Work Health and Safety Act 2020

 

Work Health and Safety Act 2020

Contents

Part 1 — Preliminary

Division 1 — Introduction

1.Short title2

2.Commencement2

Division 2 — Object

3.Object2

Division 3 — Interpretation

Subdivision 1 — Definitions

4.Definitions4

Subdivision 2 — Other important terms

4A.Meaning of officer10

5.Meaning of person conducting a business or undertaking11

6.Meaning of supply13

7.Meaning of worker13

8.Meaning of workplace14

9.Notes14

Division 4 — Application of Act

10.Act binds Crown15

11.Not used15

12.Not used15

Division 5 — Establishment of various offices and bodies

12A.Effect of Schedule 115

Part 2 — Health and safety duties

Division 1 — Introductory

Subdivision 1 — Principles that apply to duties

13.Principles that apply to duties16

14.Duties not transferable16

15.Person may have more than 1 duty16

16.More than 1 person can have a duty16

17.Management of risks17

Subdivision 2 — What is reasonably practicable

18.What is reasonably practicable in ensuring health and safety17

Division 2 — Primary duty of care

19.Primary duty of care18

Division 3 — Further duties of persons conducting businesses or undertakings

20.Duty of persons conducting businesses or undertakings involving management or control of workplaces20

21.Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces20

22.Duties of persons conducting businesses or undertakings that design plant, substances or structures21

23.Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures23

24.Duties of persons conducting businesses or undertakings that import plant, substances or structures25

25.Duties of persons conducting businesses or undertakings that supply plant, substances or structures27

26.Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures29

26A.Duty of persons conducting businesses or undertakings that provide services relating to work health and safety30

Division 4 — Duty of officers, workers and other persons

27.Duty of officers31

28.Duties of workers33

29.Duties of other persons at the workplace34

Division 5 — Offences and penalties

Subdivision 1 — Preliminary

30.Terms used34

Subdivision 2 — Industrial manslaughter

30A.Industrial manslaughter — crime35

Subdivision 3 — Other offences and penalties

31.Failure to comply with health and safety duty — Category 136

32.Failure to comply with health and safety duty — Category 238

33.Failure to comply with health and safety duty — Category 338

Subdivision 4 — Exceptions

34.Volunteers and unincorporated associations39

Part 3 — Incident notification

35.What is a notifiable incident40

36.What is a serious injury or illness40

37.What is a dangerous incident41

38.Duty to notify of notifiable incidents42

39.Duty to preserve incident sites43

Part 4 — Authorisations

Division 1 — Preliminary

40.Meaning of authorised45

Division 2 — Requirements for authorisations

41.Requirements for authorisation of workplaces45

42.Requirements for authorisation of plant or substance45

43.Requirements for authorisation of work46

Division 3 — Other requirements

44.Requirements for prescribed qualifications or experience47

45.Requirement to comply with conditions of authorisation48

Division 4 — Use of automated electronic systems for functions relating to authorisations

45A.Preliminary48

45B.Use of automated electronic systems under authorisation provisions49

45C.Replacing decision made by automated electronic system or re‑exercising or re‑performing authorisation function50

Part 5 — Consultation, representation and participation

Division 1 — Consultation, cooperation and coordination between duty holders

46.Duty to consult with other duty holders52

Division 2 — Consultation with workers

47.Duty to consult workers52

48.Nature of consultation53

49.When consultation is required53

Division 3 — Health and safety representatives

Subdivision 1 — Request for election of health and safety representatives

50.Request for election of health and safety representative54

Subdivision 2 — Determination of work groups

51.Determination of work groups54

52.Negotiations for determination of work group55

53.Notice to workers56

54.Failure of negotiations56

Subdivision 3 — Multiple business work groups

55.Determination of work groups of multiple businesses57

56.Negotiation of agreement for work groups of multiple businesses58

57.Notice to workers59

58.Withdrawal from negotiations or agreement involving multiple businesses59

59.Effect of Subdivision on other arrangements60

Subdivision 4 — Election of health and safety representatives

60.Eligibility to be elected60

61.Procedure for election of health and safety representatives60

62.Eligibility to vote61

63.When election not required61

64.Term of office of health and safety representative61

65.Disqualification of health and safety representatives62

66.Immunity of health and safety representatives63

67.Deputy health and safety representatives63

Subdivision 5 — Powers and functions of health and safety representatives

68.Powers and functions of health and safety representatives64

69.Powers and functions generally limited to the particular work group66

Subdivision 6 — Obligations of person conducting business or undertaking to health and safety representatives

70.General obligations of person conducting business or undertaking67

71.Exceptions from obligations under section 70(1)69

72.Obligation to train health and safety representatives71

73.Obligation to share costs if multiple businesses or undertakings72

74.List of health and safety representatives73

Division 4 — Health and safety committees

75.Health and safety committees73

76.Constitution of committee74

77.Functions of committee75

78.Meetings of committee75

79.Duties of person conducting business or undertaking76

Division 5 — Issue resolution

80.Parties to an issue78

81.Resolution of health and safety issues78

82.Referral of issue to regulator for resolution by inspector79

82A.Extension of deadline for making decision resolving issue79

Division 6 — Right to cease or direct cessation of unsafe work

83.Definition of cease work under this Division80

84.Right of worker to cease unsafe work80

85.Health and safety representative may direct that unsafe work cease80

86.Worker to notify if ceases work82

87.Alternative work82

88.Continuity of engagement of worker82

89.Request to regulator to appoint inspector to assist82

89A.Referral of issue about application of section 88 to Tribunal83

Division 7 — Provisional improvement notices

90.Provisional improvement notices83

91.Provisional improvement notice to be in writing84

92.Contents of provisional improvement notice84

93.Provisional improvement notice may include recommendations to remedy contravention85

94.Minor changes to provisional improvement notice85

95.Issue of provisional improvement notice85

96.Health and safety representative may cancel notice85

97.Display of provisional improvement notice85

98.Formal irregularities or defects in notice86

99.Offence to contravene a provisional improvement notice86

100.Request for review of provisional improvement notice87

101.Inspector to review notice87

102.Decision of inspector on review of provisional improvement notice88

Division 8 — Part not to apply to prisoners

103.Part does not apply to prisoners88

Part 6 — Discriminatory, coercive and misleading conduct

Division 1 — Prohibition on discriminatory, coercive or misleading conduct

104.Prohibition on discriminatory conduct89

105.What is discriminatory conduct89

106.What is a prohibited reason90

107.Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct92

108.Prohibition of coercion or inducement92

109.Misrepresentation93

Division 2 — Criminal proceedings in relation to discriminatory conduct

110.Proof of discriminatory conduct93

111.Order for compensation or reinstatement94

Division 3 — Civil proceedings in relation to discriminatory or coercive conduct

112.Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct95

113.Procedure for civil actions for discriminatory conduct96

Division 4 — General

114.General provisions relating to orders97

115.Prohibition on multiple actions97

Part 7 — Not used

Division 1 — Not used

116.Not used99

Division 2 — Not used

117.Not used99

118.Not used99

119.Not used99

120.Not used99

Division 3 — Not used

121.Not used99

122.Not used99

Division 4 — Not used

123.Not used99

124.Not used99

125.Not used99

126.Not used99

127.Not used99

128.Not used99

129.Not used99

130.Not used99

Division 5 — Not used

131.Not used100

132.Not used100

133.Not used100

134.Not used100

135.Not used100

136.Not used100

137.Not used100

138.Not used100

139.Not used100

140.Not used100

Division 6 — Not used

141.Not used100

142.Not used100

143.Not used100

Division 7 — Not used

144.Not used100

145.Not used100

146.Not used100

147.Not used100

148.Not used100

Division 8 — Not used

149.Not used101

150.Not used101

151.Not used101

Part 8 — The regulator

Division 1 — Functions of regulator

152.Functions of regulator102

153.Powers of regulator103

154.Delegation by regulator103

Division 2 — Powers of regulator to obtain information and require independent reports

155.Powers of regulator to obtain information103

155A.Supplementary provisions relating to appearances105

155B.Power of regulator to require independent report106

155C.Powers to copy and retain documents107

Part 9 — Securing compliance

Division 1 — Appointment of inspectors

156.Appointment of inspectors108

157.Identification of inspectors108

158.Accountability of inspectors108

159.Suspension and ending of appointment of inspectors109

Division 2 — Functions and powers of inspectors

160.Functions and powers of inspectors109

161.Conditions on inspectors’ compliance powers110

162.Inspectors subject to regulator’s directions110

Division 3 — Powers relating to entry

Subdivision 1 — General powers of entry

163.Powers of entry110

164.Notification of entry110

165.General powers on entry under section 163111

166.Persons assisting inspectors112

Subdivision 2 — Entry warrants

166A.Terms used112

166B.Entry to places under entry warrant113

167.Applying for and issuing entry warrant113

167A.Use of remote communication114

167B.Effect and execution of entry warrant116

167C.General powers when executing entry warrant116

167D.Persons assisting inspectors118

168.Not used119

169.Not used119

Subdivision 3 — Limitation on entry powers

170.Places used for residential purposes119

Division 4 — Powers relating to documents and information

171.Power to require documents and answers to questions120

172.Abrogation of privilege against self‑incrimination122

173.Warning to be given122

174.Powers to copy and retain documents123

Division 5 — Seizure

175.Power to seize things124

176.Inspector’s power to seize dangerous workplaces and things125

177.Powers supporting seizure125

178.Receipt for seized things127

178A.Inspecting, examining, analysing and testing seized things127

179.Forfeiture of seized things127

180.Return of seized things129

181.Access to seized things129

Division 6 — Damage

182.Damage etc. to be minimised130

183.Inspector to give notice of damage130

184.Not used130

Division 7 — Other matters

185.Power to require name and address130

186.Inspector may take affidavits131

187.Not used131

Division 8 — Offences in relation to inspectors

188.Offence to hinder or obstruct inspector132

189.Offence to impersonate inspector132

190.Offence to assault, threaten or intimidate inspector132

Part 10 — Enforcement measures

Division 1 — Improvement notices

191.Issue of improvement notices133

192.Contents of improvement notice133

193.Compliance with improvement notice134

194.Extension of time for compliance with improvement notices134

Division 2 — Prohibition notices

195.Power to issue prohibition notice135

196.Contents of prohibition notice136

197.Compliance with prohibition notice136

Division 3 — Non‑disturbance notices

198.Issue of non‑disturbance notice137

199.Contents of non‑disturbance notice137

200.Compliance with non‑disturbance notice138

201.Issue of subsequent notices138

Division 4 — General requirements applying to notices

202.Application of Division138

203.Notice to be in writing138

204.Directions in notices138

205.Recommendations in notice139

206.Changes to notice by inspector139

207.Regulator may vary or cancel notice139

208.Formal irregularities or defects in notice139

209.Issue and giving of notice140

210.Display of notice140

Division 5 — Remedial action

211.When regulator may carry out action141

212.Power of regulator to take other remedial action141

213.Costs of remedial or other action142

Division 6 — Not used

214.Not used142

215.Not used142

Part 11 — Enforceable undertakings

216.Regulator may accept WHS undertakings143

217.Notice of decision and reasons for decision143

218.When a WHS undertaking is enforceable143

219.Compliance with WHS undertaking144

220.Contravention of WHS undertaking144

221.Withdrawal or variation of WHS undertaking145

222.Proceeding for alleged contravention145

Part 12 — Review of decisions

Division 1 — Reviewable decisions

223.Which decisions are reviewable146

223A.Review applications by unions153

Division 2 — Internal review

224.Application for internal review154

225.Internal reviewer155

226.Decision of internal reviewer155

227.Decision on internal review156

228.Stays of reviewable decisions on internal reviews156

Division 3 — External review

229.Application for external review157

229A.Conduct and outcome of external review157

229B.Stays of decisions subject to external review158

Part 13 — Legal proceedings

Division 1 — General matters

229C.Terms used159

230.Prosecutions159

231.Procedure if prosecution is not brought160

232.Limitation period for prosecutions160

232A.Admission of evidence obtained unlawfully162

233.Not used163

Division 2 — Sentencing of offenders

234.Application of this Division163

235.Orders generally163

236.Adverse publicity orders163

237.Orders for restoration164

238.Work health and safety project orders165

239.Release on the giving of a court‑ordered WHS undertaking165

240.Not used166

241.Training orders166

242.Offence to fail to comply with order166

Division 3 — Not used

243.Not used166

Division 4 — Offences by bodies corporate

244.Imputing conduct to bodies corporate166

Division 5 — The Crown

Subdivision 1 — Prosecutions

244A.Crown may be prosecuted167

244B.Prosecution against agent of Crown that is body corporate167

244C.Prosecution of Crown in other cases167

244D.Provisions applicable to responsible agency168

244E.Proceedings where Crown agency has ceased to exist169

244F.Penalties in proceedings against Crown169

Subdivision 2 — Other matters

244G.Issue of notices to Crown170

244H.Imputing conduct to Crown agency171

245.Not used171

246.Not used171

247.Not used171

248.Not used171

Division 6 — Not used

249.Not used172

250.Not used172

251.Not used172

252.Not used172

253.Not used172

Division 7 — Not used

254.Not used172

255.Not used172

256.Not used172

257.Not used172

258.Not used172

259.Not used172

260.Not used172

261.Not used172

262.Not used172

263.Not used172

264.Not used172

265.Not used172

266.Not used172

Division 8 — Civil liability not affected by this Act

267.Civil liability not affected by this Act173

Part 14 — General

Division 1 — General provisions

268.Offence to give false or misleading information174

269.Act does not affect legal professional privilege175

270.Immunity from liability175

271.Confidentiality of information175

272.No contracting out177

272A.No insurance or other indemnities against fines177

273.Person not to levy workers178

Division 2 — Codes of practice

274.Approved codes of practice178

275.Use of codes of practice in proceedings180

Division 3 — Regulation‑making powers

276.Regulation‑making powers180

Division 4 — Review of Act

277.Operation of Act to be reviewed every 5 years182

Part 15 — Repeals and consequential amendments

Division 1 — Occupational safety and health legislation

278.Occupational Safety and Health Act 1984 repealed183

279.Occupational Safety and Health Regulations 1996 repealed183

Division 2 — Mines safety and inspection legislation

Subdivision 1 — Mines Safety and Inspection Act 1994 amended

280.Act amended183

281.Section 3 deleted183

282.Section 4 amended183

283.Section 4A deleted186

284.Section 6A deleted186

285.Section 7 amended187

286.Parts 2 to 8 deleted187

287.Sections 94 and 95 deleted187

288.Section 96A deleted187

289.Sections 98 to 99A deleted187

290.Section 100 amended187

291.Sections 100A and 101 deleted187

292.Part 9 Divisions 2 and 3 deleted187

293.Sections 102A and 103 deleted188

294.Section 104 amended188

295.Section 105A amended189

296.Section 105AB amended189

297.Sections 105 to 110 deleted189

Subdivision 2 — Mines Safety and Inspection Regulations 1995 repealed

298.Mines Safety and Inspection Regulations 1995 repealed190

Division 3 — Petroleum and geothermal energy legislation

Subdivision 1 — Petroleum and Geothermal Energy Resources Act 1967 amended

299.Act amended190

300.Section 5 amended190

301.Section 7AA deleted190

302.Section 112A amended190

303.Section 119 amended191

304.Section 126A amended191

305.Part IIIA deleted191

306.Section 153 amended191

307.Schedule 1 deleted191

Subdivision 2 — Petroleum and Geothermal Energy Safety Levies Act 2011 amended

308.Act amended191

309.Long title amended192

310.Section 3 amended192

311.Sections 3A to 3E inserted196

3A.Diving operation196

3B.DSMS197

3C.Geothermal energy operation197

3D.Petroleum operation199

3E.Safety case201

312.Part 2 replaced202

Part 2  Safety levies

Division 1 — Safety case levy

4.Safety case levy payable202

5.Liability for payment of safety case levy202

6.Amount of safety case levy202

Division 2 — DSMS levy

7.DSMS levy payable203

8.Liability for payment of DSMS levy203

9.Amount of DSMS levy203

313.Section 10 amended204

314.Section 11 amended204

315.Section 12 amended204

316.Section 13 amended205

317.Section 14 amended205

318.Section 15 amended205

319.Section 16 amended205

320.Section 18 amended205

321.Section 21 amended206

322.Section 22 amended206

323.Section 26 amended206

Subdivision 3 — Petroleum Pipelines Act 1969 amended

324.Act amended207

325.Section 4 amended207

326.Section 5AA deleted207

327.Section 32 replaced207

32.Certain local laws not to apply to licensed pipelines207

328.Section 36 amended208

329.Part IVA deleted208

330.Section 63 amended208

331.Section 66BB amended208

332.Section 67 amended209

333.Schedule 1 deleted209

Subdivision 4 — Petroleum (Submerged Lands) Act 1982 amended

334.Act amended209

335.Section 4 amended209

336.Section 4A inserted210

4A.Meaning of facility and offshore petroleum operation210

337.Part IIA deleted212

338.Section 97 amended212

339.Section 119 amended212

340.Section 137A amended213

341.Part IIIA deleted213

342.Section 152 amended213

343.Schedule 3 amended213

344.Schedule 5 deleted213

Subdivision 5 — Various regulations repealed

345.Regulations under Petroleum and Geothermal Energy Resources Act 1967 repealed214

346.Regulations under Petroleum and Geothermal Energy Safety Levies Act 2011 repealed214

347.Regulations under Petroleum Pipelines Act 1969 repealed214

348.Regulations under Petroleum (Submerged Lands) Act 1982 repealed214

Division 4 — Other consequential amendments

Subdivision 1 — Building and Construction Industry Training Fund and Levy Collection Act 1990 amended

349.Act amended215

350.Section 8 amended215

Subdivision 2 — Constitution Acts Amendment Act 1899 amended

351.Act amended215

352.Schedule V amended215

Subdivision 3 — Fair Trading Act 2010 amended

353.Act amended215

354.Schedule 1 amended216

Subdivision 4 — Health (Miscellaneous Provisions) Act 1911 amended

355.Act amended216

356.Section 246B amended216

Subdivision 5 — Industrial Relations Act 1979 amended

357.Act amended216

358.Section 7 amended217

359.Section 8 amended217

360.Section 16 amended217

361.Section 49I amended218

362.Section 113 amended218

Subdivision 6 — Local Government Act 1995 amended

363.Act amended218

364.Section 5.40 amended219

Subdivision 7 — Public Sector Management Act 1994 amended

365.Act amended219

366.Section 8 amended219

367.Section 29 amended219

Subdivision 8 — Workers’ Compensation and Injury Management Act 1981 amended

368.Act amended219

369.Section 47 deleted220

370.Section 48 amended220

371.Section 95 amended220

372.Section 100B amended220

Part 16 — Transitional provisions

Division 1 — Preliminary

373.Terms used221

374.Application of Interpretation Act 1984 not affected221

375.Continued application of enactments221

376.Transitional regulations222

Division 2 — General saving in relation to certain matters

377.Enactments to continue to apply in relation to certain matters occurring before commencement day224

Division 3 — Office holders and bodies

378.WorkSafe Commissioner225

379.Chief Inspector of Mines225

380.Members of Work Health and Safety Commission226

381.First annual report of Work Health and Safety Commission227

382.Continuation of Mining Industry Advisory Committee227

383.Continuation of other advisory committees228

Division 4 — Health and safety duties

Subdivision 1 — Designers

384.Section 22 applies only if designing starts on or after commencement day228

385.Continued application of repealed enactments relating to designers228

Subdivision 2 — Manufacturers

386.Plant, substance or structure manufactured in batch229

387.Section 23 applies only if manufacturing starts on or after commencement day229

388.Continued application of repealed enactments relating to manufacturers230

Subdivision 3 — Importers

389.Section 24 not to apply if importation process starts before commencement day231

390.Continued application of repealed enactments relating to importers231

Subdivision 4 — Suppliers

391.Start of supply232

392.Section 25 not to apply if supply started before commencement day232

393.Continued application of repealed enactments relating to suppliers233

Subdivision 5 — Persons who install, construct or commission plant or structures

394.Section 26 not to apply if installing, constructing or commissioning occurs before commencement day234

395.Continued application of repealed enactments relating to persons who install or construct plant or structures235

Division 5 — Health and safety representatives

Subdivision 1 — Preliminary

396.Terms used236

Subdivision 2 — Main provisions

397.Safety and health representatives elected before commencement day236

398.Elections in process before commencement day238

399.Disqualifications239

400.Functions and powers under repealed enactments239

Division 6 — Health and safety committees

Subdivision 1 — Preliminary

401.Term used240

Subdivision 2 — Main provisions

402.Safety and health committees in place before commencement day240

403.Process to establish safety and health committee started before commencement day241

Division 7 — Issue resolution

404.Part 5 Division 5 to apply to unresolved issues arising before commencement day241

405.Continued application of enactments relating to issue resolution242

Division 8 — The regulator

406.Continuing powers and functions under OSHA242

407.Continuing powers and functions under MSIA242

408.Continuing powers and functions under petroleum and geothermal energy legislation243

409.Delegation243

Division 9 — Inspectors

410.Inspectors under OSHA244

411.Inspectors under MSIA245

412.Inspectors under PGERA245

413.Inspectors under PPA247

414.Inspectors under P(SL)A248

415.Application of sections 161 and 162249

Division 10 — Legal proceedings

416.Jurisdiction of Occupational Safety and Health Tribunal to be exercised by Tribunal249

417.Jurisdiction of safety and health magistrates to be exercised by health and safety magistrates250

Division 11 — Other matters

418.Notifiable incidents251

419.Independent studies at mines251

420.Codes of practice251

421.Protections from personal liability251

Division 12 — Levies

Subdivision 1 — Mines safety and inspection levy

422.Administration costs252

423.Mines Safety and Inspection Levy Regulations 2010252

Subdivision 2 — Petroleum and geothermal energy safety levies

424.Administration costs253

425.Petroleum and Geothermal Energy Safety Levies Act 2011 to continue to apply to past levy periods253

Schedule 1 — Various offices and bodies

Division 1 — WorkSafe Commissioner

1.Appointment of WorkSafe Commissioner254

2.Functions of WorkSafe Commissioner and relationship with Minister and WHS department254

3.Vacation of office of WorkSafe Commissioner255

4.Acting WorkSafe Commissioner255

Division 2 — Chief Inspector of Mines and Chief Inspector Petroleum Safety

5.Appointment of Chief Inspector of Mines and Chief Inspector Petroleum Safety256

6.Functions of Chief Inspector of Mines and Chief Inspector Petroleum Safety257

7.Vacation of office of Chief Inspector of Mines or Chief Inspector Petroleum Safety257

8.Acting Chief Inspector of Mines or Acting Chief Inspector Petroleum Safety258

Division 3 — Work Health and Safety Commission

Subdivision 1 — Preliminary

9.Terms used258

Subdivision 2 — Main provisions

10.Establishment of Work Health and Safety Commission259

11.Deputy chairperson260

12.Vacation of office of appointed members260

13.Acting members261

14.Terms and conditions of appointed members262

15.Leave of absence262

16.Casual vacancies262

17.Meetings of Commission263

18.Functions of Commission264

19.Advisory committees266

20.Annual report266

21.Staff to assist Commission267

Division 4 — Mining and Petroleum Advisory Committee

Subdivision 1 — Preliminary

22.Terms used267

Subdivision 2 — Main provisions

23.Establishment of Mining and Petroleum Advisory Committee267

24.Functions of Committee268

25.Annual report and staff268

Division 5 — Work Health and Safety Tribunal

Subdivision 1 — Preliminary

26.Terms used269

Subdivision 2 — Main provisions

27.Establishment of Work Health and Safety Tribunal269

28.Jurisdiction to be exercised by commissioner with requisite qualifications269

29.Practice, procedure and appeals270

30.Conciliation271

31.Certain matters to be heard together272

Schedule 2 — Regulation‑making powers

1.Duties274

2.Incidents274

3.Plant, substances or structures274

4.Protection and welfare of workers275

5.Hazards and risks275

6.Records and notices275

7.Authorisations276

8.Work groups276

9.Health and safety committees and health and safety representatives276

10.Issue resolution277

11.Identification of inspectors277

12.Forfeiture277

13.Review of decisions277

Defined terms

 

 

Work Health and Safety Act 2020

No. 36 of 2020

An Act —

•to make provision about, and in connection with —

•the health and safety of workers; and

•health and safety at workplaces; and

•risks to health and safety arising from work;

and

•to make consequential and related amendments to, and repeals of, various written laws; and

•for related purposes.

[Assented to 10 November 2020]

The Parliament of Western Australia enacts as follows:

 

Part 1 — Preliminary

Division 1 — Introduction

1.Short title

This is the Work Health and Safety Act 2020.

2.Commencement

(1)This Act comes into operation as follows —

(a)Part 1, other than Divisions 2 to 5 — on the day on which this Act receives the Royal Assent (assent day);

(b)Part 14, other than Divisions 1 to 3 — on the day after assent day;

(c)the rest of the Act — on a day fixed by proclamation.

(2)However, if no day is fixed under subsection (1)(c) before the end of the period of 10 years beginning on assent day, this Act is repealed on the day after that period ends.

Division 2 — Object

3.Object

(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)protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and

(b)providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

(c)fostering cooperation and consultation between, and providing for the participation of, the following persons in the formulation and implementation of work health and safety standards to current levels of technical knowledge and development and encouraging those persons to take a constructive role in promoting improvements in work health and safety practices —

(i)workers;

(ii)persons conducting businesses or undertakings;

(iii)unions;

(iv)employer organisations;

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 taken 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)providing for the formulation of policies, and for the coordination of the administration of laws, relating to work health and safety; and

(i)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 the State.

(2)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 as is reasonably practicable.

Notes for this section:

1.This Act is based on the Model Work Health and Safety Bill (21 March 2016 version) prepared for, and approved by, the Council of Australian Governments and contains modifications of that model Bill for this State.

2.The numbering of Parts, Divisions and sections in this Act generally (but not always) corresponds to the numbering of Parts, Divisions and sections in the model Bill. To facilitate this correspondence —

(a)some Part, Division and section numbers are included in this Act although they are not used for this State; and

(b)alphanumeric numbers are used in this Act for some sections that are inserted for this State.

3.Alphanumeric numbering used in the model Bill is also used in this Act.

Division 3 — Interpretation

Subdivision 1 — Definitions

4.Definitions

In this Act —

approved code of practice means a code of practice approved under Part 14;

authorised, in Part 4 — see section 40;

Category 1 offence — see section 31;

Category 2 offence — see section 32;

Category 3 offence — see section 33;

chief executive, in relation to a Crown agency, means the person who is responsible for the day‑to‑day administration of the Crown agency;

Chief Inspector of Mines — see Schedule 1 Division 2;

Chief Inspector Petroleum Safety — see Schedule 1 Division 2;

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 another State or a Territory, who or which is responsible for administering a corresponding WHS law;

corresponding WHS law means a law, or a part of a law, of the Commonwealth, or of another State or a Territory, that is prescribed as a corresponding WHS law;

covert operation means the performance of a function, or the exercise of a power, of a police officer in circumstances where —

(a)a covert operation is undertaken by WA Police for the purpose of obtaining information about criminal activity; and

(b)the performance of the function, or the exercise of the power, is not reasonably practicable without exposing a police officer to a serious risk to the police officer’s health or safety emanating from an immediate or imminent exposure to a hazard; and

(c)unless the performance of the function, or the exercise of the power, is secret or confidential, it would be likely that —

(i)the effectiveness of the performance of the function, or the exercise of the power, is reduced; or

(ii)a person is exposed to the danger of physical harm arising from the actions of another person;

Crown agency means —

(a)a department of the Public Service; or

(b)WA Police; or

(c)any other agency of the Crown that is not a body corporate;

dangerous incident, in Part 3 — see section 37;

dangerous operation means the performance of a function, or the exercise of a power, of a police officer in circumstances where the performance of that function, or the exercise of that power —

(a)is reasonably necessary; and

(b)is not reasonably practicable without exposing a police officer to a serious risk to the police officer’s health or safety emanating from an immediate or imminent exposure to a hazard;

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, in Part 6 — see section 105;

document includes anything that falls within 1 or more of the following paragraphs —

(a)a record of information, irrespective of how the information is recorded or stored or able to be recovered;

(b)a thing on which there is writing;

(c)a map, plan, graph, drawing or photograph;

(d)a thing on which there are marks, figures, symbols or perforations that have a meaning for persons qualified to interpret them;

(e)a thing from which images, sounds or writings can be reproduced with or without the aid of anything else;

(f)a thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;

eligible person, in Part 12 — see section 223;

employer organisation means an association or organisation of employers;

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 the State, whether from outside Australia or otherwise;

industrial manslaughter — see section 30A;

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;

IR entry authority means —

(a)an authority issued under the Industrial Relations Act 1979 Part II Division 2G; or

(b)a permit issued under the Fair Work Act 2009 (Commonwealth) section 512;

local government member means —

(a)a member of the council of a local government, or of the council of a regional local government, acting in that capacity; or

(b)a member of the governing body of a regional subsidiary acting in that capacity, if the member was appointed to the governing body in their capacity as a member of the council of a local government involved in the formation of the regional subsidiary;

notifiable incident — see section 35;

officer — see section 4A;

person conducting a business or undertaking — see section 5;

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;

prohibited reason, in Part 6 — see section 106;

provide, in relation to a document, includes produce;

public corporation means —

(a)a local government, regional local government or regional subsidiary; or

(b)any other body corporate established or continued for a public purpose under a written law;

reasonably practicable, in relation to a duty to ensure health and safety — see section 18;

regulator means the WorkSafe Commissioner — see Schedule 1 Division 1;

remuneration has the meaning given in the Salaries and Allowances Act 1975 section 4(1);

representative, in relation to a worker, means —

(a)the health and safety representative for the worker; or

(b)a union representing the worker; or

(c)any other person the worker authorises to represent the worker;

reviewable decision, in Part 12 — see section 223;

serious injury or illness, in Part 3 — see section 36;

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;

Tribunal means the Work Health and Safety Tribunal — see Schedule 1 Division 5;

union means —

(a)an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 (Commonwealth); or

(b)an organisation of employees, or an association of employees, registered under the Industrial Relations Act 1979;

volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out‑of‑pocket expenses);

WA Police means the Police Force of Western Australia provided for by the Police Act 1892;

WHS authority means any of the following —

(a)the Minister;

(b)the WHS department or a person working in the WHS department;

(c)an inspector or a person assisting an inspector under section 166, 167B(7) or 167D;

(d)the holder, or a person acting as the holder, of an office under Schedule 1 Division 1 or 2;

(e)a body established or appointed under Schedule 1 Division 3 or 4;

(f)a member, or a person acting as a member, of a body established or appointed under Schedule 1 Division 3 or 4;

(g)any other person engaged in the administration of this Act;

WHS department means the department of the Public Service principally assisting in the administration of this Act;

WHS undertaking means an undertaking given under section 216(1);

worker — see section 7;

work group means a work group determined under Part 5;

Work Health and Safety Commission — see Schedule 1 Division 3;

workplace — see section 8.

Subdivision 2 — Other important terms

4A.Meaning of officer

(1)In this Act —

officer —

(a)means —

(i)an officer within the meaning of the Corporations Act 2001 (Commonwealth) section 9 other than a partner in a partnership; or

(ii)an officer of the Crown within the meaning of subsection (2); or

(iii)an officer of a public corporation within the meaning of subsection (3);

but

(b)does not include —

(i)the Governor acting in that capacity; or

(ii)a Minister of a State or Territory, or of the Commonwealth, acting in that capacity; or

(iii)a local government member.

(2)Each of the following persons is taken to be an officer of the Crown for the purposes of this Act —

(a)in relation to the business or undertaking of a body corporate that is an agent of the Crown, any person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking;

(b)in relation to the business or undertaking of a Crown agency, the chief executive;

(c)in relation to the business or undertaking of a Crown agency, any person (other than the chief executive) —

(i)who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking; and

(ii)who is, within the organisational structure of the Crown agency, directly responsible to the chief executive.

(3)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 corporation is taken to be an officer of the public corporation for the purposes of this Act.

5.Meaning of person conducting a business or undertaking

(1)For the purposes of 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.

(3)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.

(4)An individual does not conduct a business or undertaking to the extent that the individual is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5)A local government member does not conduct a business or undertaking.

(6)The regulations 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.

(7)A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8)A strata company that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.

(9)Subsection (8) does not apply if the strata company engages any worker as an employee.

(10)In this section —

strata company means a body corporate established under the Strata Titles Act 1985 section 14 on registration of a strata titles scheme;

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.

6.Meaning of supply

(1)A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, loan, lease, hire or hire‑purchase, whether as principal or agent.

(2)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.

(3)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)a prescribed supply.

(4)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.

(5)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.

7.Meaning of worker

(1)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)a contractor or subcontractor; or

(c)an employee 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)a student gaining work experience; or

(h)a volunteer; or

(i)a person of a prescribed class.

(2)For the purposes of this Act, a police officer is —

(a)a worker of WA Police; 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.

(3)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.

8.Meaning of workplace

(1)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.

(2)In this section —

place includes —

(a)a vehicle, vessel, aircraft or other mobile structure; and

(b)any waters and any installation on land, on the bed of any waters or floating on any waters.

9.Notes

A note in this Act, other than a note in Part 15, forms part of this Act.

Division 4 — Application of Act

10.Act binds Crown

This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

11.Not used

12.Not used

Division 5 — Establishment of various offices and bodies

12A.Effect of Schedule 1

Schedule 1 establishes, and makes provision about, the following offices and bodies —

(a)the WorkSafe Commissioner (Division 1);

(b)the Chief Inspector of Mines and the Chief Inspector Petroleum Safety (Division 2);

(c)the Work Health and Safety Commission (Division 3);

(d)the Mining and Petroleum Advisory Committee (Division 4);

(e)the Work Health and Safety Tribunal (Division 5).

Part 2 — Health and safety duties

Division 1 — Introductory

Subdivision 1 — Principles that apply to duties

13.Principles that apply to duties

This Subdivision sets out the principles that apply to all duties that persons have under this Act.

Note for this section:

The principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation.

14.Duties not transferable

A duty cannot be transferred to another person.

15.Person may have more than 1 duty

A person can have more than 1 duty by virtue of being in more than 1 class of duty holder.

16.More than 1 person can have a duty

(1)More than 1 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.

17.Management of risks

A duty imposed on a person to ensure health and safety requires the person —

(a)to eliminate risks to health and safety, so far as is reasonably practicable; and

(b)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)the likelihood of the hazard or the risk concerned occurring; and

(b)the degree of harm that might result from the hazard or the risk; and

(c)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

(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

(1)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.

(2)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.

(3)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

(e)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

(f)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

(g)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.

(4)If —

(a)a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b)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.

(5)A self‑employed person must ensure, so far as is reasonably practicable, the person’s own health and safety while at work.

Note for this subsection:

A self‑employed person is also a person conducting a business or undertaking for the purposes of this section.

Note for this section:

Health means physical and psychological health — see section 4.

Division 3 — Further duties of persons conducting businesses or undertakings

20.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.

21.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.

(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 —

(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.

(2)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)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)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

(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

(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 referred to in paragraph (a), (b), (c), (d) or (e).

Note for this subsection:

For the purposes of paragraph (e), a reasonably foreseeable activity is, for example, inspection, operation, cleaning, maintenance or repair of plant.

(3)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).

(4)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)each purpose for which the plant, substance or structure was designed; and

(b)the results of any calculations, analysis, testing or examination referred to 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 when carrying out any activity referred to in subsection (2)(a) to (e).

(5)The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

23.Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures

(1)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.

(2)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 manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who 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

(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 referred to in paragraph (a), (b), (c), (d) or (e).

Note for this subsection:

For the purposes of paragraph (e), a reasonably foreseeable activity is, for example, inspection, operation, cleaning, maintenance or repair of plant.

(3)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).

(4)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 referred to 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 referred to in subsection (2)(a) to (e).

(5)The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

24.Duties of persons conducting businesses or undertakings that import plant, substances or structures

(1)This section applies to a person (the importer) who conducts a business or undertaking that imports —

(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.

(2)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)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who 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

(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 referred to in paragraph (a), (b), (c), (d) or (e).

Note for this subsection:

For the purposes of paragraph (e), a reasonably foreseeable activity is, for example, inspection, operation, cleaning, maintenance or repair of plant.

(3)The importer must —

(a)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

(b)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)each purpose for which the plant, substance or structure was designed or manufactured; and

(b)the results of any calculations, analysis, testing or examination referred to 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 referred to 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 referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

25.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)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.

(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)who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who 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

(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 referred to in paragraph (a), (b), (c), (d) or (e).

Note for this subsection:

For the purposes of paragraph (e), a reasonably foreseeable activity is, for example, inspection, operation, cleaning, maintenance or repair of plant.

(3)The supplier must —

(a)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

(b)ensure that the calculations, analysis, testing or examination have been carried out.

(4)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 referred to 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 referred to in subsection (2)(a) to (e).

(5)The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).

26.Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures

(1)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.

(2)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 —

(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 referred to in paragraph (a), (b) or (c).

26A.Duty of persons conducting businesses or undertakings that provide services relating to work health and safety

(1)In this section —

relevant use, in relation to WHS services, means a use of the WHS services for a purpose for which they are provided;

services includes any products or other things provided as part of services;

use includes the following —

(a)implement;

(b)rely upon;

WHS services —

(a)means services that relate to work health and safety; but

(b)does not include the following —

(i)services provided under this Act by a WHS authority, a health and safety representative (or deputy) or a health and safety committee;

(ii)services provided under a corresponding WHS law by a person or body corresponding to a WHS authority, a health and safety representative (or deputy) or a health and safety committee;

(iii)emergency services provided by police officers, or other emergency services personnel, in situations where there is a serious risk to the health or safety of any individual;

(iv)services that are subject to legal professional privilege or that would be subject to legal professional privilege but for that privilege having been waived.

Note for this definition:

For the purposes of paragraph (a), the services could be, for example, providing any of the following relating to work health and safety —

(a)recommendations or other advice;

(b)testing or analysis;

(c)other information or documents, for example, a report, plan, programme, strategy, guideline or manual;

(d)a training or other educational course.

(2)This section applies to a person (the WHS service provider) who conducts a business or undertaking that provides WHS services —

(a)to a person who conducts another business or undertaking; and

(b)that are to be used, or could reasonably be expected to be used, at, or in relation to, a workplace at which work is carried out for the other business or undertaking.

(3)The WHS service provider must ensure, so far as is reasonably practicable, that the WHS services are provided so that any relevant use of them at, or in relation to, a workplace of the kind referred to in subsection (2)(b) will not put at risk the health and safety of persons who are at the workplace.

Note for this subsection:

The following are examples of cases in which a relevant use of WHS services might put at risk the health and safety of persons who are at a workplace —

(a)a recommendation that is made on how to eliminate risks to health and safety at a workplace is inadequate for that purpose so that when the recommendation is implemented at the workplace the risks are not eliminated;

(b)the testing of plant at a workplace for risks to health and safety fails to identify existing risks so that, when the plant is subsequently operated in reliance on the testing, workers at the workplace are exposed to those existing risks;

(c)a training course for workers about how they can avoid being exposed to risks to their health and safety is inadequate for that purpose so that, when the workers put their training into practice at their workplaces, they are still exposed to the risks.

Division 4 — Duty of officers, workers and other persons

27.Duty of officers

(1)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.

(2)Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part 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.

(3)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 of this Part 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.

(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)to acquire and keep up‑to‑date knowledge of work health and 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 health and 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 or obligation of the person conducting the business or undertaking under this Act; and

(f)to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

Note for this subsection:

For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include, for example, the following —

(a)reporting notifiable incidents;

(b)consulting with workers;

(c)ensuring compliance with notices issued under this Act;

(d)ensuring the provision of training and instruction to workers about work health and safety;

(e)ensuring that health and safety representatives receive their entitlements to training.

28.Duties of workers

While at work, a worker must —

(a)take reasonable care for the worker’s own health and safety; and

(b)take reasonable care that the worker’s acts or omissions do not adversely affect the health and safety of other persons; and

(c)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

(d)cooperate 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)take reasonable care for the person’s own health and safety; and

(b)take reasonable care that the person’s acts or omissions do not adversely affect the health and 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 conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

Division 5 — Offences and penalties

Subdivision 1 — Preliminary

30.Terms used

In this Division —

conduct includes an act or omission;

health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part;

serious harm, in relation to an individual, means an illness or injury that —

(a)endangers, or is likely to endanger, the individual’s life; or

(b)results, or is likely to result, in permanent injury or harm to the individual’s health.

Subdivision 2 — Industrial manslaughter

30A.Industrial manslaughter — crime

(1)A person commits a crime (industrial manslaughter) if —

(a)the person has a health and safety duty as a person conducting a business or undertaking; and

(b)the person engages in conduct that causes the death of an individual; and

(c)the conduct constitutes a failure to comply with the person’s health and safety duty; and

(d)the person engages in the conduct —

(i)knowing that the conduct is likely to cause the death of, or serious harm to, an individual; and

(ii)in disregard of that likelihood.

Penalty for this subsection:

(a)for an individual, imprisonment for 20 years and a fine of $5 000 000;

(b)for a body corporate, a fine of $10 000 000.

(2)A person charged with a crime under subsection (1) may be convicted of a Category 1 offence, a Category 2 offence or a Category 3 offence.

(3)An officer of a person (the PCBU) commits a crime (industrial manslaughter) if —

(a)the PCBU has a health and safety duty as a person conducting a business or undertaking; and

(b)the PCBU engages in conduct that causes the death of an individual; and

(c)the PCBU’s conduct constitutes a failure to comply with the PCBU’s health and safety duty; and

(d)the PCBU’s conduct —

(i)is attributable to any neglect on the part of the officer; or

(ii)is engaged in with the officer’s consent or connivance;

and

(e)the officer engages in the officer’s conduct referred to in paragraph (d)(i) or (ii) —

(i)knowing that the PCBU’s conduct is likely to cause the death of, or serious harm to, an individual; and

(ii)in disregard of that likelihood.

Penalty for this subsection: imprisonment for 20 years and a fine of $5 000 000.

(4)A person charged with a crime under subsection (3) may be convicted of a Category 1 offence, a Category 2 offence or a Category 3 offence.

Subdivision 3 — Other offences and penalties

31.Failure to comply with health and safety duty — Category 1

(1)A person commits an offence (a Category 1 offence) if —

(a)the person has a health and safety duty as a person conducting a business or undertaking; and

(b)the person fails to comply with that duty; and

(c)the failure causes the death of, or serious harm to, an individual.

Penalty for this subsection:

(a)for an individual, imprisonment for 5 years and a fine of $680 000;

(b)for a body corporate, a fine of $3 500 000.

(2)A person commits an offence (a Category 1 offence) if —

(a)the person has a health and safety duty otherwise than as a person conducting a business or undertaking; and

(b)the person fails to comply with that duty; and

(c)the failure causes the death of, or serious harm to, an individual.

Penalty for this subsection:

(a)for an individual, if the offence is committed by the individual as an officer of a person conducting a business or undertaking, imprisonment for 5 years and a fine of $680 000;

(b)for an individual, if paragraph (a) does not apply, imprisonment for 5 years and a fine of $340 000;

(c)for a body corporate, a fine of $3 500 000.

(3)For the purposes of subsections (1)(c) and (2)(c), the failure causes serious harm to an individual if it causes an injury or illness to the individual that —

(a)endangers, or is likely to endanger, the individual’s life; or

(b)results in, or is likely to result in, permanent injury or harm to the individual’s health.

(4)A person charged with a Category 1 offence may be convicted of a Category 2 offence or a Category 3 offence.

32.Failure to comply with health and safety duty — Category 2

(1)A person commits an offence (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 of injury or harm to the individual’s health.

Penalty for this subsection:

(a)for an individual, if the offence is committed by the individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking, a fine of $350 000;

(b)for an individual, if paragraph (a) does not apply, a fine of $170 000;

(c)for a body corporate, a fine of $1 800 000.

(2)A person charged with a Category 2 offence may be convicted of a Category 3 offence.

33.Failure to comply with health and safety duty — Category 3

A person commits an offence (a Category 3 offence) if —

(a)the person has a health and safety duty; and

(b)the person fails to comply with that duty.

Penalty:

(a)for an individual, if the offence is committed by the individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking, a fine of $120 000;

(b)for an individual, if paragraph (a) does not apply, a fine of $55 000;

(c)for a body corporate, a fine of $570 000.

Subdivision 4 — Exceptions

34.Volunteers and unincorporated associations

(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)An unincorporated association does not commit an offence under this Act for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.

(3)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 a failure to comply with a duty under section 28 or 29.

Part 3  Incident notification

35.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.

36.What is a serious injury or illness

(1)In this Part —

serious injury or illness, of a person, means an injury or illness —

(a)that requires the person to have immediate treatment as an in‑patient in a hospital; or

(b)that requires the person to have immediate treatment for —

(i)the amputation of any part of the person’s body; or

(ii)a serious head injury; or

(iii)a serious eye injury; or

(iv)a serious burn; or

(v)the separation of the person’s skin from an underlying tissue (such as degloving or scalping); or

(vi)a spinal injury; or

(vii)the loss of a bodily function; or

(viii)serious lacerations;

or

(c)that requires the person to have treatment by a medical practitioner within 48 hours of exposure to a substance; or

(d)that occurs in a remote location and requires the person to be transferred urgently to a medical facility for treatment; or

(e)that, in the opinion of a medical practitioner, is likely to prevent the person from being able to do the person’s normal work for at least 10 days after the day on which the injury or illness occurs,

and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.

(2)In subsection (1) —

medical practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession.

37.What is a dangerous incident

In this Part —

dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to —

(a)an uncontrolled escape, spillage or leakage of a substance; or

(b)an uncontrolled implosion, explosion or fire; or

(c)an uncontrolled escape of gas or steam; or

(d)an uncontrolled escape of a pressurised substance; or

(e)electric shock; or

(f)the fall or release from a height of any plant, substance or thing; or

(g)the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations; or

(h)the collapse or partial collapse of a structure; or

(i)the collapse or failure of an excavation or of any shoring supporting an excavation; or

(j)the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or

(k)the interruption of the main system of ventilation in an underground excavation or tunnel; or

(l)any other event prescribed by the regulations,

but does not include an incident of a prescribed kind.

38.Duty to notify of notifiable incidents

(1)A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(2)The notice must be given in accordance with this section and by the fastest possible means.

(3)The notice must be given —

(a)by telephone; or

(b)in writing.

Note for this subsection:

The written notice can be given by, for example, facsimile, email or other electronic means.

(4)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.

(5)A written notice must be in a form, or contain the details, approved by the regulator.

(6)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 acknowledgment of receiving the notice.

(7)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.

Penalty for this subsection:

(a)for an individual, a fine of $5 500;

(b)for a body corporate, a fine of $30 000.

39.Duty to preserve incident sites

(1)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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(2)In subsection (1), a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident.

(3)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.

Part 4 — Authorisations

Division 1 — Preliminary

40.Meaning of authorised

In this Part —

authorised means authorised by a licence, permit, registration or other authority (however described) as required by the regulations.

Division 2 — Requirements for authorisations

41.Requirements for authorisation of workplaces

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)the regulations require the workplace or workplaces in that class of workplace to be authorised; and

(b)the workplace is not authorised in accordance with the regulations.

Penalty:

(a)for an individual, a fine of $55 000;

(b)for a body corporate, a fine of $285 000.

42.Requirements for authorisation of plant or substance

(1)A person must not use plant or a substance at a workplace if —

(a)the regulations require the plant or substance or its design to be authorised; and

(b)the plant or substance or its design is not authorised in accordance with the regulations.

Penalty for this subsection:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

(2)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)the regulations require the plant or substance or its design to be authorised; and

(b)the plant or substance or its design is not authorised in accordance with the regulations.

Penalty for this subsection:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

43.Requirements for authorisation of work

(1)A person must not carry out work at a workplace if —

(a)the regulations require 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 in accordance with the regulations.

Penalty for this subsection:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

(2)A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if —

(a)the regulations require 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 in accordance with the regulations.

Penalty for this subsection:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

Division 3 — Other requirements

44.Requirements for prescribed qualifications or experience

(1)A person must not carry out work at a workplace if —

(a)the regulations require 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

(b)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.

Penalty for this subsection:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

(2)A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if —

(a)the regulations require 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

(b)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.

Penalty for this subsection:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

45.Requirement to comply with conditions of authorisation

A person must comply with the conditions of any authorisation given to that person under the regulations.

Penalty:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

Division 4 — Use of automated electronic systems for functions relating to authorisations

45A.Preliminary

(1)In this Division —

authorisation function means a power or function of the regulator under an authorisation provision;

authorisation provision means a regulation made under Schedule 2 clause 7.

Note for this definition:

Schedule 2 sets out matters in relation to which regulations may be made under this Act — see section 276(2).

(2)Nothing in this Division limits the way in which, apart from this Division, the regulator may —

(a)make any decision; or

(b)otherwise exercise any power or perform any function; or

(c)do anything else that relates to —

(i)making any decision; or

(ii)otherwise exercising any power or performing any function.

45B.Use of automated electronic systems under authorisation provisions

(1)The regulator may make arrangements for an automated electronic system to do 1 or more of the following —

(a)make any decision that the regulator must, or may, make under an authorisation provision;

(b)otherwise exercise or perform any authorisation function;

(c)do anything else (a related thing) that relates to —

(i)making any decision of the kind referred to in paragraph (a); or

(ii)otherwise exercising or performing any authorisation function.

(2)The regulator may make arrangements under subsection (1) only if —

(a)the automated electronic system is under the regulator’s control; and

(b)the regulator is satisfied that the system has the capacity, with reasonable reliability, to do the following —

(i)make any decision to which the arrangements apply;

(ii)otherwise exercise or perform any authorisation function to which the arrangements apply;

(iii)do any related thing to which the arrangements apply.

(3)If an automated electronic system makes a decision, otherwise exercises or performs an authorisation function or does a related thing under subsection (1), the regulator is taken to have made the decision, otherwise exercised or performed the authorisation function or done the related thing.

(4)Without limiting subsection (3), a person has the same rights (if any) to apply for a review under Part 12, or to apply for judicial review or any other remedy, as the person would have had if the decision had actually been made, the authorisation function had actually been exercised or performed or the related thing had actually been done by the regulator.

(5)The regulator must ensure that details of any arrangements made under subsection (1), and any variation or revocation of the arrangements, are published as soon as practicable —

(a)in the Gazette; and

(b)on the regulator’s website.

(6)The details must identify —

(a)the automated electronic system; and

(b)any decision, authorisation function or related thing to which the arrangements apply.

(7)The use of an automated electronic system under subsection (1) is not invalid just because there is a failure to comply with subsections (5) and (6).

45C.Replacing decision made by automated electronic system or re‑exercising or re‑performing authorisation function

(1)Subsection (2) applies if a decision (the automated decision) is made by an automated electronic system under section 45B(1)(a).

(2)The regulator may replace the automated decision with a new decision if the new decision —

(a)could have been made under the authorisation provision in question; and

(b)is more favourable to the affected person.

(3)Subsection (4) applies if an authorisation function is exercised or performed by an automated electronic system under section 45B(1)(b).

(4)The regulator may re‑exercise or re‑perform the authorisation function in a way —

(a)in which the authorisation function could have been exercised or performed under the authorisation provision in question; and

(b)that is more favourable to the affected person.

(5)Nothing in this section requires the regulator to replace a decision or to re‑exercise or re‑perform an authorisation function.

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.

Penalty:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

Division 2 — Consultation with workers

47.Duty to consult workers

(1)The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, 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.

Penalty for this subsection:

(a)for an individual, a fine of $25 000;

(b)for a body corporate, a fine of $115 000.

(2)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.

(3)The agreed procedures must not be inconsistent with section 48.

48.Nature of consultation

(1)Consultation under this Division requires —

(a)that relevant information about the matter is shared with workers; and

(b)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

(c)that the views of workers are taken into account by the person conducting the business or undertaking; and

(d)that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2)If the workers are represented by a health and safety representative —

(a)the consultation must involve the health and safety representative so far as is reasonably practicable; and

(b)without limiting paragraph (a), the person conducting the business or undertaking must make all reasonable efforts to carry out the consultation at times and places, or otherwise in ways, that are convenient for both the workers and the health and safety representative.

49.When consultation is required

Consultation under this Division is required in relation to the following health and safety matters —

(a)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;

(b)when making decisions about ways to eliminate or minimise those risks;

(c)when making decisions about the adequacy of facilities for the welfare of workers;

(d)when proposing changes that may affect the health or safety of workers;

(e)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

(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;

(f)when carrying out any other activity prescribed by the regulations for the purposes of this section.

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

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

51.Determination of work groups

(1)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.

(2)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.

(3)A work group may be determined for workers at 1 or more workplaces.

52.Negotiations for determination of work group

(1)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.

(2)The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after the day on which a request is made under section 50.

(3)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.

(4)The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.

(5)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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(6)The regulations 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.

53.Notice to workers

(1)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.

Penalty for this subsection:

(a)for an individual, a fine of $2 500;

(b)for a body corporate, a fine of $12 500.

(2)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.

Penalty for this subsection:

(a)for an individual, a fine of $2 500;

(b)for a body corporate, a fine of $12 500.

54.Failure of negotiations

(1)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.

(2)An inspector appointed under subsection (1) may decide —

(a)the matters referred to 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).

(3)For the purposes of 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 the day on which —

(i)a request is made under section 50; or

(ii)a party to the agreement requests the variation of the agreement;

or

(b)agreement cannot 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, in accordance with 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 —

(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.

(2)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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(3)If agreement cannot 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.

(4)The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.

57.Notice to workers

(1)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.

Penalty for this subsection:

(a)for an individual, a fine of $2 500;

(b)for a body corporate, a fine of $12 500.

(2)A 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.

Penalty for this subsection:

(a)for an individual, a fine of $2 500;

(b)for a body corporate, a fine of $12 500.

58.Withdrawal from negotiations or agreement involving multiple businesses

(1)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.

(2)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 in accordance with 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 avoid doubt, 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

A worker is —

(a)eligible to be elected as a health and safety representative for a work group only if the worker is a member of that work group; and

(b)not eligible to be elected as a health and safety representative if the worker is disqualified under section 65 from being a health and safety representative.

61.Procedure for election of health and safety representatives

(1)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.

(2)However, an election must comply with the procedures (if any) prescribed by the regulations.

(3)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.

(4)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 by the regulations to enable elections to be conducted.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

62.Eligibility to vote

(1)A health and safety representative for a work group is to be elected by members of that work group.

(2)All workers in a work group are entitled to vote for the election of a health and safety representative for that work group.

63.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 candidate is to be taken to have been elected as a health and safety representative for the work group.

64.Term of office of health and safety representative

(1)A health and safety representative for a work group holds office for 3 years.

(2)However, a person ceases to hold office as a health and safety representative for a work group if —

(a)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

(b)the person ceases to be a worker in the work group for which the person was elected as a health and safety representative; or

(c)the person is disqualified under section 65 from acting as a health and safety representative; or

(d)the person is removed from that position by a majority of the members of the work group in accordance with the regulations.

(3)A health and safety representative is eligible for re‑election.

65.Disqualification of health and safety representatives

(1)An application may be made to the Tribunal to disqualify a health and safety representative on the ground that the representative has —

(a)exercised a power or performed a function as a health and safety representative for an improper purpose; or

(b)used or disclosed any information that they acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.

(2)The following persons may make an application under this section —

(a)any person adversely affected by —

(i)the exercise of a power or the performance of a function referred to in subsection (1)(a); or

(ii)the use or disclosure of information referred to in subsection (1)(b);

(b)the regulator.

(3)If the Tribunal is satisfied that a ground in subsection (1) is made out, the Tribunal may disqualify the health and safety representative for a specified period or indefinitely.

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

(1)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.

(2)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 —

(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 the deputy 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 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 —

(a)to represent the workers in the work group in matters relating to work health and safety; and

(b)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

(c)to investigate complaints from members of the work group relating to work health and safety; and

(d)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.

(2)In exercising a power or performing a function, the health and safety representative may —

(a)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

(b)accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works; and

(c)with the consent of a worker that the health and safety representative represents, 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

(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 for this subsection:

A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices.

(3)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.

(3A)If a person assisting a health and safety representative under subsection (2)(g) requires access to the workplace to provide the assistance, the health and safety representative must give notice of the assistant’s proposed entry to —

(a)the person conducting the business or undertaking for whom the representative’s work group carries out the work at the workplace; and

(b)the person with management or control of the workplace.

(3B)A notice under subsection (3A) must —

(a)comply with the regulations; and

(b)be given during the usual working hours at the workplace at least 24 hours, but not more than 14 days, before the assistant’s entry.

(4)Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

69.Powers and functions generally limited to the particular work group

(1)A health and safety representative for a work group (the relevant work group) may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in the relevant work 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)a business or undertaking to which the relevant work group relates; or

(b)any other business or undertaking if any of the workers in the work group carry out work at a workplace at which any of the workers in the relevant work group also carry out work.

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 representative, for the purpose of ensuring the health and safety of the workers in the work group; and

(c)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

(d)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

(e)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

(f)provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise the representative’s powers and perform the representative’s functions under this Act; and

(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 by the regulations.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(2)The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise the representative’s powers and perform the representative’s functions under this Act.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(3)Any time that a health and safety representative spends for the purposes of exercising the representative’s powers or performing the representative’s functions under this Act must be with the pay that the representative would otherwise be entitled to receive for performing the representative’s normal duties during that period.

71.Exceptions from obligations under section 70(1)

(1)This section applies despite section 70(1).

(2)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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(3)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 referred to in section 70(1)(g).

(4)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 the assistant’s IR entry authority revoked; or

(b)during any period that the assistant’s IR entry authority is suspended.

(5)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.

(5A)The reasonable grounds under subsection (5) include the failure of the health and safety representative to give notice under section 68(3A).

(6)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.

72.Obligation to train health and safety representatives

(1)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 Work Health and Safety Commission; and

(b)a course that the health and safety representative is required under the regulations to attend; and

(c)chosen by the health and safety representative.

(2)The person conducting the business or undertaking must —

(a)as soon as practicable within the period of 3 months after the day on which 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.

(3)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.

(4)Any time that a health and safety representative is given off work to attend the course of training must be with the pay that the representative would otherwise be entitled to receive for performing the representative’s normal duties during that period.

(5)If agreement cannot 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 that subsection, either party may ask the regulator to appoint an inspector to decide the matter.

(6)The inspector may decide the matter in accordance with this section.

(7)The person conducting the business or undertaking must then —

(a)allow the health and safety representative to attend the course of training at the time decided by the inspector; and

(b)pay the costs decided by the inspector.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

73.Obligation to share costs if multiple businesses or undertakings

(1)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 referred to 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.

(2)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.

74.List of health and safety representatives

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)a copy 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 manner that is readily accessible to workers in the relevant work group or work groups.

Penalty:

(a)for an individual, a fine of $2 500;

(b)for a body corporate, a fine of $12 500.

Division 4 — Health and safety committees

75.Health and safety committees

(1)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 the day on which the person is requested to do so by —

(i)a health and safety representative for a work group of workers carrying out work at that workplace; or

(ii)5 or more workers at that workplace;

or

(b)if required by the regulations to do so, within the time prescribed by the regulations.

Penalty for this subsection:

(a)for an individual, a fine of $5 500;

(b)for a body corporate, a fine of $30 000.

(2)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 for this section:

If a health and safety committee is not required to be established, other consultation procedures can be established for a workplace — see Division 2 of this Part.

76.Constitution of committee

(1)Subject to subsections (2) to (6), 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.

(2)If there is a health and safety representative at a workplace, that representative, if they consent, is a member of the committee.

(3)If there are 2 or more health and safety representatives at a workplace, those representatives may choose 1 or more of their number (who consent) to be members of the committee.

(4)At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking.

(5)At least 1 member of the committee must be a representative of the person conducting the business or undertaking who has sufficient authority within the business or undertaking to ensure that the duties under section 79 are complied with in relation to the committee.

(6)If the person conducting the business or undertaking is an individual, the requirement of subsection (5) can be met by that person being a member of the committee.

(7)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.

(8)An inspector appointed on a request under subsection (7) may decide the constitution of the health and safety committee or that the committee should not be established.

(9)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 by the regulations or agreed between the person conducting the business or undertaking and the committee.

78.Meetings of committee

A health and safety committee must meet —

(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.

79.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 perform functions as a member of the committee.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(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 the member would otherwise be entitled to receive for performing the member’s 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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(5)The person conducting a business or undertaking must, without unreasonable delay —

(a)consider any recommendation or other decision made by the health and safety committee within the scope of the committee’s functions that requires the person’s agreement if it is to be implemented; and

(b)provide a response to the committee stating the extent to which the person agrees to the implementation of the recommendation or other decision; and

(c)if the person agrees to the implementation of the recommendation or other decision (wholly or partly), take any action required to be taken by the person for the purposes of the implementation.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(6)The person conducting a business or undertaking must not unreasonably withhold the person’s agreement to the implementation of a recommendation or other decision referred to in subsection (5)(a) (wholly or partly).

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

Division 5 — Issue resolution

80.Parties to an issue

(1)For the purposes of this Division, the following persons are parties to an issue —

(a)any person conducting a business or undertaking that is involved in the issue;

(b)any representative of a person or persons referred to in paragraph (a) who is representing the person or persons in relation to the issue;

(c)any worker affected by the issue;

(d)any representative of a worker or workers referred to in paragraph (c) who is representing the worker or workers in relation to the issue.

(2)A person conducting a business or undertaking must ensure that the person’s representative referred to in subsection (1)(b) (if any) —

(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

(1)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.

(2)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 in the regulations.

(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.

82.Referral of issue to regulator for resolution by inspector

(1)Despite section 81, a party to an issue may ask the regulator to appoint an inspector to make a decision resolving the issue.

(2)The request does not prevent —

(a)a worker from exercising the right under Division 6 of this Part to cease work; or

(b)a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part to cease work.

(3)No later than 2 days after the day on which the request is made, an inspector must make a decision resolving the issue.

(4)The inspector’s decision is taken to be a resolution of the issue agreed by the parties under section 81(2).

(5)Despite subsection (3), the regulator may refuse the request if the regulator is not satisfied that the party making the request, or any other party whom the party making the request represents, has made reasonable efforts to achieve a resolution of the issue under section 81(2).

(6)Subsection (3) is also subject to section 82A.

82A.Extension of deadline for making decision resolving issue

(1)If the deadline set by section 82(3) is not practicable in relation to a request under section 82(1), the regulator must apply to the Tribunal to set a new deadline, and the Tribunal may set a new deadline that it considers to be practicable.

(2)The regulator’s application must be made as soon as the regulator realises that the deadline is not practicable or that no decision has been made within the deadline.

(3)Before setting a new deadline, the Tribunal must give any party to the issue who wants to make submissions on the matter an opportunity to do so.

Division 6 — Right to cease or direct cessation of unsafe work

83.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.

84.Right of worker to cease unsafe work

(1)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 —

(a)the worker to a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard; or

(b)any other person to a serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard.

(2)A police officer must not cease, or refuse to carry out, work under this section if the ceasing, or refusal to carry out, work would affect adversely, or could reasonably be expected to affect adversely, a covert operation or a dangerous operation.

85.Health and safety representative may direct that unsafe work cease

(1)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.

Note for this subsection:

If the health and safety representative’s concern relates to 2 or more workers in the work group, a single direction to cease work may be given to all or some of those workers as a group.

(2)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 worker is carrying out work; and

(b)attempting to resolve the matter as an issue under Division 5 of this Part.

(3)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 of this Part if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

(4)The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).

(5)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 a worker under this section.

(6)A health and safety representative cannot give a direction under this section unless the representative has —

(a)completed initial training prescribed by the regulations referred to 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.

(7)A health and safety representative cannot give a direction under this section if compliance with the direction would affect adversely, or could reasonably be expected to affect adversely, a covert operation or a dangerous operation.

86.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.

87.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.

88.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.

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 assist in resolving an issue arising in relation to the cessation of work.

Note for this section:

The issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work.

89A.Referral of issue about application of section 88 to Tribunal

If there is an issue about whether section 88 applies to a worker, or about how that section is to be applied to a worker, the worker, or the worker’s union, may apply to the Tribunal to resolve the issue (whether or not an inspector has been appointed under section 89 in relation to the issue).

Division 7 — Provisional improvement notices

90.Provisional improvement notices

(1)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.

(2)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.

(3)However, the health and safety representative must not issue a provisional improvement notice to a person unless the representative has first consulted the person.

(4)A health and safety representative cannot issue a provisional improvement notice unless the representative has —

(a)completed initial training prescribed by the regulations referred to 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.

(5)A health and safety representative cannot 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)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

(b)the provision the representative believes is being, or has been, contravened; and

(c)briefly, how the provision is being, or has been, contravened; and

(d)the day, no earlier than the 8th day after the day on which the notice is issued, by which the person is required to remedy the contravention or likely contravention.

93.Provisional improvement notice may include recommendations to remedy contravention

(1)A provisional improvement notice may include recommendations concerning the measures that may be taken to remedy the contravention, prevent the likely contravention, or the matters causing the contravention or likely contravention, to which the notice relates.

(2)It is not an offence to fail to comply with the recommendations in a notice.

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 in accordance with 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.

Penalty for this subsection:

(a)for an individual, a fine of $5 500;

(b)for a body corporate, a fine of $30 000.

(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.

Penalty for this subsection:

(a)for an individual, a fine of $5 500;

(b)for a body corporate, a fine of $30 000.

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, subject to section 100(4).

(2)The person must comply with the provisional improvement notice within the time specified in the notice.

Penalty for this subsection:

(a)for an individual, a fine of $55 000;

(b)for a body corporate, a fine of $285 000.

100.Request for review of provisional improvement notice

(1)Within 7 days after the day on which 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.

(2)A person who makes a request under subsection (1) must, as soon as practicable, inform the health and safety representative of the request.

(3)Subsection (4) applies if a person has —

(a)made a request under subsection (1); and

(b)informed the health and safety representative of the request or taken all reasonable steps to do so.

(4)The operation of the provisional improvement notice is stayed until the inspector makes a decision on the review.

101.Inspector to review notice

(1)If a request is made under section 100, an inspector must, as soon as practicable, review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice.

(2)An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired.

102.Decision of inspector on review of provisional improvement notice

(1)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.

(2)The inspector must give a copy of the inspector’s decision to —

(a)the applicant for the review of the provisional improvement notice; and

(b)the health and safety representative who issued the notice.

(3)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.

Division 8 — Part not to apply to prisoners

103.Part does not apply to prisoners

(1)In this section —

lock‑up, prison and prisoner have the meanings given in the Prisons Act 1981 section 3(1).

(2)Nothing in this Part applies to a worker who is in custody in a prison or lock‑up, as a prisoner or otherwise.

Part 6 — Discriminatory, coercive and misleading conduct

Division 1 — Prohibition on discriminatory, coercive or misleading conduct

104.Prohibition on discriminatory conduct

(1)A person must not engage in discriminatory conduct for a prohibited reason.

Penalty for this subsection:

(a)for an individual, a fine of $115 000;

(b)for a body corporate, a fine of $570 000.

(2)A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct.

Note for this section:

Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.

105.What is discriminatory conduct

(1)For the purposes of 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 the worker’s 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 the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.

106.What is a prohibited reason

Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person referred to 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

(b)undertakes, has undertaken or proposes to undertake another role under this Act; or

(c)exercises a power or performs a function, 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

(d)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

(e)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

(f)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

(g)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

(h)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 holder of an IR entry authority; or

(iv)a health and safety representative; or

(v)a member 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

(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

(j)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.

Penalty:

(a)for an individual, a fine of $115 000;

(b)for a body corporate, a fine of $570 000.

Note for this section:

Civil proceedings may be brought under Division 3 of this Part 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.

Penalty for this subsection:

(a)for an individual, a fine of $115 000;

(b)for a body corporate, a fine of $570 000.

Note for this subsection:

Civil proceedings may be brought under Division 3 of this Part in relation to a contravention of this subsection.

(2)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.

(3)To avoid doubt, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person.

109.Misrepresentation

(1)A person must not knowingly 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.

Penalty for this subsection:

(a)for an individual, a fine of $115 000;

(b)for a body corporate, a fine of $570 000.

(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

Division 2 — Criminal proceedings in relation to discriminatory conduct

110.Proof of discriminatory conduct

(1)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 referred to in section 106(a) to (j) existed at the time the discriminatory conduct was engaged in; and

(c)adduces evidence that the discriminatory conduct was engaged in for a prohibited reason.

(2)The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves, on the balance of probabilities, that the reason was not the dominant reason for the conduct.

(3)To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof.

111.Order for compensation or reinstatement

If a person is convicted or found guilty of an offence under section 104 or 107, the court may (in addition to imposing a penalty) make either or both of the following orders as part of the sentence —

(a)an order that the offender pay (within a specified 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 their former position or, if that position is not available, in a similar position; or

(ii)the person be employed in the position for which they had applied or a similar position.

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

(1)An eligible person may apply to the Tribunal for an order under this section.

(2)The Tribunal may make 1 or more of the orders set out in subsection (3) in relation to a person who has —

(a)engaged in discriminatory conduct for a prohibited reason; or

(b)requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or

(c)contravened section 108.

(3)For the purposes of subsection (2), the orders that the Tribunal may make are —

(a)in the case of conduct referred to in subsection (2)(a) or (b), an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the Tribunal considers appropriate; or

(b)in the case of conduct referred to 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 their former position or, if that position is not available, in a similar position; or

(ii)the prospective worker be employed in the position for which they had applied or a similar position;

or

(c)any other order that the Tribunal considers appropriate.

(4)For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct.

(5)Nothing in this section is to be construed as limiting any other power of the Tribunal.

(6)For the purposes of 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 referred to in paragraph (a).

113.Procedure for civil actions for discriminatory conduct

(1)A proceeding brought 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.

(2)In a proceeding under section 112 in relation to conduct referred to 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.

(3)It is a defence to a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) if the defendant proves that —

(a)the conduct was reasonable in the circumstances; and

(b)a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law.

(4)To avoid doubt, 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

(1)The making of an order in a proceeding under section 112 in relation to conduct referred to 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.

(2)If the Tribunal makes an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b), the court cannot make an order under section 111 in a proceeding for an offence under section 104 or 107 in relation to the same conduct.

(3)If the court makes an order under section 111 in a proceeding for an offence under section 104 or 107, the Tribunal cannot make an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b) that is the same conduct.

115.Prohibition on multiple actions

A person cannot —

(a)commence a proceeding under Division 3 of this Part 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 or Territory and that proceeding, application or complaint has not been withdrawn; or

(b)recover any compensation under Division 3 of this Part if the person has received compensation for the matter under a law of the Commonwealth or a State or Territory; or

(c)commence or continue an application under Division 3 of this Part if the person has failed in a proceeding, application or complaint in relation to the same matter under a law of the Commonwealth or a State or Territory, other than a proceeding, application or complaint relating to workers’ compensation.

Part 7 — Not used

Division 1 — Not used

116.Not used

Division 2 — Not used

117.Not used

118.Not used

119.Not used

120.Not used

Division 3 — Not used

121.Not used

122.Not used

Division 4 — Not used

123.Not used

124.Not used

125.Not used

126.Not used

127.Not used

128.Not used

129.Not used

130.Not used

Division 5 — Not used

131.Not used

132.Not used

133.Not used

134.Not used

135.Not used

136.Not used

137.Not used

138.Not used

139.Not used

140.Not used

Division 6 — Not used

141.Not used

142.Not used

143.Not used

Division 7 — Not used

144.Not used

145.Not used

146.Not used

147.Not used

148.Not used

Division 8 — Not used

149.Not used

150.Not used

151.Not used

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 investigate and report on matters relating to work health and safety, including particular types of hazards and matters relating to particular industries or particular businesses or undertakings;

(d)to provide advice and information on work health and safety to duty holders under this Act and to the community;

(e)to collect, analyse and publish statistics relating to work health and safety;

(f)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;

(g)to promote and support education and training on matters relating to work health and safety;

(h)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;

(i)to conduct and defend proceedings under this Act before a court or tribunal;

(j)any other function conferred on the regulator by this Act.

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 its 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, by instrument in writing, delegate to any person a power or function under this Act other than this power of delegation.

(2)A delegation under this section —

(a)may be made subject to such conditions as the regulator thinks fit; and

(b)is revocable at will; and

(c)does not derogate from the power of the regulator to act.

Division 2 — Powers of regulator to obtain information and require independent reports

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)The regulator may, by written notice given to the person, require the person to do 1 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 manner specified in the notice, that information of which the person has knowledge;

(b)to provide to the regulator, in accordance with the notice, those documents;

(c)to appear before a person appointed by the regulator at a reasonable time and place determined by that person and do whichever of the following is specified in the notice —

(i)give that evidence orally;

(ii)give that evidence in writing;

(iii)provide those documents.

(3)The notice must —

(a)state that the requirement is made under this section; and

(b)contain a statement to the effect that a failure to comply with a requirement is an offence; and

(c)if the notice requires the person to provide information or documents or answer questions — contain a statement about the effect of sections 172 and 269 and, if relevant, section 155A(5) and (6).

(4)The powers under subsection (2)(b) and (c)(iii) include (without limitation) the power to require that a copy or reproduction of a document be provided in the form set out in the notice (in addition to, or instead of, the document itself).

(5)Without limiting subsections (1) and (2), a notice may be given to a person, and a requirement stated in a notice applies to the person to whom the notice is given, even if any of the following is the case —

(a)the person is outside the State;

(b)any relevant document is outside the State;

(c)any relevant information, document or evidence relates to a matter occurring outside the State.

(6)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(7)Subsection (6) places an evidential burden on the accused to show a reasonable excuse.

(8)Section 172 (with any necessary changes) applies to a requirement under this section.

155A.Supplementary provisions relating to appearances

(1)The regulator must not make a requirement under section 155(2)(c) unless the regulator has taken all reasonable steps to obtain the information under section 155(2)(a) and (b) and has been unable to do so.

(2)Before determining the time and place for an appearance under section 155(2)(c), the person before whom the appearance is to be made must make reasonable efforts to agree that time and place with the person who is required to appear.

(3)An appearance under section 155(2)(c) may be recorded in any way the person before whom the appearance is made considers appropriate.

Note for this subsection:

An appearance may be recorded, for example, using audio, audiovisual or other electronic means.

(4)If an appearance is to be recorded under subsection (3), the person before whom the appearance is to be made must, beforehand, inform the person who is required to appear —

(a)that the recording will be done; and

(b)of the way in which the recording will be done.

(5)A person (the witness) who is required to appear under section 155(2)(c) may appear with a legal practitioner nominated by the witness, and approved by the regulator, for the purposes of the appearance.

(6)The regulator must approve any legal practitioner nominated by the witness unless the regulator —

(a)has reasonable grounds to believe that —

(i)the legal practitioner, or any other legal practitioner in the legal practitioner’s firm, represents 1 or more other persons who have an interest in the matter to which the witness’s appearance relates; and

(ii)for that reason, approving the legal practitioner would undermine the purpose of the witness’s appearance;

or

(b)has other reasonable grounds for withholding approval.

155B.Power of regulator to require independent report

(1)The regulator may, by written notice given to a person conducting a business or undertaking, require that person to procure, and provide to the regulator, a report in accordance with subsection (2) —

(a)that relates to work health and safety at any workplace of the business or undertaking, generally or in relation to a particular matter; or

(b)without limiting paragraph (a), that relates to a particular accident or other occurrence at any workplace of the business or undertaking.

(2)The report must —

(a)be prepared by a suitably qualified person who is independent of the person conducting the business or undertaking and who is approved by the regulator; and

(b)include any contents required by the regulator’s notice; and

(c)be provided to the regulator as soon as is reasonably practicable and, in any event, within any period specified in the regulator’s notice; and

(d)otherwise comply with any prescribed requirements.

(3)The regulator’s notice must state the regulator’s reasons for requiring the report.

(4)A person to whom a notice is given under this section must not, without reasonable excuse, refuse or fail to comply with the requirement imposed by the notice.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(5)Subsection (4) places an evidential burden on the accused to show a reasonable excuse.

155C.Powers to copy and retain documents

(1)The regulator may —

(a)make copies or reproductions of, or take extracts from, a document provided to, or otherwise obtained, accessed or recovered by, the regulator under this Act; and

(b)keep that document for the period that the regulator considers necessary.

(2)While the regulator retains custody of the original of a document, the regulator must permit the following persons to inspect, or make copies of, the original document at all reasonable times —

(a)the person who provided the original document or from whom it was obtained;

(b)the owner of the original document;

(c)a person authorised in writing by a person referred to in paragraph (a) or (b) on the production of the written authorisation to the regulator.

Part 9 — Securing compliance

Division 1 — Appointment of inspectors

156.Appointment of inspectors

The regulator may, by instrument, appoint any of the following as an inspector —

(a)a public service officer;

(b)an officer or employee of a public corporation;

(c)the holder of a statutory office or an employee of the holder of a statutory office;

(d)a person who is appointed as an inspector under a corresponding WHS law;

(e)a person in a prescribed class of persons.

157.Identification of inspectors

(1)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 by the regulations.

(2)When exercising compliance powers, an inspector must, on request, identify themselves —

(a)by producing their identity card for inspection; or

(b)in another way prescribed by the regulations.

(3)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.

158.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.

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;

(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;

(f)to carry out investigations for the purposes of the regulator’s function under section 152(c).

161.Conditions on inspectors’ compliance powers

An inspector’s compliance powers are subject to any conditions specified in the instrument of the inspector’s appointment.

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 specified matter or specified class of matter.

Division 3 — Powers relating to entry

Subdivision 1 — General powers of entry

163.Powers of entry

(1)An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace.

(2)An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace.

(3)If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately.

Note for this section:

An inspector may enter residential premises to gain access to a workplace (see section 170(c)).

164.Notification of entry

(1)An inspector may enter a place under section 163 without prior notice to any person.

(2)An inspector must, as soon as practicable after entry to a workplace or suspected workplace under section 163, 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.

(3)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.

(4)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 under section 163

(1)An inspector who enters a workplace under section 163 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, testing or examination a sample of any substance or thing without paying for it;

(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.

(2)A person required to give reasonable help under subsection (1)(f) must not refuse or fail to comply with the requirement.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

166.Persons assisting inspectors

(1)A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 163 to assist the inspector if the inspector considers the assistance is necessary.

(2)The assistant —

(a)may do the things at the place and in the manner 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.

(3)Anything done lawfully by the assistant is taken to have been done by the inspector.

Subdivision 2 — Entry warrants

166A.Terms used

(1)In this Subdivision —

remote communication means any way of communicating at a distance, including by telephone, facsimile, radio, videoconferencing, email or other electronic means.

(2)A reference in this Subdivision to making an application includes giving information in support of the application.

166B.Entry to places under entry warrant

An inspector may enter any place if the entry is authorised by an entry warrant issued under this Subdivision.

167.Applying for and issuing entry warrant

(1)An inspector may apply to a JP for an entry warrant authorising entry to a place.

(2)The application must be made in person, subject to section 167A.

(3)The application must —

(a)be made on oath and in writing; and

(b)contain a description of the place to be entered; and

(c)state the grounds on which the entry warrant is sought; and

(d)contain any other prescribed information.

(4)The JP may issue an entry warrant authorising entry to the place if satisfied —

(a)that there are reasonable grounds for suspecting that there is a thing or activity at the place that —

(i)is, or may be evidence of, an offence against this Act; or

(ii)may contain or provide, or enable access to or the recovery of, evidence of an offence against this Act;

or

(b)that the issue of the warrant is reasonably necessary to enable an inspector to exercise compliance powers.

(5)The entry warrant must contain the following information —

(a)a description of the place to be entered;

(b)the purpose for which the warrant is issued;

(c)a description of any thing, or class of things, to which section 167C(1)(f) applies;

(d)a description of any document, or class of documents, to which section 167C(1)(i) applies;

(e)the hours of the day or night when the place may be entered;

(f)the period, not exceeding 30 days, during which the warrant may be executed;

(g)the name of the JP who issued the warrant;

(h)the date and time when the warrant was issued.

(6)The entry warrant must be in the prescribed form.

167A.Use of remote communication

(1)An inspector may apply to a JP for an entry warrant using remote communication if the inspector reasonably considers it necessary to do so because of —

(a)urgent circumstances; or

(b)other special circumstances.

Note for this subsection:

For the purposes of paragraph (b), an example of special circumstances is the inspector’s remote location.

(2)The application —

(a)cannot be made before the inspector prepares the written application complying with section 167(3); but

(b)may be made before the oath is administered for the application.

(3)The JP may issue the entry warrant (the original warrant) only if the JP is satisfied that —

(a)it was necessary for the application to be made under this section; and

(b)the way the application was made was appropriate.

(4)After the JP issues the original warrant —

(a)the JP must immediately give a copy of the original warrant to the inspector using remote communication if that is reasonably practicable to do; or

(b)otherwise —

(i)the JP must tell the inspector the information referred to in section 167(5); and

(ii)the inspector must complete a form of warrant, including by writing on it the information referred to in section 167(5).

(5)The copy of the original warrant referred to in subsection (4)(a), or the form of warrant completed under subsection (4)(b), is a duplicate of, and has the same force and effect as, the original warrant.

(6)The inspector must, as soon as is reasonably practicable, send to the JP —

(a)the written application complying with section 167(3) (with the oath administered); and

(b)if the inspector completed a form of warrant under subsection (4)(b) — the completed form of warrant.

(7)On receiving any document under subsection (6), the JP must attach it to the original warrant.

(8)Despite subsection (5), if —

(a)an issue arises in a proceeding about whether anything done was authorised because of an entry 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 thing done to prove that it was authorised because of an entry warrant.

167B.Effect and execution of entry warrant

(1)An entry warrant has effect according to its content and this section.

(2)An entry warrant comes into force when it is issued by the JP.

(3)An entry warrant authorises the inspector executing the warrant to enter the place described in the warrant during the period of the warrant.

(4)An entry warrant may be executed by the inspector to whom it is issued or by any other inspector.

(5)An inspector executing an entry warrant at a place must, at the reasonable request of a person at the place, produce the warrant or a copy of it.

(6)An inspector (including an assistant under section 167D) may use force, other than force against a person, that is reasonably necessary in the circumstances when executing an entry warrant.

(7)An inspector executing an entry warrant may call on the assistance of a police officer who, in providing assistance, may use force, including force against a person, that is reasonably necessary in the circumstances.

167C.General powers when executing entry warrant

(1)An inspector who enters a place under an entry warrant may, for the purpose for which the warrant is issued and otherwise subject to the contents of the warrant, do all or any of the following —

(a)inspect, examine and make inquiries at the place;

(b)inspect and examine anything (including a document) at the place;

(c)bring to the place 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, testing or examination a sample of any substance or thing without paying for it;

(f)search at the place for any thing, or any class of things, to which this paragraph applies as stated in the warrant under section 167(5)(c);

(g)require a person at the place to give the inspector reasonable help to exercise the inspector’s powers under paragraphs (a) to (f);

(h)make any reasonable use of any equipment, facilities or services at the place and for that purpose —

(i)operate the equipment or facilities;

(ii)require a person at the place to do anything that is reasonable and necessary to facilitate that use;

(i)if the inspector reasonably suspects that any document, or any document of a class, to which this paragraph applies as stated in the warrant under section 167(5)(d) is stored on, or can be accessed or recovered from, a computer or other device at the place (the device) —

(i)access and operate the device to search for, access, recover, download, print out, copy or reproduce the document;

(ii)require any person at the place who has, or appears to have, control of the device, or knowledge of how the device can be accessed or operated, to give the inspector any code, password or other information that is reasonable and necessary for accessing or operating the device as referred to in subparagraph (i);

(j)exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of this Act.

(2)A person on whom a requirement is imposed under subsection (1)(g) must not refuse or fail to comply with the requirement.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(3)A person on whom a requirement is imposed under subsection (1)(h)(ii) or (i)(ii) must not, without reasonable excuse, refuse or fail to comply with the requirement.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(4)Subsection (3) places an evidential burden on the accused to show a reasonable excuse.

167D.Persons assisting inspectors

(1)A person (the assistant), including an interpreter, may accompany an inspector entering a place under an entry warrant to assist the inspector if the inspector considers the assistance is necessary.

(2)The assistant —

(a)may do the things at the place and in the manner 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.

(3)Anything done lawfully by the assistant is taken to have been done by the inspector.

168.Not used

169.Not used

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 a person who —

(i)has apparent management or control of the part of the place used only for residential purposes; or

(ii)is apparently an occupier of that part of the place;

or

(b)under the authority conferred by an entry warrant issued under Subdivision 2; or

(c)for the purpose only of gaining access to a suspected workplace, 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.

Division 4 — Powers relating to documents and information

171.Power to require documents and answers to questions

(1)An inspector may, for the purposes of this Act, do the following (after entering a place under Division 3 or at any other time) —

(a)require a person to tell an inspector who has custody of, or access to, a document;

(b)require a person who has custody of, or access to, a document to provide that document, or a copy or reproduction of that document, to an inspector —

(i)while the inspector is at a place entered under Division 3; or

(ii)within a specified period;

(c)require a person —

(i)to submit to an interview with an inspector at a reasonable time and place, and in the way, determined by that inspector; and

(ii)to answer any questions put by that inspector during the interview; and

(iii)if and as directed by that inspector, to verify any answers given by statutory declaration;

(d)require a person —

(i)to answer, within a specified period and in a specified way, any questions put by an inspector otherwise than by way of an interview; and

(ii)if and as directed by that inspector, verify any answers given by statutory declaration.

Notes for this subsection:

1.For the purposes of paragraph (c)(i), an interview may be conducted, for example, face‑to‑face or by telephone or by using audiovisual or other electronic means.

2.For the purposes of paragraph (d)(i), questions may be put and answers required to be given, for example, by letter or by using electronic means.

(2)Before determining the time and place for an interview under subsection (1)(c)(i), an inspector must make reasonable efforts to agree that time and place with the person to be interviewed.

(3)An interview conducted under subsection (1)(c)(i) —

(a)must be conducted in private if —

(i)the inspector considers it appropriate; or

(ii)the person being interviewed so requests;

and

(b)may be recorded in any way the inspector considers appropriate.

Note for this subsection:

For the purposes of paragraph (b), an interview may be recorded, for example, using audio, audiovisual or electronic means.

(4)Subsection (3)(a) does not prevent —

(a)a person, including an interpreter, being present at the interview to assist the inspector conducting the interview if the inspector considers the assistance is necessary; or

(b)a representative of the person being interviewed from being present at the interview.

(5)Subsection (3)(a) may be invoked during an interview by —

(a)the inspector conducting the interview; or

(b)the person being interviewed,

in which case the subsection applies to the remainder of the interview.

(6)If an interview is to be recorded under subsection (3)(b), the inspector conducting the interview must, beforehand, inform the person being interviewed —

(a)that the recording will be done; and

(b)of the way in which the recording will be done.

(7)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

Note for this subsection:

See sections 172 and 173 in relation to self‑incrimination and section 269 in relation to legal professional privilege.

(8)Subsection (7) places an evidential burden on the accused to show a reasonable excuse.

172.Abrogation of privilege against self‑incrimination

(1)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.

(2)However, the answer to a question or information or a document provided by an individual 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.

173.Warning to be given

(1)Before requiring a person to answer a question or provide information or a document under this Part, an inspector must —

(a)identify themselves to the person as an inspector by producing the inspector’s identity card or in another way prescribed by the regulations; 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 172; and

(d)advise the person about the effect of section 269.

(2)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 the individual, unless the individual was first given the warning in subsection (1)(c).

(3)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

(1)An inspector may —

(a)make copies or reproductions of, or take extracts from, a document provided to, or otherwise obtained, accessed or recovered by, an inspector under this Act; and

(b)keep that document for the period that an inspector considers necessary.

(2)While an inspector retains custody of the original of a document, the inspector must permit the following persons to inspect, or make copies of, the original document at all reasonable times —

(a)the person who provided the original document or from whom it was obtained;

(b)the owner of the original document;

(c)a person authorised in writing by a person referred to in paragraph (a) or (b) on the production of the written authorisation to the regulator.

Division 5 — Seizure

175.Power to seize things

(1)An inspector who enters a place under Division 3 may seize anything (including a document) at the place if the inspector reasonably believes —

(a)that the thing is evidence of an offence against this Act; or

(b)that the seizure of the thing is reasonably necessary to enable the thing to be inspected, examined, analysed or tested; or

(c)that the seizure of the thing is otherwise reasonably necessary to enable an inspector to exercise compliance powers.

(2)An inspector who enters a place under Division 3 Subdivision 2 may also seize the following at the place —

(a)any thing, or any thing of a class, to which section 167C(1)(f) applies as stated in the entry warrant under section 167(5)(c);

(b)any document, or any document of a class, to which section 167C(1)(i) applies as stated in the entry warrant under section 167(5)(d);

(c)any print out, copy or reproduction of any document, or of any document of a class, to which section 167C(1)(i) applies as stated in the entry warrant under section 167(5)(d);

(d)if the inspector reasonably suspects that any document, or any document of a class, to which section 167C(1)(i) applies as stated in the entry warrant under section 167(5)(d) is stored on, or can be accessed or recovered from, a computer or other device — the computer or other device if it is reasonably necessary to seize the computer or other device in order to access and operate it as referred to in section 167C(1)(i)(i).

(3)If a computer or other device is seized under subsection (2)(d) —

(a)an inspector may access and operate the computer or other device as referred to in section 167C(1)(i)(i); and

(b)an inspector may seize any thing of the kind referred to in subsection (2)(b) or (c) that is stored on, or accessed or recovered from, or otherwise obtained by accessing and operating, the computer or other device.

176.Inspector’s power to seize dangerous workplaces and things

(1)This section applies if an inspector who enters a workplace under Division 3 reasonably believes that —

(a)the workplace or any part of the workplace; or

(b)plant at the workplace or any part of plant at the workplace; or

(c)a substance at the workplace; or

(d)a structure at the 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 or part, 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

(b)leave the thing at the place of seizure but take reasonable action to restrict access to it; or

(c)if the thing is plant or a structure — dismantle or cause to be dismantled the plant or structure.

Note for this subsection:

For the purposes of paragraph (b), the following are examples of reasonable action to restrict access —

(a)sealing a thing and marking it to show access to it is restricted;

(b)sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted.

(2)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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(3)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.

(4)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.

(5)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.

(6)The person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (3) or (5).

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(7)Subsection (6) places an evidential burden on the accused to show a reasonable excuse.

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).

178A.Inspecting, examining, analysing and testing seized things

An inspector may inspect, examine, analyse or test a seized thing or arrange for another person to do so.

179.Forfeiture of seized things

(1)A seized thing is forfeited to the State if the regulator —

(a)cannot find the person entitled to the thing after making reasonable inquiries; or

(b)cannot 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 —

(a)the regulator cannot find the person entitled to the thing after making reasonable inquiries; or

(b)it is impracticable or would be unreasonable to give the notice.

(6)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.

(7)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.

(8)Any costs reasonably incurred by the State in storing or disposing of a thing forfeited under subsection (1)(c) may be recovered by the regulator in a court of competent jurisdiction as a debt due to the State from that person.

(9)In this section —

person entitled, in relation to a seized 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

(1)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.

(2)The regulator must return the thing to the applicant under subsection (1) unless the regulator has reasonable grounds to retain the thing.

(3)The regulator may impose any conditions on the return of the thing under this section that the regulator considers appropriate to eliminate or minimise any risk to work health or safety related to the thing.

(4)In this section —

person entitled, in relation to a seized thing, means the person entitled to possess the thing or the owner of the thing.

181.Access to seized things

(1)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 in writing by a person referred to in paragraph (a) or (b) on the production of the written authorisation to the regulator.

(2)Subsection (1) does not apply if —

(a)it is impracticable or would be unreasonable to allow inspection or copying; or

(b)the seized thing is, or provides, evidence of an offence against this Act.

Division 6 — Damage

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

(1)This section applies if an inspector or an assistant to an inspector damages a thing when exercising, or purporting to exercise, a compliance power.

(2)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.

(3)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.

(4)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.

(5)This section does not apply to damage the inspector reasonably believes is trivial.

184.Not used

Division 7 — Other matters

185.Power to require name and address

(1)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 committed an offence against this Act; or

(c)the inspector reasonably believes that the person may be able to assist in the investigation of an offence against this Act.

(2)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.

(3)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.

(4)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) or (3).

Penalty for this subsection: a fine of $12 500.

(5)Subsection (4) places an evidential burden on the accused to show a reasonable excuse.

186.Inspector may take affidavits

An inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of the inspector’s compliance powers.

187.Not used

Division 8 — Offences in relation to inspectors

188.Offence to hinder or obstruct inspector

A person must not hinder or obstruct an inspector in exercising the inspector’s compliance powers, or induce or attempt to induce any other person to do so.

Penalty:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

189.Offence to impersonate inspector

A person who is not an inspector must not, in any way, hold themselves out to be an inspector.

Penalty: a fine of $12 500.

190.Offence to assault, threaten or intimidate inspector

(1)In this section —

assault has the meaning given in section 222 of The Criminal Code.

(2)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.

Penalty for this subsection:

(a)for an individual, imprisonment for 2 years and a fine of $55 000;

(b)for a body corporate, a fine of $285 000.

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 notice

(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.

(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

(1)The person to whom an improvement notice is issued must comply with the notice within the period specified in the notice.

Penalty for this subsection:

(a)for an individual, a fine of $55 000;

(b)for a body corporate, a fine of $285 000.

(2)The person to whom an improvement notice is issued must, as soon as is reasonably practicable after complying with the notice, notify the regulator of that compliance.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

194.Extension of time for compliance with improvement notices

(1)This section applies if a person has been issued with an improvement notice.

(2)The regulator may, by written notice given to the person, extend the compliance period for the improvement notice.

(3)However, the regulator 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 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.

(2)The inspector may give a person who the inspector reasonably believes has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.

(3)The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.

(4)An inspector cannot give a direction if compliance with the direction would affect adversely, or could reasonably be expected to affect adversely, a covert operation or a dangerous operation.

196.Contents of prohibition notice

(1)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.

(2)A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates.

(3)Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a specified 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;

(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.

Penalty:

(a)for an individual, a fine of $115 000;

(b)for a body corporate, a fine of $570 000.

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 an inspector’s compliance powers.

199.Contents of non‑disturbance notice

(1)A non‑disturbance notice may require the person to —

(a)preserve the site at which a notifiable incident has occurred for a specified period; or

(b)prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a specified period that is reasonable in the circumstances.

(2)A non‑disturbance notice must specify 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

(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 —

(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

(1)A person must not, without reasonable excuse, refuse or fail to comply with a non‑disturbance notice issued to the person.

Penalty for this subsection:

(a)for an individual, a fine of $55 000;

(b)for a body corporate, a fine of $285 000.

(2)Subsection (1) places an evidential burden on the accused to show a reasonable excuse.

201.Issue of subsequent notices

If an inspector considers it necessary to do so, the inspector 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.

203.Notice to be in writing

A notice must be in writing.

204.Directions 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 act.

205.Recommendations in notice

(1)An improvement notice or prohibition notice may include recommendations.

(2)It is not an offence to fail to comply with recommendations in a notice.

206.Changes to notice by inspector

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.

207.Regulator may vary or cancel notice

The regulator may do the following —

(a)extend the compliance period for an improvement notice in accordance with section 194;

(b)vary any other aspect of an improvement notice or vary any other notice;

(c)cancel a notice.

208.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

(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 in accordance with section 209.

209.Issue and giving of notice

(1)A notice may be issued or given to a person —

(a)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

(b)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

(c)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

(d)in a prescribed manner.

(2)The regulations may prescribe —

(a)the manner of issuing a notice; and

(b)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.

Penalty for this subsection:

(a)for an individual, a fine of $5 500;

(b)for a body corporate, a fine of $30 000.

(2)A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force.

Penalty for this subsection:

(a)for an individual, a fine of $5 500;

(b)for a body corporate, a fine of $30 000.

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 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 cannot be issued at a workplace because, after taking reasonable steps, the person with management or control of the workplace cannot be found.

(2)The regulator may take any remedial action necessary to make the workplace safe.

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 State.

Division 6 — Not used

214.Not used

215.Not used

Part 11  Enforceable undertakings

216.Regulator may accept WHS undertakings

(1)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 for this subsection:

Section 230(2) requires the regulator to publish guidelines in relation to the acceptance of WHS undertakings.

(2)A WHS undertaking cannot be accepted for a contravention or alleged contravention that is industrial manslaughter or a Category 1 offence.

(3)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

(1)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.

(2)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.When a WHS undertaking is enforceable

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 specified by the regulator.

219.Compliance with WHS undertaking

A person must not contravene a WHS undertaking made by that person that is in effect.

Penalty:

(a)for an individual, a fine of $55 000;

(b)for a body corporate, a fine of $285 000.

220.Contravention of WHS undertaking

(1)The regulator may apply to the Magistrates Court for 1 or more orders if the regulator believes that a person who made a WHS undertaking has contravened the WHS undertaking.

(2)If the court is satisfied that the person has contravened the WHS undertaking, the court 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.

(3)In addition to the orders referred to 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.

(4)Nothing in this section prevents proceedings being brought for the contravention or alleged contravention of this Act to which the WHS undertaking relates.

Note for this subsection:

Section 222 specifies circumstances affecting proceedings for a contravention for which a WHS undertaking has been given.

(5)Nothing in this section prevents proceedings being brought for an offence against section 219.

221.Withdrawal or variation of WHS undertaking

(1)A person who has made a WHS 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 cannot 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 a WHS undertaking.

222.Proceeding for alleged contravention

(1)Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if a WHS undertaking is in effect in relation to that contravention.

(2)No proceedings may be brought 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.

(3)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.

(4)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.

Part 12 — Review of decisions

Division 1 — Reviewable decisions

223.Which decisions are reviewable

(1)The following table sets out —

(a)decisions made under this Act that are reviewable in accordance with this Part (reviewable decisions); and

(b)who is eligible to apply for review of a reviewable decision (the eligible person).

Table

Item

Provision under which reviewable decision is made

Eligible person in relation to reviewable decision

1.

Section 54(2) (decision following failure of negotiations)

A worker whose interests are affected by the decision or the worker’s 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.

2.

Section 72(6) (decision in relation to training of health and safety representative)

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.

3.

Section 76(8) (decision relating to health and safety committee)

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 who represents a worker whose interests are affected by the decision.

4.

Section 82(3) or (5) (decision resolving issue or refusal of request to appoint inspector to resolve issue)

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 who represents a worker whose interests are affected by the decision.

5.

Section 102 (decision on review of provisional improvement notice)

The person to whom the provisional improvement notice was issued.

The health and safety representative who issued the provisional improvement notice.

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 person conducting a business or undertaking whose interests are affected by the decision.

6.

Section 155A(6)(b) (decision to withhold approval of legal practitioner on other reasonable grounds)

The witness.

7.

Section 179 (forfeiture of seized thing)

The person entitled to the thing.

8.

Section 180 (return of seized things)

The person entitled to the thing.

9.

Section 191 (issue of improvement notice)

The person to whom the notice was issued.

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.

10.

Section 194 (extension of time for compliance with improvement notice)

The person to whom the notice was issued.

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.

11.

Section 195 (issue of prohibition notice)

The person to whom the notice was issued.

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.

12.

Section 198 (issue of a non‑disturbance notice)

The person to whom the notice was issued.

The person with management or control of the workplace.

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.

13.

Section 201 (issue of subsequent notice)

The person to whom the notice was issued.

The person with management or control of the workplace.

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.

14.

Section 207 (decision of regulator to vary or cancel notice)

The person to whom the notice was issued.

The person with management or control of the workplace.

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.

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.

15.

A prescribed provision of the regulations

A person prescribed by the regulations as eligible to apply for review of the reviewable decision.

(2)Subsection (3) applies if 1 or more eligible persons in relation to a reviewable decision are members of a union when the reviewable decision is made.

(3)The union —

(a)is also an eligible person in relation to the reviewable decision; and

(b)may make, as the case may be —

(i)an application under Division 2 or 3 on behalf of the member who is an eligible person; or

(ii)a single application under Division 2 or 3 on behalf of all, or any number, of the members who are eligible persons.

(4)Unless the contrary intention appears, a reference in this Part to a decision includes a reference to —

(a)making, suspending, revoking or refusing to make an order, determination or decision; or

(b)giving, suspending, revoking or refusing to give a direction, approval, consent or permission; or

(c)issuing, suspending, revoking or refusing to issue an authorisation; or

(d)imposing a condition; or

(e)making a declaration, demand or requirement; or

(f)retaining, or refusing to deliver up, a thing; or

(g)doing or refusing to do any other act or thing.

(5)In this section —

person entitled, in relation to a seized 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 for this section:

Decisions under the regulations that will be reviewable decisions will be set out in the regulations.

223A.Review applications by unions

(1)Subject to subsection (2), a union may make an application as referred to in section 223(3)(b) without —

(a)identifying the member or members on whose behalf the application is made; or

(b)providing evidence of the union’s authority to make the application on behalf of the member or members.

(2)The internal reviewer or Tribunal, as the case requires, may direct the union to provide the internal reviewer or Tribunal with any information or evidence of the kind referred to in subsection (1)(a) or (b) within the time specified in the direction.

(3)The internal reviewer or Tribunal must not disclose to any person any information or evidence provided by the union in accordance with the direction unless —

(a)the internal reviewer or Tribunal reasonably believes that the disclosure is necessary for the purpose of conducting the review; and

(b)the information or evidence is disclosed in a form that does not identify any member of the union.

(4)Despite subsection (3)(b), the internal reviewer or Tribunal —

(a)may ask a member of the union to consent to the disclosure of their identity; and

(b)if the member so consents, may disclose the information or evidence in a form that identifies the member.

Division 2 — Internal review

224.Application for internal review

(1)An eligible person in relation to a reviewable decision 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)such longer period as the regulator allows.

(2)The application must be made in the manner and form required by the regulator.

(3)For the purposes of this section, the prescribed time is —

(a)in the case of a decision to issue an improvement notice, the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser; and

(b)in any other case, 14 days.

(4)This section does not apply to the following reviewable decisions —

(a)a decision made by an inspector under section 82(3);

(b)a decision made by the regulator.

225.Internal reviewer

(1)The regulator may appoint a person or body to review decisions on applications under this Division.

(2)The person who made the decision cannot be an internal reviewer in relation to that decision.

226.Decision of internal reviewer

(1)The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the day on which the application for internal review is received.

(2)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.

(3)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.

(4)The applicant must provide the further information within the time (being not less than 7 days after the day on which the request for information is made) specified by the internal reviewer in the request for information.

(5)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.

(6)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.Stays of reviewable decisions on internal reviews

(1)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.

(2)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.

(3)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.

(4)The reviewer must make a decision on an application for a stay within 1 day after the day on which the reviewer receives the application.

(5)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.

(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

(1)An eligible person may apply to the Tribunal for review (an external review) of —

(a)a decision made by an inspector under section 82(3); or

(b)a reviewable decision made by the regulator; or

(c)a decision made, or taken to have been made, on an internal review.

(2)The application must be made —

(a)if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant’s notice; or

(b)in the case of any other decision, within 14 days after the day on which the decision first came to the applicant’s notice; or

(c)if the regulator is required by the Tribunal to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.

229A.Conduct and outcome of external review

(1)This section applies if an application is made under section 229 for an external review of a decision.

(2)The Tribunal must review the decision (unless the applicant withdraws or discontinues the application).

(3)The review is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve consideration of new material whether or not it existed at the time the decision was made.

(4)The purpose of the review is to produce the correct and preferable decision at the time of the completion of the review.

(5)When the review is completed, the Tribunal may —

(a)confirm or vary the decision; or

(b)set aside the decision and substitute another decision that the Tribunal considers appropriate.

(6)Despite subsections (2) to (4), the Tribunal may, with the agreement of the applicant and the decision‑maker, act under subsection (5)(a) or (b) without starting or completing the review.

(7)Subsections (2) to (4) are also subject to Schedule 1 clause 30.

229B.Stays of decisions subject to external review

(1)This section applies if an application is made under section 229 for an external review of a decision.

(2)The Tribunal may stay the operation of the decision (wholly or partly) pending the Tribunal acting under section 229A(5)(a) or (b) or for any shorter period the Tribunal determines.

(3)The Tribunal may cancel or vary a stay.

(4)If the decision is a decision referred to in section 229(1)(c), if relevant, the staying of its operation does not revive the reviewable decision that was the subject of the internal review.

Part 13 — Legal proceedings

Division 1 — General matters

229C.Terms used

In this Division —

conduct includes an act or omission;

DPP means the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1991 or any person performing the functions of, or acting in, that office.

230.Prosecutions

(1)Subject to subsection (3), proceedings for an offence against this Act may only be brought by —

(a)the regulator; or

(b)a public service officer working in the WHS department with the written authorisation of the regulator (either generally or in a particular case).

(2)The regulator must issue, and publish on the regulator’s website, general guidelines for or in relation to —

(a)the prosecution of offences under this Act; and

(b)the acceptance of WHS undertakings under this Act.

(3)Nothing in this section affects —

(a)the ability of an authorised officer (as defined in the Criminal Procedure Act 2004 section 80(1)) to commence or conduct a prosecution for an offence against this Act; or

(b)the functions of the DPP under the Director of Public Prosecutions Act 1991.

231.Procedure if prosecution is not brought

(1)If —

(a)a person reasonably considers that the occurrence of an act, matter or thing constitutes industrial manslaughter, a Category 1 offence or a Category 2 offence; and

(b)no prosecution has been brought in relation to the occurrence of the act, matter or thing after 6 months but not later than 12 months after that occurrence,

the person may make a written request to the regulator that a prosecution be brought.

(2)Within 3 months after the day on which the regulator receives a request the regulator must —

(a)advise the person (in writing) —

(i)whether the investigation is complete; and

(ii)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).

(3)In this section a reference to the occurrence of an act, matter or thing includes a reference to a failure in relation to an act, matter or thing.

232.Limitation period for prosecutions

(1)Proceedings for an offence against this Act, other than industrial manslaughter, may be brought within the latest of the following periods to occur —

(a)within 2 years after the offence first comes to the notice of the regulator;

(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 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.

(2)Proceedings for a Category 1 offence may be brought 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.

(3)Subsections (4) and (5) apply to proceedings (the relevant proceedings) against a person for a Category 1 offence, a Category 2 offence or a Category 3 offence in relation to any conduct (the relevant conduct).

(4)The relevant proceedings may be brought after the end of the applicable limitation period in subsection (1) if —

(a)either —

(i)the DPP has considered whether proceedings for industrial manslaughter should be brought against the person in relation to the relevant conduct or to any conduct that includes the relevant conduct, and has decided not to bring those proceedings; or

(ii)the DPP has discontinued proceedings for industrial manslaughter against the person in relation to the relevant conduct or to any conduct that includes the relevant conduct;

and

(b)the relevant proceedings are brought no later than 6 months after the day on which the DPP made that decision or discontinued those proceedings.

(5)Despite section 230(1), the relevant proceedings may only be brought under subsection (4) by an authorised officer (as defined in the Criminal Procedure Act 2004 section 80(1)).

(6)A person may be convicted of an offence as provided for by section 30A(2) or (4) despite subsection (1) and section 10A(2) of The Criminal Code.

232A.Admission of evidence obtained unlawfully

(1)This section applies to any proceedings for an offence against this Act in relation to any evidence that would, apart from this section, be inadmissible in the proceedings because it was obtained by, or as a result of, unlawful conduct.

(2)The court may decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

(3)In making a decision under subsection (2), the court must take into account the following matters —

(a)any objection to the evidence being admitted by the person against whom the evidence may be given;

(b)the seriousness of the offence;

(c)the seriousness of the unlawful conduct;

(d)whether the unlawful conduct —

(i)was engaged in by a person knowing the conduct to be unlawful; or

(ii)arose from an honest and reasonable mistake of fact;

(e)the probative value of the evidence;

(f)any other matter the court thinks fit.

(4)The probative value of the evidence does not by itself justify its admission.

233.Not used

Division 2 — Sentencing of offenders

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 as part of the offender’s sentence.

(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 specified in the order —

(i)to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter;

(ii)to notify a specified person or specified class of persons, in the way specified 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 specified 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.

(3)If the offender fails to give evidence to the regulator in accordance with subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions specified in the order.

(4)However, if —

(a)the offender gives evidence to the regulator in accordance with subsection (1)(b); and

(b)despite that evidence, the regulator is not satisfied that the offender has taken the action or actions specified 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.

(5)If the regulator or a person authorised in writing by the regulator takes an action or actions in accordance with 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 State.

237.Orders for restoration

(1)The court may order the offender to take such steps as are specified in the order, within the period so specified, 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.

(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

(1)The court may make an order requiring the offender to undertake a specified project for the general improvement of work health and safety within the period specified in the order.

(2)The order may specify conditions that must be complied with in undertaking the specified project.

239.Release on the giving of a court‑ordered WHS undertaking

(1)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 specified conditions (a court‑ordered WHS undertaking).

(2)A court‑ordered WHS 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.

(3)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.

(4)An order under subsection (3) must be served on the offender not less than 4 days before the time specified 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.Not used

241.Training orders

The court may make an order requiring the person to undertake or arrange for 1 or more workers to undertake a specified 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.

Penalty for this subsection:

(a)for an individual, a fine of $55 000;

(b)for a body corporate, a fine of $285 000.

(2)Subsection (1) places an evidential burden on the accused to show a reasonable excuse.

(3)This section does not apply to an order under section 239.

Division 3 — Not used

243.Not used

Division 4 — Offences by bodies corporate

244.Imputing conduct to bodies corporate

(1)In this section —

conduct includes an act or omission.

(2)For the purposes of 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 their employment, or within their actual or apparent authority, is conduct also engaged in by the body corporate.

(3)If an offence under this Act requires proof of knowledge or intention, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (2) had the relevant knowledge or intention.

(4)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 that offence if the person referred to in subsection (2) made that mistake of fact.

Division 5 — The Crown

Subdivision 1 — Prosecutions

244A.Crown may be prosecuted

The Crown in any capacity may, in accordance with this Subdivision, be prosecuted for an offence against this Act.

244B.Prosecution against agent of Crown that is body corporate

(1)If the act or omission constituting the offence is alleged against a body corporate that is an agent of the Crown, the prosecution proceedings must be taken against the body corporate.

(2)Subsection (1) includes a case in which a body corporate is the successor in law of a Crown agency, as defined in section 244E(1) or determined under section 244E(3).

244C.Prosecution of Crown in other cases

(1)The prosecution proceedings for the offence must be taken against the Crown if the act or omission constituting the offence is alleged against a Crown agency (the responsible agency).

(2)Proceedings referred to in subsection (1) may be brought against the Crown under the title “State of Western Australia”.

244D.Provisions applicable to responsible agency

(1)In this section —

prosecution proceedings means proceedings referred to in section 244C(1).

(2)For the purposes of prosecution proceedings —

(a)the responsible agency —

(i)must be specified in the prosecution notice or indictment for the offence; and

(ii)is entitled to act for the Crown in the proceedings; and

(iii)subject to any rules of court, has the procedural rights and obligations of the Crown as the accused in the proceedings;

and

(b)the person prosecuting the offence may during the proceedings, with the leave of the court, substitute another responsible agency for the agency in the proceedings.

(3)In prosecution proceedings a person authorised by the chief executive of the responsible agency concerned may act on behalf of the agency, and it is not necessary for proof to be given of the authority of the person to do so.

(4)It is sufficient service of a document required to be served on a responsible agency for the purposes of prosecution proceedings if the document —

(a)is delivered to a person who is or appears to be the chief executive of the responsible agency, or a person acting as such, at a place of business of the responsible agency; or

(b)is sent by pre‑paid letter addressed and posted to the responsible agency at its principal place of business in the State.

244E.Proceedings where Crown agency has ceased to exist

(1)In this section —

successor in law, in relation to a Crown agency, means, subject to subsection (3) —

(a)the sole successor; or

(b)if there is more than 1 successor, the successor that has the relevant functions formerly vested in the Crown agency.

(2)If a Crown agency referred to in section 244C(1) —

(a)has ceased to exist; and

(b)has a successor in law to which section 244B(2) does not apply,

the successor in law is the responsible agency for the purposes of section 244C(1).

(3)The Minister must determine the successor in law of a Crown agency that has ceased to exist if —

(a)the Crown agency has no apparent successor in law under subsection (1); or

(b)there is doubt as to which agent of the Crown has the relevant functions formerly vested in the Crown agency.

244F.Penalties in proceedings against Crown

(1)The penalty that may be imposed on the Crown if it is convicted or found guilty of an offence against this Act in proceedings referred to in section 244C(1) is the penalty applicable to a body corporate.

(2)A penalty imposed in proceedings referred to in section 244C(1) cannot be enforced under the Fines, Penalties and Infringement Notices Enforcement Act 1994.

Subdivision 2 — Other matters

244G.Issue of notices to Crown

(1)In this section —

notice means a provisional improvement notice, an improvement notice, a prohibition notice or a non‑disturbance notice.

(2)A notice that relates to a contravention of this Act, or other activity, of a body corporate that is an agent of the Crown must be issued to that body corporate.

(3)If a notice relates to a contravention of this Act, or other activity, of the Crown in any other case, the notice —

(a)must be issued to the Crown under the title “State of Western Australia”; and

(b)must show the name of the responsible agency under Subdivision 1 that would be specified in a charge for an offence for the contravention or other activity.

(4)It is sufficient for the purposes of subsection (2) or (3) if the notice —

(a)is delivered to a person at the workplace concerned who has, or reasonably appears to have, responsibility for the management or control of the workplace; or

(b)is sent by pre‑paid letter addressed and posted to the body corporate or responsible agency concerned at its principal place of business in the State.

(5)If a notice is delivered to a person as referred to in subsection (4)(a), the person must, as soon as practicable, give a copy of the notice to the executive who is responsible for the day‑to‑day administration of the body corporate or responsible agency concerned.

244H.Imputing conduct to Crown agency

(1)In this section —

conduct includes an act or omission.

(2)Subsection (3) applies to any conduct engaged in on behalf of a Crown agency by an employee, agent or officer of the Crown agency —

(a)in the course of the business or undertaking of the Crown agency; and

(b)acting within the actual or apparent scope of their employment or within their actual or apparent authority.

(3)For the purposes of this Act, the conduct is also conduct engaged in by the Crown agency in the course of the business or undertaking of the Crown agency.

(4)Subsections (5) and (6) apply to proceedings against the Crown for an offence against this Act constituted by conduct to which subsection (3) applies.

(5)If the offence requires proof of knowledge or intention, it is sufficient in the proceedings to prove that the person referred to in subsection (2) had the relevant knowledge or intention.

(6)If for the offence mistake of fact is relevant to determining liability, it is sufficient in the proceedings if the person referred to in subsection (2) made that mistake of fact.

245.Not used

246.Not used

247.Not used

248.Not used

Division 6 — Not used

249.Not used

250.Not used

251.Not used

252.Not used

253.Not used

Division 7 — Not used

254.Not used

255.Not used

256.Not used

257.Not used

258.Not used

259.Not used

260.Not used

261.Not used

262.Not used

263.Not used

264.Not used

265.Not used

266.Not used

Division 8 — Civil liability not affected by this Act

267.Civil liability not affected by this Act

Except as provided in Part 6, 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 brought, in relation to breaches of duties or obligations imposed by the regulations.

Part 14 — General

Division 1 — General provisions

268.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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(2)A person must not provide 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 the document 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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(3)Subsection (2) places an evidential burden on the accused 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 provide a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege.

270.Immunity from liability

(1)A person has no civil liability for anything done, or omitted to be done, by the person, in good faith, as a WHS authority —

(a)in the exercise or purported exercise of a power, or in the performance or purported performance of a function, under this Act; or

(b)otherwise in the administration of this Act.

(2)A civil liability that would, but for subsection (1), attach to a person attaches instead to the State.

271.Confidentiality of information

(1)This section applies if a person obtains information or gains access to a document in exercising or performing any power or function under this Act.

(2)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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

(3)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 or performance 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 by the regulations; 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

(v)is required for the exercise or performance 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 provision of documents or the answering of questions; or

(e)that is required or authorised under a law; or

(f)to a Minister of the Crown.

(4)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.

Penalty for this subsection:

(a)for an individual, a fine of $12 500;

(b)for a body corporate, a fine of $55 000.

272.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 of no effect.

272A.No insurance or other indemnities against fines

(1)In this section —

indemnify means indemnify wholly or partly;

insurance policy includes any contract of insurance.

(2)An insurance policy is of no effect to the extent that, apart from this subsection, it would indemnify a person for the person’s liability to pay a fine for an offence against this Act.

(3)A person (A) must not —

(a)enter into, or offer to enter into, an insurance policy that purports to indemnify a person for the person’s liability to pay a fine for an offence against this Act; or

(b)indemnify, or offer to indemnify, another person for the other person’s liability to pay a fine for an offence against this Act; or

(c)be indemnified, or agree to be indemnified, by another person for A’s liability to pay a fine for an offence against this Act; or

(d)pay to another person, or receive from another person, an indemnity for a fine for an offence against this Act.

Penalty for this subsection:

(a)for an individual, a fine of $51 000;

(b)for a body corporate, a fine of $255 000.

273.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.

Penalty:

(a)for an individual, a fine of $5 500;

(b)for a body corporate, a fine of $30 000.

Division 2 — Codes of practice

274.Approved codes of practice

(1)The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice.

(2)The Minister may only approve, vary or revoke a code of practice under subsection (1) if that code of practice, variation or revocation was developed by a process that involved consultation between —

(a)unions; and

(b)employer organisations.

(3)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.

(4)An approval of a code of practice, or a variation or revocation of an approved code of practice, takes effect when notice of it is published in the Gazette or on such later date as is specified in the approval, variation or revocation.

(5)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 revocation is published in the Gazette and a newspaper circulating generally throughout the State.

(6)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.

(7)The Minister must make available on the WHS department’s website, without charge —

(a)a copy of each code of practice that is currently approved; and

(b)the identity of each document applied, adopted or incorporated (to any extent) by an approved code of practice and, unless doing so would infringe copyright, a copy of that document.

275.Use of codes of practice in proceedings

(1)This section applies in a proceeding for an offence against this Act.

(2)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.

(3)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 for this subsection:

See section 18 for the meaning of reasonably practicable.

(4)Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner 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.

Division 3 — Regulation‑making powers

276.Regulation‑making powers

(1)The Governor may make regulations in relation to —

(a)any matter relating to work health and safety; and

(b)any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act.

(2)Without limiting subsection (1), the regulations may make provision for or in relation to matters set out in Schedule 2.

(3)The regulations may —

(a)be of general or limited application; or

(b)differ according to differences in time, place or circumstance; or

(c)leave any matter or thing to be, from time to time, determined, applied or approved by the regulator, an inspector or any other prescribed person or body of persons; or

(d)apply, adopt or incorporate any matter contained in any document formulated, issued or published by a person or body whether —

(i)with or without modification; or

(ii)as in force at a particular time or as in force or remade from time to time;

or

(e)prescribe exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed; or

(f)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

(g)prescribe fees for doing any act or providing any service for the purposes of this Act and prescribe the circumstances and way in which fees can be refunded, waived or reduced; or

(h)provide for offences against the regulations and prescribe penalties for those offences not exceeding a fine of $35 000.

Division 4 — Review of Act

277.Operation of Act to be reviewed every 5 years

(1)The Minister must review the operation and effectiveness of this Act and prepare a report based on the review —

(a)as soon as practicable after the 5th anniversary of the day on which this section comes into operation; and

(b)after that, at intervals of no more than 5 years.

Note for this subsection:

A review must include a consideration of the most recent review of the model Bill referred to in note 1 for section 3.

(2)The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 5th anniversary or the expiry of the period of 5 years, as the case may be.

(3)If, in the Minister’s opinion, a House of Parliament will not sit during the period of 21 days after finalisation of the report, the Minister must send the report to the Clerk of the House.

(4)When the report is sent to the Clerk of a House it is taken to have been laid before the House.

(5)The laying of the report that is taken to have occurred under subsection (4) must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk receives the report.

Part 15 — Repeals and consequential amendments

Division 1 — Occupational safety and health legislation

278.Occupational Safety and Health Act 1984 repealed

The Occupational Safety and Health Act 1984 is repealed.

279.Occupational Safety and Health Regulations 1996 repealed

The Occupational Safety and Health Regulations 1996 are repealed.

Division 2 — Mines safety and inspection legislation

Subdivision 1 — Mines Safety and Inspection Act 1994 amended

280.Act amended

This Subdivision amends the Mines Safety and Inspection Act 1994.

281.Section 3 deleted

Delete section 3.

282.Section 4 amended

(1)In section 4(1) delete the definitions of:

adit

alternate registered manager

Australian Standard

Australian/New Zealand Standard

Board of Examiners

certificate of competency

commute schedule

competent person

decline

deputy

development

development opening or development heading

district inspector

Electoral Commissioner

exploration manager

explosives

foreman

hazard

hoist

import

improvement notice

incline

inspector

manager

Mines Survey Board

Mining Industry Advisory Committee

plan

plant

practicable

prohibition notice

provisional improvement notice

quarry or open cut or open pit

quarry manager

quarry operations

radiation

radioactive

receiver

record book

registered manager

repealed Acts

rise

risk

safety and health committee

safety and health magistrate

safety and health representative

senior inspector

shaft

special inspector

State coal mining engineer

State mining engineer

supervisor

supply

trade union

Tribunal

tunnel or adit

underground

underground manager

underground superintendent

winding engine

winze

workmen’s inspector

workplace

(2)In section 4(1) insert in alphabetical order:

 

inspector means an inspector appointed under the Work Health and Safety Act 2020 Part 9;

regulator has the meaning given in the Work Health and Safety Act 2020 section 4;

 

(3)In section 4(1) in the definition of mine delete “State mining engineer” and insert:

 

regulator

 

(4)In section 4(1) in the definition of principal employer:

(a)in paragraph (a) delete “mine, mining operations at the mine and the manager of the mine; and” and insert:

 

mine and mining operations at the mine; and

 

(b)in paragraph (b) delete “mine and the exploration manager appointed for those operations;” and insert:

 

mine;

 

(5)In section 4(3) delete “State mining engineer” and insert:

 

regulator

 

(6)Delete section 4(4).

283.Section 4A deleted

Delete section 4A.

284.Section 6A deleted

Delete section 6A.

285.Section 7 amended

Delete section 7(1).

286.Parts 2 to 8 deleted

Delete Parts 2 to 8.

287.Sections 94 and 95 deleted

Delete sections 94 and 95.

288.Section 96A deleted

Delete section 96A.

289.Sections 98 to 99A deleted

Delete sections 98 to 99A.

290.Section 100 amended

(1)In section 100(1) delete “Act, other than an offence to which section 100A applies,” and insert:

 

Act

 

(2)In section 100(2) delete “and section 100A apply” and insert:

 

applies

 

291.Sections 100A and 101 deleted

Delete sections 100A and 101.

292.Part 9 Divisions 2 and 3 deleted

Delete Part 9 Divisions 2 and 3.

293.Sections 102A and 103 deleted

Delete sections 102A and 103.

294.Section 104 amended

(1)In section 104(1) —

(a)delete “Act, and in particular —” and insert:

 

Act.

 

(b)delete paragraphs (a) to (zo).

(2)Delete section 104(1a).

(3)In section 104(4):

(a)delete paragraph (a);

(b)in paragraph (b) delete “individual where paragraph (a) does not apply —” and insert:

 

individual —

 

(c)in paragraph (c)(ii) delete “$62 500,” and insert:

 

$62 500.

 

(d)delete the passage that begins with “and if the offence” and continues to the end of the subsection.

(4)Delete section 104(4a) and (5).

295.Section 105A amended

(1)In section 105A(1) delete “this Act.” and insert:

 

the following —

(a)the Work Health and Safety Act 2020 in relation to mines and mining operations;

(b)this Act.

 

(2)Delete section 105A(2).

(3)In section 105A(4)(b) delete “this Act” and insert:

 

the Work Health and Safety Act 2020

 

Note:The heading to amended section 105A is to read:

Regulations for levy for costs of administering Work Health and Safety Act 2020 in relation to mines and mining operations

296.Section 105AB amended

In section 105AB(3) delete “this Act.” and insert:

 

the following —

(a)the Work Health and Safety Act 2020 in relation to mines and mining operations;

(b)this Act.

 

297.Sections 105 to 110 deleted

Delete sections 105 to 110.

Subdivision 2 — Mines Safety and Inspection Regulations 1995 repealed

298.Mines Safety and Inspection Regulations 1995 repealed

The Mines Safety and Inspection Regulations 1995 are repealed.

Division 3 — Petroleum and geothermal energy legislation

Subdivision 1 — Petroleum and Geothermal Energy Resources Act 1967 amended

299.Act amended

This Subdivision amends the Petroleum and Geothermal Energy Resources Act 1967.

300.Section 5 amended

(1)In section 5(1) delete the definition of listed OSH law.

(2)In section 5(1) delete both definitions of other protected person.

301.Section 7AA deleted

Delete section 7AA.

302.Section 112A amended

(1)In section 112A(1) delete “a safety” and insert:

 

an exclusion

 

(2)In section 112A(2) delete “A safety” and insert:

 

An exclusion

 

(3)In section 112A(3) delete “a safety” and insert:

 

an exclusion

 

Note:The heading to amended section 112A is to read:

Exclusion zones

303.Section 119 amended

In section 119(1) delete “but without affecting the powers of an inspector under Schedule 1,”.

304.Section 126A amended

Delete section 126A(2)(b) and (c) and insert:

 

(b)the authority of any person to institute a proceeding for an offence against this Act.

 

305.Part IIIA deleted

Delete Part IIIA.

306.Section 153 amended

In section 153(2)(l) delete “safety”.

307.Schedule 1 deleted

Delete Schedule 1.

Subdivision 2 — Petroleum and Geothermal Energy Safety Levies Act 2011 amended

308.Act amended

This Subdivision amends the Petroleum and Geothermal Energy Safety Levies Act 2011.

309.Long title amended

In the long title delete “operations, geothermal energy operations, pipeline operations and offshore petroleum operations,” and insert:

 

operations and geothermal energy operations,

 

310.Section 3 amended

(1)In section 3 delete the definitions of:

accepted DSMS

CEO

diving contractor

diving safety management system

DSMS levy

facility

facility safety case levy

geothermal energy operation

licensee

operator

petroleum operation

PGERA regulations

pipeline

pipeline licensee

pipeline management plan

pipeline management plan in force

pipeline management plan levy

pipeline operation

pipeline safety case levy

PPA regulations

revised pipeline management plan

revised safety case

revised safety management system

safety case

safety case in force

safety levy

safety management system

safety management system in force

safety management system levy

(2)In section 3 insert in alphabetical order:

 

adjacent area has the meaning given in the Petroleum (Submerged Lands) Act 1982 section 60K and includes any space referred to in section 7 of that Act;

CIPS means the Chief Inspector Petroleum Safety under the Work Health and Safety Act 2020 Schedule 1 Division 2;

construct has the meaning given in the Work Health and Safety Act 2020 section 4;

design has the meaning given in the Work Health and Safety Act 2020 section 4;

diving operation — see section 3A;

DSMS — see section 3B;

DSMS levy means the levy referred to in section 7;

explore means to carry out a survey operation, drilling operation or other operation, other than a seismic survey, that relates to exploration for petroleum or geothermal energy resources;

geothermal energy has the meaning given in the Petroleum and Geothermal Energy Resources Act 1967 section 5(1);

geothermal energy operation — see section 3C;

geothermal energy resources has the meaning given in the Petroleum and Geothermal Energy Resources Act 1967 section 5(1);

oil shale includes naturally occurring hydrocarbons that are or may be contained in rocks from which they cannot be recovered otherwise than by mining those rocks as oil shale;

petroleum —

(a)means —

(i)any naturally occurring hydrocarbon, whether in a gaseous, liquid or solid state; or

(ii)any naturally occurring mixture of hydrocarbons, whether in a gaseous, liquid or solid state; or

(iii)any naturally occurring mixture of 1 or more hydrocarbons, whether in a gaseous, liquid or solid state, and 1 or more of the following, that is to say, hydrogen sulphide, nitrogen, helium and carbon dioxide,

but does not include oil shale; and

(b)includes any petroleum as defined in paragraph (a) that has been returned to a natural reservoir; and

(c)also includes any petroleum as defined in paragraph (a) or (b) to which 1 or more things have been added, or from which 1 or more things have been wholly or partly removed, or both; and

(d)also includes any mixture that —

(i)has been recovered from a well; and

(ii)includes petroleum as defined in paragraph (a), (b) or (c);

petroleum operation — see section 3D;

place has the meaning given in the Work Health and Safety Act 2020 section 8(2);

plant has the meaning given in the Work Health and Safety Act 2020 section 4;

safety case — see section 3E;

safety case levy means the levy referred to in section 4;

safety levy means the safety case levy or the DSMS levy;

structure has the meaning given in the Work Health and Safety Act 2020 section 4;

well means a hole in the Earth’s crust made by drilling, boring or any other means in connection with exploration for petroleum or geothermal energy resources or operations for the recovery of petroleum or geothermal energy, but does not include a seismic shot hole;

WHS regulations means regulations made under the Work Health and Safety Act 2020;

worker has the meaning given in the Work Health and Safety Act 2020 section 7.

 

311.Sections 3A to 3E inserted

At the end of Part 1 insert:

 

3A.Diving operation

(1)In this section —

manned submersible craft —

(a)means a craft that is designed to maintain its occupants at or near atmospheric pressure while submerged (whether or not it is self‑propelled, and whether or not it is supplied with breathing mixture through an umbilical); and

(b)includes a craft in the form of a suit.

(2)A diving operation is a petroleum operation carried out in the adjacent area that comprises 1 or more dives.

(3)For the purposes of subsection (2), a dive is an activity that involves a person (the diver) —

(a)being in a chamber inside which the ambient pressure is equal to or higher than the hydrostatic pressure at a depth of 1 metre in seawater (whether or not the chamber is submerged in water or another liquid); or

(b)being submerged in water or another liquid and the diver’s lungs being subjected to a pressure greater than atmospheric pressure (whether or not the diver is wearing a wetsuit or other protective clothing); or

(c)being in a manned submersible craft that is submerged in water or another liquid.

3B.DSMS

(1)In this section —

document has the meaning given in the Work Health and Safety Act 2020 section 4.

(2)A DSMS is a document —

(a)that a prescribed provision of WHS regulations requires for a diving operation; and

(b)that must set out, in accordance with any applicable requirements of WHS regulations, a safety management system for the diving operation.

3C.Geothermal energy operation

(1)In this section —

accommodation premises —

(a)means residential premises —

(i)the occupation of which is necessary for the purposes of workers’ engagement at a geothermal energy site; and

(ii)that are not situated within a townsite as defined in the Land Administration Act 1997 section 26(1) or the metropolitan region as defined in the Planning and Development Act 2005 section 4(1);

and

(b)includes land, buildings and recreational facilities used in connection with the occupation of those premises;

geothermal energy site —

(a)means a place at which an activity referred to in subsection (2) is, or is to be, carried out; and

(b)includes any fixture, fitting, plant or structure at the place;

geothermal energy title means a permit, drilling reservation, lease, licence or other authority (however described) granted under the Petroleum and Geothermal Energy Resources Act 1967 in relation to geothermal energy or geothermal energy resources.

(2)A geothermal energy operation is an activity carried out in an area in respect of which a geothermal energy title is in force for the purpose of any of the following —

(a)exploring for geothermal energy resources;

(b)drilling or servicing a well for geothermal energy resources;

(c)recovering geothermal energy.

(3)Without limiting subsection (2), a geothermal energy operation includes the following activities —

(a)planning, designing, preparing or constructing a geothermal energy site if the activity is carried out at or in the vicinity of the geothermal energy site;

(b)commissioning, operating or maintaining a geothermal energy site;

(c)decommissioning or abandoning a geothermal energy site or removing any fixture, fitting, plant or structure from a geothermal energy site;

(d)constructing, commissioning, operating or maintaining administrative or other support facilities at or in the vicinity of a geothermal energy site;

(e)an activity relating to the care, security or maintenance of a geothermal energy site carried out at or in the vicinity of the geothermal energy site;

(f)constructing, commissioning, operating or maintaining accommodation premises at or in the vicinity of a geothermal energy site;

(g)a prescribed activity carried out in an area in respect of which a geothermal energy title is in force.

3D.Petroleum operation

(1)In this section —

accommodation premises —

(a)means residential premises —

(i)the occupation of which is necessary for the purposes of workers’ engagement at a petroleum site; and

(ii)that are not situated within a townsite as defined in the Land Administration Act 1997 section 26(1) or the metropolitan region as defined in the Planning and Development Act 2005 section 4(1);

and

(b)includes land, buildings and recreational facilities used in connection with the occupation of those premises;

petroleum site —

(a)means a place at which an activity referred to in subsection (2) is, or is to be, carried out; and

(b)includes any fixture, fitting, plant or structure at the place;

petroleum title means —

(a)a permit, drilling reservation, lease, licence or other authority (however described) granted under —

(i)the Petroleum and Geothermal Energy Resources Act 1967 in relation to petroleum; or

(ii)the Petroleum Pipelines Act 1969; or

(iii)the Petroleum (Submerged Lands) Act 1982;

or

(b)the Barrow Island lease as defined in the Barrow Island Act 2003 section 3.

(2)A petroleum operation is an activity that is carried out in an area in respect of which a petroleum title is in force, or that is carried out in the adjacent area, for the purpose of any of the following —

(a)exploring for petroleum;

(b)drilling or servicing a well for petroleum;

(c)extracting or recovering petroleum;

(d)injecting petroleum into a natural underground reservoir;

(e)processing petroleum;

(f)handling or storing petroleum;

(g)the piped conveyance or offloading of petroleum.

(3)Without limiting subsection (2), a petroleum operation includes the following activities —

(a)planning, designing, preparing or constructing a petroleum site if the activity is carried out at or in the vicinity of the petroleum site;

(b)commissioning, operating or maintaining a petroleum site;

(c)decommissioning or abandoning a petroleum site or removing any fixture, fitting, plant or structure from a petroleum site;

(d)constructing, commissioning, operating or maintaining administrative or other support facilities at or in the vicinity of a petroleum site;

(e)an activity relating to the care, security or maintenance of a petroleum site carried out at or in the vicinity of the petroleum site;

(f)constructing, commissioning, operating or maintaining accommodation premises at or in the vicinity of a petroleum site;

(g)a prescribed activity carried out in —

(i)an area in respect of which a petroleum title is in force; or

(ii)the adjacent area.

3E.Safety case

(1)In this section —

document has the meaning given in the Work Health and Safety Act 2020 section 4.

(2)A safety case is a document —

(a)that a prescribed provision of WHS regulations requires for a petroleum operation or a geothermal energy operation; and

(b)that must set out, in accordance with any applicable requirements of WHS regulations, a case for safety of the operation.

 

312.Part 2 replaced

Delete Part 2 and insert:

 

Part 2  Safety levies

Division 1 — Safety case levy

4.Safety case levy payable

(1)If, for the whole or a part of a levy period, a safety case is in force for a petroleum operation or a geothermal energy operation, a levy is payable in respect of the safety case.

(2)The levy is payable in accordance with the regulations.

(3)The regulations may make provision specifying, or for working out, when a safety case is in force for a petroleum operation or a geothermal energy operation.

5.Liability for payment of safety case levy

(1)The person liable to pay the safety case levy is the person responsible for the safety case.

(2)The regulations may make provision specifying, or for working out, the person responsible for a safety case.

6.Amount of safety case levy

(1)The amount of safety case levy payable is the amount specified in, or worked out in accordance with, the regulations.

(2)Without limiting section 26(3), the regulations may specify different amounts of safety case levy, or different means of working out amounts of safety case levy, for different classes of safety cases.

Division 2 — DSMS levy

7.DSMS levy payable

(1)If, for the whole or a part of a levy period, a DSMS is in force for a diving operation, a levy is payable in respect of the DSMS.

(2)The levy is payable in accordance with the regulations.

(3)The regulations may make provision specifying, or for working out, when a DSMS is in force for a diving operation.

8.Liability for payment of DSMS levy

(1)The person liable to pay the DSMS levy is the person responsible for the DSMS.

(2)The regulations may make provision specifying, or for working out, the person responsible for a DSMS.

9.Amount of DSMS levy

(1)The amount of DSMS levy payable is the amount specified in, or worked out in accordance with, the regulations.

(2)Without limiting section 26(3), the regulations may specify different amounts of DSMS levy, or different means of working out amounts of DSMS levy, for different classes of DSMSs.

 

313.Section 10 amended

(1)In section 10 delete “CEO” (each occurrence) and insert:

 

CIPS

 

(2)In section 10(2) delete “1969 or the Petroleum (Submerged Lands) Act 1982.” and insert:

 

1969, the Petroleum (Submerged Lands) Act 1982 or the Work Health and Safety Act 2020.

 

314.Section 11 amended

In section 11(2) delete “CEO.” and insert:

 

CIPS.

 

315.Section 12 amended

(1)In section 12(1) delete “CEO,” and insert:

 

CIPS,

 

(2)In section 12(2) delete “CEO” (each occurrence) and insert:

 

CIPS

 

316.Section 13 amended

In section 13 delete “CEO” and insert:

 

CIPS

 

317.Section 14 amended

In section 14(2) delete “CEO” (each occurrence) and insert:

 

CIPS

 

318.Section 15 amended

In section 15 delete “CEO” and insert:

 

CIPS

 

319.Section 16 amended

In section 16 delete “CEO” and insert:

 

CIPS

 

320.Section 18 amended

In section 18(1):

(a)delete “CEO,” and insert:

 

CIPS,

 

(b)in paragraph (a)(i) delete “CEO” and insert:

 

CIPS

 

Note:The heading to amended section 18 is to read:

CIPS may require information and records

 

321.Section 21 amended

Delete section 21(3)(b) to (d) and insert:

 

(b)the Work Health and Safety Act 2020 in relation to petroleum operations and geothermal energy operations.

 

322.Section 22 amended

(1)In section 22(1) delete “CEO” (each occurrence) and insert:

 

CIPS

 

(2)In section 22(2) delete “CEO.” and insert:

 

CIPS.

 

(3)In section 22(5) delete “CEO” and insert:

 

CIPS

 

323.Section 26 amended

(1)Delete section 26(2)(b) and (c).

(2)After section 26(2) insert:

 

(3)Without limiting subsection (1), the regulations may make different provision for different classes of safety cases or DSMSs and may, accordingly —

(a)provide for the classification of safety cases or DSMSs; and

(b)without limiting paragraph (a), authorise or require the CIPS to determine the classification of a safety case or DSMS for the purposes of the regulations.

 

Subdivision 3 — Petroleum Pipelines Act 1969 amended

324.Act amended

This Subdivision amends the Petroleum Pipelines Act 1969.

325.Section 4 amended

In section 4(1) delete the definitions of: