Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 151B]
[Heading inserted by No. 13 of 2005
s. 47.]
[Heading inserted by No. 13 of 2005
s. 47.]
The objects of this
Schedule are, in relation to facilities located in the adjacent
area —
(a) to
secure the occupational safety and health of persons at or near those
facilities; and
(b) to
protect persons at or near those facilities from risks to occupational safety
and health arising out of activities being conducted at those facilities; and
(c) to
ensure that expert advice is available on occupational safety and health
matters in relation to those facilities; and
(d) to
promote an occupational environment for members of the workforce at those
facilities that is adapted to their needs relating to safety and health; and
(e) to
foster a consultative relationship between all relevant persons concerning the
safety and health of members of the workforce at those facilities.
[Clause 1 inserted by No. 13 of 2005
s. 47.]
The following is a
simplified outline of this Schedule —
•
This Schedule sets up a scheme to regulate occupational safety and
health matters at or near facilities.
•
Occupational safety and health duties are imposed on the
following —
(a) the
operator of a facility;
(b) a
person in control of a part of a facility, or of any work carried out at a
facility;
(c) an
employer;
(d) a
manufacturer of plant, or a substance, for use at a facility;
(e) a
supplier of a facility, or of any plant or substance for use at a facility;
(f) a
person who erects or installs a facility, or any plant at a facility;
(g) a
person at a facility.
•
A group of members of the workforce at a facility may be established as
a designated work group.
•
The members of a designated work group may select a safety and health
representative for that designated work group.
•
The safety and health representative may exercise certain powers for
the purpose of promoting or ensuring the occupational safety and health of
group members.
•
An inspector may conduct an inspection —
(a) to
ascertain whether a listed OSH law is being complied with; or
(b)
concerning a contravention or a possible contravention of a listed OSH law; or
(c)
concerning an accident or dangerous occurrence that has happened at or near a
facility.
•
The operator of a facility must report accidents and dangerous
occurrences to the Minister.
[Clause 2 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 16 and 34.]
In this
Schedule —
accident includes the contraction of a disease;
associated offshore place , in relation to a
facility, means any offshore place near the facility where activities
(including diving activities) relating to the construction, installation,
operation, maintenance or decommissioning of the facility take place, but does
not include —
(a)
another facility; or
(b) a
supply vessel, offtake tanker, anchor handler or tugboat; or
(c) a
vessel, or structure, that is declared by the regulations not to be an
associated offshore place;
contract includes an arrangement or understanding;
contractor has the meaning given by clause 7;
dangerous occurrence means an occurrence declared
by the regulations to be a dangerous occurrence for the purposes of this
definition;
designated work group means —
(a) a
group of members of the workforce at a facility that is established as a
designated work group under clause 18 or 19; or
(b) that
group as varied in accordance with clause 20 or 21;
employee , in relation to an employer, means an
employee of that employer;
employer means an employer who carries on an
activity at a facility;
facility means a facility as defined by
clause 4, and —
(a)
includes a facility (as defined by clause 4) that is being constructed or
installed; and
(b)
except in the definition of associated offshore place , includes an associated
offshore place in relation to a facility (as defined by clause 4);
group member , in relation to a designated work
group at a facility, means a person who is —
(a) a
member of the workforce at that facility; and
(b)
included in that designated work group;
improvement notice means an improvement notice
issued under clause 61(1);
inspection means an inspection conducted under
Division 4 and includes an investigation or inquiry;
member of the workforce , in relation to a
facility, means a natural person who does work at the facility,
whether —
(a) as
an employee of the operator of the facility or of another person; or
(b) as a
contractor of the operator or of another person;
operator , in relation to a facility or proposed
facility, means the person who, under the regulations, is taken to be the
operator of that facility or proposed facility;
operator’s representative means a person
present at a facility in compliance with the obligations imposed on the
operator by clause 5;
own includes own jointly and own in part;
plant includes any machinery, equipment or tool,
or any component;
premises includes the following —
(a) a
structure or building;
(b) a
place (whether or not enclosed or built on);
(c) a
part of a thing referred to in paragraph (a) or (b);
prohibition notice means a prohibition notice
issued under clause 59(1);
proposed facility means a facility proposed to be
constructed, installed or operated;
recovery , in relation to petroleum, includes all
processes directly or indirectly associated with its recovery;
registered organisation means an
organisation —
(a)
within the meaning of the Workplace Relations Act 1996 5 of the
Commonwealth; or
(b) as
defined in section 7(1) of the Industrial Relations Act 1979 ;
regulated business premises means —
(a) a
facility; or
(b)
premises that are —
(i)
occupied by a person who is the operator of a facility;
and
(ii)
used, or proposed to be used, wholly or principally in
connection with an offshore petroleum operation;
regulations means regulations made for the
purposes of this Schedule;
Tribunal has the meaning given to that term in the
Occupational Safety and Health Act 1984 section 51G(2);
work means work offshore that is directly or
indirectly related to the construction, installation, operation, maintenance
or decommissioning of a facility;
workforce representative means —
(a) in
relation to a person who is a member of the workforce at a
facility — a registered organisation of which that person is a
member, if the person is qualified to be a member of that organisation because
of the work the person performs at the facility; or
(b) in
relation to a designated work group or a proposed designated work
group — a registered organisation of which a person who is, or who
is likely to be, in the work group is a member, if the person is qualified to
be a member of that organisation because of the work the person performs, or
will perform, at a facility as a member of the group;
work group employer , in relation to a designated
work group at a facility, means an employer of one or more group members, but
does not include the operator of the facility;
workplace , in relation to a facility, means the
whole facility or any part of the facility.
[Clause 3 inserted by No. 13 of 2005
s. 47.]
(1) A vessel or
structure is taken to be a facility for the purposes of this Schedule while
that vessel or structure —
(a) is
located at a site in the adjacent area; and
(b) is
being used, or prepared for use, at that site —
(i)
for the recovery of petroleum, for the processing of
petroleum, or for the storage and offloading of petroleum, or for any
combination of those activities; or
(ii)
for the provision of accommodation for persons working on
another facility, whether connected by a walkway to that other facility or
not; or
(iii)
for drilling or servicing a well for petroleum or doing
work associated with the drilling or servicing process; or
(iv)
for laying pipes for petroleum, including any
manufacturing of such pipes, or for doing work on an existing pipe; or
(v)
for the erection, dismantling or decommissioning of a
vessel or structure referred to in subparagraph (i), (ii), (iii) or (iv);
or
(vi)
for any other purpose related to an offshore petroleum
operation that is prescribed for the purposes of this subparagraph.
(2) Subclause (1)
applies to a vessel or structure —
(a)
whether it is floating or fixed; and
(b)
whether or not it is capable of independent navigation.
(3) Subclause (1)
has effect subject to subclauses (6) and (7).
(4) A vessel or
structure used for a purpose referred to in subclause (1)(b)(i)
includes —
(a) any
wells and associated plant and equipment by means of which petroleum processed
or stored at the vessel or structure is recovered; and
(b) any
pipe or system of pipes through which petroleum is conveyed from a well to the
vessel or structure; and
(c) any
secondary line associated with the vessel or structure.
(5) For the purposes
of subclause (1), a vessel or structure that is located offshore for the
purpose of laying pipes as described in subclause (1)(b)(iv) is taken to
be located at a site, despite the fact that the vessel or structure moves as
the pipe laying process proceeds.
(6) Despite
subclause (1), a vessel or structure is taken not to be a facility for
the purposes of this Schedule if the vessel or structure is —
(a) an
offtake tanker; or
(b) a
tug or an anchor handler; or
(c) a
vessel or structure used for supplying a facility or otherwise travelling
between a facility and the shore; or
(d) a
vessel or structure used for any purpose such that it is declared by the
regulations not to be a facility.
(7) In determining
when a vessel or structure that has the potential to be used for one or more
of the purposes referred to in subclause (1)(b) is in fact being so used,
the vessel or structure is taken —
(a) to
commence to be so used only at the time when it arrives at the site where it
is to be so used and any activities necessary to make it operational at that
site are begun; and
(b) to
cease to be so used when operations cease, and the vessel or structure has
been returned either to a navigable form or to a form in which it can be towed
to another place.
(8) Each of the
following is taken to be a facility for the purposes of this
Schedule —
(a) a
pipeline subject to a pipeline licence;
(b) if a
pipeline subject to a pipeline licence conveys petroleum recovered from a well
without the petroleum having passed through another facility — that
pipeline, together with —
(i)
that well and associated plant and equipment; and
(ii)
any pipe or system of pipes through which petroleum is
conveyed from that well to that pipeline.
(9) In
subclause (8)(b) —
facility does not include a pipeline.
[Clause 4 inserted by No. 13 of 2005
s. 47.]
5 . Operator must ensure presence of
operator’s representative
(1) The operator of a
facility must ensure that, at all times when one or more natural persons are
present at a facility, there is also present a natural person (the
operator’s representative ) who has day to day management and control of
operations at the facility.
Penalty: a fine of $5 500.
(2) The operator of a
facility must ensure that the name of the operator’s representative at
the facility is displayed in a prominent place at the facility.
Penalty: a fine of $5 500.
(3) Subclause (1)
does not imply that, if the operator is a natural person, the operator’s
representative at the facility may not be, from time to time, the operator.
[Clause 5 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
6 . Safety and health of persons using an
accommodation amenity
For the avoidance of
doubt, a reference in this Schedule to the occupational safety and health of a
person includes a reference to the safety and health of a person using an
accommodation amenity provided for the accommodation of persons working on
another facility.
[Clause 6 inserted by No. 13 of 2005
s. 47.]
For the purposes of
this Schedule, a natural person is taken to be a “contractor” of
another person (the relevant person ) if the natural person does work at a
facility under a contract for services between —
(a) the
relevant person; and
(b)
either —
(i)
the natural person; or
(ii)
the employer of the natural person.
[Clause 7 inserted by No. 13 of 2005
s. 47.]
Division 2 — Occupational safety and health
[Heading inserted by No. 13 of 2005
s. 47.]
Subdivision 1 — Duties relating to occupational safety
and health
[Heading inserted by No. 13 of 2005
s. 47.]
(1) The operator of a
facility must take all reasonably practicable steps to ensure
that —
(a) the
facility is safe and without risk to the health of any person at or near the
facility; and
(b) all
work and other activities carried out on the facility are carried out in a
manner that is safe and without risk to the health of any person at or near
the facility.
Penalty: a fine of $110 000.
(2) Without limiting
the generality of subclause (1), the operator of a facility
must —
(a)
provide and maintain a physical environment at the facility that is safe and
without risk to health; and
(b)
provide and maintain adequate amenities for the safety and health of all
members of the workforce at the facility; and
(c)
ensure that any plant, equipment, materials and substances at the facility are
safe and without risk to health; and
(d)
implement and maintain systems of work at the facility that are safe and
without risk to health; and
(e)
implement and maintain appropriate procedures and equipment for the control
of, and response to, emergencies at the facility; and
(f)
provide all members of the workforce, in appropriate languages, with the
information, instruction, training and supervision necessary for them to carry
out their activities in a manner that does not adversely affect the
occupational safety and health of persons at the facility; and
(g)
monitor the occupational safety and health of all members of the workforce and
keep records of that monitoring; and
(h)
provide appropriate medical and first aid services at the facility; and
(i)
develop, in consultation with members of the workforce
and workforce representatives, a policy relating to occupational safety and
health that —
(i)
will enable the operator and the members of the workforce
to cooperate effectively in promoting and developing measures to ensure the
occupational safety and health of persons at the facility; and
(ii)
will provide adequate mechanisms for reviewing the
effectiveness of the measures; and
(iii)
provides for the making of an agreement that complies
with subclauses (4) and (5).
Penalty: a fine of $110 000.
(3)
Subclause (2)(i) does not require the operator of a facility to engage in
consultations with a workforce representative unless a member of the workforce
at the facility has requested the workforce representative to be involved in
those consultations.
(4) The agreement
referred to in subclause (2)(i)(iii) must be between —
(a) on
the one hand — the operator; and
(b) on
the other hand —
(i)
the members of the workforce; and
(ii)
if a member of the workforce at the facility has
requested a workforce representative in relation to the member to be a party
to that agreement — that workforce representative.
(5) The agreement
referred to in subclause (2)(i)(iii) must provide appropriate mechanisms
for continuing consultation between —
(a) on
the one hand — the operator; and
(b) on
the other hand —
(i)
the members of the workforce; and
(ii)
if a member of the workforce at the facility has
requested a workforce representative in relation to the member to be involved
in consultations on a particular occasion — that workforce
representative.
(6) The agreement may
provide for any other matters agreed between the parties to it.
[Clause 8 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
9 . Duties of persons in control of parts of
facility or particular work
(1) A person who is in
control of any part of a facility, or of any particular work carried out at a
facility, must take all reasonably practicable steps to ensure
that —
(a) that
part of the facility, or the place where that work is carried out, is safe and
without risk to health; and
(b) if
the person is in control of particular work — the work is carried
out in a manner that is safe and without risk to health.
Penalty: a fine of $110 000.
(2) Without limiting
the generality of subclause (1), a person who is in control of any part
of a facility, or of any particular work carried out at a facility,
must —
(a)
ensure that the physical environment at that part of the facility, or at the
place where the work is carried out, is safe and without risk to health; and
(b)
ensure that any plant, equipment, materials and substances at or near that
part of the facility or that place, or used in that work, are safe and without
risk to health; and
(c)
implement and maintain systems of work at that part of the facility, or in
carrying out work at that place, that are safe and without risk to health; and
(d)
ensure a means of access to, and egress from, that part of the facility or
that place that is safe and without risk to health; and
(e)
provide all members of the workforce located at that part of the facility or
engaged on that work, in appropriate languages, with the information,
instruction, training and supervision necessary for them to carry out their
work in a manner that is safe and without risk to health.
Penalty: a fine of $110 000.
[Clause 9 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
(1) An employer must
take all reasonably practicable steps to protect the safety and health of
employees at a facility.
Penalty: a fine of $110 000.
(2) Without limiting
the generality of subclause (1), an employer must —
(a)
provide and maintain a working environment that is safe for employees and
without risk to their health; and
(b)
ensure that any plant, equipment, materials and substances used in connection
with the employees’ work are safe and without risk to health; and
(c)
implement and maintain systems of work that are safe and without risk to
health; and
(d)
provide a means of access to, and egress from, the employees’ work
location that is safe and without risk to health; and
(e)
provide the employees, in appropriate languages, with the information,
instruction, training and supervision necessary for them to carry out their
work in a manner that is safe and without risk to health.
Penalty: a fine of $110 000.
(3) A person has, in
respect of a contractor of that person, the same obligations that an employer
has under subclauses (1) and (2) in respect of an employee of that
employer, but only in relation to —
(a)
matters over which the first-mentioned person has control; or
(b)
matters over which —
(i)
the first-mentioned person would have had control apart
from express provision to the contrary in a contract; and
(ii)
the first-mentioned person would, in the circumstances,
usually be expected to have had control.
(4) An employer must
take all reasonable steps to —
(a)
monitor the safety and health of employees; and
(b) keep
records of that monitoring.
Penalty: a fine of $110 000.
[Clause 10 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
11 . Duties of manufacturers in relation to plant
and substances
(1) A manufacturer of
any plant that the manufacturer knows or ought reasonably to expect will be
used by members of the workforce at a facility must take all reasonably
practicable steps —
(a) to
ensure that the plant is so designed and constructed as to be, when properly
used, safe and without risk to health; and
(b) to
carry out, or cause to be carried out, the research, testing and examination
necessary in order to discover, and to eliminate or minimise, any risk to
safety or health that may arise from the use of the plant; and
(c) to
make available, in connection with the use of the plant at a facility,
adequate written information about —
(i)
the use for which it is designed and has been tested;
(ii)
details of its design and construction; and
(iii)
any conditions necessary to ensure that, when put to the
use for which it was designed and tested, it will be safe and without risk to
health.
Penalty: a fine of $22 000.
(2) A manufacturer of
any substance that the manufacturer knows or ought reasonably to expect will
be used by members of the workforce at a facility must take all reasonably
practicable steps —
(a) to
ensure that the substance is so manufactured as to be, when properly used,
safe and without risk to health; and
(b) to
carry out, or cause to be carried out, the research, testing and examination
necessary to discover, and to eliminate or minimise, any risk to safety or
health that may arise from the use of the substance; and
(c) to
make available, in connection with the use of the substance at a facility,
adequate written information concerning —
(i)
the use for which it is manufactured and has been tested;
and
(ii)
details of its composition; and
(iii)
any conditions necessary to ensure that, when put to the
use for which it was manufactured and tested, it will be safe and without risk
to health; and
(iv)
the first aid and medical procedures that should be
followed if the substance causes injury.
Penalty: a fine of $22 000.
(3) If —
(a)
plant or a substance is imported into Australia by a person who is not its
manufacturer; and
(b) at
the time of the importation, the manufacturer of the plant or substance does
not have a place of business in Australia,
the first-mentioned
person is taken, for the purposes of this clause, to be the manufacturer of
the plant or substance.
(4) This clause does
not affect the operation of any other law of this State that imposes an
obligation on a manufacturer in respect of defective goods or in respect of
information to be supplied in relation to goods.
[Clause 11 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
12 . Duties of suppliers of facilities, plant and
substances
(1) A supplier of a
facility, or of any plant or substance that the supplier ought reasonably to
expect will be used by members of the workforce at a facility, must take all
reasonably practicable steps —
(a) to
ensure that, at the time of supply, the facility, or the plant or substance,
is in such condition as to be, when properly used, safe and without risk to
health; and
(b) to
carry out, or cause to be carried out, the research, testing and examination
necessary to discover, and to eliminate or minimise, any risk to safety or
health that may arise from the condition of the facility, plant or substance;
and
(c) to
make available —
(i)
in the case of a facility — to the operator of
a facility; and
(ii)
in the case of plant or substance — to the
person to whom the plant or substance is supplied,
adequate written
information, in connection with the use of the facility, plant or substance
(as the case requires) about —
(iii)
the condition of the facility, plant or substance at the
time of supply; and
(iv)
any risk to the safety and health of members of the
workforce at the facility to which the condition of the facility, plant or
substance may give rise unless it is properly used; and
(v)
the steps that need to be taken in order to eliminate
that risk; and
(vi)
in the case of a substance — the first aid and
medical procedures that should be followed if the condition of the substance
causes injury to a member of the workforce at the facility.
Penalty: a fine of $22 000.
(2) For the purposes
of subclause (1), if a person (the ostensible supplier ) supplies
to a person either a facility, or any plant or substance that is to be used by
members of the workforce at a facility, and the ostensible
supplier —
(a)
carries on the business of financing the acquisition or the use of goods by
other persons; and
(b) has,
in the course of that business, acquired an interest in the facility, or in
the plant or substance, from another person (the actual supplier ), solely for
the purpose of financing its acquisition by, or its provision to, the person
to whom it is finally supplied; and
(c) has
not taken possession of the facility, plant or substance, or has taken
possession of the facility, plant or substance solely for the purpose of
passing possession of the facility, plant or substance to the person to whom
it is finally supplied,
a reference in
subclause (1) to a supplier is, in relation to the facility, plant or
substance referred to in this subclause, to be read as a reference to the
actual supplier and not as a reference to the ostensible supplier.
(3) This clause does
not affect the operation of any other law of this State that imposes an
obligation in respect of the sale or supply of goods or in respect of the
information to be supplied in relation to goods.
[Clause 12 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
13 . Duties of persons erecting facilities or
installing plant
(1) A person who
erects or installs a facility, or erects or installs any plant at a facility,
must take all reasonably practicable steps to ensure that the facility or
plant is not erected or installed in such a way that it is unsafe or
constitutes a risk to health.
Penalty: a fine of $22 000.
(2) This clause does
not affect the operation of any other law of this State that imposes an
obligation in respect of the erection or installation of structures or goods
or the supply of services.
[Clause 13 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
14 . Duties of persons in relation to occupational
safety and health
(1) A person at a
facility must, at all times, take all reasonably practicable
steps —
(a) to
ensure that the person does not take any action, or make any omission, that
creates a risk, or increases an existing risk, to the occupational safety and
health of that person or of any other person at or near the facility; and
(b) in
respect of any obligation imposed on the operator or on any other person under
a listed OSH law — to cooperate with the operator or that other
person to the extent necessary to enable the operator or that other person to
fulfil that obligation; and
(c) to
use equipment that is —
(i)
supplied to the person by the operator, an employer of
the person or any other person having control of work at a facility (the
equipment supplier ); and
(ii)
necessary to protect the occupational safety and health
of the person, or of any other person at or near the facility,
in accordance with any
instructions given by the equipment supplier, consistent with the safe and
proper use of the equipment.
Penalty: a fine of $5 500.
(2) Despite
subclause (1), the choice or manner of use, or choice and manner of use,
of equipment of the kind referred to in subclause (1)(c)(ii) is a matter
that may be, consistently with each listed OSH law —
(a)
agreed on between the equipment supplier and any relevant safety and health
representative; or
(b)
agreed on by a safety and health committee.
(3) If an agreement of
the kind referred to in subclause (2)(a) or (b) provides a process for
choosing equipment of a particular kind that is to be provided by the
equipment supplier, action must not be taken against a person for failure to
use equipment of that kind that is so provided unless the equipment has been
chosen in accordance with that process.
(4) If an agreement of
the kind referred to in subclause (2)(a) or (b) provides a process for
determining the manner of use of equipment of a particular kind, action must
not be taken against a person for failure to use, in the manner required by
the equipment supplier, equipment of that kind that is so provided unless the
manner has been determined in accordance with that process.
[Clause 14 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
15 . Reliance on information supplied or results
of research
(1) For the purpose of
the application of clause 8, 9 or 10 to the use of plant or a substance,
a person on whom an obligation is imposed under any of those clauses is
regarded as having taken reasonably practicable steps as required by the
relevant clause, in relation to the use of the plant or substance, to the
extent that —
(a) the
person ensured, so far as practicable, that its use was in accordance with the
information supplied by the manufacturer or the supplier of the plant or
substance relating to occupational safety and health in its use; and
(b) it
was reasonable for the person to rely on that information.
(2) For the purpose of
the application of clause 11 or 12 to carrying out research, testing and
examining a facility, or any plant or substance, a person on whom an
obligation is imposed under either of those clauses is regarded as having
taken reasonably practicable steps as required by the relevant clause, in
relation to carrying out research, testing and examining the facility, plant
or substance, to the extent that —
(a) the
research, testing or examination has already been carried out by or on behalf
of someone else; and
(b) it
was reasonable for the person to rely on that research, testing or
examination.
(3) For the purpose of
the application of clause 13 to the erection of a facility or the
erection or installation of plant at a facility, a person on whom an
obligation is imposed under that clause is regarded as having taken reasonably
practicable steps as required by that clause to the extent that —
(a) the
person ensured, so far as is reasonably practicable, that the erection of the
facility, or the erection or installation of the plant, was —
(i)
in accordance with information supplied by the
manufacturer or supplier of the facility or plant relating to its erection or
its installation; and
(ii)
consistent with the occupational safety and health of
persons at the facility;
and
(b) it
was reasonable for the person to rely on that information.
(4) Nothing in this
clause limits the generality of what constitutes reasonably practicable steps
as required by clause 8, 9, 10, 11, 12 or 13.
[Clause 15 inserted by No. 13 of 2005
s. 47.]
Subdivision 2 — Regulations relating to occupational
safety and health
[Heading inserted by No. 13 of 2005
s. 47.]
16 . Regulations relating to occupational safety
and health
(1) The regulations
may make provision relating to any matter affecting, or likely to affect, the
occupational safety and health of persons at a facility.
(2) Regulations made
for the purposes of subclause (1) may make provision for any or all of
the following —
(a)
prohibiting or restricting the performance of all work or specified work at a
facility;
(b)
prohibiting or restricting the use of all plant or specified plant at a
facility;
(c)
prohibiting or restricting the carrying out of all processes or a specified
process at a facility;
(d)
prohibiting or restricting the storage or use of all substances or specified
substances at a facility;
(e)
specifying the form in which information required to be made available under
clause 11(1)(c) or 12(1)(c) is to be so made available;
(f)
prohibiting, except in accordance with licences granted under the regulations,
the use of specified plant or specified substances at a facility;
(g)
providing for —
(i)
the issue, variation, renewal, transfer, suspension and
cancellation of those licences; and
(ii)
the conditions to which the licences may be subject;
(h)
regulating the maintenance and testing of plant used at a facility;
(i)
regulating the labelling or marking of substances used at
a facility;
(j)
regulating the transport of specified plant or specified substances for use at
a facility;
(k)
prohibiting the performance, at a facility, of specified activities or work
except —
(i)
by persons who satisfy requirements of the regulations as
to qualifications, training or experience; or
(ii)
under the supervision specified in the regulations;
(l)
requiring specified action to avoid accidents or dangerous occurrences;
(m)
providing for, or prohibiting, specified action in the event of accidents or
dangerous occurrences;
(n)
providing for the employment at a facility of persons to perform specified
duties relating to the maintenance of occupational safety and health at the
facility;
(o)
regulating the provision and use, at a facility, of protective clothing and
equipment, safety equipment and rescue equipment;
(p)
providing for monitoring the health of members of the workforce at a facility
and the conditions at the facility;
(q)
requiring employers to keep records of matters related to the occupational
safety and health of employees;
(r)
providing for the provision of first aid equipment and amenities at a
facility.
[Clause 16 inserted by No. 13 of 2005
s. 47.]
Division 3 — Workplace arrangements
[Heading inserted by No. 13 of 2005
s. 47.]
[Heading inserted by No. 13 of 2005
s. 47.]
The following is a
simplified outline of this Subdivision —
•
A group of members of the workforce at a facility may be established as
a designated work group.
•
The members of a designated work group may select a safety and health
representative for that designated work group.
•
The safety and health representative may exercise certain powers for
the purpose of promoting or ensuring the occupational safety and health of
group members.
•
A safety and health committee may be established in relation to the
members of the workforce at a facility.
•
The main function of a safety and health committee is to assist the
operator in relation to occupational safety and health matters.
[Clause 17 inserted by No. 13 of 2005
s. 47.]
Subdivision 2 — Designated work groups
[Heading inserted by No. 13 of 2005
s. 47.]
18 . Establishment of designated work groups by
request
(1) A request to the
operator of a facility to enter into consultations to establish designated
work groups in relation to the members of the workforce at the facility may be
made by —
(a) any
member of the workforce; or
(b) if a
member of the workforce requests a workforce representative in relation to the
member to make the request to the operator — that workforce
representative.
(2) The operator of a
facility must, within 14 days after receiving a request under
subclause (1), enter into consultations with —
(a) if
any member of the workforce made a request to establish designated work
groups —
(i)
that member of the workforce; and
(ii)
if that member requests that the operator enter into
consultations with a workforce representative in relation to the
member — that workforce representative; and
(iii)
each employer (if any) of members of the workforce;
and
(b) if a
workforce representative made a request to establish designated work
groups —
(i)
if a member of the workforce requests that the operator
enter into consultations with that workforce representative — that
workforce representative; and
(ii)
each employer of members of the workforce.
(3) Within
14 days after the completion of consultations about the establishment of
the designated work groups, the operator must, by notifying the members of the
workforce, establish the designated work groups in accordance with the outcome
of the consultations.
[Clause 18 inserted by No. 13 of 2005
s. 47.]
19 . Establishment of designated work groups at
initiative of operator
(1) If, at any time,
the operator of a facility considers that designated work groups should be
established, the operator must enter into consultations with —
(a) all
members of the workforce; and
(b) if a
member of the workforce requests that the operator enter into consultations
with a workforce representative in relation to the member — that
workforce representative; and
(c) each
employer (if any) of members of the workforce.
(2) Within
14 days after the completion of consultations about the establishment of
the designated work groups, the operator must, by notifying the members of the
workforce, establish the designated work groups in accordance with the outcome
of the consultations.
[Clause 19 inserted by No. 13 of 2005
s. 47.]
20 . Variation of designated work groups by
request
(1) A request to the
operator of a facility to enter into consultations to vary designated work
groups that have already been established in relation to the members of the
workforce at the facility may be made by —
(a) any
member of the workforce; or
(b) if a
member of the workforce requests a workforce representative in relation to the
member to make the request to the operator — that workforce
representative.
(2) The operator of a
facility must, within 14 days after receiving a request under
subclause (1), enter into consultations with —
(a) if
any member of the workforce made a request to vary designated work
groups —
(i)
that member of the workforce; and
(ii)
the safety and health representative of each designated
work group affected by the proposed variation; and
(iii)
each work group employer (if any) in relation to each
designated work group affected by the proposed variation;
and
(b) if a
workforce representative made a request to vary designated work
groups —
(i)
if a member of a designated work group affected by the
proposed variation requests that the operator enter into consultations with
that workforce representative in relation to the group — that
workforce representative; and
(ii)
the safety and health representative of each designated
work group affected by the proposed variation; and
(iii)
each work group employer (if any) in relation to each
designated work group affected by the proposed variation.
(3) If —
(a)
consultations take place about the variation of designated work groups that
have already been established; and
(b) as a
result of the consultations, it has been determined that the variation of some
or all of those designated work groups is justified,
then, within
14 days after the completion of the consultations, the operator must, by
notifying the members of the workforce who are affected by the variation, vary
the designated work groups in accordance with the outcome of the
consultations.
[Clause 20 inserted by No. 13 of 2005
s. 47.]
21 . Variation of designated work groups at
initiative of operator
(1) If the operator of
a facility believes the designated work groups should be varied, the operator
may, at any time, enter into consultations about the variations
with —
(a) the
safety and health representative of each of the designated work groups
affected by the proposed variation; and
(b) if a
member of a designated work group affected by the proposed variation requests
that the operator enter into consultations with that workforce representative
in relation to the group — that workforce representative; and
(c) each
work group employer (if any) in relation to each designated work group
affected by the proposed variation.
(2) If —
(a)
consultations take place about the variation of designated work groups that
have already been established; and
(b) as a
result of the consultations, it has been determined that the variation of some
or all of those designated work groups is justified,
then, within
14 days after the completion of the consultations, the operator must, by
notifying the members of the workforce who are affected by the variation, vary
the designated work groups in accordance with the outcome of the
consultations.
[Clause 21 inserted by No. 13 of 2005
s. 47.]
22 . Referral of disagreement to reviewing
authority
(1) If, in the course
of consultations under clause 18, 19, 20 or 21, there is a disagreement
between any of the parties to the consultation about the manner of
establishing or varying a designated work group, any party may, for the
purpose of facilitating that consultation, refer the matter of disagreement to
the reviewing authority.
(2) The party
referring the matter to the reviewing authority must give notice of the
referral to all the other parties to the disagreement.
(3) The reviewing
authority is to —
(a)
resolve the matter of the disagreement referred to the reviewing authority;
and
(b)
notify all parties to the disagreement of the decision.
(4) If the matter of a
disagreement is referred to the reviewing authority, the parties to the
disagreement must complete the consultation in accordance with the resolution
of that matter by the reviewing authority.
(5) In this
clause —
reviewing authority means a person prescribed by
the regulations to be a reviewing authority for the purposes of this clause.
[Clause 22 inserted by No. 13 of 2005
s. 47.]
23 . Manner of grouping members of the workforce
(1) Consultations
about the establishment or variation of a designated work group must be
directed principally at the determination of the manner of grouping members of
the workforce —
(a) that
best and most conveniently enables their interests relating to occupational
safety and health to be represented and safeguarded; and
(b) that
best takes account of the need for any safety and health representative
selected for that designated work group to be accessible to each group member.
(2) The parties to the
consultations must have regard, in particular, to —
(a) the
number of members of the workforce at the facility to which the consultation
relates; and
(b) the
nature of each type of work performed by those members; and
(c) the
number and grouping of those members who perform the same or similar types of
work; and
(d) the
workplaces where each type of work is performed; and
(e) the
nature of any risks to safety and health at each of those workplaces; and
(f) any
overtime or shift working arrangement at the facility.
(3) The designated
work groups must be established or varied in such a way that, so far as
practicable, each of the members of the workforce at a facility is in a
designated work group.
(4) All the members of
the workforce at a facility may be in one designated work group.
[Clause 23 inserted by No. 13 of 2005
s. 47.]
Subdivision 3 — Safety and health representatives
[Heading inserted by No. 13 of 2005
s. 47.]
24 . Selection of safety and health
representatives
(1) One safety and
health representative may be selected for each designated work group.
(2) A person is not
eligible for selection as the safety and health representative for a
designated work group unless the person is a member of the workforce included
in the group.
(3) A person is taken
to have been selected as the safety and health representative for a designated
work group if —
(a) all
the members of the workforce in the group unanimously agree to the selection;
or
(b) the
person is elected as the safety and health representative of the group in
accordance with clause 25.
[Clause 24 inserted by No. 13 of 2005
s. 47.]
25 . Election of safety and health representatives
(1) If —
(a)
there is a vacancy in the office of safety and health representative for a
designated work group; and
(b)
within a reasonable time after the vacancy occurs, a person has not been
selected under clause 24(3)(a),
the operator of the
facility must invite nominations from all group members for election as the
safety and health representative of the group.
(2) If the office of
safety and health representative is vacant and the operator has not invited
nominations within a further reasonable time that is no later than
6 months after the vacancy occurred, the Minister may direct the operator
to do so.
(3) If there is more
than one candidate for election at the close of the nomination period, the
operator must conduct, or arrange for the conduct of, an election at the
operator’s expense.
(4) An election
conducted or arranged to be conducted under subclause (3) must be
conducted in accordance with regulations made for the purposes of this
subclause if this is requested by the lesser of —
(a) 100
members of the workforce normally in the designated work group; or
(b) a
majority of the members of the workforce normally in the designated work
group.
(5) If there is only
one candidate for election at the close of the nomination period, that person
is taken to have been elected.
(6) A person cannot be
a candidate in the election if he or she is disqualified under clause 31.
(7) All the members of
the workforce in the designated work group are entitled to vote in the
election.
(8) An operator
conducting or arranging for the conduct of an election under this clause must
comply with any relevant directions issued by the Minister.
[Clause 25 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 35.]
26 . List of safety and health representatives
The operator of a
facility must —
(a)
prepare and keep up to date a list of all the safety and health
representatives of designated work groups comprising members of the workforce
performing work at the facility; and
(b)
ensure that the list is available for inspection, at all reasonable times,
by —
(i)
the members of the workforce at the facility; and
(ii)
inspectors.
[Clause 26 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 17.]
27 . Members of designated work group must be
notified of selection etc. of safety and health representative
The operator of a
facility must —
(a)
notify members of a designated work group in relation to the facility of a
vacancy in the office of safety and health representative for the designated
work group within a reasonable time after the vacancy arises; and
(b)
notify those members of the name of any person selected (whether under
clause 24(3)(a) or (b)) as safety and health representative for the
designated work group within a reasonable time after the selection is made.
[Clause 27 inserted by No. 13 of 2005
s. 47.]
(1) A safety and
health representative for a designated work group holds office —
(a) if,
in consultations that took place under clause 18, 19, 20 or 21, the
parties to the consultations agreed to the period for which the safety and
health representative for the group was to hold office — for that
period; or
(b) if
paragraph (a) does not apply — for 2 years.
(2) The term of office
of a safety and health representative begins at the start of the day on which
he or she was selected.
(3) Nothing in this
clause prevents a safety and health representative from being selected for
further terms of office.
[Clause 28 inserted by No. 13 of 2005
s. 47.]
29 . Training of safety and health representatives
(1) A safety and
health representative for a designated work group must undertake a course of
training relating to occupational safety and health that is accredited by the
Minister for the purposes of this clause.
(2) The operator of
the facility concerned must permit the representative to take any time off
work, without loss of remuneration or other entitlements, that is necessary to
undertake the training.
(3) If a person other
than the operator is the employer of the representative, that person must
permit the representative to take any time off work, without loss of
remuneration or other entitlements, that is necessary to undertake the
training.
[Clause 29 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 35.]
30 . Resignation etc. of safety and health
representatives
(1) A person ceases to
be the safety and health representative for the designated work group
if —
(a) the
person resigns as the safety and health representative; or
(b) the
person ceases to be a group member of that designated work group; or
(c) the
person’s term of office expires without the person having been selected,
under clause 24, to be the safety and health representative for the
designated work group for a further term; or
(d) the
person is disqualified under clause 31.
(2) A person may
resign as the safety and health representative for a designated work group by
notice in writing delivered to the operator and to each work group employer.
(3) If a person
resigns as the safety and health representative for a designated work group,
the person must notify the resignation to the group members.
(4) If a person has
ceased to be the safety and health representative for a designated work group
because of subclause (1)(b), the person must notify in
writing —
(a) the
group members; and
(b) the
operator and each work group employer,
that the person has
ceased to be the safety and health representative for that designated work
group.
[Clause 30 inserted by No. 13 of 2005
s. 47.]
31 . Disqualification of safety and health
representatives
(1) An application for
the disqualification of a safety and health representative for a designated
work group may be made to the Tribunal by —
(a) the
operator; or
(b) a
work group employer; or
(c) at
the request of a group member of the designated work group — a
workforce representative in relation to the designated work group.
(2) An application
under subclause (1) may be made on either or both of the following
grounds —
(a) that
action taken by the representative in the exercise or purported exercise of a
power under clause 33(1) or any other provision of this Schedule was
taken —
(i)
with the intention of causing harm to the operator or
work group employer or to an undertaking of the operator or work group
employer; or
(ii)
unreasonably, capriciously or not for the purpose for
which the power was conferred on the representative;
(b) that
the representative has intentionally used, or disclosed to another person, for
a purpose that is not connected with the exercise of a power of a safety and
health representative, information acquired from the operator or work group
employer.
(3) On an application
under subclause (1), the Tribunal may disqualify the representative, for
a specified period not exceeding 5 years, from being a safety and health
representative for any designated work group, if the Tribunal is satisfied
that the representative has acted in a manner referred to in
subclause (2).
(4) In making a
decision under subclause (3), the Tribunal must have regard
to —
(a) the
harm (if any) that was caused to the operator or work group employer or to an
undertaking of the operator or work group employer as a result of the action
of the representative; and
(b) the
past record of the representative in exercising the powers of a safety and
health representative; and
(c) the
effect (if any) on the public interest of the action of the representative;
and
(d) any
other matters the Tribunal thinks relevant.
[Clause 31 inserted by No. 13 of 2005
s. 47.]
32 . Deputy safety and health representatives
(1) One deputy safety
and health representative may be selected for each designated work group for
which a safety and health representative has been selected.
(2) A deputy safety
and health representative is to be selected in the same way as a safety and
health representative under clause 24.
(3) If the safety and
health representative for a designated work group —
(a)
ceases to be the safety and health representative; or
(b) is
unable (because of absence or for any other reason) to exercise the powers of
a safety and health representative,
then —
(c) the
powers may be exercised by the deputy safety and health representative (if
any) for the group; and
(d) this
Schedule (other than this clause) applies in relation to the deputy safety and
health representative accordingly.
[Clause 32 inserted by No. 13 of 2005
s. 47.]
33 . Powers of safety and health representatives
(1) A safety and
health representative for a designated work group may, for the purpose of
promoting or ensuring the safety and health at a workplace of the group
members —
(a) do
all or any of the following —
(i)
inspect the whole or any part of the workplace if there
has, in the immediate past, been an accident or a dangerous occurrence at the
workplace, or if there is an immediate threat of such an accident or dangerous
occurrence;
(ii)
inspect the whole or any part of the workplace if the
safety and health representative has given reasonable notice of the inspection
to the operator’s representative at the facility and to any other person
having immediate control of the workplace;
(iii)
make a request to an inspector that an inspection be
conducted at the workplace;
(iv)
accompany an inspector during any inspection at the
workplace by the inspector (whether or not the inspection is being conducted
as a result of a request made by the safety and health representative);
(v)
if there is no safety and health committee in respect of
the members of the workforce at the facility — represent group
members in consultations with the operator and any work group employer about
the development, implementation and review of measures to ensure the safety
and health of those members at the workplace;
(vi)
if a safety and health committee has been established in
respect of the members of the workforce at the facility — examine
any of the records of that committee;
and
(b)
investigate complaints made by any group member to the safety and health
representative about the safety and health of any of the members of the
workforce (whether in the group or not); and
(c) with
the consent of a group member, be present at any interview about safety and
health at work between that member and —
(i)
an inspector; or
(ii)
the operator or a person representing the operator; or
(iii)
a work group employer or a person representing that
employer;
and
(d)
obtain access to any information under the control of the operator or any work
group employer —
(i)
relating to risks to the safety and health of any group
member; and
(ii)
relating to the safety and health of any group member;
and
(e)
issue provisional improvement notices in accordance with clause 37.
(2)
Subclause (1)(d)(ii) has effect subject to clause 35.
[Clause 33 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 18 and 34.]
(1) A safety and
health representative for a designated work group is entitled, in the exercise
of his or her powers, to be assisted by a consultant.
(2) A safety and
health representative for a designated work group may —
(a) be
assisted by a consultant at a workplace at which work is performed; or
(b)
provide to a consultant information that has been provided to the safety and
health representative by a group member under clause 33(1)(d),
only if the operator
or the Minister has, in writing, agreed to the provision of that assistance at
that workplace or the provision of that information, as the case may be.
(3) Neither the
operator nor any workplace employer becomes, because of the agreement under
subclause (2) to the provision of assistance by a consultant, liable for
any remuneration or other expenses incurred in connection with the
consultant’s activities.
(4) If a safety and
health representative for a designated work group is being assisted by a
consultant, the consultant is entitled to be present with the representative
at any interview, about safety and health at work, between a group member
and —
(a) an
inspector; or
(b) the
operator or any work group employer or a person representing the operator or
that employer,
if, and only if, the
group member consents to the presence of the consultant.
[Clause 34 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 34 and 35.]
(1)
Neither —
(a) a
safety and health representative; nor
(b) a
consultant assisting a safety and health representative,
is entitled, under
clause 33(1)(d)(ii), to have access to information in respect of which a
group member is entitled to claim, and does claim, legal professional
privilege.
(2)
Neither —
(a) a
safety and health representative; nor
(b) a
consultant assisting a safety and health representative,
is entitled, under
clause 33(1)(d)(ii), to have access to information of a confidential
medical nature relating to a person who is or was a group member
unless —
(c) the
person has delivered to the operator or any work group employer a written
authority permitting the safety and health representative, or the safety and
health representative and the consultant, as the case requires, to have access
to the information; or
(d) the
information is in a form that does not identify the person or enable the
identity of the person to be discovered.
[Clause 35 inserted by No. 13 of 2005
s. 47.]
36 . Obligations and liabilities of safety and
health representatives
This Schedule does
not —
(a)
impose an obligation on a person to exercise any power conferred on the person
because the person is a safety and health representative; or
(b)
render a person liable in civil proceedings because of —
(i)
a failure to exercise such a power; or
(ii)
the way such a power was exercised.
[Clause 36 inserted by No. 13 of 2005
s. 47.]
37 . Provisional improvement notices
(1) If —
(a) a
safety and health representative for a designated work group believes, on
reasonable grounds, that a person —
(i)
is contravening a listed OSH law; or
(ii)
has contravened a provision of a listed OSH law and is
likely to contravene that provision again;
and
(b) the
contravention affects or may affect one or more group members,
the representative
must consult with the person supervising the relevant activity in an attempt
to reach agreement on rectifying the contravention or preventing the likely
contravention.
(2) If, in the safety
and health representative’s opinion, agreement is not reached within a
reasonable time, the safety and health representative may issue a provisional
improvement notice to any or each person (a responsible person ) responsible
for the contravention.
(3) If a responsible
person is the operator, the improvement notice may be issued to the operator
by giving it to the operator’s representative at the facility.
(4) If it is not
practicable to issue the notice to a responsible person (other than the
operator or the supervisor) by giving it to that responsible
person —
(a) the
notice may be issued to that responsible person by giving it to the person who
for the time being is, or may reasonably be presumed to be, on behalf of the
responsible person, in charge of the activity to which the notice relates; and
(b) if
the notice is so issued, a copy of the notice must be given to the responsible
person as soon as practicable afterwards.
(5) The notice
must —
(a)
specify the contravention that, in the safety and health
representative’s opinion, is occurring or is likely to occur, and set
out the reasons for that opinion; and
(b)
specify a period that —
(i)
is not less than 7 days beginning on the day after
the notice is issued; and
(ii)
is, in the representative’s opinion, reasonable,
within which the
responsible person is to take action necessary to prevent any further
contravention or to prevent the likely contravention, as the case may be.
(6) The notice may
specify action that the responsible person is to take during the period
specified in the notice.
(7) If, in the safety
and health representative’s opinion, it is appropriate to do so, the
representative may, in writing and before the end of the period, extend the
period specified in the notice.
(8) On issuing the
notice, the safety and health representative must give a copy of the notice
to —
(a) if
the operator is not a responsible person — the operator; and
(b) each
work group employer other than a work group employer who is a responsible
person; and
(c) if
the supervisor is not a responsible person — the supervisor; and
(d) if
the notice relates to any plant, substance or thing that is owned by a person
other than a responsible person or a person to whom a copy of the notice is
given under paragraph (a), (b) or (c) — that owner.
[Clause 37 inserted by No. 13 of 2005
s. 47.]
38 . Effect of provisional improvement notice
(1) Within 7 days
after a notice is issued under clause 37 —
(a) the
responsible person; or
(b) any
other person, to whom a copy of the notice has been given under
clause 37(8),
may request an
inspector for an inspection of the matter to be conducted.
(2) On the request
being made, the operation of the notice is suspended pending the determination
of the matter by an inspector.
(3) As soon as
possible after a request is made, an inspection must be conducted of the work
that is the subject of the disagreement, and the inspector conducting the
inspection must —
(a)
confirm, vary or cancel the notice and notify the responsible person and any
person to whom a copy of the notice has been given under clause 37(8)
accordingly; and
(b) make
decisions, and exercise powers, under Division 4, as the inspector
considers necessary in relation to the work.
(4) If the inspector
varies a notice, the notice as so varied has effect —
(a) so
far as the notice concerns obligations imposed on the responsible person that
are unaffected by the variation — as if the notice as so varied
resumed effect on the day of the variation; and
(b) so
far as the notice concerns new obligations imposed by virtue of the
variation — as if the notice as so varied were a new notice issued
on the day of the variation.
(5) If the notice is
issued to a responsible person, the responsible person must —
(a)
notify each group member who is affected by the notice of the fact of the
issue of the notice; and
(b)
until the notice ceases to have effect, cause a copy of the notice to be
displayed at or near each workplace at which the work that is the subject of
the notice is being performed.
(6) The notice ceases
to have effect if —
(a) it
is cancelled by an inspector or by the safety and health representative; or
(b) the
responsible person —
(i)
takes the action, if any, specified in the notice; or
(ii)
if no action is so specified — takes the
action necessary to prevent the further contravention, or likely
contravention, concerned.
(7) The responsible
person —
(a) must
ensure that, to the extent that the notice relates to any matter over which
the person has control, the notice is complied with; and
(b) must
take reasonable steps to inform the safety and health representative who
issued the notice of the action taken to comply with the notice.
(8) For the purposes
of clause 65, if the inspector confirms or varies the notice, the
inspector is taken to have decided, under clause 61, to issue an
improvement notice in those terms.
[Clause 38 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 19 and 34.]
39 . Duties of the operator and other employers in
relation to safety and health representatives
(1) The operator of a
facility, in relation to which a designated work group having a safety and
health representative has been established, must —
(a) on
being requested to do so by the representative, consult with the
representative on the implementation of changes at any workplace at which some
or all of the group members perform work, being changes that may affect their
safety and health; and
(b) in
relation to a workplace at which some or all of the group members perform
work —
(i)
permit the representative to make any inspection of the
workplace that the representative is entitled to make in accordance with
clause 33(1)(a)(i) and to accompany an inspector during an inspection at
the workplace by the inspector; and
(ii)
if there is no safety and health committee in respect of
the members of the workforce — on being requested to do so by the
representative, consult with the representative about the development,
implementation and review of measures to ensure the safety and health of group
members;
and
(c)
permit the representative to be present at any interview at which the
representative is entitled to be present under clause 33(1)(c); and
(d)
provide to the representative access to any information to which the
representative is entitled to obtain access under clause 33(1)(d)(i) or
(ii) and to which access has been requested; and
(e)
permit the representative to take any time off work, without loss of
remuneration or other entitlements, that is necessary to exercise the powers
of a safety and health representative; and
(f)
provide the representative with access to any amenities that are —
(i)
prescribed for the purposes of this paragraph; or
(ii)
necessary for the purposes of exercising the powers of a
safety and health representative.
(2)
Subclause (1)(d) has effect subject to subclauses (3) and (4).
(3) The operator must
not permit a safety and health representative in relation to a designated work
group to have access to information that —
(a) is
of a confidential medical nature under the control of the operator; and
(b)
relates to a person who is or was a group member,
unless —
(c) the
person has delivered to the employer a written authority permitting the
representative to have access to the information; or
(d) the
information is in a form that does not identify the person or enable the
identity of the person to be discovered.
(4) The operator is
not required to give a safety and health representative access to any
information in respect of which the operator is entitled to claim, and does
claim, legal professional privilege.
(5) The duties imposed
by this clause on the operator in respect of the safety and health
representative for a designated work group apply equally, to the extent that
the matters to which the duties relate are within the control of a work group
employer or of a supervisor of particular work, to that employer and to that
supervisor.
[Clause 39 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 34.]
Subdivision 4 — Safety and health committees
[Heading inserted by No. 13 of 2005
s. 47.]
40 . Safety and health committees
(1) A safety and
health committee must be established in relation to the members of the
workforce at a facility if —
(a) the
number of those members normally present at the facility is not less than 50
(whether or not those members are all at work at the facility at the same
time); and
(b) the
members of the workforce are included in one or more designated work groups;
and
(c) the
operator is requested to establish the committee by the safety and health
representative for the designated work group or for one of the designated work
groups.
(2) The safety and
health committee consists of —
(a) the
number of members specified in an agreement reached between the operator and
the members of the workforce; or
(b) if
there is no such agreement — an equal number of —
(i)
members, chosen by the members of the workforce, to
represent the interests of members of the workforce; and
(ii)
members, chosen by the operator, to represent the
interests of the operator and the employer (other than the operator) of
members of the workforce.
(3) The agreement
referred to in subclause (2)(a) may —
(a)
specify the persons who are to be members to represent the interests of the
operator and employers (other than the operator) of members of the workforce;
and
(b)
provide for the way in which persons who are to be members to represent the
interests of members of the workforce are to be chosen.
(4) If regulations
made for the purposes of this clause specify procedures for the selection of
persons as members of safety and health committees to represent the interests
of members of the workforce, an agreement referred to in subclause (2)(a)
must not provide for members to be chosen in a way inconsistent with the
regulations.
(5) A safety and
health committee must hold a meeting at least once every 3 months.
(6) The procedure at
meetings of a safety and health committee must, except to the extent provided
for by the regulations, be the procedure agreed upon by the committee.
(7) A safety and
health committee must cause minutes of its meetings to be kept, and must
retain those minutes for a period of not less than 3 years.
(8) This clause does
not prevent an operator from establishing, in consultation with registered
unions or any other persons, committees concerned with occupational safety and
health in relation to undertakings carried on by the operator.
[Clause 40 inserted by No. 13 of 2005
s. 47.]
41 . Functions of safety and health committees
(1) A safety and
health committee has the following functions —
(a) to
assist the operator of the facility concerned —
(i)
to develop and implement measures designed to protect;
and
(ii)
to review and update measures used to protect,
the safety and health
at work of members of the workforce;
(b) to
facilitate cooperation between the operator of the facility, employers (other
than the operator) of members of the workforce, and members of the workforce,
in relation to occupational safety and health matters;
(c) to
assist the operator to disseminate among members of the workforce, in
appropriate languages, information relating to safety and health at work;
(d) any
prescribed functions;
(e) any
other functions that are agreed between the operator and the safety and health
committee.
(2) A safety and
health committee has power to do all things necessary or convenient to be done
for, or in connection with, the performance of its functions.
(3) This Schedule does
not —
(a)
impose an obligation on a person to do any act, because the person is a member
of a safety and health committee, in connection with the performance of a
function conferred on the committee; or
(b)
render such a person liable in civil proceedings because of —
(i)
a failure to do such an act; or
(ii)
the manner in which such an act was done.
[Clause 41 inserted by No. 13 of 2005
s. 47.]
42 . Duties of the operator and other employers in
relation to safety and health committees
(1) If there is a
safety and health committee, the operator and any employer (other than the
operator) of a member of the workforce must —
(a) make
available to the committee any information possessed by the operator or that
employer relating to risks to safety and health to members of the workforce;
and
(b)
permit any member of the committee who is a member of the workforce to take
time off work, without loss of remuneration or other entitlements, as is
necessary for the member adequately to participate in the performance by the
committee of its functions.
(2)
Subclause (1)(a) has effect subject to subclauses (3) and (4).
(3) The operator or
any employer (other than the operator) of a member of the workforce must not
make available to a safety and health committee information of a confidential
nature relating to a person who is or was a member of the workforce,
unless —
(a) the
person has authorised the information to be made available to the committee;
or
(b) the
information is in a form that does not identify the person or enable the
identity of the person to be discovered.
(4) The operator or
any employer (other than the operator) of a member of the workforce is not
required to make available to a safety and health committee any information in
respect of which the operator or employer is entitled to claim, and does
claim, legal professional privilege.
[Clause 42 inserted by No. 13 of 2005
s. 47.]
Subdivision 5 — Emergency procedures
[Heading inserted by No. 13 of 2005
s. 47.]
43 . Action by safety and health representatives
(1) If a safety and
health representative for a designated work group has reasonable cause to
believe that there is an imminent and serious danger to the safety or health
of any person at or near the facility unless a group member or group members
cease to perform particular work, the representative must —
(a)
inform a person (a supervisor ) supervising the group member or group members
in the performance of the work of the danger; or
(b) if
no supervisor can be contacted immediately —
(i)
direct the group member or group members to cease, in a
safe manner, to perform the work; and
(ii)
as soon as practicable, inform a supervisor that the
direction has been given.
(2) If a supervisor is
informed under subclause (1)(a) of a danger to the safety or health of
any person at or near the facility, the supervisor must take the action he or
she thinks appropriate to remove that danger, which may include directing a
group member or group members to cease, in a safe manner, to perform the work.
(3) If —
(a) a
safety and health representative has informed a supervisor under
subclause (1)(a) of a danger; and
(b) the
representative has reasonable cause to believe that, despite any action taken
by the supervisor in accordance with subclause (2), there continues to be
an imminent and serious danger to the safety or health of any person at or
near the facility unless the group member or group members cease to perform
particular work,
the representative
must —
(c)
direct the group member or group members to cease, in a safe manner, to
perform the work; and
(d) as
soon as practicable, inform the supervisor that the direction has been given.
(4) If —
(a) a
safety and health representative gives a direction under
subclause (1)(b), but is unable to agree with a supervisor whom the
representative has informed under that subclause that there is a need for a
direction under that subclause; or
(b) a
safety and health representative gives a direction under
subclause (3)(c),
the representative or
the supervisor may request an inspector that an inspection be conducted of the
work that is the subject of the direction.
(5) As soon as
possible after a request is made, an inspection must be conducted of the work
that is the subject of the direction, and the inspector conducting the
inspection must make decisions, and exercise powers, under Division 4 as
the inspector considers necessary in relation to the work.
(6) This clause does
not limit the power of a safety and health representative under
clause 33(1)(a)(iii) to request an inspector that an inspection be
conducted at the workplace.
[Clause 43 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 20 and 34.]
44 . Directions to perform other work
If —
(a) a
group member who is an employee has ceased to perform work, in accordance with
the direction of a safety and health representative under clause 43(1)(b)
or (3)(c); and
(b) the
cessation of work does not continue after —
(i)
the safety and health representative has agreed with a
person supervising work at the workplace where the work was being performed
that the cessation of work was not, or is no longer, necessary; or
(ii)
an inspector has, under clause 43(5), made a
decision to the effect that the employee should perform the work,
the employer may
direct the employee to perform suitable alternative work, and the employee is
to be taken, for all purposes, to be required to perform that other work under
the terms and conditions of the employee’s employment.
[Clause 44 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 34.]
[Heading inserted by No. 13 of 2005
s. 47.]
(1) The Minister may,
in accordance with the regulations, make a written order exempting a specified
person or class of person from any or all of the provisions of this Division
(other than this clause).
(2) The Minister must
not make an order under subclause (1) unless the Minister is satisfied on
reasonable grounds that it is impracticable for the person to comply with the
provision or provisions.
[Clause 45 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 21 and 35.]
[Heading inserted by No. 13 of 2005
s. 47.]
[Heading inserted by No. 13 of 2005
s. 47.]
The following is a
simplified outline of this Division:
•
An inspector may conduct an inspection —
(a) to
ascertain whether a listed OSH law is being complied with; or
(b)
concerning a contravention or a possible contravention of a listed OSH law; or
(c)
concerning an accident or dangerous occurrence that has happened at or near a
facility.
•
An inspector may issue a prohibition notice to the operator of a
facility in order to remove an immediate threat to the safety and health of
any person.
•
An inspector may issue an improvement notice specifying action that is
to be taken to prevent contravention of a listed OSH law.
•
An inspector must prepare a report about an inspection and give the
report to the Minister.
[Clause 46 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 22 and 34.]
47 . Powers, functions and duties of inspectors
(1) An inspector has
the powers, functions and duties conferred or imposed by each listed OSH law.
(2) The Minister may
give written directions specifying the manner in which, and the conditions
subject to which, powers conferred on inspectors by a listed OSH law are to be
exercised. If the Minister does so, the powers of inspectors must be exercised
in accordance with those directions.
(3) The Minister may,
by notice in writing, impose restrictions, not inconsistent with any direction
in force under subclause (2), on the powers that are conferred on a
particular inspector by a listed OSH law. If the Minister does so, the powers
of the inspector are taken to have been restricted accordingly.
[Clause 47 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 23.]
[Heading inserted by No. 13 of 2005
s. 47.]
(1) An inspector may,
at any time, conduct an inspection —
(a) to
ascertain whether a requirement of, or any requirement properly made under, a
listed OSH law is being complied with; or
(b)
concerning a contravention or a possible contravention of a listed OSH law; or
(c)
concerning an accident or dangerous occurrence that has happened at a
facility.
(2) The Minister may
direct an inspector to conduct an inspection —
(a) to
ascertain whether a requirement of, or any requirement properly made under, a
listed OSH law is being complied with; or
(b)
concerning a contravention or a possible contravention of a listed OSH law; or
(c)
concerning an accident or dangerous occurrence that has happened at a
facility,
and the inspector
must, unless the Minister revokes the direction, conduct an inspection
accordingly.
[Clause 48 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 34 and 35.]
Subdivision 3 — Powers of inspectors in relation to the
conduct of inspections
[Heading inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 24.]
49 . Powers of entry and search —
facilities
(1) An inspector may,
for the purposes of an inspection, at any reasonable time during the day or
night —
(a)
enter the facility to which the inspection relates and do all or any of the
following —
(i)
search the facility;
(ii)
inspect, examine, take measurements of, or conduct tests
concerning, any workplace at the facility or any plant, substance or thing at
the facility;
(iii)
take photographs of, make video recordings of, or make
sketches of, any workplace at the facility or any plant, substance or thing at
the facility;
(iv)
inspect, take extracts from, or make copies of, any
documents at the facility that the inspector has reasonable grounds to believe
relate, or are likely to relate, to the subject matter of the inspection;
and
(b)
inspect the seabed and subsoil in the vicinity of the facility to which the
inspection relates.
(2) Immediately on
entering a facility for the purposes of an inspection, an inspector must take
reasonable steps to notify the purpose of entering the facility
to —
(a) the
operator’s representative at the facility; and
(b) if
there is a safety and health representative for a designated work group having
a group member likely to be affected by the matter the subject of the
inspection — that representative,
and must, on being
requested to do so by the person referred to in paragraph (a) or (b),
produce for inspection by that person —
(c) the
inspector’s identity card; and
(d) a
copy of the Minister’s written direction (if any) to conduct the
inspection; and
(e) a
copy of the restrictions (if any) imposed on the powers of the inspector under
clause 47(3).
(3) If there is a
safety and health representative for a designated work group having a group
member likely to be affected by the matter the subject of the inspection, the
inspector must afford the safety and health representative a reasonable
opportunity to consult on the matter the subject of the inspection.
[Clause 49 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 25 and 34.]
50 . Powers of entry and search —
regulated business premises (other than facilities)
(1) An inspector may,
for the purposes of an inspection —
(a) at
any reasonable time, enter any regulated business premises (other than a
facility) if the inspector has reasonable grounds to believe that there are
likely to be at those premises documents that relate to a facility that is, or
to facility operations that are, the subject of the inspection; and
(b)
search for, inspect, take extracts from, or make copies of, any such documents
at those premises.
(2) Immediately on
entering premises referred to in subclause (1), an inspector must take
reasonable steps to notify the purpose of the entry to the occupier of those
premises, and must, on being requested to do so by the occupier, produce for
inspection by the occupier —
(a) the
inspector’s identity card; and
(b) a
copy of the Minister’s written direction (if any) to conduct the
inspection; and
(c) a
copy of the restrictions (if any) imposed on the powers of the inspector under
clause 47(3).
[Clause 50 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 26 and 34.]
51 . Powers of entry and search —
premises (other than regulated business premises)
(1) An inspector may,
for the purposes of an inspection —
(a)
enter any premises (other than regulated business premises) if the inspector
has reasonable grounds to believe that there are likely to be at those
premises documents that relate to a facility that is, or to facility
operations that are, the subject of the inspection; and
(b)
search for, inspect, take extracts from, or make copies of, any such documents
at those premises.
(2) An inspector may
exercise the powers referred to in subclause (1) to enter premises
only —
(a) if
the premises are not a residence —
(i)
in accordance with a warrant under clause 52;
(ii)
with the consent of the occupier of the premises;
or
(b) if
the premises are a residence — with the consent of the occupier of
the premises.
(3) Immediately on
entering premises referred to in subclause (1), an inspector
must —
(a) take
reasonable steps to notify the purpose of the entry to the occupier of those
premises; and
(b) take
reasonable steps to produce, for inspection by the occupier, the
inspector’s identity card; and
(c) on
being requested to do so by the occupier, produce, for inspection by the
occupier —
(i)
a copy of the Minister’s written direction (if any)
to conduct the inspection; and
(ii)
a copy of the restrictions (if any) imposed on the powers
of the inspector under clause 47(3).
(4) If —
(a) an
inspector enters premises in accordance with a warrant under clause 52;
and
(b) the
occupier of the premises is present at the premises,
the inspector must
make a copy of the warrant available to the occupier.
(5) Before obtaining
the consent of a person as mentioned in subclause (2)(a) or (b), an
inspector must inform the person that —
(a) the
person may refuse consent; and
(b) the
consent may be withdrawn.
(6) The consent of a
person is not effective for the purposes of subclause (2) unless the
consent is voluntary.
[Clause 51 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 27 and 34.]
52 . Warrant to enter premises (other than
regulated business premises)
(1) An inspector may
apply to a magistrate for a warrant authorising the inspector, with any
assistance as the inspector thinks necessary, to exercise the powers referred
to in clause 51(1) in relation to particular premises (other than a
residence).
(2) The application
must be supported by evidence on oath (whether oral or by affidavit) that sets
out the grounds on which the inspector is applying for the warrant.
(3) If the magistrate
is satisfied that there are reasonable grounds for issuing the warrant, the
magistrate may issue the warrant.
(4) A warrant issued
under subclause (3) must state —
(a) the
name of the inspector; and
(b)
whether the inspection may be carried out at any time or only during specified
hours of the day; and
(c) the
day on which the warrant ceases to have effect; and
(d) the
purposes for which the warrant is issued.
(5) The day specified
under subclause (4)(c) is not to be more than 7 days after the day
on which the warrant is issued.
(6) The purposes
specified under subclause (4)(d) must include the identification of the
premises in relation to which the warrant is issued.
[Clause 52 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 34.]
53 . Obstructing or hindering inspector
A person must not,
without reasonable excuse, obstruct or hinder an inspector in the exercise of
an inspector’s powers under clause 49, 50 or 51.
Penalty: a fine of $5 500.
[Clause 53 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6); No. 57 of 2011
s. 28.]
54 . Power to require assistance
(1) An inspector may,
to the extent that it is reasonably necessary to do so in connection with the
conduct of an inspection, require —
(a) the
operator of a facility; or
(b) the
person in charge of operations at a workplace in relation to a facility; or
(c) a
member of the workforce at a facility; or
(d) any
person representing a person referred to in paragraph (a) or (b),
to provide the
inspector with reasonable assistance and amenities —
(e) that
is or are reasonably connected with the conduct of the inspection at or near
the facility; or
(f) for
the effective exercise of the inspector’s powers under this Schedule in
connection with the conduct of the inspection at or near the facility.
(2) The reasonable
assistance referred to in subclause (1) includes, so far as the operator
of the facility is concerned —
(a)
appropriate transport to or from the facility for the inspector and for any
equipment required by the inspector, or any article of which the inspector has
taken possession; and
(b)
reasonable accommodation and means of subsistence while the inspector is at
the facility.
(3) A person must not
fail, without reasonable excuse, to comply with a requirement under this
clause.
Penalty for an offence under subclause (3): a
fine of $3 300 or imprisonment for 6 months or both.
[Clause 54 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(1); No. 57 of 2011
s. 29 and 34.]
55 . Power to require the answering of questions
and the production of documents or articles
(1) If —
(a) an
inspector believes on reasonable grounds that a person is capable of answering
a question that is reasonably connected with the conduct of an inspection; and
(b) the
person is —
(i)
the operator of a facility; or
(ii)
the person in charge of operations at a workplace in
relation to a facility; or
(iii)
a member of the workforce at a facility; or
(iv)
any person representing a person referred to in
subparagraph (i) or (ii),
the inspector may, to
the extent that it is reasonably necessary to do so in connection with the
conduct of the inspection, require the person to answer the question put by
the inspector.
(2) If, at the time
when a requirement under subclause (1) is imposed on a person, the person
is not physically present on regulated business premises, the person is not
obliged to comply with the requirement unless the requirement —
(a) is
in writing; and
(b)
specifies the day on or before which the question is to be answered (being at
least 14 days after the day on which the requirement is imposed); and
(c) is
accompanied by a statement to the effect that a failure to comply with the
requirement is an offence.
(3) If —
(a) an
inspector believes on reasonable grounds that a person is capable of producing
a document or article that is reasonably connected with the conduct of an
inspection; and
(b) the
person is —
(i)
the operator of a facility; or
(ii)
the person in charge of operations at a workplace in
relation to a facility; or
(iii)
a member of the workforce at a facility; or
(iv)
any person representing a person referred to in
subparagraph (i) or (ii),
the inspector may, to
the extent that it is reasonably necessary to do so in connection with the
conduct of the inspection, require the person to produce the document or
article.
(4) If, at the time
when a requirement under subclause (3) is imposed on a person, the person
is not physically present on regulated business premises, the person is not
obliged to comply with the requirement unless the requirement —
(a) is
in writing; and
(b)
specifies the day on or before which the document or article is to be produced
(being at least 14 days after the day on which the requirement is
imposed); and
(c) is
accompanied by a statement to the effect that a failure to comply with the
requirement is an offence.
(5) A person must
not —
(a)
fail, without reasonable excuse, to comply with a requirement under this
clause; or
(b) in
purported compliance with a requirement under this clause, give information
that is false or misleading in a material particular.
Penalty for an offence under subclause (5): a
fine of $3 300 or imprisonment for 6 months or both.
[Clause 55 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(2); No. 57 of 2011
s. 34.]
56 . Privilege against self-incrimination
(1) A person is not
excused from answering a question or producing a document or article when
required to do so under clause 55 on the ground that the answer to the
question, or the production of the document or article, may tend to
incriminate the person or make the person liable to a penalty.
(2)
However —
(a) the
answer given or document or article produced; or
(b)
answering the question or producing the document or article; or
(c) any
information, document or thing obtained as a direct or indirect consequence of
the answering of the question or the production of the document or article,
is not admissible in
evidence against the person —
(d) in
any civil proceedings; or
(e) in
any criminal proceedings other than proceedings for an offence against
clause 55.
[Clause 56 inserted by No. 13 of 2005
s. 47.]
57 . Power to take possession of plant, take
samples of substances etc.
(1) In conducting an
inspection, an inspector may, to the extent that it is reasonably necessary
for the purposes of inspecting, examining, taking measurements of or
conducting tests concerning, any plant, substance or thing at a facility in
connection with the inspection —
(a) take
possession of the plant, substance or thing and remove it from the facility;
or
(b) take
a sample of the substance or thing and remove that sample from the facility.
(2) On taking
possession of plant, a substance or a thing, or taking a sample of a substance
or thing, the inspector must, by notice in writing, inform —
(a) the
operator of the facility; and
(b) if
the plant, substance or thing is used for the performance of work by an
employer of a member or members of the workforce at the facility other than
the operator of the facility — that employer; and
(c) if
the plant, substance or thing is owned by a person other than a person
mentioned in paragraph (a) or (b) — that person; and
(d) if
there is a safety and health representative for a designated work group that
includes a member of the workforce who is affected by the matter to which the
inspection relates — that representative,
of the taking of
possession or the taking of the sample, as the case may be, and the reasons
for it.
(3) If the inspector
gives the notice to the operator of the facility to which the inspection
relates, the operator’s representative at the facility must cause the
notice to be displayed in a prominent place at the workplace from which the
plant, substance or thing was removed.
(4) If the inspector
takes possession of plant, a substance or a thing at a workplace for the
purpose of inspecting, examining, taking measurements of or conducting tests
concerning, the plant, substance or thing, the inspector must —
(a)
ensure that the inspection, examination, measuring or testing is conducted as
soon as practicable; and
(b)
return it to the workplace as soon as practicable afterwards.
(5) As soon as
practicable after completing any such inspection, examination, measurement or
testing, the inspector must give a written statement setting out the results
to each person whom the inspector is required to notify under
subclause (2).
[Clause 57 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 34.]
58 . Power to direct that workplace etc. not be
disturbed
(1) An inspector may
give a direction under subclause (2) if, in conducting an inspection, the
inspector has reasonable grounds to believe that it is reasonably necessary to
do so in order to —
(a)
remove an immediate threat to the safety or health of any person; or
(b)
allow the inspection, examination or taking of measurements of, or conducting
of tests concerning, a facility or any plant, substance or thing at the
facility.
(2) If
subclause (1) applies, the inspector may direct, by written notice given
to the operator’s representative at the facility, that the operator must
ensure that —
(a) a
particular workplace; or
(b)
particular plant, or a particular substance or thing,
not be disturbed for a
period specified in the direction.
(3) The period
specified in the direction must be a period that the inspector has reasonable
grounds to believe is necessary in order to remove the threat or to allow the
inspection, examination, measuring or testing to take place.
(4) The direction may
be renewed by another direction in the same terms.
(5) If an inspector
gives a notice to the operator’s representative under
subclause (2), the operator’s representative must cause the notice
to be displayed in a prominent place at the workplace —
(a) that
is to be left undisturbed; or
(b)
where the plant, substance or thing that is to be left undisturbed is located.
(6) As soon as
practicable after giving the direction, the inspector must take reasonable
steps to notify —
(a) if
the workplace, plant, substance or thing to which the direction relates is
owned by a person other than the operator of the facility — that
person; and
(b) if
there is a safety and health representative for a designated work group that
includes a group member performing work —
(i)
at a workplace; or
(ii)
involving the plant, substance or thing,
to which the direction
relates — that representative,
of the direction and
the reasons for giving it.
(7) The operator of a
facility to which a direction concerning a workplace, plant, substance or a
thing relates must ensure that the direction is complied with.
Penalty: a fine of $27 500.
(8) A direction under
subclause (2) must be accompanied by a statement setting out the reasons
for the direction.
[Clause 58 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6); No. 57 of 2011
s. 34.]
59 . Power to issue prohibition notices
(1) If, having
conducted an inspection, an inspector is satisfied on reasonable grounds that
it is reasonably necessary to issue a prohibition notice to the operator of a
facility in order to remove an immediate threat to the safety or health of any
person, the inspector may issue a prohibition notice, in writing, to the
operator.
(2) The notice must be
issued to the operator by giving it to the operator’s representative at
the facility.
(3) The notice
must —
(a)
specify the activity in respect of which, in the inspector’s opinion,
the threat to safety or health has arisen, and set out the reasons for that
opinion; and
(b)
either —
(i)
direct the operator to ensure that the activity is not
engaged in; or
(ii)
direct the operator to ensure that the activity is not
engaged in in a specified manner.
(4) A specified manner
may relate to any one or more of the following —
(a) any
workplace, or part of a workplace, at which the activity is not to be engaged
in;
(b) any
plant or substance 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.
(5) The notice may
specify action that may be taken to satisfy an inspector that adequate action
has been taken to remove the threat to safety and health.
(6) The
operator’s representative at the facility must —
(a) give
a copy of the notice to each safety and health representative (if any) for any
designated work group having group members performing work that is affected by
the notice; and
(b)
cause a copy of the notice to be displayed at a prominent place at or near
each workplace at which that work is performed.
(7) If the notice
relates to any workplace, plant, substance or thing that is owned by a person
other than the operator, the inspector must, upon issuing the notice, give a
copy of the notice to that person.
[Clause 59 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 30 and 34.]
60 . Compliance with prohibition notice
(1) An operator must
ensure that a prohibition notice issued to the operator is complied with.
Penalty: a fine of $27 500.
(2) If an inspector is
satisfied that action taken by the operator to remove the threat to safety and
health in respect of which the notice was issued is not adequate, the
inspector must inform the operator accordingly.
(3) A prohibition
notice ceases to have effect when an inspector notifies the operator that the
inspector is satisfied that the operator has taken adequate action to remove
the threat to safety or health.
(4) In making a
decision under subclause (2), an inspector may exercise any of the powers
of an inspector conducting an inspection that the inspector considers
necessary for the purposes of making the decision.
[Clause 60 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6); No. 57 of 2011
s. 34.]
61 . Power to issue improvement notices
(1) If, in conducting
an inspection, an inspector believes on reasonable grounds that a
person —
(a) is
contravening a listed OSH law; or
(b) has
contravened a provision of a listed OSH law and is likely to contravene that
provision again,
the inspector may
issue an improvement notice, in writing, to the person (the responsible person
).
(2) If the responsible
person is the operator, the improvement notice may be issued to the operator
by giving it to the operator’s representative at the facility.
(3) If the responsible
person is an employer (other than the operator) of members of the workforce,
but it is not practicable to give the notice to that employer —
(a) the
improvement notice may be issued to the employer by giving it to the
operator’s representative at the facility; and
(b) if
the notice is so issued — the operator must ensure that a copy of
the notice is given to the employer as soon as practicable afterwards.
(4) The
notice —
(a) must
specify the contravention that the inspector believes is occurring or is
likely to occur, and set out the reasons for that belief; and
(b) must
specify a reasonable period within which the responsible person is to take the
action necessary to prevent any further contravention or to prevent the likely
contravention, as the case may be; and
(c) may
specify action that the responsible person is to take during the period
specified in the notice.
(5) If the inspector
believes on reasonable grounds that it is appropriate to do so, the inspector
may, in writing and before the end of the period, extend the period specified
in the notice.
(6) If an improvement
notice is issued to an employer (other than the operator) of members of the
workforce in circumstances other than the circumstance referred to in
subclause (3), the employer must immediately ensure that a copy of the
notice is given to the operator’s representative at the facility.
(7) If a notice is
issued to the operator or to an employer (other than the operator) of members
of the workforce, the operator’s representative at the facility
must —
(a) give
a copy of the notice to each safety and health representative for a designated
work group having group members performing work that is affected by the
notice; and
(b)
cause a copy of the notice to be displayed in a prominent place at or near
each workplace at which the work is being performed.
(8) On issuing a
notice, the inspector must give a copy of the notice to —
(a) if
the notice is —
(i)
given to a member of the workforce who is an employee;
and
(ii)
in connection with work performed by the employee,
the employer of that
employee; and
(b) if
the notice relates to any workplace, plant, substance or thing that is owned
by a person other than —
(i)
a responsible person; or
(ii)
a person who is an employer referred to in
paragraph (a),
that owner; and
(c) if
the notice is issued to a person who owns any workplace, plant, substance or
thing, because of which a contravention of a listed OSH law has occurred or is
likely to occur —
(i)
the operator of the facility; and
(ii)
if the employer of employees who work in that workplace
or who use that plant, substance or thing is a person other than the
operator — that employer.
[Clause 61 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 34.]
62 . Compliance with improvement notice
A person to whom an
improvement notice is issued must comply with it to the extent that the notice
relates to any matter over which the person has control.
Penalty: a fine of $11 000.
[Clause 62 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
63 . Notices not to be tampered with or removed
(1) A person must not,
without reasonable excuse, tamper with any notice that has been displayed
under clause 57(3), 58(5), 59(6) or 61(7) while that notice is so
displayed.
(2) If a notice has
been displayed under clause 57(3), a person must not, without reasonable
excuse, remove the notice until the plant or thing to which the notice relates
is returned to the workplace from which it was removed.
(3) If a notice has
been displayed under clause 58(5), 59(6) or 61(7), a person must not,
without reasonable excuse, remove the notice before it has ceased to have
effect.
Penalty for an offence under subclause (1),
(2) or (3): a fine of $11 000.
[Clause 63 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(3).]
Subdivision 4 — Reports on inspections
[Heading inserted by No. 13 of 2005
s. 47.]
(1) If an inspector
has conducted an inspection, the inspector must, as soon as practicable,
prepare a written report relating to the inspection and give the report to the
Minister.
(2) The report must
include —
(a) the
inspector’s conclusions from conducting the inspection and the reasons
for those conclusions; and
(b) any
recommendations that the inspector wishes to make arising from the inspection;
and
(c) any
other prescribed matters.
(3) As soon as
practicable after receiving the report, the Minister must give a copy of the
report, together with any written comments that the Minister wishes to
make —
(a) to
the operator of the facility to which the report relates; and
(b) if
the report relates to activities performed by an employee of another
person — that other person; and
(c) if
the report relates to any plant, substance or thing owned by another
person — that other person.
(4) The Minister may,
in writing, request the operator or any other person to whom the report is
given to provide to the Minister, within a reasonable period specified in the
request, details of —
(a) any
action proposed to be taken as a result of the conclusions or recommendations
contained in the report; and
(b) if a
notice has been issued under clause 59 or 61 in relation to work being
performed for the operator or that other person — any action taken,
or proposed to be taken, in respect of that notice,
and the operator or
that other person must comply with the request.
(5) As soon as
practicable after receiving a report, the operator of a facility must give a
copy of the report, together with any written comment made by the Minister on
the report —
(a) if
there is at least one safety and health committee in respect of some or all of
the members of the workforce — to each such committee; and
(b) if
there is no such committee in respect of some or all of the members of the
workforce, but some or all of those members (in respect of which there is no
such committee) are in at least one designated work group for which there is a
safety and health representative — to each such safety and health
representative.
[Clause 64 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 31, 34 and 35.]
Subdivision 5 — Reviews of inspectors’ decisions
[Heading inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 32.]
65 . Reviews of decisions of inspectors
(1) If an inspector,
in conducting an inspection or having conducted an inspection —
(a)
decides, under clause 38, to confirm or vary a provisional improvement
notice; or
(b)
decides, under clause 57, to take possession of plant, a substance or a
thing at a workplace; or
(c)
decides, under clause 58, to direct that a workplace, a part of a
workplace, plant, a substance or a thing not be disturbed; or
(d)
decides, under clause 59, to issue a prohibition notice; or
(e)
decides, under clause 60, that the operator of a facility to whom a
prohibition notice has been issued has not taken adequate action to remove the
threat to safety and health that caused the notice to be issued; or
(f)
decides, under clause 61, to issue an improvement notice,
a person referred to
in subclause (2) may apply in writing to the reviewing authority for a
review of the decision.
(2) The following
persons may apply for a review of a decision, as is relevant to the
case —
(a) the
operator of the facility or any employer (other than the operator) who is
affected by the decision;
(b) a
person to whom a notice has been issued under clause 37(2) or 61(1);
(c) the
safety and health representative for a designated work group having a group
member affected by the decision;
(d) a
workforce representative in relation to the designated work group that
includes a group member who is affected by the decision and who has requested
the workforce representative to apply for a review of the decision;
(e) if
there is no such designated work group, and a member of the workforce affected
by the decision has requested a workforce representative in relation to the
member to apply for a review of the decision — that workforce
representative;
(f) a
person who owns any workplace, plant, substance or thing to which the decision
referred to in subclause (1)(a), (b), (c) or (f) relates.
(3) If an inspector,
having conducted an inspection —
(a)
decides under clause 38 to cancel a provisional improvement notice; or
(b)
decides under clause 60 that the operator of a facility to whom a
prohibition notice has been issued has taken adequate action to remove the
threat to safety and health that caused the notice to be issued,
the following persons
may apply in writing to the reviewing authority for a review of the decision,
as is relevant to the case —
(c) the
safety and health representative for a designated work group having a group
member affected by the decision;
(d) a
workforce representative in relation to the designated work group that
includes a group member who is affected by the decision and who has requested
the workforce representative to apply for the review;
(e) if
there is no such designated work group, and a member of the workforce affected
by the decision has requested a workforce representative in relation to the
member to apply for the review — that workforce representative.
(4) An application
under subclause (2) or (3) must be made —
(a) not
later than 7 days after the day on which the person applying received
notice of the inspector’s decision; or
(b)
within such further period as the reviewing authority may allow.
(5) A person, other
than the operator of the facility concerned, who applies for a review of a
decision must, as soon as is practicable, give a copy of the application to
the operator.
Penalty: a fine of $5 000.
(6) The reviewing
authority is to give notice in writing of the decision on the reference and
the reasons for the decision to —
(a) the
person who referred the matter for review; and
(b) if
that person is not the operator of the facility concerned, to the operator.
(7) Subject to this
clause, applying for a review of a decision does not affect the operation of
the decision or prevent the taking of action to implement that decision,
except to the extent that the reviewing authority makes an order to the
contrary.
(8) If the decision to
be reviewed is a decision under clause 61 to issue an improvement notice,
the operation of the notice is suspended pending determination of the
decision, except to the extent that the reviewing authority makes an order to
the contrary.
(9) If the decision to
be reviewed is a decision of an inspector under clause 38 to confirm or
vary a provisional improvement notice whose operation has been suspended
pending the inspection of the matter to which the notice relates, the
operation of the notice is further suspended pending determination of the
review, except to the extent that the reviewing authority makes an order to
the contrary.
(10) In this
clause —
reviewing authority means a person prescribed by
the regulations to be a reviewing authority for the purposes of this clause.
[Clause 65 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6); No. 57 of 2011
s. 34.]
66 . Powers of reviewing authority on review
(1) On a review of a
decision under clause 65, the reviewing authority may —
(a)
affirm the decision; or
(b)
affirm the decision with such modifications as the reviewing authority
considers appropriate; or
(c)
revoke the decision and make such other decision with respect to the matter as
the reviewing authority thinks fit,
and the decision has
effect or, as the case may be, ceases to have effect accordingly.
(2) If —
(a) the
decision being reviewed is a decision under clause 57 to take possession
of plant, a substance or a thing at a workplace; and
(b) the
decision is not affirmed,
the inspector who made
the decision must ensure that, to the extent that the decision is not
affirmed, the plant, substance or thing is returned to the workplace as soon
as practicable.
[Clause 66 inserted by No. 13 of 2005
s. 47.]
Division 5 — Referrals to the Tribunal
[Heading inserted by No. 13 of 2005
s. 47.]
67 . Decision may be referred to Tribunal
(1) If a person given
notice of a decision under clause 22(3)(b) or 65(6) is not satisfied with
the reviewing authority’s decision under that section, the person may
refer the decision to the Tribunal for further review.
(2) A reference under
subclause (1) must be made —
(a) not
later than 7 days after the day on which the person received notice of
the decision; or
(b)
within such further period as the Tribunal may allow.
(3) A person, other
than the operator of the facility concerned, who refers a matter for review
under this clause must, as soon as is practicable, give a copy of the duly
completed prescribed form to the operator.
Penalty for an offence under subclause (3): a
fine of $5 000.
[Clause 67 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(4).]
68 . Determination by Tribunal
(1) On a reference
under clause 67, the Tribunal is to inquire into the circumstances
relating to the decision, and may —
(a)
affirm the decision of the reviewing authority; or
(b)
affirm the decision of the reviewing authority with such modifications as the
Tribunal considers appropriate; or
(c)
revoke the decision of the reviewing authority and make such other decision
with respect to the notice as the Tribunal thinks fit,
and the decision has
effect or, as the case may be, ceases to have effect accordingly.
(2) A review under
this clause —
(a) is
to be in the nature of a rehearing; and
(b) is
to be completed by the Tribunal as quickly as is practicable.
(3) The Tribunal is to
give notice in writing of its decision on the reference and the reasons for
the decision to —
(a) the
person who referred the matter for review; and
(b) if
that person is not the operator of the facility concerned, to the operator.
[Clause 68 inserted by No. 13 of 2005
s. 47.]
69 . Effect of pending review by Tribunal
(1) Subject to this
clause, a reference to the Tribunal for further review of a decision does not
affect the operation of the decision or prevent the taking of action to
implement that decision, except to the extent that the Tribunal makes an order
to the contrary.
(2) If the decision to
be reviewed concerns a decision under clause 61 to issue an improvement
notice, the operation of the notice is suspended pending determination of the
review, except to the extent that the Tribunal makes an order to the contrary.
(3) If the decision to
be reviewed concerns a decision of an inspector under clause 38 to
confirm or vary a provisional improvement notice whose operation has been
suspended pending the inspection of the matter to which the notice relates,
the operation of the notice is further suspended pending determination of the
review, except to the extent that the Tribunal makes an order to the contrary.
[Clause 69 inserted by No. 13 of 2005
s. 47.]
(1) This clause
applies where —
(a)
under clause 67 a matter is referred to the Tribunal; or
(b)
under clause 31 an application is made to the Tribunal.
(2) Where this clause
applies —
(a) the
matter or application may be heard and determined; and
(b) a
determination made by the Tribunal on the matter or application has effect,
and may be appealed against and enforced,
as if it
were —
(c) a
matter in respect of which jurisdiction is conferred on the Tribunal by Part
VIB of the Occupational Safety and Health Act 1984 ; or
(d) a
determination made for the purposes of that Part.
(3) The provisions
of —
(a) Part
VIB of the Occupational Safety and Health Act 1984 ; and
(b) the
Industrial Relations Act 1979 applied by that Part,
have effect for the
purposes of this clause with all necessary changes.
(4) In the operation
of subclause (3), section 51J(1) of the
Occupational Safety and Health Act 1984 has effect as if it were
expressed to apply where a matter has been referred to the Tribunal under
clause 67 in relation to a decision made under clause 22.
[Clause 70 inserted by No. 13 of 2005
s. 47.]
[Heading inserted by No. 13 of 2005
s. 47.]
71 . Notifying and reporting accidents and
dangerous occurrences
(1) If, at or near a
facility, there is —
(a) an
accident that causes the death of, or serious personal injury to, any person;
or
(b) an
accident that causes a member of the workforce to be incapacitated from
performing work for a period prescribed for the purposes of this paragraph; or
(c) a
dangerous occurrence,
the operator must, in
accordance with the regulations, give the Minister notice of, and a report
about, the accident or dangerous occurrence.
Penalty: a fine of $5 000.
(2) Regulations made
for the purposes of subclause (1) (other than regulations made for the
purpose of subclause (1)(b)) may prescribe —
(a) the
time within which, and the manner in which, notice of an accident or dangerous
occurrence is to be given, and the form of the notice; and
(b) the
time within which, and the manner in which, a report of an accident or
dangerous occurrence is to be given, and the form of the report.
(3) Subclause (2)
does not limit regulations that may be made for the purposes of
subclause (1).
[Clause 71 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6); No. 57 of 2011
s. 35.]
72 . Records of accidents and dangerous
occurrences to be kept
(1) The operator of a
facility must maintain, in accordance with the regulations, a record of each
accident or dangerous occurrence in respect of which the operator is required
by clause 71 to notify the Minister.
(2) Regulations made
for the purposes of subclause (1) may prescribe —
(a) the
nature of the contents of a record maintained under this clause; and
(b) the
period for which the record must be retained.
(3) Subclause (2)
does not limit regulations that may be made for the purposes of
subclause (1).
[Clause 72 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(5); No. 57 of 2011
s. 35.]
(1) The regulations
may prescribe codes of practice for the purpose of providing practical
guidance to operators of facilities and employers (other than operators) of
members of the workforce at facilities.
(2) A person is not
liable in any civil or criminal proceedings for contravening a code of
practice.
[Clause 73 inserted by No. 13 of 2005
s. 47.]
74 . Use of codes of practice in proceedings
(1) This clause
applies if, in any proceedings for an offence against a listed OSH law, it is
alleged that a person contravened a provision of a listed OSH law in relation
to which a code of practice was in effect at the time of the alleged
contravention.
(2) The code of
practice is admissible in evidence in those proceedings.
(3) If the court is
satisfied, in relation to any matter which it is necessary for the prosecution
to prove in order to establish the alleged contravention, that —
(a) any
provision of the code of practice is relevant to that matter; and
(b) the
person failed at any material time to comply with that provision of the code
of practice,
that matter is treated
as proved unless the court is satisfied that in respect of that matter the
person complied with that provision of the listed OSH law otherwise than by
complying with the code of practice.
[Clause 74 inserted by No. 13 of 2005
s. 47.]
75 . Interference etc. with equipment etc.
A person must not,
without reasonable excuse, do anything that results in the interference with,
or the rendering ineffective of, any protective equipment or safety device
provided for the occupational safety and health of members of the workforce at
a facility if the person knew (or ought reasonably to have known) that the
equipment or device was protective equipment or a safety device.
Penalty: a fine of $3 300 or imprisonment for
6 months or both.
[Clause 75 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
76 . No charges to be levied on members of
workforce
The operator of a
facility or an employer (other than the operator) of members of the workforce
at a facility must not levy, or permit to be levied, on a member of the
workforce any charge in respect of anything done or provided in accordance
with a listed OSH law in order to ensure the occupational safety and health of
persons at or near the facility.
Penalty: a fine of $27 500.
[Clause 76 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6).]
(1) An employer
(whether the operator or another person) must not —
(a)
dismiss an employee; or
(b)
perform an act that results in injury to an employee in his or her employment;
or
(c)
perform an act that prejudicially alters the employee’s position
(whether by deducting or withholding remuneration or by any other means); or
(d)
threaten to do any of those things,
because the
employee —
(e) has
complained or proposes to complain about a matter concerning the safety or
health of employees at work; or
(f) has
assisted or proposes to assist, by giving information or otherwise, the
conduct of an inspection; or
(g) has
ceased, or proposes to cease, to perform work, in accordance with a direction
by a safety and health representative under clause 43(1)(b) or (3)(c),
and the cessation or proposed cessation does not continue after —
(i)
the safety and health representative has agreed with a
person supervising the work that the cessation or proposed cessation was not,
or is no longer, necessary; or
(ii)
an inspector has, under clause 43(5), made a
decision that has the effect that the employee should perform the work.
Penalty: a fine of $27 500.
(2) In proceedings for
an offence against subclause (1), if all the relevant facts and
circumstances, other than the reason for an action alleged in the charge, are
proved, the accused has the onus of establishing that the action was not taken
for that reason.
[Clause 77 inserted by No. 13 of 2005
s. 47; amended by No. 42 of 2010 s. 170(6); No. 47 of 2011
s. 15; No. 57 of 2011 s. 34.]
78 . Institution of prosecutions
(1) Proceedings for an
offence against a listed OSH law may be instituted by an inspector, but an
inspector is not to be personally responsible for any costs incurred by or
awarded against the inspector in connection with any proceeding for an offence
against a listed OSH law.
(2) A safety and
health representative for a designated work group may request an inspector to
institute proceedings for an offence against a listed OSH law in relation to
the occurrence of an act or omission if —
(a) a
period of 6 months has elapsed since the act or omission occurred; and
(b) the
safety and health representative considers that the occurrence of the act or
omission constitutes an offence against a listed OSH law; and
(c)
proceedings in respect of the offence have not been instituted.
(3) A workforce
representative in relation to a designated work group may request an inspector
to institute proceedings for an offence against a listed OSH law in relation
to the occurrence of an act or omission if —
(a) a
period of 6 months has elapsed since the act or omission occurred; and
(b) the
workforce representative considers that the occurrence of the act or omission
constitutes an offence against a listed OSH law; and
(c)
proceedings in respect of the offence have not been instituted; and
(d) a
group member included in the group requests the workforce representative to
request an inspector to institute the proceedings.
(4) A request under
subclause (2) or (3) must be in writing.
(5) An inspector must,
within 3 months after receiving the request, advise the safety and health
representative or the workforce representative, as the case may be, whether
proceedings under subclause (1) have been or will be instituted, and, if
not, give reasons why not.
[Clause 78 inserted by No. 13 of 2005
s. 47; amended by No. 57 of 2011 s. 33.]
79 . Conduct of directors, employees and agents
(1) This clause has
effect for the purposes of a proceeding for an offence against a listed OSH
law.
(2) If it is necessary
to establish the state of mind of a body corporate in relation to particular
conduct, it is sufficient to show —
(a) that
the conduct was engaged in by a director, employee or agent of the body
corporate within the scope of actual or apparent authority; and
(b) that
the director, employee or agent had the state of mind.
(3) Any conduct
engaged in on behalf of a body corporate by a director, employee or agent of
the body corporate within the scope of actual or apparent authority is taken
to have been engaged in also by the body corporate unless it establishes that
it took reasonable precautions and exercised due diligence to avoid the
conduct.
(4) If it is necessary
to establish the state of mind of a natural person in relation to particular
conduct, it is sufficient to show —
(a) that
the conduct was engaged in by an employee or agent of the natural person
within the scope of actual or apparent authority; and
(b) that
the employee or agent had the state of mind.
(5) Any conduct
engaged in on behalf of a natural person by an employee or agent of the
natural person within the scope of actual or apparent authority is taken to
have been engaged in also by the natural person unless the natural person
establishes that he or she took reasonable precautions and exercised due
diligence to avoid the conduct.
(6) If —
(a) a
natural person is found guilty of an offence; and
(b) he
or she would not have been found guilty of the offence if subclauses (4)
and (5) had not been enacted,
he or she is not
liable to be punished by imprisonment for that offence.
(7) A reference in
subclause (2) or (4) to the state of mind of a person includes a
reference to —
(a) the
person’s knowledge, intention, opinion, belief or purpose; and
(b) the
person’s reasons for the intention, opinion, belief or purpose.
[Clause 79 inserted by No. 13 of 2005
s. 47.]
80 . Act not to give rise to other liabilities
etc.
This Schedule does
not —
(a)
confer a right of action in any civil proceeding in respect of any
contravention of a listed OSH law; or
(b)
confer a defence to an action in any civil proceeding or otherwise affect a
right of action in any civil proceeding.
[Clause 80 inserted by No. 13 of 2005
s. 47.]
81 . Circumstances preventing compliance may be
defence to prosecution
It is a defence to a
prosecution for a contravention of a listed OSH law if the accused proves that
it was not practicable to comply with it because of an emergency prevailing at
the relevant time.
[Clause 81 inserted by No. 13 of 2005
s. 47; amended by No. 47 of 2011 s. 15.]
(1) The regulations
may prescribe any of the following —
(a)
procedures for the selection of persons, under clause 40, as members of
safety and health committees, to represent the interests of members of the
workforce at a facility;
(b)
procedures to be followed at meetings of safety and health committees;
(c) the
manner in which notices are to be served under this Schedule or the
regulations;
(d) the
practice and procedure to be followed in relation to the review of decisions
under clause 22 or 65 by reviewing authorities;
(e)
forms for the purposes of this Schedule or the regulations.
(2) If the Minister is
satisfied that —
(a) a
power, function or duty is conferred or imposed on a person under a law of
this State or the Commonwealth; and
(b) the
proper exercise of the power or performance of the function or duty is or
would be prevented by this Schedule or a provision of this Schedule,
regulations made for
the purposes of this subclause may declare that this Schedule, or the
provision, as the case may be, does not apply to that person, or does not
apply to that person in the circumstances specified in the regulations.
(3) Regulations made
for the purposes of subclause (2) do not remain in force for longer than
5 years after they commence, but this subclause does not prevent the
making of further regulations of the same substance.
(4) In
subclause (2) —
this Schedule includes regulations made for the
purposes of this Schedule.
[Clause 82 inserted by No. 13 of 2005
s. 47.]