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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 46
As received from the Legislative Council and read a first
time, 8 November 2004
South Australia
Petroleum
(Submerged Lands) (Miscellaneous) Amendment Bill 2004
A Bill For
An
Act to amend the Petroleum (Submerged Lands) Act 1982 and to make
related amendments to the Off-shore Waters (Application of Laws)
Act 1976.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Petroleum
(Submerged Lands) Act 1982
4 Repeal of section 3
5 Variation of section 4—Interpretation
6 Substitution of section 8
8 Definitions
7 Insertion of section 14A
14A Disapplication of State occupational
health and safety laws
8 Amendment of section 29—Application
for renewal of permit
9 Insertion of section 30A
30A Certain permits cannot be renewed
more than twice
10 Amendment of section 37H—Conditions of
lease
11 Amendment of section 58—Unit
development
12 Amendment of section 63—Application
for pipeline licence
13 Amendment of section 64—Grant or
refusal of pipeline licence
14 Insertion of Part 3A
Part 3A—Occupational health and safety
Division 1—Introduction
150A Definitions
150B Occupational health and safety
150C Listed OHS laws
150D Regulations relating to occupational
health and safety
Division 2—Functions and
powers of the Safety Authority
150E Safety Authority's functions
150F Safety Authority's ordinary powers
150G Judicial notice of seal
Division 3—Safety Authority
Board
150H Functions of the Board
150I Powers of the Board
150J Validity of decisions
Division 4—CEO and staff of
the Safety Authority
150K CEO acts for Safety Authority
150L Working with the Board
150M Delegation
150N Secondments to the Safety Authority
Division 5—Other Safety
Authority provisions
150O Minister may require the Safety Authority
to prepare reports or give information
150P Directions to the Safety Authority
150Q Reviews of operations of Safety
Authority
150R Liability for acts and omissions
15 Amendment of section 151—Regulations
16 Repeal of Schedule 1
17 Variation of Schedule 4
18 Repeal of Schedule 5
19 Insertion of Schedule 7
Schedule
7—Occupational health and safety
Part 1—Introduction
1 Objects
2 Simplified outline
3 Definitions
4 Facilities
5 Operator must ensure presence of
operator's representative
6 Health and safety of persons
using an accommodation facility
7 Contractor
Part 2—Occupational health and safety
Division 1—Duties relating to
occupational health and safety
8 Duties of operator
9 Duties of persons in control of
parts of facility or particular work
10 Duties of employers
11 Duties of manufacturers in
relation to plant and substances
12 Duties of suppliers of facilities,
plant and substances
13 Duties of persons erecting
facilities or installing plant
14 Duties of persons in relation to
occupational health and safety
15 Reliance on information supplied
or results of research
Division 2—Regulations
relating to occupational health and safety
16 Regulations relating to
occupational health and safety
Part 3—Workplace arrangements
Division 1—Introduction
17 Simplified outline
Division 2—Designated work
groups
Subdivision A—Establishment of
designated work groups
18 Establishment of designated work
groups by request
19 Establishment of designated work
groups at initiative of operator
Subdivision B—Variation of Designated
Work Groups
20 Variation of designated work
groups by request
21 Variation of designated work
groups at initiative of operator
Subdivision C—General
22 Referral of disagreement to
reviewing authority
23 Manner of grouping members of the
workforce
Division 3—Health and safety
representatives
Subdivision A—Selection of
health and safety representatives
24 Selection of health and safety
representatives
25 Election of health and safety
representatives
26 List of health and safety
representatives
27 Members of designated work group
must be notified of selection etc. of health and safety representative
28 Term of office
29 Training of health and safety
representatives
30 Resignation etc of health and
safety representatives
31 Disqualification of health and
safety representatives
32 Deputy health and safety
representatives
Subdivision B—Powers of health
and safety representatives
33 Powers of health and safety
representatives
34 Assistance by consultant
35 Information
36 Obligations and liabilities of
health and safety representatives
37 Provisional improvement notices
38 Effect of provisional improvement
notice
Subdivision C—Duties of the
operator and other employers in relation to health and safety representatives
39 Duties of the operator and other
employers in relation to health and safety representatives
Division 4—Health and safety
committees
40 Health and safety committees
41 Functions of health and safety
committees
42 Duties of the operator and other
employers in relation to health and safety committees
Division 5—Emergency
procedures
43 Action by health and safety
representatives
44 Directions to perform other work
Division 6—Exemptions
45 Exemptions
Part 4—Inspections
Division 1—Introduction
46 Simplified outline
47 Powers, functions and duties of
OHS inspectors
Division 2—Inspections
48 Inspections
Division 3—Powers of OHS
inspectors in relation to the conduct of inspections
Subdivision A—General powers
of entry and search
49 Powers of entry and search—facilities
50 Powers of entry and search—regulated
business premises (other than facilities)
51 Powers of entry and search—premises
(other than regulated business premises)
52 Warrant to enter premises (other
than regulated business premises)
53 Obstructing or hindering OHS
inspector
Subdivision B—Other powers
54 Power to require assistance and
information
55 Power to require the answering of
questions and the production of documents or articles
56 Privilege against
self-incrimination
57 Power to take possession of plant,
take samples of substances etc
58 Power to direct that workplace etc
not be disturbed
59 Power to issue prohibition notices
60 Compliance with prohibition notice
61 Power to issue improvement notices
62 Compliance with improvement notice
63 Notices not to be tampered with or
removed
Division 4—Reports on
inspections
64 Reports on inspections
Division 5—Appeals
65 Appeals
66 Powers of reviewing authority on
appeal
Part 5—General
67 Notifying and reporting accidents
and dangerous occurrences
68 Records of accidents and dangerous
occurrences to be kept
69 Codes of practice
70 Use of codes of practice in
proceedings
71 Interference etc with equipment
etc
72 Members of workforce not to be
levied
73 Victimisation
74 Institution of prosecutions
75 Role of Commonwealth DPP
76 Conduct of directors, employees
and agents
77 Act not to give rise to other
liabilities etc
78 Circumstances preventing
compliance may be defence to prosecution
79 Regulations—general
Schedule 1—Related amendments and transitional provision
Part 1—Preliminary
1 Amendment provisions
Part 2—Amendment of Off-shore
Waters (Application of Laws) Act 1976
2 Amendment of section 3—Application
of law of State to off-shore waters
3 Amendment of section 4—Application
of law of State to persons connected with the State, etc, in off-shore waters
Part 3—Transitional provision
4 Transitional
provision
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Petroleum (Submerged Lands)
(Miscellaneous) Amendment Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Petroleum (Submerged Lands)
Act 1982
Section 3—delete the section
5—Variation of section 4—Interpretation
(1) Section 4(1)—after the definition of block
insert:
Commonwealth Act means, as the context requires:
(a) the
Petroleum (Submerged Lands) Act 1967 of the Commonwealth as amended from
time to time; or
(b) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been
repealed and re‑enacted (with or without modifications)—the re‑enacted
Act of the Commonwealth as amended from time to time;
Commonwealth Minister means the Minister of the Crown in right of the
Commonwealth for the time being administering the Commonwealth Act;
(2) Section 4(1)—after the definition of licensee
insert:
listed OHS laws has the meaning given by section 150C;
(3) Section 4(1)—after the definition of natural
resources insert:
OHS inspector means an OHS inspector appointed under the Commonwealth Act;
(4) Section 4(1)—after the definition of royalty
period insert:
Safety Authority means the National Offshore Petroleum Safety Authority under the
Commonwealth Act;
(5) Section
4(1), definition of the Commonwealth Act—delete the definition
Section 8—delete the section and
substitute:
8—Definitions
In this Division, unless the contrary
intention appears—
Commonwealth Act means, as the context requires—
(a) the
Petroleum (Submerged Lands) Act 1967 of the Commonwealth as amended from
time to time; or
(b) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been
repealed and re‑enacted (with or without modifications)—the re‑enacted
Act of the Commonwealth as amended from time to time; or
(c) the
Petroleum (Submerged Lands) Registration Fees Act 1967 of the
Commonwealth as amended from time to time; or
(d) if
the Petroleum (Submerged Lands) Registration Fees Act 1967 has been
repealed and re‑enacted (with or without modifications)—the re‑enacted
Act of the Commonwealth as amended from time to time; or
(e) the
Petroleum (Submerged Lands) Fees Act 1994 of the Commonwealth as amended
from time to time; or
(f) if
the Petroleum (Submerged Lands) Fees Act 1994 has been repealed and re‑enacted
(with or without modifications)—the re‑enacted Act of the Commonwealth as
amended from time to time;
Commonwealth adjacent area means—
(a) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth is in force—the
adjacent area in respect of South Australia determined in accordance with
section 5A of that Act; or
(b) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been
repealed and been re‑enacted (with or without modifications)—the area
that, under the re‑enacted Act of the Commonwealth, corresponds to the
adjacent area in respect of South Australia determined in accordance with
section 5A of the repealed Act.
After section 14 insert:
14A—Disapplication
of State occupational health and safety laws
(1) The prescribed occupational health and
safety laws do not apply in relation to—
(a) a
facility; or
(b) a
person at a facility; or
(c) a
person near a facility, to the extent to which the person is affected by—
(i) a
facility; or
(ii) activities
that take place at a facility; or
(d) activities
that take place at a facility.
(2) A
reference in subsection (1) to the prescribed occupational health and safety
laws is a reference to such of the provisions of those laws that, but for
subsection (1), would apply in the adjacent area by virtue of the Off-shore
Waters (Application of Laws) Act 1976 or the cooperative scheme within
the meaning of the Crimes at Sea Act 1998.
(3) In this section—
facility has the same meaning as in Schedule 7;
prescribed occupational heath and safety laws mean any laws of the State relating to
occupational health and safety (whether or not they also relate to other
matters) that are prescribed by the regulations for the purposes of this
section.
(4) This
section applies despite anything to the contrary in the Off-shore Waters
(Application of Laws) Act 1976 or the Crimes at Sea Act 1998.
8—Amendment of section 29—Application for renewal of permit
Section 29(1)—delete "section
30" and substitute:
sections 30 and 30A
After section 30 insert:
30A—Certain
permits cannot be renewed more than twice
(1) This section applies to an application for
the renewal of a permit where—
(a) the
original permit was granted under section 21—
(i) on
or after 1 January 2005; and
(ii) as
a result of an application made in response to an invitation in an instrument
that was published under section 19(1) on or after 1 January 2005; or
(b) the
original permit was granted under section 26 on or after 1 January 2005.
(2) A
permittee must not make the application if it could result in the original
permit being renewed more than twice.
10—Amendment of section 37H—Conditions of lease
Section 37H(4)—delete "2
notices" and substitute:
a notice
11—Amendment of section 58—Unit development
(1) Section
58(11)(b)—delete "within the meaning of the Commonwealth Act"
(2) Section 58—after subsection (12) insert:
(13) For the purposes of subsection (11)(b), the adjacent
area in respect of a State is—
(a) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth is in force—the
adjacent area in respect of a State within the meaning of that Act; or
(b) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been
repealed and been re‑enacted (with or without modifications)—the area
that, under the re‑enacted Act of the Commonwealth, corresponds to the
adjacent area in respect of a State within the meaning of the repealed Act.
12—Amendment of section 63—Application for pipeline licence
Section 63(2)(b)—after "licence
area" insert:
of a production licence
13—Amendment of section 64—Grant or refusal of pipeline licence
Section 64(5)—delete "licence area
under the Commonwealth Act" and substitute:
licence area of a production licence under the Commonwealth Act
After Part 3 insert:
Part 3A—Occupational
health and safety
Division 1—Introduction
150A—Definitions
In this Part—
Board means the National Offshore Petroleum Safety Authority Board
under the Commonwealth Act;
CEO
means the Chief Executive Officer of the Safety Authority;
facility has the same meaning as in Schedule 7;
offshore petroleum operations means any operations (including diving
operations) that—
(a) relate
to—
(i) the
exploration for petroleum; or
(ii) the
recovery, processing, storage, offloading or piped conveyance of petroleum; and
(b) if
the operations are diving operations—take place in the adjacent area; and
(c) if
the operations are not diving operations—take place at a facility.
150B—Occupational
health and safety
Schedule 7 has effect.
150C—Listed
OHS laws
The following provisions are the listed
OHS laws for the purposes of this Act—
(a) Schedule
7;
(b) regulations
made for the purposes of Schedule 7;
(c) regulations
made for the purposes of section 150D;
(d) any
other regulations relating to occupational health and safety matters that are
prescribed for the purposes of this paragraph.
150D—Regulations
relating to occupational health and safety
(1) The
regulations may make provision in relation to the occupational health and
safety of persons at or near a facility who are under the control of a person
who is carrying on an operation.
(2) Without limiting subsection (1),
regulations for the purpose of that subsection may—
(a) require
a person who is carrying on an operation to establish and maintain a system of
management to secure the occupational health and safety of persons referred to
in that subsection; and
(b) specify
requirements with which the system must comply.
Division 2—Functions
and powers of the Safety Authority
150E—Safety
Authority's functions
The Safety Authority has the following functions:
(a) the
functions conferred on it by or under this Act in relation to offshore
petroleum operations;
(b) to
promote the occupational health and safety of persons engaged in offshore
petroleum operations;
(c) to
develop and implement effective monitoring and enforcement strategies to secure
compliance by persons with their occupational health and safety obligations
under this Act and the regulations;
(d) to—
(i) investigate
accidents, occurrences and circumstances that affect, or have the potential to
affect, the occupational health and safety of persons engaged in offshore
petroleum operations; and
(ii) to
report, as appropriate, to the Minister and the Commonwealth Minister on those
investigations;
(e) to
advise persons, either on its own initiative or on request, on occupational
health and safety matters relating to offshore petroleum operations;
(f) to
make reports, including recommendations, to—
(i) the
Minister; and
(ii) the
Commonwealth Minister,
on issues relating to the occupational health and safety of
persons engaged in offshore petroleum operations;
(g) to
co-operate with—
(i) the
Minister and State agencies having functions relating to offshore petroleum
operations; and
(ii) other
Commonwealth agencies having functions relating to offshore petroleum
operations.
150F—Safety
Authority's ordinary powers
(1) The
Safety Authority has power to do all things necessary or convenient to be done
for or in connection with the performance of its functions.
(2) The Safety Authority's powers include, but
are not limited to, the following powers:
(a) the
power to acquire, hold and dispose of real and personal property;
(b) the
power to enter into contracts;
(c) the
power to lease the whole or any part of any land or building for the purposes
of the Safety Authority;
(d) the
power to occupy, use and control any land or building owned or held under lease
by the Commonwealth and made available for the purposes of the Safety
Authority;
(e) the
power to conduct research and development projects and to cooperate with others
in such projects;
(f) the
power to apply for and hold patents and exploit patents;
(g) the
power to do anything incidental to any of its functions.
150G—Judicial
notice of seal
All courts, judges and persons acting
judicially must—
(a) take
judicial notice of the imprint of the seal of the Safety Authority appearing on
a document; and
(b) presume
that the document was duly sealed.
Division 3—Safety
Authority Board
150H—Functions
of the Board
(1) The Board has the following functions:
(a) to
give advice, and make recommendations, to the CEO about the operational
policies and strategies to be followed by the Safety Authority in the
performance of its functions;
(b) to
give advice, and make recommendations, to—
(i) the
Minister; and
(ii) the
Commonwealth Minister; and
(iii) interstate
Ministers; and
(iv) the
body known as the Ministerial Council on Mineral and Petroleum Resources,
about either or both of the following:
(v) policy
or strategic matters relating to the occupational health and safety of persons
engaged in offshore petroleum operations;
(vi) the
performance by the Safety Authority of its functions;
(c) any
other functions specified in a written notice given by the Commonwealth Minister
to the Chair of the Board.
(2) As soon as practicable after the Board
gives advice, or makes recommendations, under subsection (1)(b) to—
(a) the
Minister; or
(b) an
interstate Minister; or
(c) the
body known as the Ministerial Council on Mineral and Petroleum Resources,
the Board must give the Commonwealth Minister a written copy of
that advice or those recommendations.
150I—Powers
of the Board
The Board has power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
150J—Validity
of decisions
The performance of the functions, or the exercise of the powers,
of the Board is not affected only because of there being a vacancy or vacancies
in the membership of the Board.
Division 4—CEO
and staff of the Safety Authority
150K—CEO
acts for Safety Authority
Anything done by the CEO in the name of the Safety Authority or on
the Safety Authority's behalf is taken to have been done by the Safety
Authority.
150L—Working
with the Board
(1) The
CEO must request the Board's advice on strategic matters relating to the
performance of the Safety Authority's functions.
(2) The
CEO must have regard to the advice given to him or her by the Board (whether or
not the advice was given in response to a request).
(3) The CEO must—
(a) keep
the Board informed of the Safety Authority's operations; and
(b) give
the Board any reports, documents and information in relation to those
operations that the Chair of the Board requires.
150M—Delegation
(1) An
officer or employee of this State, or of a public authority of this State, may
perform any function and exercise any power delegated to him or her by the CEO
under the Commonwealth Act.
(2) In
performing a function or exercising a power under the delegation, the delegate
must comply with any directions of the CEO.
150N—Secondments
to the Safety Authority
An officer or employee of this State, or of a public authority of
this State, may assist the Safety Authority in connection with the performance
of any of its functions or the exercise of any of its powers under this Act,
the Commonwealth Act or a corresponding law.
Division 5—Other
Safety Authority provisions
150O—Minister
may require the Safety Authority to prepare reports or give information
(1) The Minister may, by written notice given
to the Safety Authority, require the Safety Authority to—
(a) prepare
a report about one or more specified matters relating to the performance of the
Safety Authority's functions or the exercise of the Safety Authority's powers;
and
(b) give
a copy of the report to—
(i) the
Minister; and
(ii) each
interstate Minister; and
(iii) the
Commonwealth Minister,
within the period specified in the notice.
(2) The Minister may, by written notice given
to the Safety Authority, require the Safety Authority to—
(a) prepare
a document setting out specified information relating to the performance of the
Safety Authority's functions or the exercise of the Safety Authority's powers;
and
(b) give
a copy of the report to—
(i) the
Minister; and
(ii) each
interstate Minister; and
(iii) the
Commonwealth Minister,
within the period specified in the notice.
(3) The
Safety Authority must comply with a requirement under subsection (1) or
(2).
150P—Directions
to the Safety Authority
(1) The
Minister may request the Commonwealth Minister to give a direction to the
Safety Authority that relates wholly or principally to the Safety Authority's
operations in the adjacent area.
(2) The
Commonwealth Minister must use his or her best endeavours to make a decision on
the request within 30 days after receiving the request.
(3) If
the Commonwealth Minister refuses the request, the Commonwealth Minister must
give the Minister a written statement setting out the reasons for the refusal.
(4) The
Safety Authority must comply with any direction given by the Commonwealth
Minister under this section.
150Q—Reviews
of operations of Safety Authority
(1) The
Minister must cause reviews to be conducted of the operations of the Safety
Authority in relation to the adjacent area.
(2) The
Minister must cause to be prepared a report of a review under
subsection (1).
(3) The
first review is to relate to the 3 year period beginning on 1 January
2005, and is to be completed within 6 months, or the longer period that the
Minister allows, after the end of that 3 year period.
(4) Subsequent
reviews are to relate to successive 3 year periods, and must be completed
within 6 months, or the longer period that the Minister allows, after the end
of the 3 year period to which the review relates.
(5) A
review under this section may be conducted in conjunction with a review under
the Commonwealth Act or a corresponding law (or both).
(6) Without
limiting the matters to be covered by a review under subsection (1), the
review must include an assessment of the effectiveness of the Safety Authority
in bringing about improvements in the occupational health and safety of persons
engaged in offshore petroleum operations.
(7) The
Minister must cause a copy of the report of a review under subsection (1)
to be tabled in each House of Parliament within 15 sitting days of that
House after the report of the review is completed.
(8) For
the purposes of this section, a review is completed when the report of the
review is made available to the Minister.
150R—Liability
for acts and omissions
(1) This section applies to the following
persons:
(a) the
Safety Authority;
(b) the
CEO;
(c) an
OHS inspector;
(d) a
person acting under the direction or authority of the Safety Authority or the
CEO.
(2) A person to whom this section applies is
not personally liable for anything done or omitted to be done in good faith—
(a) in
the performance of a function under a listed OHS law; or
(b) in
the reasonable belief that the act or omission was in the performance of a
function under a listed OHS law.
15—Amendment of section 151—Regulations
Section 151(2a)—delete subsection (2a) and
substitute:
(2a) The
regulations may apply, wholly or partially and with or without modification,
regulations in force under an Act of another State, a Territory or the
Commonwealth (as in force from time to time or as in force at a particular
time) as regulations applying under this Act (and, in so applying such
regulations, may provide for their citation for the purposes of the law of this
State).
(2aa) The
regulations may apply or adopt, wholly or partially and with or without
modification, a code, standard, rule or other document prepared or published by
a body referred to in the regulation (as in force from time to time or as in
force at a particular time).
(2ab) Any
regulations applying or adopting a regulation, code, standard, rule or other
document may contain such incidental, supplementary or transitional provisions
as appear to the Governor to be necessary.
(2ac) The regulations, or a regulation, code,
standard, rule or other document applied or adopted by the regulations, may—
(a) refer
to or incorporate, wholly or partially and with or without modification, a
code, standard, rule or other document prepared or published by a particular
body (as in force from time to time or as in force at a particular time); and
(b) be
of general or limited application; and
(c) make
different provision according to the persons, things or circumstances to which
they are expressed to apply; and
(d) provide
that any matter or thing is to be determined, dispensed with, regulated or
prohibited according to the discretion of the Minister or any other prescribed
person or authority.
(2ad) If—
(a) a
regulation, code, standard, rule or other document is applied or adopted by the
regulations; or
(b) the
regulations, or a regulation, code, standard, rule or other document applied or
adopted by the regulations, refers to a code, standard, rule or other document
prepared or published by a particular body,
then—
(c) a
copy of the regulation, code, standard, rule or other document must be kept
available for inspection by members of the public, without charge and during
normal office hours, at an office or offices specified by notice in the
Gazette; and
(d) in
any legal proceedings, evidence of the contents of the regulation, code,
standard, rule or other document may be given by production of a document
purporting to be certified by or on behalf of the Minister as a true copy of
the regulation, code, standard, rule or other document.
Schedule 1—delete the Schedule
(1) Schedule 4, clause 1(1)—before the
definition of altered arrangements insert:
adjacent area under the Commonwealth Act means—
(a) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth is in force—an
adjacent area in respect of a State determined in accordance with section 5A of
that Act; or
(b) if
the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been
repealed and been re‑enacted (with or without modifications)—an area
that, under the re‑enacted Act of the Commonwealth, corresponds to an
adjacent area in respect of a State determined in accordance with section 5A of
the repealed Act.
(2) Schedule
4, clause 1(1), definition of Commonwealth Act—delete the
definition
(3) Schedule 4, clause 3(4)—after the
Commonwealth Act insert:
as in force before 7 March 2000
Schedule 5—delete the Schedule
After Schedule 6 insert:
Schedule 7—Occupational
health and safety
Part 1—Introduction
1—Objects
The objects of this Schedule are, in
relation to facilities located in the adjacent area:
(a) to
secure the occupational health, safety and welfare of persons at or near those
facilities; and
(b) to
protect persons at or near those facilities from risks to occupational health
and safety arising out of activities being conducted at those facilities; and
(c) to
ensure that expert advice is available on occupational health and safety
matters in relation to those facilities; and
(d) to
promote an occupational environment for members of the workforce at those
facilities that is adapted to their needs relating to health and safety; and
(e) to
foster a consultative relationship between all relevant persons concerning the
health, safety and welfare of members of the workforce at those facilities.
2—Simplified
outline
(1) The
following is a simplified outline of this Schedule.
(2) This
Schedule sets up a scheme to regulate occupational health and safety matters at
or near facilities.
(3) Occupational health and safety duties are
imposed on the following:
(a) the
operator of a facility;
(b) a
person in control of a part of a facility, or of any work carried out at a
facility;
(c) an
employer;
(d) a
manufacturer of plant, or a substance, for use at a facility;
(e) a
supplier of a facility, or of any plant or substance for use at a facility;
(f) a
person who erects or installs a facility, or any plant at a facility;
(g) a
person at a facility.
(4) A
group of members of the workforce at a facility may be established as a
designated work group.
(5) The
members of a designated work group may select a health and safety
representative for that designated work group.
(6) The
health and safety representative may exercise certain powers for the purpose of
promoting or ensuring the occupational health and safety of group members.
(7) An OHS inspector may conduct an inspection—
(a) to
ascertain whether a listed OHS law is being complied with; or
(b) concerning
a contravention or a possible contravention of a listed OHS law; or
(c) concerning
an accident or dangerous occurrence that has happened at or near a facility.
(8) The
operator of a facility must report accidents and dangerous occurrences to the
Safety Authority.
3—Definitions
In this Schedule—
accident includes the contraction of a disease;
associated offshore place, in relation to a facility, means any
offshore place near the facility where activities (including diving activities)
relating to the construction, installation, operation, maintenance or
decommissioning of the facility take place, but does not include—
(a) another
facility; or
(b) a
supply vessel, offtake tanker, anchor handler or tugboat; or
(c) a
vessel, or structure, that is declared by the regulations not to be an
associated offshore place;
contract includes an arrangement or understanding;
contractor has the meaning given by clause 7;
dangerous occurrence means an occurrence declared by the regulations to be a
dangerous occurrence for the purposes of this definition;
designated work group means—
(a) a
group of members of the workforce at a facility that is established as a
designated work group under clause 18 or 19; or
(b) that
group as varied in accordance with clause 20 or 21;
employee, in relation to an employer, means an employee of that employer;
employer means an employer who carries on an activity at a facility;
facility means a facility as defined by clause 4
and—
(a) includes
a facility (as defined by clause 4) that is being constructed or installed; and
(b) except
in the definition of associated offshore place, includes an
associated offshore place in relation to a facility (as defined by clause 4);
group member, in relation to a designated work group
at a facility, means a person who is—
(a) a
member of the workforce at that facility; and
(b) included
in that designated work group;
improvement notice means an improvement notice issued under clause 61(1);
inspection means an inspection conducted under Part 4 of this Schedule and
includes an investigation or inquiry;
master, in relation to a vessel, means the person having command or charge
of the vessel;
member of the workforce, in relation to a facility, means a
natural person who does work at the facility, whether—
(a) as
an employee of the operator of the facility or of another person; or
(b) as
a contractor of the operator or of another person;
offshore petroleum operations has the same meaning as in Part 3A;
operator, in relation to a facility or proposed facility, means the person
who, under the regulations, is taken to be the operator of that facility or proposed
facility;
operator's representative at a facility means a person present at the facility in
compliance with the obligations imposed on the operator by clause 5;
own
includes own jointly and own in part;
plant includes any machinery, equipment or tool, or any component;
premises includes the following:
(a) a
structure or building;
(b) a
place (whether or not enclosed or built on);
(c) a
part of a thing referred to in paragraph (a) or (b);
prohibition notice means a prohibition notice issued under clause 59(1);
proposed facility means a facility proposed to be constructed, installed or
operated;
recovery, in relation to petroleum, includes all processes directly or
indirectly associated with its recovery;
registered organisation means an organisation within the meaning
of the Workplace Relations Act 1996 of the Commonwealth;
regulated business premises means—
(a) a
facility; or
(b) premises
that are—
(i) occupied
by a person who is the operator of a facility; and
(ii) used,
or proposed to be used, wholly or principally in connection with offshore
petroleum operations;
regulations means regulations made for the purposes of this Schedule;
reviewing authority means the Australian Industrial Relations Commission;
work means work offshore that is directly or indirectly related to the
construction, installation, operation, maintenance or decommissioning of a
facility;
workforce representative means—
(a) in
relation to a person who is a member of the workforce at a facility—a
registered organisation of which that person is a member, if the person is
qualified to be a member of that organisation because of the work the person
performs at the facility; or
(b) in
relation to a designated work group or a proposed designated work group—a
registered organisation of which a person who is, or who is likely to be, in
the work group is a member, if the person is qualified to be a member of that
organisation because of the work the person performs, or will perform, at a
facility as a member of the group;
work group employer, in relation to a designated work group at a facility,
means an employer of one or more group members, but does not include the
operator of the facility;
workplace, in relation to a facility, means the whole facility or any part
of the facility.
4—Facilities
(1) A vessel or structure is taken to be a
facility for the purposes of this Schedule while that vessel or structure—
(a) is
located at a site in the adjacent area; and
(b) is
being used, or prepared for use, at that site—
(i) for
the recovery of petroleum, for the processing of petroleum, or for the storage
and offloading of petroleum, or for any combination of those activities; or
(ii) for
the provision of accommodation for persons working on another facility, whether
connected by a walkway to that other facility or not; or
(iii) for
drilling or servicing a well for petroleum or doing work associated with the
drilling or servicing process; or
(iv) for
laying pipes for petroleum, including any manufacturing of such pipes, or for
doing work on an existing pipe; or
(v) for
the erection, dismantling or decommissioning of a vessel or structure referred
to in a previous subparagraph of this paragraph; or
(vi) for
any other purpose related to offshore petroleum operations that is prescribed
for the purposes of this subparagraph.
(2) Subclause (1) applies to a vessel or
structure—
(a) whether
it is floating or fixed; and
(b) whether
or not it is capable of independent navigation.
(3) Subclause
(1) has effect subject to subclauses (6) and (7).
(4) A vessel or structure used for a purpose
referred to in subclause (1)(b)(i) includes—
(a) any
wells and associated plant and equipment by means of which petroleum processed
or stored at the vessel or structure is recovered; and
(b) any
pipe or system of pipes through which petroleum is conveyed from a well to the
vessel or structure; and
(c) any
secondary line associated with the vessel or structure.
(5) For
the purposes of subclause (1), a vessel or structure that is located offshore
for the purpose of laying pipes as described in subclause (1)(b)(iv) is taken
to be located at a site, despite the fact that the vessel or structure moves as
the pipe laying process proceeds.
(6) Despite subclause (1), a vessel or
structure is taken not to be a facility for the purposes of this Schedule if
the vessel or structure is—
(a) an
offtake tanker; or
(b) a
tug or an anchor handler; or
(c) a
vessel or structure used for supplying a facility or otherwise travelling
between a facility and the shore; or
(d) a
vessel or structure used for any purpose such that it is declared by the
regulations not to be a facility.
(7) In determining when a vessel or structure
that has the potential to be used for one or more of the purposes referred to
in subclause (1)(b) is in fact being so used, the vessel or structure is taken—
(a) to
commence to be so used only at the time when it arrives at the site where it is
to be so used and any activities necessary to make it operational at that site
are begun; and
(b) to
cease to be so used when operations cease, and the vessel or structure has been
returned either to a navigable form or to a form in which it can be towed to
another place.
(8) Each of the following is taken to be a
facility for the purposes of this Schedule:
(a) a
pipeline subject to a pipeline licence;
(b) if
a pipeline subject to a pipeline licence conveys petroleum recovered from a
well without the petroleum having passed through another facility—that
pipeline, together with—
(i) that
well and associated plant and equipment; and
(ii) any
pipe or system of pipes through which petroleum is conveyed from that well to
that pipeline.
(9) In subclause (8)(b)—
facility does not include a pipeline.
5—Operator
must ensure presence of operator's representative
(1) The operator of a facility must ensure
that, at all times when one or more natural persons are present at a facility,
there is also present a natural person (the operator's representative at
the facility) who has day-to-day management and control of operations
at the facility.
Maximum penalty:
(a) $5 500,
in the case of a natural person;
(b) $27 500,
in the case of a body corporate
(2) The operator of a facility must ensure that
the name of the operator's representative at the facility is displayed in a
prominent place at the facility.
Maximum penalty:
(a) $5 500,
in the case of a natural person;
(b) $27 500,
in the case of a body corporate
(3) Subclause
(1) does not imply that, if the operator is a natural person, the operator's
representative at the facility may not be, from time to time, the operator.
6—Health and
safety of persons using an accommodation facility
For the avoidance of doubt, a reference in this Schedule to the
occupational health and safety of a person includes a reference to the health
and safety of a person using an accommodation facility provided for the
accommodation of persons working on another facility.
7—Contractor
For the purposes of this Schedule, a
natural person is taken to be a contractor of another person (the
relevant person) if the natural person does work at a facility
under a contract for services between—
(a) the
relevant person; and
(b) either—
(i) the
natural person; or
(ii) the
employer of the natural person.
Part 2—Occupational
health and safety
Division 1—Duties
relating to occupational health and safety
8—Duties of
operator
(1) The operator of a facility must take all
reasonably practicable steps to ensure that—
(a) the
facility is safe and without risk to the health of any person at or near the
facility; and
(b) all work and other activities carried out
on the facility are carried out in a manner that is safe and without risk to
the health of any person at or near the facility.
Maximum penalty:
(a) $110 000,
in the case of a natural person;
(b) $550 000,
in the case of a body corporate.
(2) Without limiting the generality of subclause
(1), the operator of a facility must—
(a) provide
and maintain a physical environment at the facility that is safe and without
risk to health; and
(b) provide
and maintain adequate facilities for the welfare of all members of the
workforce at the facility; and
(c) ensure
that any plant, equipment, materials and substances at the facility are safe
and without risk to health; and
(d) implement
and maintain systems of work at the facility that are safe and without risk to
health; and
(e) implement
and maintain appropriate procedures and equipment for the control of, and
response to, emergencies at the facility; and
(f) provide
all members of the workforce, in appropriate languages, with the information,
instruction, training and supervision necessary for them to carry out their
activities in a manner that does not adversely affect the occupational health
and safety of persons at the facility; and
(g) monitor
the occupational health and safety of all members of the workforce and keep
records of that monitoring; and
(h) provide
appropriate medical and first aid services at the facility; and
(i) develop,
in consultation with members of the workforce and workforce representatives, a
policy relating to occupational health and safety that—
(i) will
enable the operator and the members of the workforce to co-operate effectively
in promoting and developing measures to ensure the occupational health and
safety of persons at the facility; and
(ii) will
provide adequate mechanisms for reviewing the effectiveness of the measures;
and
(iii) provides for the making of an agreement that
complies with subclauses (4) and (5).
Maximum penalty:
(a) $110
000, in the case of a natural person;
(b) $550
000, in the case of a body corporate.
(3) Subclause
(2)(i) does not require the operator of a facility to engage in consultations
with a workforce representative unless a member of the workforce at the
facility has requested the workforce representative to be involved in those
consultations.
(4) The agreement referred to in subclause
(2)(i)(iii) must be between—
(a) on
the one hand—the operator; and
(b) on
the other hand—
(i) the
members of the workforce; and
(ii) if
a member of the workforce at the facility has requested a workforce
representative in relation to the member to be a party to that agreement—that
workforce representative.
(5) The agreement referred to in subclause
(2)(i)(iii) must provide appropriate mechanisms for continuing consultation
between—
(a) on
the one hand—the operator; and
(b) on
the other hand—
(i) the
members of the workforce; and
(ii) if
a member of the workforce at the facility has requested a workforce
representative in relation to the member to be involved in consultations on a
particular occasion—that workforce representative.
(6) The
agreement may provide for any other matters agreed between the parties to it.
9—Duties of
persons in control of parts of facility or particular work
(1) A person who is in control of any part of a
facility, or of any particular work carried out at a facility, must take all
reasonably practicable steps to ensure that—
(a) that
part of the facility, or the place where that work is carried out, is safe and
without risk to health; and
(b) if the person is in control of particular
work—the work is carried out in a manner that is safe and without risk to
health.
Maximum penalty:
(a) $110
000, in the case of a natural person;
(b) $550
000, in the case of a body corporate.
(2) Without limiting the generality of
subclause (1), a person who is in control of any part of a facility, or of any
particular work carried out at a facility, must—
(a) ensure
that the physical environment at that part of the facility, or at the place
where the work is carried out, is safe and without risk to health; and
(b) ensure
that any plant, equipment, materials and substances at or near that part of the
facility or that place, or used in that work, are safe and without risk to
health; and
(c) implement
and maintain systems of work at that part of the facility, or in carrying out
work at that place, that are safe and without risk to health; and
(d) ensure
a means of access to, and egress from, that part of the facility or that place
that is safe and without risk to health; and
(e) provide all members of the workforce
located at that part of the facility or engaged on that work, in appropriate
languages, with the information, instruction, training and supervision
necessary for them to carry out their work in a manner that is safe and without
risk to health.
Maximum penalty:
(a) $110
000, in the case of a natural person;
(b) $550
000, in the case of a body corporate.
10—Duties of
employers
(1) An employer must take all reasonably
practicable steps to protect the health and safety of employees at a facility.
Maximum penalty:
(a) $110
000, in the case of a natural person;
(b) $550
000, in the case of a body corporate.
(2) Without limiting the generality of
subclause (1), an employer must—
(a) provide
and maintain a working environment that is safe for employees and without risk
to their health; and
(b) ensure
that any plant, equipment, materials and substances used in connection with the
employees' work are safe and without risk to health; and
(c) implement
and maintain systems of work that are safe and without risk to health; and
(d) provide
a means of access to, and egress from, the employees' work location that is
safe and without risk to health; and
(e) provide the employees, in appropriate
languages, with the information, instruction, training and supervision
necessary for them to carry out their work in a manner that is safe and without
risk to health.
Maximum penalty:
(a) $110
000, in the case of a natural person;
(b) $550
000, in the case of a body corporate.
(3) A person has, in respect of a contractor of
that person, the same obligations that an employer has under subclauses (1) and
(2) in respect of an employee of that employer, but only in relation to—
(a) matters
over which the first mentioned person has control; or
(b) matters
over which—
(i) the
first mentioned person would have had control apart from express provision to
the contrary in a contract; and
(ii) the
first mentioned person would, in the circumstances, usually be expected to have
had control.
(4) An employer must take all reasonable steps
to—
(a) monitor
the health and safety of employees; and
(b) keep records of that monitoring.
Maximum penalty:
(a) $110
000, in the case of a natural person;
(b) $550
000, in the case of a body corporate.
11—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 members of the
workforce at a facility must take all reasonably practicable steps—
(a) to
ensure that the plant is so designed and constructed as to be, when properly
used, safe and without risk to health; and
(b) to
carry out, or cause to be carried out, the research, testing and examination
necessary in order to discover, and to eliminate or minimise, any risk to
health and safety that may arise from the use of the plant; and
(c) to
make available, in connection with the use of the plant at a facility, adequate
written information about—
(i) the
use for which it is designed and has been tested; and
(ii) details
of its design and construction; and
(iii) any conditions necessary to ensure that,
when put to the use for which it was designed and tested, it will be safe and
without risk to health.
Maximum penalty:
(a) $22
000, in the case of a natural person;
(b) $110
000, in the case of a body corporate.
(2) A manufacturer of any substance that the
manufacturer ought reasonably to expect will be used by members of the
workforce at a facility must take all reasonably practicable steps—
(a) to
ensure that the substance is so manufactured as to be, when properly used, safe
and without risk to health; and
(b) to
carry out, or cause to be carried out, the research, testing and examination
necessary to discover, and to eliminate or minimise, any risk to health and
safety that may arise from the use of the substance; and
(c) to
make available, in connection with the use of the substance at a facility,
adequate written information concerning—
(i) the
use for which it is manufactured and has been tested; and
(ii) details
of its composition; and
(iii) any
conditions necessary to ensure that, when put to the use for which it was
manufactured and tested, it will be safe and without risk to health; and
(iv) the first aid and medical procedures that
should be followed if the substance causes injury.
Maximum penalty:
(a) $22
000, in the case of a natural person;
(b) $110
000, in the case of a body corporate.
(3) If—
(a) plant
or a substance is imported into Australia by a person who is not its
manufacturer; and
(b) at
the time of the importation, the manufacturer of the plant or substance does
not have a place of business in Australia,
the first mentioned person is taken, for the purposes of this
clause, to be the manufacturer of the plant or substance.
(4) This
clause does not affect the operation of any other law of this State that
imposes an obligation on a manufacturer in respect of defective goods or in
respect of information to be supplied in relation to goods.
12—Duties of
suppliers of facilities, plant and substances
(1) A supplier of a facility, or of any plant
or substance that the supplier ought reasonably to expect will be used by
members of the workforce at a facility, must take all reasonably practicable
steps—
(a) to
ensure that, at the time of supply, the facility, or the plant or substance, is
in such condition as to be, when properly used, safe and without risk to
health; and
(b) to
carry out, or cause to be carried out, the research, testing and examination
necessary to discover, and to eliminate or minimise, any risk to health or
safety that may arise from the condition of the facility, plant or substance;
and
(c) to
make available—
(i) in
the case of a facility—to the operator of a facility; and
(ii) in
the case of plant or substance—to the person to whom the plant or substance is
supplied,
adequate written information, in connection with the use of the
facility, plant or substance (as the case requires) about—
(iii) the
condition of the facility, plant or substance at the time of supply; and
(iv) any
risk to the health and safety of members of the workforce at the facility to
which the condition of the facility, plant or substance may give rise unless it
is properly used; and
(v) the
steps that need to be taken in order to eliminate that risk; and
(vi) in the case of a substance—the first aid and
medical procedures that should be followed if the condition of the substance
causes injury to a member of the workforce at the facility.
Maximum penalty:
(a) $22
000, in the case of a natural person;
(b) $110
000, in the case of a body corporate.
(2) For the purposes of subclause (1), if a
person (the ostensible supplier) supplies to a person either a
facility, or any plant or substance that is to be used by members of the
workforce at a facility, and the ostensible supplier—
(a) carries
on the business of financing the acquisition or the use of goods by other
persons; and
(b) has,
in the course of that business, acquired an interest in the facility, or in the
plant or substance, from another person (the actual supplier),
solely for the purpose of financing its acquisition by, or its provision to,
the person to whom it is finally supplied; and
(c) has
not taken possession of the facility, plant or substance, or has taken
possession of the facility, plant or substance solely for the purpose of
passing possession of the facility, plant or substance to the person to whom it
is finally supplied,
a reference in subclause (1) to a supplier is, in relation to the
facility, plant or substance referred to in this subclause, to be read as a
reference to the actual supplier and not as a reference to the ostensible
supplier.
(3) This
clause does not affect the operation of any other law of this State that
imposes an obligation in respect of the sale or supply of goods or in respect
of the information to be supplied in relation to goods.
13—Duties of
persons erecting facilities or installing plant
(1) A person who erects or installs a facility,
or erects or installs any plant at a facility, must take all reasonably
practicable steps to ensure that the facility or plant is not erected or
installed in such a way that it is unsafe or constitutes a risk to health.
Maximum penalty:
(a) $22
000, in the case of a natural person;
(b) $110
000, in the case of a body corporate.
(2) This
clause does not affect the operation of any other law of this State that
imposes an obligation in respect of the erection or installation of structures
or goods or the supply of services.
14—Duties of
persons in relation to occupational health and safety
(1) A person at a facility must, at all times,
take all reasonably practicable steps—
(a) to
ensure that the person does not take any action, or make any omission, that
creates a risk, or increases an existing risk, to the occupational health and
safety of that person or of any other person at or near the facility; and
(b) in
respect of any obligation imposed on the operator or on any other person by or
under a listed OHS law—to co‑operate with the operator or that other
person to the extent necessary to enable the operator or that other person to
fulfil that obligation; and
(c) to
use equipment that is—
(i) supplied
to the person by the operator, an employer of the person or any other person
having control of work at a facility (the equipment supplier);
and
(ii) necessary
to protect the occupational health and safety of the person, or of any other
person at or near the facility,
in accordance with any instructions given
by the equipment supplier, consistent with the safe and proper use of the
equipment.
Maximum penalty:
(a) $5
500, in the case of a natural person;
(b) $27
500, in the case of a body corporate.
(2) Despite subclause (1), the choice or manner
of use, or choice and manner of use, of equipment of the kind referred to in
subclause‑(1)(c)(ii) is a matter that may be, consistently with each
listed OHS law—
(a) agreed
on between the equipment supplier and any relevant health and safety
representative; or
(b) agreed
on by a health and safety committee.
(3) If
an agreement of the kind referred to in subclause (2)(a) or (b) provides a
process for choosing equipment of a particular kind that is to be provided by
the equipment supplier, action must not be taken against a person for failure
to use equipment of that kind that is so provided unless the equipment has been
chosen in accordance with that process.
(4) If
an agreement of the kind referred to in subclause (2)(a) or (b) provides a
process for determining the manner of use of equipment of a particular kind,
action must not be taken against a person for failure to use, in the manner
required by the equipment supplier, equipment of that kind that is so provided
unless the manner has been determined in accordance with that process.
15—Reliance
on information supplied or results of research
(1) For the purpose of the application of
clause 8, 9 or 10 to the use of plant or a substance, a person on whom an
obligation is imposed under any of those clauses is regarded as having taken
reasonably practicable steps as required by the relevant clause, in relation to
the use of the plant or substance, to the extent that—
(a) the
person ensured, so far as practicable, that its use was in accordance with the
information supplied by the manufacturer or the supplier of the plant or
substance relating to occupational health and safety in its use; and
(b) it
was reasonable for the person to rely on that information.
(2) For the purpose of the application of
clause 11 or 12 to carrying out research, testing and examining a facility, or
any plant or substance, a person on whom an obligation is imposed under either
of those clauses is regarded as having taken reasonably practicable steps as
required by the relevant clause, in relation to carrying out research, testing
and examining the facility, plant or substance, to the extent that—
(a) the
research, testing or examination has already been carried out by or on behalf
of someone else; and
(b) it
was reasonable for the person to rely on that research, testing or examination.
(3) For the purpose of the application of
clause 13 to the erection of a facility or the erection or installation of
plant at a facility, a person on whom an obligation is imposed under that
clause is regarded as having taken reasonably practicable steps as required by
that clause to the extent that—
(a) the
person ensured, so far as is reasonably practicable, that the erection of the
facility, or the erection or installation of the plant, was—
(i) in
accordance with information supplied by the manufacturer or supplier of the
facility or plant relating to its erection or its installation; and
(ii) consistent
with the occupational health and safety of persons at the facility; and
(b) it
was reasonable for the person to rely on that information.
(4) Nothing
in this clause limits the generality of what constitutes reasonably practicable
steps as required by clause 8, 9, 10, 11, 12 or 13.
Division 2—Regulations
relating to occupational health and safety
16—Regulations
relating to occupational health and safety
(1) The
regulations may make provision relating to any matter affecting, or likely to
affect, the occupational health and safety of persons at a facility.
(2) Regulations made for the purposes of
subclause (1) may make provision for any or all of the following—
(a) prohibiting
or restricting the performance of all work or specified work at a facility;
(b) prohibiting
or restricting the use of all plant or specified plant at a facility;
(c) prohibiting
or restricting the carrying out of all processes or a specified process at a
facility;
(d) prohibiting
or restricting the storage or use of all substances or specified substances at
a facility;
(e) specifying
the form in which information required to be made available under clause
11(1)(c) or 12(1)(c) is to be so made available;
(f) prohibiting,
except in accordance with licences granted under the regulations, the use of
specified plant or specified substances at a facility;
(g) providing
for—
(i) the
issue, variation, renewal, transfer, suspension and cancellation of those
licences; and
(ii) the
conditions to which the licences may be subject;
(h) regulating
the maintenance and testing of plant used at a facility;
(i) regulating
the labelling or marking of substances used at a facility;
(j) regulating
the transport of specified plant or specified substances for use at a facility;
(k) prohibiting
the performance, at a facility, of specified activities or work except—
(i) by
persons who satisfy requirements of the regulations as to qualifications,
training or experience; or
(ii) under
the supervision specified in the regulations;
(l) requiring
specified action to avoid accidents or dangerous occurrences;
(m) providing
for, or prohibiting, specified action in the event of accidents or dangerous
occurrences;
(n) providing
for the employment at a facility of persons to perform specified duties
relating to the maintenance of occupational health and safety at the facility;
(o) regulating
the provision and use, at a facility, of protective clothing and equipment,
safety equipment and rescue equipment;
(p) providing
for monitoring the health of members of the workforce at a facility and the
conditions at the facility;
(q) requiring
employers to keep records of matters related to the occupational health and
safety of employees;
(r) providing
for the provision of first aid equipment and facilities at facilities.
Part 3—Workplace
arrangements
Division 1—Introduction
17—Simplified
outline
The following is a simplified outline of
this Part:
(a) a
group of members of the workforce at a facility may be established as a
designated work group; and
(b) the
members of a designated work group may select a health and safety
representative for that designated work group; and
(c) the
health and safety representative may exercise certain powers for the purpose of
promoting or ensuring the occupational health and safety of group members; and
(d) a
health and safety committee may be established in relation to the members of
the workforce at a facility; and
(e) the
main function of a health and safety committee is to assist the operator in
relation to occupational health and safety matters.
Division 2—Designated
work groups
Subdivision
A—Establishment of designated work groups
18—Establishment
of designated work groups by request
(1) A request to the operator of a facility to
enter into consultations to establish designated work groups in relation to the
members of the workforce at the facility may be made by—
(a) any
member of the workforce; or
(b) if
a member of the workforce requests a workforce representative in relation to
the member to make the request to the operator—that workforce representative.
(2) The operator of a facility must, within 14
days after receiving a request under subclause (1), enter into consultations
with—
(a) if
any member of the workforce made a request to establish designated work groups—
(i) that
member of the workforce; and
(ii) if
that member requests that the operator enter into consultations with a
workforce representative in relation to the member—that workforce
representative; and
(iii) each
employer (if any) of members of the workforce; and
(b) if
a workforce representative made a request to establish designated work groups—
(i) if
a member of the workforce requests that the operator enter into consultations
with that workforce representative—that workforce representative; and
(ii) each
employer of members of the workforce.
(3) Within
14 days after the completion of consultations about the establishment of the
designated work groups, the operator must, by notifying the members of the
workforce, establish the designated work groups in accordance with the outcome
of the consultations.
19—Establishment
of designated work groups at initiative of operator
(1) If, at any time, the operator of a facility
considers that designated work groups should be established, the operator must
enter into consultations with—
(a) all
members of the workforce; and
(b) if
a member of the workforce requests that the operator enter into consultations
with a workforce representative in relation to the member—that workforce
representative; and
(c) each
employer (if any) of members of the workforce.
(2) Within
14 days after the completion of consultations about the establishment of the
designated work groups, the operator must, by notifying the members of the
workforce, establish the designated work groups in accordance with the outcome
of the consultations.
Subdivision
B—Variation of Designated Work Groups
20—Variation
of designated work groups by request
(1) A request to the operator of a facility to
enter into consultations to vary designated work groups that have already been
established in relation to the members of the workforce at the facility may be
made by—
(a) any
member of the workforce; or
(b) if
a member of the workforce requests a workforce representative in relation to
the member to make the request to the operator—that workforce representative.
(2) The operator of a facility must, within 14
days after receiving a request under subclause (1), enter into consultations
with—
(a) if
any member of the workforce made a request to vary designated work groups—
(i) that
member of the workforce; and
(ii) the
health and safety representative of each designated work group affected by the
proposed variation; and
(iii) each
work group employer (if any) in relation to each designated work group affected
by the proposed variation; and
(b) if
a workforce representative made a request to vary designated work groups—
(i) if
a member of a designated work group affected by the proposed variation requests
that the operator enter into consultations with that workforce representative
in relation to the group—that workforce representative; and
(ii) the
health and safety representative of each designated work group affected by the
proposed variation; and
(iii) each
work group employer (if any) in relation to each designated work group affected
by the proposed variation.
(3) If—
(a) consultations
take place about the variation of designated work groups that have already been
established; and
(b) as
a result of the consultations, it has been determined that the variation of
some or all of those designated work groups is justified,
then, within 14 days after the completion of the consultations,
the operator must, by notifying the members of the workforce who are affected
by the variation, vary the designated work groups in accordance with the
outcome of the consultations.
21—Variation
of designated work groups at initiative of operator
(1) If the operator of a facility believes the
designated work groups should be varied, the operator may, at any time, enter
into consultations about the variations with—
(a) the
health and safety representative of each of the designated work groups affected
by the proposed variation; and
(b) if
a member of a designated work group affected by the proposed variation requests
that the operator enter into consultations with that workforce representative
in relation to the group—that workforce representative; and
(c) each
work group employer (if any) in relation to each designated work group affected
by the proposed variation.
(2) If—
(a) consultations
take place about the variation of designated work groups that have already been
established; and
(b) as
a result of the consultations, it has been determined that the variation of
some or all of those designated work groups is justified,
then, within 14 days after the completion of the consultations,
the operator must, by notifying the members of the workforce who are affected
by the variation, vary the designated work groups in accordance with the
outcome of the consultations.
Subdivision
C—General
22—Referral
of disagreement to reviewing authority
(1) If,
in the course of consultations under clause 18, 19, 20 or 21, there is a
disagreement between any of the parties to the consultation about the manner of
establishing or varying a designated work group, any party may, for the purpose
of facilitating that consultation, refer the matter of disagreement to the
reviewing authority.
(2) If
the matter of a disagreement is referred to the reviewing authority, the
parties to the disagreement must complete the consultation in accordance with
the resolution of that matter by the reviewing authority.
23—Manner of
grouping members of the workforce
(1) Consultations about the establishment or
variation of a designated work group must be directed principally at the
determination of the manner of grouping members of the workforce—
(a) that
best and most conveniently enables their interests relating to occupational
health and safety to be represented and safeguarded; and
(b) that
best takes account of the need for any health and safety representative
selected for that designated work group to be accessible to each group member.
(2) The parties to the consultations must have
regard, in particular, to—
(a) the
number of members of the workforce at the facility to which the consultation
relates; and
(b) the
nature of each type of work performed by those members; and
(c) the
number and grouping of those members who perform the same or similar types of
work; and
(d) the
workplaces where each type of work is performed; and
(e) the
nature of any risks to health and safety at each of those workplaces; and
(f) any
overtime or shift working arrangement at the facility.
(3) The
designated work groups must be established or varied in such a way that, so far
as practicable, each of the members of the workforce at a facility is in a
designated work group.
(4) All
the members of the workforce at a facility may be in one designated work group.
Division 3—Health
and safety representatives
Subdivision
A—Selection of health and safety representatives
24—Selection
of health and safety representatives
(1) One
health and safety representative may be selected for each designated work
group.
(2) A
person is not eligible for selection as the health and safety representative
for a designated work group unless the person is a member of the workforce
included in the group.
(3) A person is taken to have been selected as
the health and safety representative for a designated work group if—
(a) all
the members of the workforce in the group unanimously agree to the selection;
or
(b) the
person is elected as the health and safety representative of the group in
accordance with clause 25.
25—Election
of health and safety representatives
(1) If—
(a) there
is a vacancy in the office of health and safety representative for a designated
work group; and
(b) within
a reasonable time after the vacancy occurs, a person has not been selected
under clause 24(3)(a),
the operator of the facility must invite nominations from all
group members for election as the health and safety representative of the
group.
(2) If
the office of health and safety representative is vacant and the operator has
not invited nominations within a further reasonable time that is no later than
6 months after the vacancy occurred, the Safety Authority may direct the
operator to do so.
(3) If
there is more than one candidate for election at the close of the nomination
period, the operator must conduct, or arrange for the conduct of, an election
at the operator's expense.
(4) An election conducted or arranged to be
conducted under subclause (3) must be conducted in accordance with
regulations made for the purposes of this subclause if this is requested by the
lesser of—
(a) 100
members of the workforce normally in the designated work group; or
(b) a
majority of the members of the workforce normally in the designated work group.
(5) If
there is only one candidate for election at the close of the nomination period,
that person is taken to have been elected.
(6) A
person cannot be a candidate in the election if he or she is disqualified under
clause 31.
(7) All
the members of the workforce in the designated work group are entitled to vote
in the election.
(8) An
operator conducting or arranging for the conduct of an election under this
clause must comply with any relevant directions issued by the Safety Authority.
26—List of
health and safety representatives
The operator of a facility must—
(a) prepare
and keep up to date a list of all the health and safety representatives of
designated work groups comprising members of the workforce performing work at
the facility; and
(b) ensure
that the list is available for inspection, at all reasonable times, by—
(i) the
members of the workforce at the facility; and
(ii) OHS
inspectors.
27—Members
of designated work group must be notified of selection etc. of health and
safety representative
The operator of a facility must—
(a) notify
members of a designated work group in relation to the facility of a vacancy in
the office of health and safety representative for the designated work group
within a reasonable time after the vacancy arises; and
(b) notify
those members of the name of any person selected (whether under clause 24(3)(a)
or (b)) as health and safety representative for the designated work group
within a reasonable time after the selection is made.
28—Term of
office
(1) A health and safety representative for a
designated work group holds office—
(a) if,
in consultations that took place under clause 18, 19, 20 or 21, the
parties to the consultations agreed to the period for which the health and
safety representative for the group was to hold office—for that period; or
(b) if
paragraph (a) does not apply—for 2 years.
(2) The
term of office of a health and safety representative begins at the start of the
day on which he or she was selected.
(3) Nothing
in this clause prevents a health and safety representative from being selected
for further terms of office.
29—Training
of health and safety representatives
(1) A
health and safety representative for a designated work group must undertake a
course of training relating to occupational health and safety that is
accredited by the Safety Authority for the purposes of this clause.
(2) The
operator of the facility concerned must permit the representative to take any
time off work, without loss of remuneration or other entitlements, that is
necessary to undertake the training.
(3) If
a person other than the operator is the employer of the representative, that
person must permit the representative to take any time off work, without loss
of remuneration or other entitlements, that is necessary to undertake the
training.
30—Resignation
etc of health and safety representatives
(1) A person ceases to be the health and safety
representative for the designated work group if—
(a) the
person resigns as the health and safety representative; or
(b) the
person ceases to be a group member of that designated work group; or
(c) the
person's term of office expires without the person having been selected, under
clause 24, to be the health and safety representative for the designated work
group for a further term; or
(d) the
person is disqualified under clause 31.
(2) A
person may resign as the health and safety representative for a designated work
group by notice in writing delivered to the operator and to each work group
employer.
(3) If
a person resigns as the health and safety representative for a designated work
group, the person must notify the resignation to the group members.
(4) If a person has ceased to be the health and
safety representative for a designated work group because of subclause (1)(b),
the person must notify in writing—
(a) the
group members; and
(b) the
operator and each work group employer,
that the person has ceased to be the health and safety
representative for that designated work group.
31—Disqualification
of health and safety representatives
(1) An application for the disqualification of
a health and safety representative for a designated work group may be made to
the Safety Authority by—
(a) the
operator; or
(b) a
work group employer; or
(c) at
the request of a group member of the designated work group—a workforce
representative in relation to the designated work group.
(2) An application under subclause (1) may be
made on either or both of the following grounds—
(a) that
action taken by the representative in the exercise or purported exercise of a
power under clause 33(1) or any other provision of this Schedule was taken—
(i) with
the intention of causing harm to the operator or work group employer or to an
undertaking of the operator or work group employer; or
(ii) unreasonably,
capriciously or not for the purpose for which the power was conferred on the
representative;
(b) that
the representative has intentionally used, or disclosed to another person, for
a purpose that is not connected with the exercise of a power of a health and
safety representative, information acquired from the operator or work group
employer.
(3) On
an application under subclause (1), the Safety Authority may disqualify the
representative, for a specified period not exceeding 5 years, from being a
health and safety representative for any designated work group, if the Safety
Authority is satisfied that the representative has acted in a manner referred
to in subclause (2).
(4) In making a decision under subclause (3),
the Safety Authority must have regard to—
(a) the
harm (if any) that was caused to the operator or work group employer or to an
undertaking of the operator or work group employer as a result of the action of
the representative; and
(b) the
past record of the representative in exercising the powers of a health and
safety representative; and
(c) the
effect (if any) on the public interest of the action of the representative; and
(d) any
other matters the Safety Authority thinks relevant.
32—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 is to be selected in the same way as a
health and safety representative under clause 24.
(3) If the health and safety representative for
a designated work group—
(a) ceases
to be the health and safety representative; or
(b) is
unable (because of absence or for any other reason) to exercise the powers of a
health and safety representative,
then—
(c) the
powers may be exercised by the deputy health and safety representative (if any)
for the group; and
(d) this
Schedule (other than this clause) applies in relation to the deputy health and
safety representative accordingly.
Subdivision
B—Powers of health and safety representatives
33—Powers of
health and safety representatives
(1) A health and safety representative for a
designated work group may, for the purpose of promoting or ensuring the health
and safety at a workplace of the group members—
(a) do
all or any of the following—
(i) inspect
the whole or any part of the workplace if there has, in the immediate past,
been an accident or a dangerous occurrence at the workplace, or if there is an
immediate threat of such an accident or dangerous occurrence;
(ii) inspect
the whole or any part of the workplace if the health and safety representative
has given reasonable notice of the inspection to the operator's representative
at the facility and to any other person having immediate control of the
workplace;
(iii) make
a request to an OHS inspector or to the Safety Authority that an inspection be
conducted at the workplace;
(iv) accompany
an OHS inspector during any inspection at the workplace by the OHS inspector
(whether or not the inspection is being conducted as a result of a request made
by the health and safety representative);
(v) if
there is no health and safety committee in respect of the members of the
workforce at the facility—represent group members in consultations with the
operator and any work group employer about the development, implementation and
review of measures to ensure the health and safety of those members at the
workplace;
(vi) if
a health and safety committee has been established in respect of the members of
the workforce at the facility—examine any of the records of that committee; and
(b) investigate
complaints made by any group member to the health and safety representative
about the health and safety of any of the members of the workforce (whether in
the group or not); and
(c) with
the consent of a group member, be present at any interview about health and
safety at work between that member and—
(i) an
OHS inspector; or
(ii) the
operator or a person representing the operator; or
(iii) a
work group employer or a person representing that employer; and
(d) obtain
access to any information under the control of the operator or any work group
employer—
(i) relating
to risks to the health and safety of any group member; and
(ii) relating
to the health and safety of any group member; and
(e) issue
provisional improvement notices in accordance with clause 37.
(2) Subclause
(1)(d)(ii) has effect subject to clause 35.
34—Assistance
by consultant
(1) A
health and safety representative for a designated work group is entitled, in
the exercise of his or her powers, to be assisted by a consultant.
(2) A health and safety representative for a
designated work group may—
(a) be
assisted by a consultant at a workplace at which work is performed; or
(b) provide
to a consultant information that has been provided to the health and safety
representative by a group member under clause 33(1)(d),
only if the operator or the Safety Authority has, in writing,
agreed to the provision of that assistance at that workplace or the provision
of that information, as the case may be.
(3) Neither
the operator nor any workplace employer becomes, because of the agreement under
subclause (2) to the provision of assistance by a consultant, liable for any
remuneration or other expenses incurred in connection with the consultant's
activities.
(4) If a health and safety representative for a
designated work group is being assisted by a consultant, the consultant is
entitled to be present with the representative at any interview, about health
and safety at work, between a group member and—
(a) an
OHS inspector; or
(b) the
operator or any work group employer or a person representing the operator or
that employer,
if, and only if, the group member consents to the presence of the
consultant.
35—Information
(1) Neither—
(a) a
health and safety representative; nor
(b) a
consultant assisting a health and safety representative,
is entitled, under clause 33(1)(d)(ii), to have access to
information in respect of which a group member is entitled to claim, and does
claim, legal professional privilege.
(2) Neither—
(a) a
health and safety representative; nor
(b) a
consultant assisting a health and safety representative,
is entitled, under clause 33(1)(d)(ii), to have access to
information of a confidential medical nature relating to a person who is or was
a group member unless—
(c) the
person has delivered to the operator or any work group employer a written
authority permitting the health and safety representative, or the health and
safety representative and the consultant, as the case requires, to have access
to the information; or
(d) the
information is in a form that does not identify the person or enable the identity
of the person to be discovered.
36—Obligations
and liabilities of health and safety representatives
This Schedule does not—
(a) impose
an obligation on a person to exercise any power conferred on the person because
the person is a health and safety representative; or
(b) render
a person liable in civil proceedings because of—
(i) a
failure to exercise such a power; or
(ii) the
way such a power was exercised.
37—Provisional
improvement notices
(1) If—
(a) a
health and safety representative for a designated work group believes, on
reasonable grounds, that a person—
(i) is
contravening a provision of a listed OHS law; or
(ii) has
contravened a provision of a listed OHS law and is likely to contravene that
provision again; and
(b) the
contravention affects or may affect one or more group members,
the representative must consult with the person supervising the
relevant activity in an attempt to reach agreement on rectifying the
contravention or preventing the likely contravention.
(2) If,
in the health and safety representative's opinion, agreement is not reached
within a reasonable time, the health and safety representative may issue a
provisional improvement notice to any or all of the persons (each of whom is in
this clause called a responsible person) responsible for the
contravention.
(3) If
a responsible person is the operator, the improvement notice may be issued to
the operator by giving it to the operator's representative at the facility.
(4) If it is not practicable to issue the
notice to a responsible person (other than the operator or the supervisor) by
giving it to that responsible person—
(a) the
notice may be issued to that responsible person by giving it to the person who
for the time being is, or may reasonably be presumed to be, on behalf of the
responsible person, in charge of the activity to which the notice relates; and
(b) if
the notice is so issued, a copy of the notice must be given to the responsible
person as soon as practicable afterwards.
(5) The notice must—
(a) specify
the contravention that, in the health and safety representative's opinion, is
occurring or is likely to occur, and set out the reasons for that opinion; and
(b) specify
a period that—
(i) is
not less than 7 days beginning on the day after the notice is issued; and
(ii) is,
in the representative's opinion, reasonable,
within which the responsible person is to take action necessary to
prevent any further contravention or to prevent the likely contravention, as
the case may be.
(6) The
notice may specify action that the responsible person is to take during the
period specified in the notice.
(7) If,
in the health and safety representative's opinion, it is appropriate to do so,
the representative may, in writing and before the end of the period, extend the
period specified in the notice.
(8) On issuing the notice, the health and
safety representative must give a copy of the notice to—
(a) if
the operator is not a responsible person—the operator; and
(b) each
work group employer other than a work group employer who is a responsible
person; and
(c) if
the supervisor is not a responsible person—the supervisor; and
(d) if
the notice relates to any plant, substance or thing that is owned by a person
other than a responsible person or a person to whom a copy of the notice is
given under paragraph (a), (b) or (c)—that owner.
38—Effect of
provisional improvement notice
(1) Within 7 days after a notice is issued
under clause 37—
(a) the
responsible person; or
(b) any
other person, to whom a copy of the notice has been given under clause 37(8),
may request the Safety Authority or an OHS inspector for an
inspection of the matter to be conducted.
(2) On
the request being made, the operation of the notice is suspended pending the
determination of the matter by an OHS inspector.
(3) As soon as possible after a request is
made, an inspection must be conducted of the work that is the subject of the
disagreement, and the OHS inspector conducting the inspection must—
(a) confirm,
vary or cancel the notice and notify the responsible person and any person to
whom a copy of the notice has been given under clause 37(8) accordingly; and
(b) make
decisions, and exercise powers, under Part 4, as the OHS inspector considers
necessary in relation to the work.
(4) If the OHS inspector varies a notice, the
notice as so varied has effect—
(a) so
far as the notice concerns obligations imposed on the responsible person that
are unaffected by the variation—as if the notice as so varied resumed effect on
the day of the variation; and
(b) so
far as the notice concerns new obligations imposed by virtue of the variation—as
if the notice as so varied were a new notice issued on the day of the
variation.
(5) If the notice is issued to a responsible
person, the responsible person must—
(a) notify
each group member who is affected by the notice of the fact of the issue of the
notice; and
(b) until
the notice ceases to have effect, cause a copy of the notice to be displayed at
or near each workplace at which the work that is the subject of the notice is
being performed.
(6) The notice ceases to have effect if—
(a) it
is cancelled by an OHS inspector or by the health and safety representative; or
(b) the
responsible person—
(i) takes
the action, if any, specified in the notice; or
(ii) if
no action is so specified—takes the action necessary to prevent the further
contravention, or likely contravention, concerned.
(7) The responsible person—
(a) must
ensure that, to the extent that the notice relates to any matter over which the
person has control, the notice is complied with; and
(b) must
take reasonable steps to inform the health and safety representative who issued
the notice of the action taken to comply with the notice.
(8) For
the purposes of clause 65, if the OHS inspector confirms or varies the notice,
the OHS inspector is taken to have decided, under clause 61, to issue an
improvement notice in those terms.
Subdivision
C—Duties of the operator and other employers in relation to health and safety
representatives
39—Duties of
the operator and other employers in relation to health and safety
representatives
(1) The operator of a facility, in relation to
which a designated work group having a health and safety representative has
been established, must—
(a) on
being requested to do so by the representative, consult with the representative
on the implementation of changes at any workplace at which some or all of the
group members perform work, being changes that may affect their health and
safety; and
(b) in
relation to a workplace at which some or all of the group members perform work—
(i) permit
the representative to make any inspection of the workplace that the
representative is entitled to make in accordance with clause 33(1)(a)(i) and to
accompany an OHS inspector during an inspection at the workplace by the OHS
inspector; and
(ii) if
there is no health and safety committee in respect of the members of the
workforce—on being requested to do so by the representative, consult with the
representative about the development, implementation and review of measures to
ensure the health and safety of group members; and
(c) permit
the representative to be present at any interview at which the representative
is entitled to be present under clause 33(1)(c); and
(d) provide
to the representative access to any information to which the representative is
entitled to obtain access under clause 33(1)(d)(i) or (ii) and to which access
has been requested; and
(e) permit
the representative to take any time off work, without loss of remuneration or
other entitlements, that is necessary to exercise the powers of a health and
safety representative; and
(f) provide
the representative with access to any facilities that are—
(i) prescribed
for the purposes of this paragraph; or
(ii) necessary
for the purposes of exercising the powers of a health and safety
representative.
(2) Subclause
(1)(d) has effect subject to subclauses (3) and (4).
(3) The operator must not permit a health and
safety representative in relation to a designated work group to have access to
information that—
(a) is
of a confidential medical nature under the control of the operator; and
(b) relates
to a person who is or was a group member,
unless—
(c) the
person has delivered to the employer a written authority permitting the
representative to have access to the information; or
(d) the
information is in a form that does not identify the person or enable the
identity of the person to be discovered.
(4) The
operator is not required to give a health and safety representative access to
any information in respect of which the operator is entitled to claim, and does
claim, legal professional privilege.
(5) The
duties imposed by this clause on the operator in respect of the health and
safety representative for a designated work group apply equally, to the extent
that the matters to which the duties relate are within the control of a work
group employer or of a supervisor of particular work, to that employer and to
that supervisor.
Division 4—Health
and safety committees
40—Health
and safety committees
(1) A health and safety committee must be
established in relation to the members of the workforce at a facility if—
(a) the
number of those members normally present at the facility is not less than 50
(whether or not those members are all at work at the facility at the same
time); and
(b) the
members of the workforce are included in one or more designated work groups;
and
(c) the
operator is requested to establish the committee by the health and safety
representative for the designated work group or for one of the designated work
groups.
(2) The health and safety committee consists of—
(a) the
number of members specified in an agreement reached between the operator and
the members of the workforce; or
(b) if
there is no such agreement—an equal number of—
(i) members,
chosen by the members of the workforce, to represent the interests of members
of the workforce; and
(ii) members,
chosen by the operator, to represent the interests of the operator and the
employer (other than the operator) of members of the workforce.
(3) The agreement referred to in subclause
(2)(a) may—
(a) specify
the persons who are to be members to represent the interests of the operator
and employers (other than the operator) of members of the workforce; and
(b) provide
for the way in which persons who are to be members to represent the interests
of members of the workforce are to be chosen.
(4) If
regulations made for the purposes of this clause specify procedures for the
selection of persons as members of health and safety committees to represent
the interests of members of the workforce, an agreement referred to in
subclause (2)(a) must not provide for members to be chosen in a way
inconsistent with the regulations.
(5) A
health and safety committee must hold a meeting at least once every 3 months.
(6) The
procedure at meetings of a health and safety committee must, except to the
extent provided for by the regulations, be the procedure agreed upon by the
committee.
(7) A
health and safety committee must cause minutes of its meetings to be kept, and
must retain those minutes for a period of not less than 3 years.
(8) This
clause does not prevent an operator from establishing, in consultation with
registered unions or any other persons, committees concerned with occupational
health and safety in relation to undertakings carried on by the operator.
41—Functions
of health and safety committees
(1) A health and safety committee has the
following functions—
(a) to
assist the operator of the facility concerned—
(i) to
develop and implement measures designed to protect; and
(ii) to
review and update measures used to protect,
the health and safety at work of members of the workforce;
(b) to
facilitate co-operation between the operator of the facility, employers (other
than the operator) of members of the workforce, and members of the workforce,
in relation to occupational health and safety matters;
(c) to
assist the operator to disseminate among members of the workforce, in
appropriate languages, information relating to health and safety at work;
(d) any
prescribed functions;
(e) any
other functions that are agreed between the operator and the health and safety
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.
(3) This Schedule does not—
(a) impose
an obligation on a person to do any act, because the person is a member of a
health and safety committee, in connection with the performance of a function
conferred on the committee; or
(b) render
such a person liable in civil proceedings because of—
(i) a
failure to do such an act; or
(ii) the
manner in which such an act was done.
42—Duties of
the operator and other employers in relation to health and safety committees
(1) If there is a health and safety committee,
the operator and any employer (other than the operator) of a member of the
workforce must—
(a) make
available to the committee any information possessed by the operator or that
employer relating to risks to health and safety to members of the workforce;
and
(b) permit
any member of the committee who is a member of the workforce to take time off
work, without loss of remuneration or other entitlements, as is necessary for
the member adequately to participate in the performance by the committee of its
functions.
(2) Subclause
(1)(a) has effect subject to subclauses (3) and (4).
(3) The operator or any employer (other than
the operator) of a member of the workforce must not make available to a health
and safety committee information of a confidential nature relating to a person
who is or was a member of the workforce, unless—
(a) the
person has authorised the information to be made available to the committee; or
(b) the
information is in a form that does not identify the person or enable the
identity of the person to be discovered.
(4) The
operator or any employer (other than the operator) of a member of the workforce
is not required to make available to a health and safety committee any
information in respect of which the operator or employer is entitled to claim,
and does claim, legal professional privilege.
Division 5—Emergency
procedures
43—Action by
health and safety representatives
(1) If a health and safety representative for a
designated work group has reasonable cause to believe that there is an imminent
and serious danger to the health or safety of any person at or near the
facility unless a group member or group members cease to perform particular
work, the representative must—
(a) inform
a person (a supervisor) supervising the group member or group
members in the performance of the work of the danger; or
(b) if
no supervisor can be contacted immediately—
(i) direct
the group member or group members to cease, in a safe manner, to perform the
work; and
(ii) as
soon as practicable, inform a supervisor that the direction has been given.
(2) If
a supervisor is informed under subclause (1)(a) of a danger to the health or
safety of any person at or near the facility, the supervisor must take the
action he or she thinks appropriate to remove that danger, which may include
directing a group member or group members to cease, in a safe manner, to
perform the work.
(3) If—
(a) a
health and safety representative has informed a supervisor under subclause
(1)(a) of a danger; and
(b) the
representative has reasonable cause to believe that, despite any action taken
by the supervisor in accordance with subclause (2), there continues to be an
imminent and serious danger to the health or safety of any person at or near
the facility unless the group member or group members cease to perform
particular work,
the representative must—
(c) direct
the group member or group members to cease, in a safe manner, to perform the
work; and
(d) as
soon as practicable, inform the supervisor that the direction has been given.
(4) If—
(a) a
health and safety representative gives a direction under subclause (1)(b), but
is unable to agree with a supervisor whom the representative has informed under
that subclause that there is a need for a direction under that subclause; or
(b) a
health and safety representative gives a direction under subclause (3)(c),
the representative or the supervisor may request the Safety
Authority or an OHS inspector that an inspection be conducted of the work that
is the subject of the direction.
(5) As
soon as possible after a request is made, an inspection must be conducted of
the work that is the subject of the direction, and the OHS inspector conducting
the inspection must make decisions, and exercise powers, under Part 4 as the
OHS inspector considers necessary in relation to the work.
(6) This
clause does not limit the power of a health and safety representative under
clause 33(1)(a)(iii) to request an OHS inspector or the Safety Authority that
an inspection be conducted at the workplace.
44—Directions
to perform other work
If—
(a) a
group member who is an employee has ceased to perform work, in accordance with
the direction of a health and safety representative under clause 43(1)(b) or
(3)(c); and
(b) the
cessation of work does not continue after—
(i) the
health and safety representative has agreed with a person supervising work at
the workplace where the work was being performed that the cessation of work was
not, or is no longer, necessary; or
(ii) an
OHS inspector has, under clause 43(5), made a decision to the effect that the
employee should perform the work,
the employer may direct the employee to perform suitable
alternative work, and the employee is to be taken, for all purposes, to be
required to perform that other work under the terms and conditions of the
employee's employment.
Division 6—Exemptions
45—Exemptions
(1) The
Safety Authority may, in accordance with the regulations, make a written order
exempting a specified person or class of person from any or all of the
provisions of this Part (other than this clause).
(2) The
Safety Authority must not make an order under subclause (1) unless it is satisfied
on reasonable grounds that it is impracticable for the person to comply with
the provision or provisions.
Part 4—Inspections
Division 1—Introduction
46—Simplified
outline
The following is a simplified outline of
this Part:
(a) an
OHS inspector may conduct an inspection—
(i) to
ascertain whether a listed OHS law is being complied with; or
(ii) concerning
a contravention or a possible contravention of a listed OHS law; or
(iii) concerning
an accident or dangerous occurrence that has happened at or near a facility;
(b) an
OHS inspector may issue a prohibition notice to the operator of a facility in
order to remove an immediate threat to the health and safety of any person;
(c) an
OHS inspector may issue an improvement notice specifying action that is to be
taken to prevent contravention of a listed OHS law;
(d) an
OHS inspector must prepare a report about an inspection and give the report to
the Safety Authority.
47—Powers,
functions and duties of OHS inspectors
(1) An
OHS inspector has the powers, functions and duties conferred or imposed by the
listed OHS laws.
(2) The
Safety Authority may give written directions specifying the manner in which,
and the conditions subject to which, powers conferred on OHS inspectors by a
listed OHS law are to be exercised. If it does so, the powers of OHS inspectors
must be exercised in accordance with those directions.
(3) The
Safety Authority may, by notice in writing, impose restrictions, not inconsistent
with any direction in force under subclause (2), on the powers that are
conferred on a particular OHS inspector by a listed OHS law.
(4) If
the Safety Authority acts under subsection (3), the powers of the OHS inspector
are taken to have been restricted accordingly.
Division 2—Inspections
48—Inspections
(1) An OHS inspector may, at any time, conduct
an inspection—
(a) to
ascertain whether the requirements of, or any requirements properly made under,
a listed OHS law are being complied with; or
(b) concerning
a contravention or a possible contravention of a listed OHS law; or
(c) concerning
an accident or dangerous occurrence that has happened at a facility.
(2) The Safety Authority may direct an OHS
inspector to conduct an inspection—
(a) to
ascertain whether the requirements of, or any requirements properly made under,
a listed OHS law are being complied with; or
(b) concerning
a contravention or a possible contravention of a listed OHS law; or
(c) concerning
an accident or dangerous occurrence that has happened at a facility,
and the OHS inspector must, unless the Safety Authority revokes
the direction, conduct an inspection accordingly.
Division 3—Powers
of OHS inspectors in relation to the conduct of inspections
Subdivision
A—General powers of entry and search
49—Powers of
entry and search—facilities
(1) An OHS inspector may, for the purposes of
an inspection, at any reasonable time during the day or night—
(a) enter
the facility to which the inspection relates and do all or any of the
following:
(i) search
the facility;
(ii) inspect,
examine, take measurements of, or conduct tests concerning, any workplace at
the facility or any plant, substance or thing at the facility;
(iii) take
photographs of, make video recordings of, or make sketches of, any workplace at
the facility or any plant, substance or thing at the facility;
(iv) inspect,
take extracts from, or make copies of, any documents at the facility that the
OHS inspector has reasonable grounds to believe relate, or are likely to
relate, to the subject matter of the inspection; and
(b) inspect
the seabed and subsoil in the vicinity of the facility to which the inspection
relates.
(2) Immediately on entering a facility for the
purposes of an inspection, an OHS inspector must take reasonable steps to
notify the purpose of entering the facility to—
(a) the
operator's representative at the facility; and
(b) if
there is a health and safety representative for a designated work group having
a group member likely to be affected by the matter the subject of the
inspection—that representative,
and must, on being requested to do so by the person referred to in
paragraph (a) or (b), produce for inspection by that person—
(c) the
OHS inspector's identity card; and
(d) a
copy of the Safety Authority's written direction (if any) to conduct the
inspection; and
(e) a
copy of the restrictions (if any) imposed on the powers of the OHS inspector
under clause 47(3).
(3) If
there is a health and safety representative for a designated work group having
a group member likely to be affected by the matter the subject of the
inspection, the OHS inspector must afford the health and safety representative
a reasonable opportunity to consult on the matter the subject of the
inspection.
50—Powers of
entry and search—regulated business premises (other than facilities)
(1) An OHS inspector may, for the purposes of
an inspection—
(a) at
any reasonable time, enter any regulated business premises (other than a
facility) if the OHS inspector has reasonable grounds to believe that there are
likely to be at those premises documents that relate to a facility that is, or
to facility operations that are, the subject of the inspection; and
(b) search
for, inspect, take extracts from, or make copies of, any such documents at
those premises.
(2) Immediately on entering premises referred
to in subclause (1), an OHS inspector must take reasonable steps to notify the
purpose of the entry to the occupier of those premises, and must, on being
requested to do so by the occupier, produce for inspection by the occupier—
(a) the
OHS inspector's identity card; and
(b) a
copy of the Safety Authority's written direction (if any) to conduct the
inspection; and
(c) a
copy of the restrictions (if any) imposed on the powers of the OHS inspector
under clause 47(3).
51—Powers of
entry and search—premises (other than regulated business premises)
(1) An OHS inspector may, for the purposes of
an inspection—
(a) enter
any premises (other than regulated business premises) if the OHS inspector has
reasonable grounds to believe that there are likely to be at those premises
documents that relate to a facility that is, or to facility operations that
are, the subject of the inspection; and
(b) search
for, inspect, take extracts from, or make copies of, any such documents at
those premises.
(2) An OHS inspector may exercise the powers
referred to in subclause (1) to enter premises only—
(a) if
the premises are not a residence—
(i) in
accordance with a warrant under clause 52; or
(ii) with
the consent of the occupier of the premises; or
(b) if
the premises are a residence—with the consent of the occupier of the premises.
(3) Immediately on entering premises referred
to in subclause (1), an OHS inspector must—
(a) take
reasonable steps to notify the purpose of the entry to the occupier of those
premises; and
(b) take
reasonable steps to produce, for inspection by the occupier, the OHS
inspector's identity card; and
(c) on
being requested to do so by the occupier, produce, for inspection by the
occupier—
(i) a
copy of the Safety Authority's written direction (if any) to conduct the
inspection; and
(ii) a
copy of the restrictions (if any) imposed on the powers of the OHS inspector
under clause 47(3).
(4) If—
(a) an
OHS inspector enters premises in accordance with a warrant under clause 52; and
(b) the
occupier of the premises is present at the premises,
the OHS inspector must make a copy of the warrant available to the
occupier.
(5) Before obtaining the consent of a person as
mentioned in subclause (2)(a) or (b), an OHS inspector must inform the
person that—
(a) the
person may refuse consent; and
(b) the
consent may be withdrawn.
(6) The
consent of a person is not effective for the purposes of subclause (2)
unless the consent is voluntary.
52—Warrant
to enter premises (other than regulated business premises)
(1) An
OHS inspector may apply to a magistrate for a warrant authorising the OHS
inspector, with any assistance as the OHS inspector thinks necessary, to
exercise the powers referred to in clause 51(1) in relation to particular
premises (other than a residence).
(2) The
application must be supported by evidence on oath (whether oral or by
affidavit) that sets out the grounds on which the OHS inspector is applying for
the warrant.
(3) If
the magistrate is satisfied that there are reasonable grounds for issuing the
warrant, the magistrate may issue the warrant.
(4) A warrant issued under subclause (3) must
state—
(a) the
name of the OHS inspector; and
(b) whether
the inspection may be carried out at any time or only during specified hours of
the day; and
(c) the
day on which the warrant ceases to have effect; and
(d) the
purposes for which the warrant is issued.
(5) The
day specified under subclause (4)(c) is not to be more than 7 days after
the day on which the warrant is issued.
(6) The
purposes specified under subclause (4)(d) must include the identification of
the premises in relation to which the warrant is issued.
53—Obstructing
or hindering OHS inspector
A person must not, without reasonable
excuse, obstruct or hinder an OHS inspector in the exercise of an OHS
inspector's powers under clause 49, 50 or 51.
Maximum penalty:
(a) $5 500,
in the case of a natural person;
(b) $27
500, in the case of a body corporate.
Subdivision
B—Other powers
54—Power to
require assistance and information
(1) An OHS inspector may, to the extent that it
is reasonably necessary to do so in connection with the conduct of an
inspection, require—
(a) the
operator of a facility; or
(b) the
person in charge of operations at a workplace in relation to a facility; or
(c) a
member of the workforce at a facility; or
(d) any
person representing a person referred to in paragraph (a) or (b),
to provide the OHS inspector with reasonable assistance and
facilities—
(e) that
is or are reasonably connected with the conduct of the inspection at or near
the facility; or
(f) for
the effective exercise of the OHS inspector's powers under this Schedule in
connection with the conduct of the inspection at or near the facility.
(2) The reasonable assistance referred to in
subclause (1) includes, so far as the operator of the facility is concerned—
(a) appropriate
transport to or from the facility for the OHS inspector and for any equipment
required by the OHS inspector, or any article of which the OHS inspector has
taken possession; and
(b) reasonable
accommodation and means of subsistence while the OHS inspector is at the
facility.
(3) A person must not fail, without reasonable
excuse, to comply with a requirement under this clause.
Maximum penalty:
(a) $3
300 or imprisonment for 6 months or both, in the case of a natural person;
(b) $16
500, in the case of a body corporate.
55—Power to
require the answering of questions and the production of documents or articles
(1) If—
(a) an
OHS inspector believes on reasonable grounds that a person is capable of
answering a question that is reasonably connected with the conduct of an
inspection; and
(b) the
person is—
(i) the
operator of a facility; or
(ii) the
person in charge of operations at a workplace in relation to a facility; or
(iii) a
member of the workforce at a facility; or
(iv) any
person representing a person referred to in subparagraph (i) or (ii),
the OHS inspector may, to the extent that it is reasonably
necessary to do so in connection with the conduct of the inspection, require
the person to answer the question put by the OHS inspector.
(2) If, at the time when a requirement under
subclause (1) is imposed on a person, the person is not physically present on
regulated business premises, the person is not obliged to comply with the
requirement unless the requirement—
(a) is
in writing; and
(b) specifies
the day on or before which the question is to be answered (being at least 14
days after the day on which the requirement is imposed); and
(c) is
accompanied by a statement to the effect that a failure to comply with the
requirement is an offence.
(3) If—
(a) an
OHS inspector believes on reasonable grounds that a person is capable of
producing a document or article that is reasonably connected with the conduct
of an inspection; and
(b) the
person is—
(i) the
operator of a facility; or
(ii) the
person in charge of operations at a workplace in relation to a facility; or
(iii) a
member of the workforce at a facility; or
(iv) any
person representing a person referred to in subparagraph (i) or (ii),
the OHS inspector may, to the extent that it is reasonably
necessary to do so in connection with the conduct of the inspection, require
the person to produce the document or article.
(4) If, at the time when a requirement under
subclause (3) is imposed on a person, the person is not physically present on
regulated business premises, the person is not obliged to comply with the
requirement unless the requirement—
(a) is
in writing; and
(b) specifies
the day on or before which the document or article is to be produced (being at
least 14 days after the day on which the requirement is imposed); and
(c) is
accompanied by a statement to the effect that a failure to comply with the
requirement is an offence.
(5) A person must not—
(a) fail,
without reasonable excuse, to comply with a requirement under this clause; or
(b) in purported compliance with a requirement
under this clause, give information that is false or misleading in a material
particular.
Maximum penalty:
(a) $3
300 or imprisonment for 6 months or both, in the case of a natural person;
(b) $16
500, in the case of a body corporate.
56—Privilege
against self-incrimination
(1) A
person is not excused from answering a question or producing a document or
article when required to do so under clause 55 on the ground that the answer to
the question, or the production of the document or article, may tend to
incriminate the person or make the person liable to a penalty.
(2) However—
(a) the
answer given or document or article produced; or
(b) answering
the question or producing the document or article; or
(c) any
information, document or thing obtained as a direct or indirect consequence of
the answering of the question or the production of the document or article,
is not admissible in evidence against the person—
(d) in
any civil proceedings; or
(e) in
any criminal proceedings other than proceedings for an offence against clause
55.
57—Power to
take possession of plant, take samples of substances etc
(1) In conducting an inspection, an OHS
inspector may, to the extent that it is reasonably necessary for the purposes
of inspecting, examining, taking measurements of or conducting tests
concerning, any plant, substance or thing at a facility in connection with the
inspection—
(a) take
possession of the plant, substance or thing and remove it from the facility; or
(b) take
a sample of the substance or thing and remove that sample from the facility.
(2) On taking possession of plant, a substance
or a thing, or taking a sample of a substance or thing, the OHS inspector must,
by notice in writing, inform—
(a) the
operator of the facility; and
(b) if
the plant, substance or thing is used for the performance of work by an
employer of a member or members of the workforce at the facility other than the
operator of the facility—that employer; and
(c) if
the plant, substance or thing is owned by a person other than a person
mentioned in paragraph (a) or (b)—that person; and
(d) if
there is a health and safety representative for a designated work group that
includes a member of the workforce who is affected by the matter to which the
inspection relates—that representative,
of the taking of possession or the taking of the sample, as the
case may be, and the reasons for it.
(3) If
the OHS inspector gives the notice to the operator of the facility to which the
inspection relates, the operator's representative at the facility must cause
the notice to be displayed in a prominent place at the workplace from which the
plant, substance or thing was removed.
(4) If the OHS inspector takes possession of
plant, a substance or a thing at a workplace for the purpose of inspecting,
examining, taking measurements of or conducting tests concerning, the plant,
substance or thing, the OHS inspector must—
(a) ensure
that the inspection, examination, measuring or testing is conducted as soon as
practicable; and
(b) return
it to the workplace as soon as practicable afterwards.
(5) As
soon as practicable after completing any such inspection, examination,
measurement or testing, the investigator must give a written statement setting
out the results to each person whom the investigator is required to notify
under subclause (2).
58—Power to
direct that workplace etc not be disturbed
(1) An OHS inspector may give a direction under
subclause (2) if, in conducting an inspection, the OHS inspector has reasonable
grounds to believe that it is reasonably 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 conducting of
tests concerning, a facility or any plant, substance or thing at the facility.
(2) If subclause (1) applies, the OHS inspector
may direct, by written notice given to the operator's representative at the
facility, that the operator must ensure that—
(a) a
particular workplace; or
(b) particular
plant, or a particular substance or thing,
not be disturbed for a period specified in the direction.
(3) The
period specified in the direction must be a period that the OHS inspector has
reasonable grounds to believe is necessary in order to remove the threat or to
allow the inspection, examination, measuring or testing to take place.
(4) The
direction may be renewed by another direction in the same terms.
(5) If an OHS inspector gives a notice to the
operator's representative under subclause (2), the operator's representative
must cause the notice to be displayed in a prominent place at the workplace—
(a) that
is to be left undisturbed; or
(b) where
the plant, substance or thing that is to be left undisturbed is located.
(6) As soon as practicable after giving the
direction, the OHS inspector must take reasonable steps to notify—
(a) if
the workplace, plant, substance or thing to which the direction relates is
owned by a person other than the operator of the facility—that person; and
(b) if
there is a health and safety representative for a designated work group that
includes a group member performing work—
(i) at
a workplace; or
(ii) involving
the plant, substance or thing,
to which the direction relates—that representative,
of the direction and the reasons for giving it.
(7) The operator of a facility to which a
direction concerning a workplace, plant, substance or a thing relates must
ensure that the direction is complied with.
Maximum penalty:
(a) $27
500, in the case of a natural person;
(b) $137
500, in the case of a body corporate.
(8) A
direction under subclause (2) must be accompanied by a statement setting out
the reasons for the direction.
59—Power to
issue prohibition notices
(1) If,
having conducted an inspection, an OHS inspector is satisfied on reasonable
grounds that it is reasonably necessary to issue a prohibition notice to the
operator of a facility in order to remove an immediate threat to the health or
safety of any person, the OHS inspector may issue a prohibition notice, in
writing, to the operator.
(2) The
notice must be issued to the operator by giving it to the operator's
representative at the facility.
(3) The notice must—
(a) specify
the activity in respect of which, in the OHS inspector's opinion, the threat to
health or safety has arisen, and set out the reasons for that opinion; and
(b) either—
(i) direct
the operator to ensure that the activity is not engaged in; or
(ii) direct
the operator to ensure that the activity is not engaged in in a specified
manner.
(4) A specified manner may relate to any one or
more of the following:
(a) any
workplace, or part of a workplace, at which the activity is not to be engaged
in;
(b) any
plant or substance that is not to be used in connection with the activity;
(c) any
procedure that is not to be followed in connection with the activity.
(5) The
notice may specify action that may be taken to satisfy an OHS inspector that
adequate action has been taken to remove the threat to health and safety.
(6) The operator's representative at the
facility must—
(a) give
a copy of the notice to each health and safety representative (if any) for any
designated work group having group members performing work that is affected by
the notice; and
(b) cause
a copy of the notice to be displayed at a prominent place at or near each
workplace at which that work is performed.
(7) If
the notice relates to any workplace, plant, substance or thing that is owned by
a person other than the operator, the OHS inspector must, upon issuing the notice,
give a copy of the notice to that person.
60—Compliance
with prohibition notice
(1) An operator must ensure that a prohibition
notice issued to the operator is complied with.
Maximum penalty:
(a) $27
500, in the case of a natural person;
(b) $137
500, in the case of a body corporate.
(2) If
an OHS inspector is satisfied that action taken by the operator to remove the
threat to health and safety in respect of which the notice was issued is not
adequate, the OHS inspector must inform the operator accordingly.
(3) A
prohibition notice ceases to have effect when an OHS inspector notifies the
operator that the OHS inspector is satisfied that the operator has taken
adequate action to remove the threat to health or safety.
(4) In
making a decision under subclause (2), an OHS inspector may exercise any of the
powers of an OHS inspector conducting an inspection that the OHS inspector
considers necessary for the purposes of making the decision.
61—Power to
issue improvement notices
(1) If, in conducting an inspection, an OHS
inspector believes on reasonable grounds that a person—
(a) is
contravening a provision of a listed OHS law; or
(b) has
contravened a provision of a listed OHS law and is likely to contravene that
provision again,
the OHS inspector may issue an improvement notice, in writing, to
the person (the responsible person).
(2) If
the responsible person is the operator, the improvement notice may be issued to
the operator by giving it to the operator's representative at the facility.
(3) If the responsible person is an employer
(other than the operator) of members of the workforce, but it is not
practicable to give the notice to that employer—
(a) the
improvement notice may be issued to the employer by giving it to the operator's
representative at the facility; and
(b) if
the notice is so issued—the operator must ensure that a copy of the notice is
given to the employer as soon as practicable afterwards.
(4) The notice—
(a) must
specify the contravention that the OHS inspector believes is occurring or is
likely to occur, and set out the reasons for that belief; and
(b) must
specify a reasonable period within which the responsible person is to take the
action necessary to prevent any further contravention or to prevent the likely
contravention, as the case may be; and
(c) may
specify action that the responsible person is to take during the period
specified in the notice.
(5) If
the OHS inspector believes on reasonable grounds that it is appropriate to do
so, the OHS inspector may, in writing and before the end of the period, extend
the period specified in the notice.
(6) If
an improvement notice is issued to an employer (other than the operator) of
members of the workforce in circumstances other than the circumstance referred
to in subclause (3), the employer must immediately ensure that a copy of the
notice is given to the operator's representative at the facility.
(7) If a notice is issued to the operator or to
an employer (other than the operator) of members of the workforce, the
operator's representative at the facility must—
(a) give
a copy of the notice to each health and safety representative for a designated
work group having group members performing work that is affected by the notice;
and
(b) cause
a copy of the notice to be displayed in a prominent place at or near each
workplace at which the work is being performed.
(8) On issuing a notice, the OHS inspector must
give a copy of the notice to—
(a) if
the notice is—
(i) given
to a member of the workforce who is an employee; and
(ii) in
connection with work performed by the employee,
the employer of that employee; and
(b) if
the notice relates to any workplace, plant, substance or thing that is owned by
a person other than—
(i) a
responsible person; or
(ii) a
person who is an employer referred to in paragraph (a),
that owner; and
(c) if
the notice is issued to a person who owns any workplace, plant, substance or
thing, because of which a contravention of a listed OHS law has occurred or is
likely to occur—
(i) the
operator of the facility; and
(ii) if
the employer of employees who work in that workplace or who use that plant,
substance or thing is a person other than the operator—that employer.
62—Compliance
with improvement notice
A person to whom an improvement notice is
issued must comply with it to the extent that the notice relates to any matter
over which the person has control.
Maximum penalty:
(a) $11
000, in the case of a natural person;
(b) $55
000, in the case of a body corporate.
63—Notices
not to be tampered with or removed
(1) A person must not, without reasonable
excuse, tamper with any notice that has been displayed under clause 57(3),
58(5), 59(6) or 61(7) while that notice is so displayed.
Maximum penalty:
(a) $11
000, in the case of a natural person;
(b) $55
000, in the case of a body corporate.
(2) If a notice has been displayed under clause
57(3), a person must not, without reasonable excuse, remove the notice until
the plant or thing to which the notice relates is returned to the workplace
from which it was removed.
Maximum penalty:
(a) $11
000, in the case of a natural person;
(b) $55
000, in the case of a body corporate.
(3) If a notice has been displayed under clause
58(5), 59(6) or 61(7), a person must not, without reasonable excuse, remove the
notice before it has ceased to have effect.
Maximum penalty:
(a) $11
000, in the case of a natural person;
(b) $55
000, in the case of a body corporate.
Division 4—Reports
on inspections
64—Reports
on inspections
(1) If
an OHS inspector has conducted an inspection, the OHS inspector must, as soon
as practicable, prepare a written report relating to the inspection and give
the report to the Safety Authority.
(2) The report must include—
(a) the
OHS inspector's conclusions from conducting the inspection and the reasons for
those conclusions; and
(b) any
recommendations that the OHS inspector wishes to make arising from the
inspection; and
(c) any
other prescribed matters.
(3) As soon as practicable after receiving the
report, the Safety Authority must give a copy of the report, together with any
written comments that it wishes to make—
(a) to
the operator of the facility to which the report relates; and
(b) if
the report relates to activities performed by an employee of another person—that
other person; and
(c) if
the report relates to any plant, substance or thing owned by another person—that
other person.
(4) The Safety Authority may, in writing,
request the operator or any other person to whom the report is given to provide
to the Safety Authority, within a reasonable period specified in the request,
details of—
(a) any
action proposed to be taken as a result of the conclusions or recommendations
contained in the report; and
(b) if
a notice has been issued under clause 59 or 61 in relation to work being
performed for the operator or that other person—any action taken, or proposed
to be taken, in respect of that notice,
and the operator or that other person must comply with the
request.
(5) As soon as practicable after receiving a
report, the operator of a facility must give a copy of the report, together
with any written comment made by the Safety Authority on the report—
(a) if
there is a least one health and safety committee in respect of some or all of
the members of the workforce—to each such committee; and
(b) if
there is no such committee in respect of some or all of the members of the
workforce, but some or all of those members (in respect of which there is no
such committee) are in at least one designated work group for which there is a
health and safety representative—to each such health and safety representative.
Division 5—Appeals
65—Appeals
(1) If an OHS inspector, in conducting an
inspection or having conducted an inspection—
(a) decides,
under clause 38, to confirm or vary a provisional improvement notice; or
(b) decides,
under clause 57, to take possession of plant, a substance or a thing at a
workplace; or
(c) decides,
under clause 58, to direct that a workplace, a part of a workplace, plant, a
substance or a thing not be disturbed; or
(d) decides,
under clause 59, to issue a prohibition notice; or
(e) decides,
under clause 60, that the operator of a facility to whom a prohibition notice
has been issued has not taken adequate action to remove the threat to health
and safety that caused the notice to be issued; or
(f) decides,
under clause 61, to issue an improvement notice,
a person referred to in subclause (2) may appeal to the reviewing
authority against the decision, by giving notice in writing to the reviewing
authority.
(2) The following persons may appeal, as
applicable:
(a) the
operator of the facility or any employer (other than the operator) who is
affected by the decision; or
(b) a
person to whom a notice has been issued under clause 37(2) or 61(1); or
(c) the
health and safety representative for a designated work group having a group
member affected by the decision; or
(d) a
workforce representative in relation to the designated work group that includes
a group member who is affected by the decision and who has requested the
workforce representative to make the appeal; or
(e) if
there is no such designated work group, and a member of the workforce affected
by the decision has requested a workforce representative in relation to the
member to make the appeal—that workforce representative; or
(f) a
person who owns any workplace, plant, substance or thing to which the decision
referred to in subclause (1)(a), (b), (c) or (f) relates.
(3) If an OHS inspector, having conducted an
inspection—
(a) decides
under clause 38 to cancel a provisional improvement notice; or
(b) decides
under clause 60 that the operator of a facility to whom a prohibition notice
has been issued has taken adequate action to remove the threat to health and
safety that caused the notice to be issued,
an appeal against a decision may be made, by notice in writing, to
the reviewing authority by—
(c) the
health and safety representative for a designated work group having a group
member affected by the decision; or
(d) a
workforce representative in relation to the designated work group that includes
a group member who is affected by the decision and who has requested the
workforce representative to make the appeal; or
(e) if
there is no such designated work group, and a member of the workforce affected
by the decision has requested a workforce representative in relation to the
member to make the appeal—that workforce representative.
(4) Subject
to this clause, giving notice of an appeal does not affect the operation of the
decision appealed against or prevent the taking of action to implement that
decision, except to the extent that the reviewing authority makes an order to
the contrary.
(5) If
the decision appealed against is a decision under clause 61 to issue an
improvement notice, the operation of the decision is suspended pending
determination of the appeal, except to the extent that the reviewing authority
makes an order to the contrary.
(6) If
the decision appealed against is a decision of an OHS inspector under clause 38
to confirm or vary a provisional improvement notice whose operation has been
suspended pending the inspection of the matter to which the notice relates, the
operation of the notice is further suspended pending determination of the
appeal, except to the extent that the reviewing authority makes an order to the
contrary.
66—Powers of
reviewing authority on appeal
(1) On an appeal, the reviewing authority may—
(a) affirm
or revoke the decision appealed against; and
(b) if
it revokes the decision—substitute any other decision of the kind appealed
against that it thinks appropriate.
(2) If the decision is—
(a) varied;
or
(b) revoked;
or
(c) revoked
with the substitution of another decision,
the decision is taken to have effect, and always to have had
effect, accordingly.
(3) If—
(a) the
decision appealed against is a decision under clause 57 to take possession of
plant, a substance or a thing at a workplace; and
(b) the
decision is not affirmed,
the OHS inspector who made the decision must ensure that, to the
extent that the decision is not affirmed, the plant, substance or thing is
returned to the workplace as soon as practicable.
Part 5—General
67—Notifying
and reporting accidents and dangerous occurrences
(1) If, at or near a facility, there is—
(a) an
accident that causes the death of, or serious personal injury to, any person;
or
(b) an
accident that causes a member of the workforce to be incapacitated from
performing work for a period prescribed for the purposes of this paragraph; or
(c) a
dangerous occurrence,
the operator must, in accordance with the regulations, give the
Safety Authority notice of, and a report about, the accident or dangerous
occurrence.
(2) Regulations made for the purposes of
subclause (1) (other than regulations made for the purpose of subclause (1)(b))
may prescribe—
(a) the
time within which, and the manner in which, notice of an accident or dangerous
occurrence is to be given, and the form of the notice; and
(b) the
time within which, and the manner in which, a report of an accident or
dangerous occurrence is to be given, and the form of the report.
(3) Subclause
(2) does not limit regulations that may be made for the purposes of subclause
(1).
68—Records
of accidents and dangerous occurrences to be kept
(1) The
operator of a facility must maintain, in accordance with the regulations, a
record of each accident or dangerous occurrence in respect of which the
operator is required by clause 67 to notify the Safety Authority.
(2) Regulations made for the purposes of
subclause (1) may prescribe—
(a) the
nature of the contents of a record maintained under this clause; and
(b) the
period for which the record must be retained.
(3) Subclause
(2) does not limit regulations that may be made for the purposes of subclause
(1).
69—Codes of
practice
(1) The
regulations may prescribe codes of practice for the purpose of providing
practical guidance to operators of facilities and employers (other than
operators) of members of the workforce at facilities.
(2) A
person is not liable to any civil or criminal proceedings for contravening a
code of practice.
70—Use of
codes of practice in proceedings
(1) This
clause applies if, in any proceedings for an offence against a listed OHS law,
it is alleged that a person contravened a provision of a listed OHS law in
relation to which a code of practice was in effect at the time of the alleged
contravention.
(2) The
code of practice is admissible in evidence in those proceedings.
(3) If the court is satisfied, in relation to
any matter which it is necessary for the prosecution to prove in order to
establish the alleged contravention, that—
(a) any
provision of the code of practice is relevant to that matter; and
(b) the
person failed at any material time to comply with that provision of the code of
practice,
that matter is treated as proved unless the court is satisfied
that in respect of that matter the person complied with that provision of a
listed OHS law otherwise than by complying with the code of practice.
71—Interference
etc with equipment etc
A person must not, without reasonable
excuse, do anything that results in the interference with, or the rendering
ineffective of, any protective equipment or safety device provided for the
occupational health, safety or welfare of members of the workforce at a
facility if the person knew (or ought reasonably to have known) that the
equipment or device was protective equipment or a safety device.
Maximum penalty:
(a) $3 300
or imprisonment for 6 months or both, in the case of a natural person;
(b) $16
500, in the case of a body corporate.
72—Members
of workforce not to be levied
The operator of a facility or an employer
(other than the operator) of members of the workforce at a facility must not
levy, or permit to be levied, on a member of the workforce any charge in
respect of anything done or provided in accordance with a listed OHS law in
order to ensure the occupational health, safety or welfare of persons at or
near the facility.
Maximum penalty:
(a) $27
500, in the case of a natural person;
(b) $137
500, in the case of a body corporate.
73—Victimisation
(1) An employer (whether the operator or
another person) must not—
(a) dismiss
an employee; or
(b) perform
an act that results in injury to an employee in his or her employment; or
(c) perform
an act that prejudicially alters the employee's position (whether by deducting
or withholding remuneration or by any other means); or
(d) threaten
to do any of those things,
because the employee—
(e) has
complained or proposes to complain about a matter concerning the health, safety
or welfare of employees at work; or
(f) has
assisted or proposes to assist, by giving information or otherwise, the conduct
of an inspection; or
(g) has
ceased, or proposes to cease, to perform work, in accordance with a direction
by a health and safety representative under clause 43(1)(b) or (3)(c), and the
cessation or proposed cessation does not continue after—
(i) the
health and safety representative has agreed with a person supervising the work
that the cessation or proposed cessation was not, or is no longer, necessary;
or
(ii) an OHS inspector has, under clause 43(5),
made a decision that has the effect that the employee should perform the work.
Maximum penalty:
(a) $27
500, in the case of a natural person;
(b) $137
500, in the case of a body corporate.
(2) In
proceedings for an offence against subclause (1), if all the relevant facts and
circumstances, other than the reason for an action alleged in the charge, are
proved, the defendant has the onus of establishing that the action was not
taken for that reason.
74—Institution
of prosecutions
(1) Proceedings
for an offence against a listed OHS law may be instituted by the Safety
Authority or by an OHS inspector.
(2) A health and safety representative for a
designated work group may request the Safety Authority to institute proceedings
for an offence against a listed OHS law in relation to the occurrence of an act
or omission if—
(a) a
period of 6 months has elapsed since the act or omission occurred; and
(b) the
health and safety representative considers that the occurrence of the act or
omission constitutes an offence against a listed OHS law; and
(c) proceedings
in respect of the offence have not been instituted.
(3) A workforce representative in relation to a
designated work group may request the Safety Authority to institute proceedings
for an offence against a listed OHS law in relation to the occurrence of an act
or omission if—
(a) a
period of 6 months has elapsed since the act or omission occurred; and
(b) the
workforce representative considers that the occurrence of the act or omission
constitutes an offence against a listed OHS law; and
(c) proceedings
in respect of the offence have not been instituted; and
(d) a
group member included in the group requests the workforce representative to
request the Safety Authority to institute the proceedings.
(4) A
request under subclause (2) or (3) must be in writing.
(5) The
Safety Authority must, within 3 months after receiving the request, advise the
health and safety representative or the workforce representative, as the case
may be, whether proceedings under subclause (1) have been or will be
instituted, and, if not, give reasons why not.
75—Role of
Commonwealth DPP
The Commonwealth Director of Public Prosecutions has the same
functions and powers in respect of an offence against a listed OHS law as he or
she would have if that offence were an offence against a law of the
Commonwealth, including the power to institute and carry on an appeal arising
out of a prosecution for that offence.
76—Conduct
of directors, employees and agents
(1) This
clause has effect for the purposes of a proceeding for an offence against a
listed OHS law.
(2) If it is necessary to establish the state
of mind of a body corporate in relation to particular conduct, it is sufficient
to show—
(a) that
the conduct was engaged in by a director, employee or agent of the body
corporate within the scope of actual or apparent authority; and
(b) that
the director, employee or agent had the state of mind.
(3) Any
conduct engaged in on behalf of a body corporate by a director, employee or
agent of the body corporate within the scope of actual or apparent authority is
taken to have been engaged in also by the body corporate unless it establishes
that it took reasonable precautions and exercised due diligence to avoid the
conduct.
(4) If it is necessary to establish the state
of mind of a natural person in relation to particular conduct, it is sufficient
to show—
(a) that
the conduct was engaged in by an employee or agent of the natural person within
the scope of actual or apparent authority; and
(b) that
the employee or agent had the state of mind.
(5) Any
conduct engaged in on behalf of a natural person by an employee or agent of the
natural person within the scope of actual or apparent authority is taken to
have been engaged in also by the natural person unless the natural person
establishes that he or she took reasonable precautions and exercised due
diligence to avoid the conduct.
(6) If—
(a) a
natural person is found guilty of an offence; and
(b) he
or she would not have been found guilty of the offence if subclauses (4) and
(5) had not been enacted,
he or she is not liable to be punished by imprisonment for that
offence.
(7) A reference in subclause (2) or (4) to the
state of mind of a person includes a reference to—
(a) the
person's knowledge, intention, opinion, belief or purpose; and
(b) the
person's reasons for the intention, opinion, belief or purpose.
77—Act not
to give rise to other liabilities etc
This Schedule does not—
(a) confer
a right of action in any civil proceeding in respect of any contravention of a
provision of a listed OHS law; or
(b) confer
a defence to an action in any civil proceeding or otherwise affect a right of
action in any civil proceeding.
78—Circumstances
preventing compliance may be defence to prosecution
It is a defence to a prosecution for refusing or failing to do
anything required by a listed OHS law if the defendant proves that it was not
practicable to do it because of an emergency prevailing at the relevant time.
79—Regulations—general
(1) The regulations may prescribe—
(a) procedures
for the selection of persons, under clause 40, as members of health and safety
committees, to represent the interests of members of the workforce at a
facility; and
(b) procedures
to be followed at meetings of health and safety committees; and
(c) the
manner in which notices are to be served under this Schedule or the
regulations; and
(d) forms
for the purposes of this Schedule or the regulations.
(2) If the Minister is satisfied that—
(a) a
power, function or duty is conferred or imposed on a person under a law of this
State or the Commonwealth; and
(b) the
proper exercise of the power or performance of the function or duty is or would
be prevented by this Schedule or a provision of this Schedule,
regulations made for the purposes of this subclause may declare
that this Schedule, or the provision, as the case may be, does not apply to
that person, or does not apply to that person in the circumstances specified in
the regulations.
(3) In subclause (2)—
this Schedule includes regulations made for the purposes of this Schedule.
Schedule 1—Related amendments and transitional provision
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment
of Off-shore Waters (Application of Laws) Act 1976
2—Amendment of section 3—Application of law of State to off-shore waters
Section 3(1)—delete "section 13 of
the Petroleum (Submerged Lands) Act 1982, and to regulations made
under that section" and substitute:
Part 2 of the Petroleum (Submerged Lands) Act 1982,
and to regulations made under that Act
Section 4(1)—delete "section 13 of
the Petroleum (Submerged Lands) Act 1982, and to regulations made
under that section" and substitute:
Part 2 of the Petroleum (Submerged Lands) Act 1982,
and to regulations made under that Act
Part 3—Transitional
provision
If, before the commencement of this clause—
(a) a
lessee had already complied with a notice of the kind referred to in
section 37H(3)(b) of the Petroleum (Submerged Lands) Act 1982
during the term of the lessee; and
(b) the
Minister had given to the lessee during that term a further notice of that
kind; and
(c) the
lessee had not complied with the further notice,
the Petroleum (Submerged Lands) Act 1982 has effect after the commencement of this clause, as if the Minister had not given the further notice.