Commonwealth Numbered Regulations - Explanatory Statements

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OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) REGULATIONS 1991 NO. 266

Statutory Rules 1991 No. 266

Occupational Health and Safety (Commonwealth Employment) Regulations

(Issued by the Authority of the Minister for Industrial Relations)

Section 82 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

The Act provides for the protection of the health and safety of Commonwealth employees at work. The Act provides a framework within which Commonwealth employers and employees may co-operate to address health and safety issues in the workplace. The Regulations prescribe various matters which are necessary for the effective operation of the scheme established by the Act.

Sections 1 and 2 of the Act commenced on the day on which the Act received Royal Assent. The remaining provisions will commence on a day to be fixed by Proclamation or on the day after the expiration of a period of six months after Royal Assent, whichever occurs first.

No Proclamation has been issued, nor is one proposed. Consequently, the remaining provisions of the Act, including section 82, will commence on 6 September 1991.

Section 4 of the Acts Interpretation Act 1901 authorises the making of regulations under an Act before the provision concerning the regulation making power comes into effect. Regulations made in those circumstances commence on the same day as the provision authorising the making of regulations.

PART 1 - PRELIMINARY

Regulation 1: Citation

This gives the short title of the Regulations.

Regulation 2: Interpretation

Regulation 2 defines a number of terms used in the Regulations. The Act means the Occupational Health and Safety (Commonwealth Employment) Act 1991. Other terms defined are explained in the context of the relevant regulation.

Regulation 3: What is a dangerous occurrence?

Subsection 5(1) of the Act defines "dangerous occurrence" as "an occurrence, at a workplace, that is declared by the Regulations to be a dangerous occurrence for the purpose of the definition".

The definition of "dangerous occurrence" is relevant to the application of sections 23, 28, 68 and 69 of the Act and is incorporated by reference into all these provisions.

Regulation 3 defines "dangerous occurrence" as an occurrence which endangers the health and safety of an employee or an occurrence at a workplace that arises from workplace operations and endangers the health or safety of another person at or near a workplace. The regulation also sets out circumstances which will be taken to constitute a dangerous occurrence. The matters specified in detail relate to malfunctioning breathing apparatus damage to particular equipment; uncontrolled explosion, fire or release of dangerous substances: electrical short-circuit; collapse of an excavation or other parts of a workplace.

Regulation 4: What is an employing authority?

Subsection 5(1) of the Act defines an "employing authority" to mean:

(a)       in relation to a person employed by the Commonwealth:

(i)       the person or body specified in the regulations to be the employing authority in relation to that first-mentioned person or in relation to a class of persons that includes the first-mentioned person; or

(ii)       if the regulations do not specify a person or body the Secretary of the Department.

Without a specification under subparagraph (i) of the definition, the Secretary of the Department of Defence would be the employing authority for both civilian and military personnel in that Department. In order that the Secretary be the employing authority in relation to civilian personnel of the Department of Defence and the Chief of the Defence Force be the employing authority for members of the Australian Defence Force, regulation 4 specifies that, in relation to members of the Australian Defence Force, the Chief of the Australian Defence Force is the employing authority.

PART 2 - ELECTIONS CONDUCTED BY UNIONS

Section 25 of the Act provides for the selection of a health and safety representative for each designated work group. Subsection 25(4) provides for the election of health and safety representatives. Paragraph 82(1)(c) provides that regulations may be made prescribing procedures for the election of persons under section 25, as health and safety representatives.

Paragraph 25(4)(a) of the Act provides for the election of a health and safety representative to be conducted by the involved union where there is only one involved union in relation to the group. Paragraph 25(4)(b) provides for conduct of election by a specified union where there is more than one involved union and the unions agree that the election should be conducted by a specified union.

Regulation 5 - Involved union to authorise returning officer

Subregulation 5(1) provides for the appointment of a person to conduct an election by a union.

Subregulations 5(2) and 5(3) provide that a person appointed under subregulation 5(1) must conduct the election in accordance with that union's rules, modified to the extent necessary to comply with the Act.

PART 3 - ELECTIONS CONDUCTED BY RETURNING OFFICERS

Paragraph 25(4)(c) of the Act provides that if there is no involved union in relation to the group an election may be conducted by a person authorised by the Commission to conduct elections under the section.

The Regulations set minimum requirements for the conduct of elections held by the Commission.

Division 1 - Preliminary matters

Regulation 6 - Commission to authorise person to conduct election

Regulation 6 provides that a person authorised to conduct elections under paragraph 25(4)(c) of the Act may be appointed by a Commission State Manager to conduct an election. "Returning officer" is defined in regulation 2 as a person appointed under regulation 6.

Regulation 7 - Dates to be fixed for elections

Regulation 7 contains provisions dealing with the notice to be given of an election. The provisions are designed to ensure that all employees of the designated work group are given reasonable notice of the ballot and a reasonable opportunity to vote.

Division 2 - Nominations

Regulation 8 - Manner of nomination

Regulation 8 contains requirements in relation to the nomination of candidates.

Regulation 9 - Correction of defective nominations

Regulation 9 sets out procedures to be followed by the returning officer in relation to correcting defective nominations and nominations from persons who appear to be ineligible. The procedures are intended to ensure that a prospective nominee receives notification of possible deficiencies in his or her nomination and has the opportunity to rectify any deficiencies.

Regulation 10 - Withdrawal of nomination

Regulation 10 provides for a candidate to withdraw his or her nomination.

Regulation 11 - Declaration of nominations

Subregulation 11(1) requires the returning officer to display nominations in the relevant workplace or, if there is only one candidate, to declare that candidate elected.

Subregulation 11(2) requires the returning officer to conduct a poll of employees in the designated work group if there is more than one candidate.

Division 3 - The poll

Regulation 12 - Number of votes

Regulation 12 provides that each person eligible to vote is entitled to one vote only.

Regulation 13 - Right to secret ballot

Regulation 13 provides for a member of the designated work groin to request a secret ballot. This provision, in conjunction with regulation 14, will ensure that tire election system is flexible and fair.

Regulation 14 - Conduct of poll by secret ballot

Regulation 14 requires the returning officer to issue ballot papers of a secret ballot is requested and to conduct the election in accordance with Divisions 4 and 5.

Regulation 15 - Conduct of poll if no request made for secret ballot

Regulation 15 provides that if there is no request for a secret ballot the returning officer may conduct a poll in a manner determined by him or her to produce a fair result.

Regulation 16 - If no candidate is elected

Regulation 16 provides that if no candidate is elected the election is taken to have failed.

Division 4 - Polling by secret ballot

Regulation 17 - Ballot Papers

Regulation 17 sets out the matters to be contained in a ballot paper.

Regulation 18 - Distribution of ballot papers

Regulation 18 specifies the manner in which the returning officer is to distribute the ballot papers.

Regulation 19 - Manner of voting by secret ballot

Subregulation 19(1) provides for a "first past the post" system of voting.

Subregulation 19(2) makes provision for lodging ballot papers either in a ballot box or, if provision has been made for a postal ballot under subregulation 18(2), by mail.

Subregulation 19(3) makes provision for dealing with spoilt ballot papers.

Division 5 - The count

Regulation 20 - Envelopes given to returning officer

Regulation 20 requires the returning officer to place votes in a secure ballot box until the count and not to admit votes received after the poll.

Regulation 21 - Scrutineers

Regulation 21 provides for scrutineers to be appointed.

Regulation 22 - Returning Officer to be advised of scrutineers

Regulation 22 provides for notification of scrutineers to the returning officer.

Regulation 23 - Conduct of the count

Regulation 23 sets out the procedures to be followed by the returning officer in conducting the count.

Regulation 24 - Informal ballot payers

Regulation 24 sets out the circumstances in which a ballot paper is informal.

Regulation 25 - Completion of the count

Regulation 25 requires the returning officer to prepare and sign a statement setting out the number of votes given to each candidate and the number of informal votes.

Regulation 26 - Destruction of election material

Regulation 26 allows the returning officer to destroy specified election material after six months.

Division 6 - Result of election

Regulation 27 - Request for recount

Regulation 27 allows the returning officer to conduct a recount on his or her own motion and requires a recount on request by a candidate.

Regulation 28 - Irregularities at election

Regulation 28 makes provision for election irregularities.

Regulation 29 - Result of poll

Regulation 29 requires the returning officer to notify the employer, the relevant Commission State Manager and the successful candidate of the result of the election.

PART 4 - ADVICE, INVESTIGATIONS AND INQUIRIES

Regulation 30 - Form of provisional improvement notices

Section 29 of the Act empowers a health and safety representative to issue a provisional improvement notice to a person who is contravening, or has contravened and is likely to contravene again, a section of the Act or a regulation.

Paragraph 82(1)(g) of the Act provides for regulations prescribing forms for the purposes of the Act or regulations.

Regulation 30 makes provision for the form of a provisional improvement notice. The form is set out in Schedule 1.

Regulation 31 - Investigators - identity cards

Section 40 of the Act provides for the appointment of investigators. Subsection 40(6) requires that an investigator be issued with an identity card in a prescribed form.

Regulation 31 provides that the prescribed form of an identity card is set out in Schedule 2.

Subregulation 31(2) requires a person to return the card to the Commission as soon as possible after ceasing to be an investigator.

Regulation 32 - Investigators - certificates of appointment

Subregulations 32(1) and 32(2) require that the Commission issue to an investigator a certificate of appointment and specifies the information which it must contain, including any restrictions on the power of the investigator.

Subregulation 32(3) provides for the issue of another certificate if additional restrictions are imposed.

Subregulation 32(4) requires the investigator to carry the certificate, or a copy of the certificate, when exercising powers or performing functions under the Act.

Subregulation 32(5) requires a person to return the certificate to the Commission as soon as possible after ceasing to be an investigator.

A penalty of $1000 applies.

Regulation 33 - Taking samples for testing etc.

Section 44 of the Act empowers an investigator, in the course of conducting an investigation, to remove plant or equipment from the workplace or take a sample of substances or things for inspection or testing.

Subregulation 33(1) provides that, where it is practicable to do so, an investigator is required when taking a sample divide the sample into three parts, where the sample is divisible. The regulation requires the investigator to:

•       give one part to the employer from which the sample was taken:

•       forward another part for the carrying out of inspections, examination or testing under the Act; and

•       retain the remaining part as an extra test sample if necessary.

Subregulation 33(2) specifies that where the sample is not divisible into three parts, the investigator must provide the whole sample for the carrying out of inspections, examination or testing.

Subregulation 33(3) requires the investigator to take all reasonable steps to ensure that the plan is not damaged or the sample contaminated while it is away from the workplace.

Regulation 34 - Form of certain notices

The Act provides for written notice to be given in a variety of circumstances.

Subsection 44(2) of the Act requires an investigator who removes plant or a sample of a substance or thing from the workplace to notify specified persons in writing and to provide reasons for the action.

Subsection 45(1) of the Act empowers an investigator to issue a notice to a person directing that person to ensure that a particular workplace, or a specified part of a workplace, or a particular plant, substance or thing not be disturbed for a specified period.

Under section 46 of the Act, an investigator may issue a notice to an employer directing the employer to ensure that a specified activity ceases or ceases to be engaged in a specified manner.

Subsection 47(1) of the Act empowers an investigator to issue an improvement notice to a person whom he or she believes is contravening or has contravened and is likely to contravene again a provision of the Act or regulations.

Paragraph 82(1)(g) of the Act provides for regulations prescribing forms for the purposes of the Act or regulations.

Regulation 34 provides that a notice issued by an investigator under subsection 44(2), subsection 45(1), subsection 46(1) or subsection 47(1) of the Act must be in the approved form.

The term "approved form" is defined in regulation 2 as a form provided by the Commission for the purposes of the provision where the expression appears.

Regulation 35 - Form of reports of investigations

Section 53 requires an investigator who has conducted an investigation to provide the Commission with a written report.

Regulation 35 provides that such a report must be in the approved form.

PART 4 - MISCELLANEOUS

Regulation 36 - Witnesses allowances and expenses

Section 63 of the Act provides that a person served with a summons under section 56 is entitled to be paid by the Commonwealth such allowances for travelling and other expenses as are prescribed. Schedule 3 sets out the allowances payable.

Revelation 37 - Service of notices

Paragraph 82(1)(f) of the Act provides that regulations may be made prescribing the manner in which notices are to be served under the Act or the regulations.

Subregulation 37(1) specifies persons to whom a notice that is to be given to the Commission may be delivered.

Subregulation 37(2) makes similar provision in relation to notices to be served on an employer.

Subregulation 37(3) deals with service of a notice on a body corporate.

Subregulation 37(4) enables notices to be served by electronic facsimile message or computer link-up to the last known facsimile number or address of that person.

Subregulation 37(5) provides that a person who serves a notice by facsimile must advise the recipient by telephone either of the fact that the notice is being or has been sent and must send a copy of the notice by pre-paid post to the last known address of the recipient.