Work Health and Safety Act 2012 (SA)

South Australia Work Health and Safety Act 2012 An Act to provide for the health, safety and welfare of persons at work; and for other purposes.

Contents Part 1—Preliminary Division 1—Introduction 1 Short title Division 2—Object 3 Object Division 3—Interpretation Subdivision 1—Definitions 4 Definitions Subdivision 2—Other important terms 5 Meaning of person conducting a business or undertaking 6 Meaning of supply 7 Meaning of worker 8 Meaning of workplace 9 Examples and notes Division 4—Application of Act 10 Act binds the Crown 11 Extraterritorial application 12 Scope Division 5—SafeWork SA Advisory Committee 12A Establishment of committee 12B Terms and conditions of office 12C Functions 12D Procedures at meetings 12E Conflict of interest 12F Confidentiality 12G Use of staff and facilities Part 2—Health and safety duties Division 1—Introductory Subdivision 1—Principles that apply to duties 13 Principles that apply to duties 14 Duties not transferrable 15 Person may have more than one duty 16 More than one person can have a duty 17 Management of risks Subdivision 2—What is reasonably practicable 18 What is reasonably practicable in ensuring health and safety Division 2—Primary duty of care 19 Primary duty of care Division 3—Further duties of persons conducting businesses or undertakings 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures Division 4—Duty of officers, workers and other persons 27 Duty of officers 28 Duties of workers 29 Duties of other persons at the workplace Division 5—Offences and penalties 30 Health and safety duty 30A Industrial manslaughter 31 Gross negligence or reckless conduct—Category 1 32 Failure to comply with health and safety duty—Category 2 33 Failure to comply with health and safety duty—Category 3 34 Exceptions Part 3—Incident notification 35 What is a notifiable incident 36 What is a serious injury or illness 37 What is a dangerous incident 38 Duty to notify of notifiable incidents 39 Duty to preserve incident sites Part 4—Authorisations 40 Meaning of authorised 41 Requirements for authorisation of workplaces 42 Requirements for authorisation of plant or substance 43 Requirements for authorisation of work 44 Requirements for prescribed qualifications or experience 45 Requirement to comply with conditions of authorisation Part 5—Consultation, representation and participation Division 1—Consultation, co‑operation and co‑ordination between duty holders 46 Duty to consult with other duty holders Division 2—Consultation with workers 47 Duty to consult workers 48 Nature of consultation 49 When consultation is required Division 3—Health and safety representatives Subdivision 1—Request for election of health and safety representatives 50 Request for election of health and safety representative Subdivision 2—Determination of work groups 51 Determination of work groups 52 Negotiations for agreement for work group 53 Notice to workers 54 Failure of negotiations Subdivision 3—Multiple-business work groups 55 Determination of work groups of multiple businesses 56 Negotiation of agreement for work groups of multiple businesses 57 Notice to workers 58 Withdrawal from negotiations or agreement involving multiple businesses 59 Effect of Subdivision on other arrangements Subdivision 4—Election of health and safety representatives 60 Eligibility to be elected 61 Procedure for election of health and safety representatives 62 Eligibility to vote 63 When election not required 64 Term of office of health and safety representative 65 Disqualification of health and safety representatives 66 Immunity of health and safety representatives 67 Deputy health and safety representatives Subdivision 5—Powers and functions of health and safety representatives 68 Powers and functions of health and safety representatives 69 Powers and functions generally limited to the particular work group Subdivision 6—Obligations of person conducting business or undertaking to health and safety representatives 70 General obligations of person conducting business or undertaking 71 Exceptions from obligations under section 70(1) 72 Obligation to train health and safety representatives 73 Obligation to share costs if multiple businesses or undertakings 74 List of health and safety representatives Division 4—Health and safety committees 75 Health and safety committees 76 Constitution of committee 77 Functions of committee 78 Meetings of committee 79 Duties of person conducting business or undertaking Division 5—Issue resolution 80 Parties to an issue 81 Resolution of health and safety issues 82 Referral of issue to regulator for resolution by inspector Division 6—Right to cease or direct cessation of unsafe work 83 Definition of cease work under this Division 84 Right of worker to cease unsafe work 85 Health and safety representative may direct that unsafe work cease 85A Reasonable concern 86 Worker to notify if ceases work 87 Alternative work 88 Continuity of engagement of worker 89 Request to regulator to appoint inspector to assist Division 7—Provisional improvement notices 90 Provisional improvement notices 91 Provisional improvement notice to be in writing 92 Contents of provisional improvement notice 93 Provisional improvement notice may give directions to remedy contravention 94 Minor changes to provisional improvement notice 95 Issue of provisional improvement notice 96 Health and safety representative may cancel notice 97 Display of provisional improvement notice 98 Formal irregularities or defects in notice 99 Offence to contravene a provisional improvement notice 100 Request for review of provisional improvement notice 101 Regulator to appoint inspector to review notice 102 Decision of inspector on review of provisional improvement notice Division 7A—Work health and safety disputes 102A Definitions for Division 102B Notice of dispute may be given to SAET 102C Action for settling dispute 102D Review of particular decisions made by inspector 102E Decision not to deal with dispute 102F Costs Division 8—Part not to apply to prisoners 103 Part does not apply to prisoners Part 6—Discriminatory, coercive and misleading conduct Division 1—Prohibition of discriminatory, coercive or misleading conduct 104 Prohibition of discriminatory conduct 105 What is discriminatory conduct 106 What is a prohibited reason 107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct 108 Prohibition of coercion or inducement 109 Misrepresentation Division 2—Criminal proceedings in relation to discriminatory conduct 110 Proof of discriminatory conduct 111 Order for compensation or reinstatement Division 3—Civil proceedings in relation to discriminatory or coercive conduct 112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct 113 Procedure for civil actions for discriminatory conduct Division 4—General 114 General provisions relating to orders 115 Prohibition of multiple actions Part 7—Workplace entry by WHS entry permit holders Division 1—Introductory 116 Definitions Division 2—Entry to inquire into suspected contraventions 117 Entry to inquire into suspected contraventions 118 Rights that may be exercised while at workplace 119 Notice of entry 120 Entry to inspect employee records or information held by another person Division 3—Entry to consult and advise workers 121 Entry to consult and advise workers 122 Notice of entry Division 4—Requirements for WHS entry permit holders 123 Contravening WHS entry permit conditions 124 WHS entry permit holder must also hold permit under other law 125 WHS entry permit to be available for inspection 126 When right may be exercised 127 Where the right may be exercised 128 Work health and safety requirements 129 Residential premises 130 WHS entry permit holder not required to disclose names of workers Division 5—WHS entry permits 131 Application for WHS entry permit 132 Consideration of application 133 Eligibility criteria 134 Issue of WHS entry permit 135 Conditions on WHS entry permit 136 Term of WHS entry permit 137 Expiry of WHS entry permit 138 Application to revoke WHS entry permit 139 Authorising authority must permit WHS entry permit holder to show cause 140 Determination of application Division 6—Dealing with disputes 141 Application for assistance of inspector to resolve dispute 142 Authorising authority may deal with a dispute about a right of entry under this Act 143 Contravening order made to deal with dispute Division 7—Prohibitions 144 Person must not refuse or delay entry of WHS entry permit holder 145 Person must not hinder or obstruct WHS entry permit holder 146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace 147 Misrepresentations about things authorised by this Part 148 Unauthorised use or disclosure of information or documents Division 8—General 149 Return of WHS entry permits 150 Union to provide information to authorising authority 151 Register of WHS entry permit holders Part 8—The regulator Division 1—Functions of regulator 152 Functions of regulator 152A Right of regulator to intervene in proceedings 153 Powers of regulator 154 Delegation by regulator Division 2—Powers of regulator to obtain information 155 Powers of regulator to obtain information Part 9—Securing compliance Division 1—Appointment of inspectors 156 Appointment of inspectors 157 Identity cards 158 Accountability of inspectors 159 Suspension and ending of appointment of inspectors Division 2—Functions and powers of inspectors 160 Functions and powers of inspectors 161 Conditions on inspectors' compliance powers 162 Inspectors subject to regulator's directions Division 3—Powers relating to entry Subdivision 1—General powers of entry 163 Powers of entry 164 Notification of entry 165 General powers on entry 166 Persons assisting inspectors Subdivision 2—Search warrants 167 Search warrants 168 Announcement before entry on warrant 169 Copy of warrant to be given to person with management or control of place Subdivision 3—Limitation on entry powers 170 Places used for residential purposes Subdivision 4—Specific powers on entry 171 Power to require production of documents and answers to questions 172 Protection against self‑incrimination 173 Warning to be given 174 Powers to copy and retain documents 175 Power to seize evidence etc 176 Inspector's power to seize dangerous workplaces and things 177 Powers supporting seizure 178 Receipt for seized things 179 Forfeiture of seized things 180 Return of seized things 181 Access to seized things Division 4—Damage and compensation 182 Damage etc to be minimised 183 Inspector to give notice of damage 184 Compensation Division 5—Other matters 185 Power to require name and address 186 Inspector may take affidavits 187 Attendance of inspector at inquiries Division 6—Offences in relation to inspectors 188 Offence to hinder or obstruct inspector 189 Offence to impersonate inspector 190 Offence to assault, threaten or intimidate inspector Part 10—Enforcement measures Division 1—Improvement notices 191 Issue of improvement notices 192 Contents of improvement notices 193 Compliance with improvement notice 194 Extension of time for compliance with improvement notices Division 2—Prohibition notices 195 Power to issue prohibition notice 196 Contents of prohibition notice 197 Compliance with prohibition notice Division 3—Non-disturbance notices 198 Issue of non‑disturbance notice 199 Contents of non‑disturbance notice 200 Compliance with non‑disturbance notice 201 Issue of subsequent notices Division 4—General requirements applying to notices 202 Application of Division 203 Notice to be in writing 204 Directions in notices 205 Recommendations in notice 206 Changes to notice by inspector 207 Regulator may vary or cancel notice 208 Formal irregularities or defects in notice 209 Issue and giving of notice 210 Display of notice Division 5—Remedial action 211 When regulator may carry out action 212 Power of the regulator to take other remedial action 213 Costs of remedial or other action Division 6—Injunctions 214 Application of Division 215 Injunctions for noncompliance with notices Part 11—Enforceable undertakings 216 Regulator may accept WHS undertakings 217 Notice of decision and reasons for decision 218 When a WHS undertaking is enforceable 219 Compliance with WHS undertaking 220 Contravention of WHS undertaking 221 Withdrawal or variation of WHS undertaking 222 Proceeding for alleged contravention Part 12—Review of decisions Division 1—Reviewable decisions 223 Which decisions are reviewable Division 2—Internal review 224 Application for internal review 225 Internal reviewer 226 Decision of internal reviewer 227 Decision on internal review 228 Stays of reviewable decisions on internal review Division 3—External review 229 Application for external review Part 13—Legal proceedings Division 1—General matters 230 Prosecutions 231 Procedure if prosecution is not brought 232 Limitation period for prosecutions 233 Multiple contraventions of health and safety duty provision Division 2—Sentencing for offences 234 Application of this Division 235 Orders generally 236 Adverse publicity orders 237 Orders for restoration 238 Work health and safety project orders 239 Release on the giving of a court‑ordered WHS undertaking 240 Injunctions 241 Training orders 242 Offence to fail to comply with order Division 3—Infringement notices 243 Infringement notices Division 4—Offences by bodies corporate 244 Imputing conduct to bodies corporate Division 5—The Crown 245 Offences and the Crown 246 WHS civil penalty provisions and the Crown 247 Officers 248 Responsible agency for the Crown Division 6—Public authorities 249 Application to public authorities that are bodies corporate 250 Proceedings against public authorities 251 Imputing conduct to public authorities 252 Officer of public authority 253 Proceedings against successors to public authorities Division 7—WHS civil penalty provisions 254 When is a provision a WHS civil penalty provision 255 Proceedings for contravention of WHS civil penalty provision 256 Involvement in contravention treated in same way as actual contravention 257 Contravening a civil penalty provision is not an offence 258 Civil proceeding rules and procedure to apply 259 Proceeding for a contravention of a WHS civil penalty provision 260 Proceeding may be brought by the regulator or an inspector 260A Proceeding may be brought by a party for contravention of certain orders relating to arbitrations 261 Limitation period for WHS civil penalty proceedings 262 Recovery of a monetary penalty 263 Civil double jeopardy 264 Criminal proceedings during civil proceedings 265 Criminal proceedings after civil proceedings 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings Division 8—Civil liability not affected by this Act 267 Civil liability not affected by this Act Part 14—General Division 1—General provisions 268 Offence to give false or misleading information 269 Act does not affect legal professional privilege 270 Immunity from liability 271 Confidentiality of information 271A Additional ways that regulator may disclose information 272 No contracting out 272A Insurance or other indemnity against penalties 272B Officer may be taken to have committed offence against section 272A 273 Person not to levy workers Division 2—Codes of practice 274 Approved codes of practice 275 Use of codes of practice in proceedings Division 3—Regulation‑making powers 276 Regulation‑making powers Division 4—Reviews 277 Reviews Schedule 1—Application of Act to dangerous goods and high risk plant Schedule 2—Local tripartite consultation arrangements Part 2—The Mining and Quarrying Occupational Health and Safety Committee 12 The Committee 13 Application of funds 14 Ministerial control Schedule 3—Regulation‑making powers 1 Duties 2 Incidents 3 Plant, substances or structures 4 Protection and welfare of workers 5 Hazards and risks 6 Records and notices 7 Authorisations 8 Work groups 9 Health and safety committees and health and safety representatives 10 Issue resolution 11 WHS entry permits 12 Identity cards 13 Forfeiture 14 Review of decisions Schedule 4—Supplementary panel members 1 Supplementary panel members Schedule 5—Provisions of local application 1 Provision of information by RTWSA 2 Registration of employers 3 Executive Director Schedule 6—Transitional provisions Part 9—Transitional provisions 12 Interpretation 13 Duties of designers 14 Duties of manufacturers 15 Duties of importers 16 Duties of suppliers 17 Duties of persons who install, construct or commission plant or structures 18 Appointments 19 Training 20 Members of committees 21 Functions and powers of inspectors 22 Disqualifications 23 Codes of practice 24 Authorisations 25 Exemptions 25A Prosecutions under Occupational Health, Safety and Welfare Act 1986 26 Other provisions Legislative history