 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 162] 162 Inspectors subject to regulator's directions (1) An inspector is subject to the regulator's directions in the exercise of the inspector's compliance powers. (2) A direction under subsection (1) may be of a general nature or may relate to a stated matter or stated class of matter. (3) Without limiting subsection (1), the regulator must issue directions to inspectors to ensure powers are exercised under this part in a way that minimises any adverse affect on the privacy, confidentiality and security of persons and businesses. Division 3 Powers relating to entry Subdivision 1 General powers of entry Powers of entry d) (2) (3) (4) An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace. An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace. If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately. An inspector may enter any place if the entry is authorised by a search warrant. Note— An inspector may enter residential premises to gain access to a workplace (see section 170(c)). Notification of entry d) An inspector may enter a place under section 163 without prior notice to any person. Page 125 FP OmMAND VF WHY 15 1720 22 25 28 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 165] (2) (3) (4) An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry— (a) _ the relevant person conducting a business or undertaking at the workplace; (b) the person with management or control of the workplace; (c) any health and safety representative for workers carrying out work for that business or undertaking at the workplace. However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay. In this section, relevant person conducting a business or undertaking means the person conducting any business or undertaking in relation to which the inspector is exercising the powers of entry. 165 General powers on entry d) Page 126 An inspector who enters a workplace under this division may do all or any of the following— (a) inspect, examine and make inquiries at the workplace; (b) inspect and examine anything, including a document, at the workplace; (c) bring to the workplace and use any equipment or materials that may be required; (d) take measurements, conduct tests and make sketches or recordings, including photographs, films, audio, video, digital or other recordings; (e) take and remove for analysis a sample of any substance or thing without paying for it; CN AN BWNeE 11 131618 21 24 26 2831 (2) (3) Work Health and Safety Bill 2011 Part 9 Securing compliance [s 166] (f) require a person at the workplace to give the inspector reasonable help to exercise the inspector's powers under paragraphs (a) to (e); (g) exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of this Act. A person required to give reasonable help under subsection (1)(f) must not, without reasonable excuse, refuse or fail to comply with the requirement. Maximum penalty—100 penalty units. Subsection (2) places an evidential burden on the accused to show a reasonable excuse. Persons assisting inspectors d) (2) (3) A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 165 to assist the inspector if the inspector considers the assistance is necessary. The assistant— (a) may do the things at the place and in the way that the inspector reasonably requires to assist the inspector to exercise compliance powers; but (b) must not do anything that the inspector does not have power to do, except as permitted under a search warrant. Anything done lawfully by the assistant is taken for all purposes to have been done by the inspector. Subdivision 2 Search warrants Search warrants d) An inspector may apply to a magistrate for a search warrant for a place. Page 127 COAN DANK WNe — So ao Ne 1517 2023 25 29 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 167A] (2) (3) (4) (5) The application must be sworn and state the grounds on which the warrant is sought. The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. Example— The magistrate may require additional information supporting the application to be given by statutory declaration. The magistrate may issue a search warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and (b) _ the evidence is, or may be within the next 72 hours, at the place. The search warrant must state— (a) that a stated inspector may, with necessary and reasonable help and force, enter the place and exercise the inspector's compliance powers; and (b) _ the offence for which the search warrant is sought; and (c) the evidence that may be seized under the search warrant; and (d) the hours of the day or night when the place may be entered; and (e) the date, within 7 days after the search warrant's issue, the search warrant ends. 167A Electronic application d) Page 128 An application under section 167 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the inspector reasonably considers it necessary because of— OMmrANI ANF W NK See NRO eile RW rR nun — ey Noe laa onic <} N e NN wh NN aw Nw NO 3032 (2) (3) (4) (5) (6) Work Health and Safety Bill 2011 Part 9 Securing compliance [s 167A] (a) urgent circumstances; or (b) other special circumstances, including, for example, the inspector's remote location. The application— (a) may not be made before the inspector prepares a written application under section 167(2); but (b) may be made before the application is sworn. The magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied— (a) it was necessary to make the application under this section; and (b) _ the way the application was made was appropriate. After the magistrate issues the original warrant— (a) if there is a reasonably practicable way of immediately giving a copy of the warrant to the inspector, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the inspector; or (b) otherwise— (i) the magistrate must tell the inspector the information mentioned in section 167(5); and (ii) the inspector must complete a form of warrant, including by writing on it the information mentioned in section 167(5) provided by the magistrate. The copy of the warrant mentioned in subsection (4)(a), or the form of warrant completed under subsection (4)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant. The inspector must, at the first reasonable opportunity, send to the magistrate— (a) the written application complying with section 167(2); and Page 129 om NY DAN fF WN ee re oO iio Ww N RR eRe eCerAIANMNA ee \o NW a) NNNWN nBWN YNNNW COmAND Ww a) W UW Wn Work Health and Safety Bill 2011 Part 9 Securing compliance [s 168] 7) (8) (9) (10) (b) if the inspector completed a form of warrant under subsection (4)(b)—the completed form of warrant. The magistrate must keep the original warrant and, on receiving the documents under subsection (6)— (a) attach the documents to the original warrant; and (b) give the original warrant and documents to the clerk of the court of the relevant Magistrates Court. Despite subsection (5), if— (a) an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and (b) _ the original warrant is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power. This section does not limit section 167. In this section— relevant Magistrates Court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991. Note— In relation to the numbering of this section, see the note to section 3. 168 Announcement before entry on warrant d) (2) Page 130 Before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must— (a) announce that he or she is authorised by the warrant to enter the place; and (b) _ give any person at the place an opportunity to allow that entry. However, the inspector or an assistant to the inspector is not required to comply with subsection (1) if he or she believes on CID WNW PW NE 11 1417 1922 25 27 29 31 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 169] reasonable grounds that immediate entry to the place is needed to ensure— (a) _ the safety of any person; or (b) that the effective execution of the warrant is not frustrated. 169 Copy of warrant to be given to person with management or control of place d) (2) If the person who has or appears to have management or control of a place is present at the place when a search warrant is being executed, the inspector must— (a) identify himself or herself to that person by producing his or her identity card for inspection; and (b) give that person a copy of the execution copy of the warrant. In this section— execution copy includes a duplicate warrant mentioned in section 167A(5). Subdivision 3 Limitation on entry powers 170 Places used for residential purposes Despite anything else in this division, the powers of an inspector under this division in relation to entering a place are not exercisable in relation to any part of a place that is used only for residential purposes except— (a) with the consent of the person with management or control of the place; or (b) under the authority conferred by a search warrant; or (c) for the purpose only of gaining access to a suspected workplace, but only— Page 131 ab WwW Ne ow NO 12 14 17 2123 25 28 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 171] (i) if the inspector reasonably believes that no reasonable alternative access is available; and (ii) at a reasonable time having regard to the times at which the inspector believes work is being carried out at the place to which access is sought. Subdivision 4 Specific powers on entry 171 +Power to require production of documents and answers to questions d) (2) (3) (4) (5) Page 132 An inspector who enters a workplace under this division may— (a) require a person to tell the inspector who has custody of, or access to, a document; or (b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a stated period; or (c) require a person at the workplace to answer any questions put by the inspector. A requirement under subsection (1)(b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document. An interview conducted by an inspector under subsection (1)(c) must be conducted in private if— (a) _ the inspector considers it appropriate; or (b) _ the person being interviewed so requests. Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview. Subsection (3) may be invoked during an interview by— (a) _ the inspector; or ABW Ne 12 1416 18 2023 25 2730 (6) 7) Work Health and Safety Bill 2011 Part 9 Securing compliance [s 172] (b) _ the person being interviewed; in which case the subsection applies to the remainder of the interview. A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty—100 penalty units. Note— See sections 172 and 173 in relation to self-incrimination and section 269 in relation to legal professional privilege. Subsection (6) places an evidential burden on the accused to show a reasonable excuse. Abrogation of privilege against self-incrimination d) (2) A person is not excused from answering a question or providing information or a document under this part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty. However, the answer to a question or information or a document provided by an individual, and other evidence directly or indirectly derived from the answer, information or document, is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document. Warning to be given d) Before requiring a person to answer a question or provide information or a document under this part, an inspector must— (a) identify himself or herself to the person as an inspector by producing the inspector's identity card or in some other way; and Page 133 Ree ODN DD NK WN re oO 14161921232730 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 174] (2) (3) (b) warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and (c) warn the person about the effect of section 172; and (d) advise the person about the effect of section 269. It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector under this part on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning in subsection (1)(c). Nothing in this section prevents an inspector from obtaining and using evidence given to the inspector voluntarily by any person. 174 Powers to copy and retain documents d) (2) An inspector may— (a) make copies of, or take extracts from, a document given to the inspector under a requirement under this Act; and (b) keep that document for the period that the inspector considers necessary. While an inspector retains custody of a document, the inspector must permit the following persons to inspect or make copies of the document at all reasonable times— (a) the person who produced the document; (b) the owner of the document; (c) a person authorised by a person mentioned in paragraph (a) or (b). 175 Power to seize evidence etc. d) Page 134 An inspector who enters a workplace under this part may— COAND NWN FP WNe ee re oO enilandilend WN 16 18 20 2225 27 29 (a) (b) Work Health and Safety Bill 2011 Part 9 Securing compliance [s 176] seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act; or take and remove for analysis, testing or examination a sample of any substance or thing without paying for it. (2) An inspector who enters a place with a search warrant may seize the evidence for which the warrant was issued. (3) An inspector may also seize anything else at the place if the inspector reasonably believes— (a) (b) the thing is evidence of an offence against this Act; and the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence. 176 _Inspector's power to seize dangerous workplaces and things (1) This section applies if an inspector who enters a workplace under this part reasonably believes that— (a) (b) (c) (d) the workplace or part of the workplace; or plant at the workplace; or a substance at the workplace or part of the workplace; or a structure at a workplace; is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur. (2) The inspector may seize the workplace or part, the plant, the substance or the structure. 177 Powers supporting seizure (1) Having seized a thing, an inspector may— (a) move the thing from the place where it was seized (the place of seizure); or Page 135 COA ND NH WNe — So RRR WNe 15 17 1921 23 25 27 29 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 177] (2) (3) (4) (5) (6) 7) Page 136 (b) _ leave the thing at the place of seizure but take reasonable action to restrict access to it; or Examples— 1 sealing a thing and marking it to show access to it is restricted 2 sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted (c) _ if the thing is plant or a structure—dismantle or cause to be dismantled the plant or structure. If an inspector restricts access to a seized thing, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector's approval. Maximum penalty—100 penalty units. To enable a thing to be seized, an inspector may require the person in control of it— (a) to take it to a stated reasonable place by a stated reasonable time; and (b) _ if necessary, to remain in control of it at the stated place for a reasonable time. The requirement— (a) must be made by written notice; or (b) if for any reason it is not practicable to give the notice, may be made orally and confirmed by written notice as soon as practicable. A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement. The person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (3) or (5). Maximum penalty—100 penalty units. Subsection (6) places an evidential burden on the defendant to show a reasonable excuse. Om AND MBP WNYE See NRO me ww ine ns RR on eR ow NY NY r- CO NNN BWN NNN AUDN YVNw ow we Oo WwW Ww Noe Work Health and Safety Bill 2011 Part 9 Securing compliance [s 178] Receipt for seized things (1) As soon as practicable after an inspector seizes a thing, the inspector must give a receipt for it to the person from whom it was seized. (2) However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place of seizure. (3) The receipt must describe generally each thing seized and its condition. (4) This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt required by this section (given the thing's nature, condition and value). Forfeiture of seized things (1) A seized thing is forfeited to the State if the regulator— (a) can not find the person entitled to the thing after making reasonable inquiries; or (b) can not return it to the person entitled to it, after making reasonable efforts; or (c) reasonably believes it is necessary to forfeit the thing to prevent it being used to commit an offence against this Act. (2) Subsection (1)(a) does not require the regulator to make inquiries if it would be unreasonable to make inquiries to find the person entitled to the thing. (3) Subsection (1)(b) does not require the regulator to make efforts if it would be unreasonable to make efforts to return the thing to the person entitled to it. (4) If the regulator decides to forfeit the thing under subsection (1)(c), the regulator must tell the person entitled to the thing of the decision by written notice. (5) Subsection (4) does not apply if— Page 137 CIDM BwWN 1215 17 19 21242730 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 180] (6) 7) (8) (9) (a) the regulator can not find the person entitled to the thing, after making reasonable inquiries; or (b) it is impracticable or would be unreasonable to give the notice. The notice must state— (a) the reasons for the decision; and (b) that the person entitled to the thing may apply within 28 days after the date of the notice for the decision to be reviewed; and (c) how the person may apply for the review; and (d) | that the person may apply for a stay of the decision if the person applies for a review. In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing's nature, condition and value. Any costs reasonably incurred by the State in storing or disposing of a thing forfeited under subsection (1)(c) may be recovered in a court of competent jurisdiction as a debt due to the State from that person. In this section, person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it in which case it means the owner of the thing. 180 Return of seized things d) (2) (3) Page 138 If a seized thing has not been forfeited, the person entitled to the thing may apply to the regulator for the return of the thing after the end of 6 months after it was seized. The regulator must return the thing to the applicant under subsection (1) unless the regulator has reasonable grounds to retain the thing. The regulator may impose any conditions on the return of the thing under this section that the regulator considers OMANI DN PW Ne — So ao Ne RRR eR NNW | SO cell ell onl ounAnNnt NNN WN 262932 (4) Work Health and Safety Bill 2011 Part 9 Securing compliance [s 181] appropriate to eliminate or minimise any risk to work health or safety related to the thing. In this section, person entitled to a thing means the person entitled to possess the thing or the owner of the thing. 181 Access to seized things d) (2) Until a seized thing is forfeited or returned, the regulator must permit the following persons to inspect it and, if it is a document, to make copies of it at all reasonable times— (a) _ the person from whom the thing was seized; (b) _ the owner of the thing; (c) a person authorised by a person mentioned in paragraph (a) or (b). Subsection (1) does not apply if it is impracticable or would be unreasonable to allow inspection or copying. Division 4 Damage and compensation 182 Damage etc. to be minimised In the exercise, or purported exercise, of a compliance power, an inspector must take all reasonable steps to ensure that the inspector, and any assistant to the inspector, cause as little inconvenience, detriment and damage as is practicable. 183 Inspector to give notice of damage d) (2) This section applies if an inspector or an assistant to an inspector damages a thing when exercising or purporting to exercise a compliance power. The inspector must, as soon as practicable, give written notice of the damage to the person who the inspector believes on reasonable grounds, is the person in control of the thing. Page 139 BW NR Oo DAN N 12 14 1820 2326 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 184] (3) (4) (5) If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector's or assistant's control, the inspector may state it in the notice. If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened. This section does not apply to damage the inspector reasonably believes is trivial. Compensation d) (2) (3) (4) A person may claim compensation from the State if the person incurs loss or expense because of the exercise or purported exercise of a power under division 3. Compensation may be claimed and ordered in a proceeding— (a) taken in a court of competent jurisdiction; or (b) for an offence against this Act taken against the person claiming compensation. The court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case. A regulation may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order. Division 5 Other matters Power to require name and address d) Page 140 An inspector may require a person to provide the person's name and residential address if— (a) the inspector finds the person committing an offence against this Act; or Com ADM WNe 1215 17 192227 29 (2) (3) (4) (5) (6) Work Health and Safety Bill 2011 Part 9 Securing compliance [s 186] (b) _ the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has just committed an offence against this Act. When asking a person to provide his or her name and residential address, the inspector must— (a) _ tell the person the reason for the requirement to provide his or her name and residential address; and (b) warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse. If the inspector reasonably believes that the name or residential address is false, the inspector may require the person to give evidence of its correctness. A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) or (3). Maximum penalty—100 penalty units. Subsection (4) places an evidential burden on the defendant to show a reasonable excuse. The person does not commit an offence against subsection (4) if— (a) the person was required to state the person's name and address by an inspector who suspected the person had committed an offence against this Act; and (b) _ the person is not proved to have committed the offence. 186 Inspector may take affidavits An inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of his or her compliance powers. Page 141 CN AN BWNeE 11 1316 19 21 2328 Work Health and Safety Bill 2011 Part 9 Securing compliance [s 187] 187 Inspector at coronial inquests Under and subject to the Coroners Act 2003, section 36, an inspector may appear at and otherwise participate in any coroners inquest into the cause of death of a worker while carrying out work. Division 6 Offences in relation to inspectors 188 Offence to hinder or obstruct inspector A person must not intentionally hinder or obstruct an inspector in exercising his or her compliance powers, or induce or attempt to induce any other person to do so. Maximum penalty—100 penalty units. 189 Offence to impersonate inspector A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector. Maximum penalty—100 penalty units. 190 Offence to assault, threaten or intimidate inspector A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an inspector or a person assisting an inspector. Maximum penalty—SO0 penalty units or 2 _ years imprisonment. Page 142 MBWN 11 14 1821 Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 191] Part 10 Enforcement measures Division 1 Improvement notices 191 Issue of improvement notices (1) This section applies if an inspector reasonably believes that a person— (a) is contravening a provision of this Act; or (b) _ has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. (2) The inspector may issue an improvement notice requiring the person to— (a) remedy the contravention; or (b) | prevent a likely contravention from occurring; or (c) remedy the things or operations causing the contravention or likely contravention. 192 Contents of improvement notices (1) An improvement notice must state— (a) that the inspector believes the person— (i) is contravening a provision of this Act; or (ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and (b) the provision the inspector believes is being, or has been, contravened; and (c) briefly, how the provision is being, or has been, contravened; and (d) the day by which the person is required to remedy the contravention or likely contravention. Page 143 COmANY HD NH W 11 13 15 1719 2124 26 28 Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 193] (2) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. (3) The day stated for compliance with the improvement notice must be reasonable in all the circumstances. 193 Compliance with improvement notice The person to whom an improvement notice is issued must comply with the notice within the period stated in the notice. Maximum penalty—S00 penalty units. 194 Extension of time for compliance with improvement notices (1) This section applies if a person has been issued with an improvement notice. (2) An inspector may, by written notice given to the person, extend the compliance period for the improvement notice. (3) However, the inspector may extend the compliance period only if the period has not ended. (4) In this section— compliance period means the period stated in the improvement notice under section 192, and includes that period as extended under this section. Division 2 Prohibition notices 195 Power to issue prohibition notice (1) This section applies if an inspector reasonably believes that— (a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a Page 144 NAD NSPWNK 11 13 15 17 19 2226 28 (2) (3) Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 196] person emanating from an immediate or imminent exposure to a hazard; or (b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a stated way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied. The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable. Contents of prohibition notice d) (2) (3) A prohibition notice must state— (a) that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief; and (b) _ briefly, the activity that the inspector believes involves or will involve the risk and the matters that give or will give rise to the risk; and (c) the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity. A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in subsection (1)(c). Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a stated way may do so by specifying 1 or more of the following— (a) a workplace, or part of a workplace, at which the activity is not to be carried out; Page 145 OMANI ANFKW NY ee a) enilantilend WN 16 182124 2628 3033 Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 197] (b) anything that is not to be used in connection with the activity; (c) any procedure that is not to be followed in connection with the activity. 197 Compliance with prohibition notice The person to whom a direction is given under section 195(2) or a prohibition notice is issued must comply with the direction or notice. Maximum penalty—1000 penalty units. Division 3 Non-disturbance notices 198 Issue of non-disturbance notice An inspector may issue a non-disturbance notice to the person with management or control of a workplace if the inspector reasonably believes that it is necessary to do so to facilitate the exercise of his or her compliance powers. 199 Contents of non-disturbance notice d) (2) Page 146 A non-disturbance notice may require the person to— (a) preserve the site at which a notifiable incident has occurred for a stated period; or (b) | prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a stated period that is reasonable in the circumstances. A non-disturbance notice must state the period (of no more than 7 days) for which it applies and set out— (a) the obligations of the person to whom the notice is issued; and (b) the measures to be taken to preserve a site or prevent disturbance of a site; and BW NR Oo AAD MN 1315 17 19 2124 26 28 (3) (4) Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 200] (c) | the penalty for contravening the notice. In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the site. A non-disturbance notice does not prevent any action— (a) _ to assist an injured person; or (b) to remove a deceased person; or (c) that is essential to make the site safe or to prevent a further incident; or (d) _ that is associated with a police investigation; or (e) for which an inspector has given permission. 200 Compliance with non-disturbance notice d) (2) A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person. Maximum penalty—S00 penalty units. Subsection (1) places an evidential burden on the defendant to show a reasonable excuse. 201 Issue of subsequent notices If an inspector considers it necessary to do so, he or she may issue 1 or more subsequent non-disturbance notices to a person, whether before or after the expiry of the previous notice, each of which must comply with section 199. Division 4 General requirements applying to notices 202 Application of division In this division notice means improvement notice, prohibition notice or non-disturbance notice. Page 147 COMPAID N FF WN — So 13 16 1921 23 26 Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 203] 203 _=—Notice to be in writing A notice must be in writing. 204 _—ODirections in notices A direction included in an improvement notice or prohibition notice may— (a) refer to a code of practice; and (b) _ offer the person to whom it is issued a choice of ways in which to remedy the contravention. 205 Recommendations in notice d) (2) An improvement notice or prohibition notice may include recommendations. It is not an offence to fail to comply with recommendations in a notice. 206 Changes to notice by inspector d) (2) An inspector may make minor changes to a notice— (a) for clarification; or (b) to correct errors or references; or (c) to reflect changes of address or other circumstances. An inspector may also, under section 194, extend the compliance period for an improvement notice. 207 Regulator may vary or cancel notice Except as provided in section 206, a notice issued by an inspector may only be varied or cancelled by the regulator. 208 'Formal irregularities or defects in notice Page 148 A notice is not invalid only because of— eOornN HD ns W 11 13 151720 23 25 (a) (b) Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 209] a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person under section 209. 209 _—iIssue and giving of notice (1) A notice may be issued or given to a person— (2) (a) (b) (c) (d) by delivering it personally to the person or sending it by post or facsimile or electronic transmission to the person's usual or last known place of residence or business; or by leaving it for the person at the person's usual or last known place of residence or business with a person who appears to be over 16 years and who appears to reside or work there; or by leaving it for the person at the workplace to which the notice relates with a person who is or appears to be the person with management or control of the workplace; or in a prescribed way. A regulation may prescribe— (a) (b) the way of issuing a notice; and the steps a person to whom a notice is issued must take to bring it to the attention of other persons. 210 Display of notice (1) A person to whom a notice is issued must, as soon as possible, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. Page 149 NAW WNR 1113 1517 1921 2326 2931 Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 211] Maximum penalty—S0 penalty units. (2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force. Maximum penalty—S0 penalty units. Division 5 Remedial action 211 When regulator may carry out action (1) This section applies if a person to whom a prohibition notice is issued fails to take reasonable steps to comply with the notice. (2) The regulator may take any remedial action the regulator believes reasonable to make the workplace or situation safe after giving written notice to the person to whom the prohibition notice was issued of— (a) _ the regulator's intention to take that action; and (b) the owner's or person's liability for the costs of that action. 212 ~Power of the regulator to take other remedial action (1) This section applies if the regulator reasonably believes that— (a) circumstances in which a prohibition notice can be issued exist; and (b) a prohibition notice can not be issued at a workplace because, after taking reasonable steps, the person with management or control of the workplace can not be found. (2) The regulator may take any remedial action necessary to make the workplace safe. Page 150 nA BWN 1214 17 19 21 2325 27 Work Health and Safety Bill 2011 Part 10 Enforcement measures [s 213] 213 Costs of remedial or other action The regulator may recover the reasonable costs of any remedial action taken under— (a) section 211 from the person to whom the notice is issued; or (b) section 212 from any person to whom the prohibition notice could have been issued in relation to the matter; as a debt due to the regulator. Division 6 Injunctions 214 Application of division In this division, notice means improvement notice, prohibition notice or non-disturbance notice. 215 Injunctions for noncompliance with notices (1) The regulator may apply to a Magistrates Court for an injunction— (a) compelling a person to comply with a notice; or (b) _ restraining a person from contravening a notice. (2) The regulator may do so— (a) whether or not proceedings have been taken for an offence against this Act in connection with any matter in relation to which the notice was issued; and (b) whether any period for compliance with the notice has expired. Page 151 CeAND NH WN 12 15 172023 Work Health and Safety Bill 2011 Part 11 Enforceable undertakings [s 216] Part 11 Enforceable undertakings 216 Regulator may accept WHS undertakings d) (2) (3) The regulator may accept a written undertaking (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act. Note— Section 230(3) requires the regulator to publish guidelines in relation to the acceptance of WHS undertakings. A WHS undertaking can not be accepted for a contravention or alleged contravention that is a category 1 offence. The giving of a WHS undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates. 217 Notice of decision and reasons for decision d) (2) The regulator must give the person seeking to make a WHS undertaking written notice of the regulator's decision to accept or reject the WHS undertaking and of the reasons for the decision. The regulator must publish, on the regulator's website, notice of a decision to accept a WHS undertaking and the reasons for that decision. 218 Whena WHS undertaking is enforceable Page 152 A WHS undertaking takes effect and becomes enforceable when the regulator's decision to accept the undertaking is given to the person who made the undertaking or at any later date stated by the regulator. Om IA DNSW LY 11 1315 1820 222628 Work Health and Safety Bill 2011 Part 11 Enforceable undertakings [s 219] Compliance with WHS undertaking A person must not contravene a WHS undertaking made by that person that is in effect. Maximum penalty—S00 penalty units. Contravention of WHS undertaking d) (2) (3) (4) The regulator may apply to a Magistrates Court for an order if a person contravenes a WHS undertaking. If the court is satisfied that the person who made the WHS undertaking has contravened the undertaking, the court, in addition to the imposition of any penalty, may make 1 or both of the following orders— (a) an order directing the person to comply with the undertaking; (b) an order discharging the undertaking. In addition to the orders mentioned in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the person to pay to the State— (a) _ the costs of the proceedings; and (b) the reasonable costs of the regulator in monitoring compliance with the WHS undertaking in the future. Nothing in this section prevents proceedings being taken for the contravention or alleged contravention of this Act to which the WHS undertaking relates. Note— Section 222 specifies circumstances affecting proceedings for a contravention for which a WHS undertaking has been given. Withdrawal or variation of WHS undertaking d) A person who has made a WHS undertaking may at any time, with the written agreement of the regulator— Page 153 BR WN Om ANN 11 13 1618 21 2327 30 Work Health and Safety Bill 2011 Part 12 Review of decisions [s 222] (2) (3) (a) withdraw the undertaking; or (b) vary the undertaking. However, the provisions of the undertaking can not be varied to provide for a different alleged contravention of the Act. The regulator must publish, on the regulator's website, notice of the withdrawal or variation of a WHS undertaking. 222 Proceeding for alleged contravention d) (2) (3) (4) Part 12 Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be taken against a person if a WHS undertaking is in effect in relation to that contravention. No proceedings may be taken for a contravention or alleged contravention of this Act against a person who has made a WHS undertaking in relation to that contravention and has completely discharged the WHS undertaking. The regulator may accept a WHS undertaking in relation to a contravention or alleged contravention before proceedings in relation to that contravention have been finalised. If the regulator accepts a WHS undertaking before the proceedings are finalised, the regulator must take all reasonable steps to have the proceedings discontinued as soon as possible. Review of decisions Division 1 Reviewable decisions 223 ~~ Which decisions are reviewable d) Page 154 The table in schedule 2A states— Dn BW NY 11 1315 172022 26 (a) (b) (c) Work Health and Safety Bill 2011 Part 12 Review of decisions [s 224] decisions made under this Act that are reviewable under this part (reviewable decisions); and who is eligible to apply for review of a reviewable decision (the eligible person); and the body (the external review body) on which jurisdiction is conferred to hear and decide an external review relating to a reviewable decision. (2) Unless the contrary intention appears, a reference in this part and schedule 2A to a decision includes a reference to— (a) (b) (c) (d) (e) (f) (g) making, suspending, revoking or refusing to make an order, determination or decision; or giving, suspending, revoking or refusing to give a direction, approval, consent or permission; or issuing, suspending, revoking or refusing to issue an authorisation; or imposing a condition; or making a declaration, demand or requirement; or retaining, or refusing to deliver up, a thing; or doing or refusing to do any other act or thing. (3) A reference in schedule 2A to a person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it, in which case it means the owner of the thing. Note— Decisions under a regulation that will be reviewable decisions will be stated in the regulation. Division 2 Internal review 224 Application for internal review (1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the Page 155 Com ADM PW NRE ee a) tiled Wh lined ns Lt atl el el Conon a NNWYW WNrF Oo tu nN NN ann 30 Work Health and Safety Bill 2011 Part 12 Review of decisions [s 225] (2) (3) regulator, may apply to the regulator for review (an internal review) of the decision within— (a) _ the prescribed time after the day on which the decision first came to the eligible person's notice; or (b) _ the longer period the regulator allows. The application must be made in the way and in the form required by the regulator. For this section, the prescribed time is— (a) for a decision to issue an improvement notice the period stated in the notice for compliance with the notice or 14 days, whichever is the lesser; and (b) otherwise—14 days. 225 Internal reviewer d) (2) The regulator may appoint a person or body to review decisions on applications under this division. The person who made the decision can not be an internal reviewer in relation to that decision. 226 ~_— Decision of internal reviewer d) (2) (3) Page 156 The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received. The decision may be— (a) to confirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer. CID NW BW HE 11 15 17 2022 24 2629 (4) (5) (6) Work Health and Safety Bill 2011 Part 12 Review of decisions [s 227] The applicant must provide the further information within the time (being not less than 7 days) stated by the internal reviewer in the request for information. If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time. If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer. 227 ~_ Decision on internal review As soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing— (a) the decision on the internal review; and (b) the reasons for the decision. 228 Stay of reviewable decisions on internal review d) (2) (3) (4) (5) An application for an internal review of a reviewable decision (other than a decision to issue a prohibition notice or a non-disturbance notice) stays the operation of the decision. If an application is made for an internal review of a decision to issue a prohibition notice or a non-disturbance notice, the reviewer may stay the operation of the decision. The reviewer may make the decision to stay the operation of a decision on the reviewer's own initiative or on the application of the applicant for review. The reviewer must make a decision on an application for a stay within 1 working day after the reviewer receives the application. If the reviewer has not made a decision to stay a decision within the time set out in subsection (4), the reviewer is taken to have made a decision to grant a stay. Page 157 COAN DANK WNe 12 14 1720232629 Work Health and Safety Bill 2011 Part 12 Review of decisions [s 229] (6) A stay of the operation of a decision pending a decision on an internal review continues until whichever of the following is the earlier— (a) the end of the prescribed period for applying for an external review of the decision made on the internal review; (b) an application for external review is made. Division 3 External review 229 ~=Application for external review d) (2) (3) An eligible person may apply to the external review body for a review (an external review) of— (a) areviewable decision made by the regulator; or (b) a decision made, or taken to have been made, on an internal review. A review by QCAT is provided for under the QCAT Act. Note— See QCAT Act, chapter 2, part 1, division 3 (Review jurisdiction). A review by the commission is provided for under division 4. Division 4 Review by commission 229A Decision Page 158 A person applying for an external review by the commission (a review) of a decision (the decision) has a right to a statement of— (a) the decision; and (b) the reasons for the decision. NY AWA WHE 11 14 162225 Work Health and Safety Bill 2011 Part 12 Review of decisions [s 229B] Note— In relation to the numbering of this division, see the note to section 3. 229B How to start review 229C d) (2) (3) (4) A review is started by— (a) filing a written application for a review with the industrial registrar; and (b) complying with the rules applying to applications for reviews by the commission under the Jndustrial Relations Act 1999. The application for a review must be filed within 30 days after the day on which the decision first came to the applicant's notice. The commission may at any time extend the period for filing the application for a review. The application for a review must state fully the grounds of the application and the facts relied on. Stay of operation of decision d) (2) (3) (4) The commission may grant a stay of the decision to secure the effectiveness of the review. A stay— (a) may be given on the conditions the commission considers appropriate; and (b) operates for the period fixed by the commission; and (c) may be revoked or amended by the commission. The period of a stay must not extend past the time when the commission decides the application. An application affects the decision, or carrying out of the decision, only if the decision is stayed. Page 159 COmAANI AN FW 1114 16 19 22 24 26 28 Work Health and Safety Bill 2011 Part 12 Review of decisions [s 229D] 229D Hearing procedures d) (2) The procedure for an application for a review is to be under the rules applying to applications for review by the commission under the /ndustrial Relations Act 1999 or, if the rules make no provision or insufficient provision, in accordance with directions of the commission. An application for a review is to be dealt with by way of rehearing, unaffected by the decision. 229E Powers of commission on application d) (2) In deciding an application for a review, the commission may— (a) confirm the decision; or (b) _ vary the decision; or (c) set aside the decision and make a decision in substitution for it; or (d) set aside the decision and return the issue to the decision-maker with directions the commission considers appropriate. If the commission acts under subsection (1)(b) or (c), the decision is taken, for this Act (other than this part), to be that of the person whose decision was the subject of the application. 229F Appeals Page 160 A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 1999, chapter 9. Note— See the Industrial Relations Act 1999, sections 341(1) and 342(1). Cr ANBWNY 11 13 15 172022 2528 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 230] Part 13 Legal proceedings Division 1 General matters 230 Prosecutions (1AA) Proceedings for an offence against this Act, other than a category 1 offence, must be taken in a summary way under the Justices Act 1886. Note— In relation to the numbering of this section, see the note to section 3. (1) Subject to subsection (4), proceedings for an offence against this Act may only be taken by— (a) the regulator; or (b) an inspector with the written authorisation of the regulator, either generally or in a particular case. (2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons. (3) The regulator must issue, and publish on the regulator's website, general guidelines in relation to— (a) _ the prosecution of offences under this Act; and (b) the acceptance of WHS undertakings under this Act. (4) Nothing in this section affects the ability of the director of public prosecutions to bring proceedings for an offence against this Act. 231 ~+Procedure if prosecution is not brought dG) TR (a) a person reasonably considers that an act or omission constitutes a category | offence or a category 2 offence; and Page 161 orn anst Ww 11 13 1518 20 2225 27 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 231] (2) (3) (4) (5) Page 162 (b) _ no prosecution has been brought in relation to the act or omission after 6 months but not later than 12 months after the act or omission happens; the person may make a written request to the regulator that a prosecution be brought. Within 3 months after the regulator receives a request the regulator must— (a) advise the person, in writing— (i) whether the investigation is complete; and Gi) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought; and (b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a). If the regulator advises the person that a prosecution for a category 1 or category 2 offence will not be brought, the regulator must— (a) advise the person that the person may ask the regulator to refer the matter to the director of public prosecutions for consideration; and (b) _ if the person makes a written request to the regulator to do so, refer the matter to the director of public prosecutions within 1 month of the request. The director of public prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the director considers that a prosecution should be brought. The regulator must ensure a copy of the advice is given to— (a) the person who made the request; and (b) the person who the applicant believes committed the offence. CDAD NF WNR 11141720232628 30 32 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 232] (6) If the regulator declines to follow the advice of the director of public prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5). 232 Limitation period for prosecutions (1) Proceedings for an offence against this Act may be taken within the latest of the following periods— (2) (a) (b) (c) within 2 years after the offence first comes to the notice of the regulator; within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act; if a WHS undertaking has been given in relation to the offence, within 6 months after— (i) the WHS undertaking is contravened; or (ii) it comes to the notice of the regulator that the WHS undertaking has been contravened; or (iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking. A proceeding for a category 1 offence may be taken after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period. 233 Multiple contraventions of health and safety duty provision (1) Two or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. Page 163 BWNR Om ANN 1113 15 18 20 222427 2931 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 234] (2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence. (3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence. (4) In this section health and safety duty provision means a provision of part 2, division 2, 3 or 4. Division 2 Sentencing for offences 234 Application of this division This division applies if a court convicts a person, or finds a person guilty (the offender), of an offence against this Act. 235 Orders generally (1) One or more orders may be made under this division against the offender. (2) Orders may be made under this division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 236 Adverse publicity orders (1) The court may make an order (an adverse publicity order) in relation to the offender requiring the offender— (a) to take either or both of the following actions within the period stated in the order— (i) to publicise, in the way stated in the order, the offence, its consequences, the penalty imposed and any other related matter; (ii) to notify a stated person or stated class of persons, in the way stated in the order, of the offence, its Page 164 CN ANE WHE 12 15 1721 23 2528 (2) (3) (4) (5) Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 237] consequences, the penalty imposed and any other related matter; and (b) to give the regulator, within 7 days after the end of the period stated in the order, evidence that the action or actions were taken by the offender in accordance with the order. The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence. If the offender fails to give evidence to the regulator as provided under subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions stated in the order. However, if— (a) _ the offender gives evidence to the regulator as provided under subsection (1)(b); and (b) despite that evidence, the regulator is not satisfied that the offender has taken the action or actions stated in the order in accordance with the order; the regulator may apply to the court for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions. If the regulator or a person authorised in writing by the regulator takes an action or actions under subsection (3) or an order under subsection (4), the regulator is entitled to recover from the offender, by action in a court of competent jurisdiction, an amount in relation to the reasonable expenses of taking the action or actions as a debt due to the regulator. 237 Orders for restoration d) The court may order the offender to take steps stated in the order, within the period so stated, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy. Page 165 OAN DUNPW NRE RRR WNrF Oo — A eR nun RRR oon NNW NRO VNNYNNN DANN W 3133 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 238] (2) The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if an application for the extension is made before the end of that period. 238 Work health and safety project orders d) (2) The court may make an order requiring the offender to undertake a stated project for the general improvement of work health and safety within the period stated in the order. The order may state conditions that must be complied with in undertaking the project. 239 Release on the giving of a court-ordered WHS undertaking d) (2) (3) Page 166 The court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with stated conditions (a court-ordered WHS undertaking). A court-ordered WHS undertaking must state the following conditions— (a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so states, at the time to which the further hearing is adjourned; (b) _ that the offender does not commit, during the period of the adjournment, any offence against this Act; (c) that the offender observes any special conditions imposed by the court. An offender who has given a court-ordered WHS undertaking under this section may be called on to appear before the court by order of the court. BWNR Po ArNa wn Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 240] (4) An order under subsection (3) must be served on the offender not less than four days before the time stated in it for the appearance. (5) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered WHS undertaking, it must discharge the offender without any further hearing of the proceeding. 240 Injunctions The court may issue an injunction requiring the offender to cease contravening this Act. Note— An injunction may also be obtained under section 215 for noncompliance with a non-disturbance notice, improvement notice or prohibition notice. 241 =' Training orders The court may make an order requiring the offender to undertake or arrange for 1 or more workers to undertake a stated course of training. 242 Offence to fail to comply with order (1) A person must not, without reasonable excuse, fail to comply with an order under this division. Maximum penalty—S00 penalty units. (2) Subsection (1) places an evidential burden on the defendant to show a reasonable excuse. (3) This section does not apply to an order or injunction under section 239 or 240. Page 167 CIDNWKR WNE 11 141822 25 27 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 243] Division 3 243 Division and section number not used See the note to section 3. Division 4 Offences by bodies corporate 244 _Imputing conduct to bodies corporate d) (2) (3) For this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for the offence to prove that the person mentioned in subsection (1) had the relevant knowledge, intention or recklessness. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for the offence if the person mentioned in subsection (1) made the mistake of fact. Division 5 The State, Commonwealth and other States 245 Offences and the State, Commonwealth and other States d) Page 168 If the State, Commonwealth or another State is found guilty of an offence against this Act, the penalty to be imposed on the State, Commonwealth or other State is the penalty applicable to a body corporate. OAANAD MN 12141719 21 2426 (2) (3) (4) Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 246] For this Act, conduct engaged in on behalf of the State, Commonwealth or another State by an employee, agent or officer of the State, Commonwealth or other State acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the State, Commonwealth or other State. If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the State, Commonwealth or another State for the offence to prove that the person mentioned in subsection (2) had the relevant knowledge, intention or recklessness. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the State, Commonwealth or another State for the offence if the person mentioned in subsection (2) made the mistake of fact. WHS civil penalty provisions and the State, Commonwealth and other States d) (2) (3) If the State, Commonwealth or another State contravenes a WHS civil penalty provision, the monetary penalty to be imposed on the State, Commonwealth or other State is the penalty applicable to a body corporate. For a WHS civil penalty provision, conduct engaged in on behalf of the State, Commonwealth or another State by an employee, agent or officer of the State, Commonwealth or other State acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the State, Commonwealth or other State. Ifa WHS civil penalty provision requires proof of knowledge, it is sufficient in proceedings against the State, Commonwealth or another State for a contravention of that provision to prove that the person mentioned in subsection (2) had the knowledge. Page 169 COAN DANBWNE ee re oO RR RR nNBRWN 17 1921 2325273032 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 247] 247 ~=— Officers d) (2) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the State, Commonwealth or another State is taken to be an officer of the State, Commonwealth or other State for the purposes of this Act. A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act. 248 Responsible agency for the State, Commonwealth or another State d) (2) (3) (4) Page 170 The following notices may be given to or served on the responsible agency— (a) a provisional improvement notice, improvement notice, prohibition notice, non-disturbance notice or notice of entry under part 7 to be given to or served on the State, Commonwealth or another State under this Act; (b) an infringement notice for an offence against this Act to be given to or served on the State, Commonwealth or another State. If an infringement notice is to be served on the State, Commonwealth or another State for an offence against this Act, the responsible agency may be stated in the infringement notice. If proceedings are taken against the State, Commonwealth or another State for an offence against this Act or in relation to a contravention of this Act, the responsible agency in relation to the offence or contravention may be stated in any document initiating, or relating to, the proceedings. The responsible agency in relation to an offence or a contravention of this Act is entitled to act in proceedings against the State, Commonwealth or other State for the offence or relating to the contravention and, subject to any relevant rules of court, the procedural rights and obligations of the State, Commonwealth or other State as the accused or OrAIY ANB WNY 12 1416 182123 2527303234 (5) (6) defendant in the proceedings are conferred or imposed on the responsible agency. The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court's leave. In this section, the responsible agency— (a) (b) in relation to a notice mentioned in subsection (1) is the following— (i) (ii) (iii) (iv) Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 248] for a provisional improvement notice, improvement notice or infringement notice—the agency of the State, Commonwealth or other State, the acts or omissions of which are alleged to contravene this Act; for a prohibition notice—the agency of the State, Commonwealth or other State that has control over the activity mentioned in section 195(1)(a) or (b); for a non-disturbance notice—the agency of the State, Commonwealth or other State with the management and control of the workplace; for a notice of entry under part 7—the agency of the State, Commonwealth or other State conducting the relevant business or undertaking or with the management and control of the workplace; and in relation to an offence or proceedings for a contravention of this Act, is the agency of the State, Commonwealth or other State— (i) (ii) (iii) the acts or omissions of which are alleged to constitute the offence or contravention; or if that agency has ceased to exist—that is the successor of that agency; or if that agency has ceased to exist and there is no clear successor—that the court declares to be the responsible agency. Page 171 CN DA WBW NH 1113 151821232629 31 33 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 249] Division 6 Public authorities 249 Application to public authorities that are bodies corporate or local governments This division applies only to public authorities that are bodies corporate or are local governments. 250 'Proceedings against public authorities d) (1A) (2) Proceedings may be taken under this Act against a public authority in its own name. Proceedings may be taken under this Act against a local government, and a local government may be prosecuted and punished, as if it were a body corporate. Nothing in this division affects any privileges that a public authority may have under the State, Commonwealth or another State. 251 ~=Imputing conduct to public authorities d) (2) (3) Page 172 For this Act, any conduct engaged in on behalf of a public authority by an employee, agent or officer of the public authority acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the public authority. If an offence against this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the public authority for that offence to prove that the person mentioned in subsection (1) had the relevant knowledge, intention or recklessness. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the public authority for that offence if the person mentioned in subsection (1) made that mistake of fact. nk Wh on Oa 11 13171922242729 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 252] 252 Officer of public authority A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act. 253 Proceedings against successors to public authorities (1) Proceedings for an offence against this Act that were instituted against a public authority before its dissolution, or that could have been instituted against a public authority if not for its dissolution, may be continued or instituted against its successor if the successor is a public authority. (2) An infringement notice served on a public authority for an offence against this Act is taken to be an infringement notice served on its successor if the successor is a public authority. (3) Similarly, any penalty paid by a public authority in relation to an infringement notice is taken to be a penalty paid by its successor if the successor is a public authority. Division 7 WHS civil penalty provisions 254 When is a provision a WHS civil penalty provision (1) A subsection of a section of part 7 (or a section of part 7 that is not divided into subsections) is a WHS civil penalty provision if— (a) the words "WHS civil penalty provision" and one or more amounts by way of monetary penalty are set out at the foot of the subsection (or section); or (b) another provision of part 7 states that the subsection (or section) is a WHS civil penalty provision. (2) A subsection of a section of a regulation (or a section of a regulation that is not divided into subsections) is a WHS civil penalty provision if— Page 173 nABWN onan a 11 1316212427 29 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 255] (a) the words "WHS civil penalty provision" and one or more amounts by way of monetary penalty are set out at the foot of the subsection (or section); or (b) another provision of the regulation states that the subsection (or section) is a WHS civil penalty provision. 255 =' Proceedings for contravention of WHS civil penalty provision (1) Subject to this division, proceedings may be taken in a Magistrates Court (the court) against a person for a contravention of a WHS civil penalty provision. Note— The Uniform Civil Procedure Rules 1999 generally apply. (2) If a body corporate contravenes a civil penalty provision, the value of the penalty units applying to the contravention is calculated under the Penalties and Sentences Act 1992, section 181B (the calculation section). (3) For subsection (2), a reference in the calculation section to the maximum fine for an offence includes a reference to the maximum penalty for the contravention of the civil penalty provision. Note— A term penalty unit has the meaning given under the Penalties and Sentences Act 1992, section 5—see the Acts Interpretation Act 1954, section 36, definition penalty unit. 256 Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a WHS civil penalty provision is taken to have contravened that provision. (2) A person is involved in a contravention of a civil penalty provision if, and only if, the person— (a) has aided, abetted, counselled or procured the contravention; or Page 174 ak WNe on ND 111416 1820 2326 28 30 32 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 257] (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 257 ~=Contravening a civil penalty provision is not an offence A contravention of a WHS civil penalty provision is not an offence. 258 Civil proceeding rules and procedure to apply The court must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a contravention of a WHS civil penalty provision. 259 Proceeding for a contravention of a WHS civil penalty provision (1) In a proceeding for a contravention of a WHS civil penalty provision, if the court is satisfied that a person has contravened a WHS civil penalty provision, the court may— (a) order the person to pay a monetary penalty that the court considers appropriate; and (b) make any other order that the court considers appropriate, including an injunction. (2) A monetary penalty imposed under subsection (1) must not exceed the relevant maximum amount of monetary penalty provided under part 7 or a regulation in relation to a contravention of that WHS civil penalty provision. 260 Proceeding may be taken by the regulator or an inspector Proceedings for a contravention of a WHS civil penalty provision may only be taken by— Page 175 Dn NW NK on 1215 1720 22 2426 29 Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 261] (a) the regulator; or (b) an inspector with the written authorisation of the regulator (either generally or in a particular case). Limitation period for WHS civil penalty proceedings Proceedings for a contravention of a WHS civil penalty provision may be taken within 2 years after the contravention first comes to the notice of the regulator. Recovery of a monetary penalty If the court orders a person to pay a monetary penalty— (a) the penalty is payable to the State; and (b) the State may enforce the order as if it were a judgment of the court. Civil double jeopardy The court must not make an order against a person under section 259 for contravention of a WHS civil penalty provision if an order has been made against the person under a civil penalty provision under an Act of the Commonwealth or a State in relation to conduct that is substantially the same as the conduct constituting the contravention. Criminal proceedings during civil proceedings (1) Proceedings against a person for a contravention of a WHS civil penalty provision are stayed if— (a) criminal proceedings are commenced or have already commenced against the person for an offence; and (b) _ the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision. Page 176 Wn NAN Oo wo 12 151719 22 24 26 (2) (3) Work Health and Safety Bill 2011 Part 13 Legal proceedings [s 265] The proceedings for the order may be resumed if the person is not convicted or found guilty of the offence. Otherwise, the proceedings for the order are dismissed. 265 Criminal proceedings after civil proceedings Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a WHS civil penalty provision regardless of whether an order has been made against the person under section 259. 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings d) (2) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if— (a) the individual previously gave the information or produced the documents in proceedings against the individual for a contravention of a WHS civil penalty provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision. However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the contravention of the WHS civil penalty provision. Page 177 OCOmMDANDN FS 11141719 2123 2527 Work Health and Safety Bill 2011 Part 14 General [s 267] Division 8 Civil liability not affected by this Act 267 ~— Civil liability not affected by this Act Except as provided in part 6 and part 7 and division 7, nothing in this Act is to be construed as— (a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or (b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or (c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, in relation to breaches of duties or obligations imposed under a regulation. Part 14 General Division 1 General provisions 268 Offence to give false or misleading information d) (2) Page 178 A person must not give information in complying or purportedly complying with this Act that the person knows— (a) to be false or misleading in a material particular; or (b) omits any matter or thing without which the information is misleading. Maximum penalty—100 penalty units. A person must not produce a document in complying or purportedly complying with this Act that the person knows to be false or misleading in a material particular without— OMANI AN FW WV 1113 18 21 24 (3) Work Health and Safety Bill 2011 Part 14 General [s 269] (a) indicating how it is false or misleading and, if practicable, providing correct information; or (b) accompanying the document with a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate— (i) _ stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and (ii) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading. Maximum penalty—100 penalty units. Subsection (2) places an evidential burden on the defendant to show that the accused had indicated the extent to which the document was false or misleading or that the accompanying document sufficiently explained the extent to which the document was false or misleading. 269 Act does not affect legal professional privilege Nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege. 270 ~=— Immunity from liability d) (2) An inspector, or other person engaged in the administration of this Act, incurs no civil liability for an act or omission done or omitted to be done in good faith and in the execution or purported execution of powers and functions under this Act. A civil liability that would, but for subsection (1), attach to a person, attaches instead to the State. Page 179 CID NWRW NE \o 11 1416202426 28 Work Health and Safety Bill 2011 Part 14 General [s 271] 271 ~=Confidentiality of information d) (2) (3) Page 180 This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act, other than under part 7. The person must not do any of the following— (a) disclose to anyone else— (i) the information; or (ii) the contents of or information contained in the document; (b) give access to the document to anyone else; (c) use the information or document for any purpose. Maximum penalty—100 penalty units. Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document— (a) about a person, with the person's consent; or (b) _ that is necessary for the exercise of a power or function under this Act; or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use— (i) is necessary for administering, or monitoring or enforcing compliance with, this Act; or (ii) is necessary for the administration or enforcement of another Act prescribed under a regulation; or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety; or (iv) is necessary for the recognition of authorisations under a corresponding WHS law; or om NI DN FWHY Se Se NF oO RRR nw — lon RR on NNY ro) NN WN NWN oN YNvuny OnmAND Ww re oO (4) Work Health and Safety Bill 2011 Part 14 General [s 272] (v) is required for the exercise of a power or function under a corresponding WHS law; or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or (e) _ that is required or authorised under a law; or (f) to a Minister. A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless— (a) the disclosure is made with the consent of the complainant; or (b) _ the disclosure is required under a law. Maximum penalty—100 penalty units. No contracting out A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void. Person not to levy workers A person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety. Maximum penalty—S0 penalty units. Page 181 om ND NPW NY — So ao Ne - RW 1719 2224 Work Health and Safety Bill 2011 Part 14 General [s 274] Division 2 Codes of practice 274 Approved codes of practice d) (2) (3) (4) (4A) (4B) (5) Page 182 The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice. The Minister may only approve, vary or revoke a code of practice under subsection (1) if the code of practice, variation or revocation was developed by a process that involved consultation between— (a) the Governments of the Commonwealth and each State and Territory; and (b) unions; and (c) employer organisations. A code of practice may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether— (a) with or without modification; or (b) as in force at a particular time or from time to time. An approval of a code of practice, or an instrument varying or revoking an approved code of practice, has no effect unless the Minister gives notice of its making. A notice under subsection (4) is subordinate legislation. A code of practice, or an instrument varying or revoking a code of practice, commences on the later of the following— (a) _ the day the notice under subsection (4) commences; or (b) the day the code or instrument provides that it commences. As soon as practicable after approving a code of practice, or varying or revoking an approved code of practice, the Minister must ensure that notice of the approval, variation or OMDAND NHW WV 11 13 1518 2024 27 29 (6) Work Health and Safety Bill 2011 Part 14 General [s 275] revocation is published in a newspaper circulating generally throughout the State. The regulator must ensure that a copy of— (a) each code of practice that is currently approved; and (b) each document applied, adopted or incorporated, to any extent, by an approved code of practice; is available for inspection by members of the public without charge at the office of the regulator during normal business hours. 275 ~—_— Use of codes of practice in proceedings d) (2) (3) (4) This section applies in a proceeding for an offence against this Act. An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with. The court may— (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and (b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates. Note— See section 18 for the meaning of reasonably practicable. Nothing in this section prevents a person from introducing evidence of compliance with this Act in a way that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code. Page 183 OAN DN FW NY 12 14182124 2628 Work Health and Safety Bill 2011 Part 14 General [s 276] Division 3 Regulation-making power 276 Regulation-making power (1) The Governor in Council may make regulations under this (2) (3) (4) (5) Page 184 Act. Without limiting subsection (1), a regulation may make provision for any matter stated in schedule 3 or otherwise related to work health and safety. A regulation may— (a) (b) (c) allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator; or prescribe fees for doing any act or providing any service for the purposes of this Act; or prescribe a penalty for any contravention of the regulations not exceeding 300 penalty units. Subsection (1) applies as provided under, and subsections (2) and (3) do not limit, the Statutory Instruments Act 1992. For the Statutory Instruments Act 1992, to remove doubt it is declared that— (a) (b) a reference in section 24 and 25 of that Act to exceptions includes exemptions, and exceptions and exemptions given on terms or conditions (if any) prescribed; and a reference in 30B(1)(b) of that Act to waiving payment of a fee includes reducing or refunding the fee. oANIDN FW WV 1113 15 17 19 21 2326 Work Health and Safety Bill 2011 Part 15 Repeals [s 277] Part 15 Repeals 277 Repeal of Workplace Health and Safety Act 1995 The Workplace Health and Safety Act 1995, No. 25 is repealed. 278 Repeal of Dangerous Goods Safety Management Act The Dangerous Goods Safety Management Act 2001, No. 28 is repealed. Part 16 Transitional provisions Division 1 Provisions for the repeal of the Workplace Health and Safety Act Subdivision 1 Preliminary 279 __ Definitions for div 1 In this division— repeal means the repeal of the repealed Act. repealed Act means the repealed Workplace Health and Safety Act 1995. Page 185 Kw on nan 111518 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 280] Subdivision 2 Proceedings 280 Application of this Act and repealed Act in relation to particular provisions (1) This section applies to an obligation imposed by any of the following provisions of the repealed Act— (a) section 28; (b) section 30; (c) section 30C; (d) section 31; (e) section 34C; (f) section 34D; (g) section 35; (h) — section 36. (2) To the extent the obligation was contravened before the repeal, proceedings may be taken or continued against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened. (3) TR (a) the acts or omissions constituting the contravention continue after the repeal; and (b) the continuing acts or omissions contravene a duty imposed by a provision of this Act; proceedings may be taken against the person under the provision of this Act to the extent of the continuation of the acts or omissions after the repeal. 281 Application of this Act and repealed Act in relation to other particular provisions (1) This section applies to an obligation imposed by any of the following provisions of the repealed Act— Page 186 Co mrN HD NF WH RP Re Re Ww NF O&O ei alll otras ADWNH me ioe} Ne ow NN Noe NNN mn B&W 27 29 (2) (3) (4) (5) Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 281] (a) section 30A; (b) section 30B; (c) section 32; (d) section 32A; (e) section 32B; (f) — section 33; (g) section 34; (h) section 34A. If a contravention of the obligation happens before the repeal, proceedings may be taken or continued against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened. If— (a) a particular activity of a person would be a contravention of the obligation if all the acts or omissions involved happened before the repeal; but (b) some of the acts or omissions happen before, and some after, the repeal; the proceedings may be taken against the person for the activity as a contravention of the obligation as if the repeal had not happened. However, subsection (3) only applies if proceedings against the person for the activity are commenced— (a) for an activity to which the provisions mentioned in subsection (1)(b), (c) or (f) relate—within 2 years after the repeal; or (b) otherwise—within 1 year after the repeal. Also, the person can not be convicted of the contravention under subsection (3) unless the acts or omissions would also be a contravention of a corresponding duty under this Act if they all happened after the repeal. Page 187 CI DWN KR wWNH YE 111518 2023 252931 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 282] (6) Subsections (3) and (4) do not prevent proceedings being commenced against the person under this Act solely for any acts of omissions involved in the activity that happen after the repeal. 282 _ Investigations and proceedings generally d) (2) (3) (4) This section does not limit sections 280 and 281. This section applies to an offence committed by a person against the repealed Act, for which investigations or proceedings had not been conducted, taken or completed before the repeal. The investigation or proceedings may be conducted, taken or continued against the person, and the person may be punished, as if the repeal had not happened. For subsection (3) and for any other provision of this division that authorises the taking or continuation of proceedings under the repealed Act as if it had not been repealed— (a) a reference in the repealed Act, section 161(1), to the chief executive is taken to include a reference to the regulator; and (b) a reference in the repealed Act, section 164(5), to the chief executive is taken to be a reference to the regulator, if proceedings are started after the repeal. Subdivision 3 Status of persons, bodies, processes and other matters 283 —_— Principal contractor d) Page 188 This section applies if, immediately before the repeal of the repealed Act, a person is the principal contractor for construction work because of an appointment under the repealed Act, section 184A. BWNR OMAN NWN 1215182124 2729 (2) (3) Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 284] The person is taken to continue to be the principal contractor for the construction work for a provision under a regulation that mentions a principal contractor (a principal contractor regulation). Subsection (2) does not apply if— (a) aregulation in effect defines or limits who is a principal contractor for the principal contractor regulation; and (b) _ the person is not a principal contractor as so defined or limited. Code of practice preserved d) (2) (3) This section applies to a code of practice made by the Minister under the repealed Act, section 41, and in existence immediately before the repeal (an old code). The old code is taken to be made under section 274 of this Act (a preserved code). A preserved code— (a) is taken to be effective without compliance with section 274(2) or (5) of this Act; and (b) may be varied or revoked under this Act without compliance with section 274(2) of this Act. Enforceable undertaking d) (2) Subsection (2) applies to a workplace health and safety undertaking— (a) made under the part 5 of the repealed Act; and (b) in force immediately before the repeal of the part. Part 5 of the repealed Act and any other provision of the repealed Act relevant to the operation of part 5 continue to apply in relation to the undertaking as if they had not been repealed. Page 189 Com AND WN PWNYe 1215 18 20 23 25 2729 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 285] (3) (4) (5) (6) 7) (8) (9) Page 190 However, for subsection (2), sections 42F, 42H and 42I of the repealed Act, as they existed before the repeal of part 5 of the repealed Act, apply as if a reference to the chief executive were a reference to the regulator. Also, the undertaking continues in force with necessary changes, in relation to an act or omission of the identified person happening after the repeal of part 5 of the repealed Act, as if it were an undertaking accepted by the regulator under section 216(1) of this Act to the extent to which the future behaviour assurance is material to compliance with this Act. Subsection (4) does not apply to an act or omission that constitutes a category 1 offence. Subsections (7) and (8) apply if, immediately before the repeal of the repealed Act, the chief executive— (a) has received an undertaking under section 42DA of the repealed Act; but (b) has not made a decision whether to accept the undertaking under section 42E of the repealed Act. The chief executive must decide whether or not to accept the undertaking. If the chief executive accepts the undertaking, subsections (2) to (5) and (9) and (12) apply to the undertaking. For subsection (4), a reference— (a) in the undertaking to the alleged contravention; or (b) in the future behaviour assurance to a contravention of the repealed Act; is taken to include a reference to a contravention of this Act that corresponds to those contraventions. Note— Paragraph (a) is relevant to the continued operation of section 42F of the repealed Act as it existed before the repeal. Paragraph (b) is relevant if future behaviour is expressed in terms of contraventions of particular sections of the repealed Act. OmANDUN FPWNYK ee er Oo tiled Wn linen ns RR on Ree \o wo Nw re oO NN wWwhNd NY WN As Nw NO YVnv \o is) Oo WWW WwW BRWNR (10) d1) (12) Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 286] Despite subsections (1) to (9), the regulator may accept a WHS undertaking under part 11 of this Act for a contravention of the repealed Act. For subsection (10), a reference in part 11 to this Act is taken to include a reference to the repealed Act. In this section— future behaviour assurance is the assurance about future behaviour from the identified person included in the workplace health and safety undertaking. identified person means the identified person for the undertaking. 286 Appointment to particular board and committee preserved d) (2) (3) An appointment made under any of the following provisions of the repealed Act and in force immediately before the repeal continues in force from the repeal as if the appointment had been made under the corresponding provision of this Act— (a) section 46; (b) section 57. For the purpose of calculating the duration of the appointment, it is taken to have been made when it was made under the repealed Act. In this section— corresponding provision, of this Act, means— (a) for an appointment made under the repealed Act, section 46— schedule 2, section 6 of this Act; or (b) for an appointment made under the repealed Act, section 57—schedule 2, section 16 of this Act. Page 191 Pe COON D NF WNe re oO 1517 19 2124 26 28 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 287] 287 —_ Election of workplace health and safety representative preserved d) (2) (3) (4) (5) (6) A workplace health and safety representative elected under the repealed Act, part 7, division 3, and holding office immediately before the repeal is taken from the repeal to have been elected as a health and safety representative, and to hold office for 3 years, under part 5, division 3, subdivision 4 of this Act. For the purpose of calculating the representative's duration of office, the representative is taken to have been elected for a period of 3 years from the election under the repealed Act. Subsections (4) and (5) apply if, before the repeal, an employer has complied with the repealed Act, section 73(2) for the election of a workplace health and_ safety representative but the election has not been conducted before the repeal. The election may be continued to be conducted under the repealed Act despite the repeal but within 3 months after the repeal. The person elected under subsection (3) is taken to be elected as a health and safety representative, and to hold office for 3 years, under part 5, division 3, subdivision 4 of this Act. The work group of the health and safety representative mentioned in subsection (1) or (5) is taken to be— (a) _ the representative's workplace; or (b) _ if there is more than 1 representative for the workplace under the repealed Act—the part of the workplace within the representative's area of representation. 288 Training requirements for workplace health and safety representative d) Page 192 This section applies to a health and safety representative mentioned in section 287(1) and (5). ADAIDNHPW NYE \o 11 1315182124 2730 32 (2) (3) Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 289] Sections 85(6) and, subject to section 290(3), 90(4) of this Act do not apply to the representative for a period of 1 year from the commencement of this section. If the representative, immediately before the repeal of the repealed Act, was a qualified workplace health and safety representative under section 81A of the repealed Act, the representative is taken to have satisfied the requirements of section 90(4)(a) of this Act. 289 Provisional improvement notices preserved d) (2) (3) Subsection (2) applies to the following in force immediately before the repeal of the repealed Act— (a) a provisional improvement notice given under the repealed Act, section 81B for a contravention or likely contravention of the repealed Act (the old contravention); or (b) a provisional improvement notice mentioned in paragraph (a) affirmed (with or without changes) by an inspector under the repealed Act, section 811. The provisional improvement notice continues to be enforceable against the person to whom it was given for a contravention of the repealed Act, section 81F, 81G or 811(4) that happened before the repeal as if the repealed Act had not been repealed. Also, the provisional improvement notice continues in force and may be enforced as if it were a provisional improvement notice given to the person under section 90 of this Act for a contravention of a provision of this Act that corresponds to the old contravention. 290 Suspension or cancellation relating to workplace health and safety representative preserved d) This section applies if— (a) the entitlement of a workplace health and safety representative to give a provisional improvement notice Page 193 CXIDAWAK WHE 11 1315 172022252730 33 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 291] (2) (3) under the repealed Act has been suspended or cancelled under section 81P of that Act; and (b) the suspension or cancellation is in effect immediately before the repeal. The representative is taken not to satisfy section 90(4)(a) of this Act— (a) for a suspension—until the day the suspension would have ended if section 81P of the repealed Act had not been repealed; or (b) for a cancellation—indefinitely. Section 288(2) does not apply to the representative for the period that subsection (2) applies to the representative. 291 Workplace health and safety committee preserved d) (2) (3) (4) (5) Page 194 This section applies to a workplace health and safety committee established for a workplace under the repealed Act, section 86 and in existence immediately before the repeal of the repealed Act. From the repeal, the committee continues as the health and safety committee for the workplace taken to be established under part 5, division 4 of this Act. However, if the constitution of the committee is inconsistent with the requirements for a health and safety committee under section 76 of this Act, the constitution must be adjusted to comply with section 76 within 1 year after the repeal (the transitional period). After the transitional period, if subsection (3) has not been complied with, the person conducting the business undertaking or the workers who must agree to the constitution of the committee under section 76(1) of this Act may ask the regulator to appoint an inspector to decide the matter. The inspector must decide the appropriate constitution of the committee. OAN DN FW Ne — So ao Ne 1517 192224272932 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 292] Appointment of authorised representative preserved d) (2) (3) (4) (5) (6) A person appointed as an authorised representative under the repealed Act, section 90D, and holding office immediately before the repeal of that section, from the repeal is taken to be issued with a WHS entry permit under section 134. The person's WHS entry permit is taken to be the identity card issued to the person under the repealed Act, section 90H. For deciding the term of the permit, and despite section 136, the permit is taken to have been issued— (a) when the person was appointed as an authorised representative under the repealed Act; and (b) for the period until the expiry date stated on the identity card. The permit is taken to be issued to the person on the conditions of the appointment mentioned in the repealed Act, section 90F, which may be varied under section 135. If the industrial registrar issues the person with a WHS permit under section 134, subsections (1) to (3) stop applying to the person. An application under the repealed Act, section 90C that has not been decided at the repeal, from the repeal is taken to be an application under section 131 and must be decided by the industrial registrar. Appointment of inspector d) (2) (3) This section applies to a person who, immediately before the repeal of the repealed Act was an inspector appointed under the repealed Act, section 99. The person is taken to be appointed by the regulator as an inspector under section 156. The inspector's compliance powers continue to be subject to the conditions imposed under the repealed Act, section 100, which are taken to be imposed under section 161. Page 195 CODA NAD NHPWN ee re oO RR Wn RRR Nn RRR own NNNW WNrF Oo 2629 31 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 294] (4) The inspector continues to be subject to directions given under the repealed Act, section 100(1), which are taken to be given, and may be withdrawn, under section 162. 294 Warrants and actions by inspectors preserved d) (2) (3) (4) A warrant issued under the repealed Act, part 9, division 2, and in force immediately before the repeal, continues to have effect for the purposes of an investigation to which section 282 applies. A power exercised by an inspector before the repeal— (a) if the context permits, continues to have effect for the purposes of this Act; and (b) if the context permits, is taken to have been exercised under a corresponding provision of this Act. However, subsection (2) does not apply to an exercise of an inspector's power to which sections 289, 295 or 296 applies. In this section— corresponding provision means a provision of this Act that corresponds to a provision of the repealed Act under which the power mentioned in subsection (2) was exercised. 295 Improvement notice preserved d) (2) (3) Page 196 This section applies to an improvement notice— (a) given by an inspector under the repealed Act, section 117 for a contravention or likely contravention of the repealed Act (the notified contravention); and (b) in force immediately before the repeal. The notice continues to be enforceable against the person to whom it was given for an offence against the repealed Act, section 117(4) that happened before the repeal as if the repealed Act had not been repealed. Also, the notice continues in force and may be enforced as if it were an improvement notice given to the person under the WN Re eCNNN \o 11 13 15 1821 232729 31 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 296] repealed Act, section 117 for a contravention or likely contravention of this Act that corresponds to the notified contravention. Prohibition notice preserved d) (2) This section applies to a direction or prohibition notice given by an inspector under the repealed Act, section 118 and in force immediately before the repeal. The direction or prohibition notice continues in force, and may be enforced under the repealed Act, section 118(4), as if the repealed Act had not been repealed. Appeals d) (2) The repealed Act, part 11 continues to apply to a decision made under the repealed Act as if the repealed Act had not been repealed. Another provision of this subdivision that would have applied to a matter if the final decision on a review or appeal under the repealed Act, part 11 had been made before the repeal of the repealed Act applies to matter as if the final decision had been made before the repeal. Division 2 Provisions for repeal of Dangerous Goods Safety Management Act 2001 Definitions for pt 15, div 2 repeal means the repeal of the repealed Act. repealed Act means the repealed Dangerous Goods Safety Management Act 2001. Page 197 WNe 21 23 25 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 299] 299 Application of this Act and repealed Act in relation to particular provisions d) (2) (3) This section applies to an obligation imposed by any of the following provisions of the repealed Act— (a) section 16; (b) section 23; (c) section 24. To the extent the obligation was contravened before the repeal, proceedings may be taken, or continue to be taken, against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened. If— (a) the acts or omissions constituting the contravention continue after the repeal; and (b) the continuing acts or omissions contravene a duty imposed by a provision of this Act; proceedings may be taken against the person under the provision of this Act to the extent of the continuation of the acts or omissions after the repeal. 300 Application of this Act and repealed Act in relation to other particular provisions d) (2) (3) Page 198 This section applies to an obligation imposed by any of the following provisions of the repealed Act— (a) section 25; (b) section 26; (c) section 27. If a contravention of the obligation happens before the repeal, proceedings may be taken or continued against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened. If— om rnN DN PW Ne ee er Oo me N eile' RW eR nN RRR own 21 23 252830 (4) (5) (6) Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 301] (a) a particular activity of a person would be a contravention of the obligation if all the acts or omissions involved happened before the repeal; but (b) some of the acts or omissions happen before, and some after, the repeal; the proceedings may be taken against the person for the activity as a contravention of the obligation as if the repeal had not happened. However, subsection (3) only applies if proceedings against the person for the activity are commenced— (a) for an activity to which section 26 and 27 of the repealed Act applies in relation to designers and installers—within 2 years after the repeal; (b) _ for an activity to which section 26(2) of the repealed Act applies—within 2 years after the repeal; (c) otherwise—within 1 year after the repeal. Also, the person can not be convicted of the contravention under subsection (3) unless the acts or omissions would also be a contravention of a corresponding duty under this Act if they all happened after the repeal. Subsections (3) and (4) do not prevent proceedings being commenced against the person under this Act solely for any acts of omissions involved in the activity that happen after the repeal. Investigations and proceedings generally d) (2) (3) This section does not limit sections 299 and 300. This section applies to an offence by a person against the repealed Act for which investigations or proceedings had not been conducted, taken or completed before the repeal. The investigations and proceedings may be conducted, taken or continued against the person, and the person may be punished, as if the repeal had not happened. Page 199 CAD NFP WNR \o 1215 1820 2224 26 2831 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 302] (4) The repealed Act, section 175 continues to apply after the repeal in relation to an offence committed before the repeal. 302 _ Directive by authorised officer preserved d) (2) (3) (4) (5) Page 200 Subsection (2) applies to a directive (an old directive) given by an authorised officer under the repealed Act, part 6, division 3 before its repeal. The repealed Act, part 6, division 3 and any other provision of the repealed Act relevant to the operation of the division (the preserved provisions) continue to apply in relation to the old directive despite the repeal. Also, a further directive may be given under the preserved provisions (a consequential directive) in relation to the same matter as, or a matter connected to, the matter for which the old directive was given. Example— Before the repeal, an authorised officer gives a directive under the repealed Act, section 90. As a result of the response to the directive, or a lack of response to the directive, an inspector appointed under this Act gives a directive under section 91 of the preserved provisions. Under subsections (2) and (3), for any action that may be taken after the repeal, a reference in the division to an authorised officer is taken to be a reference to an inspector appointed under this Act. Under subsections (2) and (3), for the purpose of— (a) an application for a review under the repealed Act, section 102 made after the repeal; or (b) an action taken by the administering executive after the repeal on an application for review made before the repeal; a reference in the division to the chief executive as the administering executive is taken to be a reference to the regulator. Noe OMANI ANH W 1214 1719 2123 26 2831 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 303] Note— Subsection (3) also necessarily affects later references to the administering executive in the repealed Act, part 9, division 2, as preserved under section 305. Warrants and actions by authorised officer preserved d) (2) (3) (4) A warrant issued under the repealed Act, part 6 before the repeal continues to have effect for the purposes of an investigation to which section 301 applies. A power exercised by an authorised officer before the repeal— (a) if the context permits, continues to have effect for the purposes of this Act; and (b) if the context permits, is taken to have been exercised under a corresponding provision of this Act by an inspector appointed under this Act. However, subsection (2) does not apply to an exercise of an authorised person's power to which section 302 applies. In this section— corresponding provision means a provision of this Act that corresponds to a provision under which the power mentioned in subsection (2) was exercised. Cost recovery notice d) (2) Despite the repeal of the repealed Act, a claimant under the repealed Act, section 107A may issue a cost recovery notice under the section in relation to costs incurred under the repealed Act, section 107 before the repeal. Despite the repeal, sections 107A and 107B of the repealed Act continue to apply as if they had not been repealed to— (a) acost recovery notice issued before the repeal or under subsection (1); and (b) to any amount for which the notice was issued. Page 201 BWN Onn nN 12 1417 202426 28 30 Work Health and Safety Bill 2011 Part 16 Transitional provisions [s 305] 305 Appeals (1) The repealed Act, part 9 continues to apply to a decision made under the repealed Act as if the repealed Act had not been repealed. (2) For the repealed Act, section 154F, applied under subsection (1), a reference to the chief executive of the department is taken to be a reference to the regulator. 306 Regulation-making power for major hazard facility A regulation may make provision for declaring whether or how any matter defined, decided, notified, done or otherwise arising under the repealed Act, part 4 or 5, is to have continuing effect for the regulation, including a continuing effect as modified for the purpose of the regulation. Examples— 1 A regulation may declare that a facility classified as a major hazard facility by the chief executive under the repealed Act, part 4, is taken. under the regulation, to be a facility registered or licensed as a major hazard facility by the regulator. 2 A regulation may declare that a workplace defined as a large dangerous goods location under the repealed Act, part 5, is taken, under the regulation, to be a notified workplace with hazardous materials above the manifest quantity. Division 3 Other transitional provisions 307 Power to make subordinate legislation unaffected by direct amendment by Act Page 202 The amendment by this Act of subordinate legislation made under any Act does not affect the power of the maker of the subordinate legislation to further amend the subordinate legislation or repeal it. NYDN BWN 1113 1618 2022 25 2729 Work Health and Safety Bill 2011 Part 17 Amendment of asbestos definition [s 308] Part 17 Amendment of asbestos definition Division 1 Amendment of Coal Mining Safety and Health Regulation 2001 308 Regulation amended This division amends the Coal Mining Safety and Health Regulation 2001. 309 Amendment of sch 9 (Dictionary) Schedule 9, definition asbestos— omit, insert— 'asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock-forming minerals, including the following— (a) actinolite asbestos; (b) grunerite (or amosite) (brown) asbestos; (c) anthophyllite asbestos; (d) chrysotile (white); (e) crocidolite (blue); (f) tremolite asbestos; (g) a mixture containing 1 or more of the minerals mentioned in paragraphs (a) to (f). Note— Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the same mineral term for both the asbestiform and nonasbestiform varieties. The word 'asbestos' has been included when listing these minerals to emphasise that only the asbestiform habit of these minerals is regulated as asbestos.'. Page 203 NO 12151719 21 2426 Work Health and Safety Bill 2011 Part 17 Amendment of asbestos definition [s 310] Division 2 Page 204 Amendment of Public Health Regulation 2005 Regulation amended This division amends the Public Health Regulation 2005. Amendment of s 2B (Definitions for div 1) Section 2B, definition asbestos— omit, insert— 'asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock-forming minerals, including the following— (a) (b) (c) (d) (e) (f) (g) actinolite asbestos; grunerite (or amosite) (brown) asbestos; anthophyllite asbestos; chrysotile (white); crocidolite (blue); tremolite asbestos; a mixture containing 1 or more of the minerals mentioned in paragraphs (a) to (f). Note— Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the same mineral term for both the asbestiform and nonasbestiform varieties. The word 'asbestos' has been included when listing these minerals to emphasise that only the asbestiform habit of these minerals is regulated as asbestos.'. Oma NNN 11131518 2123 Work Health and Safety Bill 2011 Part 17 Amendment of asbestos definition [s 312] Division 3 Amendment of Mining and Quarrying Safety and Health Regulation 2001 Regulation amended This division amends the Mining and Quarrying Safety and Health Regulation 2001. Amendment of sch 7 (Dictionary) Schedule 7, definition asbestos— omit, insert— 'asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock-forming minerals, including the following— (a) actinolite asbestos; (b) grunerite (or amosite) (brown) asbestos; (c) anthophyllite asbestos; (d) chrysotile (white); (e) crocidolite (blue); (f) tremolite asbestos; (g) a mixture containing 1 or more of the minerals mentioned in paragraphs (a) to (f). Note— Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the same mineral term for both the asbestiform and nonasbestiform varieties. The word 'asbestos' has been included when listing these minerals to emphasise that only the asbestiform habit of these minerals is regulated as asbestos.'. Page 205 11141618 20 2325 Work Health and Safety Bill 2011 Part 17 Amendment of asbestos definition [s 314] Division 4 Page 206 Amendment of Workplace Health and Safety Act 1995 Act amended This division amends the Workplace Health and Safety Act 1995. Amendment of sch 3 (Dictionary) Schedule 3, definition asbestos— omit, insert— 'asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock-forming minerals, including the following— (a) (b) (c) (d) (e) (f) (g) actinolite asbestos; grunerite (or amosite) (brown) asbestos; anthophyllite asbestos; chrysotile (white); crocidolite (blue); tremolite asbestos; a mixture containing 1 or more of the minerals mentioned in paragraphs (a) to (f). Note— Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the same mineral term for both the asbestiform and nonasbestiform varieties. The word 'asbestos' has been included when listing these minerals to emphasise that only the asbestiform habit of these minerals is regulated as asbestos.'. oN aon oO 11 131517 19 2224 Work Health and Safety Bill 2011 Part 17 Amendment of asbestos definition [s 316] Division 5 Amendment of Workplace Health and Safety Regulation 2008 Regulation amended This division amends the Workplace Health and Safety Regulation 2008. Replacement of sch 9, s 1 (Amosite, crocidolite, fibrous anthophyllite, tremolite or actinolite) Schedule 9, section 1— omit, insert— Grunerite (or amosite) (brown) asbestos, crocidolite, anthophyllite asbestos, tremolite asbestos or actinolite asbestos '(1) Grunerite (or amosite) (brown) asbestos, crocidolite, anthophyllite asbestos, tremolite asbestos and_actinolite asbestos are prohibited substances. '(2) A thing containing grunerite (or amosite) (brown) asbestos, crocidolite, anthophyllite asbestos, tremolite asbestos or actinolite asbestos is a prohibited ACM. '(3) The prohibited purpose for the prohibited substances or the prohibited ACM is a purpose other than any of the following— (a) analysis, research or sampling; (b) maintenance; (c) removal or disposal; (d) encapsulation or enclosure.'. Page 207 oN onan 111417202325 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 318] Part 18 Amendment of other legislation relating to safety Division 1 Building and construction work levy amendments Subdivision 1 Building and Construction Industry (Portable Long Service Leave) Act 318 Act amended This subdivision amends the Building and Construction Industry (Portable Long Service Industry) Act 1991. 319 Amendment of s 3A (Who is an eligible worker) '(b) Section 3A(2)(b)— omit, insert— an individual who is appointed as a safety officer by the person conducting a business to advise the person in relation to work health and safety duties under the Work Health and Safety Act 2011, in relation to building and construction work, whether or not the individual performs or usually performs building and construction work.'. 320 Amendment of s 32 (Funds of authority) (4) "S) Page 208 Section 32— insert— Work health and safety levy paid to the authority must be paid by the authority to the relevant department for the consolidated fund. In this section— 12 151719 21 24 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 321] relevant department means the department in which the Work Health and Safety Act 2011 is administered.' . 321 Amendment of s 66 (Imposition of levies) Section 66— insert— '(c) work health and safety levy.'. 322 Amendment of s 72 (Rate of levy) Section 72(1)— insert— '(c) work health and safety levy.'. 323 Amendment of sch (Dictionary) (1) Schedule, definition Jevy— insert— '(c) work health and safety levy.'. (2) Schedule — insert— 'work health and safety levy means levy that is imposed under part 8, and includes— (a) an additional amount of levy imposed under section 80; and (b) any interest under section 84.'. 324 Insertion of new pt 11, div 7 Part 11— insert— Page 209 nn ff WW Ne on 121416 18 20 23 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 325] 'Division 7 Transitional provisions for Work Health and Safety Act 2011 '124 Liability to pay fee under regulation preserved (1) This section applies to a fee payable under the Workplace Health and Safety Regulation 2008, part 9 that is unpaid immediately before the repeal of part 9 of the regulation under the Work Health and Safety Act 2011, section 329. (2) Despite the repeal, part 9 continues to apply for the purpose of the enforcement of the liability to pay the fee and for recovery of the fee.'. Subdivision 2 Building and Construction Industry (Portable Long Service Leave) Regulation 2002 325 Regulation amended This subdivision amends the Building and Construction Industry (Portable Long Service Leave) Regulation 2002. 326 Amendment of s 6 (Building and construction work for which no levy is payable—Act, s 70(2)) (1) Section 6(4)— renumber as section 6(5). (2) Section 6— insert— '(4) Also, levy is not payable under section 66(c) of the Act for building and construction work at— (a) acoal mine to which the Coal Mining Safety and Health Act 1999 applies; or Page 210 FOom ADMNH W PRR WN Re 16 18 2022 24 26 (b) (c) (d) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 327] a mine to which the Mining and Quarrying Safety and Health Act 1999 applies; or operating plant, within the meaning of the Petroleum and Gas (Production and Safety) Act 2004, on land the subject of — (@) a 1923 Act petroleum tenure under the Petroleum Act 1923; or (ii) a petroleum authority under the Petroleum and Gas (Production and Safety) Act 2004; or (ii) a GHG authority under the Greenhouse Gas Storage Act 2009; or a facility or plant used for geothermal exploration, within the meaning of the Geothermal Exploration Act 2004, section 132A(1), if the facility or plant is used for drilling or drilling related purposes. 327 Amendment of s 7 (Prescribed percentage for levy—Act, s 72) Section 7— insert— '(c) for the work health and safety levy—0.125%.'. Subdivision 3 Workplace Health and Safety Regulation 2008 328 Regulation amended This subdivision amends the Workplace Health and Safety Regulation 2008. Page 211 COA NAD NPW NY ee re oO RR RR nNBRWN 17 1922 25 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 329] 329 Omission of pt 9 (Notifiable building and construction work) Part 9— omit. 330 Omission of sch 1, item 1 (Notification of building and construction work) Schedule 1, item 1— omit. Division 2 Amendment of Electrical Safety Act331 Act amended This division amends the Electrical Safety Act 2002. 332 Amendment of s 3 (Act binds all persons) Section 3— insert— '(2) The State, Commonwealth and other States are liable for an offence against this Act.'. Amendment of s 5 (How purpose of Act is to be achieved) Section 5(a), 'obligations' — omit, insert— 'duties'. Amendment of s 10 (Meanings of electrical risk, electrically safe and electrical safety) Section 10(4)— Page 212 Rw Ne on aN 12 1417 1921 23 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 335] omit, insert— '(4) In this section— free from electrical risk, for a person or property, means that— (a) electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or (b) if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.'. 335 Replacement of ss 14 and 15 Sections 14 and 15— omit, insert— 14 Meaning of electrical equipment '(1)_ Electrical equipment means any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that— (a) is used for controlling, generating, supplying, transforming or transmitting electricity at a voltage greater than extra low voltage; or (b) is operated by electricity at a voltage greater than extra-low voltage; or (c) is part of an electrical installation located in an area in which the atmosphere presents a risk to health and safety from fire or explosion; or (d) _ is, or is part of, a cathodic protection system. '(2) Electrical equipment does not include any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that is part of a vehicle if— (a) the equipment is part of a unit of the vehicle that provides propulsion for the vehicle; or (b) _ the electricity source for the equipment is a unit of the vehicle that provides propulsion to the vehicle. Page 213 OMANI DUN FW NY 1113 15 1720 222629 31 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 335] Examples of things that, under subsection (2), are not electrical equipment— the headlights of a vehicle ignition spark plugs of a motor vehicle the interior lighting system of a vehicle, if powered from a battery charged by the engine that drives the vehicle or by the vehicle's movement Examples of things that are not prevented by subsection (2) from being electrical equipment— interior lighting or a socket outlet in a caravan, if the lighting or outlet is operated by a low voltage generating set or connected to low voltage supply a refrigeration unit in a food delivery vehicle operating at low voltage from a source separate from the propulsion unit for the vehicle 15 Meaning of electrical installation '(1)_ An electrical installation is a group of items of electrical equipment that— (2) '3) Page 214 (a) (b) (c) are permanently electrically connected together; and can be supplied with electricity from the works of an electricity entity or from a generating source; and do not include items that are works of an electricity entity. An item of electrical equipment may be part of more than 1 electrical installation. In subsection (1)(a)— (a) (b) an item of electrical equipment connected to electricity by a plug and socket outlet is not permanently electrically connected; and connection achieved through using works of an electricity entity is not a consideration in determining whether or not electrical equipment is electrically connected. OonMm NAN FW Ne eee NRO RRR MBw 18 21 23 25 283133 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 336] Examples of an electrical installation— the switchboard, wiring, lighting, socket outlets and other electrical equipment permanently connected for a shop in a shopping centre the switchboard, wiring, lighting, socket outlets and other electrical equipment permanently connected for a house or residential unit the switchboard, wiring, lighting, socket outlets and other electrical equipment permanently connected for a shopping centre. The electrical installation for the shopping centre generally includes the electrical installations for the individual shops. the switchboard, wiring, lighting, socket outlets and other electrical equipment permanently connected for a residential unit complex. The electrical installation for the residential unit complex generally includes the electrical installations for the individual residential units. the switchboard, wiring, lighting, socket outlets and other electrical equipment permanently connected within a caravan 336 Replacement of s 18 (Meaning of electrical work) Section 18— omit, insert— 18 Meaning of electrical work '1)_ Electrical work means— (a) (b) connecting electricity supply wiring to electrical equipment or disconnecting electricity supply wiring from electrical equipment; or manufacturing, constructing, installing, removing, adding, testing, replacing, repairing, altering or maintaining electrical equipment or an_ electrical installation. Examples of electrical work— installing low voltage electrical wiring in a building installing electrical equipment into an installation coupler or interconnecter replacing a low voltage electrical component of a washing machine maintaining an electricity entity's overhead distribution system Page 215 OMAD NB WN 111316 1820232628 30 32 34 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 336] (2) Page 216 Electrical work does not include the following— (a) (b) (d) work that involves connecting electrical equipment to an electricity supply by means of a flexible cord plug and socket outlet; work on a non-electrical component of electrical equipment, if the person carrying out the work is not exposed to an electrical hazard; Examples for paragraph (b)— ¢ painting electrical equipment covers ¢ — repairing hydraulic components of an electrical motor ¢ — replacing a drive belt on a washing machine replacing electrical equipment or a component of electrical equipment if that task can be safely performed by a person who does not have expertise in carrying out electrical work; Examples for paragraph (c)— ¢ replacing a fuse ¢ replacing a light bulb in a light fitting assembling, making, modifying or repairing electrical equipment in a workplace under the Work Health and Safety Act 2011 that is prescribed under a regulation for this paragraph, if that is the principal manufacturing process at the workplace, and arrangements are in place, and are detailed in written form, for ensuring that— (i) _ the work is done safely and competently; and (ii) the equipment is tested to ensure compliance with relevant standards; building or repairing ducts, conduits or troughs (channels) where electrical wiring will be or is installed, if— (i) the channels are not intended to be earthed; and (ii) wiring installed in the channels is not energised; and Oo mAADMN PWN See r- oO RRR eR nBwWN RP Re ona NNNNYNYY BWNr CO N Nn NW NO wWNndv a ole <) ww faa WwW Wn (f) (g) (h) (i) co) (k) @ Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 336] (iii) the work is done under the supervision of a person licensed to perform electrical installation work; locating or mounting electrical equipment, or fixing electrical equipment in place, if this task is not performed in relation to the connection of electrical equipment to an electricity supply; assisting a licensed electrical worker to carry out electrical work, on electrical equipment under the direct supervision of the electrical worker, if the assistance does not involve physical contact with any energised electrical equipment; carrying out electrical work, other than work on energised electrical equipment, in order to meet eligibility requirements in relation to becoming a icensed electrical worker and only if the work is prescribed under a regulation for this paragraph; building, under the supervision of an electricity entity, an overhead electric line on structures that do not already carry an energised overhead electric line; aying, cutting or sealing underground cables that are part of the works of an electricity entity before the initial connection of the cables to an electricity source; recovering underground cables that are part of the works of an electricity entity after disconnection from an electricity source; altering, repairing, maintaining or recovering an overhead electric line that is part of the works of an electricity entity, if the work is performed under the entity's supervision and— (i) if the line is not on supports supporting another electric line—the line has been isolated from an electricity source so that the closure of a switch can not energise the section of the line where work is being done; or (ii) if the line is on supports supporting another electric line—both lines have been isolated from an Page 217 COAN DANPW NY ee re oO RR RRR AuNnBwWN RRR own NNW NRO NNN mn Bw YNvunyw Onna WWWW Ww BWNr OO W Ww nun Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 337] electricity source so that the closure of a switch can not energise the section of the line where the work is being done or an adjacent section of the other line; (m) erecting structures for the support of electrical equipment; Examples of structures— ¢ — electric poles and towers (n) locating, mounting or fixing in place electrical equipment, other than— (i) making or terminating electrical connections to the equipment; or (ii) installing supply conductors that will connect the equipment to a supply of electricity; (0) maintaining the structural parts of the electrical traction system on a railway, other than overhead electric lines, that forms part of the works of an electrical entity, if the work is structural work performed under a safe system of work.'. 337 Replacement of s 21 (Meaning of employer) Section 21— omit, insert— 21 Meaning of person conducting a business or undertaking '(1)_ For this Act, a person conducts a business or undertaking — (a) whether the person conducts the business or undertaking alone or with others; and (b) whether or not the business or undertaking is conducted for profit or gain. '(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. Page 218 od AN BwWNH a?) o ao Ne eile RW RRR Ree OomMAIDN 2124 27 29 31 3) (4) "S) (6) D) (8) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 338] If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. An elected member of a local government does not in that capacity conduct a business or undertaking. A regulation may state the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. A volunteer association does not conduct a business or undertaking for the purposes of this Act. In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.'. 338 Replacement of s 22 (Meaning of worker) Section 22— omit, insert— '22 Meaning of worker 'D A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as— (a) an employee; or (b) acontractor or subcontractor; or (c) anemployee of a contractor or subcontractor; or Page 219 Com NDNN BPWNe RRR WNrF oO ine ns NOR Ree COAND 2224 2629 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 339] (2) '3) (d) (e) (f) (g) (h) (i) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or an outworker; or an apprentice or trainee; or a student gaining work experience; or a volunteer; or a person of a prescribed class. For this Act, a police officer is— (a) (b) a worker; and at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise. The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.'. 339 Omission of s 23 (Meaning of self-employed person) Section 23— omit. 340 Amendment of pt 2 hdg (Electrical safety obligations) Part 2, heading 'obligations'— omit, insert— 'duties'. 341 Replacement of pt 2, div 1 (Preliminary) Page 220 Part 2, division 1— omit, insert— oOo mrnNnt Dn fF WNe — So RRR WNe RRR Duns 1821 23 25 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 341] 'Division 1 Introductory 'Subdivision 1 Principles that apply to duties '26 Principles that apply to duties 'This subdivision sets out the principles that apply to all duties that persons have under this Act. '27. _— Duties not transferable 'A duty can not be transferred to another person. '27A_ Person may have more than 1 duty 'A person can have more than 1 duty by virtue of being in more than | class of duty holder. '27B_ More than 1 person can have a duty "(1) More than | person can concurrently have the same duty. '(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. '(3) If more than 1 person has a duty for the same matter, each person— (a) retains responsibility for the person's duty in relation to the matter; and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. Page 221 oN 12 1417 19 2123 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 342] 'Subdivision 2 _ What is reasonably practicable '28 Page 222 What is reasonably practicable in ensuring electrical safety 'In this Act, reasonably practicable, in relation to a duty to ensure electrical safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring electrical safety, taking into account and weighing up all relevant matters including— (a) (b) (d) (e) the likelihood of the hazard or the risk concerned happening; and the degree of harm that might result from the hazard or the risk; and what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and the availability and suitability of ways to eliminate or minimise the risk; and after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.'. Amendment of pt 2, div 2 heading Part 2, division 2, heading— omit, insert— 'Division 2 Duties of care'. Amendment of s 29 (Obligation of electricity entity) (1) Section 29, heading 'Obligation' — AaAIADMNH WW 12 14 16 18 20222529 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 344] omit, insert— 'Duty'. (2) Section 29(1), 'an obligation' — omit, insert— 'a duty'. (3) Section 29(2), 'obligation'-— omit, insert— 'duty'. 344 Amendment of s 30 (Obligation of employer or self-employed person) (1) Section 30, heading— omit, insert— 30 Primary duty of care'. (2) Section 30(1) and (2)— omit, insert— '(1)_ A person conducting a business or undertaking must ensure the person's business or undertaking is conducted in a way that is electrically safe.'. (3) Section 30(3), 'Without' to 'includes—'— omit, insert— 'Without limiting subsection (1), the duty includes—'. (4) Section 30(3)— renumber as section 30(2). 345 Amendment of s 31 (Obligation of designer of electrical equipment) (1) Section 31, heading— omit, insert— Page 223 CI DWN KR wWNH YE 111315 17202225 27 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 346] '31 Duty of person conducting business or undertaking that designs electrical equipment or an electrical installation'. (2) Section 31, from 'A designer' to 'ensure that—'— omit, insert— '(1)_ This section applies to a person (the designer) who conducts a business or undertaking that designs electrical equipment or an electrical installation. '(2) The designer must ensure that—'. 346 Amendment of s 32 (Obligation of manufacturer of electrical equipment) (1) Section 32, heading— omit, insert— '32 Duty of person conducting business or undertaking that manufactures electrical equipment'. (2) Section 32(2)— renumber as section 32(3). (3) Section 32(3), as renumbered, 'obligation' — omit, insert— ' > duty'. (4) Section 32(1), from 'A manufacturer' to 'ensure that—'— omit, insert— '(1)_ This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures electrical equipment. '(2) The manufacturer must ensure that—'. 347 Amendment of s 33 (Obligation of importer of electrical equipment) (1) Section 33, heading— omit, insert— Page 224 oCNDMN Bw NE 11 14 1618202327 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 348] '33 Duty of person conducting business or undertaking that imports electrical equipment'. (2) Section 33(2)— renumber as section 33(3). (3) Section 33(3), 'obligation'-— omit, insert— 'duty'. (4) Section 33(1)— omit, insert— '(1)_ This section applies to a person (the importer) who conducts a business or undertaking that imports electrical equipment. '(2) The importer must ensure that the electrical equipment is electrically safe.'. 348 Replacement of s 34 (Obligation of supplier of electrical equipment) Section 34— omit, insert— '34 Duty of person conducting business or undertaking that supplies electrical equipment '(1)_ This section applies to a person (the supplier) who conducts a business or undertaking that supplies electrical equipment. '(2) The supplier must ensure that when the electrical equipment leaves the supplier, it is accompanied by information about the way the electrical equipment must be used to ensure that its use is electrically safe.'. 349 Amendment of s 35 (Additional obligations of designer, manufacturer, importer or supplier of electrical equipment) (1) Section 35, heading, 'obligations' — omit, insert— Page 225 aA HN FW NK 11 13 15 17 19 21 2325 2730 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 350] 'duties'. (2) Section 35(1), 'has an obligation to'— omit, insert— 'mentioned in section 31, 32, 33 or 34 must'. (3) Section 35(2), 'has an obligation to'— omit, insert— 'mentioned in section 31, 32, 33 or 34 must'. 350 Amendment of s 36 (Obligation of installer of electrical equipment or electrical installation) (1) Section 36, heading, 'Obligation' — omit, insert— 'Duty'. (2) Section 36, from 'A person' to 'ensure that—'— omit, insert— '(1)_ This section applies to a person (the installer) who installs electrical equipment or an electrical installation. '(2) The installer must ensure that—'. 351. Amendment of s 37 (Obligation of repairer of electrical equipment or electrical installation) (1) Section 37, heading, 'Obligation' — omit, insert— 'Duty'. (2) Section 37(2), 'obligation' — omit, insert— 'duty'. (3) Section 37(2)— renumber as section 37(3). Page 226 YNaoWkwWN YE \o ll1316 19 21232527 (4) 'D (2) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 352] Section 37(1), from 'A person' to 'ensure that—'— omit, insert— This section applies to a person (the repairer) who repairs electrical equipment or an electrical installation. The repairer must ensure that—'. 352 Amendment of s 38 (Obligation of person in control of electrical equipment) d) (2) (3) '(D) (2) Section 38, heading, 'Obligation' — omit, insert— 'Duty'. Section 38(2)— renumber as section 38(3). Section 38(1), from 'A person' to 'ensure the'— omit, insert— This section applies to a person who is in control of electrical equipment. The person must ensure that the'. 353 ~=—s Insertion of new s 38A After section 37— insert— *38A Duty of officers 'D (2) If a person conducting a business or undertaking has a duty under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty. Subject to subsection (3), the maximum penalty applicable under division 2A for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an Page 227 an BW NY Co OND 111316 19 21 232528 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 353] '3) (4) (5) Page 228 officer of a person conducting a business or undertaking for that offence. Despite anything to the contrary in section 40D, if the duty of a person conducting a business or undertaking was imposed under a provision other than sections 29 to 40, the maximum penalty under 40D for an offence by an officer under section 40D in relation to the duty is the maximum penalty fixed under the provision creating the duty for an individual who fails to comply with the duty. An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted of an offence under this Act relating to the duty. In this section, due diligence includes taking reasonable steps— (a) to acquire and keep up-to-date knowledge of electrical safety matters; and (b) _ to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to electrical safety from work carried out as part of the conduct of the business or undertaking; and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty of the person conducting the business or undertaking under this Act; and OMADNNHW NE See ee BRWNr CO pee nn RR on NNNY NRFOCOwo NNNNNY ADNAN BKW WWWNN NRF OO WW WwW WwW lone a ee) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 354] Example— For paragraph (e), the duties under this Act of a person conducting a business or undertaking may include— * ensuring compliance with notices issued under this Act; ¢ ensuring the provision of training and instruction to workers about electrical safety. (f) to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).'. 354 Replacement of s 39 (Obligation of worker) (1) Section 39— omit, insert— 39 Duty of worker 'While at work, a worker must— (a) take reasonable care for the worker's own electrical safety; and (b) take reasonable care that the worker's acts or omissions do not adversely affect the electrical safety of other persons or property; and (c) comply, so far as the worker is reasonably able, with— (i) any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; or (ii) subject to subparagraph (i), any reasonable instruction about electrical equipment located at the workplace given by a person in control of the electrical equipment to allow the person to comply with this Act; and (d) cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to electrical safety at the workplace that has been notified to workers.'. Page 229 oN ANB wWN He 1113 15 172124262931 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 355] 355 Replacement of s 40 (Obligation of other person) d) Section 40— omit, insert— '40 Duty of other person 'D (2) This section applies to a person at a place where electrical equipment is located, whether or not the person has another duty under this part. The person must— (a) take reasonable care for the person's electrical safety; and (b) take reasonable care that the person's acts or omissions do not adversely affect the electrical safety of other persons; and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person in control of the electrical equipment to allow the person to comply with this Act.'. 356 Amendment of s 40A (Minister may make recall order) Section 40A, note, 'an obligation' — omit, insert— 'a duty'. 357 Renumbering of pt 2, div 2A d) (2) (3) Page 230 Part 2, division 2A— renumber as part 2, division 2B. Sections 40A, as amended, to 40E— renumber as sections 40G to 40K. Section 40I, as renumbered, 'section 40B(2)'— omit, insert— cCNIDMN BW DH 121517 1921 232527 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 358] 'section 40H(2).'. (4) Section 40J, as renumbered, '40E'— omit, insert— '40K'. 358 Insertion of new pt 2, div 2A Part 2— insert— 'Division 2A Offences and penalties '40A_ Electrical safety duty 'Electrical safety duty means a duty imposed under division 2. '40B Reckless conduct—category 1 '(1)_ A person commits a category 1 offence if— (a) (b) (c) the person has an electrical safety duty; and the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and the person is reckless as to the risk to an individual of death or serious injury or illness. Maximum penalty— (a) (b) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3000 penalty units or 5 _ years imprisonment; or for an offence committed by an individual as a person conducting a business or undertaking or as an officer of Page 231 BR WN onnwnm 11 131619 222427 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 358] (2) 3) (c) a person conducting a business or undertaking—6000 penalty units or 5 years imprisonment; or for an offence committed by a body corporate—30000 penalty units. The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. A category 1 offence is a crime. '40C_ 'Failure to comply with electrical safety duty—category 2 'A person commits a category 2 offence if— (a) (b) (c) the person has an electrical safety duty; and the person fails to comply with that duty; and the failure exposes an individual to a risk of death or serious injury or illness. Maximum penalty— (a) (b) (c) for an offence committed by an individual. other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1500 penalty units; or for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3000 penalty units; or for an offence committed by a body corporate—15000 penalty units. '40D_ 'Failure to comply with electrical safety duty—category 3 'A person commits a category 3 offence if— Page 232 (a) (b) the person has an electrical safety duty; and the person fails to comply with that duty. YAWN BW NH \o 1114 1719 2123 25 27 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 358] Maximum penalty— (a) (b) (c) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—S00 penalty units; or for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1000 penalty units; or for an offence committed by a body corporate—5000 penalty units. '40E Duty prevails over particular excuses 'For an offence against sections 40C and 40D, the Criminal Code sections 23(1) and 24 are subject to division 2. Note— This rule is similar to the rule in the Criminal Code section 23(1) (extended to section 24), which makes that provision subject to express provisions of the Criminal Code relating to negligent acts and omission. '40F Exceptions '(1) A volunteer does not commit an offence under this division for a failure to comply with an electrical safety duty, except a duty under section 39 or 40. (2) 3) An unincorporated association does not commit an offence under this Act for a failure to comply with a duty imposed on the unincorporated association under this Act. However— (a) (b) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 38A; and a member of an unincorporated association may be liable for failure to comply with a duty under section 39 or 40.'. Page 233 Be COND WRWN re oO 14 1721242831 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 359] 359 Amendment of pt 2, div 3, hdg 360 Omission of s 41 (Effect of regulation for discharge of Part 2, division 3, heading, 'obligations' — omit, insert— 'duties'. electrical safety obligation) 361 Amendment of s 42 (Ministerial notice about discharging Section 41— omit. electrical safety obligation) d) (2) 362 Amendment of s 43 (Effect of ministerial notice for Section 42, heading, 'obligation' — omit, insert— 'duty'. Section 42(2), 'obligation' — omit, insert— 'duty'. discharge of electrical safety obligation) d) (2) Page 234 Section 43, heading 'obligation' — omit, insert— 'duty'. Section 43(1) and (2), 'obligation' — omit, insert— 'duty'. kW Ne on an 10 ll131518 202224 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 363] 363 Amendment of s 44 (Code of practice about discharging electrical safety obligation) d) (2) Section 44, heading, 'obligation' — omit, insert— 'duty'. Section 44(1), 'obligation' — omit, insert— 'duty'. 364 Replacement of s 45 (Effect of code of practice for discharge of electrical safety obligation) Section 45— omit, insert— '45 Use of code of practice in proceedings 'D (2) 3) (4) This section applies in a proceeding for an offence against this Act. A code of practice is admissible in the proceeding as evidence of whether or not a duty under this Act has been complied with. The court may— (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and (b) rely on the code in deciding what is reasonably practicable in the circumstances to which the code relates. Note— See section 28 for the meaning of reasonably practicable. Nothing in this section prevents a person from introducing evidence of compliance with this Act in a way that is different from the code but provides a standard of electrical safety that Page 235 amrAI HN FW NRE 1115 17212427 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 365] is equivalent to or higher than the standard required in the code.'. 365 Omission of pt 2, div 4 (Defences) Part 2, division 4— omit. 366 Omission of pt 2, div 5 (Effect of Act on civil liability) Part 2, division 5— omit. 367 Replacement of pt 3 (Enforceable undertakings) Part 3— omit, insert— 'Part 3 Enforceable undertakings '49 Regulator may accept an electrical safety undertaking '(1)_ The regulator may accept a written undertaking (an electrical safety undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act. Note— Section 186(4) requires the regulator to publish guidelines in relation to the acceptance of electrical safety undertakings. '(2) An electrical safety undertaking can not be accepted for a contravention or alleged contravention that is a category | offence. '(3) The giving of an electrical safety undertaking does not constitute an admission of guilt by the person giving it for the contravention or alleged contravention to which undertaking relates. Page 236 11 14 1618 21 232628 '53 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 367] Notice of decision and reasons for decision '(1) The regulator must give the person seeking to make an electrical safety undertaking written notice of the regulator's decision to accept or reject the undertaking and of the reasons for the decision. '(2) The regulator must publish, on the regulator's website, notice of a decision to accept an electrical safety undertaking and the reasons for that decision. When an electrical safety undertaking is enforceable 'An electrical safety undertaking takes effect and becomes enforceable when the regulator's decision to accept the undertaking is given to the person who made the undertaking or at any later date stated by the regulator. Compliance with an electrical safety undertaking 'A person must not contravene an electrical safety undertaking made by that person that is in effect. Maximum penalty— 500 penalty units. Contravention of an electrical safety undertaking '(1)_ The regulator may apply to a Magistrates Court for an order if a person contravenes an electrical safety undertaking. '(2) If the court is satisfied that the person who made the electrical safety undertaking has contravened the undertaking, the court, in addition to the imposition of any penalty, may make | or both of the following orders— (a) an order directing the person to comply with the undertaking; (b) an order discharging the undertaking. '(3) In addition to the orders mentioned in subsection (2), the court may make any other order that the court considers appropriate Page 237 OND NSWN 1113 16 20 2224 26 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 367] in the circumstances, including orders directing the person to pay to the State— (a) _ the costs of the proceedings; and (b) the reasonable costs of the regulator in monitoring compliance with the electrical safety undertaking in the future. '(4) Nothing in this section prevents proceedings being taken for the contravention or alleged contravention of this Act to which the electrical safety undertaking relates. Note— Section 54A states circumstances affecting proceedings for a contravention for which an electrical safety undertaking has been given. *B4 Withdrawal or variation of electrical safety undertaking '(1)_ A person who has made an electrical safety undertaking may at any time, with the written agreement of the regulator— (a) withdraw the undertaking; or (b) vary the undertaking. '(2) However, the provisions of the undertaking can not be varied to provide for a different alleged contravention of the Act. '(3) The regulator must publish, on the regulator's website, notice of the withdrawal or variation of an electrical safety undertaking. '654A _ Proceeding for alleged contravention '(1) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be taken against a person if an electrical safety undertaking is in effect in relation to the contravention. '(2) No proceedings may be taken for a contravention or alleged contravention of this Act against a person who has made an Page 238 COAN DANK WNY — So =a Ne 14 16 18 20 222628 30 '3) (4) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 368] electrical safety undertaking for the contravention and has completely discharged the electrical safety undertaking. The regulator may accept an electrical safety undertaking for a contravention or alleged contravention before proceedings for the contravention have been finalised. If the regulator accepts an electrical safety undertaking before the proceedings are finalised, the regulator must take all reasonable steps to have the proceedings discontinued as soon as possible.'. Amendment of s 57AA (Employer or self-employed person must ensure workers are appropriately licensed) d) (2) '(D) (3) Section 57AA, heading, 'Employer or self-employed person' — omit, insert— 'Person conducting a business or undertaking'. Section S7AA(1)— omit, insert— This section applies if a person is conducting a business or undertaking that includes the performance of electrical work.'. Section 57AA(2), 'employer or self-employed' — omit. Amendment of s 57AB (Employers or self-employed persons must keep register of licensed workers) d) (2) Section 57AB, heading, 'Employers or self-employed persons' — omit, insert— 'Person conducting a business or undertaking'. Section 57AB(1)(a)— omit, insert— Page 239 OAND NSW NE 11 13 1517 19 21 23 25 2729 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 370] '(a) a person (the relevant person) conducts a business or undertaking that includes the performance of electrical work; and'. (3) Section 57AB(1)(b), (2) and (3), 'relevant employer' or 'employer' — omit, insert— 'relevant person'. 370 Amendment of s 57AC (Licence holder engaged by employer or self-employed person must notify changes) (1) Section 57AC, heading— omit, insert— "57AC Licence holder engaged by person conducting a business or undertaking must notify changes'. (2) Section 57AC(1)— omit, insert— '(1)_ This section applies if the holder of an electrical work license is engaged to perform or supervise electrical work for a person (the relevant person) who conducts a business or undertaking that includes the performance of electrical work.'. (3) Section 57AC(2), 'employer' — omit, insert— 'person'. 371. Amendment of s 63 (Electrical licence conditions and restrictions) (1) Section 63, 'chief executive' — omit, insert— 'regulator'. ' (2) Section 63, Examples of restrictions, second dot point, 'an employer' — Page 240 ND WS WNKR \o 11 13 15 1719 2124 2629 '67 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 372] omit, insert— 'a person conducting a business or undertaking who is'. Amendment of s 67 (Obligation of prescribed electricity entity) Section 67, heading— omit, insert— Safety management system'. Amendment of s 77 (Composition of board) Section 77(1)(b)— omit, insert— '(b)_ the regulator;'. Amendment of s 94 (Functions of equipment committee) Section 94(3)(f), 'hire,' — omit. Amendment of pt 10, hdg Part 10, heading— omit, insert— 'Part 10 Regulator, inspectors and accredited auditors'. Renumbering of pt 10, div 2 Part 10, division 2— renumber as part 10, division 3. Page 241 ND NN BW N Oo wo 11 131619 21 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 377] 377 Replacement of pt 10, div 1 Part 10, division 1— omit, insert— 'Division 1 Regulator "122 Functions of regulator '(1)_ The regulator has the following functions— (a) (b) (c) (d) (e) (f) (g) (h) (i) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act; to monitor and enforce compliance with this Act; to provide advice and information on electrical safety to duty holders under this Act and to the community; to collect, analyse and publish statistics relating to electrical safety; to foster a cooperative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to electrical safety matters; to promote and support education and training on matters relating to electrical safety; to engage in, promote and coordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator; to conduct and defend proceedings under this Act before a court or tribunal; any other function conferred on the regulator under this Act. '(2) The regulator must act independently when making a decision under this Act but otherwise is subject to direction in the person's capacity as a public service officer and an officer of the department. Page 242 BR WN Re orn nan 11 13 1517 19 2123 25 27 2931 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 377] "122A Powers of regulator 'D (2) Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of the regulator's functions. Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act. '122B Delegation by regulator 'D (2) The regulator may delegate to an inspector, appropriately qualified public service employee or a person prescribed under a regulation a function or power of the regulator under this Act. In this section— appropriately qualified includes having the qualifications, experience or standing appropriate to perform the function or exercise the power. Example of standing— a person's classification level in the public service "122C Power of regulator to obtain information 'D (2) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will help the regulator to monitor or enforce compliance with this Act. The regulator may, by written notice served on the person, require the person to do one or more of the following— (a) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the way stated in the notice, that information of which the person has knowledge; (b) to produce to the regulator, in accordance with the notice, those documents; Page 243 Dun BWN 11 1417 202225 272932 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 377] (c) to appear before a person appointed by the regulator on a day, and at a time and place, stated in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents. '(3) The notice must— (4) (5) (6) D Page 244 (a) (b) (c) state that the requirement is made under this section; and contain a statement to the effect that a failure to comply with a requirement is an offence; and if the notice requires the person to provide information or documents or answer questions— (i) contain a statement about the effect of sections 141A and 192A; and (ii) state that the person may attend with a legal practitioner. The regulator must not make a requirement under subsection (2)(c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2)(a) and (b) and has been unable to do so. A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty—100 penalty units. Subsection (5) places an evidential burden on the defendant to show a reasonable excuse. Section 141A, with any necessary changes, applies to a requirement under this section. COND NABWNKE 12 14 16 1820 22 25 27 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 377] 'Division 2 Appointment of inspectors "123. Appointment of inspectors 'D (2) 3) The regulator may, by instrument, appoint any of the following as an inspector— (a) a public service employee; (b) an employee of a public authority; (c) _ the holder of a statutory office; (d) a person who is appointed as an inspector under a corresponding law; (e) a person of a class prescribed under a regulation. Arrangements may be made for subsection (1)(d) under the Public Service Act 2008, section 183 and 184, as if a reference in the sections to the chief executive were a reference to the regulator. However, the regulator may appoint a person as an inspector only if— (a) the regulator is satisfied the person is qualified for appointment because the person has the necessary expertise or experience; or (b) _ the person has satisfactorily finished training approved by the regulator. "123A Identity cards 'D (2) The regulator must give each inspector an identity card that states the person's name and appointment as an inspector and includes any other matter prescribed under a regulation. In exercising a compliance power in relation to a person, an inspector must— (a) produce the inspector's identity card for the person's inspection before exercising the power; or Page 245 oma NI Dn FW WN — So RR RR BWNR Ree num RRR own Nw a) 2427 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 377] (b) _ have the identity card displayed so it is clearly visible to the person when exercising the power. '(3) However, if it is not practicable to comply with subsection (2), the inspector must produce the identity card for the person's inspection at the first reasonable opportunity. '(4) If a person to whom an identity card has been issued stops being an inspector, the person must return the identity card to the regulator as soon as practicable. Maximum penalty—40 penalty units. "124 Accountability of inspectors '(1)_ An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector's functions. '(2) The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter and the regulator considers that the inspector should not deal, or should no longer deal, with the matter. "125 Suspension and ending of appointment of inspectors '(1) The regulator may suspend or end the appointment of an inspector. '(2) A person's appointment as an inspector ends when the person stops being eligible for appointment as an inspector. "126 Appointment of temporary inspector '(1)_ This division applies if— (a) the regulator considers that an inspector is required urgently to enter a place and investigate the Page 246 C0 AOAAIAD NHPW NY 1214 161820 23 25 27 29 (2) 3) (4) "(5) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 377] circumstances of a serious electrical incident or dangerous electrical event at the place; and (b) there is no inspector available to enter the place and investigate the circumstances. The regulator may appoint a person as a temporary inspector to exercise the powers of an inspector for the place. The person appointed as a temporary inspector need not be a person who could be appointed as an inspector. However, the regulator may appoint the person as a temporary inspector only if the regulator is satisfied the person has the necessary expertise or experience for what the temporary inspector can reasonably be expected to have to do. If practicable, the regulator must give the temporary inspector a document evidencing the temporary inspector's appointment. '127 Exercise of powers by temporary inspector 'D (2) 3) (4) The temporary inspector has all the powers in relation to the place, including any person or thing at the place, that an inspector has under this part. However, the temporary inspector must not exercise a power unless the temporary inspector is directed by an inspector to exercise the power, whether by phone, fax or another form of communication. In exercising a power, the temporary inspector must— (a) comply with any conditions the inspector directing the exercise of power attaches to the direction; and (b) to the greatest practicable extent, show each person affected by the exercise of the power the document evidencing his or her appointment. Subject to subsections (1) to (3), the temporary inspector is taken to be an inspector under this Act.'. Page 247 CI AN BW NR 1114182123 26 2831 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 378] 378 Insertion of new section 136B Part 10, division 3, as renumbered— insert— '136B Offence to impersonate accredited auditor 'A person who is not an accredited auditor must not, in any way, hold himself or herself out to be an accredited auditor. Maximum penalty—100 penalty units.'. 379 Replacement of pt 11 Part 11— omit, insert— 'Part 11 'Division 1 Securing compliance Functions and powers of inspectors '137 Functions and powers of inspectors 'An inspector has the following functions and powers under this Act— (a) to provide information and advice about compliance with this Act; (b) _ to help in the resolution of electrical safety issues; (c) to require compliance with this Act through the issuing of notices; (d) to investigate contraventions of this Act and help in the prosecution of offences. '137A Conditions on inspectors' compliance powers 'An inspector's compliance powers are subject to any condition stated in the instrument of the inspector's appointment. Page 248 YAN BwWNeYE Oo wo 11 15 17 20 22 25 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '137B_ Inspectors subject to regulator's directions 'D (2) '3) An inspector is subject to the regulator's directions in the exercise of the inspector's compliance powers. A direction under subsection (1) may be of a general nature or may relate to a stated matter or stated class of matter. Without limiting subsection (1), the regulator must issue directions to inspectors to ensure powers are exercised under this part in a way that minimises any adverse affect on the privacy, confidentiality and security of persons and businesses. 'Division 2 Powers relating to entry 'Subdivision 1 General powers of entry '138 Powers of entry 'D (2) An inspector may at any time enter a place if— (a) it is a workplace under the control of a person who has an electrical safety duty under this Act, and is— (i) open for carrying on business; or (ii) otherwise open for entry; or (b) _ the inspector reasonably suspects it is a workplace under the control of a person who has an electrical safety duty under this Act, and it is— (i) open for carrying on business; or (ii) otherwise open for entry; or (c) the entry is urgently required to investigate the circumstances of a serious electrical incident or dangerous electrical event. An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the place. Page 249 FOmAInD NF WHY 14 16 18 2023 2528 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] 3) (4) The inspector must leave the place immediately if the inspector finds that the place or circumstances are not as mentioned in subsection (1)(a) or (c). An inspector may enter any place if the entry is authorised by a search warrant. Note— An inspector may enter residential premises to gain access to a workplace. See section 140. '138A Notification of entry 'D (2) 3) (4) An inspector may enter a place under section 138 without prior notice to any person. An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry— (a) _ the relevant person conducting a business or undertaking at the workplace; (b) the person with management or control of the workplace. However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay. In this section relevant person conducting a business or undertaking means the person conducting any business or undertaking in relation to which the inspector is exercising the powers of entry. '138B General powers on entry 'D Page 250 An inspector who enters a place under section 138 may do any of the following— (a) search and make inquiries at the place; COIN NAH WNe 11 1315 17 19 212426 29 (2) '3) (b) (c) (d) (e) (f) (g) (h) (i) co) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] inspect and examine anything, including a document, at the place; copy a document at the place; bring to the place and use any equipment or materials that may be required; take measurements, conduct tests and make sketches or recordings, including photographs, films, audio, video, digital or other recordings; take and remove for analysis, testing or examination, a substance or thing or a sample of any substance or thing without paying for it; make inquiries or conduct surveys and tests to assess— (i) _ the degree of electrical risk to persons or property existing at the place; or (ii) standards of electrical safety existing at the place; inquire into the circumstances and probable causes of any serious electrical incident or dangerous electrical event at the place; require a person at the place to give the inspector reasonable help to exercise the inspector's powers under paragraphs (a) to (h); exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for this Act. A person required to give reasonable help under subsection (1)G) must not, without reasonable excuse, refuse or fail to comply with the requirement. Maximum penalty—100 penalty units. Subsection (2) places an evidential burden on the defendant to show a reasonable excuse. Page 251 CID WHR WwW NH \o 11 14 1720232630 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '138C Persons assisting inspectors 'D (2) 3) A person, including an interpreter, may accompany the inspector entering a place under section 138 to assist the inspector if the inspector considers the assistance is necessary. The person— (a) may do the things at the place and in the way that the inspector reasonably requires to assist the inspector to exercise compliance powers; but (b) must not do anything that the inspector does not have power to do, except as permitted under a search warrant. Anything done lawfully by the person is taken for all purposes to have been done by the inspector. "138D Analysis xe) (2) '3) (4) Page 252 The regulator may have a substance, thing or sample taken by an inspector under 138B(1)(f) analysed. A person must not, with intent to adversely affect the analysis of the thing— (a) tamper with a substance or thing before an inspector takes a sample of the substance or thing for analysis; or (b) tamper with the substance, thing or sample after it is taken by an inspector for analysis. Maximum penalty—100 penalty units. If a particular method of analysis has been prescribed under a regulation, the analyst must follow the method. The regulator must obtain from the analyst a certificate or report stating the analysis result. OND NN PWN \o 12 15 17 19 21 24 26 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] 'Subdivision 2 Search warrants '139 Search warrants 'D (2) "3) (4) "S) An inspector may apply to a magistrate for a search warrant for a place. The application must be sworn and state the grounds on which the warrant is sought. The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. Example— The magistrate may require additional information supporting the application to be given by statutory declaration. The magistrate may issue a search warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and (b) _ the evidence is, or may be within the next 72 hours, at the place. The search warrant must state— (a) that a stated inspector may, with necessary and reasonable help and force, enter the place and exercise the inspector's compliance powers; and (b) _ the offence for which the search warrant is sought; and (c) the evidence that may be seized under the search warrant; and (d) the hours of the day or night when the place may be entered; and (e) the date, within 7 days after the search warrant's issue, the search warrant ends. Page 253 OMANI AN FW WV 11 13 1518 20 2327 29 31 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] "139A Electronic application 'D (2) 3) (4) "S) Page 254 An application under section 139 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the inspector reasonably considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances, including, for example, the inspector's remote location. The application— (a) may not be made before the inspector prepares a written application under section 139(2); but (b) may be made before the application is sworn. The magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied— (a) it was necessary to make the application under this section; and (b) _ the way the application was made was appropriate. After the magistrate issues the original warrant— (a) if there is a reasonably practicable way of immediately giving a copy of the warrant to the inspector, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the inspector; or (b) otherwise— (i) the magistrate must tell the inspector the information mentioned in section 139(5); and (ii) the inspector must complete a form of warrant, including by writing on it the information mentioned in section 139(5) provided by the magistrate. The copy of the warrant mentioned in subsection (4)(a), or the form of warrant completed under subsection (4)(b) (in either CON HD NABWN 11 14 16 18 202226 2830 32 (6) D (8) 2) "(10) ue) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant. The inspector must, at the first reasonable opportunity, send to the magistrate— (a) the written application complying with section 139(2); and (b) if the inspector completed a form of warrant under subsection (4)(b)—the completed form of warrant. The magistrate must keep the original warrant and, on receiving the documents under subsection (6)— (a) attach the documents to the original warrant; and (b) give the original warrant and documents to the clerk of the court of the relevant magistrates court. Despite subsection (5), if— (a) an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and (b) _ the original warrant is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power. This section does not limit section 139. In this section— relevant magistrates court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991. '139B Announcement before entry on warrant Before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must— (a) announce that he or she is authorised by the warrant to enter the place; and Page 255 ONAN BW HY 11 13 162023 2529 31 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (2) (b) _ give any person at the place an opportunity to allow that entry. However, the inspector or an assistant to the inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is needed to ensure— (a) _ the safety of any person; or (b) that the effective execution of the warrant is not frustrated. "139C Copy of warrant to be given to person with management or control of place 'D (2) If the person who has or appears to have management or control of a place is present at the place when a search warrant is being executed, the inspector must— (a) identify himself or herself to that person by producing his or her identity card for inspection; and (b) give that person a copy of the execution copy of the warrant. In this section— execution copy includes a duplicate warrant mentioned in section 139A(5). 'Subdivision 3 _ Limitation on entry powers '140 Places used for residential purposes Page 256 'Despite anything else in this division, the powers of an inspector under this division in relation to entering a place are not exercisable in relation to any part of a place that is used only for residential purposes except— (a) with the consent of the person with management or control of the place; or Com INA DANS W NY 11 1316 18 21 2527 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (b) under the authority conferred by a search warrant; or (c) for the purpose only of gaining access to a place the inspector may enter under section 138, but only— (i) if the inspector reasonably believes that no reasonable alternative access is available; and (ii) at a reasonable time having regard to the times at which the inspector believes work is being carried out at the place to which access is sought. 'Subdivision 4 Specific powers on entry "141 Power to require production of documents and answers to questions 'D (2) 3) (4) An inspector who enters a place under section 138 may— (a) require a person to tell the inspector who has custody of, or access to, a document; or (b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that place or within a stated period; or (c) require a person at the place to answer any questions put by the inspector. A requirement under subsection (1)(b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document. An interview conducted by an inspector under subsection (1)(c) must be conducted in private if— (a) _ the inspector considers it appropriate; or (b) _ the person being interviewed so requests. Subsection (3) does not limit the operation of section 138C or prevent a representative of the person being interviewed from being present at the interview. Page 257 CAD NAH WN 11 14 1618 20 2225 27 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] "S) (6) D Subsection (3) may be invoked during an interview by— (a) _ the inspector; or (b) _ the person being interviewed; in which case the subsection applies to the remainder of the interview. A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty—100 penalty units Note— See section 141A and 141B in relation to self-incrimination and section 192A in relation to legal professional privilege. Subsection (6) places an evidential burden on the defendant to show a reasonable excuse. '141A Abrogation of privilege against self-incrimination 'D (2) A person is not excused from answering a question or providing information or a document under this part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty. However, the answer to a question or information or a document provided by an individual, and other evidence directly or indirectly derived from the answer, information or document, is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document. '141B Warning to be given 'D Page 258 Before requiring a person to answer a question or provide information or a document under this part, an inspector must— CID WR WN \o ee mn) aeilend Wn 161821232529 (2) '3) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (a) identify himself or herself to the person as an inspector by producing the inspector's identity card or in some other way; and (b) warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and (c) warn the person about the effect of section 141A; and (d) advise the person about the effect of section 192A. It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector under this part on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning in subsection (1)(c). Nothing in this section prevents an inspector from obtaining and using evidence given to the inspector voluntarily by any person. "141C Powers to copy and retain documents 'D (2) An inspector may— (a) make copies of, or take extracts from, a document given to the inspector under a requirement under this Act; and (b) keep that document for the period that the inspector considers necessary. While an inspector retains custody of a document, the inspector must permit the following persons to inspect or make copies of the document at all reasonable times— (a) the person who produced the document; (b) the owner of the document; (c) a person authorised by a person mentioned in paragraph (a) or (b). Page 259 oN ANWAR WNHeH 11131619 21 23 2528 30 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '141D Power to seize evidence etc. '(1) An inspector who enters a place under section 138 may— (2) 3) (4) (a) seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act; or (b) t ake and remove for analysis, testing or examination a substance or thing or a sample of any substance or thing without paying for it. seize t An inspector who enters a place with a search warrant may he evidence for which the warrant was issued. An inspector may also seize anything else at the place if the inspector reasonably believes— (a) t (b) ti he thing is evidence of an offence against this Act; and he seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat t enters he offence. Also, an inspector may seize a thing at a place the inspector under section 138 if the inspector reasonably believes it has just been used in committing an offence against this Act. '141E Inspector's power to seize unsafe electrical equipment at an entered place '(1)_ This section applies if— (a) an inspector enters a place under section 138; and (b) _ the inspector reasonably believes that— ( ( i) persons or property at the place are at electrical risk from electrical equipment at the place; and ii) it is urgent that the inspector take action to prevent, remove or minimise the risk. '(2) The inspector may seize the electrical equipment. Page 260 CID NRW NE \o 12 151821 2326 28 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '141F Inspector's power to seize other unsafe electrical equipment 'D (2) This section applies if— (a) an inspector enters a place under section 138; and (b) _ the inspector takes electrical equipment at the place for analysis, testing or examination under — section 138B(1)(f); and (c) the results of the analysis, testing or examination show that the equipment is not electrically safe. The inspector may seize the equipment. "141G Powers supporting seizure 'D (2) 3) Having seized a thing, whether or not electrical equipment, an inspector may— (a) move the thing from the place where it was seized (the place of seizure); or (b) _ leave the thing at the place of seizure but take reasonable action to restrict access to it and, if the thing is electrical equipment, to disconnect it from its supply of electricity to the extent considered appropriate; or Examples of restricting access to a thing— ¢ sealing a main switch and marking it to restrict its operation ¢ — disconnecting a faulty power circuit from supply ¢ sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted (c) if the thing is electrical equipment—dismantle it or cause it to be dismantled. An inspector may direct an electricity entity to give the inspector the help the inspector reasonably requires to disconnect electrical equipment under subsection (1)(b). An electricity entity must comply with a direction under subsection (2). Page 261 Com ANDN FW NYE — So 13 15 1719 2124 26 2831 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (4) "S) (6) D (8) 2) "(10) 'd)) Page 262 If an inspector restricts access to a seized thing, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector's approval. Maximum penalty—100 penalty units. If an inspector disconnects seized electrical equipment from its supply of electricity, a person must not reconnect, or attempt to reconnect, the electrical equipment to a source of supply without an inspector's approval. Maximum penalty—100 penalty units. To enable a thing to be seized, an inspector may require the person in control of it— (a) to take it to a stated reasonable place by a stated reasonable time; and (b) _ if necessary, to remain in control of it at the stated place for a reasonable time. The requirement— (a) must be made by notice in the approved form; or (b) if it is not practicable to give the notice, may be made orally and confirmed by notice in the approved form as soon as practicable. A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement. A person of whom a requirement is made under subsection (6) or (8) must comply with the requirement unless the person has a reasonable excuse for not complying. Maximum penalty—100 penalty units. Subject to the provisions of this part providing for compensation, the cost of complying with subsection (6) or (8) must be borne by the person. For this section, a person is in control of a thing, other than electrical equipment, if the person has, or reasonably appears CIDNW BR WNeE \o 11 13 15 17 1922252932 "(12) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] to an inspector to have, authority to exercise control over the thing. Subsection (9) places an evidential burden on the defendant to show a reasonable excuse. "141H Inspector may require thing's return 'D (2) '3) (4) If an inspector has required a person to take a thing to a stated place by a stated reasonable time under this division, the inspector may require the person to return the thing to the place from which it was taken. A person of whom the requirement is made under subsection (1) must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—100 penalty units. Subject to the provisions of this part providing for compensation, the cost of complying with subsection (1) must be borne by the person. Subsection (2) places an evidential burden on the defendant to show a reasonable excuse. Receipt for seized things 'D (2) 3) (4) As soon as practicable after an inspector seizes a thing at a place entered under section 138, the inspector must give a receipt for it to the person from whom it was seized. However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place of seizure. The receipt must describe generally each thing seized and its condition. This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt required by this section (given the thing's nature, condition and value). Page 263 BW NR lo i oA \o 111518 212426 28 30 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '141J Forfeiture of seized things xe) (2) 3) (4) "S) (6) D (8) Page 264 A seized thing is forfeited to the State if the regulator— (a) can not find the person entitled to the thing after making reasonable inquiries; or (b) can not return it to the person entitled to it, after making reasonable efforts; or (c) reasonably believes it is necessary to forfeit the thing to prevent it being used to commit an offence against this Act. Subsection (1)(a) does not require the regulator to make inquiries if it would be unreasonable to make inquiries to find the person entitled to the thing. Subsection (1)(b) does not require the regulator to make efforts if it would be unreasonable to make efforts to return the thing to the person entitled to it. If the regulator decides to forfeit the thing under subsection (1)(c), the regulator must tell the person entitled to the thing of the decision by written notice. Subsection (4) does not apply if— (a) the regulator can not find the person entitled to the thing, after making reasonable inquiries; or (b) it is impracticable or would be unreasonable to give the notice. The notice must include an information notice for the decision. In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing's nature, condition and value. Any costs reasonably incurred by the State in storing or disposing of a thing forfeited under subsection (1)(c) may be recovered in a court of competent jurisdiction as a debt due to the State from that person. OMANI AN FWY See NRO PRR nb Ww RRR ana ee \o Nw rer oO NN wh NN aw YNwony onana WWW WwW WNrFR © 2) "(10) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] In this section person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it in which case it means the owner of the thing. Without limiting subsection (1), if a seized thing is electrical equipment, the thing is forfeited to the State if— (a) the inspector who seized the thing reasonably believes the thing is not electrically safe; and (b) the person entitled to the thing does not require its return. '141K Return of seized thing 'D (2) 3) If a seized thing has not been forfeited, the inspector must return it to the person entitled to the thing— (a) at the end of 6 months; or (b) if a proceeding for an offence involving it is started within 6 months, at the end of the proceeding and any appeal from the proceeding. However, unless the thing has been forfeited, the inspector must immediately return a thing seized as evidence to the person entitled to the thing if the inspector stops being satisfied its continued retention as evidence is necessary. This section does not apply to a seized thing if it is impracticable or would be unreasonable to return the thing given the thing's nature, condition and value. Example for subsection (3)— The seized thing is electrical equipment that has been destroyed or extensively damaged during analysis or testing conducted under the Act. '141L Returning seized electrical equipment that is not electrically safe 'D This section applies if— (a) an inspector has seized electrical equipment under this part; and Page 265 COM AND UP WNKR 12 151820 2226 28 31 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (2) "3) (4) "S) (b) the inspector reasonably believes the equipment is not electrically safe; and (c) the equipment is not forfeited under section 141J. If the inspector returns the equipment to the person entitled to the equipment, the inspector may, by written notice, require the person to do 1 or more of the following to make the equipment electrically safe— (a) have the equipment repaired; (b) have the equipment altered in a stated way; (c) _ take other stated action in relation to the equipment that is reasonable in the circumstances, including, for example, to make it incapable of operation. Note— Section 55 provides for who may perform electrical work, including repair or alter electrical equipment. The person must comply with the requirement unless the person has a reasonable excuse for not complying. Maximum penalty—40 penalty units. For subsection (3), it is a reasonable excuse for the person not complying with the requirement that the person destroyed the equipment instead of complying with the requirement. Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. "141M Access to seized things 'D Page 266 Until a seized thing is forfeited or returned, the regulator must permit the following persons to inspect it and, if it is a document, to make copies of it at all reasonable times— (a) _ the person from whom the thing was seized; (b) _ the owner of the thing; (c) a person authorised by a person mentioned in paragraph (a) or (b). CIDNER W NE 1115 17 2023 2629 31 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '(2) Subsection (1) does not apply if it is impracticable or would be unreasonable to allow inspection or copying. 'Division 3 Damage and compensation '142 Damage etc. to be minimised 'In the exercise, or purported exercise, of a compliance power, an inspector must take all reasonable steps to ensure that the inspector, and any assistant to the inspector, cause as little inconvenience, detriment and damage as is practicable. "142A Inspector to give notice of damage 'D (2) 3) (4) "S) This section applies if an inspector or an assistant to an inspector damages a thing when exercising or purporting to exercise a compliance power. The inspector must, as soon as practicable, give written notice of the damage to the person who the inspector believes on reasonable grounds, is the person in control of the thing. If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector's or assistant's control, the inspector may state it in the notice. If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened. This section does not apply to damage the inspector reasonably believes is trivial. "142B Compensation 'D (2) A person may claim compensation from the State if the person incurs loss or expense because of the exercise or purported exercise of a power under division 2. Compensation may be claimed and ordered in a proceeding— (a) taken in a court of competent jurisdiction; or Page 267 eornan £ \o 1114172022 24 2730 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (b) for an offence against this Act taken against the person claiming compensation. '(3) The court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case. '(4) A regulation may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order. 'Division 4 Serious electrical incident or dangerous electrical event '143 Power to inquire into serious electrical incident or dangerous electrical event 'D (2) 3) (4) "S) (6) Page 268 This section applies if an inspector becomes aware, or reasonably suspects, that a serious electrical incident or dangerous electrical event has happened at a place. The inspector may inquire into the circumstances and probable causes of the incident or event. The inspector may require a person who has knowledge, or whom the inspector reasonably suspects to have knowledge, of the circumstances of the incident or event to give the inspector reasonable help, as stated in the requirement, to inquire under subsection (2). A requirement under subsection (3) may be given orally or in writing. A person must comply with a requirement under subsection (3) unless the person has a reasonable excuse for not complying. Maximum penalty—100 penalty units. This section does not limit any other power an inspector has on entering a place under section 138. CID NWRW NE 12 1417 192124 2630 D Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] Subsection (5) places an evidential burden on the defendant to show a reasonable excuse. 'Division 5 Other matters "144 Power to require name and address 'D (2) '(3) (4) "S) (6) An inspector may require a person to provide the person's name and residential address if— (a) the inspector finds the person committing an offence against this Act; or (b) _ the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has just committed an offence against this Act. When asking a person to provide the person's name and residential address, the inspector must— (a) _ tell the person the reason for the requirement to provide the person's name and residential address; and (b) warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse. If the inspector reasonably believes that the name or residential address is false, the inspector may require the person to give evidence of its correctness. A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) or (3). Maximum penalty—100 penalty units. Subsection (4) places an evidential burden on the defendant to show a reasonable excuse. The person does not commit an offence against subsection (4) if— Page 269 on nan 1114 16 182124 27 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (a) the person was required to state the person's name and address by an inspector who suspected the person had committed an offence against this Act; and (b) _ the person is not proved to have committed the offence. '144A Inspector may take affidavits 'An inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of his or her compliance powers. '144B Inspector at coronial inquests 'Under and subject to the Coroners Act 2003, an inspector may appear at and otherwise participate in any coroners inquest into the cause of death of a person involving an issue of electrical safety. 'Division 6 Offences in relation to inspectors '145 Offence to hinder or obstruct inspector 'A person must not intentionally hinder or obstruct an inspector in exercising his or her compliance powers, or induce or attempt to induce any other person to do so. Maximum penalty—100 penalty units. '145A Offence to impersonate inspector 'A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector. Maximum penalty—100 penalty units. Page 270 BR WNR OrIrD MN 1113 1722 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '145B Offence to assault, threaten or intimidate inspector 'A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an inspector or a person helping an inspector. Maximum penalty—SO0 penalty units or 2 _ years imprisonment. 'Part 11A Enforcement measures 'Division 1 Improvement notices '146 Issue of improvement notice 'D (2) This section applies if an inspector reasonably believes that a person— (a) is contravening a provision of this Act; or (b) _ has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. The inspector may issue an improvement notice requiring the person to— (a) remedy the contravention; or (b) | prevent a likely contravention from occurring; or (c) remedy the things or operations causing the contravention or likely contravention. '146A Contents of improvement notice 'D An improvement notice must state— (a) that the inspector believes the person— (i) is contravening a provision of this Act; or Page 271 Dun BWN 11 1417 19 21 2325 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (2) 3) (ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and (b) the provision the inspector believes is being, or has been, contravened; and (c) briefly, how the provision is being, or has been, contravened; and (d) the day by which the person is required to remedy the contravention or likely contravention. An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. The day stated for compliance with the improvement notice must be reasonable in all the circumstances. '146B Compliance with improvement notice 'The person to whom an improvement notice is issued must comply with the notice within the period stated in the notice. Maximum penalty—S00 penalty units. '146C Extension of time for compliance with improvement notice '(1)_ This section applies if a person has been issued with an improvement notice. '(2) An inspector may, by written notice given to the person, extend the compliance period for the improvement notice. '(3) However, the inspector may extend the compliance period only if the period has not ended. '(4) In this section— Page 272 COA ND NH WNe eet cell eel el oe' BWNr CO ella nun 19 22 24 26 28 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] compliance period means the period stated in the improvement notice under section 146A, and includes that period as extended under this section. 'Division 2 Electrical safety protection notices '147 Electrical safety protection notice 'D (2) '3) (4) (5) (6) This section applies if an inspector reasonably believes that circumstances causing, or likely to cause, an immediate electrical risk to persons or property have arisen at a place. The inspector may— (a) direct the person in control of any activity or electrical equipment that caused, or is likely to cause, the circumstances to stop the activity, or to stop using, or allowing to be used, the electrical equipment; and Example of direction— A direction may be given requiring a person to stop selling, lending or otherwise disposing of particular electrical equipment. (b) disconnect electrical equipment from its supply of electricity to the extent the inspector considers necessary to eliminate the electrical risk. An inspector may direct an electricity entity to give the inspector the help the inspector reasonably requires to disconnect electrical equipment under subsection (2)(b). An electricity entity must comply with a direction under subsection (3). The direction under subsection (2)(a) may be given orally, but must be confirmed by notice (electrical safety protection notice) given to the person as soon as practicable. The person must comply with— (a) the direction under subsection (2)(a); and (b) | the electrical safety protection notice. Page 273 WN OND MN \o 1113 16192225 2730 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] D) (8) '(9) Maximum penalty—1000 penalty units. Subsection (2)(a) does not apply to an activity or use of electrical equipment necessary to rectify the circumstances. An electrical safety protection notice must state— (a) (b) (c) (d) the inspector believes that circumstances causing, or likely to cause, an immediate electrical risk to persons or property have arisen, or are likely to arise, at a place; and briefly, the circumstances that have caused or are likely to cause the risk; and if the inspector believes the circumstances involve a contravention, or likely contravention, of a provision of this Act—the provision contravened or likely to be contravened; and the requirements that must be complied with before any electrical equipment disconnected by the inspector from its supply of electricity may be reconnected. For this section, a person is in control of an activity if the person has, or reasonably appears to have, authority to exercise control over the activity. 'Division 3 Unsafe equipment notices '148 Unsafe equipment notice '(1)_ This section applies if an inspector reasonably believes that electrical equipment is so defective or hazardous that it is likely to cause a serious electrical incident. (2) Page 274 The inspector may, by notice (unsafe equipment notice), require the owner to make the electrical equipment— (a) (b) harmless; or incapable of operation. CIDAMW BRB WN \o 1214 16192427 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '(3) The owner must comply with the unsafe equipment notice, unless the owner has a reasonable excuse for not complying. Maximum penalty—1000 penalty units. '(4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. 'Division 4 Non-disturbance notices '149 Issue of non-disturbance notice 'An inspector may issue a non-disturbance notice to the person with management or control of a place if the inspector reasonably believes that it is necessary to do so to facilitate the exercise of his or her compliance powers. '149A Contents of non-disturbance notice '(1) A non-disturbance notice may require the person to— (a) preserve the site at which a serious electrical incident or dangerous electrical event has happened for a stated period; or (b) | prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a stated period that is reasonable in the circumstances. '(2) A non-disturbance notice must state the period (of no more than 7 days) for which it applies and set out— (a) the duties of the person to whom the notice is issued; and (b) the measures to be taken to preserve a site or prevent disturbance of a site; and (c) | the penalty for contravening the notice. '(3) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the site. '(4) A non-disturbance notice does not prevent any action— Page 275 aA WwW NR 11 13 151821 23 25 28 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (a) _ to assist an injured person; or (b) to remove a deceased person; or (c) that is essential to make the site safe or to prevent a further incident; or (d) _ that is associated with a police investigation; or (e) for which an inspector has given permission. "149B Compliance with non-disturbance notice '(1)_ A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person. Maximum penalty—S00 penalty units. '(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse. '149C Issue of subsequent notices 'If an inspector considers it necessary to do so, he or she may issue 1 or more subsequent non-disturbance notices to a person, whether before or after the expiry of the previous notice, each of which must comply with section 149A. 'Division 5 General requirements applying to notices '150 Application of division 'In this division, notice means an improvement notice, electrical safety protection notice, unsafe equipment notice or non-disturbance notice. '150A Notice to be in writing 'A notice must be in writing. Page 276 Dn nn FW NY nN \o 12 1517 19 2225 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '150B Directions in notice 'A direction included in an improvement notice or electrical safety protection notice may— (a) refer to a code of practice; and (b) _ offer the person to whom it is issued a choice of ways in which to remedy the contravention. '150C Recommendations in notice '(1) An improvement notice or electrical safety protection notice may include recommendations. '(2) It is not an offence to fail to comply with recommendations in a notice. '150D Changes to notice by inspector '(1)_ An inspector may make minor changes to a notice— (a) for clarification; or (b) to correct errors or references; or (c) to reflect changes of address or other circumstances. '(2) An inspector may also, under section 146C, extend the compliance period for an improvement notice. '150E Regulator may vary or cancel notice 'Except as provided in section 150D, a notice issued by an inspector may only be varied or cancelled by the regulator. '150F Formal irregularities or defects in notice 'A notice is not invalid only because of— (a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or Page 277 Dun F&F WN 11 131518 21 23 25 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] (b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person under section 150G. "150G Issue and giving of notice '(1)_ A notice may be issued or given to a person— (2) (a) (b) (c) (d) by delivering it personally to the person or sending it by post or facsimile or electronic transmission to the person's usual or last known place of residence or business; or by leaving it for the person at the person's usual or last known place of residence or business with a person who appears to be over 16 years and who appears to reside or work there; or by leaving it for the person at the place to which the notice relates with a person who is or appears to be the person with management or control of the place; or in a way prescribed under a regulation. A regulation may prescribe— (a) (b) the way of issuing a notice; and the steps a person to whom a notice is issued must take to bring it to the attention of other persons. *150H Display of notice '(1)_ A person to whom a notice is issued that affects a workplace must, as soon as possible, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. Page 278 Maximum penalty—S0 penalty units. BWNR OMAN NWN 1214 161922 2527 (2) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force. Maximum penalty—S0 penalty units. 'Division 6 Remedial action "151 When regulator may carry out action 'D (2) This section applies if a person to whom an electrical safety protection notice is issued fails to take reasonable steps to comply with the notice. The regulator may take any remedial action the regulator believes reasonable to make the situation safe after giving written notice to the person to whom the electrical safety protection notice was issued of— (a) _ the regulator's intention to take that action; and (b) the owner's or person's liability for the costs of that action. '151A Power of the regulator to take other remedial action 'D (2) This section applies if the regulator reasonably believes that— (a) circumstances in which a electrical safety protection notice can be issued exist; and (b) anelectrical safety protection notice can not be issued at a place because, after taking reasonable steps, the person with management or control of the place can not be found. The regulator may take any remedial action necessary to make the place safe. Page 279 wn BB WNe oman a 1113 16 18 20 2224 26 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 379] '151B Costs of remedial or other action 'The regulator may recover the reasonable costs of any remedial action taken under— (a) section 151 from the person to whom the notice is issued; or (b) section 151A from any person to whom the electrical safety protection notice could have been issued for the matter; as a debt due to the regulator. 'Division 7 Injunctions '152 Application of division 'In this division, notice means improvement notice electrical safety protection notice or unsafe equipment notice. '152A Injunctions for noncompliance with notices xe) (2) Page 280 The regulator may apply to a magistrates court for an injunction— (a) compelling a person to comply with a notice; or (b) _ restraining a person from contravening a notice. The regulator may do so— (a) whether or not proceedings have been taken for an offence against this Act in connection with any matter for which the notice was issued; and (b) whether any period for compliance with the notice has expired. C0 MAD NH WHY 13 16 182124 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 380] 'Division 8 Retail entity to give information '153 Provision of information by retail entity '(1)_ A retail entity must, in the way and at the times the regulator reasonably requires, give the regulator information, prescribed under a regulation, the retail entity holds about— (a) premises for which, under the Electricity Act, the retail entity provides customer retail services; and (b) persons who, under the Electricity Act, are customers of the retail entity, and who own or occupy premises mentioned in paragraph (a). '(2) An official may use information given to the regulator by a retail entity under subsection (1) only for administering and enforcing this Act. '(3) In this section— official means— (a) the regulator; or (b) an inspector. retail entity means a retail entity under the Electricity Act.'. 380 Replacement of pt 12, hdg (Reviews and appeals) Part 12, heading— omit, insert— 'Part 12 Reviews'. 381 Replacement of pt 12, div 2 hdg (Reviews of decisions) Part 12, division 2, heading— omit, insert— 'Division 2 Internal review'. Page 281 Com NAD NSFW WV 1215172024 26 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 382] 382 Amendment of s 170 (Review of decisions) Section 170(6), 'appeal against' — omit, insert— 'apply for a review of". 383 Replacement of s 171 (Stay of operation of original decision) Section 171— omit, insert— '171. Stay of reviewable decisions on internal review xe) (2) "3) (4) "S) (6) Page 282 An application for a review of a decision (other than a decision to issue an electrical safety protection notice, an unsafe equipment notice or a non-disturbance notice) under this division stays the operation of the decision. If an application is made under this division for a review of a decision to issue an electrical safety protection notice, an unsafe equipment notice or a non-disturbance notice, the review entity for the review may stay the operation of the decision. The review entity may make the decision to stay the operation of a decision on the review entity's own initiative or on the application of the applicant for review. The review entity must make a decision on an application for a stay within 1 working day after the review entity receives the application. If the review entity has not made a decision to stay a decision within the time set out in subsection (4), the review entity is taken to have made a decision to grant a stay. A stay of the operation of a decision pending a decision on a review under this division continues until whichever of the following is the earlier— BW N Ke on an 1113 151720232629 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 384] (a) the end of the prescribed period for applying for a review of the decision under division 3; or (b) an application for a review under division 3 is made.'. 384 Replacement of pt 12, div 3 (Appeals) Part 12, division 3— omit, insert— 'Division 3 External review '172 Application for external review 'A person whose interests are affected by a disciplinary decision, original regulator decision, original decision or review decision may apply, as provided for under the QCAT Act, for a review of the decision. Note— See QCAT Act, chapter 2, part 1, divison 3 (Review jurisdiction).'. 385 | Renumbering of pt 14 (Miscellaneous provisions) Part 14— renumber as part 14A. 386 Replacement of pt 13, divs 2, 2A and 3 Part 13, divisions 2, 2A and 3— omit, insert— 'Division 2 Other matters '186 Prosecutions '(1) Proceedings for an offence against this Act, other than a category 1 offence, must be taken in a summary way under the Justices Act 1886. Page 283 YN awWsA 1114 161924 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] (2) 3) (4) "S) Subject to subsection (5), proceedings for an offence against this Act may only be taken by— (a) the regulator; or (b) an inspector with the written authorisation of the regulator, either generally or in a particular case. An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons. The regulator must issue, and publish on the regulator's website, general guidelines for— (a) _ the prosecution of offences under this Act; and (b) the acceptance of electrical safety undertakings under this Act. Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act. '186A Procedure if prosecution is not brought 'D (2) Page 284 If— (a) a person reasonably considers that an act or omission constitutes a category 1 offence or a category 2 offence; and (b) _ no prosecution has been brought for the act or omission after 6 months but not later than 12 months after the act or omission happens; the person may make a written request to the regulator that a prosecution be brought. Within 3 months after the regulator receives a request the regulator must— (a) advise the person, in writing— (i) whether the investigation is complete; and CID WHR WwW NH \o 11 13 1518 202326 28 30 3) (4) "S) (6) 'D Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] Gi) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought; and (b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a). If the regulator advises the person that a prosecution for a category 1 or category 2 offence will not be brought, the regulator must— (a) advise the person that the person may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration; and (b) _ if the person makes a written request to the regulator to do so, refer the matter to the Director of Public Prosecutions within | month of the request. The Director of Public Prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the Director considers that a prosecution should be brought. The regulator must ensure a copy of the advice is given to— (a) the person who made the request; and (b) the person who the applicant believes committed the offence. If the regulator declines to follow the advice of the Director of Public Prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5). '186B Limitation period for prosecutions Proceedings for an offence against this Act may be taken within the latest of the following periods— (a) within 2 years after the offence first comes to the notice of the regulator; Page 285 OMANI DANK WNHK See NRO eiivatiend nw RR Re COomAND NY WY re SO NN Wn NNNWY AAAH 30 32 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] (2) (b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act; (c) if an electrical safety undertaking has been given in relation to the offence, within 6 months after— (i) _ the electrical safety undertaking is contravened; or (ii) it comes to the notice of the regulator that the electrical safety undertaking has been contravened; or (iii) the regulator has agreed under section 54 to the withdrawal of the electrical safety undertaking. A proceeding for a category 1 offence may be taken after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period. "186C Multiple contraventions of electrical safety duty provision 'D (2) 3) (4) Page 286 Two or more contraventions of an electrical safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. This section does not authorise contraventions of 2 or more electrical safety duty provisions to be charged as a single offence. A single penalty only may be imposed for 2 or more contraventions of an electrical safety duty provision that are charged as a single offence. In this section electrical safety duty provision means a provision of part 2, division 2. om NY DN FWNe — So ao Ne RR RRR ADNHW 19 2123 252831 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] 'Division 3 Sentencing for offences '187 Application of this division 'This division applies if a court convicts a person (the offender), of an offence against this Act. '187A Orders generally "(1) One or more orders may be made under this division against the offender. '(2) Orders may be made under this division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. "187B Adverse publicity order '(1) The court may make an order (an adverse publicity order) in relation to the offender requiring the offender— (a) to take either or both of the following actions within the period stated in the order— (i) to publicise, in the way stated in the order, the offence, its consequences, the penalty imposed and any other related matter; (ii) to notify a stated person or stated class of persons, in the way stated in the order, of the offence, its consequences, the penalty imposed and any other related matter; and (b) to give the regulator, within 7 days after the end of the period stated in the order, evidence that the action or actions were taken by the offender in accordance with the order. '(2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence. Page 287 Kw Pon ntnaun 13 15 172022 2426 28 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] 3) (4) "S) If the offender fails to give evidence to the regulator as provided under subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions stated in the order. However, if— (a) _ the offender gives evidence to the regulator as provided under subsection (1)(b); and (b) despite that evidence, the regulator is not satisfied that the offender has taken the action or actions stated in the order in accordance with the order; the regulator may apply to the court for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions. If the regulator or a person authorised in writing by the regulator takes an action or actions under subsection (3) or an order under subsection (4), the regulator is entitled to recover from the offender, by action in a court of competent jurisdiction, an amount for the reasonable expenses of taking the action or actions as a debt due to the regulator. '187C Order for restoration 'D (2) The court may order the offender to take such steps as are stated in the order, within the period so stated, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy. The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if an application for the extension is made before the end of that period. "187D Electrical safety project order xe) Page 288 The court may make an order requiring the offender to undertake a stated project for the general improvement of electrical safety within the period stated in the order. OMA ANID NN PWNYK — So leetilentilan WN RR RR RR COCmMADNSE 2224 2628 31 (2) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] The order may specify conditions that must be complied with in undertaking the stated project. '187E Release on the giving of a court-ordered electrical safety undertaking 'D (2) 3) (4) "(5) The court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with stated conditions (a court-ordered electrical safety undertaking). A court-ordered electrical safety undertaking must specify the following conditions— (a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; (b) _ that the offender does not commit, during the period of the adjournment, any offence against this Act; (c) that the offender observes any special conditions imposed by the court. An offender who has given a court-ordered electrical safety undertaking under this section may be called on to appear before the court by order of the court. An order under subsection (3) must be served on the offender not less than four days before the time stated in it for the appearance. If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered electrical safety undertaking, it must discharge the offender without any further hearing of the proceeding. Page 289 Noe OMDAINDN HW 11 1315 17 19 21242729 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] '187F Injunction 'The court may issue an injunction requiring the offender to stop contravening this Act. '187G Training order 'The court may make an order requiring the offender to undertake or arrange for 1 or more workers to undertake a stated course of training. '187H Forfeiture on conviction 'D (2) 3) (4) "S) On the conviction of a person for an offence against this Act, the court may order the forfeiture to the State of anything used to commit the offence or anything else the subject of the offence. The court may make the order— (a) whether or not the thing has been seized under this Act; and (b) if the thing has been seized—whether or not the thing has been returned to its owner. The court may make any order to enforce the forfeiture it considers appropriate. This section applies to a thing only if the court is satisfied that the thing caused or may cause a serious electrical incident. This section does not limit the court's powers under another law. "1871 Dealing with forfeited thing 'D (2) Page 290 On the forfeiture of a thing to the State, the thing becomes the State's property and may be dealt with by the regulator as the regulator considers appropriate. Without limiting subsection (1), the regulator may destroy it. Wn NAN 1115 17 19 21 23 26 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] '187J Offence to fail to comply with order 'D (2) 3) A person must not, without reasonable excuse, fail to comply with an order under this division. Maximum penalty—S00 penalty units. Subsection (1) places an evidential burden on the defendant to show a reasonable excuse. This section does not apply to an order under section 187E or 187F. 'Division 4 Offences by bodies corporate "188 Imputing conduct to body corporate 'D (2) '3) For this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for the offence to prove that the person mentioned in subsection (1) had the relevant knowledge, intention or recklessness. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for the offence if the person mentioned in subsection (1) made the mistake of fact. Page 291 CN AN BB WN 121417192224 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] 'Division 5 The State, Commonwealth and other States '189 Offence and the State, Commonwealth and other States 'D (2) 3) (4) If the State, Commonwealth or another State is found guilty of an offence against this Act, the penalty to be imposed on the State, Commonwealth or other State is the penalty applicable to a body corporate. For this Act, conduct engaged in on behalf of the State, Commonwealth or another State by an employee, agent or officer of the State, Commonwealth or other State acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the State, Commonwealth or other State. If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the State, Commonwealth or other State for the offence to prove that the person mentioned in subsection (2) had the relevant knowledge, intention or recklessness. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the State, Commonwealth or other State for the offence if the person mentioned in subsection (2) made the mistake of fact. '189A Officers 'D (2) Page 292 A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the State, Commonwealth or another State is taken to be an officer of the State, Commonwealth or other State for the purposes of this Act. A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act. ONDMN HW \o 111316182123 262831 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] '189B Responsible agency for the State, Commonwealth or other State ue) (2) 3) (4) "S) (6) The following notices may be given to or served on the responsible agency— (a) an improvement notice, electrical safety protection notice, unsafe equipment notice or non-disturbance notice to be given to or served on the State, Commonwealth or another State under this Act; (b) an infringement notice for an offence against this Act to be given to or served on the State, Commonwealth or another State. If an infringement notice is to be served on the State, Commonwealth or another State for an offence against this Act, the responsible agency may be stated in the infringement notice. If proceedings are taken against the State, Commonwealth or another State for an offence against this Act or in relation to a contravention of this Act, the responsible agency for the offence or contravention may be stated in any document initiating, or relating to, the proceedings. The responsible agency for an offence or a contravention of this Act is entitled to act in proceedings against the State, Commonwealth or other State for the offence or relating to the contravention and, subject to any relevant rules of court, the procedural rights and obligations of the State, Commonwealth or other State as the accused or defendant in the proceedings are conferred or imposed on the responsible agency. The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court's leave. In this section, the responsible agency means— (a) for an improvement notice or infringement notice—the agency of the State, Commonwealth or other State the acts or omissions of which are alleged to contravene this Act; or Page 293 CIADN BW NYE 11 1315 1719222426293335 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] (b) (c) (d) (e) 'Division 6 for an electrical safety protection notice—the agency of the State, Commonwealth or other State that controls the place where the electrical risk has arisen; or for an unsafe equipment notice—the agency of the State, Commonwealth or other State that owns or controls the electrical equipment; or for a non-disturbance notice—the agency of the State, Commonwealth or other State that controls the site to which the notice relates; or for an offence or proceedings for a contravention of this Act— (i) the agency of the State, Commonwealth or other State the acts or omissions of which are alleged to constitute the offence or contravention; or (ii) if that agency no longer exists, that is the successor of the agency; or (iii) if that agency no longer exists and there is no clear successor, that the court declares to be the responsible agency. Public authorities '190 Application to public authorities that are bodies corporate 'This division applies only to public authorities that are bodies corporate or are local governments. '190A Proceedings against public authorities '(1) Proceedings may be taken under this Act against a public authority in its own name. '(2) Proceedings may be taken under this Act against a local government, and a local government may be prosecuted and punished, as if it were a body corporate. Page 294 OMAN DANK WNK ee a) enilandilend BWN pee nn RRR oon 22 24 27 29 3) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] Nothing in this division affects any privileges that a public authority may have under the State. '190B Imputing conduct to public authorities 'D (2) '3) For this Act, any conduct engaged in on behalf of a public authority by an employee, agent or officer of the public authority acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the public authority. If an offence against this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the public authority for that offence to prove that the person mentioned in subsection (1) had the relevant, knowledge or recklessness. If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the public authority for that offence if the person mentioned in subsection (1) made that mistake of fact. '190C Officer of public authority 'A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act. '190D Proceedings against successors to public authorities 'D (2) Proceedings for an offence against this Act that were instituted against a public authority before its dissolution, or that could have been instituted against a public authority if not for its dissolution, may be continued or instituted against its successor if the successor is a public authority. An infringement notice served on a public authority for an offence against this Act is taken to be an infringement notice served on its successor if the successor is a public authority. Page 295 ONDMNH W 1113 1517 2022 252730 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] '(3) Similarly, any penalty paid by a public authority for an infringement notice is taken to be a penalty paid by its successor if the successor is a public authority. 'Division 7 Civil liability not affected by this Act 191 Civil liability not affected by this Act 'Nothing in this Act is to be construed as— (a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or (b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or (c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, in relation to breaches of duties or obligations imposed under a regulation. 'Part 14 General 'Division 1 General provisions '192 Offence to give false or misleading information '1) A person must not give information in complying or purportedly complying with this Act that the person knows— (a) to be false or misleading in a material particular; or (b) omits any matter or thing without which the information is misleading. Maximum penalty—100 penalty units. Page 296 WNe on nm 11 1315 20 23 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] '(2) A person must not produce a document in complying or purportedly complying with this Act that the person knows to be false or misleading in a material particular without— (a) indicating how it is false or misleading and, if practicable, providing correct information; or (b) accompanying the document with a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate— (i) _ stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and (ii) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading. Maximum penalty—100 penalty units. '(3) Subsection (2) places an evidential burden on the defendant to show— (a) that the defendant had indicated the extent to which the document was false or misleading; or (b) that the accompanying document sufficiently explained the extent to which the document was false or misleading. "192A Act does not affect legal professional privilege 'Nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege. '192B Immunity from liability '(1)_ An inspector, or other person engaged in the administration of this Act, incurs no civil liability for an act or omission done or omitted to be done in good faith and in the execution or purported execution of powers and functions under this Act. Page 297 CAD NP WNK 11 1317 19 21252931 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 386] (2) A civil liability that would, but for subsection (1), attach to a person, attaches instead to the State. '193 Confidentiality of information xe) (2) 3) Page 298 This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act. The person must not do any of the following— (a) disclose to anyone else— (i) the information; or (ii) the contents of or information contained in the document; (b) give access to the document to anyone else; (c) use the information or document for any purpose. Maximum penalty—100 penalty units. Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document— (a) about a person, with the person's consent; or (b) _ that is necessary for the exercise of a power or function under this Act; or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use— (i) is necessary for administering, or monitoring or enforcing compliance with, this Act; or (ii) is necessary for the administration or enforcement of another Act prescribed under a regulation; or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public safety; or ont ans WwW 11 131620 2225 27 2931 "194 (4) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 387] (iv) is necessary for the recognition of authorisations under a corresponding law; or (v) is required for the exercise of a power or function under a corresponding law; or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or (e) _ that is required or authorised under a law; or (f) to a Minister. A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless— (a) the disclosure is made with the consent of the complainant; or (b) _ the disclosure is required under a law. Maximum penalty—100 penalty units. No contracting out 'A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void. Person not to levy workers 'A person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to electrical safety. Maximum penalty—S0 penalty units.'. Replacement of ss 205-205B Sections 205, 205A and 205B— Page 299 COC NUDN BW HY \o See NRO peiens Rw ile nw 1921 2426 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 388] omit, insert— '205 Recovery of fee 'D (2) 3) (4) A fee payable under this Act and not paid may be recovered by the regulator— (a) in summary proceedings under the Justices Act 1886; or (b) _ by action for a debt. A fee may also be recovered in a proceeding for an offence against this Act. Also, an order made under subsection (2) is enforceable under the Justices Act 1886 as an order for payment of money made by a magistrate under that Act. If an order is made under subsection (2)— (a) the order may be filed in the registry of a Magistrates Court under the Magistrates Courts Act 1921; and (b) on being filed, is taken to be an order made by a Magistrates Court and may be enforced accordingly. '205A Disciplinary action and offences 'The taking of disciplinary action against the holder of an electrical licence does not prevent— (a) prosecution of the holder for an offence arising from the facts or circumstances on which the taking of disciplinary action is based; or (b) a court from imposing a penalty for an offence mentioned in paragraph (a) after the court takes into account the disciplinary action taken.'. 388 Omission of s 207 (Delegation by chief executive) Page 300 Section 207— omit. OND NN FW NY 11 14 16 19 212427 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 389] 389 Insertion of new pt 20 Before any schedule— insert— 'Part 20 Transitional provisions for Work Health and Safety Act '247A Definitions for pt 20 'In this part— amended includes— (a) repealed; and (b) replaced. Note— See also the Acts Interpretation Act 1954, section 36, definition amend. amendment Act means the Work Health and Safety Act 2011. '248 Proceedings for offence generally '(1)_ This section applies if— (a) an offence is committed by a person against a provision of this Act before the provision is amended by the amendment Act; and (b) _ the investigation or proceedings for the offence have not been conducted, taken or completed before the amending happens. '(2) The investigation or proceedings may be conducted, taken or continued as if this Act had not been amended by the amendment Act. '(3) However, sections 186 and 187 as applied under subsection (2) apply to offence proceedings started after the amending of the offence provision as if a reference to the chief executive were a reference to the regulator. Page 301 DHnn FF WN on 111316 1821242729 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 389] '249 Enforceable undertaking preserved 'D (2) 3) (4) (5) (6) D) (8) (9) Page 302 Subsection (2) applies to an electrical safety undertaking— (a) made under part 3 before its amendment by the amending Act (the amendment); and (b) in force immediately before the amendment. Part 3 continues to apply in relation to the electrical safety undertaking as if the amendment had not happened. However, for subsection (2), sections 51, 53 and 54, as they existed before the amendment, apply as if a reference to the chief executive were a reference to the regulator. Also, the undertaking continues in force, in relation to an act or omission of the identified person happening after the amendment, as if it were an undertaking accepted by the regulator under section 49(1) to the extent to which the future behaviour assurance is material to compliance with this Act after the amendment. Subsection (4) does not apply to an act or omission that constitutes a category 1 offence. Subsection (7) and (8) apply if, immediately before the amendment, the chief executive— (a) _ has received an undertaking under section 49A; but (b) has not made a decision whether to accept the undertaking under section 50. The regulator must decide whether or not to accept the undertaking. If the regulator accepts the undertaking, subsections (2) to (5) and (9) and (11) apply to the undertaking. For subsection (4), a reference— (a) in the undertaking to the alleged contravention; or (b) in the future behaviour assurance to a contravention of this Act as it existed before the amendment; Com ND NWN FW NY — So Sell alll verti andl endilae NNnBWNR RR on Ne ow N e NN WN NWN oN Nw NO Y wv \o ow Ww re oO "(10) 'd)) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 389] is taken to include a reference to a contravention of this Act that corresponds to those contraventions. Note— Paragraph (a) is relevant to the continued operation of section 51 as it existed before the amendment. Paragraph (b) is relevant if future behaviour is expressed in terms of contraventions of particular sections. Despite subsections (1) to (9), the regulator may accept an electrical safety undertaking under part 3 as amended for a contravention of this Act that happened before the amendment. In this section— future behaviour assurance is the assurance about future behaviour from the identified person included in the electrical safety undertaking. identified person means the identified person for the undertaking. '250 Appointment of inspector 'D (2) 3) This section applies to a person who, immediately before the amendment of part 10, division 1 by the amending Act, was an inspector appointed under the division. The person is taken to be appointed by the regulator as an inspector under section 123. The inspectors compliance powers continue to be subject to a condition or limit imposed under section 123 before the amendment. '251 Improvement notice preserved 'D This section applies to an improvement notice— (a) given by an inspector under section 153 (old section 153) as it existed before the amendment of the section by the amendment Act (the amendment) for a contravention or likely contravention of a provision of this Act (the notified contravention); and Page 303 OMAN ANSP W NY 11 1316 1922 2427 2931 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 389] (2) 3) (b) in force immediately before the amendment. The notice continues to be enforceable against the person to whom it was given for an offence against old section 153(5) that happened before the amendment as if the amendment had not happened. Also, the improvement notice continues in force and may be enforced after the amendment as if it were an improvement notice given to the person under section 146 for a contravention or likely contravention of a provision of this Act that is, or corresponds to, the provision to which the notified contravention relates. '252 Warrants and actions by inspector preserved 'D (2) '3) (4) Page 304 A warrant issued under part 11 before its amendment by the amending Act continues to have effect for the purposes of this Act. A power exercised by an inspector before the amendment of this Act by the amending Act— (a) continues to have lawful effect for the purposes of this Act; and (b) if the context permits, is taken to have been exercised under a corresponding provision of this Act as amended by the amendment Act. However, subsection (2) does not apply to an exercise of an inspector's powers to which sections 249 or 251 applies. In this section— corresponding provision means a provision of this Act as amended by the amendment Act that corresponds to a provision under which the power mentioned in subsection (2) was exercised. BeEOMDID WVRWH re oO 1417 19 2124 2729 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 389] '253 Reviews and appeals 'D (2) Part 12, as it existed before being amended by the amendment Act, continues to apply to a decision made before the amendment as if it had not been amended. Another provision of this part that would have applied to a matter if the final decision on a review or appeal under part 12 had been made before the part was amended applies to matter as if the final decision had been made before the part was amended. '254 Replacement of chief executive by regulator 'D (2) "3) (4) "S) This section applies to an amendment of this Act carried out by the Work Health and Safety Act 2011, schedule 4 replacing in each amended provision a reference to the chief executive with a reference to the regulator. A decision made or action taken by the chief executive made or taken before the amendment continues to have effect after the amendment. For subsection (2)— (a) if the context permits; and (b) to give effect to the establishment of the office of regulator; subsections (4) and (5) apply for the operation of the amended provision. A reference to a decision or action made or taken under the provision by the regulator includes a reference to a decision or action made or taken by the chief executive before the amendment (the original chief executive decision or action). If— (a) any further decision or action must or may be taken in relation to the original chief executive decision or action; and (b) that decision or action would have been taken by the chief executive if the provision had not been amended; Page 305 OANDN PWN 1214 1619 21 23 2527 3033 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 390] (6) D) the decision or action must or may be taken by the regulator. Sections 179, 180, 181 and 184, as they existed before being amended, continue to apply to the appointment, signature and certificate of the chief executive to which they applied before the amendment. Without limiting subsection (6), the regulator may issue a certificate under section 181 or 184 as amended, even though the matter certified arose before they were amended.'. 390 Amendment of sch 2 (Dictionary) d) (2) Page 306 Schedule 2, definitions bodily harm, electrical safety obligation, electrical safety protection notice, employer, executive officer, facsimile warrant, grievous bodily harm, improvement notice, obligation offence provision, official entity, original chief executive decision, recall order, regulator, responsible person, self-employed _ person, temporary inspector, Training and Employment Act, unsafe equipment notice, warrant form, wilfully, workplace— omit. Schedule 2— insert— 'amended, for part 20, see section 247A. amendment Act, for part 20, see section 247A. category 1 offence see section 40B. category 2 offence see section 40C. category 3 offence see section 40D. code of practice means a code of practice in force under section 44. compliance powers means the functions and powers conferred on an inspector under this Act. corresponding law, other than for part 2A, means— CAD NBPWN 11131517 19212325 27 29 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 390] (a) a law of another State corresponding, or substantially corresponding, to this Act; or (b) a law of another State that is declared under a regulation to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act. corresponding regulator means a person who, in relation to the administration of a corresponding law, has functions similar to the regulator in relation to the administration of this Act. design, in relation to electrical equipment or an electrical installation, includes— (a) design of part of the equipment or installation; and (b) redesign or modify a design. electrical safety duty see section 40A. electrical safety protection notice see section 147. electrical safety undertaking see section 49. engages in conduct means doing an act or omitting to do an act. improvement notice see section 146. infringement notice means an infringement notice under the State Penalties Enforcement Act 1999. non-disturbance notice see section 149. officer means— (a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or (b) an officer of the State, Commonwealth or another State within the meaning of section 189A; or (c) an officer of a public authority within the meaning of section 190C; other than an elected member of a local government acting in that capacity. Page 307 OMANAD NSW NRE ee a) et ot a oe oo nn FB WN RR on ee \o NW a) NN win NNN loo ae NN on why ow WW WwW Noe Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 390] Page 308 original regulator decision for part 12, see section 167. person conducting a business or undertaking see section 21. public authority means— (a) an authority or body established or incorporated for a public purpose by a law of the State, another State or of the Commonwealth, including a body corporate incorporated under a law of the State, another State or of the Commonwealth in which the State, the other State or the Commonwealth has a controlling interest; or (b) aGOC; (c) local government; or (d) a statutory body under the Statutory Bodies Financial Arrangements Act 1982. reasonably practicable, in relation to a duty to ensure electrical safety, see section 28. recall order see section 40G(2). regulator means— (a) for section 76(3)—-see the section; or (b) for part 15—see section 211; or (c) otherwise—the regulator under the Work Health and Safety Act 2011. responsible person, in relation to a recall order, see section 40G(2)(a). temporary inspector means a temporary inspector appointed under section 126. unsafe equipment notice see section 148. volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). workplace means a workplace under the Work Health and Safety Act 2011, section 8.'. OANDUNASP WN Se cr CO aeilend Wn ine ns re RF Re onan a NW re oO NN WN NWN AK N an YVNvNn oan Ww a) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 391] Division 3 Amendment of Electrical Safety and a) Other Legislation Amendment Act Act amended This division amends the Electrical Safety and Other Legislation Amendment Act 2011. Omission of s 4 (Amendment of s 26 (Obligations for electrical safety)) Section 4— omit. Amendment of s 5 (Amendment of s 32 (Obligation of manufacturer of electrical equipment)) (1) Section 5, heading— omit, insert— Amendment of s 32 (Duty of person conducting business or undertaking that manufactures electrical equipment)'. (2) Section 5, 'after subsection (2)'— omit, insert— 'after subsection (3)'. Amendment of s 6 (Amendment of s 33 (Obligation of importer of electrical equipment)) (1) Section 6, heading— omit, insert— Amendment of s 33 (Duty of person conducting business or undertaking that imports electrical equipment)'. Page 309 NWN \o worn 12 14 16 1821 23 25 Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 395] (2) Section 6, 'after subsection (2)'— omit, insert— 'after subsection (3)'. Amendment of s 7 (Insertion of new s 40AA) Section 7, inserted section 40AA— omit, insert— '40AA Duty of person conducting business or undertaking that conducts a recognised external certification scheme '(1)_ This section applies to a person who conducts a business or undertaking— (2) (a) (b) that conducts a recognised external certification scheme; and that certifies in-scope electrical equipment under the scheme. The person must ensure that the in-scope electrical equipment to which the certification relates is electrically safe.'. Amendment of s 8 (Insertion of new pt 2A) (1) Section 8, inserted section 48A, definition responsible supplier— Page 310 omit, insert— 'responsible supplier, of in-scope electrical equipment, means— (a) (b) a person who conducts a business or undertaking that manufactures the electrical equipment in, or imports the electrical equipment into, Australia; or if New Zealand is a participating jurisdiction, a person who conducts a business or undertaking that manufactures the electrical equipment in, or imports the electrical equipment into, New Zealand.'. CNN Nn 12 14 16 19 22 242729 (2) (3) (4) (5) (6) 7) (8) (9) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 396] Section 8, inserted section 48D, heading 'Chief executive' — omit, insert— 'Regulator'. Section 8, inserted section 48D(1) and (5), 'chief executive'— omit, insert— 'regulator'. Section 8, inserted section 48H, heading 'Chief executive' — omit, insert— 'Regulator'. Section 8, inserted section 48H(1) and (2), 'chief executive'— omit, insert— 'regulator'. Section 8, inserted section 481(2), 'chief executive' — omit, insert— 'regulator'. Section 8, inserted section 48J(1), 'chief executive'— omit, insert— 'regulator'. Section 8, inserted section 48K, heading, "Chief executive'— omit, insert— 'Regulator'. Section 8, inserted section 48K(1), (5) and (7), 'chief executive' — omit, insert— 'regulator'. Page 311 oOo mMmrnNnt nun fF WN | On DO FP CO mMmN DUN FSF wWN YK OC NN WN NY WN As Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 397] Amendment of s 10 (Insertion of new pt 14, div 1A) (1) Section 10, heading, 'pt 14'— omit, insert— 'pt 144'. (2) Section 10, inserted section 204B(3), 'chief executive' — omit, insert— 'regulator'. Amendment of s 13 (Amendment of sch 2 (Dictionary)) Section 13, inserted definition corresponding law, before 'see' — insert— ', for part 2A'. Amendment of s 15 (Replacement of pt 6 and insertion of new pt 6A) Section 15, inserted section 126, definition particular electrical equipment, ', testing, maintenance, repair, alteration, removal, or replacement'— omit. Amendment of s 19 (Amendment of sch 9 (Dictionary)) Section 19(1), after 'nonprescribed electrical equipment' — insert— 'particular electrical equipment' . Commencement provisions (1) Subsections (2) to (4) apply if the amendments of the Electrical Safety Act 2002 carried out by the Electrical Safety and Other Legislation Amendment Act 2011 (the ESOLAA Page 312 NYNaAaWU BR wWNeE 1114 162022 25 (2) (3) (4) (5) (6) Work Health and Safety Bill 2011 Part 18 Amendment of other legislation relating to safety [s 402] amendments) mentioned in the other sections of this division commence before the other sections of this division commence. Sections 392 to 394 and 397(1) are repealed. References in sections 395, 396, 397(2), 398 and 399 to particular inserted provisions are taken to be references to those provisions as commenced in the Electrical Safety Act 2002 or the Electrical Safety Regulation 2002. Section 400 takes effect as an amendment omitting the definition particular electrical equipment from the Electrical Safety Regulation 2002, schedule 9. This section is repealed if the amendments carried out by the other sections of this division commence before the ESOLAA amendments. If subsection (5) does not apply, this section expires immediately after it commences. Division 4 Amendment of Penalties and Sentences Act 1992 402 Act amended This division amends the Penalties and Sentences Act 1992. 403 Amendment of s 5 (Meaning of penalty unit) '(D) Section 5(1)— omit, insert— The value of a penalty unit is— (a) for the State Penalties Enforcement Act 1999 or an infringement notice under that Act, other than an infringement notice for an offence against a law mentioned in paragraph (b) or (c)—$100; or Page 313 CIDNW BR WNeE \o 11 1316 18 20 2224 2628 Work Health and Safety Bill 2011 Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 [s 404] (b) for a local law, or an infringement notice under the State Penalties Enforcement Act 1999 for an offence against a local law—the amount, not more than $100, prescribed under a regulation; or (c) for the Work Health and Safety Act 2011, the Electrical Safety Act 2002 or an infringement notice under the State Penalties Enforcement Act 1999 for an offence against those Acts—$100; or (d) in any other case, for this or another Act—$100.'. Division 5 General 404 Amendments in sch 4 (Minor and consequential amendments) Schedule 4 amends the legislation mentioned in it. Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 405 Act amended This part amends the Workers' Compensation and Rehabilitation Act 2003. 406 Amendment of s 108 (Compensation entitlement) (1) Section 108(3)— omit. (2) Section 108— insert— Page 314 0 OAINDN BPWNe 12 1519 21 23 Work Health and Safety Bill 2011 Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 [s 407] 'Note— See also division 5 in relation to the effect of compensation on a worker's leave entitlements.' . 407 Insertion of new ch 3, pt 2, div 5 Chapter 3, part 2— insert— 'Division 5 Compensation and leave entitlements '119A Compensation entitlement does not restrict taking or accrual of leave '(1) This section applies to a worker who is entitled to compensation, including compensation payable as weekly payments. '(2) The worker is entitled to take or accrue annual leave, sick leave and long service leave under an Industrial Act or industrial instrument during the period to which the compensation relates. Note— In relation to entitlements under the Fair Work Act 2009 (Cwlth), this section removes the restriction under section 130(1) of that Act.'. 408 Insertion of new ch 14, pt 1A Chapter 14— insert— Page 315 Wh orn NWN 12 1517 20 22 Work Health and Safety Bill 2011 Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 [s 408] 'Part 1A Information provisions for building and construction industry '576A Definitions for pt 1A 'In this part— building and construction industry see the Building and Construction Industry (Portable Long Service Leave) Act 1991, section 3AA. construction project means a project involving construction work, if the total of all costs relating directly or indirectly to the construction work is at least $80 000. Examples of costs relating to construction work— costs of labour, materials, plant, equipment, design, project management, consultancy, prefabricated goods, commissioning, installation construction work means work in the building and construction industry. principal contractor, for a construction project, see section 576B. relevant contractor, for a construction project, means a person who has made a contract with someone else for the performance of construction work, or the provision of a service in the building and construction industry, for the construction project. *576B Who is the principal contractor for a construction project 'D (2) Page 316 For this part, a person who commissions a construction project is the principal contractor for the construction project. However, if the person mentioned in subsection (1) engages another person as the principal contractor for the construction ww CAD NN FS 11 1417 19 212326 2831 '3) Work Health and Safety Bill 2011 Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 [s 408] project and authorises the person engaged to have the management and control of the construction project, the person engaged is the principal contractor for the construction project. If 2 or more persons are the principal contractor for the construction project under subsection (1) or (2), those persons must perform the functions, or exercise the powers, of the principal contractor by acting jointly. '576C Principal contractor may require relevant contractor to give document confirming insurance status xe) (2) 3) This section applies in relation to a relevant contractor for a construction project who is an employer. The principal contractor for the construction project may, by written notice, ask the relevant contractor to give the principal contractor a copy of the following document (the required document)— (a) if the relevant contractor is a self-insurer—the relevant contractor's licence to be a self-insurer; (b) otherwise— (i) a certificate of currency for the relevant contractor's policy of insurance required under section 48; or (ii) evidence of an exemption under section 49 and a certificate of currency for the relevant contractor's policy of insurance for the relevant contractor's workers under another law. The relevant contractor must, unless the relevant contractor has a reasonable excuse, give the principal contractor the required document within 10 business days after being given the notice under subsection (2). Maximum penalty—25 penalty units. Page 317 CADN PWN 12 1416 18 212426 2830 Work Health and Safety Bill 2011 Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 [s 408] (4) In this section— certificate of currency, for a policy of insurance, means a certificate issued by the insurer stating at least each of the following— (a) the name of the policy holder; (b) _ the policy holder's ABN or ACN; (c) _ the policy number; (d) the name of the insurer; (e) the amount and type of insurance; (f) the period of insurance for which the certificate is issued. *576D Injury data for construction projects 'D (2) 3) Page 318 WorkCover may— (a) compile injury data for a construction project, to the extent the data relates to relevant contractors for the construction project who are not self-insurers; and (b) give the injury data to the principal contractor for the construction project. The Authority may, on the request of the principal contractor for the construction project, give the principal contractor injury data for the construction project, to the extent the data relates to relevant contractors who are self-insurers. In this section— injury data, for a construction project, means the following information about each relevant contractor for the construction project— (a) the relevant contractor's name; (b) the number and type of injuries sustained by workers on the project for which applications for compensation have been made under section 132; (c) _ the date the injuries were sustained; Pre OO AN HD MN PWN re oO 13 1518 2022 2529 Work Health and Safety Bill 2011 Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 [s 409] (d) the address of the site at which the injuries were sustained. '576E Restriction on disclosure by principal contractor of information obtained under this part '(1)_ This section applies to a person who is or has been the principal contractor, or a director or employee of the principal contractor, for a construction project. '(2) The person must not disclose any information received under this part if it identifies, directly or indirectly, any person to whom it relates. Maximum penalty—100 penalty units.'. 409 Insertion of new s 584A Chapter 14, part 5— insert— "584A Reviews of workers' compensation scheme '(1) The Minister must ensure a review of the operation of the workers' compensation scheme is completed at least once in every 5 year period. '(2) The Minister must prepare a report about the outcome of the review and, as soon as practicable after the review is completed, table the report in the Legislative Assembly. '(3) The first review under this section must be completed no later than 30 June 2013.'. 410 Amendment of sch 6 (Dictionary) (1) Schedule 6— insert— 'building and construction industry, for chapter 14, part 1A, see section 576A. Page 319 Noe ee ie ADM BW 1315 172023 2528 Work Health and Safety Bill 2011 Part 19 Amendment of Workers' Compensation and Rehabilitation Act 2003 [s 410] (2) construction project, for chapter 14, part 1A, see section 576A. construction work, for chapter 14, part 1A, see section 576A. principal contractor, for a construction project for chapter 14, part 1A, see section 576B. relevant contractor, for a construction project for chapter 14, part 1A, see section 576A.'. Schedule 6, definition /ndustrial Act, ', for chapter 3, part 1A/7— omit. Page 320 Com ND NHB WwW NY — So Work Health and Safety Bill 2011 Schedule 1 Schedule 1 Application of Act section 12 Part 1 Dangerous goods and high risk plant 1 Application to storage and handling of dangerous goods (1) This Act applies to the storage and handling of dangerous goods even if the dangerous goods are not at a workplace or for use in carrying out work. (2) (3) (4) For subsection (1)— (a) (b) (c) a reference in this Act to carrying out work includes a reference to the storage or handling of dangerous goods; and a reference in this Act to a workplace includes a reference to the premises at or in which the dangerous goods are stored or handled; and a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety. This Act applies to the operation or use of high risk plant, affecting public safety, even if the plant is not situated, operated or used at a workplace or for use in carrying out work. For subsection (3)— (a) (b) a reference in this Act to carrying out work includes a reference to the operation and use of high risk plant affecting public safety; and a reference in this Act to a workplace includes a reference to any high risk plant affecting public safety and the premises at or in which the plant is situated or used; and Page 321 aN Onn nN 1114172022 252830 Work Health and Safety Bill 2011 Schedule 1 (c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety. (5) The operation of this section is subject to any exclusions or modifications prescribed under a regulation. (6) Page 322 In this section— ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail approved by the Australian Transport Council, as in force from time to time. airconditioning unit means a unit of plant that provides airconditioning and that either— (a) (b) incorporates a cooling tower; or consists of 1 or more compressors and the power rating required for operation of the airconditioning unit is SOkW or more. amusement device means a device— (a) (b) used for commercial purposes; and used or designed to be used for amusement, games, recreation, sightseeing or entertainment, and on which persons may be carried, raised, lowered or supported by any part of the device (including, for example, any car, carriage, platform, cage, boat, plank, chair, seat or thing) while the part of the device is in motion. asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock-forming minerals, including the following— (a) (b) (c) (d) (e) (f) actinolite asbestos; grunerite (or amosite) (brown) asbestos; anthophyllite asbestos; chrysotile (white); crocidolite (blue); tremolite asbestos; OAN DD NF WNe ee re oO e N PRR nw Rr oe ao NNNYYNYEY WNR Oo Co NNN Duns OW wW WwW NY YN NF OO ON Work Health and Safety Bill 2011 Schedule 1 (g) a mixture containing 1 or more of the minerals mentioned in paragraphs (a) to (f). Note— Paragraphs (a), (b), (c) and (f) mention mineral silicates that use the same mineral term for both the asbestiform and nonasbestiform varieties. The word 'asbestos' has been included when listing these minerals to emphasise that only the asbestiform habit of these minerals is regulated as asbestos. cooling tower means a device for lowering the temperature of water by evaporative cooling in which atmospheric air passes through sprayed water exchanging heat, and includes a device incorporating a refrigerant or water heat exchanger. dangerous goods means— (a) asbestos; or (b) anything defined under the ADG Code as— (i) dangerous goods; or (ii) goods too dangerous to be transported. escalator means a power driven inclined continuous stairway used for raising or lowering passengers, and includes a moving walkway. high risk plant means the following— (a) airconditioning unit; (b) amusement device; (c) cooling tower; (d) escalator; (e) lift; (f) LP gas cylinder. lift means any machinery— (a) having a platform or cage the direction or movement of which is restricted by a guide or guides; and (b) _ used or designed for use for raising or lowering persons, goods or materials (and includes any and all machinery, supports, and enclosures) and all equipment of them Page 323 DANN W NK a a ao} NRO ll al YAM fF WW LO lll eel CoOew NNN NN NN WH CAIADNKR WON why ow Ww WwW WwW WN Work Health and Safety Bill 2011 Schedule 1 (whether or not detachable) used or designed for use for operating a lift. LP gas cylinder means a cylinder with a water capacity of more than 0.1kg that contains liquefied petroleum gas under pressure. Part 2 Relationship with other Acts Division 1 Mining safety and related matters 2 Relationship with mining Acts (1) Subject to subsections (2) and (3), this Act does not apply Page 324 to— (a) acoal mine to which the Coal Mining Safety and Health Act 1999 applies; or (b) a mine to which the Mining and Quarrying Safety and Health Act 1999 applies; or (c) operating plant, within the meaning of the Petroleum and Gas (Production and Safety) Act 2004, on land the subject of — (@) a 1923 Act petroleum tenure under the Petroleum Act 1923; or (ii) a petroleum authority under the Petroleum and Gas (Production and Safety) Act 2004; or (ii) a GHG authority under the Greenhouse Gas Storage Act 2009; or (d) a facility or plant used for geothermal exploration, within the meaning of the Geothermal Exploration Act 2004, section 132A(1), if the facility or plant is used for drilling or drilling related purposes. ABW NR 12 14 1619 21 23 2527 (2) (3) (4) Work Health and Safety Bill 2011 Schedule 1 A regulation under this Act applying in relation to a hazardous chemical applies in relation to the hazardous chemical even though it is at a mine, plant or facility mentioned in subsection (1). A regulation under this Act applying in relation to a major hazard facility applies in relation to the major hazard facility even though it is, or is at, a mine, plant or facility mentioned in subsection (1). In this section— hazardous chemical means a hazardous chemical under a regulation. major hazard facility means a major hazard facility under a regulation. 3 Relationship with other Acts relating to design or manufacture of operating plant d) (2) (3) This section applies if— (a) this Act, in the absence of this section, would have application to a matter, relating to the design or construction of proposed operating plant, that impacts on the integrity or safe use of the plant; and (b) arelevant Act also has application to the matter. This Act does not have application to the matter to the extent that the relevant Act has application to the matter. In this section— operating plant, for application of a relevant Act to a matter, means— (a) for the Petroleum and Gas (Production and Safety) Act 2004—operating plant within the meaning of that Act; or (b) for the Geothermal Exploration Act 2004—a facility or plant used for geothermal exploration, within the meaning of section 132A(1) of that Act. Page 325 CADN PWN \o 11 13 15 1820 23 26 2831 Work Health and Safety Bill 2011 Schedule 1 relevant Act means— (a) the Geothermal Exploration Act 2004; or (b) the Petroleum and Gas (Production and Safety) Act 2004. Division 2 Electrical safety 4 Relationship with Electrical Safety Act 2002 (1) This section applies if— (a) this Act, in the absence of this section, would have application in particular circumstances; and (b) _ the Electrical Safety Act 2002 also has application in the circumstances. (2) This Act does not have application in the circumstances to the Page 326 extent that the Electrical Safety Act 2002 has application. Example for subsection (2)— Section 19(1) of this Act provides, among other matters, for circumstances in which a duty is imposed on a person who conducts a business or undertaking to ensure, so far as reasonably practicable, the health and safety of workers mentioned in the section while the workers are at work in the business or undertaking. The Electrical Safety Act 2002, section 30(1), provides for circumstances (the electrical safety circumstances) in which a duty is imposed on that person to ensure the person's business or undertaking is conducted in a way that is electrically safe. Accordingly, the duty under section 19(1) of this Act to the extent it is mentioned above, that apart from this section would apply to the electrical safety circumstances, does not include a duty to ensure the person's business or undertaking is conducted in a way that is electrically safe. wn BW NY on NOW 11 13 16182123 2527 Work Health and Safety Bill 2011 Schedule 1 Division 3 Transport rail safety 5 Relationship with Transport (Rail Safety) Act 2010 (1) This section applies if— (2) (a) this Act, in the absence of this section, would have application in particular circumstances; and (b) the Transport (Rail Safety) Act 2010, part 3, division 2 also has application in the circumstances. This Act does not have application in the circumstances to the extent that the Transport (Rail Safety) Act 2010, part 3, division 2 has application. Note— See the Transport (Rail Safety) Act 2010, part 2 for an explanation of the operation of that Act and this Act in circumstances in which both that Act and this Act apply. Example for subsection (2)— Section 19(1) of this Act provides, among other matters, for circumstances in which a duty is imposed on a person who conducts a business or undertaking to ensure, so far as reasonably practicable, the health and safety of workers mentioned in the section while the workers are at work in the business or undertaking. The Transport (Rail Safety) Act 2010, part 3, division 2, also provides for circumstances (the rail safety circumstances) in which a duty is imposed on a rail transport operator to ensure, so far as is reasonably practicable, that rail safety is not affected by the carrying out of the operator's prescribed railway operations. Accordingly, the duty under section 19(1) of this Act to the extent it is mentioned above, that apart from this section, would apply to the rail safety circumstances, does not include a duty to ensure, so far as is reasonably practicable, that rail safety is not affected by the carrying out of the operator's prescribed railway operations. Page 327 OD AND NH W WV 11 13171922242729 Work Health and Safety Bill 2011 Schedule 1 Division 4 Other legislation 6 Generally (1) Subject to divisions 1 to 3, a person on whom a health and safety duty is imposed must discharge the duty even though another Act may prescribe a lesser duty in the same circumstances. (2) (3) Page 328 This Act does not limit the following Acts— (a) (b) (c) (d) (e) the Explosives Act 1999 the Public Safety Preservation Act 1986 the Radiation Safety Act 1999 the Transport Operations (Marine Safety) Act 1994 the Transport Operations (Road Use Management) Act Subject to subsection (1), to the extent to which an Act mentioned in subsection (2) is inconsistent with this Act, that Act prevails. Co mn ADANFW VY Se cr SO RR Wn RRR Nn Work Health and Safety Bill 2011 Schedule 2 Schedule 2 The regulator and local tripartite consultation arrangements and other local arrangements Part 1 The regulator 1 Appointment of regulator (1) The Governor in Council may appoint a public service officer as the regulator. (2) The regulator is appointed under the Public Service Act 2008 and may hold the office in conjunction with his or her other public service office. (3) The regulator must act independently when making a decision under this Act but otherwise is subject to direction in the person's capacity as a public service officer and an officer of the department. Part 2 Industry consultative arrangements Division 1 Purposes of part 2 Purposes of part The purposes of this part are— (a) to establish the work health and safety board; and (b) to provide for the establishment of industry sector standing committees of the board. Page 329 wn BWN eRe aon a 11 1315 17 2023 Work Health and Safety Bill 2011 Schedule 2 Division 2 The board and its functions 3 Work health and safety board The work health and safety board (the board) is established. 4 Functions of board (1) The primary function of the board is to give advice and make recommendations to the Minister about policies, strategies, allocation of resources, and legislative arrangements, for work health and safety. (2) Page 330 Without limiting subsection (1), the board may discharge its primary function by— (a) (b) (c) (d) (e) (f) (g) (h) (i) co) developing a 5 year strategic plan for improving work health and safety; and examining whether the 5 year strategic plan meets the existing and future needs of industry and_ the community; and advising the Minister about state, national and international work health and safety issues; and considering other issues referred to it by the Minister; and reviewing the appropriateness of provisions of this Act, a regulation, or code of practice; and considering recommendations made to it by an industry sector standing committee; and reviewing the performance of an industry sector standing committee; and recommending to the Minister the establishment of industry sector standing committees; and reviewing the membership of an industry sector standing committee; and establishing working parties on the recommendation of an industry sector standing committee; and eCerADN 12 1417 19 21 23 25 27 29 31 Work Health and Safety Bill 2011 Schedule 2 (k) deciding procedures for the operation of working parties; and (1) appointing members to a working party; and (m) considering the most effective and efficient way of applying funds allocated for work health and safety; and (n) ensuring industry has been adequately consulted on proposed codes of practice; and (0) promoting work health and safety to industry and the community to encourage a healthy and safe culture at workplaces. (3) The regulator must give the board reasonable help to enable it to perform its functions. 5 Annual report (1) As soon as practical, but within 4 months, after the end of each financial year, the board must prepare and give to the Minister a report on the board's operations for the year. (2) The Minister must table a copy of the report in the Legislative Assembly within 14 sitting days after receiving it. Division 3 Membership and conduct of board proceedings 6 Membership of board (1) The board consists of a chairperson, and at least 6 other members, appointed by the Minister. (2) The person the Minister appoints as chairperson must be representative of industry. (3) In appointing a person as a member, the Minister must consider the person's practical experience, and competence, in the management of work health and safety. Page 331 Com ND NHB WwW NY — So ao Ne 1518 20 23 25 27 Work Health and Safety Bill 2011 Schedule 2 (4) The Minister must ensure the number of members representing employers equals the number of members representing workers. (5) The Minister must seek to appoint both men and women members to the board. 7 Times of board meetings (1) The board may hold its meetings when it decides. (2) However, the board must meet at least 4 times a year. (3) The chairperson of the board— (a) may call a meeting of the board at any time; and (b) must call a meeting if asked by at least a third of the other members. (4) Also, the Minister may call a meeting of the board at any time. 8 Conduct of proceedings (1) The chairperson of the board presides at all board meetings at which the chairperson is present. (2) If the chairperson is absent, the member chosen by the members present is to preside. (3) Ata meeting of the board— (a) aquorum is at least 4 members; and (b) a question is decided by a majority of the votes of the members present and voting; and (c) each member present has a vote on each question to be decided and, if the votes are equal, the member presiding (4) The board may its meetings) as (5) The board may in meetings, by has a casting vote. otherwise conduct its proceedings (including it considers appropriate. hold meetings, or permit members to take part telephone, closed-circuit television or another form of communication. Page 332 nA WNe onmnna 12 16 18 20 22 2427 29 (6) 7) Work Health and Safety Bill 2011 Schedule 2 A member who takes part in a board meeting under a permission under subsection (5) is taken to be present at the meeting. A resolution is a valid resolution of the board, even though it is not passed at a board meeting, if— (a) at least half the members give written agreement to the resolution; and (b) notice of the resolution is given under procedures approved by the board. Disclosure of interests d) (2) (3) (4) If a member reasonably believes, or should reasonably believe, that an issue being considered or about to be considered by the board may give the member, or an entity associated with the member, a possible professional or commercial advantage, the member must disclose the possible advantage to the board. The disclosure must be recorded in the board's minutes and, unless the board otherwise directs, the member must not be present when the board considers the issue, or take part in a decision of the board on the issue. If, because of this section, a member is not present at a meeting of the board for the deliberation of the board about an issue, but there would be a quorum if the member were present, the remaining members present are a quorum for the board's deliberation or decision about the issue at the meeting. For this section, an entity is associated with a member if the member is an employee or member of, or an adviser to, the entity. Minutes The board must keep minutes of its proceedings. Page 333 COA ND NH WNe 121416 1820 222426 2831 Work Health and Safety Bill 2011 Schedule 2 Division 4 Provisions about appointed board members 11 Duration of appointment (1) The appointment of a member is for the term, not longer than 3 years, decided by the Minister. (2) The office of a member becomes vacant if— (a) (b) (c) (d) the member resigns by signed notice of resignation given to the Minister; or the member is found guilty of an indictable offence or an offence against this Act; or the member is absent, without the Minister's leave and without reasonable excuse, from 3 consecutive ordinary meetings of the board; or the member's appointment is ended by the Minister under subsection (3). (3) The Minister may, at any time, end the appointment of a member for any reason or none. 12 Leave of absence (1) The Minister may approve a leave of absence for a member. (2) Ifa leave of absence is approved, the Minister may appoint someone else as an acting member during the member's approved leave of absence. 13 Conditions of appointment (1) A member is appointed on a part-time basis. (2) A member is entitled to be paid the remuneration and allowances fixed by the Minister. Page 334 CON HD ns W 1215 17 19 2124 26 Division 5 Work Health and Safety Bill 2011 Schedule 2 Industry sector standing committees 14 Industry sector standing committees (1) The following industry sector standing committees of the board are established— (2) (a) (b) (c) (d) (e) (f) construction sector standing committee; manufacturing sector standing committee; tural sector standing committee; health and community services sector standing committee; retail and wholesale sector standing committee; transport and storage sector standing committee. Also, the Minister may, by gazette notice, establish other industry sector standing committees for industry sectors. 15 Functions of industry sector standing committees (1) The primary function of an industry sector standing committee is to give advice and make recommendations to the work health and safety board about work health and safety in the industry sector for which the committee is established. (2) Without limiting subsection (1), the committee may discharge its primary function by— examining the appropriateness of, and need for, setting work health and safety standards; and considering issues referred to it by the board; and recommending to the board that working parties be established to respond to work health and safety issues; and Examples of responses under paragraph (c)— 1 developing a code of practice Page 335 ont nan ns WwW 1114 1719 21 23 2629 Work Health and Safety Bill 2011 Schedule 2 2 organising a workplace health and safety promotional program (d) recommending to the board who should be a member of a working party; and (e) recommending to the board procedures for the operation of working parties. Division 6 Membership and conduct of industry sector standing committee proceedings 16 Membership of industry sector standing committee d) (2) (3) (4) An industry sector standing committee consists of a chairperson, and at least 6 other members, appointed by the Minister. In appointing a person as a member, the Minister must consider the person's practical experience, and competence, in the management of work health and safety. The Minister must ensure the number of members representing employers equals the number of members representing workers. The Minister must seek to appoint both men and women members to the committee. 17 Times of industry sector standing committee meetings d) (2) (3) Page 336 An industry sector standing committee may hold its meetings when it decides. However, the committee must meet at least 4 times a year. The chairperson of the committee— (a) may call a meeting of the committee at any time; and (b) must call a meeting if asked by at least a third of the other members. Dun BW NR nN 12151821 24 2629 (4) Work Health and Safety Bill 2011 Schedule 2 Also, the Minister or the board may call a meeting of the committee at any time. Conduct of industry sector standing committee proceedings d) (2) (3) (4) (5) (6) 7) The chairperson of an industry sector standing committee presides at all meetings of the committee at which the chairperson is present. If the chairperson is absent, the member chosen by the members present is to preside. At a meeting of the committee— (a) a quorum is at least half the members; and (b) a question is decided by a majority of the votes of the members present and voting; and (c) each member present has a vote on each question to be decided and, if the votes are equal, the member presiding has a casting vote. An industry sector standing committee may otherwise conduct its proceedings (including its meetings) as it considers appropriate. An industry sector standing committee may hold meetings, or permit members to take part in meetings, by telephone, closed-circuit television or another form of communication. A member who takes part in an industry sector standing committee meeting under a permission under subsection (5) is taken to be present at the meeting. A resolution is a valid resolution of an industry sector standing committee, even though it is not passed at an industry sector standing committee meeting, if— (a) at least half the members give written agreement to the resolution; and (b) notice of the resolution is given under procedures approved by the industry sector standing committee. Page 337 Noe om Nn FW 13 151821242730 32 Work Health and Safety Bill 2011 Schedule 2 19 Disclosure of interests d) (2) (3) (4) If a member reasonably believes, or should reasonably believe, that an issue being considered or about to be considered by the industry sector standing committee may give the member, or an entity associated with the member, a possible professional or commercial advantage, the member must disclose the possible advantage to the committee. The disclosure must be recorded in the industry sector standing committee's minutes and, unless the committee otherwise directs, the member must not be present when the committee considers the issue, or take part in a decision of the committee on the issue. If, because of this section, a member is not present at a meeting of the industry sector standing committee for the deliberation of the committee about an issue, but there would be a quorum if the member were present, the remaining members present are a quorum for the committee's deliberation or decision about the issue at the meeting. For this section, an entity is associated with a member if the member is an employee or member of, or an adviser to, the entity. 20 Minutes An industry sector standing committee must keep minutes of its proceedings. Division 7 Provisions about industry sector standing committee members 21 Duration of appointment d) (2) Page 338 The appointment of a member is for the term, not longer than 3 years, decided by the Minister. The office of a member becomes vacant if— Om ADNBWN See NRO aoe etll sali ollie tient COIDMKHHW NNY ro) 24 26 29 (3) Work Health and Safety Bill 2011 Schedule 2 (a) the member resigns by signed notice of resignation given to the Minister; or (b) the member is found guilty of an indictable offence or an offence against this Act; or (c) the member is absent, without the Minister's leave and without reasonable excuse, from 3 consecutive ordinary meetings of the committee; or (d) the member's appointment is ended by the Minister under subsection (3). The Minister may, at any time, end the appointment of a member for any reason or none. Leave of absence d) (2) (3) The Minister may approve a leave of absence for a member. If a leave of absence is approved, the Minister may appoint someone else as an acting member during the member's approved leave of absence. The Minister must have regard to the committee's membership requirements under section 57 when appointing someone as an acting member. Conditions of appointment d) (2) A member is appointed on a part-time basis. A member is entitled to be paid the remuneration and allowances fixed by the Minister. Page 339 Ree OD NDN PW NK re oO Re Re Ww N RRR Nn RRR own 21 23 Work Health and Safety Bill 2011 Schedule 2 Part 3 Self-insurance report 24 Application for report relating to workers' compensation self-insurance d) (2) (3) (4) Page 340 The Workers' Compensation Regulatory Authority must apply to the regulator for a report about the occupational health and safety performance of an employer or a group employer for the purpose of an application or renewal for self-insurance under the Workers' Compensation and Rehabilitation Act 2003. The employer or group employer must pay the fee calculated under a regulation for the preparation of the report. The regulator must— (a) prepare the report having regard to the occupational health and safety performance standards published by the regulator; and (b) give the report to the Authority within 3 months after receiving the application for the report. In this section— employer see the Workers' Compensation and Rehabilitation Act 2003, section 30. group employer see the Workers' Compensation and Rehabilitation Act 2003, schedule 6. OMANDNAS Wl 11 1417 20 22 Work Health and Safety Bill 2011 Schedule 2A Reviewable decisions Item Provision under which reviewable decision is made 1 Section 54(2) decision following failure to commence negotiations 2 Section 72(6) decision in relation to training health and safety representative Eligible person in relation to reviewable decision d) (2) (3) d) (2) A worker whose interests are affected by the decision or his or her representative appointed for the purpose of section 52(1)(b). A person conducting a business or undertaking whose interests are affected by the decision. A health and safety representative who represents a worker whose interests are affected by the decision. A person conducting a business or undertaking whose interests are affected by the decision. A health and safety representative whose interests are affected by the decision. Schedule 2A section 223 External review body commission commission Page 341 Work Health and Safety Bill 2011 Schedule 2A Item Provision under Eligible person in relation to External which reviewable reviewable decision review body decision is made 3 Section 76(6) (1) A worker whose interests commission are affected by the decision relating to decision. health and safety . committee (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. Page 342 Work Health and Safety Bill 2011 Schedule 2A Item Provision under Eligible person in relation to External which reviewable reviewable decision review body decision is made 4 Section 102 (1) The person to whom the QCAT provisional improvement decision on review notice was issued. of provisional improvement notice (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 The person entitled to the QCAT thing. forfeiture of thing 6 Section 180 The person entitled to the QCAT thing. return of seized things Page 343 Work Health and Safety Bill 2011 Schedule 2A Item Provision under which reviewable decision is made 7 Section 191 issue of improvement notice 8 Section 194 extension of time for compliance with improvement notice Page 344 Eligible person in relation to reviewable decision (1) The person to whom the notice was issued. (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. (1) The person to whom the notice was issued. (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. External review body QCAT QCAT Item Provision under which reviewable decision is made 9 Section 195 issue of prohibition notice Eligible person in relation to reviewable decision d) (2) (3) (4) (5) (6) Work Health and Safety Bill 2011 Schedule 2A External review body The person to whom the notice was issued. QCAT The person with management or control of the workplace, plant or substance. A person conducting a business or undertaking whose interests are affected by the decision. A worker whose interests are affected by the decision. A health and safety representative who represents a worker whose interests are affected by the decision. A health and safety representative who gave a direction under section 85 to cease work, that is relevant to the prohibition notice. Page 345 Work Health and Safety Bill 2011 Schedule 2A Item Provision under Eligible person in relation to External which reviewable reviewable decision review body decision is made 10 ~~ Section 198 (1) The person to whom the QCAT notice was issued. issue of a non-disturbance (2) The person with notice 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. Page 346 Item Provision under which reviewable decision is made 11 ~— Section 201 issue of subsequent notice Work Health and Safety Bill 2011 Schedule 2A Eligible person in relation to External reviewable decision review body (1) The person to whom the QCAT 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. Page 347 Work Health and Safety Bill 2011 Schedule 2A Item Provision under Eligible person in relation to External which reviewable reviewable decision review body decision is made 12 ~~ Section 207 (1) The person to whom the QCAT notice was issued. decision of regulator . to vary or cancel (2) The person with notice management or control of the workplace. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision. (6) In the case of a prohibition notice, a health and safety representative whose direction under section 85 to cease work gave rise to the notice. Page 348 Item Provision under which reviewable decision is made A provision prescribed under a regulation Work Health and Safety Bill 2011 Eligible person in relation to reviewable decision A person prescribed under a regulation as eligible to apply for review of the reviewable decision. Schedule 2A External review body QCAT or the commission as prescribed under a regulation Page 349 Work Health and Safety Bill 2011 Schedule 3 Schedule 3 Regulation-making powers section 276(2) 1 Duties (1) Matters relating to the way in which duties imposed by this Act are to be performed. (2) Matters relating to the regulation or prohibition of stated activities or a stated class of activities— (a) at workplaces or a stated class of workplaces; or (b) by a stated class of persons on whom duties or obligations are imposed by this Act; to eliminate or minimise risks to health and safety. (3) Imposing duties on persons in relation to any matter provided for under a regulation. 2 Incidents Matters relating to incidents at workplaces including— (a) regulating or requiring the taking of any action to avoid an incident at a workplace or in the course of conducting a business or undertaking; and (b) regulating, requiring or prohibiting the taking of any action in the event of an incident at a workplace or in the conduct of a business or undertaking. 3 Plant, substances or structures Matters relating to plant, substances or structures, including— (a) regulating the storage and handling of plant, substances and structures; and (b) | regulating or requiring— Page 350 aornn nt Ww 11 13 15 172023 25 Work Health and Safety Bill 2011 Schedule 3 (i) the examination, testing, labelling, maintenance or repair of plant and structures; or (ii) the examination, testing, analysis or labelling of any substance. Protection and welfare of workers Matters relating to the protection and welfare of workers including— (a) regulating or requiring the provision and use of protective clothing or equipment, or rescue equipment, in stated circumstances; and (b) regulating or requiring the provision of stated facilities for the welfare of workers at the workplace; and (c) matters relating to health and safety in relation to accommodation provided to workers. Hazards and risks Matters relating to hazards and risks including— (a) (b) (c) the prescribing of standards relating to the use of or exposure to any physical, biological, chemical or psychological hazard; and matters relating to safety cases, safety management plans and safety management systems, however described; and matters relating to measures to control risks. Records and notices (1) The keeping and availability of records of health and safety representatives and deputy health and safety representatives. (2) The keeping of records in relation to incidents. (3) The keeping of records of stated activities, matters or things to be kept by stated persons. Page 351 BW NR Om ANN 12 14 16 182126 29 Work Health and Safety Bill 2011 Schedule 3 (4) The giving of notice of or information about stated activities, matters or things to the regulator, an inspector or other stated person. 7 Authorisations (1) Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of part 4 or a regulation including providing for— (a) applications for the grant, issue, renewal, variation, suspension and cancellation of authorisations, including the minimum age to be eligible for an authorisation; and (b) | the evidence and information to be provided in relation to applications including the provision of statutory declarations; and (c) exemptions; and (d) variations of authorisations by the regulator whether on application or otherwise; and (e) authorisation of persons as trainers and assessors; and (f) examination of applicants for authorisations; and (g) conditions of authorisations; and (h) fees for applications for the grant, issue, renewal and variation of authorisations. (2) The recognition of authorisations under corresponding laws and exceptions to recognition. (3) The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations. 8 Work groups Matters relating to work groups and variation of work groups and agreements or variations of agreements relating to the determination of work groups. Page 352 WNe CANN F \o 11 1317 1922 24 2630 Work Health and Safety Bill 2011 Schedule 3 Health and safety committees and health and safety representatives Matters relating to health and safety committees and health and safety representatives. Issue resolution Matters relating to issue resolution including— (a) the minimum requirements for an agreed procedure for resolving an issue; and (b) _ the requirements for a default issue resolution procedure where there is no agreed procedure. WHS entry permits Matters relating to WHS entry permits, including providing for— (a) _ eligibility for WHS entry permits; and (b) procedures for applications for WHS entry permits and objections to applications for WHS entry permits; and (c) conditions of WHS entry permits; and (d) the form of WHS entry permits; and (e) requirements for training; and (f) records of WHS entry permits. Identity cards Matters relating to identity cards. Forfeiture Matters relating to— (a) costs of forfeiture and disposal of forfeited things; and (b) disposal of seized things and forfeited things. Page 353 BW Ne Po nanan 22 24 26 Work Health and Safety Bill 2011 Schedule 3 14 Review of decisions Matters relating to the review of decisions under a regulation including— (a) prescribing decisions as reviewable decisions for the purposes of part 12 or for the purposes of a regulation; and (b) | prescribing procedures for internal and external review of decisions under a regulation; and (c) conferring jurisdiction on a court, the commission or QCAT to conduct reviews under a regulation. Page 354 Fo ON ANF WHY Schedule 4 Part 1 Work Health and Safety Bill 2011 Schedule 4 Minor and consequential amendments section 404 Particular legislation Electrical Safety Act 2002 1 Replacement of general reference to chief executive (1) In each of the following provisions, omit the words 'chief executive' insert the word 'regulator' — section 40J(1)(b)(iv) (as renumbered) section 57A, heading, (1) and (2) section 57B(1), (2), (3) and (4) section 58, definition electrical licence application section 59 (1), (3) and (4) section 60(1), (3), (4) and (6) section 61(1), (3) and (4) section 62(1) and (2) section 64(1) and (2) section 64A(1) and (2) section 66, definition safety management system, paragraph (e)(ii) section 76(4) section 82(2) section 88(1)(c), (2)(f) and (3) section 91(3) section 94(4) Page 355 Oo ON DW 1113151720 2224 Work Health and Safety Bill 2011 Schedule 4 (2) Page 356 section 109, heading, (1) and (3) section 111, heading section 129(1) and (2) section 130(3) section 131(1) section 134 section 135(1) section 136 section 136A(1), (2) and (4) section 167, definitions decision, original chief executive decision (including the defined term), original decision, review entity section 170(2) and (3) section 179(a) and (b) section 180 section 181(5) section 184 section 201 section 202(1), (3) and (4) section 204 section 206(1), (2) and (3) section 208 section 209(1) (2) and (3) section 210(2)(1)(v) section 223(2) schedule 2, definition approved form Sections 64, 64A and 136A, heading, 'Chief executive'— omit, insert— 'Regulator'. CI DWN KR wWNH YE 111416182022242628 Work Health and Safety Bill 2011 Schedule 4 2 Section 9— omit. Electrical Safety Regulation 2002 1 Schedule 9, definition WHS Act, 'Workplace Health and Safety Act 1995 — omit, insert— 'Work Health and Safety Act 2011'. Environmental Protection Act 1994 1 Schedule 1, section 3(d), 'Workplace Health and Safety Act 1995, section 9'— omit, insert— 'Work Health and Safety Act 2011, section 8'. Environmental Protection (Air) Policy 2008 1 Section 8(6), definition workplace, 'Workplace Health and Safety Act 1995, section 9'— omit, insert— 'Work Health and Safety Act 2011, section 8'. Page 357 ND ws 11 15 17 Work Health and Safety Bill 2011 Schedule 4 Environmental Protection (Noise) Policy 2008 1 Section 8(5), definition workplace, 'Workplace Health and Safety Act 1995, section 9'— omit, insert— 'Work Health and Safety Act 2011, section 8'. Fire and Rescue Service Act 1990 1 Sections 95(2), 137(4) and schedule 5, item 8, 'Workplace Health and Safety Act 1995 — omit, insert— 'Work Health and Safety Act 2011'. 2 Schedule 6, definition flammable and combustible liquids standard— omit, insert— 'flammable and combustible liquids standard means— (a) if a standard is prescribed under a regulation under the Work Health and Safety Act 20] 1—that standard; or (b) otherwise—AS 1940.'. 3 Schedule 6— insert— 'AS 1940 means Australian Standard AS 1940 The Storage and Handling of Flammable and Combustible Liquids made by Standards Australia, as in force from time to time.'. Page 358 an & Wh \o on 12 14 16 19 21 Work Health and Safety Bill 2011 Schedule 4 Industrial Relations Act 1999 Section 36(2)(b)— omit, insert— '(b) the employer's duties under the Work Health and Safety Act 2011). Section 73(2)(aa)(i)(D)— omit. Section 104(1)(0), 'Workplace Health and Safety Act 1995 — omit, insert— 'Work Health and Safety Act 2011'. Mining and Quarrying Safety and Health Act 1999 Section 9, editor's note— omit, insert— 'Editor's note— If a declaration is made, the Work Health and Safety Act 2011 applies to the place because schedule 1, part 2, division 1, section 2(1)(b) of that Act would not apply.'. Section 11(3), definition construction work— omit, insert— 'construction work see the Work Health and Safety Regulation 2011)'. Page 359 lo) AB WN \o 0 11 14 1720 22 Work Health and Safety Bill 2011 Schedule 4 3 Section 130(5), 'Workplace Health and Safety Act 1995— omit, insert— 'Work Health and Safety Act 2011.. Petroleum and Gas (Production and Safety) Act 2004 1 Section 670(3), 'the Dangerous Goods Safety Management Act 2001'— omit, insert— 'a regulation under the Work Health and Safety Act 2011'. 2 Section 675(1)(s), 'Workplace Health and Safety Act 1995, section 3(1)'— omit, insert— 'Work Health and Safety Act 2011, schedule 1. part 2, division 1'. 3 Section 727(3)(c), 'Dangerous Goods Safety Management Act 2001'— omit, insert— 'Work Health and Safety Act 2011'. Page 360 onan 11 13 15 17 Work Health and Safety Bill 2011 Schedule 4 Petroleum and Gas (Production and Safety) Regulation 2004 1 Section 135(2)(c)(iv)(A), 'Dangerous Goods Safety Management Act 20017— omit, insert— 'Work Health and Safety Regulation 2011'. 2 Schedule 2, column 1, incident entries, 'Workplace Health and Safety Act 1995 — omit, insert— 'Work Health and Safety Act 2011'. 3 Schedule 9, part 8, section 5(1)(d), 'Dangerous Goods Safety Management Act 2001'— omit, insert— 'Work Health and Safety Regulation 2011'. 4 Schedule 12, definition Dangerous Goods Act— omit. Petroleum (Submerged Lands) Act 1982 1 Section 14A(3), definition prescribed occupational health and safety laws, paragraph (a)— omit. Page 361 Dn nm PW Ie) \o worn 12 14 16 19 Work Health and Safety Bill 2011 Schedule Right Section 14A(3), definition prescribed occupational health and safety laws, paragraph (e)— omit, insert— '(e) Work Health and Safety Act 2011;'. to Information Act 2009 Schedule 3, section 10(1)(h), example— omit. Statutory Instruments Act 1992 Susta Page 362 Section 46(1)(k), 'Workplace Health and Safety Act 1995, section 41'— omit, insert— 'Work Health and Safety Act 2011, section 274'. inable Planning Act 2009 Section 724(1)(z)— omit. 10 12 15 Work Health and Safety Bill 2011 Schedule 4 Tourism Services (Code of Conduct for Inbound Tour Operators) Regulation 2003 1 Schedule, section 13(b), 'obligations under the Workplace Health and Safety Act 1995 — omit, insert— 'duties and obligations under the Work Health and Safety Act 2011'. Transport Infrastructure Act 1994 1 Pavia 107(3), definition amusement railway, paragraph a)(ii)— omit, insert— '@i) is an amusement device required to be registered under a regulation under the Work Health and Safety Act 2011; and'. 2 Section 283ZX(2), from 'chief to '2001' — omit, insert— 'regulator under the Work Health and Safety Act 2011'. 3 Section 283ZX(7), definition major hazard facility— omit, insert— 'major hazard facility means a major hazard facility under a regulation under the Work Health and Safety Act 2011. . Page 363 N AD NN BPW 11 131619 21 Work Health and Safety Bill 2011 Schedule Transport (Rail Safety) Act 2010 Page 364 Sections 4(2), first mention, 5(2)(e)(ii), 9, note and 10(2), note 2, part 2, hdg, sections 13, 14, 15(hdg), 16, 20, 21, note, 22(3), note, 26(a), note, 27(b), note, 29(2), note, 32(1), note, 41, note 2, 44(3), note, 55(4), note, 66(b), 198, 206 and 268, 'Workplace Health and Safety Act'— omit, insert— "Work Health and Safety Act'. Sections 9, note, 10(2), note 2, 14(2), note 2, 15(1), 16, note, 22(3), note, 26(a), note, 27(b), note, 32(1), note, 41, note 2, 44(3), note and 55(4), note, 'obligations'— omit, insert— 'duties'. Section 4(2), note— omit, insert— "Note— The Work Health and Safety Act and the Electrical Safety Act also imposes duties on other persons whose activites could affect rail safety, including for example, persons who conduct a business or undertaking that designs, manufactures, supplies, installs, constructs or commissions a thing that is to be used as or in connection with rail infrastructure or rolling stock.'. Section 5(2)(e)(ii), note— omit. Section 6(3), 'electrical safety obligation'-— omit, insert— 'electrical safety duty'. oN ANS WY 11 13 15 182022 24 26 Work Health and Safety Bill 2011 Schedule 4 Sections 6(3), example and 14(4)(a), 'an obligation'— omit, insert— 'a duty'. Section 6(3), example, 'an employer to ensure the employer's'— omit, insert— 'a person conducting a business or undertaking to ensure the'. Section 6(3), note 'Workplace Health and Safety Act, section 3A'— omit, insert— 'Work Health and Safety Act, schedule 1, part 2, division 2'. Section 14(1), note, 'section 3C'— omit, insert— 'schedule 1, part 2, division 3'. Section 14(2), note 2, 'section 3'— omit, insert— 'schedule 1, part 2, division 4'. Section 14(2), note 2, 'workplace'— omit. Section 15(2), definition workplace health and safety obligations— omit, insert— 'workplace health and safety duties, of a person, means— (a) the person's health and safety duties under the Work Health and Safety Act, part 2; or Page 365 NA WA oe 11 131619 21 23 25 Work Health and Safety Bill 2011 Schedule Page 366 (b) the person's duty to comply with a direction, notice or order under the Work Health and Safety Act, part 10, divisions 1 to 3.'. Section 16, note, 'section 3(3)'— omit, insert— 'schedule 1, part 2, division 4'. Section 20(5)(b), 'workplace health and safety obligations'— omit, insert— 'health and safety duties'. Section 20(5), note, 'section 3C'— omit, insert— 'schedule 1, part 2, division 3'. Section 21, example, 'workplace health and safety obligation under the Workplace Health and Safety Act, section 28'— omit, insert— 'health and safety duty under the Work Health and Safety Act, section 19'. Section 66(b), 'workplace health and safety representatives'— omit, insert— 'health and safety representatives'. WNe lon \o worn 12 1519 21 23 Work Health and Safety Bill 2011 Schedule 4 18 Schedule 3, definition Workplace Health and Safety Act— omit, insert— 'Work Health and Safety Act means the Work Health and Safety Act 2011... Vocational Education, Training and Employment Act 1 Section 64(11), definitions dangerous event, serious bodily injury and work caused injury— omit. 2 rata 64(11), definition serious misconduct, paragraph d)(ii)— omit, insert— 'Gi) causing an imminent risk of serious injury or illness or a dangerous incident happening; or'. 3 Section 64(11), definitions— insert— 'dangerous incident see the Work Health and Safety Act 2011, section 37. serious injury or illness see the Work Health and Safety Act 2011, section 36.'. 4 Sections 83(4)(c) and 115, 'Workplace Health and Safety Act 1995 — omit, insert— 'Work Health and Safety Act 2011'. Page 367 RW NHN Nn \o on 11 14 16 18 20 22 24 Work Health and Safety Bill 2011 Schedule 4 Workers' Compensation and Rehabilitation Act 2003 1 Sections 71(2), 72(2) and 573(1A) and (3), 'Workplace Health and Safety Act 1995 — omit, insert— 'Work Health and Safety Act 2011'. 2 Schedule 6, definition OHS report, 'Workplace Health and Safety Act 1995, part 14, division 1A'— omit, insert— 'Work Health and Safety Act 2011, schedule 2, part 3'. Part 2 References in other legislation to repealed Acts Division 1 Workplace Health and Safety Act 1995 (repealed) 1 Replacement of general reference In the following provisions of the mentioned legislation, omit 'Workplace Health and Safety Act 1995' and insert 'Work Health and Safety Act 2011' — Page 368 Coal Mining Safety and Health Act 1999, section 133(5), definition workplace Education (Work Experience) Act 1996, section 10(3)(a) Electricity Act 1994, section 135AB(2)(h) Health Quality and Complaints Commission Act 2006, schedule 1, part 2, item 2 an & Wh Co mWOnND 11 13 1619 21 23 Division 2 Work Health and Safety Bill 2011 Schedule 4 Marine Parks (Great Sandy) Zoning Plan 2006, section 32(6), definition electro-acoustic or mechanical apparatus, paragraph (b)(i), examples, second dot point Marine Parks (Moreton May) Zoning Plan 2008, section 32(6), definition electro-acoustic or mechanical apparatus, paragraph (b)(i), examples, second dot point Nature Conservation (Wildlife Management) Regulation 2006, section 74(2) Pest Management Act 2001, schedule 3, definition relevant offence, paragraph (c)(i) Private Employment Agents (Code of Conduct) Regulation 2005, schedule, section 5, examples, ninth dot point Prostitution Regulation 2000, schedule 1, entry for Department in which the Workplace Health and Safety Act 1995 is administered Public Health Act 2005, sections 11(3), definition workplace and 150(2)(a) Public Health Regulation 2005, sections 2B, definition non-workplace area, 2D and 2E Sustainable Planning Regulation 2009, schedule 7, table 1, column 2, items 4 and 7 Dangerous Goods Safety Management Act 2001 (repealed) 1 Replacement of general reference In the following provisions of the mentioned legislation, omit 'Dangerous Goods Safety Management Act 2001' and insert 'Work Health and Safety Act 2011' — Sustainable Planning Regulation 2009, schedule 3, part 1, Table 2, item 5, schedule 5, part 1, Table 2, item 6, schedule 6, Table 3, item 4 and schedule 7, table 2, item Page 369 CON AN WHE 121518 20 22 24 273032 Work Health and Safety Bill 2011 Schedule 4 ° Transport Security (Counter-Terrorism) Act 2008, sections 6(a) and 17(2)(f)(i) Page 370 Work Health and Safety Bill 2011 Schedule 5 Schedule 5 Dictionary section 4 applicant, for part 5, division 3, subdivision 4A, see section 67A. approved code of practice means a code of practice approved under part 14. authorised, for part 4, see section 40. category 1 offence see section 31. category 2 offence see section 32. category 3 offence see section 33. cease work under this division, for part 5, division 6, see section 83. commission means the Queensland Industrial Relations Commission. compliance powers means the functions and powers conferred on an inspector under this Act. condition includes limitation and restriction. construct includes assemble, erect, reconstruct, reassemble and re-erect. corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding law. corresponding WHS law means— (a) a law of another State corresponding, or substantially corresponding, to this Act; or (b) a law of another State that is declared under a regulation to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act. court, for part 13, division 7, see section 255. Page 371 Co mn Dn BW 12 14 16 19 2123 26 28 Work Health and Safety Bill 2011 Schedule 5 Page 372 dangerous incident, for part 3 and section 176, see section 37 demolition includes deconstruction. design, in relation to plant, a substance or a structure includes— (a) design of part of the plant, substance or structure; and (b) redesign or modify a design. disclose, in relation to information, includes divulge or communicate to any person or publish. discriminatory conduct, for part 6, see section 105. document includes record. employee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth. employer organisation means an organisation of employers. engages in conduct means doing an act or omitting to do an act. external review body see section 223(1)(c). Fair Work Act means the Fair Work Act 2009 of the Commonwealth. handling includes transport. health means physical and psychological health. health and safety duty see section 30. health and safety representative, in relation to a worker, means the health and safety representative elected under part 5 for the work group of which the worker is a member. import means to bring into Queensland from outside Australia. improvement notice see section 191. industrial officer authority means an authority issued under the Industrial Relations Act 1999, section 364. CO PON DN FW YN — So RRR WNe — A ella nun — ey eR ow NY Nv WY NF oO NNN mn B&W NW NO N oo Wr ow Work Health and Safety Bill 2011 Schedule 5 industrial registrar means the registrar appointed under the Industrial Relations Act 1999, section 297. infringement notice means an infringement notice under the State Penalties Enforcement Act 1999. inspector means an inspector appointed under part 9. internal reviewer means— (a) the regulator; or (b) a person appointed by the regulator under section 225. medical treatment means treatment by a doctor. non-disturbance notice see section 198. notifiable incident see section 35. offender, for part 13, division 2, see section 234. officer means— (a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or (b) an officer of the State, Commonwealth or another State within the meaning of section 247; or (c) an officer of a public authority within the meaning of section 252; other than an elected member of a local government acting in that capacity. official of a union, for part 7, see section 116. person conducting a business or undertaking see section 5. personal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth. plant includes— (a) any machinery, equipment, appliance, container, implement and tool; and (b) any component of any of those things; and (c) anything fitted or connected to any of those things. Page 373 om rnNnI nN FW Ne RP Re Re Ww Ne CO RRR nuns olan' on Ne ow NN Noe NY NY RO NN nun N XN Vw ow WwW Ww r- SO Work Health and Safety Bill 2011 Schedule 5 Page 374 prohibited reason, for part 6, see section 106. prohibition notice see section 195. public authority means— (a) (b) (c) (d) an authority or body established or incorporated for a public purpose by a law of the State, another State or of the Commonwealth, including a body corporate incorporated under a law of the State, another State or of the Commonwealth in which the State, the other State or the Commonwealth has a controlling interest; or a GOC; or local government; or a statutory body under the Statutory Bodies Financial Arrangements Act 1982. reasonably practicable, in relation to a duty to ensure health and safety, see section 18. regulator see schedule 2, part 1. relevant person conducting a business or undertaking, for part 7, see section 116. relevant union, for part 7, see section 116. relevant worker, for part 7, see section 116. repeal, for— (a) part 16, division 1, see section 279; or (b) _ part 16, division 2, see section 298. repealed Act, for— (a) part 16, division 1, see section 279; or (b) _ part 16, division 2, see section 298. representative, in relation to a worker, means— (a) _ the health and safety representative for the worker; or (b) aunion representing the worker; or (c) any other person the worker authorises to represent him or her. OPANDNHP WN Se cr CO tiled Wn lined ns — a olan' on Yvywnnv VYNNN WY NY Co mnNI DN FW NK CO OO ww er oO Work Health and Safety Bill 2011 Schedule 5 serious injury or illness, for part 3 and section 176, see section 36. State or Territory industrial law has the same meaning as it has in the Fair Work Act. structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes— (a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and (b) any component of a structure; and (c) part of a structure. substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. supply see section 6. union means— (a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (b) an employee organisation under the /ndustrial Relations Act 1999; or (c) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law. volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). WHS civil penalty provision see section 254. WHS entry permit means a WHS entry permit issued under part 7. WHS entry permit holder means a person who holds a WHS entry permit. Page 375 OAN DN FW Ne Se cr CO aeilend Wn Se ns RRR ann Ne ow NNNN BWNR NNN AUDN N oo Wr ow WwW Ww Noe Work Health and Safety Bill 2011 Schedule 5 WHS undertaking means an undertaking given under section 216(1). work group means a work group determined under part 5. worker see section 7. workplace see section 8. © State of Queensland 2011 Page 376 Dnun BW NR