PETROLEUM PIPELINES ACT 1969

Western Australian Consolidated Acts

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PETROLEUM PIPELINES ACT 1969 - SCHEDULE 1

[s. 56A]

[Heading inserted by No. 13 of 2005 s. 32.]

Division 1 — Introduction

[Heading inserted by No. 13 of 2005 s. 32.]

1 . Objects

The objects of this Schedule are, in relation to pipeline operations —

(a) to secure the occupational safety and health of persons engaged in those operations; and

(b) to protect persons in the vicinity of those operations at the invitation of, or with the express or implied consent of, the licensees for, or persons in control of a part of, those operations from risks to safety and health arising out of those operations; and

(c) to ensure that expert advice is available on occupational safety and health matters in relation to those operations; and

(d) to promote an occupational environment for members of the workforce engaged in those operations 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 engaged in those operations.

[Clause 1 inserted by No. 13 of 2005 s. 32.]

2 . Simplified outline

The following is a simplified outline of this Schedule —

• This Schedule sets up a scheme to regulate occupational safety and health matters relating to pipeline operations.

• Occupational safety and health duties are imposed on the following —

(a) the licensee for a pipeline operation;

(b) a person in control of any part of a pipeline operation;

(d) a manufacturer of plant, or a substance, for use in a pipeline operation;

(e) a supplier of a pipeline, or of any plant or substance, for use in a pipeline operation;

(f) a person who constructs or installs a pipeline, or any plant, for use in a pipeline operation;

(g) a person engaged in a pipeline operation.

• A group of members of the workforce engaged in a pipeline operation 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 place at which a pipeline operation is carried on.

• The licensee for a pipeline operation must report to the Minister accidents and dangerous occurrences arising out of the pipeline operation.

[Clause 2 inserted by No. 13 of 2005 s. 32.]

3 . Terms used

In this Schedule —

accident includes the contraction of a disease;

contract includes an arrangement or understanding;

contractor has the meaning given by clause 6;

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 engaged in a pipeline operation that is established as a designated work group under clause 17 or 18; or

(b) that group as varied in accordance with clause 19 or 20;

employee , in relation to an employer, means an employee of that employer;

employer means an employer who carries on a pipeline operation;

group member , in relation to a designated work group for a pipeline operation, means a person who is —

(a) a member of the workforce engaged in that operation; and

(b) included in that designated work group;

improvement notice means an improvement notice issued under clause 60(1);

inspection means an inspection conducted under Division 4 and includes an investigation or inquiry;

licensee , in relation to a pipeline operation, means the registered holder of the licence granted in respect of that operation;

licensee’s representative means a person present at a workplace in compliance with the obligations imposed on the licensee by clause 4;

member of the workforce , in relation to a pipeline operation, means a natural person who is engaged in the operation, whether —

(a) as an employee of the licensee or of another person; or

(b) as a contractor of the licensee or of another person;

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);

prohibition notice means a prohibition notice issued under clause 58(1);

registered organisation means an organisation —

(a) within the meaning of the Workplace Relations Act 1996 of the Commonwealth; or

(b) as defined in section 7(1) of the Industrial Relations Act 1979 ;

regulated business premises means —

(a) a place where a pipeline operation is carried on; or

(b) premises that are —

(i) occupied by a person who is the licensee for a pipeline operation; and

(ii) used, or proposed to be used, wholly or principally in connection with a pipeline 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 that is directly or indirectly related to a pipeline operation;

work group employer , in relation to a designated work group in relation to a pipeline operation, means an employer of one or more group members, but does not include the licensee for the pipeline operation;

workforce representative means —

(a) in relation to a person who is a member of the workforce engaged in a pipeline operation — 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 in relation to the pipeline operation; 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, in relation to the pipeline operation as a member of the group;

workplace , in relation to a pipeline operation, means the whole place where the pipeline operation is carried on or any part of a place where the pipeline operation is carried on.

[Clause 3 inserted by No. 13 of 2005 s. 32.]

4 . Licensee must ensure presence of licensee’s representative

(1) The licensee for a pipeline operation must ensure that, at all times when one or more natural persons are engaged in the pipeline operation, there is present at the workplace a natural person (the licensee’s representative ) who has day to day management and control of the pipeline operation.

Penalty: a fine of $5 500.

(2) The licensee for a pipeline operation must ensure that the name of the licensee’s representative is displayed in a prominent place at the workplace.

Penalty: a fine of $5 500.

(3) Subclause (1) does not imply that, if the licensee is a natural person, the licensee’s representative may not be, from time to time, the licensee.

[Clause 4 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

5 . 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 engaged in a pipeline operation.

[Clause 5 inserted by No. 13 of 2005 s. 32.]

6 . Contractor

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 is engaged in a pipeline operation 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 6 inserted by No. 13 of 2005 s. 32.]

Division 2 — Occupational safety and health

[Heading inserted by No. 13 of 2005 s. 32.]

Subdivision 1 — Duties relating to occupational safety and health

[Heading inserted by No. 13 of 2005 s. 32.]

7 . Duties of licensee

(1) The licensee for a pipeline operation must take all reasonably practicable steps to ensure that the pipeline operation is carried out in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons.

Penalty: a fine of $110 000.

(2) Without limiting the generality of subclause (1), the licensee for a pipeline operation must —

(a) provide and maintain a physical environment at the place where the pipeline operation is carried out that is safe and without risk to health;

(b) provide and maintain adequate amenities for the safety and health of all members of the workforce engaged in the pipeline operation;

(c) ensure that any plant, equipment, materials and substances for use in the pipeline operation are safe and without risk to health;

(d) implement and maintain systems of work in relation to the pipeline operation that are safe and without risk to health;

(e) implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies arising out of the pipeline operation;

(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 engaged in the pipeline operation;

(g) monitor the occupational safety and health of all members of the workforce and keep records of that monitoring;

(h) provide appropriate medical and first aid services at the places at which a pipeline operation is carried on; 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 licensee and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational safety and health of persons engaged in the pipeline operation; 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 licensee for a pipeline operation to engage in consultations with a workforce representative unless a member of the workforce engaged in the pipeline operation 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 licensee; and

(b) on the other hand —

(i) the members of the workforce; and

(ii) if a member of the workforce engaged in the pipeline operation 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 licensee; and

(b) on the other hand —

(i) the members of the workforce; and

(ii) if a member of the workforce engaged in the pipeline operation 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 7 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

8 . Duties of persons in control of parts of pipeline operation

(1) A person who is in control of any part of a pipeline operation must take all reasonably practicable steps to ensure that that part of the pipeline operation is carried out in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons.

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 pipeline operation must —

(a) ensure that the physical environment at the place where that part of the pipeline operation is carried out is safe and without risk to health; and

(b) ensure that any plant, equipment, materials and substances for use in that part of the pipeline operation are safe and without risk to health; and

(c) implement and maintain systems of work in relation to that part of the pipeline operation that are safe and without risk to health; and

(d) ensure a means of access to, and egress from the place where that part of the pipeline operation is carried out is safe and without risk to health; and

(e) provide all members of the workforce engaged in that part of the pipeline operation 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 8 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

9 . Duties of employers

(1) An employer must take all reasonably practicable steps to protect the safety and health of employees engaged in a pipeline operation.

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 for use in connection with the employees’ work 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.

(5) An employer must take all reasonably practicable steps to ensure that —

(a) work that is undertaken by the employer’s employees is carried out in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons; and

(b) the employer’s system of work is operated in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons.

Penalty: a fine of $22 000.

[Clause 9 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

10 . 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 engaged in a pipeline operation 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 in a pipeline operation, adequate written information about —

(i) the use for which it is designed and has been tested; and

(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 engaged in a pipeline operation 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 in a pipeline operation, 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 10 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

11 . Duties of suppliers of pipelines, plant and substances

(1) A supplier of a pipeline, or of any plant or substance, that the supplier ought reasonably to expect will be used by members of the workforce engaged in a pipeline operation, must take all reasonably practicable steps —

(a) to ensure that, at the time of supply, the pipeline, or the plant or substance, is in such condition as to be, when properly used, safe and without risk to health; and

(i) in the case of a pipeline — to the licensee for the pipeline operation; 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 pipeline, plant or substance (as the case requires) about —

(iii) the condition of the pipeline, plant or substance at the time of supply; and

(iv) any risk to the safety and health of members of the workforce engaged in a pipeline operation to which the condition of the pipeline, 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 engaged in a pipeline operation.

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 pipeline, or any plant or substance, that is for use by members of the workforce engaged in a pipeline operation, 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 pipeline, 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 pipeline, plant or substance, or has taken possession of the pipeline, plant or substance solely for the purpose of passing possession of the pipeline, 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 pipeline, 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 11 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

12 . Duties of persons constructing pipelines or installing plant

(1) A person who constructs or installs a pipeline, or erects or installs any plant, for use in a pipeline operation, must take all reasonably practicable steps to ensure that the pipeline or plant is not erected or installed in such a way that it is unsafe or constitutes a risk to safety or 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 12 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

13 . Duties of persons in relation to occupational safety and health

(1) A person engaged in a pipeline operation 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 —

(i) the occupational safety and health of that person; or

(ii) the safety and health of any other protected person;

and

(b) in respect of any obligation imposed on the licensee or on any other person under a listed OSH law — to cooperate with the licensee or that other person to the extent necessary to enable the licensee or that other person to fulfil that obligation; and

(i) supplied to the person by the licensee, an employer of the person or any other person having control of the pipeline operation (the equipment supplier ); and

(ii) necessary to protect the occupational safety and health of the person, or the safety and health of any other person engaged in the pipeline operation or protected person,

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 13 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

14 . Reliance on information supplied or results of research

(1) For the purpose of the application of clause 7, 8 or 9 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 10 or 11 to carrying out research, testing and examining a pipeline, 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 pipeline, 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 12 to the construction of a pipeline or the erection or installation of plant for use in a pipeline operation, 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 construction of the pipeline, or the erection or installation of the plant, was —

(i) in accordance with information supplied by the manufacturer or supplier of the pipeline or plant relating to its erection or its installation; and

(ii) consistent with the occupational safety and health of persons engaged in the pipeline operation;

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 7, 8, 9, 10, 11 or 12.

[Clause 14 inserted by No. 13 of 2005 s. 32.]

Subdivision 2 — Regulations relating to occupational safety and health

[Heading inserted by No. 13 of 2005 s. 32.]

15 . 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 engaged in a pipeline operation.

(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 in relation to a pipeline operation;

(b) prohibiting or restricting the use of all plant or specified plant in a pipeline operation;

(d) prohibiting or restricting the storage or use of all substances or specified substances in a pipeline operation;

(e) specifying the form in which information required to be made available under clause 10(1)(c) or 11(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 in a pipeline operation;

(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 for use in a pipeline operation;

(i) regulating the labelling or marking of substances for use in a pipeline operation;

(j) regulating the transport of specified plant or specified substances for use in a pipeline operation;

(k) prohibiting the performance, in relation to a pipeline operation, 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 of persons to perform specified duties relating to the maintenance of occupational safety and health in relation to a pipeline operation;

(o) regulating the provision and use, in a pipeline operation, of protective clothing and equipment, safety equipment and rescue equipment;

(p) providing for monitoring the health of members of the workforce engaged in a pipeline operation and the conditions at a place at which a pipeline operation is carried out;

(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 place at which a pipeline operation is carried out.

[Clause 15 inserted by No. 13 of 2005 s. 32.]

Division 3 — Workplace arrangements

[Heading inserted by No. 13 of 2005 s. 32.]

Subdivision 1 — Introduction

[Heading inserted by No. 13 of 2005 s. 32.]

16 . Simplified outline

The following is a simplified outline of this Subdivision —

• A group of members of the workforce engaged in a pipeline operation 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 engaged in a pipeline operation.

• The main function of a safety and health committee is to assist the licensee in relation to occupational safety and health matters.

[Clause 16 inserted by No. 13 of 2005 s. 32.]

Subdivision 2 — Designated work groups

[Heading inserted by No. 13 of 2005 s. 32.]

17 . Establishment of designated work groups by request

(1) A request to the licensee for a pipeline operation to enter into consultations to establish designated work groups in relation to the members of the workforce engaged in the pipeline operation 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 licensee — that workforce representative.

(2) The licensee for a pipeline operation 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 licensee 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 licensee 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 licensee must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

[Clause 17 inserted by No. 13 of 2005 s. 32.]

18 . Establishment of designated work groups at initiative of licensee

(1) If, at any time, the licensee for a pipeline operation considers that designated work groups should be established, the licensee must enter into consultations with —

(a) all members of the workforce; and

(b) if a member of the workforce requests that the licensee enter into consultations with a workforce representative in relation to the member — that workforce representative; and

(2) Within 14 days after the completion of consultations about the establishment of the designated work groups, the licensee 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. 32.]

19 . Variation of designated work groups by request

(1) A request to the licensee for a pipeline operation to enter into consultations to vary designated work groups that have already been established in relation to the members of the workforce engaged in the pipeline operation 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 licensee — that workforce representative.

(2) The licensee for a pipeline operation 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 licensee 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 licensee 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 19 inserted by No. 13 of 2005 s. 32.]

20 . Variation of designated work groups at initiative of licensee

(1) If the licensee for a pipeline operation believes the designated work groups should be varied, the licensee 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 licensee enter into consultations with that workforce representative in relation to the group — that workforce representative; and

(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,

[Clause 20 inserted by No. 13 of 2005 s. 32.]

21 . Referral of disagreement to reviewing authority

(1) If, in the course of consultations under clause 17, 18, 19 or 20, 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 21 inserted by No. 13 of 2005 s. 32.]

22 . Manner of grouping members of 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 engaged in the pipeline operation to which the consultation relates; and

(b) the nature of each type of work performed by those members; 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 in relation to the pipeline operation.

(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 engaged in a pipeline operation is in a designated work group.

(4) All the members of the workforce engaged in a pipeline operation may be in one designated work group.

[Clause 22 inserted by No. 13 of 2005 s. 32.]

Subdivision 3 — Safety and health representatives

[Heading inserted by No. 13 of 2005 s. 32.]

23 . 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 24.

[Clause 23 inserted by No. 13 of 2005 s. 32.]

24 . 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 23(3)(a),

the licensee for the pipeline operation 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 licensee 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 licensee to do so.

(3) If there is more than one candidate for election at the close of the nomination period, the licensee must conduct, or arrange for the conduct of, an election at the licensee’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 30.

(7) All the members of the workforce in the designated work group are entitled to vote in the election.

(8) A licensee conducting or arranging for the conduct of an election under this clause must comply with any relevant directions issued by the Minister.

[Clause 24 inserted by No. 13 of 2005 s. 32.]

25 . List of safety and health representatives

The licensee for a pipeline operation 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 engaged in the pipeline operation; and

(b) ensure that the list is available for inspection, at all reasonable times, by —

(i) the members of the workforce engaged in the pipeline operation; and

(ii) inspectors.

[Clause 25 inserted by No. 13 of 2005 s. 32.]

26 . Members of designated work group must be notified of selection etc. of safety and health representative

The licensee for a pipeline operation must —

(a) notify members of a designated work group in relation to the pipeline operation 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 23(3)(a) or (b)) as safety and health representative for the designated work group within a reasonable time after the selection is made.

[Clause 26 inserted by No. 13 of 2005 s. 32.]

27 . Term of office

(1) A safety and health representative for a designated work group holds office —

(a) if, in consultations that took place under clause 17, 18, 19 or 20, 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 27 inserted by No. 13 of 2005 s. 32.]

28 . 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 licensee for the pipeline operation 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 licensee 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 28 inserted by No. 13 of 2005 s. 32.]

29 . 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 23, to be the safety and health representative for the designated work group for a further term; or

(d) the person is disqualified under clause 30.

(2) A person may resign as the safety and health representative for a designated work group by notice in writing delivered to the licensee 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 licensee and each work group employer,

that the person has ceased to be the safety and health representative for that designated work group.

[Clause 29 inserted by No. 13 of 2005 s. 32.]

30 . 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 licensee; 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 32(1) or any other provision of this Schedule was taken —

(i) with the intention of causing harm to the licensee or work group employer or to an undertaking of the licensee 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 licensee 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 licensee or work group employer or to an undertaking of the licensee 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

(d) any other matters the Tribunal thinks relevant.

[Clause 30 inserted by No. 13 of 2005 s. 32.]

31 . 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 23.

(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 —

(d) this Schedule (other than this clause) applies in relation to the deputy safety and health representative accordingly.

[Clause 31 inserted by No. 13 of 2005 s. 32.]

32 . 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 licensee’s representative and to any other person having immediate control of the workplace;

(iii) make a request to an inspector or to the Minister 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 engaged in the pipeline operation — represent group members in consultations with the licensee 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 engaged in the pipeline operation — 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 licensee or a person representing the licensee; or

(iii) a work group employer or a person representing that employer; and

(d) obtain access to any information under the control of the licensee 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 36.

(2) Subclause (1)(d)(ii) has effect subject to clause 34.

[Clause 32 inserted by No. 13 of 2005 s. 32.]

33 . Assistance by consultant

(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 32(1)(d),

only if the licensee 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 licensee 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 licensee or any work group employer or a person representing the licensee or that employer,

if, and only if, the group member consents to the presence of the consultant.

[Clause 33 inserted by No. 13 of 2005 s. 32.]

34 . Information

(1) Neither —

(a) a safety and health representative; nor

(b) a consultant assisting a safety and health representative,

is entitled, under clause 32(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 32(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 licensee 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 34 inserted by No. 13 of 2005 s. 32.]

35 . 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 35 inserted by No. 13 of 2005 s. 32.]

36 . 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 licensee, the improvement notice may be issued to the licensee by giving it to the licensee’s representative.

(4) If it is not practicable to issue the notice to a responsible person (other than the licensee 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 licensee is not a responsible person — the licensee; and

(b) each work group employer other than a work group employer who is a responsible person; 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 36 inserted by No. 13 of 2005 s. 32.]

37 . Effect of provisional improvement notice

(1) Within 7 days after a notice is issued under clause 36 —

(a) the responsible person; or

(b) any other person, to whom a copy of the notice has been given under clause 36(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 36(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 64, if the inspector confirms or varies the notice, the inspector is taken to have decided, under clause 60, to issue an improvement notice in those terms.

[Clause 37 inserted by No. 13 of 2005 s. 32.]

38 . Duties of licensee and other employers in relation to safety and health representatives

(1) The licensee for a pipeline operation, 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 32(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 32(1)(c); and

(d) provide to the representative access to any information to which the representative is entitled to obtain access under clause 32(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 licensee 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 licensee; 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 licensee is not required to give a safety and health representative access to any information in respect of which the licensee is entitled to claim, and does claim, legal professional privilege.

(5) The duties imposed by this clause on the licensee 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 38 inserted by No. 13 of 2005 s. 32.]

Subdivision 4 — Safety and health committees

[Heading inserted by No. 13 of 2005 s. 32.]

39 . Safety and health committees

(1) A safety and health committee must be established in relation to the members of the workforce engaged in a pipeline operation if —

(a) the number of those members normally engaged in the pipeline operation is not less than 50 (whether or not those members are all at work in relation to the pipeline operation at the same time); and

(b) the members of the workforce are included in one or more designated work groups; and

(c) the licensee 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 licensee 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 licensee, to represent the interests of the licensee and the employer (other than the licensee) 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 licensee and employers (other than the licensee) 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 a licensee 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 licensee.

[Clause 39 inserted by No. 13 of 2005 s. 32.]

40 . Functions of safety and health committees

(1) A safety and health committee has the following functions —

(a) to assist the licensee for the pipeline operation 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 licensee for the pipeline operation, employers (other than the licensee) of members of the workforce, and members of the workforce, in relation to occupational safety and health matters;

(c) to assist the licensee 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 licensee 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 40 inserted by No. 13 of 2005 s. 32.]

41 . Duties of licensee and other employers in relation to safety and health committees

(1) If there is a safety and health committee, the licensee and any employer (other than the licensee) of a member of the workforce must —

(a) make available to the committee any information possessed by the licensee 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 licensee or any employer (other than the licensee) 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 licensee or any employer (other than the licensee) 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 licensee or employer is entitled to claim, and does claim, legal professional privilege.

[Clause 41 inserted by No. 13 of 2005 s. 32.]

Subdivision 5 — Emergency procedures

[Heading inserted by No. 13 of 2005 s. 32.]

42 . 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 engaged in the pipeline operation or any other protected person 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 a person engaged in the pipeline operation or any other protected person, 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 a person engaged in the pipeline operation or any other protected person unless the group member or group members cease to perform particular work,

the representative must —

(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 32(1)(a)(iii) to request an inspector that an inspection be conducted at the workplace.

[Clause 42 inserted by No. 13 of 2005 s. 32.]

43 . 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 42(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 42(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 43 inserted by No. 13 of 2005 s. 32.]

Subdivision 6 — Exemptions

[Heading inserted by No. 13 of 2005 s. 32.]

44 . Exemptions

(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 44 inserted by No. 13 of 2005 s. 32.]

Division 4 — Inspections

[Heading inserted by No. 13 of 2005 s. 32.]

Subdivision 1 — Introduction

[Heading inserted by No. 13 of 2005 s. 32.]

45 . Simplified outline

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

• An inspector may issue a prohibition notice to the licensee for a pipeline operation 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 45 inserted by No. 13 of 2005 s. 32.]

46 . 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 46 inserted by No. 13 of 2005 s. 32.]

Subdivision 2 — Inspections

[Heading inserted by No. 13 of 2005 s. 32.]

47 . Inspections

(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

(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

and the inspector must, unless the Minister revokes the direction, conduct an inspection accordingly.

[Clause 47 inserted by No. 13 of 2005 s. 32.]

Subdivision 3 — Powers of inspectors in relation to the conduct of inspections

[Heading inserted by No. 13 of 2005 s. 32.]

48 . Powers of entry and search — places at which pipeline operations are carried on

(1) An inspector may, for the purposes of an inspection, at any reasonable time during the day or night —

(a) enter the place at which a pipeline operation is carried on and to which the inspection relates and do all or any of the following —

(i) search the place;

(ii) inspect, examine, take measurements of, or conduct tests concerning, any workplace, pipeline, plant, substance or thing at the place;

(iii) take photographs of, make video recordings of, or make sketches of, any workplace, pipeline, plant, substance or thing at the place;

(iv) inspect, take extracts from, or make copies of, any documents at the place 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 subsoil in the vicinity of the place to which the inspection relates.

(2) Immediately on entering a place at which a pipeline operation is carried on for the purposes of an inspection, an inspector must take reasonable steps to notify the purpose of entering the place to —

(a) the licensee’s representative; 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 —

(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 46(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 48 inserted by No. 13 of 2005 s. 32.]

49 . Powers of entry and search — regulated business premises (other than places where pipeline operations carried on)

(1) An inspector may, for the purposes of an inspection —

(a) at any reasonable time, enter any regulated business premises (other than a place at which a pipeline operation is carried on) if the inspector has reasonable grounds to believe that there are likely to be at those premises documents that relate to a pipeline operation that is a 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 certificate of appointment under section 62(2); and

(b) a copy of the Minister’s written direction (if any) to conduct the inspection; and

[Clause 49 inserted by No. 13 of 2005 s. 32.]

50 . 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 pipeline operation that is 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 51; and

(ii) with the consent of the occupier of the premises;

(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 certificate of appointment under section 62(2); and

(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 46(3).

(4) If —

(a) an inspector enters premises in accordance with a warrant under clause 51; 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 50 inserted by No. 13 of 2005 s. 32.]

51 . 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 50(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

(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 51 inserted by No. 13 of 2005 s. 32.]

52 . 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 48, 49 or 50.

Penalty: a fine of $5 500.

[Clause 52 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

53 . Power to require assistance and information

(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 licensee for a pipeline operation; or

(b) the person in charge of a pipeline operation; 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 in relation to the pipeline operation; or

(f) for the effective exercise of the inspector’s powers under this Schedule in connection with the conduct of the inspection in relation to the pipeline operation.

(2) The reasonable assistance referred to in subclause (1) includes, so far as the licensee for a pipeline operation is concerned —

(a) appropriate transport for the inspector to and from the place to be inspected 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 place to be inspected.

(3) A person must not fail, without reasonable excuse, to comply with a requirement under this clause.

Penalty for an offence under subsection (3): a fine of $3 300 or imprisonment for 6 months or both.

[Clause 53 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(1).]

54 . Power to require answering of questions and 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 licensee for a pipeline operation; or

(ii) the person in charge of a pipeline operation; or

(iii) a member of the workforce engaged in a pipeline operation; 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

(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 licensee for a pipeline operation; or

(ii) the person in charge of a pipeline operation; or

(iii) a member of the workforce engaged in a pipeline operation; 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

(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 54 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(2).]

55 . 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 54 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 54.

[Clause 55 inserted by No. 13 of 2005 s. 32.]

56 . 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 place at which a pipeline operation is carried out in connection with the inspection —

(a) take possession of the plant, substance or thing and remove it from the place; or

(b) take a sample of the substance or thing and remove that sample from the place.

(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 licensee for the pipeline operation; 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 engaged in the pipeline operation other than the licensee for the pipeline operation — 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 licensee for the pipeline operation to which the inspection relates, the licensee’s representative 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 56 inserted by No. 13 of 2005 s. 32.]

57 . 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 pipeline, or any plant, substance or thing, for use in a pipeline operation.

(2) If subclause (1) applies, the inspector may direct, by written notice given to the licensee’s representative, that the licensee 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 licensee’s representative under subclause (2), the licensee’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 licensee for the pipeline operation — 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 licensee for a pipeline operation 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 57 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

58 . 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 licensee for a pipeline operation 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 licensee.

(2) The notice must be issued to the licensee by giving it to the licensee’s representative.

(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 licensee to ensure that the activity is not engaged in; or

(ii) direct the licensee 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;

(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 licensee’s representative 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 licensee, the inspector must, upon issuing the notice, give a copy of the notice to that person.

[Clause 58 inserted by No. 13 of 2005 s. 32.]

59 . Compliance with prohibition notice

(1) A licensee must ensure that a prohibition notice issued to the licensee is complied with.

Penalty: a fine of $27 500.

(2) If an inspector is satisfied that action taken by the licensee to remove the threat to safety and health in respect of which the notice was issued is not adequate, the inspector must inform the licensee accordingly.

(3) A prohibition notice ceases to have effect when an inspector notifies the licensee that the inspector is satisfied that the licensee 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 59 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

60 . 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 licensee, the improvement notice may be issued to the licensee by giving it to the licensee’s representative.

(3) If the responsible person is an employer (other than the licensee) 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 licensee’s representative; and

(b) if the notice is so issued — the licensee 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

(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 licensee) 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 licensee’s representative.

(7) If a notice is issued to the licensee or to an employer (other than the licensee) of members of the workforce, the licensee’s representative 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 licensee for the pipeline operation; 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 licensee — that employer.

[Clause 60 inserted by No. 13 of 2005 s. 32.]

61 . 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 61 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

62 . 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 56(3), 57(5), 58(6) or 60(7) while that notice is so displayed.

(2) If a notice has been displayed under clause 56(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 57(5), 58(6) or 60(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 62 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(3).]

Subdivision 4 — Reports on inspections

[Heading inserted by No. 13 of 2005 s. 32.]

63 . Reports on inspections

(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

(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 licensee for the pipeline operation to which the report relates; and

(b) if the report relates to activities performed by an employee of another person — that other person; and

(4) The Minister may, in writing, request the licensee 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 58 or 60 in relation to work being performed for the licensee or that other person — any action taken, or proposed to be taken, in respect of that notice,

and the licensee or that other person must comply with the request.

(5) As soon as practicable after receiving a report, the licensee for the pipeline operation must give a copy of the report, together with any written comment made by the Minister on the report —

(a) if there is a 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 63 inserted by No. 13 of 2005 s. 32.]

Subdivision 5 — Reviews of inspectors’ decisions

[Heading inserted by No. 13 of 2005 s. 32.]

64 . Reviews of inspectors’ decisions

(1) If an inspector, in conducting an inspection or having conducted an inspection —

(a) decides, under clause 37, to confirm or vary a provisional improvement notice; or

(b) decides, under clause 56, to take possession of plant, a substance or a thing at a workplace; or

(c) decides, under clause 57, to direct that a workplace, a part of a workplace, plant, a substance or a thing not be disturbed; or

(d) decides, under clause 58, to issue a prohibition notice; or

(e) decides, under clause 59, that the licensee for a pipeline operation 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 60, 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 licensee for the pipeline operation or any employer (other than the licensee) who is affected by the decision;

(b) a person to whom a notice has been issued under clause 36(2) or 60(1);

(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 37 to cancel a provisional improvement notice; or

(b) decides under clause 59 that the licensee for a pipeline operation 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 —

(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 pipeline operation 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 pipeline operation 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 60 to issue an improvement notice, the operation of the notice is suspended pending determination of the review, 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 37 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 64 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

65 . Powers of reviewing authority on review

(1) On a review of a decision under clause 64, the reviewing authority may —

(a) affirm the decision; or

(b) affirm the decision with such modifications as the reviewing authority considers appropriate; or

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 56 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 65 inserted by No. 13 of 2005 s. 32.]

Division 5 — Referrals to the Tribunal

[Heading inserted by No. 13 of 2005 s. 32.]

66 . Decision may be referred to Tribunal

(1) If a person given notice of a decision under clause 21(3)(b) or 64(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 pipeline operation 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 66 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(4).]

67 . Determination by Tribunal

(1) On a reference under clause 66, 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 pipeline operation concerned, to the operator.

[Clause 67 inserted by No. 13 of 2005 s. 32.]

68 . 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 60 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 37 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 68 inserted by No. 13 of 2005 s. 32.]

69 . Jurisdiction of Tribunal

(1) This clause applies where —

(a) under clause 66 a matter is referred to the Tribunal; or

(b) under clause 30 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 66 in relation to a decision made under clause 21.

[Clause 69 inserted by No. 13 of 2005 s. 32.]

Division 6 — General

[Heading inserted by No. 13 of 2005 s. 32.]

70 . Notifying and reporting accidents and dangerous occurrences

(1) If, arising from a pipeline operation, 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

the licensee 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 70 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

71 . Records of accidents and dangerous occurrences to be kept

(1) The licensee for a pipeline operation must maintain, in accordance with the regulations, a record of each accident or dangerous occurrence in respect of which the licensee is required by clause 70 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 71 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(5).]

72 . Codes of practice

(1) The regulations may prescribe codes of practice for the purpose of providing practical guidance to licensees for pipeline operations and employers (other than licensees) of members of the workforce engaged in pipeline operations.

(2) A person is not liable in any civil or criminal proceedings for contravening a code of practice.

[Clause 72 inserted by No. 13 of 2005 s. 32.]

73 . 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 73 inserted by No. 13 of 2005 s. 32.]

74 . 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 engaged in a pipeline operation 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 74 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

75 . No charges to be levied on members of workforce

The licensee for a pipeline operation or an employer (other than the licensee) of members of the workforce engaged in a pipeline operation 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 engaged in the pipeline operation or any other protected persons.

Penalty: a fine of $27 500.

[Clause 75 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6).]

76 . Victimisation

(1) An employer (whether the licensee 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 42(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 42(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 76 inserted by No. 13 of 2005 s. 32; amended by No. 42 of 2010 s. 181(6); No. 47 of 2011 s. 15.]

77 . 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

(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

(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 77 inserted by No. 13 of 2005 s. 32.]

78 . 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 78 inserted by No. 13 of 2005 s. 32.]

79 . 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 79 inserted by No. 13 of 2005 s. 32.]

80 . 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 80 inserted by No. 13 of 2005 s. 32; amended by No. 47 of 2011 s. 15.]

81 . Regulations — general

(1) The regulations may prescribe any of the following —

(a) procedures for the selection of persons, under clause 39, as members of safety and health committees, to represent the interests of members of the workforce engaged in a pipeline operation;

(b) procedures to be followed at meetings of safety and health committees;

(d) the practice and procedure to be followed in relation to the review of decisions under clause 21 or 64 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 81 inserted by No. 13 of 2005 s. 32.]

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