AUSTRALIAN CAPITAL TERRITORY
Occupational
health and safety act 1989
This consolidation has been prepared by the ACT
Parliamentary Counsel’s Office
Reprinted as at 31 December 1998
TABLE OF PROVISIONS
Section
Part I—Preliminary
1. Short title
2. Commencement
3. Objects
5. Interpretation
6. Voluntary workers etc.
7. Exemptions
8. Service of documents etc. on
employers
Part II—Occupational Health
and Safety council
Division 1—Establishment, functions
and powers
9. Establishment
10. Functions
11. Powers
Division 2—Constitution and meetings
13. Membership
14. Terms
of appointment
16. Chairperson and Deputy Chairperson
18. Leave of absence
19. Disclosure of interest
20. Resignation
21. Termination of appointment
22. Acting members
23. Convening meetings
24. Procedure at meetings
24A. Immunity from suit
Division
3—Advisory committees
25. Establishment
Part III—Duties Relating to
Occupational Health and Safety
27. Duties of employers in relation to
employees
28. Duty of employers in relation to
third parties
29. Duties of persons in control of
workplaces
30. Duties of employees
31. Duties of self-employed persons
32. Duties of manufacturers in relation
to plant and substances
33. Duties of suppliers in relation to
plant and substances
34. Duties of persons erecting or
installing plant in a workplace
35. Reliance on information supplied or
results of research
Part IV—Workplace Arrangements
Division
1—Health and safety representatives
36. Small employers not affected
37. Work groups designated by employers
38. Work groups designated by Registrar
39. Work groups on construction sites
40. Selection
41. Objections to selection
42. Lists of health and safety
representatives
43. Powers
44. Access to information
45. Duties of employers
46. Term of office
47. Resignation etc.
48. Disqualification
49. Liability
50. Deputy
health and safety representatives
Division
2—Provisional improvement notices
51. Issue
52. Display
53. Compliance
54. Revocation
55. Review
Division
3—Emergency procedures
56. Action by health and safety
representatives
57. Alternative work
Division
4—Health and safety committee
58. Functions
59. Duties of employers
60. Liability
part V—inspectors
Division
1—Inspections
61. Things connected with offences
62. Inspections etc.
63. Consent to entry
64. Notice of removal
65. Return of certain seized articles
66. Search warrants
67. Obstructing inspectors
68. False information
Division
2—Administration
69. Occupational Health and Safety
Registrar
70. Inspectors
71. Identity cards
74. Liability
75. Delegation by Registrar
Part VI—Improvement and
Prohibition Notices etc.
76. Improvement notices
77. Prohibition notices
78. Directions not to disturb workplace
etc.
79. Compliance
Party VII—Review of Decisions
Division
1—Review Authority
80. Establishment
80A. Constitution
80B. Disclosure
of interest
Division 2—Reconsideration and
review of decisions
80C. Interpretation
81. Reviewable decisions
82. Eligible persons
83. Reconsideration of inspectors’
decisions
84. Review of decisions
84A. Parties to proceedings before
Review Authority
84B. Representation before Review
Authority
84C. Notice of proceeding
84D. Procedure of Review Authority
84E. Hearings to be in public except in
special circumstances
84F. Reference of questions of law to
Supreme Court
84G. Appeals to the Supreme Court
Division 3—Miscellaneous
84H. Powers of Review Authority
84J. Inspection and retention of
documents
84K. Failure to attend etc.
84M. Contempt
84N. False information
84P. Operation and implementation of a
decision that is subject to appeal
84Q. Protection of Review Authority etc.
Part VIII—Miscellaneous
85. Notice of events
86. Records of accidents etc.
87. Codes of practice
88. Protected information
89. Interfering with safety equipment
90. Interfering with workplace notices
91. Employer not to levy employees
92. Employer not to discriminate
93. Conduct of directors, servants and
agents
94. Contracting out prohibited
95. Civil liability not affected
96. Inconsistency with associated laws
96A. Fees
97. Regulations
Schedule
Eligible
Persons
AUSTRALIAN CAPITAL TERRITORY
Occupational
health and safety act 1989
An Act to promote and improve standards of occupational
health, safety and welfare and for related purposes
Part I—Preliminary
1. Short
title
This
Act may be cited as the Occupational Health and Safety Act 1989.1
2.1 Commencement
(1) Section 1
and this section commence on the day on which this Act is notified in the Gazette.
(2) Subject to
subsection (3), the remaining provisions commence on a day, or on respective
days, fixed by the Minister by notice in the Gazette.
(3) If a provision
referred to in subsection (2) has not commenced before the expiration of the
period of 6 months commencing on the day on which this Act is notified in the Gazette,
that provision shall, by force of this subsection, commence on the expiration
of that period.
3. Objects
The
objects of this Act are—
(a) to secure the health, safety and welfare of
employees at work;
(b) to protect
persons at or near workplaces from risks to health or safety arising out of the
activities of employees at work;
(c) to promote an occupational environment for
employees that is adapted to their health and safety needs; and
(d) to foster a co-operative consultative
relationship between employers and employees on the health, safety and welfare
of employees at work.
5. 3 Interpretation
(1) In this
Act, unless the contrary intention appears—
“approved code of practice” means—
(a) a code of practice that is approved under
section 87; and
(b) such a code of practice, as varied in
accordance with any variation that is approved under section 87;
“associated law” means any of the
following laws:
(a) the Dangerous Goods Act 1984;
(b) The Dangerous Goods Act 1975 of the
State of New South Wales in its application in the Territory;
(c) the Dangerous Goods Regulation 1978
of the State of New South Wales in its application in the Territory;
(d) the Machinery Act 1949;
(e) the Boilers and Pressure Vessels
Regulations;
(f) the Machinery Regulations;
(g) the Scaffolding and Lifts Act 1957;
(h) the Scaffolding and Lifts Act 1912
of the State of New South Wales in its application in the Territory;
(i) the Regulations under the Scaffolding
and Lifts Act 1912 of the State of New South Wales in their application in
the Territory;
(j) such other laws (if any) as are prescribed;
“Chairperson” means the Chairperson of the Council;
“commencement date”, in relation to a
provision of this Act, means the date of commencement of that provision;
“Commission” means the Australian
Industrial Relations Commission;
“Council” means the Occupational Health
and Safety Council established by section 9;
“Crimes Act” means the Crimes Act
1900 of the State of New South Wales in its application in the Territory;
“dangerous occurrence” means an
occurrence, at a workplace, that is declared by the regulations to be a
dangerous occurrence;
“Deputy Chairperson” means the Deputy
Chairperson of the Council;
“designated work group” means—
(a) a group of employees established as a
designated work group by an employer under subsection 37 (1) or (2) or by the
Registrar under subsection 38 (1) or (2); and
(b) such a group as varied by an employer under
subsection 37 (4) or by the Registrar under subsection 38 (3);
and, in relation to an employer,
means such a group that consists entirely of employees of the employer;
“determined fee” means the fee
determined under section 96A for the purposes of the provision in which the
expression occurs;
“employee” means a natural person who
is employed under a contract of service;
“employer” means a person who employs a
natural person under a contract of service;
“health and safety committee” means a
health and safety committee established under the regulations;
“health and safety representative”
means a health and safety representative selected in accordance with section
40;
“improvement notice” means a notice in
force under subsection 76 (1);
“injury” includes—
(a) the contraction of a disease; and
(b) the aggravation, acceleration or recurrence
of an injury or a disease;
“inspector” means an inspector under
section 70;
“involved union” means—
(a) in relation to an employee of an employer—a
registered union of which the employee is a member, being an employee who is
qualified to be such a member by virtue of the work that the employee performs
as an employee of the employer; or
(b) in relation to a designated work group—a
registered union of which an employee included in the group is a member, being
an employee who is qualified to be such a member by virtue of the work the
employee performs as an employee included in the group;
“occupier” includes—
(a) in relation to a workplace—a person who is,
or is reasonably believed to be, in charge of the performance of work at the
workplace; and
(b) in relation to any other premises—a person
who is, or is reasonably believed to be, in charge of the premises;
“plant” includes any machinery,
equipment or tool and any component thereof or accessory thereto;
“premises” includes—
(a) a structure, building, aircraft, vehicle or
vessel;
(b) a place (whether enclosed or built upon or
not); and
(c) a part of premises (including premises of a
kind referred to in paragraph (a) or (b));
“President” means the President of the
Commission;
“prohibition notice” means a notice in
force under subsection 77 (1);
“provisional improvement notice” means
a notice in force under subsection 51 (1);
“Registrar” means the Occupational
Health and Safety Registrar under section 69;
“Review Authority” means the
Occupational Health and Safety Review Authority established by section 80;
“self-employed person” means a natural
person who works for gain or reward otherwise than as an employee (whether or
not he or she employs another person);
“work” means work as an employee or as
a self-employed person;
“workplace” means any premises where
employees or self-employed persons work.
(2) For the
purposes of this Act and the regulations, an employee shall be taken to be at
work at all times while the employee is at his or her workplace for the purpose
of performing work in connection with an undertaking carried on by his or her
employer.
(3) A reference
in this Act to an employee of an employer at a particular workplace shall be
read as a reference to an employee who works at that workplace in the capacity
of an employee of that employer.
(4) A reference in this
Act to—
(a) an offence under this Act or the
regulations; or
(b) a contravention of this Act or the
regulations that constitutes an offence under this Act or the regulations;
shall, unless the context requires
otherwise, be read as including a reference to an offence under or by virtue of
a provision of Part VIII of the Crimes Act that relates to the offence referred
to in paragraph (a) or (b), as the case requires.
(5) For the
purposes of this Act and the regulations—
(a) a sole owner, joint owner or part owner of
any workplace, plant, substance or thing;
(b) the lessor of any leased workplace;
(c) the lessee of any leased workplace;
(d) the hirer of any plant, substance or thing
under a hire-purchase agreement or a contract of hire; and
(e) any other person who has a right of
immediate possession to any workplace, plant, substance or thing;
has a prescribed interest therein.
6. Voluntary
workers etc.
(1) The Minister
may, by notice in the Gazette, declare that—
(a) a person who is included in a specified
class of persons and who, otherwise than under a contract of service or a
contract for services, engages in activities or performs acts at the request or
direction, or for the benefit, of another person specified in the declaration
shall, for the purposes of this Act and the regulations, be taken to be
employed by that other person; and
(b) the work of the first-mentioned person
shall, for those purposes, be taken to be constituted by the performance by
that person of such acts as are specified in the declaration;
and such a declaration has effect
accordingly.
(2) A
declaration under subsection (1) is a disallowable instrument for the purposes
of section 10 of the Subordinate Laws Act 1989.
7. Exemptions
(1) The Minister
may by instrument exempt—
(a) an employer;
(b) a class of employers;
(c) an employee;
(d) a class of employees;
(e) a workplace; or
(f) a class of workplaces;
from the application of all or any of
the provisions of this Act or the Regulations.
(2) An
instrument made under subsection (1) is a disallowable instrument for the
purposes of section 10 of the Subordinate Laws Act 1989.
(3) Where the
Minister—
(a) receives an application for an exemption;
and
(b) makes a decision refusing to grant the
exemption to a person referred to in paragraph (1) (a), (c) or (e);
the Minister shall, within 28 days of
making the decision, give written notice of the decision to the applicant.
(4) Application
may be made to the Administrative Appeals Tribunal for review of a decision
referred to in paragraph (3) (b).
8. Service
of documents etc. on employers
(1) Where a provision of
this Act or the regulations requires or permits a document to be given to an
employer in relation to an activity undertaken by or on behalf of the employer,
the document shall be taken to have been so given to the employer if it is
given to the person who is, or is reasonably believed to be, in charge of that
activity.
(2) Where a
provision of this Act or the regulations requires or permits any thing (other
than the service of a document) to be done in relation to an employer in
relation to an activity undertaken by or on behalf of the employer, the thing
shall be taken to have been so done in relation to the employer if it is done
in relation to the person who is, or is reasonably believed to be, in charge of
that activity.
Part II—Occupational Health and
Safety Council
Division 1—Establishment, functions
and powers
9. Establishment
There
is established by this section a council by the name of the Occupational Health
and Safety Council.
10. Functions
(1) The Council has the
following functions:
(a) to advise the Minister on matters relating
to—
(i) occupational health and safety;
(ii) workers’ compensation; or
(iii) occupational rehabilitation;
(b) to inquire into and report to the Minister
on matters referred to the Council by the Minister in relation to—
(i) occupational health and safety;
(ii) workers’ compensation; or
(iii) occupational rehabilitation;
(c) such other functions as are prescribed.
(2) Without limiting the
generality of paragraph (1) (a), the matters on which the Council may advise
the Minister include the following matters:
(a) the operation of this Act, the regulations
and the associated laws;
(b) the approval of codes of practice, and the
variation of codes of practice, under section 87;
(c) the provision of education and training in
relation to occupational health and safety;
(d) the promotion of occupational health and
safety;
(e) the operation of the Workers’
Compensation Act 1951 and regulations under that Act;
(f) the approval of a protocol or an amendment
to a protocol under section 15F of the Workers’ Compensation Act 1951;
(g) the operation of legislation, including
legislation of the Commonwealth, that governs occupational rehabilitation or
workers’ compensation in relation to public employees;
(h) the provision of education or training in
relation to workers’ compensation or occupational rehabilitation;
(l) the promotion of occupational
rehabilitation.
11. Powers
The
Council has power to do all things necessary or convenient to be done for or in
connection with the performance of its functions.
Division 2—Constitution and meetings
13. Membership
(1) The Council
shall consist of—
(a) 4 members appointed by the Minister after
consultation with such persons or bodies as the Minister considers represent
the interests of employees;
(b) 4 members appointed by the Minister after
consultation with such persons or bodies as the Minister considers represent
the interests of employers; and
(c) 4 other members appointed by the Minister.
(2) The performance of the
functions, or the exercise of the powers, of the Council is not affected only
by reason of a vacancy or vacancies in the membership of the Council.
14. Terms
of appointment
(1) The members
of the Council shall be appointed as part-time members.
(2) A member of
the Council holds office—
(a) for such period not exceeding 3 years as is
specified in the instrument of appointment; and
(b) on such terms and conditions (if any) in
respect of matters not provided for by this Act as are determined in writing by
the Minister.
16. Chairperson
and Deputy Chairperson
The
Minister shall appoint—
(a) the Chairperson of the Council; and
(b) the Deputy Chairperson of the Council;
from the members of the Council.
18. Leave
of absence
(1) The
Minister may grant leave of absence to the Chairperson or Deputy Chairperson on
such terms and conditions as to remuneration or otherwise as the Minister
determines.
(2) The Council may grant
leave of absence to a member (other than the Chairperson or Deputy Chairperson)
on such terms and conditions as to remuneration or otherwise as the Council
determines.
19. Disclosure
of interest
(1) A member of the
Council who has a direct or indirect pecuniary interest in a matter being
considered or about to be considered by the Council shall, as soon as
practicable after the relevant facts have come to the member’s knowledge,
disclose the nature of the interest at a meeting of the Council.
(2) A disclosure
shall be recorded in the minutes of the meeting and, unless the Council
otherwise determines, the member shall not—
(a) be present during any deliberation of the
Council with respect to that matter; or
(b) take part in any decision of the Council
with respect to that matter.
(3) A member
referred to in subsection (2) shall not—
(a) be present during any deliberation of the
Council for the purpose of considering whether to make a determination under
that subsection in relation to that member; or
(b) take part in the making by the Council of
such a determination.
20. Resignation
A
member of the Council may resign his or her office by writing signed by the
member and delivered to the Minister.
21. Termination
of appointment
(1) The
Minister may terminate the appointment of a member of the Council for
misbehaviour or physical or mental incapacity.
(2) Where the
Minister believes on reasonable grounds that—
(a) a member of the Council referred to in
paragraph 13 (1) (a) no longer represents the interests of employees; or
(b) a member of the Council referred to in
paragraph 13 (1) (b) no longer represents the interests of employers;
the Minister may terminate the appointment
of the member.
(3) If a member
of the Council—
(a) becomes bankrupt, applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors, compounds
with creditors or makes an assignment of remuneration for the benefit of those
creditors;
(b) is absent, except on leave granted under
section 18, from 3 consecutive meetings of the Council;
(c) fails, without reasonable excuse, to comply
with an obligation imposed by section 19; or
(d) is convicted, in Australia or elsewhere, of
an offence punishable by imprisonment for 12 months or longer;
the Minister shall terminate the
appointment of the member.
22. Acting
members
(1) The
Minister may appoint a person to act as a member of the Council, other than the
Chairperson or Deputy Chairperson—
(a) during a vacancy in the office of the
member, whether or not an appointment has previously been made to the office;
or
(b) during any period or during all periods when
the member is absent from duty or from the Territory or is, for any reason,
unable to perform the duties of the office;
but a person appointed to act during a
vacancy shall not continue so to act for more than 12 months.
(2) Before
appointing a person to act as a member of the Council referred to in paragraph
13 (1) (a), the Minister shall—
(a) consult with such persons or bodies as the
Minister considers represent the interests of employees; and
(b) have regard to the relevant recommendations
of those persons or bodies in relation to the appointment.
(3) Before
appointing a person to act as a member of the Council referred to in paragraph
13 (1) (b), the Minister shall—
(a) consult with such persons or bodies as the
Minister considers represent the interests of employers; and
(b) have regard to the relevant recommendations
of those persons or bodies in relation to the appointment.
(4) Anything
done by or in relation to a person purporting to act under subsection (1) is
not invalid on the ground that—
(a) the occasion for the person’s appointment
had not arisen;
(b) there is a defect or irregularity in
connection with the person’s appointment;
(c) the person’s appointment had ceased to have
effect; or
(d) the occasion for the person to act had not
arisen or had ceased.
23. Convening
meetings
(1) The
Chairperson—
(a) may convene such meetings of the Council as
the Chairperson considers necessary for the efficient performance of its
functions; and
(b) shall, on receipt of a request in writing
signed by not less than 4 other members of the Council, convene a meeting of
the Council.
(2) Where the
Chairperson proposes to convene a meeting of the Council, the Chairperson
shall, not later than 5 days before the date of the proposed meeting, give each
member of the Council a notice in writing specifying—
(a) the date, time and place of the meeting; and
(b) the matters to be considered at the meeting.
(3) The
Minister may convene a meeting of the Council by notice in writing given to
each of the members.
24. Procedure
at meetings
(1) The
Chairperson shall preside at all meetings of the Council at which the
Chairperson is present.
(2) Where the
Chairperson is not present at a meeting of the Council, the Deputy Chairperson
shall preside at the meeting.
(3) Where the Chairperson
and the Deputy Chairperson are both absent from a meeting of the Council, the
members present shall elect 1 of their number to preside at the meeting.
(4) Subject to
section 23 and this section, the member presiding at a meeting of the Council
may give directions regarding the procedure to be followed in connection with
the meeting.
(5) Subject to
subsection (5A), at a meeting of the Council, 7 members including—
(a) 2 of the members referred to in paragraph 13
(1) (a);
(b) 2 of the members referred to in paragraph 13
(1) (b); and
(c) 2 of the members referred to in paragraph 13
(1) (c);
constitute a quorum.
(5A) A paragraph of
subsection (5) shall only be taken to be satisfied if at least 1 of the members
required to be present by that paragraph is not an acting member.
(6) Questions
arising at a meeting of the Council shall be decided by a majority of the votes
of members present and voting.
(7) The member
presiding at a meeting of the Council has a deliberative vote only.
(8) The Council
shall keep a record in writing of its proceedings.
24A. Immunity
from suit
(1) No action, suit or
proceeding lies against a person who is or has been a member of the Council in
relation to an act done or omitted to be done in good faith in the performance
or purported performance of a function under this Act.
(2) Subsection (1) does
not affect any liability that the Territory would, but for that subsection,
have in respect of an act or omission referred to in that subsection.
Division 3—Advisory committees
25. Establishment
(1) The Council may
constitute such advisory committees as it thinks necessary to assist in the
performance of its functions.
(2) The Council
shall, when requested to do so by the Minister, constitute an advisory
committee to assist it in the performance of its functions in relation to any
matter specified by the Minister concerning occupational health and safety.
(3) Subject to
any direction by the Council, an advisory committee may determine the manner in
which it is to perform its functions.
Part III—Duties relating to
Occupational Health and Safety
27. Duties
of employers in relation to employees
(1) An employer
shall take all reasonably practicable steps to protect the health, safety and
welfare at work of the employer’s employees.
Penalty:
(a) if the offender is a natural person—250
penalty units; or
(b) if the offender is a body corporate—1,250
penalty units.
(2) Without
limiting the generality of subsection (1), an employer contravenes that
subsection if the employer fails to take all reasonably practicable steps—
(a) to provide and maintain a working
environment (including plant and systems of work)—
(i) that is safe for the employer’s employees
and without risk to their health; and
(ii) that provides adequate facilities for their
welfare at work;
(b) in relation to any workplace under the
employer’s control—
(i) to ensure that the workplace is safe for
the employees and without risk to their health; and
(ii) to provide and maintain a means of access
to and egress from the workplace that is safe for the employees and without
risk to their health;
(c) to ensure the safety at work of, and the
absence of risks at work to the health of, the employees in connection with the
use, handling, storage or transport of plant or substances;
(d) to provide to the employees the information,
instruction, training and supervision necessary to enable them to perform their
work in a manner that is safe and without risk to their health;
(e) to develop and maintain a policy relating to
occupational health and safety that—
(i) enables effective co-operation between the
employer and the employees in promoting and developing measures to ensure the
employees’ health, safety and welfare at work; and
(ii) provides adequate mechanisms for reviewing
the effectiveness of those measures;
(f) to bring to the attention of the employees
the measures developed as a result of the policy referred to in paragraph (2)
(e) to ensure their health, safety and welfare at work;
(g) to take appropriate action to monitor the
employees’ health and safety at work and the conditions of the workplaces under
the employer’s control;
(h) to maintain appropriate information and
records relating to the employees’ health and safety; or
(i) to provide appropriate medical and first-aid
services for the employees.
(3) A policy of
the kind referred to in paragraph (2) (e) shall be developed and maintained in
consultation with—
(a) any health and safety committee established
in respect of the employer’s employees; or
(b) if no such committee exists in respect of
the employer’s employees—those employees or any involved union.
28. Duty
of employers in relation to third parties
An
employer shall take all reasonably practicable steps to ensure that persons at
or near a workplace under the employer’s control, who are not the employer’s
employees, are not exposed to risk to their health or safety arising from the
conduct of the employer’s undertaking.
Penalty:
(a) if the offender is a natural person—250
penalty units; or
(b) if the offender is a body corporate—1,250
penalty units.
29. Duties
of persons in control of workplaces
A
person who has, to any extent, control of—
(a) a workplace;
(b) a means of access to, or egress from, a
workplace; or
(c) plant or a substance at a workplace;
shall take all reasonably practicable
steps to ensure that it is safe and without risk to health.
Penalty:
(a) if the offender is a natural person—250
penalty units; or
(b) if the offender is a body corporate—1,250
penalty units.
30. Duties
of employees
(1) An employee
shall, at all times while at work, take all reasonably practicable steps—
(a) to ensure that the employee does not take
any action, or make any omission, that creates a risk, or increases an existing
risk, to the health or safety of the employee, or of other persons (whether
employees or not) at or near the place at which the employee is at work;
(b) in respect of any duty or obligation imposed
on the employee’s employer, or on any other person, by or under this Act or the
regulations—to co-operate with the employer, or that other person, to the
extent necessary to enable the employer or other person to fulfill that duty or
obligation; and
(c) to use equipment, in accordance with any
instructions given by the employee’s employer consistent with its safe and
proper use, that is—
(i) supplied to the employee by the employer;
and
(ii) necessary to protect the health and safety
of the employee or of other persons (whether employees or not) at or near the
place at which the employee is at work.
Penalty: 250 penalty units.
(2) Nothing in
subsection (1) shall be taken to imply that the choice, or manner of use, of
equipment of the kind referred to in paragraph (1) (c) is not a matter that
may, consistently with this Act, the regulations and the associated laws, be
agreed upon—
(a) between the employer and any involved union
in relation to employees of that employer; or
(b) by a health and safety committee in respect
of the employees of the employer.
(3) Where an
agreement of the kind referred to in paragraph (2) (a) (whether or not entered
into before the commencement date) or of the kind referred to in paragraph (2)
(b) provides a process for choosing equipment of a particular kind that is to
be provided by the employer, action shall not be taken against an employee of
the employer for failure to use equipment of that kind that is so provided,
unless the equipment has been chosen in accordance with that process.
(4) Where an
agreement of the kind referred to in paragraph (2) (a) (whether or not entered
into before the commencement date) or of the kind referred to in paragraph (2)
(b) provides a process for determining the manner of use of equipment of a
particular kind, action shall not be taken against an employee of the employer
for failure to use, in the manner required by the employer, equipment of that
kind that is so provided, unless the manner has been determined in accordance
with that process.
31. Duties
of self-employed persons
A
self-employed person shall take all reasonably practicable steps to ensure that
the health and safety of other persons (not being his or her employees) are not
adversely affected by work undertaken by or for the self-employed person.
Penalty: 250 penalty units.
32. Duties
of manufacturers in relation to plant and substances
(1) A
manufacturer of any plant that the manufacturer ought reasonably to expect will
be used by employees at work shall take all reasonably practicable steps—
(a) to ensure that the plant is so designed and
constructed as to be, when properly used, safe for employees and without risk
to their health;
(b) to carry out, or cause to be carried out,
the research, testing or examination necessary in order to discover, and to
eliminate or minimise, any risk to the health or safety of employees that may
arise from the use of the plant; and
(c) to make available to an employer, in
connection with the use of the plant by employees at work, adequate information
concerning—
(i) the use for which it was designed and
tested;
(ii) any conditions necessary to ensure that,
when put to the use for which it was designed and tested, it will be safe for
employees and without risk to their health; and
(iii) the proper maintenance of the plant.
Penalty:
(a) if the offender is a natural person—250
penalty units; or
(b) if the offender is a body corporate—1,250
penalty units.
(2) A
manufacturer of any substance that the manufacturer ought reasonably to expect will
be used by employees at work shall take all reasonably practicable steps—
(a) to ensure that the substance is so
manufactured as to be, when properly used, safe for employees and without risk
to their health;
(b) to carry out or cause to be carried out, the
research, testing or examination necessary in order to discover, and to
eliminate or minimise, any risk to the health and safety of employees that may
arise from the use of the substance; and
(c) to make available to an employer, in
connection with the use of the substance by employees at work, adequate
information concerning—
(i) the use for which it was manufactured and
tested;
(ii) details of its composition;
(iii) any conditions necessary to ensure that,
when put to the use for which it was manufactured and tested, it will be safe
for employees and without risk to their health; and
(iv) the first-aid and medical procedures that
should be followed if the substance causes injury.
Penalty:
(a) if the offender is a natural person—250
penalty units; or
(b) if the offender is a body corporate—1,250
penalty units.
(3) Where—
(a) plant or a substance is brought into the
Territory at any time by a person who is not the manufacturer of the plant or
substance; and
(b) at that time the manufacturer of the plant
or substance does not have a place of business in the Territory;
the first-mentioned person shall, for
the purposes of this section, be taken to be the manufacturer of the plant or
substance.
33. Duties
of suppliers in relation to plant and substances
(1) A supplier
of any plant or substance that the supplier ought reasonably to expect will be
used by employees at work shall take all reasonably practicable steps—
(a) to ensure that, at the time of supply, the
plant or substance is in such condition as to be, when properly used, safe for
employees and without risk to their health;
(b) to carry out, or cause to be carried out,
the research, testing or examination necessary in order to discover, and to
eliminate or minimise, any risk to the health or safety of employees that may
arise from the condition of the plant or substance; and
(c) to make available to an employer, in
connection with the use of the plant or substance by employees at work,
adequate information concerning—
(i) the condition of the plant or substance at
the time of the supply;
(ii) any risk to the health and safety of
employees to which the condition of the plant or substance may give rise unless
it is properly used;
(iii) the steps that need to be taken in order to
eliminate such a risk;
(iv) in the case of plant—the proper maintenance
of the plant; and
(v) in the case of a substance—the first-aid
and medical procedures that should be followed in the event of the substance
causing injury to an employee.
Penalty:
(a) if the offender is a natural person—250
penalty units; or
(b) if the offender is a body corporate—1,250
penalty units.
(2) For the
purposes of subsection (1), where a person (in this subsection called the “ostensible
supplier”) supplies to an employer any plant or substance that is to be used by
employees at work and the ostensible supplier—
(a) carries on the business of financing the
acquisition or the use of goods by other persons;
(b) has, in the course of that business,
acquired an interest in the plant or substance solely for the purpose of
financing its acquisition by the employer from a third person or its provision
to the employer by a third person; and
(c) has not taken possession of the plant or
substance or has taken possession of the plant or substance solely for the
purpose of passing possession of the plant or substance to that employer;
the reference in subsection (1) to a
supplier shall, in relation to the plant or substance referred to in this
subsection, be read as a reference to the third person and not as a reference
to the other ostensible supplier.
34. Duties
of persons erecting or installing plant in a workplace
A
person who erects or installs any plant in a workplace for the use of employees
at work shall take all reasonably practicable steps to ensure that the plant is
not erected or installed in such a manner that it is unsafe for the employees
who use the plant or constitutes a risk to their health.
Penalty:
(a) if the offender is a natural person—250
penalty units; or
(b) if the offender is a body corporate—1,250
penalty units.
35. Reliance
on information supplied or results of research
(1) Without
limiting the generality of subsection 27 (1) or section 28 or 29, a person required
under that provision to take reasonably practicable steps in relation to the
use of plant or a substance shall be taken to have taken such steps in
accordance with that provision, in relation to the use of any plant or
substance, to the extent that—
(a) the person ensured, as far as is reasonably
practicable, that the use of the plant or substance was in accordance with—
(i) information supplied by the manufacturer or
the supplier of the plant or substance; or
(ii) an approved code of practice;
relating to the health and
safety in the use of the plant or substance; and
(b) it was reasonable for the person to rely on
that information.
(2) Without
limiting the generality of subsection 32 (1) or (2) or 33 (1), a person
required under that subsection to take reasonably practicable steps in relation
to the carrying out of research, testing or examination of plant or a
substance, shall be taken to have taken such steps in accordance with that
subsection, in relation to the carrying out of any research, testing or
examination, to the extent that—
(a) the research, testing or examination has
already been carried out otherwise than by, or on behalf of, the person; and
(b) it was reasonable for the person to reply on
that research, testing or examination.
(3) Without limiting the generality of section 34, a person
required under that section to take reasonably practicable steps in relation to
the erection or installation of plant in a workplace, shall be taken to have
taken such steps in accordance with that section, in relation to any erection
or installation of plant, to the extent that—
(a) the person ensured, as far as is reasonably
practicable, that the erection or installation was in accordance with—
(i) information supplied by the manufacturer or
the supplier of the plant; or
(ii) an approved code of practice;
relating to the erection or
installation of the plant in a manner that ensures the health and safety of
employees who use the plant; and
(b) it was reasonable for the person to rely on
that information.
Part IV—Workplace arrangements
Division 1—Health and safety
representatives
36. Small
employers not affected
This
Division applies only in relation to an employer who employs 10 or more
employees.
37. Work
groups designated by employers
(1) A person who is an
employer on the commencement date shall—
(a) not later than 14 days after that date; and
(b) by notice in accordance with subsection
(10);
established designated work groups in
respect of his or her employees.
(2) A person
who, after the commencement date, becomes an employer shall—
(a) not later than 14 days after becoming an
employer; and
(b) by notice in accordance with subsection
(10);
establish designated work groups in
respect of his or her employees.
(3) A person
who, without reasonable excuse, contravenes subsection (1) or (2) is guilty of
an offence punishable, on conviction, by—
(a) if the offender is a natural person—a fine
not exceeding 10 penalty units; or
(b) if the offender is a body corporate—a fine
not exceeding 50 penalty units.
(4) An employer may vary
designated work groups by notice in accordance with subsection (10).
(5) Designated
work groups shall be so established or varied that the manner in which
employees are grouped—
(a) best and most conveniently enables the
employees’ interests relating to occupational health and safety to be
represented and safeguarded; and
(b) best takes account of the need for any
health and safety representative selected for a designated work group to be
accessible to each employee included in the group.
(6) In
determining the manner of grouping employees in accordance with subsection (5),
an employer shall have regard, in particular to—
(a) the number of employees;
(b) the nature of each type of work performed by
the employees;
(c) the number and grouping of the employees who
perform the same or similar types of work;
(d) the workplaces, and the areas within the
workplaces, where each type of work is performed;
(e) the nature of any risks to health and safety
at the workplaces; and
(f) any arrangements at the workplaces relating
to overtime or shift work.
(7) An employer
shall not establish or vary a designated work group without consulting—
(a) each involved union in relation to the
employees; and
(b) if there is no such involved union—such of
the employees as the employer considers appropriate;
in relation to the establishment or
variation of the designated work group.
(8) Designated work
groups for employees shall be so established or varied that each of the
employees is included in a designated work group.
(9) Subject to
subsections (5), (6) and (7), all of an employer’s employees may be included in
1 designated work group.
(10) A notice
establishing a designated work group under subsection (1) or (2), or varying a
designated work group under subsection (4), shall—
(a) describe the group and the employees, or the
class of employees, who are included in that group; and
(b) be displayed in each workplace under the
employer’s control as will allow all of the employees in the group to be
notified of its establishment or variation.
38. Work
groups designated by Registrar
(1) Where an
employer to whom subsection 37 (1) or (2) applies has failed to establish
designated work groups in respect of his or her employees within the time
required by that subsection, the Registrar may establish designated work groups
in respect of those employees.
(2) The Registrar may
establish designated work groups in lieu of those established by an employer,
upon receipt of a written request to do so, signed by not less than 50% of the
employees included in all of the groups established by the employer.
(3) The
Registrar may vary a designated work group established by an employer upon
receipt of a written request to do so, signed by not less than 50% of the
employees included in the group.
(4) The
establishment of a designated work group under subsection (1) or (2) or the
variation of a designated work group under subsection (3) shall be by notice in
writing given to the employer concerned, describing each of the groups
established or varied and the employees or class of employees who are included
in that group.
(5) In the
exercise of a power under subsection (1), (2) or (3), the Registrar shall have
regard to the matters specified in paragraphs 37 (6) (a) to (f) (inclusive) and
shall consult—
(a) each involved union in relation to the
employees affected; or
(b) if there is no such involved union—such of the
employees affected as the Registrar considers appropriate.
(6) Where a
designated work group is established under subsection (1) or (2) or varied
under subsection (3), the employer to whom notice under subsection (4) is given
shall, not later than 14 days after the date of the notice, cause a notice of
the establishment or variation to be displayed at such workplaces under the
employer’s control as will allow all of the employees in the group to be
notified of its establishment or variation.
(7) A person who, without
reasonable excuse, contravenes subsection (6) is guilty of an offence
punishable, on conviction, by a fine not exceeding 1 penalty unit.
39. Work
groups on construction sites
(1) In this
section—
“building and construction work” has
the same meaning as in the Long Service Leave (Building and Construction
Industry) Act 1981;
“construction site” means a workplace
at which building and construction work is, or is to be, performed.
(2) Where—
(a) a person (in this section called the “principal
contractor”) engages but does not employ another person (in this section called
the “sub-contractor”) to carry out building and construction work for the
principal contractor on a construction site; and
(b) the sub-contractor employs another person (in
this section called the “worker”) to perform that work;
the Registrar may, on application by
the principal contractor, declare that this section applies to that site.
(3) The
Registrar shall not make a declaration unless the Registrar believes on reasonable
grounds—
(a) that—
(i) the principal contractor has, or will have,
substantial control over the performance of the worker’s work on the
construction site; or
(ii) but for an agreement between the principal contractor
and the sub-contractor, the principal contractor would have, or would have had,
such control; and
(b) that—
(i) the principal contractor has, or will have,
substantial control over the performance of other building and construction
work on the site; or
(ii) but for an agreement between the principal
contractor or any other sub-contractor, the principal contractor would have, or
would have had, such control.
(4) An
application for a declaration shall be made in writing and given to the Registrar.
(5) A
declaration shall be made by notice in the Gazette.
(6) While a declaration is
in force—
(a) Divisions 1, 2 and 4 of Part IV have effect
in relation to the principal contractor and the worker—
(i) as if a contract of employment existed
between them in respect of the performance of the work by the worker on the
construction site; and
(ii) as if, unless the contrary intention
appears, a reference in any provision of those Divisions (other than in
subsection 45 (3), paragraph 48 (1) (b) and subsection 59 (4)) to an employer
or employee were a reference to the principal contractor or worker,
respectively;
(b) sections 7, 8, and 82 and the Schedule have
effect in relation to the principal contractor and the worker as if, in respect
of the performance of the work by the worker on the construction site, a
reference in any of those sections or the Schedule to an employer or employee
included in a reference to the principal contractor or worker, respectively;
and
(c) for the purposes of Divisions 1 and 4 of
Part IV (other than subsection 45 (3), section 48 and subsection 59 (4)), the
sub-contractor shall not be taken to be the worker’s employer in respect of the
performance of the work by the worker on the construction site.
40. Selection
(1) There shall
not be more than 1 health and safety representative for a designated work
group.
(2) The health
and safety representative for a designated work group shall be an employee
included in the group who has been duly selected by the employees in the group to
be its health and safety representative.
(3) The regulations may
make provision in relation to the selection of health and safety
representatives, and where such regulations are in force, a health and safety
representative shall be selected only in accordance with the regulations.
(4) A person
selected in accordance with subsection (2) as a health and safety
representative for a designated work group shall have no power as a health and
safety representative until the person has given the relevant employer a notice
in writing of his or her selection.
(5) Subsection
(4) does not apply to a person selected as a health and safety representative
in accordance with regulations made for the purposes of subsection (3).
(6) As soon as
practicable after an employer is notified under subsection (4), the employer
shall cause a notice that the person so selected is the health and safety
representative for the designated work group to be displayed in a prominent
place at such workplaces under the employer’s control as will allow all of the
employees in the group to be notified of the selection.
(7) A person who, without
reasonable excuse, contravenes subsection (6) is guilty of an offence
punishable, on conviction by a fine not exceeding 1 penalty unit.
41. Objections
to selection
(1) This
section has no effect if regulations made for the purposes of subsection 40 (3)
are in force.
(2) Where—
(a) a health and safety representative (in this
section called the “current representative”) for a designated work group holds
office otherwise than by virtue of an election conducted under this section;
and
(b) a notice of objection to the selection of
the current representative, signed by—
(i) the employer of all the employees included
in the designated work group; or
(ii) not less than 50% of the employees included
in the designated work group;
is lodged with the Registrar in
accordance with subsection (3);
the Registrar shall conduct an
election of a health and safety representative to replace the current
representative.
(3) A notice of objection
shall be lodged with the Registrar—
(a) within 7 days after the day on which notice
of the selection of the current representative was given to the employer
concerned in accordance with subsection 40 (4); or
(b) where the Registrar believes on reasonable
grounds that the first reasonable opportunity to lodge the notice will not, or
did not, arise within those 7 days—within such further period as the Registrar
allows, whether before or after the expiration of the 7 days.
(4) Where a health and
safety representative is elected at an election conducted under this section—
(a) the Registrar shall, in writing, notify the
employer concerned and the current representative of the election of the
representative; and
(b) the current representative shall cease to
hold office on the date of the notice given to him or her under paragraph (a).
(5) As soon as practicable
after the employer is notified under paragraph (4) (a), the employer shall
cause a notice that the person so elected is the health and safety
representative for the designated work group to be displayed in a prominent
place at such workplaces under the employer’s control as will allow all of the
employees in the group to be notified of the election.
(6) A person
who, without reasonable excuse, contravenes subsection (5) is guilty of an
offence punishable, on conviction, by a fine not exceeding 1 penalty unit.
42. Lists
of health and safety representatives
(1) An employer shall
prepare and keep up to date a list of all the health and safety representatives
for designated work groups that consist of employees of the employer, and shall
ensure that the list is at all reasonable times available for inspection by—
(a) the employees;
(b) involved unions in relation to the
designated work groups; and
(c) inspectors.
(2) An employer
who, without reasonable excuse, contravenes subsection (1) is guilty of an
offence punishable, on conviction, by a fine not exceeding 1 penalty unit.
43. Powers
For
the purpose of promoting or ensuring the health and safety of employees in a
designated work group at any workplace at which work is performed for the
relevant employer by some or all of those employees, the health and safety
representative for the group may—
(a) inspect the whole or any part of such a
workplace if—
(i) there has, in the immediate past, been an
accident or a dangerous occurrence at the workplace;
(ii) the health and safety representative
believes on reasonable grounds that there is an immediate threat of an accident
or dangerous occurrence at the workplace; or
(iii) the health and safety representative has
given the employer reasonable notice of the inspection;
(b) accompany an inspector during any inspection
of the workplace by the inspector (whether or not the inspection is conducted
as a result of a request made by the health and safety representative);
(c) if there is no health and safety committee
in respect of the employer’s employees—represent the employees in the group in
consultations with the employer concerning the development, implementation and
review of measures to ensure the health and safety at work of the employees in
the group;
(d) where there is a health and safety committee
in respect of the employer’s employees—examine any of the records of that
committee;
(e) investigate complaints made by any of the
employees in the group to the health and safety representative concerning the
health and safety of any of the employees at work;
(f) with the consent of the employee concerned,
be present at any interview, concerning health and safety at work, between an
employee in the group and—
(i) an inspector; or
(ii) the employer or a person representing the
employer;
(g) subject to section 44, obtain access to any
information under the employer’s control relating to risks to health and safety
of any employee—
(i) at any workplace under the employer’s
control; or
(ii) arising from the conduct by the employer of
an undertaking or from plant or substances used for the purposes of the
undertaking; and
(h) subject to section 44, obtain access to any
information under the employer’s control relating to the health and safety of
any of the employer’s employees.
44. Access
to information
A
health and safety representative is not entitled to obtain access to—
(a) information in respect of which an employer
is entitled to claim, and does claim, legal professional privilege; or
(b) information of a confidential medical nature
relating to a person who is or was an employee of an employer unless—
(i) the person has delivered to the employer a
written authority permitting the health and safety representative to have
access to the information; or
(ii) the information is in a form that does not
identify the person or enable the identity of the person to be discovered.
45. Duties
of employers
(1) The
employer of the employees included in a designated work group for which there
is a health and safety representative shall—
(a) upon 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 employees in the group
perform work for the employer, being changes that may affect the health or safety
at work of the employees;
(b) in respect of a workplace at which some or
all of the employees perform work for the employer—
(i) permit the health and safety representative
to make such inspection of the workplace as the representative is entitled to
make in accordance with paragraph 43 (1) (a), and to accompany an inspector
during any inspection of the workplace by the inspector; and
(ii) where there is no health and safety
committee in respect of the employer’s employees at the workplace—upon being
requested to do so by the health and safety representative, consult with the
representative concerning the development, implementation and review of
measures to ensure the health and safety at work of those employees;
(c) permit the health and safety representative
to be present at any interview at which the representative is entitled to be
present under paragraph 43 (1) (f);
(d) permit the health and safety representative,
upon request, to have access to information to which the representative is entitled
under paragraph 43 (1) (g) or (h);
(e) permit the representative to take such time
off work, without loss of remuneration or other entitlements, as is necessary
and reasonable to exercise the powers of a health and safety representative;
(ea) permit the representative to take such time
off work, without loss of remuneration or other entitlements, as is necessary
and reasonable to allow him or her to undertake a training program approved
under the regulations; and
(f) permit the health and safety representative
to have access to such facilities—
(i) as are prescribed for the purposes of this
paragraph; or
(ii) to which access is necessary and reasonable
for the purposes of exercising the representative’s powers.
Penalty:
(a) if the offender is a natural person—50
penalty units;
(b) if the offender is a body corporate—250
penalty units.
(2) An employer
shall not permit a health and safety representative to have access to
information of a confidential medical nature under the control of the employer,
being information relating to a person who is or was an employee of the
employer, unless—
(a) the person has delivered to the employer a
written authority permitting the representative to have access to the
information; or
(b) the information is in a form that does not
identify the person or enable the identity of the person to be discovered.
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250 penalty
units.
(3) Where—
(a) a declaration under section 39 is in force
in respect of a construction site; and
(b) a worker to whom the declaration relates is
the health and safety representative for a designated work group established in
respect of employees on site;
the sub-contractor who employees the
worker shall permit the worker to take such time off work, without loss of
remuneration or other entitlements, as is necessary and reasonable to exercise
the powers of a health and safety representative.
Penalty:
(a) if the offender is a natural person—10
penalty units; or
(b) if the offender is a body corporate—50
penalty units.
46. Term
of office
(1) Subject to
this Division, a health and safety representative for a designated work group
holds office for such period, not exceeding 2 years, as is determined by the
employees who are, from time to time, included in the group.
(2) A person who
ceases to hold office as a health and safety representative under this section
is eligible for re-selection.
47. Resignation
etc.
(1) A person
shall cease to be the health and safety representative for a designated work
group if—
(a) the person resigns as the health and safety
representative;
(b) the person ceases to be an employee included
in the designated work group; or
(c) the person is disqualified under section 48.
(2) A person
may resign as the health and safety representative for a designated work group
by notice in writing delivered to the relevant employer.
48. Disqualification
(1) The
Registrar may, upon application by—
(a) the employer of the employees in a
designated work group;
(b) if a declaration under section 39 is in
force in respect of a construction site—any employer who is a sub-contractor to
whom the declaration relates;
(c) any involved union in relation to a
designated work group; or
(d) if there is no involved union in relation to
a designated work group—any employee in the group;
disqualify the health and safety
representative for the group for a specified period not exceeding 5 years from
being a health and safety representative for any designated work group.
(2) An
application referred to in subsection (1) shall be in writing setting out the
grounds on which the disqualification is sought.
(3) The
Registrar shall not disqualify a health and safety representative unless the
Registrar believes on reasonable grounds that—
(a) action taken by the representative in the
exercise or purported exercise of his or her powers under this Act or the
regulations was taken—
(i) with the intention of causing harm to the
employer or to an undertaking of the employer; or
(ii) unreasonably, capriciously or otherwise
than for the purpose for which the power was conferred on the representative;
or
(b) 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 health and safety representative, information acquired
from an employer.
(4) For the purpose
of exercising the power under subsection (1), the Registrar shall have regard
to—
(a) the harm (if any) that was caused to the
employer or to an undertaking of the employer as a result of the action of the
representative;
(b) the past record of the representative in
exercising the powers of a health and safety representative;
(c) the effect (if any) on the public interest
of the action of the representative; and
(d) such other matters as the Registrar thinks
relevant.
(5) Where the
Registrar disqualifies a health and safety representative, the Registrar shall
take all reasonably practicable steps to give notice in writing of the
disqualification to the representative.
49. Liability
An
action or other proceeding, civil or criminal, does not lie against a health
and safety representative for or in relation to any act done, or omission made,
in good faith in connection with his or her powers under this Act or the
regulations.
50. Deputy
health and safety representatives
(1) One deputy health and
safety representative may be selected for each designated work group for which
a health and safety representative has been selected.
(2) A deputy
health and safety representative shall be selected in the same manner as a
health and safety representative.
(3) Where the
health and safety representative for a designated work group ceases to be the
health and safety representative or is unable (because of absence or for any
other reason) to exercise the powers of a health and safety representative—
(a) the powers may be exercised by the deputy
health and safety representative (if any) for the group; and
(b) this Act (other than this section) and the
regulations apply in relation to the deputy accordingly.
(4) The employer of the
employees included in a designated work group for which there is a deputy
health and safety representative shall permit the deputy to take such time off
work, without loss of remuneration or other entitlements, as is necessary and
reasonable to allow him or her to undertake a training program approved under
the regulations.
Division 2—Provisional improvement
notices
51. Issue
(1) Where a
health and safety representative for a designated work group believes on
reasonable grounds that a person (in this section called “the responsible
person”)—
(a) is contravening a provision of this Act or
the regulations; or
(b) is likely to contravene a provision of this
Act or the regulations;
being a contravention that affects, or
that the health and safety representative believes on reasonable grounds is
likely to affect, 1 or more employees included in the group, the representative
may, by notice in writing given to the responsible person, require that person
to rectify the matters or activities occasioning the contravention or likely
contravention.
(2) A health
and safety representative shall not give a provisional improvement notice to a
person unless the representative believes on reasonable grounds that—
(a) the representative has taken all reasonably
practicable steps to consult with the responsible person concerning
rectification by that person of the matters or activities occasioning the
contravention or likely contravention; and
(b) any further such steps are unlikely to
result in the rectification of those matters or activities.
(3) A health and
safety representative shall not issue a provisional improvement notice in
relation to any matter that is the subject of an improvement notice or a
prohibition notice.
(4) A
provisional improvement notice shall—
(a) specify the contravention that the health
and safety representative believes is occurring or is likely to occur, and set
out the reasons for that belief; and
(b) specify a period of not less than 7 days
commencing on the day after the day on which the notice is issued (being a
period that is, in the representative’s opinion, reasonable) within which the
responsible person is to rectify the matters or activities to which the notice
relates.
(5) Notwithstanding
paragraph (4) (b), a provisional improvement notice that relates to a matter in
the building and construction industry may be so expressed as to require the
responsible person to rectify the matters or activities to which the notice
relates within the 24 hours commencing when the notice is given personally to
the responsible person.
(6) In
subsection (5), “building and construction industry” has the same meaning as in
the Long Service Leave (Building and Construction Industry) Act 1981.
(7) A provisional
improvement notice may specify action that the responsible person is to take
during the period specified in the notice.
(8) Where a
health and safety representative gives a provisional improvement notice to a
person, the representative shall take all reasonably practicable steps to give
a copy of the notice—
(a) to the Registrar;
(b) where the notice is given to an employee in
connection with work performed by the employee for an employer—to that
employer;
(c) where the notice relates to any workplace,
plant, substance or thing in which a person, other than the responsible person
or an employer referred to in paragraph (b), has a prescribed interest—to each
such person; and
(d) where the notice is given to a person (not
being the employer concerned) who has a prescribed interest in any workplace,
plant, substance or thing by reason of which the representative believes a
contravention of this Act or the regulations has occurred or is likely to
occur—to the employer of the employees who work in that workplace or who use
that plant, substance or thing.
Penalty: 1 penalty unit.
(9) Before the
end of the period specified in a provisional improvement notice, the health and
safety representative who issued the notice may, by notice in writing given to
the responsible person, extend the period within which the person is to take
action in accordance with the notice.
52. Display
(1) Where a
provisional improvement notice has been given to an employer, the employer
shall—
(a) notify each employee whose work is affected
by the contravention to which the notice relates of the fact of the issue of
the notice; and
(b) while the notice remains in force—cause a
copy to be displayed in a prominent place at or near each workplace at which
the work to which the notice relates is usually performed.
(2) A person
who, without reasonable excuse, contravenes subsection (1) is guilty of an
offence punishable, on conviction, by—
(a)
if the offender is a natural person—a
fine not exceeding 10 penalty units; or
(b) if the offender is a body corporate—a fine
not exceeding 50 penalty units.
53. Compliance
The
responsible person to whom a provisional improvement notice is given shall,
subject to section 54—
(a) ensure that, to the extent to which the
notice relates to any matter over which the person has control, the notice is
complied with; and
(b) shall take such steps as are reasonably
practicable to inform the health and safety representative who issued the
notice of the action taken to comply with the notice.
Penalty:
(a) if the offender is a natural person—100
penalty units; or
(b) if the offender is a body corporate—500
penalty units.
54. Revocation
(1) Where a
health and safety representative believes on reasonable grounds that the
responsible person to whom the representative has given a provisional improvement
notice has complied with section 53 in relation to that notice, the
representative shall, by notice in writing given to the person, revoke the
provisional improvement notice.
(2) Where a
health and safety representative revokes a provisional improvement notice, the
representative shall give a copy of the notice of revocation to the Registrar
as soon as practicable.
55. Review
(1) The
responsible person in relation to whom a provisional improvement notice is in
force or any other person (other than the Registrar) to whom a copy of the
notice has been given under subsection 51 (8) may—
(a) not later than 7 days after the date of the
notice; and
(b) by notice in writing given to the Registrar;
request the Registrar to arrange for
an inspection to investigate the circumstances relating to the giving of the
notice.
(2) Upon such a
request being made, the operation of the notice to which it relates is
suspended until an inspector completes an investigation into the circumstances
relating to the giving of the notice.
(3) As soon as
practicable after a request has been made, the Registrar shall arrange for an
inspector to investigate the circumstances in which the notice was given.
(4) Where, as a
result of an investigation arranged under subsection (3), an inspector believes
on reasonable grounds that—
(a) the provisional improvement notice should
not have been given to a person;
(b) the person to whom the notice was given has
complied with section 53 in relation to the notice; or
(c) for any other reason, the notice should no
longer remain in force;
the inspector shall revoke the notice
by notice in writing given to that person.
(5) An inspector who
revokes a provisional improvement notice shall take all reasonably practicable
steps to give to each person referred to in paragraph 51 (8) (b), (c) or (d),
to whom a copy of the notice was given, a notice in writing of the revocation.
Division 3—Emergency procedures
56. Action
by health and safety representatives
(1) Where a
health and safety representative for a designated work group believes on
reasonable grounds that there is an immediate threat to the health or safety of
an employee included in the group unless the employee ceases to perform
particular work, the representative shall—
(a) inform the person (in this section called “a
supervisor”) supervising the employee in the performance of the work of the
threat to health or safety; or
(b) if no supervisor can be contacted
immediately—direct the employee to cease, in a safe manner, to perform the
work, and, as soon as practicable, inform a supervisor that the direction has
been given.
(2) Where a
supervisor is informed under paragraph (1) (a) of a threat to the health and
safety of an employee, the supervisor shall take such action as he or she
considers appropriate to remove that threat, and any such action may include
directing the employee to cease, in a safe manner, to perform the work.
(3) Where a
health and safety representative—
(a) is unable to agree with the supervisor whom
the representative has informed under paragraph (1) (a) of a threat to the
health or safety of a person performing work, and who has taken such action as
the supervisor considers appropriate to remove that threat, that the action
taken was sufficient to remove that threat; or
(b) is unable to agree with the supervisor whom
the representative has informed under paragraph (1) (b) that there is a need
for a direction under that paragraph;
the representative or supervisor may
request the Registrar to arrange for an inspector to investigate the work that
is the subject of the disagreement.
(4) As soon as
practicable after a request is made, the Registrar shall arrange for an
inspector to conduct an investigation of the work and the inspector shall
exercise such of his or her powers under this Act as the inspector considers
necessary in relation to the work.
57. Alternative
work
Nothing
in this Division shall be taken to affect an employer’s right to require an
employee to perform alternative work while work that is usually performed by
the employee is the subject of a direction under paragraph 56 (1) (b).
Division 4—Health and safety
committee
58. Functions
(1) A health
and safety committee in respect of an employer’s employees has the following
functions:
(a) to assist the employer to develop and
implement measures designed to protect the health and safety at work of the
employees and to keep the adequacy of those measures under review;
(b) to facilitate co-operation between the
employer and the employees in relation to occupational health and safety
matters;
(c) to assist the employer to disseminate among
the employees, in appropriate languages, information relating to health and
safety at work;
(d) such functions as are prescribed;
(e) such other functions as are agreed upon
between the employer and the committee.
(2) A health and safety
committee has power to do all things necessary or convenient to be done for, or
in connection with, the performance of its functions.
59. Duties
of employers
(1) Where there
is a health and safety committee in respect of the employees of an employer,
the employer shall—
(a) subject to subsections (2) and (3), make
available to the committee any information possessed by the employer relating
to risks to the health and safety of employees—
(i) at any workplace under the employer’s
control; or
(ii) arising from the conduct by the employer of
any undertaking, or from plant or substances used for the purposes of the
undertaking; and
(b) permit any member of the committee who is an
employee of the employer to take such time off work, without loss of
remuneration or other entitlements, as is necessary and reasonable for the
member to attend meetings of the committee or, with the approval of the
committee, to engage in the affairs of the committee.
Penalty:
(a) if the offender is a natural person—10
penalty units; or
(b) if the offender is a body corporate—50
penalty units.
(2) An employer
shall not make available to a health and safety committee information of a
confidential medical nature relating to a person who is or was an employee of
the employer, unless—
(a) the person has delivered to the employer a
written authority permitting 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.
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250
penalty units.
(3) An employer
is not required to make available to a health and safety committee any
information in respect of which the employer is entitled to claim, and does
claim, legal professional privilege.
(4) Where—
(a) a declaration under section 39 is in force
in respect of a construction site; and
(b) a worker to whom the declaration relates is
a member of a health and safety committee established in respect of employees
on the site;
the sub-contractor who employs the
worker shall permit the worker to take such time off work, without loss of
remuneration or other entitlements, as is necessary and reasonable for the
worker to attend meetings of the committee or, with the approval of the
committee, to engage in the affairs of the committee.
Penalty:
(a) if the offender is a natural person—10
penalty units; or
(b) if the offender is a body corporate—50
penalty units.
60. Liability
An
action or other proceeding, civil or criminal, does not lie against a member of
a health and safety committee for or in relation to an act done, or omission
made, in good faith by the member in connection with the member’s functions
under this Act or the regulations.
Part V—Inspectors
Division 1—Inspections
61. Things
connected with offences
(1) For the
purposes of this Part, a thing is connected with a particular offence if—
(a) it is a thing with respect to which the
offence has been committed;
(b) it will afford evidence of the commission of
the offence; or
(c) it was used, or is or was intended to be
used, for the purpose of committing the offence.
(2) A reference
in this Part, to an offence shall be read as including a reference to an
offence that there are reasonable grounds for believing has been or will be
committed.
62. Inspections
etc.
(1) For the
purpose of ascertaining whether the provisions of this Act or the regulations
are being complied with, an inspector may, without the authority of a warrant—
(a) enter premises other than residential
premises at any reasonable time; or
(b) enter any premises at any time with the
consent of the occupier;
and, subject to subsection (2),
exercise any power referred to in subsection (3) if the inspector believes on
reasonable grounds that the premises are used, or are intended to be used, as a
workplace.
(2) An inspector
who enters premises under subsection (1) is not entitled to remain on the
premises if, on request by the occupier, the inspector does not show his or her
identity card to the occupier.
(3) An
inspector who enters premises under subsection (1) may—
(a) inspect, examine, take measurements of, or
conduct tests concerning, the premises or any system of work, plant, substance
or thing at the premises;
(b) take into the premises such equipment and
materials as the inspector considers necessary;
(c) require any person on the premises—
(i) to give the inspector such information; or
(ii) to produce to the inspector any document
containing such information;
relating to the premises or any
system of work, plant, substance or thing at the premises as the inspector
requires;
(d) inspect, make copies of, or take extracts
from, a document referred to in subparagraph (c) (ii);
(e) take such photographs, or make such sketches
or recordings, as the inspector considers necessary;
(f) to the extent that it is necessary to
inspect or examine, or to take measurements or conduct tests in relation to,
any plant, substance or thing at the premises—
(i) seize the plant, substance or thing and
remove it from the premises; or
(ii) take (without paying for it) a sample of
the substance or thing and remove the sample from the premises;
(g) seize any plant, substance or thing that the
inspector believes on reasonable grounds is connected with an offence against
this Act or the regulations and remove it from the premises; or
(h) require the occupier to give the inspector
such assistance as is necessary and reasonable to enable the inspector to
exercise his or her powers under this Act or the regulations.
63. Consent
to entry
An
inspector who requests the occupier of premises to consent to the inspector
entering the premises under section 62 shall inform the occupier that he or she
may refuse to give that consent.
64. Notice
of removal
(1) Where,
under section 62, an inspector seizes any plant, substance or thing, or takes a
sample of any substance or thing, the inspector shall take all reasonably
practicable steps to notify in writing—
(a) the employer for whom work is performed
using the plant, substance or thing;
(b) each person, other than that employer, who
has a prescribed interest in the plant, substance or thing; and
(c) if there is a health and safety
representative for a designated workgroup which includes an employee who uses
the plant, substance or thing in performing work at the workplace—that
representative;
of the seizure and the reasons for it.
(2) Where an
inspector removes any plant, substance or thing from premises for the purpose
of inspecting, examining, taking measurements of, or conducting tests
concerning the plant, substance or thing, the inspector shall—
(a) ensure that the inspection, examination,
measuring or testing is conducted as soon as is reasonably practicable; and
(b) subject to section 65, return the plant,
substance or thing to the premises as soon as is reasonably practicable.
(3) As soon as
practicable after the completion of any such inspection, examination,
measurement or testing, the inspector shall give, to each person whom the
inspector is required by subsection (1) to notify of the removal, a written
statement setting out the results of the inspection, examination, measurement
or testing.
65. Return
of certain seized articles
(1) Where an
inspector—
(a) having seized any plant, substance or thing
under paragraph 62 (3) (f), believes on reasonable grounds that it is connected
with an offence against this Act or the regulations; or
(b) under paragraph 62 (3) (g), seizes any
plant, substance or thing that the inspector believes on reasonable grounds is
connected with an offence against this Act or the regulations;
the inspector may retain the plant,
substance or thing for the purpose of adducing evidence in a prosecution for
the offence.
(2) If a
prosecution for such an offence is not instituted within 60 days after the date
of the seizure, the inspector shall take all reasonably practicable steps to
return the plant, substance or thing to the person whom the inspector
reasonably believes is entitled to its possession.
66. Search
warrants
(1) Where an inspector
suspects on reasonable grounds that there is, or that, within the next
following 72 hours, there may be, in or on any premises, a thing of a
particular kind connected with a particular offence against this Act or the
regulations, the inspector may—
(a) lay before the magistrate an information on
oath setting out those grounds; and
(b) apply for the issue of a warrant to search
the premises for things of that kind.
(2) Where an
application is made under subsection (1) for a warrant to search premises, a magistrate
may, subject to subsection (3), issue a warrant authorising an inspector named
in the warrant, with such assistance and by such force as is necessary and
reasonable—
(a) to enter the premises;
(b) to search the premises for things of the
kind specified in the warrant; and
(c) to seize any thing found in the course of
the search that the inspector believes on reasonable grounds to be a thing of
that kind connected with the relevant offence.
(3) A magistrate
shall not issue a warrant under subsection (2) unless—
(a) the informant or another person has given
the magistrate, either orally or by affidavit, any further information that the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought; and
(b) the magistrate is satisfied that there are
reasonable grounds for issuing the warrant.
(4) A warrant
shall—
(a) state the purpose for which it is issued;
(b) specify the nature of the relevant offence;
(c) specify particular hours during which the
entry is authorised, or state that the entry is authorised at any time of the
day or night;
(d) include a description of the kinds of things
in relation to which the powers under the warrant may be exercised; and
(e) specify the date, being a date not later
than 1 month after the date of issue of the warrant, on which the warrant
ceases to have effect.
67. Obstructing
inspectors
A
person shall not, without reasonable excuse—
(a) obstruct or hinder an inspector in the
exercise of his or her powers under this Act or the regulations; or
(b) contravene a requirement made by an
inspector under section 62.
Penalty:
(a) if the offender is a natural person—100
penalty units or imprisonment for 12 months, or both; or
(b) if the offender is a body corporate—500
penalty units.
68. False
information
A
person shall not, in purported compliance with a requirement made under section
62 by an inspector—
(a) give the inspector information that is, to
the person’s knowledge, false or misleading in a material particular; or
(b) give the inspector a document containing
information that is, to the person’s knowledge, false or misleading in a
material particular.
Penalty:
(a) if the offender is a natural person—100
penalty units or imprisonment for 12 months, or both; or
(b) if the offender is a body corporate—500
penalty units.
Division 2—Administration
69. Occupational
Health and Safety Registrar
(1) There shall
be an Occupational Health and Safety Registrar.
(2) In addition
to performing the functions of the Registrar under this Act and the
regulations, the Registrar shall perform such other functions relating to
occupational health and safety as the Minister directs.
(3) The Chief
Executive shall create and maintain an office in the Government Service the
duties of which include performing the functions of the Occupational Health and
Safety Registrar.
(4) The
Registrar shall be the public servant for the time being performing the duties
of the Government Service office referred to in subsection (3).
70. Inspectors
(1) There shall
be 1 or more inspectors for the purposes of this Act.
(2) The Chief
Executive shall create and maintain 1 or more offices in the Government Service
the duties of which include performing the functions of an inspector.
(3) The
following persons shall be inspectors:
(a) any public servant for the time being
performing the duties of a Government Service office referred to in subsection
(2);
(b) the Registrar, including a delegate of the
Registrar with any delegated powers of an inspector.
71. Identity
cards
(1) The Chief
Executive shall issue to the Registrar an identity card that specifies the
Registrar’s name and office, and on which appears a recent photograph of the
Registrar.
(2) The Chief Executive
shall issue to a delegate of the Registrar with any delegated powers of an
inspector an identity card that specifies the delegate’s name and delegated
office, and on which appears a recent photograph of the delegate.
(3) The Chief
Executive shall issue to an inspector an identity card that specifies the
inspector’s name and office, and on which appears a recent photograph of the
inspector.
(4) Upon
ceasing—
(a) to occupy, or to act in, the office of the
Registrar;
(b) to be a delegate of the Registrar with any
delegated powers of an inspector; or
(c) to occupy, or to act in, an office of
inspector;
a person shall not, without reasonable
excuse, fail to return his or her identity card to the Chief Executive.
Penalty: 1 penalty unit.
74. Liability
An
action or other proceeding, civil or criminal, does not lie against the
Registrar or an inspector for or in relation to any act done, or omission made,
in good faith in connection with his or her powers under this Act or the
regulations.
75. Delegation
by Registrar
The
Registrar may delegate to any person any of the Registrar’s powers under this
Act or the regulations, other than the Registrar’s powers under section 83.
Part VI—Improvement and Prohibition
Notices Etc.
76. Improvement
notices
(1) Where an
inspector believes on reasonable grounds that a person (in this section called
“the responsible person”)—
(a) is contravening a provision of this Act or
the regulations; or
(b) is likely to
contravene a provision of this Act or the regulations;
the inspector may, by notice in
writing given to the person, require the person to rectify the matters or
activities occasioning the contravention or likely contravention.
(2) An
improvement notice shall—
(a) specify the contravention that the inspector
believes is occurring or is likely to occur, and set out the reasons for that
belief; and
(b) specify a period, being a period that is, in
the inspector’s opinion reasonable, within which the responsible person is to
rectify the matters or activities to which the notice relates.
(3) An
improvement notice may specify action that the responsible person is to take
during the period specified in the notice.
(4) Where an
improvement notice is given to an employer, the employer shall—
(a) give a copy of the notice to—
(i) the health and safety representative for
each designated work group for the employer’s employees performing work that is
affected by the notice; and
(ii) the Chairperson of any health and safety
committee in existence in respect of those employees; and
(b) cause a copy of the notice to be displayed
at or near each workplace at which that work is being performed.
(5) A person
who, without reasonable excuse, contravenes subsection (4) is guilty of an
offence punishable, on conviction, by—
(a) if the offender is a natural person—a fine
not exceeding 10 penalty units; or
(b) if the offender is a body corporate—a fine
not exceeding 50 penalty units.
(6) Where an
inspector issues an improvement notice, the inspector shall take all reasonably
practicable steps to give a copy of the notice to—
(a) where the notice is given to an employee in
connection with work performed by the employee for an employer—the employer;
(b) where the notice relates to any workplace,
plant, substance or thing in which a person (other than the person to whom the
notice is given or an employer referred to in paragraph (a)) has a prescribed
interest—to each such person; and
(c) where the notice is issued to a person (not
being an employer) who has a prescribed interest in any workplace, plant,
substance or thing by reason of which the inspector believes a contravention of
this Act or the regulations is occurring or is likely to occur—the employer of
the employees who work in that workplace or who use that plant, substance or
thing.
(7) Before the
end of the period specified in an improvement notice, the inspector who issued
the notice may, by notice in writing given to the responsible person, extend
the period within which the responsible person is to take action in accordance
with the notice.
(8) Where an
inspector believes on reasonable grounds that adequate measures have been taken
to rectify the matters or activities in respect of which an improvement notice
has been given to a person, the inspector shall, by notice in writing given to
the person, revoke the improvement notice.
77. Prohibition
notices
(1) Where an
inspector believes on reasonable grounds that an activity carried on at a
workplace involves a risk of imminent and serious injury to a person at or near
the workplace, the inspector may, by notice in writing given to the person who
is, or whom the inspector reasonably believes to be, in charge of that
activity, direct that person to ensure that—
(a) the activity is not carried on; or
(b) the activity is not carried on except in
accordance with directions specified in the notice.
(2) Without
limiting the generality of paragraph (1) (b), directions referred to in that
paragraph may include directions relating to—
(a) the part of the workplace at which the
prohibited activity is not to be carried on;
(b) any plant or substance that is not to be
used in connection with the prohibited activity; or
(c) any procedure that is not to be followed in connection
with the prohibited activity.
(3) Where a
prohibition notice is given to an employer, the employer shall—
(a) give a copy of the notice to—
(i) the health and safety representative for
each designated work group for the employer’s employees performing work that is
affected by the notice; and
(ii) the Chairperson of any health and safety
committee in existence in respect of those employees; and
(b) cause a copy of the notice to be displayed
in a prominent place at or near each workplace at which that work is being
performed.
(4) A person
who, without reasonable excuse, contravenes subsection (3) is guilty of an
offence punishable, on conviction, by—
(a) if the offender is a natural person—a fine
not exceeding 10 penalty units; or
(b) if the offender is a body corporate—a fine
not exceeding 50 penalty units.
(5) Where an
inspector issues a prohibition notice, the inspector shall take all reasonably
practicable steps to give a copy of the notice to—
(a) where the notice is given to an employee in
connection with work performed by the employee for an employer—that employer;
(b) where the notice relates to any workplace,
plant, substance or thing in which a person (other than the person to whom the
notice is given or an employer referred to in paragraph (a)) has a prescribed
interest—each such person; and
(c) where the notice is issued to a person (not
being an employer) who has a prescribed interest in any workplace, plant,
substance or thing by reason of which the inspector believes a contravention of
this Act or the regulations is occurring or is likely to occur—the employer of
the employees who work in that workplace or who use that plant, substance or
thing.
(6) Where an
inspector believes on reasonable grounds that adequate measures have been taken
to remove the risk in respect of which a prohibition notice has been given to a
person, the inspector shall, by notice in writing given to the person, revoke
the prohibition notice.
78. Directions
not to disturb workplace etc.
(1) An inspector
may direct a person who is for the time being in charge of operations at a
workplace to ensure that—
(a) the workplace or a specified part of the
workplace; or
(b) specified plant or a specified substance or
thing;
is not disturbed for a specified period.
(2) An inspector
shall not give a direction unless the inspector believes on reasonable grounds
that it is necessary to do so in order to—
(a) remove an immediate threat to the health or
safety of any person; or
(b) allow the inspection, examination or taking
of measurements of, or the conduct of tests concerning, a workplace or any
plant, substance or thing at a workplace.
(3) The period
specified in a direction shall be the period that the inspector believes on
reasonable grounds is necessary in order to allow the removal of the threat, or
the inspection, examination, measuring or testing, as the case may be, to take
place.
(4) Where an
inspector gives a direction to a person, that person shall cause the direction
to be displayed in a prominent place at the workplace—
(a) that is, or a specified part of which is,
under the notice, to be left undisturbed; or
(b) at which the plant, substance or thing that
is, under the notice, to be left undisturbed, is located.
(5) A person
who, without reasonable excuse, contravenes subsection (4) is guilty of an
offence punishable, on conviction, by—
(a) if the offender is a natural person—a fine
not exceeding 10 penalty units; or
(b) if the offender is a body corporate—a fine
not exceeding 50 penalty units.
(6) As soon as
practicable after giving a direction, the inspector shall take all reasonable
steps to notify—
(a) the employer of any employee performing
work—
(i) at the workplace or the part of the
workplace; or
(ii) that involves the plant, substance or
thing;
to which the direction relates;
(b) each person, other than an employer, who has
a prescribed interest in the workplace, plant, substance or thing to which the
direction relates; and
(c) if there is a health and safety
representative for a designated workgroup in which there is included an
employee performing work—
(i) at the workplace or the part of a
workplace; or
(ii) involving the plant, substance or thing;
to which the direction
relates—that representative;
of the giving of the direction.
(7) A direction
under subsection (1) shall be given in writing and shall set out the reasons
for the giving of the direction.
(8) Where an
inspector believes on reasonable grounds that a direction under subsection (1)
is no longer necessary, the inspector shall, by notice in writing given to the
person to whom the direction was given, revoke the direction.
79. Compliance
A
person to whom—
(a) an improvement notice;
(b) a prohibition notice; or
(c) a direction under subsection 78 (1);
has been given shall, to the extent
that the notice or direction relates to a matter over which the person has
control, ensure that the notice or direction is complied with.
Penalty:
(a) if the offender is a natural person—100
penalty units; or
(b) if the offender is a body corporate—500
penalty units.
Part VII—Review of Decisions
Division 1—Review Authority
80. Establishment
There
is established by this section a review authority called the Occupational
Health and Safety Review Authority.
80A. Constitution
(1) The Review
Authority shall be constituted by a member of the Commission appointed by the
President.
(2) Where—
(a) the person constituting the Authority for a
proceeding ceases to be available to complete the proceeding; and
(b) in accordance with subsection (1) the
Authority is reconstituted by another member of the Commission;
the reconstituted Authority shall
complete the proceeding and, for that purpose, may have regard to any record of
the Authority as previously constituted, including any transcript of evidence
taken in the proceeding.
80B. Disclosure
of interest
(1) Where the person
constituting the Review Authority has any interest, pecuniary or otherwise,
that could conflict with the proper performance of the person’s functions in
relation to a proceeding—
(a) the person shall disclose the interest to
the parties to the proceeding; and
(b) unless all the parties to the proceeding
consent, the person shall not take part or any further part in the proceeding.
(2) Where the
President directs the member who constitutes the Authority not to take part or
any further part in a proceeding before the Authority, the member shall not
act, or act further, in the proceeding.
Division 2—Reconsideration and review
of decisions
80C. Interpretation
In
this Division—
“inspector” does not include the
Registrar or a delegate of the Registrar.
81. Reviewable
decisions
(1) For the
purposes of this Part, each of the following decisions of an inspector is a
reviewable decision:
(a) revoking, or refusing to revoke, a
provisional improvement notice under subsection 55 (4);
(b) deciding to seize any plant, substance or
thing under paragraph 62 (3) (f) or (g);
(c) giving an improvement notice under
subsection 76 (1);
(d) revoking, or refusing to revoke, an improvement
notice under subsection 76 (8);
(e) giving a prohibition notice under subsection
77 (1);
(f) revoking, or refusing to revoke, a
prohibition notice under subsection 77 (6);
(g) giving a direction under subsection 78 (1);
(h) revoking, or refusing to revoke, a direction
under subsection 78 (8).
(2) For the
purposes of this Part, each of the following decisions of the Registrar is a
reviewable decision:
(a) establishing a designated work group under
subsection 38 (1) or (2);
(b) varying a designated work group under
subsection 38 (3);
(c) disqualifying a health and safety
representative under subsection 48 (1);
(d) revoking, or refusing to revoke, a
provisional improvement notice under subsection 55 (4);
(e) deciding to seize any plant, substance or
thing under paragraph 62 (3) (f) or (g);
(f) giving an improvement notice under
subsection 76 (1);
(g) revoking, or refusing to revoke, an
improvement notice under subsection 76 (8);
(h) giving a prohibition notice under subsection
77 (1);
(i) revoking, or refusing to revoke, a
prohibition notice under subsection 77 (6);
(j) giving a direction under subsection 78 (1);
(k) revoking, or refusing to revoke, a direction
under subsection 78 (8);
(l) a decision by the Registrar on a
reconsideration under section 83 of a reviewable decision made by an inspector.
82. Eligible
persons
(1) An eligible
person, in relation to a reviewable decision, is a person who is entitled to
request a review of that decision.
(2) The persons
who may request a review of a reviewable decision made by an inspector shall be
ascertained in accordance with Part 1 of the Schedule.
(3) The person
or persons who may request a review of a reviewable decision made by the
Registrar shall be ascertained in accordance with Part 2 of the Schedule.
83. Reconsideration
of inspectors’ decisions
(1) The
Registrar may reconsider a reviewable decision made by an inspector.
(2) The
Registrar shall reconsider a reviewable decision made by an inspector if
requested in writing to do so by an eligible person in relation to that
decision.
(3) Subject to
subsection (4), a request for the reconsideration of a reviewable decision does
not affect the operation of the decision or prevent the taking of action to
implement the decision.
(4) Where a
request is made to reconsider a decision to give an improvement notice, the
operation of the decision is suspended pending determination of the
reconsideration.
(5) On a
reconsideration of a reviewable decision made by an inspector, the Registrar
shall—
(a) affirm or vary the decision; or
(b) revoke the decision and, if the Registrar
thinks appropriate, make a decision in substitution for the decision revoked.
(6) A reviewable
decision made by an inspector, as varied by the Registrar on a reconsideration,
or a decision of the Registrar made on a reconsideration in substitution for a
reviewable decision made by an inspector, shall for all purposes (other than
the purpose of requesting a review under section 84) be taken to be a decision
of that inspector and, upon the coming into operation of the decision of the
Registrar, unless the Registrar otherwise orders, shall be taken to have had
effect on and from the date on which the reviewable decision would, but for
this section, have had effect.
84. Review
of decisions
(1) A request to
the Review Authority for the review of a reviewable decision shall be made in
writing and shall be accompanied by the determined fee.
(2) Subject to
subsection (3), a request for a review of a reviewable decision does not affect
the operation of the decision or prevent the taking of action to implement the
decision, except to the extent that the Authority makes an order to the
contrary.
(3) Where a
request is made for a review of a decision to give an improvement notice, the
operation of a decision is suspended pending determination of the review,
except to the extent that the Authority makes an order to the contrary.
(4) Where an
eligible person in relation to a reviewable decision requests the Authority to
review the decision, the Authority shall, subject to this Part, review the
decision and shall—
(a) affirm or vary the decision; or
(b) revoke the decision and, if considered
appropriate, make a decision in substitution for the decision revoked.
(5) A
reviewable decision of a person, as varied by the Authority, or a decision of
the Authority made in substitution for a reviewable decision of a person, shall
for all purposes (other than for the purposes of this section) be taken to be a
decision of that person and, upon the coming into operation of the decision of
the Authority, unless that Authority orders otherwise, shall be taken to have
had effect on and from the date on which the reviewable decision would, but for
this section, have had effect.
(6) The
Authority shall give written notice of its decision to each party to the
proceeding, setting out the reasons for its decision.
84A. Parties
to proceedings before Review Authority
(1) For the
purposes of this Part, the parties to a proceeding before the Review Authority
are—
(a) any eligible person who, in writing,
requests the Authority to review the reviewable decision;
(b) the person who made the decision; and
(c) any other person joined as a party to the
proceeding by the Authority in accordance with subsection (2).
(2) The Review
Authority may—
(a) on application in writing by a person—
(i) who is an eligible person in relation to a
reviewable decision; or
(ii) whose interests are affected by a
reviewable decision; and
(b) by notice in writing given to the applicant;
join the applicant as a party to a
proceeding for the review of the decision.
84B. Representation
before Review Authority
A
party to a proceeding before the Review Authority may appear in person or may
be represented by some other person.
84C. Notice
of proceeding
Before
commencing a proceeding, the Review Authority shall give each party a notice
specifying—
(a) the time and place for the proceeding; and
(b) the matters to which the proceeding relates.
84D. Procedure
of Review Authority
(1) In proceedings before
the Review Authority—
(a) the Authority is not bound by the rules of
evidence but may inform itself on any matter in such manner as it thinks
appropriate;
(b) the procedure of the Authority is, subject
to this Part, within the discretion of the Authority;
(c) the proceedings shall be conducted with as
little formality and technicality, and with as much expedition as the
requirements of this Act and the substantial merits of the case permit; and
(d) the Authority may give directions relating
to procedure, including directions that it considers will enable costs to be
reduced and will help to achieve a prompt hearing of the matters in issue
between the parties to the proceeding.
(2) Without
limiting the generality of subsection (1), the Review Authority shall ensure
that each party to a proceeding is given a reasonable opportunity to—
(a) call or give evidence;
(b) examine or cross-examine witnesses;
(c) inspect any documents to which the Authority
proposes to have regard in reaching a decision in the proceeding; and
(d) make submissions.
84E. Hearings
to be in public except in special circumstances
(1) Subject to
this section, a proceeding before the Review Authority shall be in public.
(2) Where the
Review Authority believes on reasonable grounds that it is desirable to do so
because of the confidential nature of any evidence or matter or for any other
reason, the Authority may—
(a) direct that a proceeding or part of a
proceeding shall take place in private and give directions as to the persons
who may be present;
(b) give directions prohibiting or restricting
the publication of evidence given before the Authority, whether in public or in
private, or of matters contained in documents lodged with the Authority or
received in evidence by the Authority; and
(c) give directions prohibiting or restricting
the disclosure to some or all of the parties to a proceeding of evidence given
before the Authority, or of the contents of a document lodged with the
Authority or received in evidence by the Authority, in relation to the
proceeding.
(3) A person
shall not, without reasonable excuse, contravene a direction given by the
Authority under subparagraph (2) (b) or (c).
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250
penalty units.
84F. Reference
of questions of law to Supreme Court
(1) The Review
Authority may, of its own motion or at the request of a party, refer a question
of law arising in a proceeding before it to the Supreme Court for decision.
(2) The Supreme
Court has jurisdiction to hear and determine a question of law referred to it
under this section.
(3) Where a
question of law arising in a proceeding has been referred to the Supreme Court
under this section, the Authority shall not, in that proceeding—
(a) give a decision to which the question is
relevant while the reference is pending; or
(b) proceed in a manner, or make a decision,
that is inconsistent with the determination of the Supreme Court on the
question.
84G. Appeals
to the Supreme Court
(1) A party to
a proceeding before the Review Authority may appeal to the Supreme Court on a question
of law from any decision of the Review Authority in that proceeding.
(2) An appeal
by a person under subsection (1) shall be instituted—
(a) not later than the 28th day after the day on
which a document setting out the terms of the decision of the Review Authority
is given to the person or within such further time as the Supreme Court
(whether before or after the end of that day) allows; and
(b) in such manner as is prescribed by Rules of
Court made under the Supreme Court Act 1933.
(3) The Supreme
Court has jurisdiction to hear and determine appeals instituted in that Court
in accordance with subsection (1).
(4) The Supreme Court
shall hear and determine the appeal and may make—
(a) an order affirming or setting aside the
decision of the Authority;
(b) an order remitting the case to be heard and
decided again, either with or without the hearing of further evidence by the
Authority in accordance with the directions of the Court; or
(c) such other order as the Court thinks
appropriate.
Division 3—Miscellaneous
84H. Powers
of Review Authority
(1) For the
purposes of a proceeding, the Review Authority may—
(a) take evidence on oath or affirmation and for
that purpose—
(i) may require a person attending before the Authority
to take an oath or make an affirmation; and
(ii) may administer an oath or affirmation to
such a person;
(b) proceed in the absence of a party who has
been given notice of the proceeding under section 84C; and
(c) adjourn the proceeding from time to time.
(2) The
Authority may, in writing, direct a person to attend a proceeding at the time
and place specified in the notice and to give evidence and produce any document
in the person’s custody or under the person’s control that the person is required
by the notice to produce.
(3) Where a
person is directed to produce a document and the document is not—
(a) in writing;
(b) written in the English language; or
(c) decipherable on sight;
the person shall produce, in addition
to the document if it is in writing, or instead of the document if it is not in
writing, a statement written in the English language and decipherable on sight,
containing the whole of the information in the document.
84J. Inspection
and retention of documents
(1) The Review
Authority may inspect any document produced before it and may retain the
document for such period as is necessary for the purposes of this Part and may
make copies of, or take extracts from, the document.
(2) Where a
document is retained by the Authority under subsection (1)—
(a) a person otherwise entitled to possession of
the document is, on request, entitled to be supplied with a copy certified by
the Authority to be a true copy of the document; and
(b) a person who would be entitled to inspect
the document, if it were not in the possession of the Authority, or a person
authorised by such a person, may at any reasonable time inspect, make copies
of, or take extracts from, the document.
84K. Failure
to attend etc.
(1) A person
directed under subsection 84H (2) to attend proceedings before the Review
Authority shall not, without reasonable excuse, fail—
(a) to comply with the direction;
(b) to attend from day-to-day unless released or
excused from further attendance by the Authority; or
(c) produce a document in accordance with the
direction.
(2) A person
appearing as a witness before the Authority, shall not, without reasonable
excuse, fail to take an oath or make an affirmation when so required under
subsection 84H (1).
Penalty: 50 penalty units or imprisonment for 6 months, or both.
84M. Contempt
A
person shall not, without reasonable excuse—
(a) obstruct or hinder the Review Authority in
the performance of its functions; or
(b) disrupt proceedings of the Authority.
Penalty: 50 penalty units or imprisonment for 6 months, or both.
84N. False
information
A
person shall not—
(a) give the Review Authority information that
is, to the person’s knowledge, false or misleading in a material particular; or
(b) give the Authority a document containing
information that is, to the person’s knowledge, false or misleading in a
material particular.
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250
penalty units.
84P. Operation
and implementation of a decision that is subject to appeal
(1) Subject to
this section, the institution of an appeal to the Supreme Court from a decision
of the Review Authority does not affect the operation of the decision or prevent
the taking of action to implement the decision.
(2) Where an
appeal is instituted in the Supreme Court from a decision of the Authority, the
Court or a Judge of the Court sitting in chambers may make such order staying
or otherwise affecting the operation or implementation of either or both of the
following:
(a) a decision of the Authority or a part of
that decision;
(b) the decision to which the proceeding before
the Authority related or a part of that decision;
as the Court or Judge considers appropriate
for the purpose of securing the effectiveness of the hearing and determination
of the appeal.
(3) Where an
order is in force under subsection (2) (including an order that has been varied
under this subsection), the Supreme Court or a Judge of the Court sitting in
chambers may make an order varying or revoking the first-mentioned order.
(4) An order in
force under subsection (2) (including an order that has been varied under
subsection (3))—
(a) is subject to such conditions as are
specified in the order; and
(b) has effect until—
(i) if a period for the operation of the order
is specified in the order—the end of that period or, if a decision is given on
the appeal before the end of that period, the giving of the decision; or
(ii) if no period is so specified—the giving of
a decision on the appeal.
84Q. Protection
of Review Authority etc.
(1) The Review
Authority has, in the performance of its functions, the same protection and
immunity as a Judge of the Supreme Court.
(2) A legal
practitioner or other person appearing before the Authority on behalf of a
party, or if the party appears personally, the party, has the same protection
and immunity as a barrister has in appearing for a party in proceedings in the
Supreme Court.
(3) Subject to
this Act, a person directed to attend or appearing before the Authority as a
witness has the same protection, and is subject to the same liabilities, as a
witness in proceedings in the Supreme Court.
Part VIII—Miscellaneous
85. Notice
of events
(1) Where an employer
is aware of the occurrence of any of the following events at or near the
workplace:
(a) the death of a person;
(b) an injury to a person other than an employee
of the employer;
(c) an injury to an employee as a result of which
the employee is incapacitated for work for the prescribed period;
(d) a dangerous occurrence;
and the event is attributable to the
conduct of the employer’s undertaking at the workplace, the employer shall, in
accordance with the regulations, give notice of the event to the Registrar.
(2) A person
who, without reasonable excuse, contravenes subsection (1) is guilty of an
offence, punishable on conviction, by—
(a) if the offender is a natural person—a fine
not exceeding 100 penalty units or imprisonment for a period not exceeding 12
months, or both; or
(b) if the offender is a body corporate—a fine
not exceeding 500 penalty units.
(3) Without
limiting the generality of regulations that may be made for the purposes of
subsection (1) (other than paragraph (1) (c)), such regulations may include
provisions relating to—
(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 such a 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 such a report.
86. Records
of accidents etc.
(1) An employer
shall maintain, in accordance with the regulations, a record of each accident
or dangerous occurrence in respect of which the employer is required by section
85 to notify the Registrar.
(2) A person
who, without reasonable excuse, contravenes subsection (1) is guilty of an
offence punishable, on conviction, by—
(a) if the offender is a natural person—a fine
not exceeding 10 penalty units; or
(b) if the offender is a body corporate—a fine
not exceeding 50 penalty units.
(3) Without
limiting the generality of regulations that may be made for the purposes of
subsection (1), such regulations may include provisions relating to—
(a) the nature and contents of a record required
to be maintained under this section; and
(b) the retention of such a record.
87. Codes
of practice
(1) The
Minister may, by instrument in writing, approve—
(a) a code of practice; or
(b) a variation of an approved code of practice;
for the purpose of providing practical
guidance to employers, self-employed persons and employees.
(2) Before
approving a proposed code of practice or a proposed variation of a code of practice,
the Minister shall—
(a) refer the proposed code or variation to the
Council for its consideration; and
(b) take into account any relevant
recommendation made by the Council.
(3) An approved
code of practice may consist of any code, standard, rule, specification or
provision relating to occupational health and safety and may apply, adopt or
incorporate provisions of any document as in force or existing—
(a) when the code, or a variation of the code,
is approved; or
(b) from time to time.
(4) An instrument under
subsection (1) is a disallowable instrument for the purposes of section 10 of
the Subordinate Laws Act 1989.
(5) The
Registrar shall publish in a newspaper circulating in the Territory a notice of
each approval given under subsection (1)—
(a) specifying the date on which the approval
takes effect;
(b) specifying the place at which copies of the
code to which the approval relates may be purchased; and
(c) containing a statement to the effect that an
up-to-date copy of each approved code, and any document the provisions of which
are applied, adopted or incorporated in an approved code, may be inspected by
members of the public at the office of the Registrar.
(6) The
Registrar shall, at all times, ensure that an up-to-date copy of each approved
code of practice, and of any document the provisions of which are applied,
adopted or incorporated in an approved code of practice, are made available for
inspection by members of the public at the office of the Registrar.
88. Protected
information
(1) Where a
person performing any function under or by virtue of this Act or the
regulations obtains protected information concerning the affairs of another
person, the first-mentioned person shall not disclose that information to any
other person, unless the disclosure—
(a) is necessary for the performance of a duty
by the first-mentioned person under or in connection with this Act or the
regulations;
(b) is made with the consent in writing of the
person to whom the information relates; or
(c) is required by any court, tribunal,
authority or person having lawful authority to require the production of
documents or the answering of questions.
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both;
(b) if the offender is a body corporate—250
penalty units.
(2) In this
section, “protected information” means—
(a) information relating to the personal affairs
of a person; or
(b) information the disclosure of which would,
or could reasonably be expected—
(i) to disclose a trade secret; or
(ii) to adversely affect a person in respect of
the lawful business affairs of that person.
(3) A reference
in this section to the disclosure of protected information shall be read as
including a reference to the production of a document containing protected
information.
89. Interfering
with safety equipment
(1) A person shall not,
without reasonable excuse, interfere with equipment at or near a workplace,
being equipment that the person knows, or ought reasonably to know, is provided
in the interests of the health or safety of persons at work.
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250
penalty units.
(2) In subsection
(1), “interfere” means do any act or thing that is calculated or likely to
inhibit or prevent the effective operation of the equipment.
90. Interfering
with workplace notices
A
person shall not, without reasonable excuse—
(a) tamper with—
(i) a provisional improvement notice displayed
in accordance with paragraph 52 (b);
(ii) an improvement notice displayed in
accordance with paragraph 76 (4) (b);
(iii) a prohibition notice displayed in
accordance with paragraph 77 (3) (b); or
(iv) a direction under subsection 78 (1)
displayed in accordance with subsection 78 (4); or
(b) remove such a notice or direction from being
so displayed, before it ceases to be in force.
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250
penalty units.
91. Employer
not to levy employees
An
employer shall not levy on any of the employer’s employees any charge in
respect of anything done or provided, in accordance with this Act or the
regulations, in order to ensure the health, safety or welfare of the employees
at work.
Penalty:
(a) if the offender is a natural person—50
penalty units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250
penalty units.
92. Employer
not to discriminate
An
employer shall not—
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) prejudicially alter the employee’s position
(whether by the deduction or withholding of remuneration or by any other
means); or
(d) threaten to take action, in relation to the
employee, that is referred to in paragraph (a), (b) or (c);
because the employee—
(e) has complained or proposes to complain about
a matter concerning the health, safety or welfare of employees at work;
(f) has assisted or proposes to assist, by the
giving of information or otherwise, the conduct of an investigation or
inspection by an inspector; or
(g) has ceased, or proposes to cease, to perform
work in accordance with—
(i) a direction under paragraph 56 (1) (b);
(ii) a provisional improvement notice, an
improvement notice or a prohibition notice; or
(iii) a direction under subsection 78 (1).
Penalty:
(a) if the offender is a natural person—50 penalty
units or imprisonment for 6 months, or both; or
(b) if the offender is a body corporate—250
penalty units.
93. Conduct
of directors, servants and agents
(1) Where, in
proceedings for an offence against this Act or the regulations, 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, servant or agent of the body corporate within the scope of his or her
actual or apparent authority; and
(b) that the director, servant or agent had the
state of mind.
(2) Any conduct
engaged in on behalf of a body corporate by a director, servant or agent of the
body corporate within the scope of his or her actual or apparent authority
shall be taken, for the purposes of a prosecution for an offence against this
Act or the regulations, to have been engaged in also by the body corporate
unless the body corporate establishes that it took reasonable precautions and
exercised due diligence to avoid the conduct.
(3) Where, in
proceedings for an offence against this Act or the regulations, 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 a servant
or agent of the person within the scope of his or her actual or apparent
authority; and
(b) that the servant or agent had the state of
mind.
(4) Any conduct
engaged in on behalf of a person other than a body corporate by a servant or
agent of the person within the scope of his or her actual or apparent authority
shall be taken, for the purposes of a prosecution for an offence against this
Act or the regulations, to have been engaged in also by the first-mentioned
person unless that person establishes that he or she took reasonable
precautions and exercised due diligence to avoid the conduct.
(5) Where—
(a) a person other than a body corporate is
convicted of an offence; and
(b) the person would not have been convicted of
the offence if subsections (3) and (4) had not been made;
the person is not liable to be
punished by imprisonment for that offence.
(6) A reference
in subsection (1) or (3) to the state of mind of a person shall be read as
including a reference to—
(a) the knowledge, intention, opinion, belief or
purpose of the person; and
(b) the person’s reasons for the intention,
opinion, belief or purpose.
(7) A reference
in this section to engaging in conduct shall be read as including a reference
to failing or refusing to engage in conduct.
94. Contracting
out prohibited
A
term of any agreement or contract that purports to exclude, limit or modify the
operation of this Act or the regulations is void.
95. Civil
liability not affected
Nothing
in this Act or the regulations shall be taken—
(a) to confer a right of action in any civil
proceedings in respect of any contravention of any provision of this Act or the
regulations; or
(b) to confer a defence to an action in any
civil proceedings or affect a right of action in any civil proceedings.
96. Inconsistency
with associated laws
A
provision of an associated law has no effect to the extent that it is
inconsistent with this Act or the regulations, but such a provision shall be
taken to be so consistent to the extent that it is capable of operating
concurrently with this Act and the regulations.
96A. Fees
(1) The
Minister may, by notice in writing, determine fees for the purposes of this Act
or the Regulations.
(2) A determination
under subsection (1) is a disallowable instrument for the purposes of section
10 of the Subordinate Laws Act 1989.
97. Regulations
(1) The
Executive may make regulations, not inconsistent with this Act, prescribing
matters—
(a) required or permitted by this Act to be
prescribed; or
(b) necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) Without
limiting the generality of subsection (1), the regulations may make provision
in relation to any matter affecting, or likely to affect, the occupational
health and safety of employees, including provision—
(a) prohibiting or regulating the performance of
all work or specified work at a workplace or by employees at work;
(b) prohibiting or regulating—
(i) the manufacture or supply of plant for use;
or
(ii) the use of plant;
at a workplace or by employees
at work;
(c) prohibiting or regulating the carrying out
of all processes or a specified process at a workplace or by employees at work;
(d) prohibiting or regulating—
(i) the manufacture or supply of any substance
for use; or
(ii) the transport, storage or use of any
substance;
at a workplace or by employees
at work;
(e) specifying the form in which information
required to be made available to an employer under paragraph 32 (1) (c) or 33
(1) (c) is to be made available;
(f) prohibiting, except in accordance with
licences or certificates of competency granted under the regulations, the use
of specified plant or specified substances at a workplace or by employees at
work;
(g) providing for the issue, variation, renewal,
transfer, suspension and cancellation of such licences, the conditions to which
the licences may be subject and the fees payable for the issue, variation or
transfer of the licences;
(ga) providing for the issue, variation, renewal,
suspension and cancellation of certificates of competency, the conditions to
which those certificates may be subject and the fees payable for the issue or
variation of those certificates;
(h) regulating the maintenance and testing of
plant used at a workplace or by employees at work;
(i) regulating the labelling or marking of
substances used at a workplace or by employees at work;
(j) regulating the transport of specified plant
that is, or specified substances that are, for use at a workplace or by
employees at work;
(k) prohibiting the performance, at a workplace
or by employees at work, 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 the taking of specified action to
avoid accidents or dangerous occurrences;
(m) providing for, or prohibiting, the taking of
specified action in the event of accidents or dangerous occurrences;
(n) providing for the employment at workplaces
of persons to perform specified duties relating to the maintenance of
occupational health and safety at workplaces;
(o) regulating the provision and use, at a
workplace or by employees at work, of protective clothing and equipment, safety
equipment and rescue equipment;
(p) providing for the monitoring of the health
of employees and the conditions at workplaces;
(q) requiring the keeping by employers of
records of matters related to the occupational health and safety of employees;
(r) providing for the provision of first aid
equipment and facilities at workplaces;
(s) in relation to samples taken under
subparagraph 62 (3) (f) (ii), including provisions relating to—
(i) the analysis of samples; and
(ii) the issuing of certificates in respect of
the analysis of samples;
(t) in relation to health and safety committees,
including provision—
(i) relating to the establishment of such
committees;
(ii) relating to the constitution, and selection
of members, of such committees; and
(iii) relating to the performance of the
functions of such committees;
(u) in relation to the training of health and
safety representatives, deputy health and safety representatives or members of
health and safety committees, in the knowledge and skills relevant to
occupational health and safety, including provisions—
(i) relating to the approval of training
programs;
(ii) relating to the accreditation of persons who
conduct training programs;
(iii) requiring health and safety
representatives, deputy health and safety representatives or members of such
committees to undertake training programs; and
(iv) determining the liability for the fees and
expenses incurred in respect of the attendance by health and safety
representatives, deputy health and safety representatives or members of such
committees at training programs;
(v) in relation to the reconsideration or review
of reviewable decisions under Part VII, including provisions relating to the
manner in which, and the time within which, a request for reconsideration or
review may be made; and
(w) prescribing penalties for offences against
the regulations—
(i) if the offender is a natural person—not
exceeding 10 penalty units; or
(ii) if the offender is a body corporate—not
exceeding 50 penalty units.
(3) Before
making regulations in relation to a matter referred to in paragraph (2) (u),
the Executive shall—
(a) consult with the Council in relation to that
matter; and
(b) have regard to the recommendations (if any)
made to the Executive by the Council in relation to that matter.
Schedule Subsections 82 (2) and (3)
Eligible
persons
Part 1—Inspectors’ Decisions
Item Reviewable
Decisions Eligible
Persons
1 |
Revoking
a provisional improvement notice under subsection 55 (4) |
(a) The
health and safety representative who gave the notice; or (b) An involved union in relation to an employee whose work is
affected by the notice. |
2 |
Refusing
to revoke a provisional improvement notice under subsection 55 (4) |
(a) The
person to whom the notice was given; or (b) An
employer whose undertaking is adversely affected by the refusal. |
3 |
Deciding
to seize any plant, substance or thing under paragraph 62 (3) (f) or (g) |
(a) A
person who has a prescribed interest in the plant, substance or thing; or (b) An
employer whose undertaking is adversely affected by the seizure. |
4 |
Giving
an improvement notice under subsection 76 (1), a prohibition notice under
subsection 77 (1) or a direction under subsection 78 (1) |
(a) The
person to whom the notice or direction was given; or (b) An
employer whose undertaking is adversely affected by the notice or direction. |
5 |
Revoking
an improvement notice under subsection 76 (8), a prohibition notice under
subsection 77 (6) or a direction under subsection 78 (8) |
(a) The
health and safety representative for a designated work group in which there
is an employee whose work is affected by the notice or direction; (b) If
there is no health and safety representative for an employee whose work is
affected by the notice or direction—any such employee; or (c) An involved union in relation to an employee whose work is
affected by the notice or direction. |
6 |
Refusing
to revoke an improvement notice under subsection 76 (8), a prohibition notice
under subsection 77 (6) or a direction under subsection 78 (8) |
(a) The
person to whom the notice or direction was given; or (b) An
employer whose undertaking is adversely affected by the refusal. |
Part 2—Registrar’s Decisions
Item Reviewable
Decisions Eligible
Persons
1 |
Establishing
a designated work group under subsection 38 (1) or (2) |
(a) An
involved union in relation to the designated work group; or (b) An employer any of whose employees is in the designated work group. |
2 |
Varying
a designated work group under subsection 38 (3) |
(a) An
involved union in relation to the designated work group; or (b) An
employer any of whose employees is in the designated work group. |
3 |
Disqualifying
a health and safety representative under subsection 48 (1) |
The person disqualified. |
4 |
Revoking
a provisional improvement notice under subsection 55 (4) |
(a) The
health and safety representative who gave the notice; or (b) An
involved union in relation to an employee whose work is affected by the
notice. |
5 |
Refusing
to revoke a provisional improvement notice under subsection 55 (4) |
(a) The
person to whom the notice was given; or (b) An
employer whose undertaking is adversely affected by the refusal. |
6 |
Deciding
to seize any plant, substance or thing under paragraph 62 (3) (f) or (g) |
(a) A
person who has a prescribed interest in the plant, substance or thing; or (b) An
employer whose undertaking is adversely affected by the seizure. |
7 |
Giving
an improvement notice under subsection 76 (1), a prohibition notice under
subsection 77 (1) or a direction under subsection 78 (1) |
(a) The
person to whom the notice or direction was given; or (b) An
employer whose undertaking is adversely affected by the notice or direction. |
8 |
Revoking
an improvement notice under subsection 76 (8), a prohibition notice under
subsection 77 (6) or a direction under subsection 78 (8) |
(a) The
health and safety representative for a designated work group in which there
is an employee whose work is affected by the notice or direction; (b) If
there is no health and safety representative for an employee whose work is
affected by the notice or direction—any such employee; or (c) An
involved union in relation to an employee whose work is affected by the
notice or direction. |
9 |
Refusing
to revoke an improvement notice under subsection 76 (8), a prohibition notice
under subsection 77 (6) or a direction under subsection 78 (8) |
(a) The
person to whom the notice or direction was given; or (b) An
employer whose undertaking is adversely affected by the refusal. |
10 |
A
decision by the Registrar on a reconsideration under section 83 of a
reviewable decision made by an inspector |
A
person who is an eligible person in relation to the reviewable decision made
by the inspector. |
NOTES
1. The
Occupational Health and Safety Act 1989 as shown in this reprint
comprises Act No. 18, 1989 amended as indicated in the Tables below.
2. The
Legislation (Republication) Act 1996 (No. 51, 1996) authorises the
Parliamentary Counsel in preparing a law for republication, to make certain
editorial and other formal amendments in accordance with current legislative
drafting practice. Those amendments
make no change in the law. Amendments
made pursuant to that Act do not appear in the Table of Amendments but details
may be obtained on request from the Parliamentary Counsel’s Office.
Table of
Acts
Act |
Number
and year |
Date of notification in Gazette |
Date of commencement |
Application, saving
or transitional provisions |
Occupational Health and Safety Act 1989 |
18, 1989 |
14 Nov 1989 |
Ss. 1 and 2: 14 Nov 1989 Ss. 3, 5, Part II (ss. 9-26), ss. 88, 95 and 97: 21 Feb 1990 (see Gazette 1990, No.
S6) S. 4: 14 May 1990 (see
s. 2) Ss. 6, 7 and Div. 2 of Part V (ss. 69-75): 26 Mar 1990 (see Gazette 1990, No.
S6) S. 8 and Part III (ss. 27-35), Div. 1 of Part V (ss. 61-68),
Parts VI and VII (ss. 76-84), ss. 85-87, 89-94 and 96: 9 Apr 1990 (see Gazette 1990, No.
S6) |
|
|
|
|
Part IV (ss. 36-60): 10
May 1990 (see Gazette 1990, No. S6) |
|
Occupational Health and Safety (Amendment) Act 1991 |
11, 1991 |
3 Apr 1991 |
3 Apr 1991 |
— |
Occupational Health and Safety (Amendment) Act 1992 |
58, 1992 |
28 Oct 1992 |
Ss. 1-3: 28 Oct 1992 Remainder: 1 July 1993 |
— |
Acts Revision (Position of Crown) Act 1993 |
44, 1993 |
27 Aug 1993 |
27 Aug 1993 (see s. 2) |
— |
Supreme Court (Amendment) Act (No. 2) 1993 |
91, 1993 |
17 Dec 1993 |
17 Dec 1993 |
— |
Public Sector Management (Consequential and Transitional Provisions)
Act 1994 |
38, 1994 |
30 June 1994 |
Ss. 1 and 2: 30 June
1994 Remainder: 1 July 1994 (see
Gazette 1994, No. S142, p. 2) |
Ss. 3, 5-12, 15 and 19 |
Statute Law Revision (Penalties) Act 1994 |
81, 1994 |
29 Nov 1994 |
Ss. 1 and 2: 29 Nov 1994 Remainder: 29 Nov 1994 (see
Gazette 1994, No. S269, p. 2) |
— |
Statutory Offices (Miscellaneous Provisions) Act 1994 |
97, 1994 |
15 Dec 1994 |
Ss. 1 and 2: 15 Dec 1994 |
Part III |
Annual Reports (Government Agencies) (Consequential Provisions)
Act 1995 |
25, 1995 |
5 Sept 1995 |
5 Sept 1995 |
— |
Statute Law Revision Act 1995 |
46, 1995 |
18 Dec 1995 |
18 Dec 1995 |
— |
(Reprinted as at 31
January 1996) |
||||
Occupational Health and Safety (Amendment) Act 1996 |
12, 1996 |
1 May 1996 |
1 May 1996 |
— |
(Reprinted as at 30
November 1996) |
||||
Remuneration Tribunal (Consequential Amendments) Act 1997 |
41, 1997 |
19 Sept 1997 |
Ss. 1 and 2: 19 Sept
1997 Remainder: 23 Sept 1997
(see Gazette 1997, No. S280) |
— |
Occupational Health and Safety (Amendment) Act 1997 |
44, 1997 |
19 Sept 1997 |
Ss. 4 (a) and 10: (see
Note 3) Remainder: 19 Sept 1997 |
— |
Legal Practitioners (Consequential Amendments) Act 1997 |
96, 1997 |
1 Dec 1997 |
Ss. 1 and 2: 1 Dec 1997 |
— |
Statute Law
Revision (Penalties) Act 1998 |
54, 1998 |
27 Nov 1998 |
Ss. 1 and 2: 27 Nov 1998 |
— |
Table of
Amendments
ad. = added or inserted am. = amended rep. = repealed
rs. = repealed and substituted
Provision How
affected
S. 4.................................... rep.
No. 44, 1993
S. 5.................................... am.
No. 11, 1991; No. 97, 1994; No. 44, 1997
S. 7.................................... rs.
No. 44, 1997
S. 10.................................. am.
No. 12, 1996
S. 12.................................. am.
No. 11, 1991
rep.
No. 25, 1995
S. 13.................................. am.
No. 38, 1994; No. 12, 1996
S. 15.................................. rep.
No. 12, 1996
S. 17.................................. rep.
No. 41, 1997
S. 24.................................. am.
No. 12, 1996
S. 24A............................... ad. No.
12, 1996
S. 26.................................. rep.
No. 41, 1997
Ss. 27-34........................... am. No. 81,
1994
S. 36.................................. am.
No. 58, 1992
Ss. 37, 38.......................... am. No. 81,
1994
Ss. 40-42........................... am. No. 81,
1994
S. 45.................................. am.
No. 11, 1991; No. 81, 1994
S. 50.................................. am.
No. 11, 1991
Ss. 51-53........................... am. No. 81,
1994
S. 59.................................. am. No.
81, 1994
Ss. 67, 68.......................... am. No. 81,
1994
S. 69.................................. am.
No. 81, 1994
rs.
No. 97, 1994
S. 70.................................. rs.
No. 97, 1994
S. 71.................................. rs.
No. 97, 1994
am.
No. 54, 1998
S. 72.................................. rep.
No. 97, 1994
S. 73.................................. am.
No. 81, 1994
rep.
No. 97, 1994
S. 76.................................. am.
No. 81, 1994
S. 77.................................. am.
No. 54, 1998
Ss. 78, 79.......................... am. No. 81,
1994
Div. 1 of Part VII
(ss. 80, ad. No. 11, 1991
80A, 80B)
S. 80.................................. rs.
No. 11, 1991
Ss. 80A, 80B..................... ad. No. 11, 1991
Heading to Div. 2 of ad. No. 11, 1991
Part VII
S. 80C................................ ad. No.
97, 1994
S. 84.................................. am.
No. 11, 1991; No. 44, 1997
Ss. 84A-84D...................... ad. No. 11, 1991
S. 84E................................ ad. No.
11, 1991
am.
No. 81, 1994
S. 84F................................ ad. No.
11, 1991
S. 84G............................... ad. No.
11, 1991
am.
No. 91, 1993; No. 46, 1995
Div. 3 of Part VII
(ss. 84H ad. No. 11, 1991
-84R)
S. 84H................................ ad. No.
11, 1991
S. 84J................................ ad. No.
11, 1991
am. No.
46, 1995
S. 84K................................ ad. No.
11, 1991
am.
No. 81, 1994
S. 84L................................ ad. No.
11, 1991
Ss. 84M, 84N..................... ad. No. 11, 1991
am.
No. 81, 1994
S. 84P................................ ad. No.
11, 1991
S. 84Q............................... ad. No.
11, 1991
am.
No. 96, 1997
S. 84R................................ ad. No.
11, 1991
rep.
No. 44, 1997
S. 85.................................. am.
No. 11, 1991; No. 81, 1994
S. 86.................................. am.
No. 81, 1994
Ss. 88-92........................... am. No. 81,
1994
S. 96A............................... ad. No.
44, 1997
S. 97.................................. am.
No. 11, 1991; No. 81, 1994; No. 46, 1995; No. 44, 1997
3. Section
5 of the Occupational Health and Safety Act 1989 is amended by paragraph
4 (a) only of the Occupational Health and Safety (Amendment) Act 1997. Paragraph 4 (a) provides as follows:
“4. Section 5 of the Principal Act is amended—
(a) by
omitting paragraphs (d), (e), (f), (g), (h) and (i) from the definition of
“associated law” in subsection (1); and
* * * * * *.”
Subsection 2 (1) of
the Occupational Health and Safety (Amendment) Act 1997 provides as
follows:
“(1) Paragraph
4 (a) and section 10 commence on a day fixed by the Minister by notice in the Gazette.”
As at 31
December 1998 no date had been fixed for the commencement of paragraph 4 (a)
and the amendment is not incorporated in this reprint.