An Act to promote the occupational health and safety of persons
employed by the Commonwealth, Commonwealth authorities and certain licensed
corporations, and for related purposes
Part 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Occupational
Health and Safety Act 1991.
2
Commencement [see Note 1]
(1) Sections 1 and 2 commence on the day
on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the
remaining provisions of this Act commence on a day or days to be fixed by
Proclamation.
(3) If a provision referred to in subsection (2)
does not commence within the period of 6 months commencing on the day on which
this Act receives the Royal Assent, that provision commences on the first day
after the end of that period.
3
Objects
The objects of this Act are:
(a) to secure the health, safety and
welfare at work of employees of the Commonwealth, of Commonwealth authorities
and of non‑Commonwealth licensees; and
(b) to protect persons at or near
workplaces from risks to health and safety arising out of the activities of
such employees at work; and
(c) to ensure that expert advice is
available on occupational health and safety matters affecting employers,
employees and contractors; and
(d) to promote an occupational
environment for such employees at work that is adapted to their needs relating
to health and safety; and
(e) to foster a co‑operative
consultative relationship between employers and employees on the health, safety
and welfare of such employees at work; and
(f) to encourage and assist
employers, employees and other persons on whom obligations are imposed under
the Act to observe those obligations; and
(g) to provide for effective remedies
if obligations are not met, through the use of civil remedies and, in serious
cases, criminal sanctions.
4 Act
excludes some State and Territory laws
Exclusion of State and Territory laws
(1) Subject to subsection (2), this Act
is intended to apply to the exclusion of any law of a State or Territory (other
than a law prescribed under subsection (3)) to the extent that the law of
the State or Territory relates to occupational health or safety and would
otherwise apply in relation to employers, employees or the employment of
employees.
Note: For the meaning of employer and employee,
see section 5.
State or Territory laws not excluded from applying to
situations not covered by this Act
(2) If, because of section 14 or 15,
provisions of this Act do not apply in relation to a particular situation,
subsection (1) is not intended to affect the application of State or
Territory laws to that situation.
Allowing certain State or Territory laws to apply
(3) If a State or Territory law deals with a
matter relating to occupational health or safety that is not dealt with by or
under this Act, the regulations may prescribe the law as not being intended to
be excluded by this Act.
Interpretation
(4) In this section, a reference to laws of a
State or Territory includes a reference to such laws as they have effect as
applied provisions within the meaning of the Commonwealth Places
(Application of Laws) Act 1970.
(5) In this section:
law includes a provision of a law (including,
for example, a formula or a component of a formula).
5
Interpretation
(1) In this Act, unless the contrary
intention appears:
annual report, in relation to an Entity or a
Commonwealth authority, means its annual report (if any) to the responsible
Minister relating to its activities, operations, business or affairs.
annual report of Comcare means the annual
report on Comcare prepared under section 9 of the Commonwealth
Authorities and Companies Act 1997.
annual report of the Commission means the
annual report of the Commission under section 89S of the Safety,
Rehabilitation and Compensation Act 1988.
association means an association of employees,
a principal purpose of which is the protection and promotion of the employees’
interests in matters concerning their employment.
chief executive officer means:
(a) for a Commonwealth authority—the
person (by whatever name called) who is responsible for the administration of
the authority; or
(b) for a non‑Commonwealth
licensee—the person (by whatever name called) who is primarily and directly
responsible to the directors of the licensee for the general and overall
management of the licensee.
Comcare means the body corporate established
by section 68 of the Safety, Rehabilitation and Compensation Act 1988.
Commission means the Safety, Rehabilitation
and Compensation Commission established by section 89A of the Safety,
Rehabilitation and Compensation Act 1988.
Commonwealth authority means:
(a) a body corporate established for a
public purpose by or under a law of the Commonwealth or a law of a Territory
(other than the Australian Capital Territory, the Northern Territory or Norfolk
Island); or
(b) a body corporate:
(i) that is incorporated
under a law of the Commonwealth or a State or Territory; and
(ii) in which the
Commonwealth, or a body corporate referred to in paragraph (a), has a
controlling interest; and
(iii) that is not a body
corporate that the Minister, by notice published in the Gazette, has
declared not to be a Commonwealth authority for the purposes of this Act; or
(c) a body corporate:
(i) that is incorporated
under a law of the Commonwealth or a State or Territory; and
(ii) in which the
Commonwealth has a substantial interest; and
(iii) that is a body
corporate that the Minister, by notice published in the Gazette, has declared
to be a Commonwealth authority for the purposes of this Act; or
(d) a body corporate:
(i) that is not covered by
paragraph (a), (b) or (c); and
(ii) for which a licence
under Part VIII of the Safety, Rehabilitation and Compensation Act 1988
is in force (whether or not the licence is suspended); and
(iii) that was not an
eligible corporation for the purposes of that Part when the licence was granted.
Commonwealth authority contractor has the
meaning given by section 9A.
Commonwealth authority employee has the
meaning given by section 9.
Commonwealth contractor has the meaning given
by section 9A.
Commonwealth employee has the meaning given
by section 9.
Commonwealth premises means premises owned or
occupied by the Commonwealth or by a Commonwealth authority.
contract includes any arrangement or
understanding.
contractor has the meaning given by
section 9A.
Note: In section 14, the meaning of contractor
is affected by subsection 14(3).
controlling interest, in relation to a body
corporate, means:
(a) an interest in the body corporate
that enables the person holding the interest to:
(i) control the
composition of the board of directors of the body corporate; or
(ii) cast, or control the
casting of, more than one‑half of the maximum number of votes that might
be cast at a general meeting of the body corporate; or
(iii) control more than one‑half
of the issued share capital of the body corporate (excluding any part of that
issued share capital that carries no right to participate beyond a specified
amount in a distribution of either profits or capital); or
(b) an interest in another body
corporate that constitutes, under paragraph (a), a controlling interest in
that other body corporate, being:
(i) a body corporate that,
under paragraph (a), has a controlling interest in the first‑mentioned
body corporate; or
(ii) a body corporate that
has such a controlling interest by another application or other applications of
this paragraph.
dangerous occurrence means an occurrence, at
a workplace, that is declared by the regulations to be a dangerous occurrence
for the purpose of this definition.
designated work group means a group of
employees established as a designated work group in accordance with section 24,
or that designated work group as varied in accordance with that section, and,
in relation to an employer, means such a group that consists entirely of
employees of that employer.
employee has
the meaning given in section 9.
employee representative means:
(a) in relation to an employee of an
employer—a registered organisation of employees, or an association, of which
the employee is a member, being an employee who is qualified to be such a
member by virtue of the work the employee performs as an employee of the
employer; or
(b) in relation to a designated
work group—a registered organisation of employees, or an association, of which
an employee included in the group is a member, being an employee who is
qualified to be such a member by virtue of the work the employee performs as an
employee included in the group.
employer means:
(a) the Commonwealth; or
(b) a Commonwealth authority; or
(c) a non‑Commonwealth licensee.
employing authority means:
(a) in relation to a person who is a
Commonwealth employee or a Commonwealth contractor:
(i) the person or body
specified in the regulations to be the employing authority in relation to that
first‑mentioned person or in relation to a class of persons that includes
that first‑mentioned person; or
(ii) if the regulations do
not so specify a person or body—the principal officer
of the Entity for which the first‑mentioned person is performing
work; or
(b) in relation to a workplace at
which, or any plant, substance or thing with which, a person of the kind first‑mentioned
in paragraph (a) is performing work for the Commonwealth—the person or
body who is, under paragraph (a), the employing authority in relation to
that first‑mentioned person.
Entity means:
(a) an Agency, within the meaning of
the Public Service Act 1999, that is not a Commonwealth authority; or
(b) a Parliamentary Department within
the meaning of the Parliamentary Service Act 1999; or
(c) a person, body, organisation or
group of persons prescribed for this paragraph.
Government business enterprise means:
(a) a Commonwealth authority to which paragraph (a)
or (d) of the definition of Commonwealth authority applies:
(i) that is specified in
Schedule 1; or
(ii) that the Minister, by
instrument published in the Gazette, has declared to be a Government
business enterprise for the purposes of this Act; or
(b) a Commonwealth authority to which paragraph (b)
or (c) of that definition applies.
health and safety management arrangements
means the health and safety management arrangements referred to in paragraph
16(2)(d).
improvement notice means an improvement
notice issued under subsection 47(1).
investigation means an investigation
conducted under Part 4.
investigator means a person appointed under
section 40 to be an investigator.
involved: a person is involved in a breach of
a provision if, and only if, the person has:
(a) aided, abetted, counselled or
procured the breach; or
(b) has induced, whether by threats or
promises or otherwise, the breach; or
(c) has been in any way, by act or
omission, directly or indirectly, knowingly concerned in or party to the
breach; or
(d) has conspired with others to
effect the breach.
member, in relation to the Commission, has
the additional meaning given in subsection (3A).
non‑Commonwealth
licensee means a body corporate:
(a) for which a licence under
Part VIII of the Safety, Rehabilitation and Compensation Act 1988 is
in force (whether or not the licence is suspended); and
(b) that was an eligible corporation
for the purposes of that Part when the licence was granted; and
(c) that is not a Commonwealth
authority for the purposes of this Act.
non‑Commonwealth licensee contractor has
the meaning given by section 9A.
non‑Commonwealth licensee employee has
the meaning given by section 9.
non‑Commonwealth licensee premises, in
relation to a particular non‑Commonwealth licensee, means premises owned
or occupied by the non‑Commonwealth licensee.
own, in relation to a workplace, plant, a
substance or a thing, includes own jointly, or own in part, the workplace,
plant, substance or thing.
plant includes any machinery, equipment or
tool, and any component thereof.
premises includes any place (whether enclosed
or built on or not), including a place situated under ground or under water,
and, in particular, includes:
(a) a building, aircraft, vehicle or
vessel; and
(b) any structure, whether a fixed
structure, or a moveable structure such as a tent, and whether on land, on the
bed of any waters or floating on any waters; and
(c) a part of premises (including a
part of premises of a kind referred to in paragraph (a) or (b).
principal officer,
in relation to a Commonwealth authority, means:
(a) the person who constitutes, or is
acting as the person who constitutes, the authority or, if the authority is
constituted by 2 or more persons, the person who is entitled to preside at any
meeting of the authority at which he or she is present; or
(b) if the affairs of the authority
are administered or managed by a board or other group of persons—the person who
is entitled to preside at any meeting of that board or other group at which he
or she is present.
principal officer, in relation to an Entity,
means:
(a) if the Entity is an Agency that is
not a Commonwealth authority—the Agency Head within the meaning of the Public
Service Act 1999; or
(b) if the Entity is a Parliamentary
Department—the Secretary of the Parliamentary Department within the meaning of
the Parliamentary Service Act 1999; or
(c) if the Entity is a person, body,
organisation or group of persons prescribed for paragraph (c) of the
definition of Entity—the person prescribed as the principal
officer.
prohibition notice means a prohibition notice
issued under subsection 46(1).
registered organisation means:
(a) an organisation within the meaning
of Schedule 1B to the Workplace Relations Act 1996; or
(b) a body that is declared by the
regulations to be a registered organisation for the purposes of this Act.
reviewing authority means the Australian
Industrial Relations Commission established under section 8 of the Workplace
Relations Act 1996.
substantial interest, in relation to a body
corporate, means an interest (other than a controlling interest) in the body
corporate that enables the person holding the interest to cast, or control the
casting of, a number of votes at a general meeting of the body corporate that
is equal to or greater than the number of votes which may be cast, or whose
casting may be controlled, by any other single person.
workplace means:
(a) any Commonwealth premises in which
Commonwealth employees or Commonwealth contractors work; or
(b) any Commonwealth premises in which
Commonwealth authority employees or Commonwealth authority contractors work; or
(c) any non‑Commonwealth
licensee premises of a non‑Commonwealth licensee in which non‑Commonwealth
licensee employees, or non‑Commonwealth licensee contractors, of the
licensee work.
However, workplace does not include any part
of premises that is primarily used as a private dwelling.
(2) A reference in a particular provision of
this Act to the responsible Minister in relation to an employer, other than a
Commonwealth authority covered by paragraph (c) or (d) of the definition
of Commonwealth authority in subsection 5(1) or a non‑Commonwealth
licensee, is a reference:
(a) where the employer is the
Commonwealth and, in the circumstances set out in that provision, is acting
through a particular Entity—to the Minister
responsible for that Entity; and
(b) where the employer is a
Commonwealth authority referred to in paragraph (a) of the definition of Commonwealth
authority—to the Minister who is responsible for the administration of
the Act or other law under which the Commonwealth authority is established; and
(c) where the employer is a
Commonwealth authority referred to in paragraph (b) of the definition of
Commonwealth authority—to the Minister who is responsible for the
administration of the Entity dealing with
matters that include the matters for the performance of which the Commonwealth
authority was principally incorporated.
(3) For the purposes of this Act, an employee
is to be taken to be at work at all times when the employee is performing work
in connection with an undertaking carried on by an employer, whether or not the
work is carried out at a workplace.
(3A) A reference in this Act to a member of the
Commission includes a reference to the Chief Executive Officer appointed under
section 74 of the Safety, Rehabilitation and Compensation Act 1988.
(4) A reference in this Act to an employee of
an employer at a particular workplace is a reference to an employee who works
at that workplace in the capacity of an employee of that employer.
(5) A reference in this Act to an accident
includes a reference to the contracting of a disease.
(6) A reference in this Act to a breach of
this Act or to a breach of the regulations includes, where the breach
constitutes an offence, a reference to:
(a) an offence against section 11.1,
11.4 or 11.5 of the Criminal Code that relates to the breach; or
(b) an offence against section 6
of the Crimes Act 1914 that relates to the breach.
(7) Where this Act refers to a Minister,
specifying the Minister merely by reference to the Minister administering an
Act, the reference to the Minister is to be taken to be a reference to:
(a) if, for the time being, different
Ministers administer the Act in respect of different matters:
(i) if 2 or more Ministers
administer the Act in respect of the relevant matter—any one of those Ministers;
or
(ii) if only one Minister
administers the Act in respect of the relevant matter—that Minister; or
(b) if paragraph (a) does not
apply and, for the time being, 2 or more Ministers administer the Act—any one
of those Ministers; or
(c) if paragraphs (a) and (b) do
not apply—the Minister for the time being administering the Act.
(8) An instrument referred to in the
definition of Government business enterprise in subsection (1)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
6 Act
not to prejudice national security
(1) Nothing in this Act requires or permits a
person to take any action, or to refrain from taking any action, that would be,
or could reasonably be expected to be, prejudicial to Australia’s national
security.
(2) Without limiting, by implication, the
generality of subsection (1), the Director‑General of Security may,
after consulting with the Minister, by notice in writing, declare that
specified provisions of this Act do not apply, or apply subject to such
modifications and adaptations as are set out in the declaration, in relation
to:
(a) premises or a workplace under the
control of the Director‑General; or
(b) a
person who is employed under section 84 of the Australian Security
Intelligence Organisation Act 1979; or
(c) the
performance of work by such a person for the purpose of carrying out a function
set out in section 17 of that Act;
and such a declaration has effect accordingly.
(3) In administering the Australian Security
Intelligence Organisation and in the exercise of the power under subsection (2),
the Director‑General of Security must take into account the need to
promote the objects of this Act to the greatest extent consistent with the
maintenance of Australia’s national security.
(4) A notice in writing under subsection (2)
is a disallowable instrument for the purpose of section 46A of the Acts
Interpretation Act 1901.
7 Act
not to prejudice Australia’s defence
(1) Nothing in this Act requires or permits a
person to take any action, or to refrain from taking any action, that would be,
or could reasonably be expected to be, prejudicial to Australia’s defence.
(2) Without limiting, by implication, the
generality of subsection (1), the Chief of the Defence Force may, after consulting
with the Minister, by notice in writing, declare that specified provisions of
this Act do not apply, or apply subject to such modifications and adaptations
as are set out in the declaration, in relation to a specified member of the
Defence Force, or members of the Defence Force included in a specified class of
such members, and such a declaration has effect accordingly.
(3) In the exercise of the power under subsection (2),
the Chief of the Defence Force must take into account the need to promote the
objects of this Act to the greatest extent consistent with the maintenance of Australia’s
defence.
(4) A notice in writing under subsection (2)
is a disallowable instrument for the purpose of section 46A of the Acts
Interpretation Act 1901.
8 Act
not to prejudice certain police operations
(1) Nothing in
this Act requires or permits a person to take any action, or to refrain from
taking any action, that would be, or could reasonably be expected to be,
prejudicial to an existing or future covert operation or dangerous operation of
the Australian Federal Police.
(2) In this section:
AFP employee has the same meaning as in the Australian
Federal Police Act 1979.
covert operation means the performance of a
function or service under section 8 of the Australian Federal Police
Act 1979 where knowledge of the operation by an unauthorised person, may:
(a) reduce the effectiveness of the
performance of the function or service; or
(b) expose a person to the danger of
physical harm or death arising from the actions of another person.
dangerous operation means the performance of
a function or service under section 8 of the Australian Federal Police
Act 1979 in circumstances where exposure of the Commissioner of the
Australian Federal Police, a Deputy Commissioner of the Australian Federal
Police, or an AFP employee to the danger of serious physical harm or death,
other than a danger arising from a cause within the control of the Australian
Federal Police, is reasonably necessary for the effective performance of the
function or the provision of the service.
unauthorised person in relation to a covert
operation, means a person, including an AFP employee, who is not involved in
the approval, planning or execution of the operation.
9 Meaning
of employee etc.
Employee
(1) An employee is:
(a) a Commonwealth employee (see
subsection (1A)); or
(b) a Commonwealth authority employee
(see subsection (2A)); or
(c) a non‑Commonwealth licensee
employee (see subsection (3A)).
Commonwealth employee
(1A) A Commonwealth employee is a
person who is employed by the Commonwealth, whether the person is so employed
under a law of the Commonwealth or of a Territory or under a contract of
service or apprenticeship.
(2) Without limiting the generality of subsection (1A):
(a) the Commissioner of the Australian
Federal Police, a Deputy Commissioner of the Australian Federal Police or an
AFP employee (all within the meaning of the Australian Federal Police Act
1979); or
(b) a member of the Defence Force; or
(c) a person (other than a person to
whom subsection (3) applies) who is the holder of or is acting in:
(i) an office established
by a law of the Commonwealth, other than an office that is declared by the
Minister, by notice in writing, to be an office in relation to which this Act does
not apply; or
(ii) an
office that is established by a law of a Territory (other than the Australian
Capital Territory, the Northern Territory or Norfolk Island) and is declared
by the Minister, by notice in writing, to be an office in relation to which
this Act applies;
is, for the purposes of this Act, to be taken to be
employed by the Commonwealth, and the person’s employment is, for those
purposes, to be taken to be constituted by the person’s performance of duties
as the Commissioner of the Australian Federal Police, a Deputy Commissioner of
the Australian Federal Police or an AFP employee, by the person’s performance
of duties as such a member of the Defence Force or by the person’s performance
of the duties of that office, as the case may be.
Commonwealth authority employee
(2A) A Commonwealth authority employee of
a particular Commonwealth authority is a person who is employed by the
authority, whether the person is so employed under a law of the Commonwealth or
of a Territory or under a contract of service or apprenticeship.
(3) Without limiting the generality of
subsection (2A), a person who:
(a) constitutes, or is acting as the
person constituting, a Commonwealth authority; or
(b) is, or is acting as, a member of
such an authority; or
(c) is, or is acting as, a member of a
body established, by or under the Act establishing such an authority, for a
purpose associated with the performance of the functions of the authority; or
(d) is
a deputy of a member referred to in paragraph (b) or (c);
is, for the purposes of this Act, to be taken to be
employed by that authority, and the person’s employment is, for those purposes,
to be taken to be constituted by the performance of:
(e) the duties of the authority; or
(f) the person’s duties as such a member
or acting member; or
(g) the
person’s duties as such a deputy;
as the case may be.
Non‑Commonwealth licensee employee
(3A) Subject to subsection (3B), a non‑Commonwealth
licensee employee of a particular non‑Commonwealth licensee is a
person who is employed by the licensee, whether the person is so employed under
a law of the Commonwealth or of a State or Territory, or under a contract of
service or apprenticeship.
(3B) If, under the Safety, Rehabilitation and
Compensation Act 1988, the licence of a non‑Commonwealth licensee
covers only some of the people referred to in subsection (1), only such of
those people as are covered by the licence are non‑Commonwealth
licensee employees of the licensee for the purposes of this Act.
External territory public servants not covered
(4) This Act does not apply in relation to an
officer or employee of the Public Service of an external Territory.
Minister’s power to declare people to be employed by
Commonwealth or Commonwealth authority
(5) The Minister may, by notice in writing,
declare:
(a) that a person who is included in a
class of persons specified in the notice, being a class of persons who engage
in activities or perform acts:
(i) at the request or
direction, for the benefit, or under a requirement made by or under a law, of
the Commonwealth; or
(ii) at
the request or direction, or for the benefit, of a Commonwealth authority;
is, for the purposes of this
Act, to be taken to be employed by the Commonwealth, or by that authority, as
the case may be; and
(b) that
the employment of the person is, for those purposes, to be taken to be
constituted by the performance by the person of such acts as are specified in
the notice;
and such a declaration has effect accordingly.
(6) A notice in writing under paragraph (2)(c)
or subsection (5) is a disallowable instrument for the purposes of section 46A
of the Acts Interpretation Act 1901.
9A
Meaning of contractor etc.
Contractor
(1) A contractor is:
(a) a Commonwealth contractor (see
subsection (2)); or
(b) a Commonwealth authority
contractor (see subsection (3)); or
(c) a non‑Commonwealth licensee
contractor (see subsection (4)).
Note: In section 14, the meaning of contractor
is affected by subsection 14(3).
Commonwealth contractor
(2) A Commonwealth contractor
is a natural person (other than a Commonwealth employee or a Commonwealth
authority employee) who performs work on Commonwealth premises in connection
with a contract between:
(a) the Commonwealth; and
(b) that person or another person
(whether a natural person or not);
which is in connection with an undertaking being carried
on by the Commonwealth.
Commonwealth authority contractor
(3) A Commonwealth authority contractor
of a particular Commonwealth authority is a natural person (other than a
Commonwealth employee or a Commonwealth authority employee) who performs work
on Commonwealth premises in connection with a contract between:
(a) the authority; and
(b) that person or another person
(whether a natural person or not);
which is in connection with an undertaking being carried
on by the authority.
Non‑Commonwealth licensee contractor
(4) A non‑Commonwealth licensee
contractor of a particular non‑Commonwealth licensee is a natural
person (other than an employee of the licensee) who performs work on non‑Commonwealth
licensee premises of the licensee in connection with a contract between:
(a) the licensee; and
(b) that person or another person
(whether a natural person or not);
which is in connection with an undertaking being carried
on by the licensee.
10
Commonwealth to act through employing authority
(1) For the purposes of this Act and any
other law:
(a) duties imposed by this Act or the
regulations on the Commonwealth as an employer shall, so far as they concern those
Commonwealth employees, and those Commonwealth contractors, in relation to whom
a particular person or body is the employing authority, be performed by that
person or body; and
(b) anything done by that person or
body in the capacity of an employing authority has effect as if it had been
done by the Commonwealth; and
(c) anything served on, or otherwise
given or notified to, that person or body in the capacity of an employing
authority has effect as if it had been served on, or given or notified to, the
Commonwealth.
(2) For the purposes of this Act and any
other law, the duties imposed by this Act on the Commonwealth as an employer
must, so far as they concern a workplace, or any plant, substance or thing, in
relation to which one or more than one person or body is the employing
authority, be performed by that person or body, or jointly by those persons or
bodies, as the case requires.
11
Extent to which Act binds the Crown
(1) This Act binds the Crown in right of the
Commonwealth.
(2) Nothing in this Act has the effect of making
the Commonwealth or a Commonwealth authority (other than a Government business
enterprise):
(a) liable to be prosecuted for an
offence; or
(b) liable to pay any fine or penalty
under the Act or the regulations, other than as mentioned in subsection (3).
(3) Subsection (2) does not prevent the
Commonwealth or a Commonwealth authority from being:
(a) subject to proceedings for a
contravention of subclause 2(1) of Schedule 2; or
(b) liable to pay a pecuniary penalty
under subclause 4(1) of Schedule 2.
Note: A court may also grant an injunction under
clause 14 of Schedule 2, make remedial orders under clause 15 of
Schedule 2 or enforce undertakings under clause 16 of Schedule 2.
(4) Subsection (2) does not prevent the
following:
(a) a Commonwealth employee; or
(b) a Commonwealth authority employee
(including an employee of a Government business enterprise); or
(c) a Government business enterprise;
from being:
(d) subject to proceedings for a
contravention of subclause 2(1) of Schedule 2; or
(e) liable to be prosecuted for an
offence; or
(f) liable to pay any fine or penalty
under the Act or the regulations.
12
Functions conferred on Commission
(1) For the purposes of paragraph 89B(c) of
the Safety, Rehabilitation and Compensation Act 1988, the following
additional functions are conferred on the Commission:
(a) to ensure, in accordance with this
Act and the regulations, that the obligations imposed by or under this Act are
complied with;
(b) to
advise employers, employees or contractors, either on its own initiative or on
request, on occupational health and safety matters affecting such employers,
employees or contractors (including the matters that should be covered by
health and safety management arrangements);
(c) to collect, interpret and report
information relating to occupational health and safety in the employment of
employees;
(d) to formulate policies and
strategies relating to the occupational health and safety of employees;
(e) to advise the Minister:
(i) on the most effective
means of giving effect to the objects of this Act; and
(ii) on the making of
regulations under this Act; and
(iii) on the approval of
codes of practice under section 70;
(f) to accredit occupational health
and safety training courses for the purposes of section 27;
(g) to liaise with other bodies
concerned with occupational health and safety;
(h) to issue any directions that the
Commission considers to be appropriate to employers on the conduct of elections
under section 25A for health and safety representatives.
(2) The Minister may, in writing, give a
direction to the Commission concerning the performance of its functions, and
the exercise of its powers, under this Act, and the Commission must comply with
any direction so given.
12A
Functions conferred on Comcare
(1) The additional functions conferred on the
Commission under paragraph 12(1)(a) do not include the specific functions
conferred on Comcare under this Act.
(2) The Minister may, in writing, give a
direction to Comcare with respect to the performance of its functions and the
exercise of its powers under this Act.
(3) Comcare must comply with a direction
given under this section.
13
Application of Act to external Territories etc.
(1) This Act extends to all the external
Territories.
(2) This Act (other than Parts 3 and 4)
has extra‑territorial operation according to its terms.
14
Application of Act to workplaces controlled by contractors
(1) Despite anything in this Act, if a
workplace is controlled by a contractor for construction or maintenance
purposes:
(a) this Act, other than section 20,
does not apply to that workplace while it is so controlled; and
(b) this Act, other than section 20,
does not apply to work performed by contractors at that workplace while it is
so controlled; and
(c) this Act, other than Parts 1
and 2 and section 82, applies to work performed by employees at that
workplace while it is so controlled:
(i) only if the
regulations so provide; and
(ii) subject to such
modifications and adaptations (if any) as are set out in the regulations.
Note: For the meaning of contractor,
see section 9A and subsection (3) of this section.
(2) For the purposes of subsection (1),
a workplace is not taken not to be controlled by a contractor simply because of
the presence at the workplace of an employee of the employer for which the
contractor is performing work if that employee has no right to direct the work
of the persons working for the contractor.
(3) For the purpose of this section, contractor
has the meaning given by section 9A, except that:
(a) it also includes persons who would
be contractors under section 9A if references in subsections 9A(2), (3)
and (4) to natural persons were extended to also include bodies corporate,
other than any body corporate that is a Commonwealth authority or a non‑Commonwealth
licensee; and
(b) it does not include any person who
is an employee (as defined in section 9).
15
Application of Act to employees working in non‑Commonwealth premises
Where an employee ordinarily performs
his or her work at a particular place but that place is neither Commonwealth
premises nor non‑Commonwealth licensee premises, this Act, other than
Parts 1 and 2 and section 82, applies in relation to that employee or
to that place of work:
(a) only if the regulations so provide;
and
(b) subject to such modifications and
adaptations (if any) as are set out in the regulations.
15A
Application of Criminal Code
Chapter 2 of the Criminal Code (except
Part 2.5) applies to all offences against this Act.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: For the purposes of this Act, corporate
criminal responsibility is dealt with by section 78, rather than by Part 2.5
of the Criminal Code.
Part 2—Occupational health and safety
Division 1—General duties relating to occupational health and safety
16
Duties of employers in relation to their employees etc.
(1) An employer must take all reasonably
practicable steps to protect the health and safety at work of the employer’s employees.
Note: An employer who breaches subsection (1)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(2) Without limiting the generality of subsection (1),
an employer breaches that subsection if the employer fails to take all
reasonably practicable steps:
(a) to provide and maintain a working
environment (including plant and systems of work):
(i) that is safe for the
employer’s employees and without risk to their health; and
(ii) that provides adequate
facilities for their welfare at work; and
(b) in relation to any workplace under
the employer’s control, to:
(i) ensure the workplace
is safe for the employees and without risk to their health; and
(ii) provide and maintain a
means of access to, and egress from, the workplace that is safe for the
employees and without risk to their health; and
(c) to ensure the safety at work of,
and the absence of risks at work to the health of, the employees in connection
with the use, handling, storage or transport of plant or of substances; and
(d) to develop, in consultation with
the employees of the employer, written health and safety management
arrangements that will:
(i) enable effective
cooperation between the employer and the employees in promoting and developing
measures to ensure the employees’ health, safety and welfare at work; and
(ii) provide adequate
mechanisms for informing the employees about the arrangements; and
(iii) provide adequate
mechanisms for reviewing the effectiveness of the arrangements; and
(iv) provide adequate
mechanisms for the variation of the arrangements in consultation with the
employees; and
(v) provide for a dispute
resolution mechanism to deal with disputes arising in the course of
consultations held under this Act (other than section 24) between the
employer and the employees; and
(vi) in the case of an
employer who is required under section 34 to establish a health and safety
committee—provide for the manner in which the health and safety committee is to
be constituted and to operate; and
Note: The establishment of health and safety committees
is dealt with in section 34.
(e) to provide to the employees, in
appropriate languages, the information, instruction, training and supervision
necessary to enable them to perform their work in a manner that is safe and
without risk to their health.
(2A) An instrument setting out health and safety
arrangements developed under subsection (1) is not a legislative
instrument.
(3) Without limiting the matters that may be
covered by health and safety management arrangements developed by an employer
as mentioned in paragraph (2)(d), such arrangements may provide for the
following:
(a) a written occupational health and
safety policy in respect of the employer and the employees of the employer;
(b) arrangements relating to risk
management;
(c) the making of agreements between
the employer, the employees of the employer and their employee representatives
in relation to:
(i) continuing
consultation, between the employer, the employees of the employer and their employee
representatives on occupational health and safety matters; and
(ii) such other matters (if
any) as are agreed between the employer, the employees of the employer and
their employee representatives;
(d) training in relation to
occupational health and safety.
(4) The obligations of an employer in respect
of the employer’s employees that are set out in subsections (1) and (2)
apply also in respect of persons who are contractors of that employer but only
in relation to:
(a) matters over which the employer
has control; or
(b) matters over which the employer
would have had control but for an express provision in an agreement made by the
employer with such a contractor to the contrary, being matters over which the
employer would, in the circumstances, usually be expected to have had control.
(5) Without limiting the generality of subsection (1)
insofar as that section applies in relation to an employer’s employees, the
employer breaches that subsection if the employer fails to take all reasonably
practicable steps:
(a) to take appropriate action to
monitor the employees’ health and safety at work, and the conditions of the
workplaces under the employer’s control; or
(b) to maintain appropriate
information and records relating to the employees’ health and safety; or
(c) to provide appropriate medical and
first aid services for the employees.
16A
Development of health and safety management arrangements
(1) In developing or varying health and
safety management arrangements, an employer must have regard to any advice of
the Commission on the matter (whether the advice has been given to that
employer, or to employers generally).
(2) An employee of an employer who is holding
consultations to develop or vary health and safety management arrangements may
be represented in the consultations by one of the following if the employee so
requests:
(a) another employee of the employer;
(b) an employee representative in
relation to the employee.
(3) To avoid doubt, if an employee of an
employer is represented under subsection (2), this does not prevent the
employee, an employee mentioned in paragraph (2)(a) or any other employee
of the employer from being involved in the consultations.
16B
Certificate evidencing employee representative’s entitlement to be involved in
consultations
(1) If the Chief Executive Officer of Comcare
is satisfied, on application by an employee representative, that an employee in
relation to the employee representative has requested:
(a) that the employee representative
represent the employee in consultations held by an employer in the course of
developing or varying health and safety management arrangements; and
(b) that the identity of the employee
not be revealed;
the Chief Executive Officer may issue a certificate to the
effect that the employee representative is entitled to represent the employee
in such consultations.
(2) The application must be in the prescribed
form.
(3) The certificate must not identify any of
the employees concerned. However, it must identify the employee representative,
the employer and the proposed consultations.
(4) An employee representative in relation to
whom a certificate has been issued must not reveal the identity of an employee
whom the employee representative is authorised by the certificate to represent.
(5) The certificate ceases to have effect at
the earlier of:
(a) the time when the Chief Executive
Officer of Comcare considers that each of the employees who requested to be
represented by the employee representative in consultations identified by the
certificate has requested that the certificate cease to have effect; and
(b) the end of the 12 month period
that started when the certificate was issued.
(6) If a certificate ceases to have effect
under paragraph (5)(a), the Chief Executive Officer of Comcare must notify
the employee representative, and the employer, in writing.
(7) A notification under subsection (6)
is not a legislative instrument.
(8) A certificate is, for all purposes of
this Act, prima facie evidence of the matters stated in it.
(9) The Chief Executive Officer of Comcare
may delegate to the Deputy Chief Executive Officer of Comcare his or her power
under subsection (1). The delegation must be in writing.
(10) Nothing in this section implies that an
employee representative in respect of whom a certificate has not been issued
cannot represent employees in consultations with the employer of those
employees.
17
Duty of employers in relation to third parties
An employer must take all reasonably
practicable steps to ensure that persons at or near a workplace under the
employer’s control who are not the employer’s employees or contractors are not
exposed to risk to their health or safety arising from the conduct of the
employer’s undertaking.
Note: An employer who breaches section 17 may
be subject to civil action or a criminal prosecution (see Schedule 2).
18
Duties of manufacturers in relation to plant and substances
(1) A manufacturer of any plant that the
manufacturer ought reasonably to expect will be used by employees at work must
take all reasonably practicable steps:
(a) to ensure that the plant is so
designed and constructed as to be, when properly used, safe for employees and
without risk to their health; 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 the health or safety of
employees, that may arise from the use of the plant; and
(c) to make available to an employer,
in connection with the use of the plant by employees at work, adequate
information concerning:
(i) the use for which it
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 for employees and without risk to their health.
Note: A manufacturer who breaches subsection (1)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(2) A manufacturer of any substance that the
manufacturer ought reasonably to expect will be used by employees at work must
take all reasonably practicable steps:
(a) to ensure that the substance is so
manufactured as to be, when properly used, safe for employees and without risk
to their health; 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 the health and safety of
employees, that may arise from the use of the substance; and
(c) to make available to an employer,
in connection with the use of the substance by employees at work, adequate
information concerning:
(i) the use for which it
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 for employees and without risk to their health; and
(iv) the
first aid and medical procedures that should be followed if the substance
causes injury.
Note: A manufacturer who breaches subsection (2)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(3) Where:
(a) plant or a substance is imported
into Australia by a person who is not the manufacturer of the plant or
substance; 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 must, for the purposes of
this section, be taken to be the manufacturer of the plant or substance.
(4) Nothing in this section affects the
operation of the Trade Practices Act 1974, or of any other law of the
Commonwealth, a State or a Territory that imposes an obligation on a
manufacturer in respect of defective goods or in respect of information to be
supplied in relation to goods.
19
Duties of suppliers in relation to plant and substances
(1) A supplier of any plant or substance that
the supplier ought reasonably to expect will be used by employees at work must
take all reasonably practicable steps:
(a) to ensure that, at the time of
supply, the plant or substance is in such condition as to be, when properly
used, safe for employees and without risk to their health; 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 the health or safety of
employees, that may arise from the condition of the plant or substance; and
(c) to make available to an employer,
in connection with the use of the plant or substance by employees at work,
adequate information concerning:
(i) the condition of the
plant or substance at the time of supply; and
(ii) any risk to the health
and safety of employees to which the condition of the plant or substance may
give rise unless it is properly used; and
(iii) the steps that need to
be taken in order to eliminate such risk; and
(iv) in
the case of a substance—the first aid and medical procedures that should be
followed in the event of the condition of the substance causing injury to an
employee.
Note: A supplier who breaches subsection (1)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(2) For the purposes of subsection (1),
where a person (in this subsection called the ostensible supplier)
supplies to an employer any plant or substance that is to be used by employees
at work, and the ostensible supplier:
(a) carries on the business of
financing the acquisition or the use of goods by other persons; and
(b) has, in the course of that business,
acquired an interest in the plant or substance solely for the purpose of
financing its acquisition by the employer from a third person, or its provision
to the employer by a third person; and
(c) has
not taken possession of the plant or substance or has taken possession of the
plant or substance solely for the purpose of passing possession of the plant or
substance to that employer;
the reference in subsection (1) to a supplier is, in
relation to the plant or substance referred to in this subsection, to be read
as a reference to the third person and not as a reference to the ostensible
supplier.
(3) Nothing in this section affects the
operation of the Trade Practices Act 1974, or of any other law of the
Commonwealth, a State or a Territory 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.
20
Duties of person erecting or installing plant in a workplace
(1) A person who erects or installs any plant
in a workplace for the use of employees at work must take all reasonably
practicable steps to ensure that the plant is not erected or installed in such
a manner that:
(a) the plant is unsafe for, or
constitutes a risk to the health of, employees at the workplace where the plant
is erected or installed; or
(b) the process of erection or
installation is unsafe for, or constitutes a risk to the health of, employees
at the workplace where the plant is erected or installed.
Note: A person who breaches subsection (1) may
be subject to civil action or a criminal prosecution (see Schedule 2).
(2) Nothing in this section affects the
operation of the Trade Practices Act 1974, or of any other law of the
Commonwealth, a State or a Territory that imposes an obligation in respect of
the erection or installation of goods or the supply of services.
21
Duties of employees in relation to occupational health and safety
(1) An employee must, at all times while at
work, take all reasonably practicable steps:
(a) to ensure that the employee does
not take any action, or make any omission, that creates a risk, or increases an
existing risk, to the health or safety of the employee, or of other persons
(whether employees or not) at or near the place at which the employee is at
work; and
(b) in
respect of any duty or obligation imposed on the employee’s employer, or on any
other person, by or under this Act or the regulations, to co‑operate with
the employer, or that other person, to the extent necessary to enable the
employer or other person to fulfil that duty or obligation; and
(c) to use equipment, in accordance
with any instructions given by the employee’s employer consistent with its safe
and proper use, that is:
(i) supplied to the
employee by the employer; and
(ii) necessary
to protect the health and safety of the employee, or of other persons (whether
employees or not) at or near the place at which the employee is at work.
Note: An employee who breaches subsection (1)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(2) Nothing in subsection (1) is to be
taken to imply that the choice, or manner of use, or choice and manner of use,
of equipment of the kind referred to in subparagraph (1)(c)(ii) is not a
matter that may be, consistent with the requirements of this Act and of the
regulations:
(a) agreed on between the employer and
employees (or their representatives under paragraph 16A(2)(a) or (b)) of the
employer; or
(b) agreed on by a health and safety
committee in respect of the employees of the employer.
(3) Where an agreement of the kind referred
to in paragraph (2)(a) (whether or not entered into before the
commencement of this section) or of the kind referred to in paragraph (2)(b)
provides a process for choosing equipment of a particular kind that is to be
provided by the employer, action must not be taken against an employee of the
employer for failure to use equipment of that kind that is so provided unless
the equipment has been chosen in accordance with that process.
(4) Where an agreement of the kind referred
to in paragraph (2)(a) (whether or not entered into before the
commencement of this section) or of the kind referred to in paragraph (2)(b)
provides a process for determining the manner of use of equipment of a
particular kind, action must not be taken against an employee of the employer
for failure to use, in the manner required by the employer, equipment of that
kind that is so provided unless the manner has been determined in accordance
with that process.
22
Reliance on information supplied or results of research
(1) Without limiting the generality of what
constitutes the taking of reasonably practicable steps as required by section 16
or 17, for the purpose of the application of that section in relation to the
use of plant or a substance, a person on whom an obligation is imposed under
that section is to be taken to have taken such reasonably practicable steps as
that section requires, in relation to the use of the plant or substance, to the
extent that:
(a) the person ensured, as far as is reasonably
practicable, that the use of the plant or substance was in accordance with the
information, supplied by the manufacturer or the supplier of the plant or
substance, relating to health and safety in the use of the plant or substance;
and
(b) it was reasonable for the person
to rely on that information.
(2) Without limiting the generality of what
constitutes the taking of reasonably practicable steps as required by section 20,
for the purpose of the application of that section in relation to the erection
or installation of plant in a workplace, a person on whom an obligation is
imposed under that section is to be taken to have taken such reasonably
practicable steps as that section requires to the extent that:
(a) the person ensured, as far as is reasonably
practicable, that the erection or installation of the plant was in accordance
with information, supplied by the manufacturer or the supplier of the plant,
relating to the erection or installation of the plant in a manner that ensures
the health and safety of employees who use the plant; and
(b) it was reasonable for the person
to rely on that information.
(3) Without limiting the generality of what
constitutes the taking of reasonably practicable steps as required by section 18
or 19 for the purpose of the application of that section in relation to the
carrying out of research, testing and examination of plant or a substance, a
person on whom an obligation is imposed under that section is to be taken to
have taken such reasonably practicable steps as that section requires, in
relation to the carrying out of research, testing and examination of the plant
or substance, to the extent that:
(a) the research, testing or
examination has already been carried out otherwise than by, or on behalf of,
the person; and
(b) it was reasonable for the person
to rely on that research, testing or examination.
Division 2—Specific duties relating to occupational health and safety
23
Regulations relating to occupational health and safety
(1) Subject to this Act, the regulations may
make provisions relating to any matter affecting, or likely to affect, the
occupational health and safety of:
(a) employees or contractors; or
(b) other persons at or near a
workplace.
(2) Without limiting the generality of subsection (1),
those regulations may make provision:
(a) prohibiting, either absolutely or
except in accordance with specified requirements, the performance of all work
or specified work at a workplace or by employees or contractors at work; and
(b) prohibiting, either absolutely or
except in accordance with specified requirements, the use of all plant or
specified plant at a workplace or by employees or contractors at work; and
(c) prohibiting, either absolutely or
except in accordance with specified requirements, the carrying out of all
processes or a specified process at a workplace or by employees or contractors
at work; and
(d) prohibiting, either absolutely or
except in accordance with specified requirements, the storage or use of all
substances or specified substances at a workplace or by employees or
contractors at work; and
(e) specifying the form in which
information required to be made available to an employer under paragraph
18(1)(c) or 19(1)(c) is to be so made available; and
(f) prohibiting, except in accordance
with licences granted under the regulations, the use of specified plant or
specified substances at a workplace or by employees or contractors at work; and
(g) providing
for the issue, variation, renewal, transfer, suspension and cancellation of
such licences, the conditions to which the licences may be subject and the fees
payable for the issue, variation or transfer of the licences; and
(h) regulating the maintenance and
testing of plant used at a workplace or by employees or contractors at work;
and
(j) regulating the labelling or
marking of substances used at a workplace or by employees or contractors at
work; and
(k) regulating the transport of
specified plant that is, or specified substances that are, for use at a
workplace or by employees or contractors at work; and
(m) prohibiting the performance, at a
workplace or by employees or contractors at work, of specified activities or
work except:
(i) by persons who satisfy
requirements of the regulations as to qualifications, training or experience;
or
(ii) under the supervision
specified in the regulations; and
(n) requiring the taking of specified
action to avoid accidents or dangerous occurrences; and
(p) providing for, or prohibiting, the
taking of specified action in the event of accidents or dangerous occurrences;
and
(q) providing for the employment at
workplaces of persons to perform specified duties relating to the maintenance
of occupational health and safety at workplaces; and
(r) regulating the provision and use,
at a workplace or by employees or contractors at work, of protective clothing
and equipment, safety equipment and rescue equipment; and
(s) providing for the monitoring of
the health of employees and the conditions at workplaces; and
(t) requiring the keeping by
employers of records of matters related to the occupational health and safety
of employees; and
(u) providing for the provision of
first aid equipment and facilities at workplaces.
Part 3—Workplace arrangements
Division 1—Health and safety representatives
24
Designated work groups
(1) An employee may request his or her
employer to:
(a) establish designated work groups
in respect of employees of the employer; or
(b) vary designated work groups that
have already been established.
(1A) An employee representative in respect of an
employee of an employer may, if requested by the employee, request the employer
to:
(a) establish designated work groups
in respect of employees of the employer; or
(b) vary designated work groups that
have already been established.
(2) The employer must, within 14 days after
receiving a request under subsection (1) or (1A), enter into consultations
to establish or vary (as the case requires) designated work groups with:
(a) the employer’s employees; and
(b) if an employee of the employer
requests that the employer enter into consultations with an employee
representative in relation to the employee—that employee representative.
(3) If an employer believes that designated
work groups should be varied, the employer may at any time enter into
consultations about the variation with:
(a) the health and safety
representative of each designated work group proposed to be varied; and
(b) if an employee in a designated
work group proposed to be varied requests that the employer also enter into
such consultations with an employee representative in relation to the
designated work group—that employee representative.
(4) If, in the course of consultations under subsection (2)
or (3), there is a disagreement between any of the parties to the consultation
concerning 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 and, where this is done, the parties
to the disagreement must complete the consultation in accordance with the
resolution of that matter by the reviewing authority.
(5) Within 14 days after the completion of
consultations concerning the establishment of the designated work groups, the
employer must, by notifying the employees of the employer, establish the
designated work groups in accordance with the outcome of the consultations.
(6) Within 14 days after the completion of
consultations concerning the variation of designated work groups that have
already been established, the employer must, if it has been determined that the
variation of some or all of those designated work groups is justified, by
notifying the employees of the employer who are affected by the variation, vary
the designated work groups in accordance with the outcome of the consultations.
(7) Consultations relating to the
establishment or variation of a designated work group must be directed
principally at the determination of the manner of grouping employees:
(a) that best and most conveniently
enables the employees’ 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 employee
included in the group;
and, for these purposes, the parties to the consultations
must have regard, in particular, to:
(c) the number of the employees; and
(d) the nature of each type of work
performed by the employees; and
(e) the number and grouping of the
employees who perform the same or similar types of work; and
(f) the workplaces, and the areas
within the workplaces, where each type of work is performed; and
(g) the nature of any risks to health
and safety at the workplaces; and
(h) any overtime or shift working
arrangements at the workplaces.
(8) The designated work groups must be
established in such a manner that, and must only be varied in such a manner
that, so far as is reasonably practicable, each of the employees is included in
a designated work group.
(9) All of an employer’s employees may be
included in one designated work group.
24A
Consultations on designated work groups are health and safety management
arrangement consultations
For the purposes of this Act,
consultations under section 24 are taken to be consultations to develop
health and safety management arrangements. However, for the purposes of
developing health and safety management arrangements as described in paragraph
16(2)(d), it is not sufficient for an employer merely to hold consultations
under section 24.
24B
List of designated work groups
(1) An employer must:
(a) prepare and keep up to date a
written list of all designated work groups comprising employees performing work
for the employer; and
(b) ensure that the list is available
for inspection by investigators and the employees at all reasonable times.
(2) The list must describe the categories of
employees included in each designated work group.
(3) The list is not a legislative instrument.
25 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 an employee included in the group.
(3) A person is to be taken to have been
selected as the health and safety representative for a designated work group
if:
(a) all of the employees included in
the group unanimously agree to the selection of the person as the health and
safety representative of the group; or
(b) the person is elected as the
health and safety representative of the group.
(4) If a person is selected as the health and
safety representative for a designated work group under paragraph (3)(a),
the person must, by written notice, inform the employer of the employees in the
group of this fact as soon as practicable after the selection is made.
(5) A notice under subsection (4) is not
a legislative instrument.
25A
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 paragraph 25(3)(a);
the employer of the employees in the designated work group
must invite nominations from all employees in the group for election as the
health and safety representative of the group.
(2) If the office of health and safety
representative is vacant and the employer has not invited nominations within a
further reasonable time that is no later than 6 months after the vacancy
occurred, the Commission may direct the employer in writing to do so.
(3) A direction by the Commission under subsection (2)
is not a legislative instrument.
(4) If there is more than one candidate for
election at the close of the nomination period, the employer must conduct, or
arrange for the conduct of, an election at the employer’s expense.
(5) An election conducted or arranged to be
conducted under subsection (4) must be conducted in accordance with
regulations made for the purposes of this subsection if this is requested by
the lesser of:
(a) 100 employees normally in the
designated work group; or
(b) a majority of the employees
normally in the designated work group.
(6) If there is only one candidate for
election at the close of the nomination period, that person is taken to have
been elected.
(7) A person cannot be a candidate in the
election if he or she is disqualified under section 32.
(8) All the employees in the designated work
group are entitled to vote in the election.
(9) An employer conducting or arranging for
the conduct of an election under this section must comply with any relevant
directions issued by the Commission.
25B
List of health and safety representatives
(1) An employer must:
(a) prepare and keep up to date a
written list of all the health and safety representatives of designated work
groups comprising employees performing work for the employer; and
(b) ensure that the list is available
for inspection by investigators and the employees at all reasonable times.
(2) The list is not a legislative instrument.
25C
Employees must be notified of selection etc. of health and safety representative
(1) The employer of employees in a designated
work group must, by written instrument:
(a) notify those employees 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 employees of the name
of any person selected (whether under paragraph 25(3)(a) or 25(3)(b)) as health
and safety representative for the designated work group within a reasonable
time after the selection is made.
(2) A notification under subsection (1)
is not a legislative instrument.
26
Term of office
(1) A health and safety representative for a
designated work group holds office for the period specified in the health and
safety management arrangements applying to the employees in the designated work
group, but is eligible to be selected for further terms of office.
(2) If a period is not specified in health
and safety management arrangements applying to the designated work group, the
term of office is 2 years.
(3) This section is subject to
sections 26A and 31.
26A
Casual vacancy
If a person (the retiring
representative) ceases to hold office as a health and safety
representative before the end of the person’s term of office, the person
selected to fill the vacancy holds office:
(a) if the vacancy occurred more than
6 months before the retiring representative’s term of office ended—for the
remainder of the retiring representative’s term; and
(b) if the vacancy occurred within the
period of 6 months before the retiring representative’s term of office
ended—for the remainder of the retiring representative’s term and for the next
term of office.
27
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 Commission for the
purposes of this section.
(2) The employer of the employees in a
designated work group must permit the health and safety representative for the
group to take such time off work, without loss of remuneration or other
entitlements, as is necessary to undertake the training.
28
Powers of health and safety representatives
(1) A health and safety representative for a
designated work group may, for the purposes of promoting or ensuring the health
and safety at work of the employees in the designated work group:
(a) in respect of a workplace at which
work is performed, for the employer of all of the employees in the group, by
some or all of those employees, do all or any of the following:
(i) inspect the whole or
any part of the workplace if:
(A) there
has, in the immediate past, been an accident or a dangerous occurrence at the
workplace, or there is an immediate threat of such an accident or dangerous
occurrence; or
(B) the
health and safety representative has given the employer reasonable notice of
the inspection;
(ii) make a request to an
investigator, to Comcare or to the Commission that an investigation be
conducted at the workplace;
(iii) accompany an
investigator during any investigation at the workplace by the investigator
(whether or not the investigation is being conducted as a result of a request
made by the health and safety representative);
(iv) if there is no health
and safety committee in respect of the employer’s employees at the
workplace—represent the employees in the group in consultations with the
employer concerning the development, implementation and review of measures to
ensure the health and safety at work of the employees in the group;
(v) where a health and
safety committee has been established in respect of the employer’s employees at
the workplace—examine any of the records of that committee; and
(b) investigate complaints made by any
of the employees in the group to the health and safety representative
concerning the health and safety of any of the employees at work; and
(c) with the consent of the employee
concerned, be present at any interview, concerning health and safety at work,
between an employee in the group and:
(i) an investigator; or
(ii) the employer or a
person representing the employer; and
(d) obtain access to:
(i) any information under
the employer’s control relating to risks to health and safety of any employees:
(A) at any
workplace under the employer’s control; or
(B) arising
from the conduct by the employer of an undertaking or from plant or substances
used for the purposes of the undertaking; and
(ii) subject to subsection (6),
any information under the employer’s control relating to the health and safety
of any of the employer’s employees; and
(e) issue provisional improvement
notices in accordance with section 29.
(2) 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.
(3) A health and safety representative for a
designated work group must not:
(a) be assisted by a consultant at a
workplace at which work is performed for an employer of the employees in the
group; or
(b) provide
to a consultant information which has been provided to the health and safety
representative by an employer under paragraph (1)(d);
unless the employer or the Commission has, in writing,
agreed to the provision of that assistance at that workplace or the provision
of that information, as the case may be.
(4) An employer does not, by reason of the
agreement of the employer under subsection (3) to the provision of
assistance by a consultant, become liable for any remuneration or other
expenses incurred in connection with the consultant’s activities.
(5) Where 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, concerning
health and safety at work, between an employee in the group and:
(a) an investigator; or
(b) the
employer or a person representing the employer;
if, and only if, the employee concerned consents to the
presence of the consultant.
(6) The health and safety representative is
not entitled, or, where the health and safety representative is assisted by a
consultant, the health and safety representative and the consultant are not
entitled, under subparagraph (1)(d)(ii), to have access:
(a) to information in respect of which
the employer is entitled to claim, and does claim, legal professional
privilege; and
(b) to information of a confidential
medical nature relating to a person who is or was an employee of the employer
unless:
(i) the person has
delivered to the 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
(ii) the information is in
a form that does not identify the person or enable the identity of the person
to be discovered.
(7) Nothing in this Act is to be read as:
(a) imposing an obligation on a person
to exercise any power conferred on the person because the person is a health
and safety representative; or
(b) rendering a person liable in civil
proceedings because of:
(i) a failure to exercise
such a power; or
(ii) the manner in which
such a power was exercised.
29
Provisional improvement notices
(1) Where a health and safety representative
for a designated work group believes, on reasonable grounds, that a person:
(a) is breaching a provision of this
Act or the regulations; or
(b) has
breached a provision of this Act or the regulations and is likely to breach
that provision again;
being a breach that affects or that may affect one or more
employees included in the group, the representative must enter into
consultations with the person supervising the work performed by the employee or
employees in an attempt to reach agreement on rectifying the breach or
preventing the likely breach.
(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 the person (in this section called the responsible person)
responsible for the breach.
(3) Where the responsible person is an
employer but it is not practicable to issue the notice to the employer by
giving it to the employer, the notice may be issued to the employer by giving
it to the person who is, or who may reasonably be presumed to be, for the time
being, in charge of the activity, undertaken by the employer, in connection
with which, in the health and safety representative’s opinion, the employer is
breaching, or is likely to breach, this Act or the regulations and, where the
notice is so issued, a copy of the notice must be given to the employer as soon
as practicable thereafter.
(3A) The notice has effect as soon as it is
given to a person in accordance with subsection (2) or (3).
(4) The notice must:
(a) specify the breach of the
provision of this Act or the regulations 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 of not less than
7 days commencing on the day after the notice is issued, being a period that
is, in the representative’s opinion, reasonable, within which the responsible
person is to take action necessary to prevent any further breach of the
provision or to prevent the likely breach of the provision, as the case may be.
(5) The notice may specify action that the
responsible person is to take during the period specified in the notice.
(6) Where, 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.
(7) Upon issuing the notice, the health and
safety representative must give a copy of the notice to:
(a) where the notice is issued to an employee
in connection with work performed by the employee for an employer—that
employer; and
(b) where the notice relates to any
workplace, plant, substance or thing that is owned by a person, not being the
responsible person or a person who is an employer referred to in paragraph (a)—that
owner; and
(c) where the notice is issued to a
person (not being an employer) who owns any workplace, plant, substance or
thing by reason of which a breach of this Act or the regulations has occurred
or is likely to occur—the employer of the employees who work in that workplace
or who use that plant, substance or thing.
(8) Within 7 days after the notice is issued,
the responsible person, or any other person, to whom a copy of the notice has
been given under subsection (7), may make a request to Comcare or to an
investigator that an investigation of the matter the subject of the notice be
conducted.
(9) When a request is made under subsection (8),
the operation of the notice is suspended pending the determination of the
matter by an investigator.
(9A) The health and safety representative may
request Comcare or an investigator to investigate a matter that is the subject
of a notice if:
(a) the responsible person has not
complied with the notice within the period specified in the notice (including
any extensions); and
(b) an investigation has not been
requested under subsection (8).
(10) As soon as possible after a request (under
subsection (8) or (9A)) is made, an investigation must be conducted of the
work that is the subject of the disagreement, and the investigator conducting
the investigation 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 subsection (2) accordingly; and
(b) make such decisions, and exercise
such powers, under Part 4, as the investigator considers necessary in
relation to the work.
(11) Where the investigator varies the notice,
the notice as so varied has effect, and, except in so far as it imposes additional
obligations on the responsible person, is to be taken to have always had
effect, accordingly.
(12) Where the notice is issued to an employer,
the employer must:
(a) notify each employee who is
performing work for the employer and 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.
(13) The notice ceases to have effect if:
(a) it is cancelled by an investigator
or by the health and safety representative; or
(b) the responsible person:
(i) takes such action, if
any, as is specified in the notice; or
(ii) if no action is so
specified—takes the action necessary to prevent the further breach, or likely
breach, with which the notice is concerned.
(14) 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 such steps as are
reasonably practicable to inform the health and safety representative who
issued the notice of the action taken to comply with the notice.
(15) For the purposes of section 48, where
the investigator confirms or varies the notice, the investigator is to be taken
to have decided, under section 47, to issue an improvement notice in those
terms.
30
Duties of employers in relation to health and safety representatives
(1) The employer of all the employees included
in a designated work group for which there is a health and safety
representative must:
(a) upon being requested to do so by
the representative, consult with the representative on the implementation of
changes at any workplace at which some or all of the employees in the group
perform work for the employer, being changes that may affect the health and
safety at work of the employees; and
(b) in respect of a workplace at which
some or all of the employees perform work for the employer:
(i) permit the health and
safety representative to make such inspection of the workplace as the
representative is entitled to make in accordance with subparagraph 28(1)(a)(i),
and to accompany an investigator during any investigation at the workplace by
the investigator; and
(ii) where there is no
health and safety committee in respect of the employer’s employees at the
workplace—upon being requested to do so by the health and safety
representative, consult with the representative concerning the development,
implementation and review of measures to ensure the health and safety at work
of those employees; and
(c) permit the health and safety
representative to be present at any interview at which the representative is
entitled to be present under paragraph 28(1)(c); and
(d) subject to subsections (2)
and (3), provide to the health and safety representative access to any
information to which the representative is entitled to obtain access in
accordance with subparagraph 28(1)(d)(i) or (ii) and to which access has been
requested; and
(e) permit the health and safety
representative to take such time off work, without loss of remuneration or
other entitlements, as is necessary to exercise the powers of a health and
safety representative; and
(f) provide the health and safety
representative with access to such facilities as 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) An employer must not permit a health and
safety representative to have access to information of a confidential medical
nature under the control of the employer, being information relating to a
person who is or was an employee of the employer, unless:
(a) the person has delivered to the
employer a written authority permitting the representative to have access to
the information; or
(b) the information is in a form that
does not identify the person or enable the identity of the person to be
discovered.
(3) An employer is not required to provide to
a health and safety representative access to any information in respect of
which the employer is entitled to claim, and does claim, legal professional
privilege.
31
Resignation etc. of health and safety representative
(1) A person must cease 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 an
employee included in the designated work group; or
(ba) the designated work group is varied
under subsection 24(6) and the variation results in a change to the membership
of the group; or
(c) the person’s term of office
expires without the person having been selected, under section 25, to be
the health and safety representative for the designated work group for a
further term; or
(d) the person is disqualified under
section 32.
(2) A person may resign as the health and
safety representative for a designated work group by notice in writing
delivered to the employer of the employees in the group.
(3) If a person resigns as the health and
safety representative for a designated work group, the person must notify the
employees included in the group of the resignation.
32
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 Commission by the employer of all the employees included in the
designated work group, or, at the request of an employee in the designated work
group, by an employee representative in relation to the designated work group,
on one or both of the following grounds:
(a) that action taken by the
representative in the exercise or purported exercise of a power under
subsection 28(1) or any other provision of this Act was taken:
(i) with the intention of
causing harm to the employer or to an undertaking of the employer; or
(ii) unreasonably,
capriciously or otherwise than for the purpose for which the power was
conferred on the representative;
(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 employer.
(2) Where, upon an application by an employer
under subsection (1), the Commission is satisfied that the health and
safety representative has acted in a manner referred to in paragraph (1)(a)
or (b), the Commission may, after having regard to:
(a) the harm (if any) that was caused
to the employer or to an undertaking of the employer as a result of the action
of the representative; 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) such
other matters as the Commission thinks relevant;
disqualify the representative, for a specified period not
exceeding 5 years, from being a health and safety representative for any
designated work group.
33 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 manner as a health and safety representative
under section 25.
(2A) If an election for a deputy health and
safety representative is to be held, the employer of the employees in the
designated work group must invite nominations for the election from all the
employees in the designated work group.
(2B) Subsections 25A(3) to (8) apply to the
election.
Note: Subsections 25A(1) and (2) do not apply in
relation to deputy health and safety representatives because the selection of a
deputy is optional, not required, for each designated work group.
(2C) The following provisions apply to a deputy
health and safety representative in the same way as they apply to a health and
safety representative:
(a) section 31 (resignation etc.
of health and safety representative);
(b) section 32 (disqualification
of health and safety representatives).
(3) Where the health and safety
representative for a designated work group ceases to be the health and safety
representative or is unable (because of absence or for any other reason) to
exercise the powers of a health and safety representative:
(a) the powers may be exercised by the
deputy health and safety representative (if any) for the group; and
(b) this Act (other than this section)
applies in relation to the deputy health and safety representative accordingly.
Division 2—Health and safety committees
34
Health and safety committees
(1) An employer must, by written instrument,
establish a health and safety committee in respect of the employer’s employees
if the number of the employer’s employees is normally not less than 50.
(2) An employer must also, by written
instrument, establish a health and safety committee in respect of the
employer’s employees in a particular workplace if:
(a) the number of the employer’s
employees in the workplace is normally not less than 50; and
(b) either:
(i) a health and safety
representative of a designated work group comprising employees performing work
for the employer in the workplace gives a written request to the employer
asking the employer to establish such a committee; or
(ii) a majority of the
employees in the workplace give a written request to the employer asking the
employer to establish such a committee.
(3) Subject to subsection (4), a health
and safety committee established under subsection (1) or (2) is to be
constituted and to operate in accordance with the health and safety management
arrangements applying to the employer’s employees.
Note: Subparagraph 16(2)(d)(vi) requires health and
safety management arrangements to provide for the manner in which the health
and safety committee is to be constituted and to operate.
(4) The number of members of a health and
safety committee chosen by the employer to represent the interests of the
employer must not exceed the number of members chosen by the employees to
represent the interests of the employees.
(5) Nothing in this section prevents an
employer from establishing, in consultation with its employees or any other
persons, by written instrument:
(a) subcommittees of a health and
safety committee; or
(b) committees concerned with
occupational health and safety in relation to undertakings carried on by the
employer; or
(c) other committees concerned, in
whole or in part, with occupational health and safety.
(6) An instrument establishing a health and
safety committee under subsection (1) or (2), or a subcommittee or other
committee under subsection (5), is not a legislative instrument.
35
Functions of health and safety committees
(1) A health and safety committee in respect
of an employer’s employees has the following functions:
(a) to assist the employer:
(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
the employees;
(b) to facilitate co‑operation
between the employer and the employees in relation to occupational health and
safety matters;
(c) to assist the employer to
disseminate among the employees, in appropriate languages, information relating
to health and safety at work;
(d) such functions as are prescribed;
(e) such
other functions as are agreed upon between the employer and the 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) Nothing in this Act is to be read as:
(a) imposing 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) rendering 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.
36
Duties of employers in relation to health and safety committees
(1) Where there is a health and safety
committee in respect of employees of an employer, the employer must:
(a) subject to subsections (2)
and (3), make available to the committee any information possessed by the
employer relating to risks to the health and safety of employees:
(i) at any workplace under
the employer’s control; or
(ii) arising from the
conduct by the employer of an undertaking, or from plant or substances used for
the purposes of the undertaking; and
(b) permit any member of the committee
who is an employee of the employer to take such time off work, without loss of
remuneration or other entitlements, as is necessary for the member adequately
to participate in the performance by the committee of its functions.
(2) An employer must not make available to a
health and safety committee information of a confidential medical nature
relating to a person who is or was an employee of the employer, unless:
(a) the person has delivered to the
employer an authority permitting the information to be made available to the
committee; or
(b) the information is in a form that
does not identify the person or enable the identity of the person to be
discovered.
(3) An employer is not required to make
available to a health and safety committee any information in respect of which
the employer is entitled to claim, and does claim, legal professional
privilege.
Division 3—Emergency procedures
37
Action by health and safety representatives
(1) Where a health and safety representative
for a designated work group has reasonable cause to believe that there is an
immediate threat to the health or safety of one or more of the employees
included in the group unless the employee ceases to perform particular work,
the representative must:
(a) inform a person (in this section
called a supervisor) supervising the employee or employees in the
performance of the work of the threat to health or safety; or
(b) if no supervisor can be contacted
immediately—direct the employee or employees to cease, in a safe manner, to
perform the work, and as soon as practicable inform a supervisor that the
direction has been given.
(2) Where a supervisor is informed under paragraph (1)(a)
of a threat to the health and safety of one or more of the employees, the
supervisor must take such action as he or she considers appropriate to remove
that threat, and any such action may include directing the employee or
employees to cease, in a safe manner, to perform the work.
(3) Where a health and safety representative:
(a) is unable to agree with a
supervisor whom the representative has informed under paragraph (1)(a) of
a threat to the health or safety of persons performing work, and who has taken
such action as the supervisor considers appropriate to remove that threat, that
the action taken was sufficient to remove that threat; or
(b) is
unable to agree with a supervisor whom the representative has informed under paragraph (1)(b)
that there is a need for a direction under that paragraph;
the representative or the supervisor may make a request to
Comcare or to an investigator that an investigation be conducted of the work
that is the subject of the disagreement.
(4) As soon as possible after a request is
made, an investigation must be conducted of the work that is the subject of the
disagreement, and the investigator conducting the investigation must make such
decisions, and exercise such powers, under Part 4 as the investigator
considers necessary in relation to the work.
38
Directions to perform other work
Where an employee has ceased to perform
work, in accordance with a direction by a health and safety representative
under paragraph 37(1)(b), not being a cessation of work that continues after:
(a) 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
(b) an
investigator has, under subsection 37(4), made a decision that has 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.
Part 4—Advice, investigations and inquiries
Division 1—Advice
38A
Comcare may advise employers etc.
Comcare may advise employers, employees
or contractors, either on its own initiative or on request, on occupational
health and safety matters affecting those employers, employees or contractors.
39
Referral of persons seeking advice to experts
If:
(a) Comcare has been requested to
advise an employer, employee or contractor about an occupational health and
safety matter; and
(b) Comcare considers that a person
other than a member of the staff of, or a consultant to, Comcare has special
knowledge or experience relevant to the request;
Comcare may refer the employer, employee or contractor to
the person.
Division 2—Investigations
40
Appointment of investigators
(1) There are to be such investigators as are
necessary from time to time.
(2) Comcare may, by instrument in writing,
appoint:
(a) a member of the staff of Comcare;
or
(b) a
person having knowledge of, and experience in, matters relating to occupational
health and safety;
to be an investigator.
(3) The appointment of a person ceases to
have effect if:
(a) Comcare revokes the appointment;
or
(b) the person, by written notice
given to Comcare, resigns the appointment.
(4) The Commission may, by notice published
in the Gazette, give directions specifying the manner in which, and any
conditions subject to which, powers conferred on investigators under this Part
are to be exercised and where it does so, the powers of investigators must be
exercised in accordance with those directions.
(5) Comcare may, by notice in writing, impose
restrictions, not being restrictions inconsistent with any direction in force
under subsection (4), on the powers that are conferred on a particular
investigator under this Part, being an investigator who is not a member of the
staff of Comcare, and where it does so, the powers of the investigator are, for
the purposes of this Act, to be taken to have been restricted accordingly.
(6) Comcare must issue to an investigator an
identity card in a prescribed form.
(7) An investigator must carry the identity
card at all times when exercising powers or performing functions as an
investigator.
(8) The regulations may regulate the
appointment, and prescribe the qualifications, of investigators.
41
Investigations
(1) An investigator who is a member of the
staff of Comcare may, at any time, conduct an investigation:
(a) to ascertain whether the
requirements of, or any requirements properly made under, the Act or the
regulations are being complied with; or
(b) concerning a breach or possible
breach of this Act or the regulations; or
(c) concerning an accident or
dangerous occurrence that has happened in the performing of work for an
employer.
(2) Comcare or the Commission may direct an
investigator who is not a member of the staff of Comcare to conduct an
investigation:
(a) to ascertain whether the
requirements of, or any requirements properly made under, the Act or the
regulations are being complied with; or
(b) concerning a breach or possible
breach of this Act or the regulations; or
(c) concerning
an accident or dangerous occurrence that has happened in the performing of work
for an employer;
and the investigator must conduct an investigation
accordingly, unless:
(d) in the case of a direction given
by Comcare—Comcare or the Commission revokes the direction; or
(e) in the case of a direction given
by the Commission—the Commission revokes the direction.
(3) Comcare or the Commission may, in
writing, direct an investigator, whether a member of the staff of Comcare or
not, to conduct an investigation concerning the occupational health and safety
policies and practices of an Entity, a Commonwealth authority or a non‑Commonwealth
licensee, and the investigator must conduct an investigation accordingly,
unless:
(a) in the case of a direction given
by Comcare—Comcare or the Commission revokes the direction; or
(b) in the case of a direction given
by the Commission—the Commission revokes the direction.
(4) Before Comcare or the Commission gives a
direction under subsection (3), the body about to give the direction must
inform the principal officer of the Entity, or
the chief executive officer of the Commonwealth authority or of the non‑Commonwealth
licensee, as the case may be, of:
(a) the fact that an investigation of the Entity or authority is to be conducted; and
(b) the subject matter of the proposed
investigation.
(5) An employee representative in relation to
an employee may, if requested by the employee, make a request to Comcare or to the
Commission that an investigation be conducted at a workplace at which the
employee performs work for an employer.
42
Power of entry
(1) In conducting an investigation, an
investigator may, to the extent that it is reasonably necessary to do so in connection
with the investigation, enter, at any reasonable time during the day or night,
a workplace and:
(a) search the workplace; or
(b) inspect, examine, take
measurements of or conduct tests concerning the workplace or any plant,
substance or thing at the workplace; or
(c) take photographs, or make
sketches, of the workplace or any plant, substance or thing at the workplace.
(2) Immediately upon entering the workplace,
an investigator must take all reasonable steps to notify:
(a) the person who is for the time
being in charge of operations at the workplace; and
(b) if
there is a health and safety representative for a designated work group in
which there is included an employee performing, at the workplace, work to which
the investigation may relate—that representative;
of the purpose for which the investigator has entered the
workplace, and must, upon being requested to do so by the person referred to in
paragraph (a), produce for inspection by that person:
(c) the investigator’s identity card;
and
(d) a copy of the Commission’s written
direction (if any) to conduct the investigation; and
(e) a copy of the restrictions (if
any) imposed on the powers of the investigator under subsection 40(5).
(3) Where an investigator who has entered a
workplace fails to produce documents for inspection as required by subsection (2)
upon being requested to do so in accordance with that subsection, the
investigator ceases to be entitled to remain at the workplace.
43
Power to require assistance and information
(1) An investigator may, to the extent that
it is reasonably necessary to do so in connection with the conduct of an
investigation, require:
(a) the
principal officer of an Entity or the chief executive officer of a
Commonwealth authority or of a non‑Commonwealth licensee; or
(b) any person representing a principal officer or chief executive officer; or
(c) any owner or occupier of a
workplace at which the investigation is being conducted; or
(d) any
employee or contractor;
to give to the investigator reasonable assistance, to
answer any questions put by the investigator, and to give to the investigator
any documents requested by the investigator or copies of such documents, in
connection with the conduct of the investigation.
(2) A person must comply with a requirement
made of the person under subsection (1).
Note: A person who breaches subsection (2) may
be subject to civil action or a criminal prosecution (see Schedule 2).
(3) If a person gives an investigator
documents or copies of documents under subsection (1), the investigator
must return them to the person as soon as practicable after:
(a) they are no longer needed in
connection with the conduct of the investigation; and
(b) either:
(i) a decision is made by
the investigator not to use the documents or copies in evidence for
proceedings for an offence against this Act or the regulations; or
(ii) the documents or
copies have been used in such proceedings.
44
Power to take possession of plant, take samples of substances etc.
(1) In conducting an investigation, an
investigator 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 workplace in connection with the
investigation:
(a) take possession of the plant,
substance or thing and remove it from the workplace; or
(b) take a sample of the substance or
thing and remove that sample from the workplace.
(2) Upon taking possession of plant, a
substance or a thing, or taking a sample of a substance or thing, the
investigator shall, by notice in writing, inform:
(a) the employer for which work is
performed using the plant, substance or thing; and
(b) where the plant, substance or
thing is owned by a person other than an employer—that person; and
(c) if
there is a health and safety representative for a designated work group in
which there is included an employee performing, at the workplace, work to which
the investigation 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) Where an investigator gives a notice to
an employer under subsection (2) concerning any plant, substance or thing
of which the investigator has taken possession, the employer must cause a copy
of the notice to be displayed in a prominent place at the workplace from which
the plant, substance or thing was removed.
(4) Where the investigator 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 investigator must:
(a) ensure that the inspection,
examination, measuring or testing is conducted as soon as is reasonably
practicable after the investigator takes possession of the plant, substance or
thing; and
(b) return the plant, substance or
thing to the workplace as soon as is reasonably practicable after the
inspection, examination, measuring or testing has been completed.
(5) As soon as is reasonably practicable
after the completion of any such inspection, examination, measurement or
testing, the investigator must give, to each person to whom the investigator is
required under subsection (2) to notify of the removal, a written
statement setting out the results of the inspection, examination, measurement
or testing.
45
Power to direct in writing that workplace etc. not be disturbed
(1) In conducting an investigation, an
investigator may, if he or she is satisfied that it is reasonably necessary to
give a direction under this subsection 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 workplace or any plant, substance or thing at a workplace;
direct, by written notice given to the person who is, or
who may reasonably be presumed to be, for the time being in charge of
operations at the workplace, that the person ensure that:
(c) a particular workplace, or a
specified part of a particular workplace; or
(d) particular
plant, or a particular substance or thing;
not be disturbed for the period, specified in the
direction, that is, in the investigator’s opinion, necessary in order to remove
the threat or to allow the inspection, examination, measuring or testing to
take place.
(2) The direction may be renewed by the
giving of another direction under subsection (1) in the same terms.
(3) Where an investigator gives a notice to a
person under subsection (1), that person must cause the notice to be
displayed in a prominent place at the workplace:
(a) that is, or a specified part of
which is, under the notice, to be left undisturbed; or
(b) at which the plant, substance or
thing that is, under the notice, to be left undisturbed, is located;
until the direction has expired, been revoked or been
varied.
(4) As soon as is reasonably practicable
after giving the direction, the investigator must take all reasonable steps to
notify:
(a) where the workplace, plant,
substance or thing to which the direction relates is owned by a person other
than an employer—that person; and
(b) if there is a health and safety
representative for a designated work group in which there is included an
employee performing work:
(i) at a workplace or a
part of a workplace; or
(ii) involving
the plant, substance or thing;
to
which the direction relates—that representative;
of the giving of the direction and the reasons for giving
the direction.
(5) An
employer who has control over the workplace, plant, substance or thing to which
the direction relates, and whose employees use the workplace, plant, substance
or thing in the performance of work for the employer, must ensure the direction
is complied with.
Note: An employer who breaches subsection (5)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(6) The direction must include the reasons
for the giving of the direction.
(7) An investigator may revoke or vary a
direction given under this section by giving a written notice to that effect to
the person who is, or who may reasonably be presumed to be, for the time being
in charge of operations at the workplace.
(8) If a direction is varied:
(a) a copy of the text of the original
direction and any variations to it must be included in the notice; and
(b) the person to whom the written
notice is given must cause that notice to be displayed in a prominent place at
the workplace:
(i) that is, or a
specified part of which is, under the notice, to be left undisturbed; or
(ii) at which the plant,
substance or thing that is, under the notice, to be left undisturbed, is
located;
until the direction has expired,
been revoked or been varied; and
(c) the investigator must take all
reasonable steps to notify people who were notified of the giving of the
direction under subsection (1) of the variation of the direction and the
terms of the varied direction.
45A
Power to direct orally that workplace etc. not be disturbed
(1) An investigator may orally direct the
person who is, or who may reasonably be presumed to be, for the time being in
charge of operations at the workplace to ensure that a workplace, a part of a
workplace, plant, a substance or a thing not be disturbed for a specified
period if the investigator:
(a) considers on reasonable grounds
that it is necessary to give the oral direction in order to:
(i) remove an immediate
threat to the health or safety of any person; or
(ii) allow the inspection,
examination or taking of measurements of, or conducting of tests concerning, a
workplace or any plant, substance or thing at a workplace; and
(b) considers on reasonable grounds
that there is not adequate time available to make a direction by written notice
under section 45.
(2) The specified period:
(a) must be no longer than the period
that the investigator considers on reasonable grounds is necessary in order to
remove the threat or to allow the inspection, examination, measuring or testing
to take place; and
(b) must end no later than 48 hours
after the direction is given.
(3) An employer who has control over the
workplace, plant, substance or thing to which the direction relates, and whose
employees use the workplace, plant, substance or thing in the performance of
work for the employer, must ensure the direction is complied with.
Note: If an employer breaches subsection (3),
the employer may be subject to civil action or a criminal prosecution (see
Schedule 2).
(4) The oral direction ceases to have effect
at the earliest of the following times:
(a) the time when the specified period
under subsection (2) ends;
(b) the time when the oral direction
is revoked under subsection (5);
(c) the time when a direction under
section 45 is given if that direction is made for the purposes of the same
investigation and in respect of:
(i) the same workplace,
part of a workplace, plant, substance or thing; and
(ii) the same threat,
inspection, examination, measuring or testing;
as the oral direction.
(5) The direction may be revoked by informing
the person who is for the time being in charge of operations at the workplace
that the direction is revoked.
(6) The direction cannot be renewed or varied
and no other direction under this section may be made for the purposes of the
same investigation and in respect of:
(a) the same workplace, part of a
workplace, plant, substance or thing; and
(b) the same threat, inspection,
examination, measuring or testing;
as the first‑mentioned direction.
46
Power to issue prohibition notices
(1) Where, having conducted an investigation,
an investigator forms the opinion that it is reasonably necessary to issue a
prohibition notice to an employer in order to remove an immediate threat to the
health or safety of any person, the investigator may issue such a notice, in
writing, to the employer.
(2) The notice must be issued to the employer
by giving it to the person who is, or who may reasonably be presumed to be, for
the time being in charge of the activity, undertaken by the employer, in
respect of which, in the investigator’s opinion, the threat to health or safety
has arisen.
(3) The notice must:
(a) specify the activity in respect of
which, in the investigator’s opinion, the threat to health or safety has
arisen, and set out the reasons for that opinion; and
(b) either:
(i) direct the employer to
ensure that the activity is not engaged in; or
(ii) direct the employer to
ensure that the activity is not engaged in in a specified manner, being a
manner that 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; and
(c) specify a period for compliance
with the notice that the investigator considers on reasonable grounds is
sufficient to enable compliance.
(4) The
employer must ensure that, to the extent that the notice relates to any matter
over which the employer has control, the notice is complied with.
Note: An employer who breaches subsection (4)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(5) Where an investigator is satisfied that
action taken by an employer to remove the threat to health and safety that caused
the notice to be issued is not adequate to remove that threat, the investigator
must inform the employer accordingly.
(6) The notice ceases to have effect when:
(a) an investigator notifies the
employer that the investigator considers that the employer has taken adequate
action to remove the threat to health or safety that caused the notice to be
issued; or
(b) the notice is revoked under subsection (11).
(7) In making a decision under subsection (5),
an investigator may exercise such of the powers of an investigator conducting
an investigation as the investigator considers necessary for the purposes of
making the decision.
(8) The notice may specify action that may be
taken in order to satisfy an investigator that adequate action has been taken to
remove the threat to health and safety that caused the notice to be issued.
(9) The employer must:
(a) give a copy of the notice to each
health and safety representative (if any) for a group of the employer’s
employees performing work that is affected by the notice; and
(b) cause a copy of the notice to be
displayed, until the notice has expired, been revoked or been varied, in a
prominent place at or near each workplace at which that work is being
performed.
(10) Where the notice relates to any workplace,
plant, substance or thing that is owned by a person other than an employer, the
investigator must, upon issuing the notice, give a copy of the notice to that
person.
(11) An investigator may revoke or vary a
notice (the original notice) given under this section by giving a
written notice (the new notice) to that effect to the person who
is, or who may be presumed on reasonable grounds to be, for the time being in
charge of the activity in respect of which the original notice was issued.
(12) If the original notice is varied:
(a) the new notice must set out the
text of the original notice and the variations to it; and
(b) the text of the new notice must
specify a period for compliance with the new notice that the investigator
considers on reasonable grounds is sufficient to enable compliance; and
(c) the employer must cause a copy of
the new notice to be displayed, until the new notice has expired, been revoked
or been varied, in a prominent place at or near each workplace at which work
affected by the notice is being performed; and
(d) the investigator and employer must
take all reasonable steps to give a copy of the new notice to each person to
whom they gave copies of the original notice.
47
Power to issue improvement notices
(1) Where, having conducted an investigation,
an investigator forms the opinion that a person:
(a) is breaching a provision of this
Act or the regulations; or
(b) has
breached a provision of this Act or the regulations and is likely to breach
that provision again;
the investigator may issue an improvement notice, in
writing, to the person (in this section called the responsible person).
(2) Where the responsible person is an
employer but it is not reasonably practicable to issue the notice to the
employer by giving it to the employer, the improvement notice may be issued to
the employer by giving it to the person who is, or who may reasonably be
presumed to be, for the time being in charge of the activity, undertaken by the
employer, in connection with which, in the investigator’s opinion, the employer
is breaching, or is likely to breach, this Act or the regulations and, where
the notice is so issued, a copy of the notice must be given to the employer as
soon as practicable thereafter.
(2A) The notice has effect as soon as it is
given to a person under subsection (1) or (2).
(3) The notice
must:
(a) specify the breach of the
provision of this Act or the regulations that, in the investigator’s opinion,
is occurring or is likely to occur, and set out the reasons for that opinion;
and
(b) specify a period, being a period
that is, in the investigator’s opinion, reasonable, within which the
responsible person is to take the action necessary to prevent any further
breach of the provision or to prevent the likely breach of the provision, as
the case may be.
(4) The notice may specify action that the
responsible person is to take during the period specified in the notice under paragraph (3)(b).
(5) Where, in the investigator’s opinion, it
is appropriate to do so, the investigator may, in writing and before the end of
the period, extend the period specified in the notice.
(6) The
responsible person must ensure that, to the extent that the notice relates to
any matter over which the person has control, the notice is complied with.
Note: A responsible person who breaches subsection (6)
may be subject to civil action or a criminal prosecution (see Schedule 2).
(8) Where the notice is issued to an
employer, the employer must:
(a) give a copy of the notice to each
health and safety representative for a designated work group of the employer’s
employees performing work that is affected by the notice; and
(b) cause a copy of the notice to be
displayed, until the notice has expired, been revoked or been varied, in a
prominent place at or near each workplace at which that work is being
performed.
(9) Upon issuing the notice, the investigator
must give a copy of the notice to:
(a) where the notice is issued to an
employee in connection with work performed by the employee for an employer—that
employer; and
(b) where the notice relates to any
workplace, plant, substance or thing that is owned by a person, not being the
responsible person or a person who is an employer referred to in paragraph (a)—that
owner; and
(c) where the notice is issued to a
person (not being an employer) who owns any workplace, plant, substance or
thing by reason of which a breach of this Act or the regulations has occurred
or is likely to occur—the employer of the employees who work in that workplace
or who use that plant, substance or thing.
(10) An investigator may revoke or vary a
notice (the original notice) given under this section by giving a
written notice (the new notice) to that effect to the person who
is, or who may reasonably be presumed to be, for the time being in charge of
the activity in respect of which the original notice was issued.
(11) If the original notice is varied:
(a) the new notice must set out the
text of the original notice and the variations to it; and
(b) the text of the new notice must
specify a period that the investigator considers is reasonable, within which
the employer must comply with the new notice; and
(c) the employer must cause a copy of
the new notice to be displayed, until the new notice has expired, been revoked
or been varied, in a prominent place at or near each workplace at which work
affected by the new notice is being performed; and
(d) the investigator and employer must
take all reasonable steps to give a copy of the new notice to each person to
whom they gave copies of the original notice.
48
Appeals
(1) Where an investigator, in conducting an
investigation or having conducted an investigation:
(a) decides, under section 29, to
confirm or vary a provisional improvement notice; or
(b) decides, under section 44, to
take possession of plant, a substance or a thing at a workplace; or
(c) decides, under section 45, to
direct that a workplace, a part of a workplace, plant, a substance or a thing
not be disturbed; or
(ca) decides, under section 45, to
revoke or vary a direction that a workplace, a part of a workplace, plant, a
substance or a thing not be disturbed; or
(cb) decides, under section 45A,
to direct that a workplace, a part of a workplace, plant, a substance or a
thing not be disturbed; or
(d) decides, under section 46, to
issue a prohibition notice; or
(da) decides, under section 46, to
revoke or vary a prohibition notice; or
(e) decides, under section 46,
that an employer 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 section 47, to issue an improvement notice; or
(fa) decides, under section 47, to
revoke or vary an improvement notice;
an appeal against the decision may be made, by notice in
writing, to the reviewing authority by:
(g) an employer affected by the
decision; or
(h) a person to whom a notice has been
issued under subsection 29(2) or 47(1); or
(j) the health and safety
representative for a designated work group in which is included an employee
affected by the decision; or
(l) an employee representative in
relation to the designated work group that includes an employee affected by the
decision who has requested the employee representative to make the appeal; or
(m) if there is no such designated work
group and an employee affected by the decision has requested an employee
representative in relation to the employee to make the appeal—that employee
representative; or
(n) a person who owns any workplace,
plant, substance or thing to which the decision referred to in paragraph (a),
(b), (c) or (f) relates.
(2) Where an investigator, having conducted
an investigation:
(a) decides, under section 29 to
cancel a provisional improvement notice; or
(b) decides,
under section 46, that an employer to which 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 in which is included an employee
affected by the decision; or
(d) if an employee affected by the
decision has requested an employee representative in relation to the designated
work group to make the appeal—that employee representative; or
(e) if there is no such designated
work group and an employee affected by the decision has requested an employee
representative in relation to the employee to make the appeal—that employee
representative.
(3) Subject to this section, the making of an
appeal against a decision referred to in subsection (1) or (2) does not
affect the operation of the decision or prevent the taking of action to
implement the decision, except to the extent that the reviewing authority makes
an order to the contrary.
(4) Where the decision appealed against is a
decision, under section 47, 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.
(5) Where the decision appealed against is a
decision of an investigator, under section 29, to confirm or vary a
provisional improvement notice the operation of which has been suspended
pending the investigation of the matter to which the notice relates by the
investigator, 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.
(6) The reviewing authority may affirm or
revoke the decision appealed against under subsection (1) or (2) and may,
if it revokes the decision, substitute for the decision such other decision,
being a decision of the kind appealed against, as it thinks appropriate.
(7) Where the decision is varied, revoked or
revoked with the substitution of another decision, the decision is to be taken
to have effect, and to always have had effect, accordingly.
(8) Where the decision appealed against is a
decision, under section 44, to take possession of plant, substance or a
thing at a workplace, and the decision is not affirmed, the investigator 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
is reasonably practicable.
49
Liability of investigators
An investigator is not subject to any
civil liability in respect of any act done, in good faith, in connection with:
(a) the conduct of an investigation by
the investigator; or
(b) the exercise of any of his or her
powers under this Part in relation to the investigation.
50
Notices not to be tampered with or removed
A person must not:
(a) tamper with any notice, or copy of
a notice, that has been displayed under subsection 44(3), 45(3), 45(8), 46(9),
46(12), 47(8) or 47(11) while that notice is so displayed; or
(b) remove any notice, or copy of a
notice, that has been so displayed:
(i) in the case of a
notice displayed under subsection 44(3)—until the plant or thing to which the
notice relates is returned to the workplace from which it was removed; or
(ii) in the case of a
notice displayed under subsection 45(3), 45(8), 46(9), 46(12), 47(8) or
47(11)—before the notice, or direction to which the notice relates, as the case
requires, has expired or been revoked or a new notice issued following the
variation of the notice or direction.
Note: A person who breaches section 50 may be
subject to a criminal prosecution (see Schedule 2).
51
Arrangements with States for services of State officers
Arrangements
may be made in accordance with section 71 of the Public Service Act
1999 for officers of the Public Service of a State or Territory to exercise
the powers and perform the duties of investigators under this Part.
Division 3—Inquiries and reports
52
Application
This Division (other than section 53)
does not apply to a Government business enterprise or a non‑Commonwealth
licensee.
53
Report of investigation
(1) Where an investigator has conducted an
investigation, the investigator must, as soon as is reasonably practicable,
prepare a written report relating to the investigation and give the report to
the Commission.
(2) The report must include:
(a) the investigator’s conclusions
from conducting the investigation and the reasons for those conclusions; and
(b) any recommendations that the
investigator wishes to make arising from the investigation or those
conclusions; and
(c) such other matters, if any, as are
prescribed.
(3) As soon as is reasonably practicable
after receiving the report, the Commission must:
(a) give a copy of the report,
together with any written comments that it wishes to make, to the employer; and
(b) if the employer is the
Commonwealth or a Commonwealth authority and the Commission thinks it
appropriate to do so—give a copy of the report, together with those comments
(if any), to the responsible Minister in relation to the employer.
(4) The Commission may, in writing, request
the employer to provide to the Commission, within a reasonable period specified
in the request, particulars of:
(a) any action that is proposed to be
taken as a result of the conclusions or recommendations contained in the
report; and
(b) where
a notice has been issued under section 46 or 47 in relation to work being
performed for the employer—any action that has been taken, or that is proposed
to be taken, in respect of that notice;
and the employer must comply with the request.
(5) As soon as is reasonably practicable
after the receipt of a report, the employer must give a copy of the report
together with any written comment made by the Commission relating to the
report:
(a) if there is at least one health
and safety committee established in respect of some or all of the employer’s
employees to whose work the report relates—to each such committee; and
(b) if there is no such committee
established in respect of some or all of the employer’s employees to whose work
the report relates, but some or all of those employees (in respect of which
there is no such committee) are included in at least one designated work group
for which there is a health and safety representative—to each such health and
safety representative.
54
Power to obtain information and documents
(1) Where the Commission has reason to believe
that a person is capable of giving information or producing documents relevant
to a matter dealt with in a report under subsection 53(1), the Commission may,
at any time after receiving the report and before commencing an inquiry under
section 55, by notice in writing served on that person, require that
person at such place, and within such period or on such date and at such time,
as are specified in the notice, to give to the Commission any such information
or to produce to the Commission any such documents.
(2) A person must comply with a requirement
under subsection (1).
Note: A person who breaches subsection (1) may
be subject to a criminal prosecution (see Schedule 2).
55
Commission may conduct public inquiry
(1) The Commission may, at any time after
receiving a report under subsection 53(1) and before preparing a report under
section 65, conduct an inquiry into any matter arising out of the first‑mentioned
report.
(2) The Commission may hold the whole or any
part of an inquiry in private if, in the opinion of the Commission, it is
necessary or desirable in the public interest to do so.
(3) Where proceedings are held in private,
the Commission may inform itself on any matter in such manner as it thinks fit.
(4) Where proceedings are held in public:
(a) evidence in the proceedings must,
subject to this subsection, be taken on oath or affirmation; and
(b) the Commission may, if it thinks
fit, permit a person appearing as a witness to give evidence by tendering, and
verifying by oath or affirmation, a written statement; and
(c) where the Commission considers
that the attendance of a person as a witness would cause serious hardship to
the person, the Commission may permit the person to give evidence by sending to
the Commission a written statement, verified in such manner as the Commission
directs; and
(d) where evidence is given by a
written statement in accordance with paragraph (b) or (c), the Commission
must make available to the public in such manner as the Commission thinks fit
the contents of the statement, other than any matter as to which the Commission
is satisfied that its publication would be contrary to the public interest by
reason of its confidential nature or any other reason.
(5) Subject to this section:
(a) the procedure to be followed at an
inquiry is within the discretion of the Commission; and
(b) the Commission is not bound by the
rules of evidence.
56
Power to summon witnesses
A member of the Commission may, by
instrument in writing, summon a person to appear before the Commission at a
time and place specified in the summons to give evidence and produce such
documents (if any) as are referred to in the summons.
57
Failure of witness to attend
(1) A person
served with a summons under section 56 must not:
(a) fail to attend as required by the
summons; or
(b) fail
to appear and report from day to day.
Note: A person who breaches section 57 may
be subject to a criminal prosecution (see Schedule 2).
58
Power to administer oath or affirmation
A member of the Commission may
administer an oath or affirmation to a person appearing as a witness.
59
Failure to be sworn or to answer questions
(1) A person appearing as a witness must not:
(a) fail to comply with a requirement
by a member of the Commission to be sworn or to make an affirmation; or
(b) fail to answer a question that he
or she is required to answer by a member of the Commission; or
(c) fail
to produce a document that he or she was required to produce by a summons
served on him or her.
Note: A person who breaches section 59 may
be subject to a criminal prosecution (see Schedule 2).
60
Protection of members and witnesses
(1) A member of the Commission has, in the
exercise of powers and the performance of duties and functions as a member in
relation to an inquiry, the same protection and immunity as a Justice of the
High Court.
(2) Subject to this Act, a person appearing
as a witness has the same protection, and is, in addition to the penalties
provided by this Act, subject to the same liabilities, as a witness in
proceedings in the High Court.
61
Contempt of Commission
A person must not:
(a) insult or disturb a member of the
Commission in the exercise of his or her powers or the performance of his or
her functions or duties as a member of the Commission; or
(b) interrupt an inquiry; or
(c) use insulting language towards a
member of the Commission; or
(d) create a disturbance, or take part
in creating or continuing a disturbance, in a place where the Commission is
holding an inquiry; or
(e) do
any other act or thing that would, if the Commission were a court of record,
constitute a contempt of that court.
Note: A person who breaches section 61 may
be subject to a criminal prosecution (see Schedule 2).
62
Powers of Commission in relation to documents produced
(1) A member of the Commission may inspect
any books or documents furnished to the Commission for the purposes of the
performance of its functions under this Act or produced at an inquiry and may
make copies of, or take extracts from, those books or documents.
(2) A book or document so furnished may be
retained by the Commission for such reasonable period as is necessary for the
purposes of the Commission, but during that period the Commission must permit a
person otherwise entitled to possession of the book or document to inspect,
make copies of, and take extracts from, the book or document at such places and
times as the Commission thinks appropriate.
63
Allowances to witnesses
A person served with a summons under
section 56 is entitled to be paid by the Commonwealth such allowances for
travelling and other expenses as are prescribed.
64
Witness not to be prejudiced in employment
An employer must not:
(a) dismiss, or threaten to dismiss,
an employee from his or her employment; or
(b) do an act that results in an
employee being injured in his or her employment; or
(ba) threaten to injure an employee in
his or her employment; or
(c) prejudice,
or threaten to prejudice, an employee in his or her employment;
because the employee:
(d) has appeared, or proposes to
appear, as a witness at an inquiry; or
(e) has
given, or proposes to give, any evidence at an inquiry.
Note: A person who breaches section 64 may
be subject to a civil action (see Schedule 2).
65
Report to be given to Minister in certain circumstances
(1) Where, under subsection 53(4), the
Commission has made a request to an employer for particulars of any action
proposed to be taken as a result of conclusions or recommendations contained in
a report under section 53 or taken or proposed to be taken in respect of a
notice issued under section 46 or 47 and:
(a) the employer fails, without
reasonable excuse, to provide the particulars within the period specified in
the request; or
(b) the action taken or proposed to be
taken is not, in the Commission’s opinion, adequate having regard to the duties
imposed by the Act and the regulations; or
(c) so
far as action not yet taken is concerned—the Commission forms the opinion that
the action proposed to be taken as a result of the conclusions or recommendations
contained in the report, or proposed to be taken in respect of a notice issued
under section 46 or 47, has not been taken within a reasonable time;
the Commission may prepare and give to the Minister a
report to this effect, being a report that includes:
(d) a copy of the report under section 53;
and
(e) a copy of any response by the
employer to that request; and
(f) where the Commission has
conducted an inquiry under section 55—the findings of that inquiry.
(2) The Minister must cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after the report is given to the Minister.
66
Report to be given to Minister of failures to comply with directions etc.
(1) Where the Commission forms the opinion
that an employer has failed to comply with:
(a) a direction given under section 45
or 45A; or
(b) a
notice issued under section 46 or 47;
the Commission may prepare and give to the Minister a
report to this effect.
(2) The Minister must cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after the report is given to the Minister.
67
Delegation by Commission
Where the Commission has, under the Safety,
Rehabilitation and Compensation Act 1988, delegated its powers under this
Division, this Division has effect as if any reference in this Division to the
Commission or to a member of the Commission were a reference to the person to
whom the power has been delegated.
Part 4A—Recovery of cost of administering Act
Division 1—Charges for services
67A
Power of Commission to enter into arrangements
(1) The Commission may enter into an
arrangement with the principal officer of an Entity or a Commonwealth authority
under which:
(a) the Commission will provide to the
Entity or authority specified services related
to the performance by the Commission of its functions under this Act; and
(b) the Entity
or authority will pay such amount for the provision of those services as is
agreed between them.
(2) Any amount payable under such an
arrangement is a debt due to the Commonwealth and payable to Comcare.
Division 2—Contributions
67B
Estimates of contributions
(1) The Commission must prepare an estimate
of the amount of contribution to the cost of the administration of this Act by
the Commission that is to be paid by each Entity
or Commonwealth authority for each financial year to which this Division
applies.
(2) The estimate in relation to an Entity or authority for the financial year
referred to in subsection (4) may include an amount in respect of the cost
of the administration of this Act during the period from the commencement of
this Act to the commencement of that financial year.
(3) An estimate is to be in such form as the
Commission considers appropriate or, if the Minister has given a direction as
to the form in which estimates are to be prepared under this section, in
accordance with the direction.
(4) The period starting on the date of
commencement of this Part or 1 July 1992, whichever is the later, and
ending on 30 June 1993 is taken to be a financial year to which this
Division applies.
(5) The financial year starting on 1 July 1993 and each subsequent financial year before the financial year starting on 1 July 2002 are financial years to which this Division applies.
67C
Amount of contribution
In estimating the amount of the
contribution of an Entity or a Commonwealth authority
for a financial year, the Commission must have regard to:
(a) any information given to the
Commission under section 96C of the Safety, Rehabilitation and
Compensation Act 1988; and
(b) the costs likely to be incurred by
the Commission, including costs likely to be incurred by Comcare on behalf of
the Commission, in the performance or exercise of the functions and powers of
the Commission under this Act (other than section 67A) in relation to the Entity or authority during the financial year; and
(c) the premiums (if any) paid or
payable by the Entity or authority under
Division 4A of Part VII of the Safety, Rehabilitation and
Compensation Act 1988 for the financial year; and
(d) the past, and estimated future,
incidence and cost of injury or disease suffered by, or accidents to, employees
of the Entity or authority in their workplace;
and
(e) the money appropriated by the
Parliament for the purposes of the performance by the Commission of its
functions under this Act.
67D
Information to be given to Commission
(1) The principal officer of an Entity or a
Commonwealth authority must, on written request by the Commission, give to the
Commission the information specified in the request, being information needed
by the Commission to enable it to prepare an estimate under section 67C in
relation to the Entity or authority for a
financial year.
(2) The information is to be given not later
than a date specified in the request, which must be not earlier than 21 days
after the request is made.
67E
Review by Commission
(1) When the Commission prepares an estimate
under section 67B, the Commission must give a copy of the estimate to the
principal officer of the Entity or the Commonwealth authority to which the
estimate relates.
(2) If the principal officer objects to the
estimate, the principal officer may, by written notice of objection given to
the Commission within 14 days after receipt of the copy of the estimate, ask
the Commission to review the estimate.
(3) A notice of objection must set out the
grounds of the objection.
(4) As soon as practicable after receiving a
notice of objection, the Commission must:
(a) review the estimate to which the
notice relates; and
(b) give written notice of the result
of the review to the principal officer of the Entity or the Commonwealth
authority concerned.
(5) After reviewing an estimate the
Commission must:
(a) confirm the estimate; or
(b) vary the estimate in such manner
as it thinks fit and confirm the estimate as so varied.
67F
Review by Minister
(1) If:
(a) an estimate in relation to an Entity or a Commonwealth authority has been
reviewed under section 67E; and
(b) the
principal officer of the Entity or the Commonwealth authority objects to the
estimate (or the estimate as varied as a result of the review);
the principal officer may, by written notice of objection
given to the Minister within 14 days after the date of the notice mentioned in
paragraph 67E(4)(b), ask the Minister to review the estimate, or the estimate
as so varied, as the case may be.
(2) A notice of objection must set out the
grounds of the objection.
(3) On receipt of a notice of objection, the
Minister must review the estimate, or the estimate as varied under section 67E.
(4) After completing a review the Minister
must:
(a) confirm the estimate that is the
subject of the review; or
(b) vary that estimate in such manner
as the Minister thinks fit and confirm it as so varied.
67G
Confirmation of estimates
(1) If the Commission is not required to
review an estimate under section 67E, the estimate is taken to have been
confirmed, and the confirmation is taken to have taken effect, immediately
after the end of the period of 14 days mentioned in subsection 67E(2).
(2) If the Commission confirms an estimate
(or an estimate as varied by it) under subsection 67E(5), the confirmation does
not take effect if the Minister is required under section 67F to review
the estimate (or the estimate as so varied).
(3) If the Minister is not required under
section 67F to review an estimate (or an estimate as varied by the
Commission), the Commission’s confirmation of the estimate (or the estimate as
so varied) takes effect immediately after the end of the period of 14 days
mentioned in subsection 67F(1).
(4) The Minister’s confirmation of an
estimate (or an estimate as varied under section 67E or 67F) takes effect
on the date of the confirmation.
67H
Payment of contribution
(1) If the confirmation of an estimate (or an
estimate as varied under section 67E or 67F) in relation to an Entity or a Commonwealth authority for a
financial year takes effect:
(a) the Commission must give written
notice to the principal officer of the Entity or the authority accordingly; and
(b) the confirmed amount is the
contribution of the Entity or authority for
that financial year.
(2) The contribution is payable within such
period as is specified in the notice referred to in paragraph (1)(a).
67J
Penalty for late payment
(1) If a contribution is not paid in full
within the period referred to in subsection 67H(2), the Entity or Commonwealth authority is liable to pay, in addition to
the contribution, a penalty equal to the determined percentage of the sum of
the unpaid contribution and any unpaid penalty, calculated at the end of each
month or part of a month after the end of that period until the contribution is
paid in full.
(2) The determined percentage is such
percentage as the Commission determines with the approval of the Minister but
not exceeding:
(a) 1.5%; or
(b) if another percentage is
prescribed—that other percentage.
67K
Recovery of contribution and penalty
An amount of contribution, or of penalty
under section 67J, is a debt due to the Commonwealth and payable to
Comcare.
Part 5—Miscellaneous
68
Notification of accidents and dangerous occurrences
(1) If an employer is conducting an
undertaking, and there arises out of the conduct of the undertaking or out of
work performed by an employee in connection with the undertaking:
(a) an accident that causes the death
of, or serious personal injury to, any person; or
(b) an accident that causes an
employee who performs work in connection with the undertaking to be
incapacitated from performing work for a period prescribed for the purposes of
this paragraph; or
(c) a
dangerous occurrence;
the employer must, in accordance with the regulations,
give to the Commission such notice of the accident or dangerous occurrence as
the regulations require.
(2) Without limiting the provision that may
be made by regulations made for the purposes of this section, the regulations
(not being regulations made for the purpose of paragraph (1)(b)) may
include provisions relating to:
(a) the time within which notice of an
accident or dangerous occurrence must be given; and
(b) the manner in which the notice
must be given; and
(c) the form of the notice.
69
Records of accidents and dangerous occurrences to be kept
(1) An employer must maintain, in accordance
with the regulations, a record of each accident or dangerous occurrence in
respect of which the employer is required by section 68 to notify the
Commission.
(2) Without limiting the provision that may
be made by regulations made for the purposes of this section, such regulations
may include provision concerning:
(a) the nature of the contents of a
record maintained under this section; and
(b) the period for which such a record
must be retained.
70
Codes of practice
(1) For the purpose of providing practical
guidance to employers, the Minister may approve codes of practice prepared by
the Commission or by any other body, and may amend or revoke any code of
practice so approved.
(2) Without limiting the generality of the matters
that may be included in codes of practice prepared by the Commission, the
Commission must, in respect of each advisory standard or code declared after
this subsection commences, as soon as practicable after that advisory standard
or code is declared, incorporate in a code of practice prepared by the
Commission for Ministerial approval under this section so much of that advisory
standard or code:
(a) as is capable of relating to the
employment of employees; and
(b) as has not been applied, adopted
or incorporated, with or without modification, in regulations made for the
purposes of section 23.
(3) A code of practice incorporating a
document (other than an advisory standard or code) that is prepared by a body
may incorporate that document as in force at the time the code of practice is
approved or as amended by the body from time to time.
(4) Where the Minister approves or amends a
code of practice (including such a code as previously amended by the Minister),
the code as so approved or amended may be expressed by the Minister:
(a) to apply generally; or
(b) to apply only to occupational
health and safety matters in an area that is, or among employees who are,
specified by the Minister in the instrument of approval.
(5) Where the Minister approves, amends or
revokes a code of practice, the Minister must:
(a) cause to be published in the Gazette
a notice of the approval, amendment or revocation of the code of practice,
as the case may be; and
(b) cause to be laid before each House
of the Parliament, within 15 sitting days of that House after the day on which
the notice is published in the Gazette, a document setting out the code
of practice as approved, including any document incorporated in the code of
practice under subsection (3), or the amendment or revocation of the code
of practice, as the case may be.
(6) A document setting out a code of practice
or an amendment or revocation of a code of practice is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(7) The Commission must, at all times, ensure
that there is available for inspection at each of the offices of Comcare an up
to date copy of each document that is incorporated in a code of practice under subsection (3).
(8) A person is not liable to any civil or
criminal proceedings by reason only that the person has failed to observe a
provision of a code of practice approved by the Minister.
(9) In this section:
advisory standard or code means a national
standard, or a code of practice, in relation to an occupational health and
safety matter that is declared by the Australian Safety and Compensation
Council under subsection 6(1) of the Australian Workplace Safety Standards
Act 2005, other than a standard or code:
(a) that is to be treated, by operation
of subitem 7(2) of Schedule 1 to this Act, as if it had been so declared;
and
(b) that has not been amended or
varied since it was first required to be so treated.
71 Use
of codes of practice in proceedings
Where in any proceedings under this Act
it is alleged that a person breached a provision of this Act or the regulations
in relation to which an approved code of practice was in effect at the time of
the alleged breach or failure:
(a) the approved code of practice is
admissible in evidence in those proceedings; and
(b) 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 breach, that:
(i) any provision of the
approved code of practice is relevant to that matter; and
(ii) the
person failed at any material time to observe that provision of the approved
code of practice;
that matter is to be taken as
proved unless the court is satisfied that in respect of that matter the person
complied with that provision of this Act or the regulations otherwise than by
way of observance of that provision of the approved code of practice.
72
Interference etc. with equipment etc.
(1) A person must not:
(a) interfere with or render
ineffective; or
(b) require
or otherwise cause another person to interfere with or render ineffective;
any protective equipment or
safety device provided for the health, safety or welfare of employees or
contractors at work.
Note: A person who breaches section 72 may
be subject to a criminal prosecution (see Schedule 2).
73
Employer not to levy employees etc.
An employer must not levy, or permit to
be levied, on any of the employer’s employees any charge in respect of anything
done or provided, in accordance with this Act or the regulations, in order to
ensure the health, safety or welfare of the employees at work.
Note: An employer who breaches section 73 may
be subject to civil action (see Schedule 2).
74
Certain matters to be included in annual reports
(1) The annual report in relation to a financial
year:
(a) of each Entity
through which the Commonwealth acts; and
(b) of
each Commonwealth authority that is required, under the Act or other law by or
in accordance with which the authority is established or incorporated, to
prepare an annual report of its activities with a view to that report being
laid before each House of the Parliament;
must include details of the following matters:
(c) the health and safety management
arrangements of the Entity or authority;
(d) initiatives taken during the year
to ensure the health, safety and welfare at work of employees and contractors
of the Entity or authority;
(da) health and safety outcomes
(including the impact on injury rates of employees and contractors of the
Entity or authority) achieved as a result of initiatives mentioned under
paragraph (d) or previous initiatives;
(e) statistics of any accidents or
dangerous occurrences during the year that arose out of the conduct of
undertakings by the Entity or authority and
that required the giving of notice under section 68;
(f) any investigations conducted
during the year that relate to undertakings carried on by the employer,
including details of all notices given to the employer under section 29,
46 or 47 during the year;
(g) such other matters as are required
by guidelines approved on behalf of the Parliament by the Joint Committee of
Public Accounts and Audit.
(2) Where an annual report of the activities
of the Commonwealth authority is not required, under the Act or other law by or
in accordance with which the authority is established or incorporated, to be
prepared with a view to its being laid before each House of the Parliament, a
report concerning details, in relation to the authority in relation to a
particular financial year, of the matters referred to in subsection (1),
must be attached:
(a) if a controlling interest in the
Commonwealth authority is held, either directly or indirectly, by another
Commonwealth authority in respect of the activities of which an annual report
is so required to be prepared—to that annual report; or
(b) if a controlling interest in the
Commonwealth authority is not so held—to the annual report of the Entity or an Entity, administered by the
responsible Minister for the first‑mentioned authority.
75
Annual report of Commission
The annual report of the Commission in
respect of a financial year must contain a report on the operation of this Act
and the regulations during that year, being a report that includes:
(a) statistics, with appropriate
details, of all accidents and dangerous occurrences notified to the Commission
during the year under section 68; and
(c) statistics, with appropriate
details, of all:
(i) investigations
conducted; and
(ii) instances of the
taking of possession of plant, substances or things, or of the taking of
samples of substances or things under section 44; and
(iii) directions given under
sections 45 and 45A; and
(iv) notices issued under
sections 46 and 47; and
(v) appeals instituted
under section 48 against investigators’ decisions; and
(vi) requests
made under subsection 53(4);
during the year; and
(d) particulars of any directions
given by the Minister to the Commission under subsection 12(2) during the year;
and
(e) such other matters as are
prescribed.
75A
Annual report of Comcare
The
annual report of Comcare in respect of a financial year must include:
(a) details of all prosecutions
instituted under this Act and the regulations during the year; and
(b) particulars of any directions
given by the Minister to Comcare under subsection 12A(2) during the year; and
(c) such other matters as are
prescribed.
76
Employer not to dismiss etc. employees on certain grounds
(1) An employer must not:
(a) dismiss an employee; or
(b) do an act that results in an
employee being injured in his or her employment; or
(c) prejudicially alter the employee’s
position (whether by the deduction or withholding of remuneration or by any
other means); or
(d) threaten
to take action, in relation to the employee, that is referred to in paragraph (a),
(b) or (c);
because the employee:
(e) has complained or proposes to
complain about a matter concerning the health, safety or welfare of employees
at work; or
(f) has assisted or proposes to
assist, by the giving of information or otherwise, the conduct of an
investigation; or
(g) has ceased, or proposes to cease,
to perform work, in accordance with a direction by a health and safety
representative under paragraph 37(1)(b), not being a cessation or proposed
cessation that continues after:
(i) the health and safety
representative has agreed with a person supervising work the subject of the
direction, that the cessation or proposed cessation was not, or is no longer
necessary; or
(ii) an
investigator has, under subsection 37(4), made a decision that has the effect
that the employee should perform the work.
Note: An employer who breaches this section may be
subject to civil action (see Schedule 2).
77
Institution of proceedings
(1) Proceedings for a breach of this Act or
the regulations may be instituted by Comcare or by an investigator.
(2) A health and safety representative for a
designated work group may request Comcare to institute proceedings for a breach
of this Act or the regulations 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
a breach of this Act or the regulations; and
(c) proceedings in respect of the
breach have not been instituted.
(2A) An employee representative in relation to a
designated work group may request Comcare to institute proceedings for a breach
of this Act or the regulations 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 employee representative
considers that the occurrence of the act or omission constitutes a breach of
this Act or the regulations; and
(c) proceedings in respect of the breach
have not been instituted; and
(d) an employee included in the group
requests the employee representative to request Comcare to institute the
proceedings.
(2B) A request under subsection (2) or (2A)
must be in writing.
(3) Comcare must, within 3 months after
receiving a request under subsection (2) or (2A), advise the health and
safety representative or the employee representative, as the case may be,
whether proceedings under subsection (1) have been or will be instituted
or give reasons why such proceedings will not be instituted.
78
Conduct of directors, servants and agents
(1) Where, in proceedings for a breach of
this Act or the regulations, it is necessary to establish the state of mind of
a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a director, servant or agent of the body corporate within the scope of his or
her actual or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate by a director, servant or agent of the body corporate within the
scope of his or her actual or apparent authority is to be taken, for the
purposes of proceedings for a breach of this Act or the regulations, to have
been engaged in also by the body corporate unless the body corporate
establishes that the body corporate took reasonable precautions and exercised
due diligence to avoid the conduct.
(3) Where, in proceedings for a breach of
this Act or the regulations, it is necessary to establish the state of mind of
a person other than a body corporate in relation to particular conduct, it is
sufficient to show:
(a) that the conduct was engaged in by
a servant or agent of the person within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
state of mind.
(4) Any conduct engaged in on behalf of a
person other than a body corporate by a servant or agent of the person within
the scope of his or her actual or apparent authority is to be taken, for the
purposes of proceedings for a breach of this Act or the regulations, to have
been engaged in also by the first‑mentioned person unless the first‑mentioned
person establishes that the first‑mentioned person took reasonable precautions
and exercised due diligence to avoid the conduct.
(5) Where:
(a) a person other than a body
corporate is convicted of an offence; and
(b) the
person would not have been convicted of the offence if subsections (3) and
(4) had not been enacted;
the person is not liable to be punished by imprisonment
for that offence.
(6) A reference in subsection (1) or (3)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
79 Act
not to give rise to other liabilities etc.
Subject to section 80, nothing in
this Act:
(a) confers a right of action in any
civil proceedings (other than proceedings under Part 1 of Schedule 2)
in respect of any breach of a provision of this Act or the regulations; or
(b) confers a defence to an action in
any civil proceedings (other than proceedings under Part 1 of Schedule 2)
or otherwise affects a right of action in any civil proceedings (other than
proceedings under Part 1 of Schedule 2).
80
Effect of breach of Act etc. on contracts of employment etc.
(1) Subject to subsection (3), a breach
of this Act or the regulations by an employee is to be taken, for all purposes,
including, in the case of a person appointed or engaged under the Public
Service Act 1999 to be a breach of the terms and conditions upon which the
person is employed.
(2) Subject to subsection (3), where a
person who occupies an office or position established by an Act, other than the
Public Service Act 1999, breaches this Act or the regulations, that
breach may be taken into account in determining whether that person has been
guilty of misbehaviour for the purposes of that first‑mentioned Act.
(3) Subsections (1) and (2) do not apply
to a breach of this Act or of the regulations constituted by a refusal or
failure to do an act or thing (other than an act or thing that a person is
required to take all reasonably practicable steps to do) where, because of an emergency
prevailing at the time of the refusal or failure, it was not reasonably
practicable to do that act or thing.
(4) Any term of a contract of employment that
purports to exclude, restrict or modify, or has the effect of excluding,
restricting or modifying, the application of this section in relation to the
contract is void.
81
Circumstances preventing compliance with Act may be defence to prosecution
Where this Act or the regulations
require any act or thing to be done by a person, otherwise than in terms that
require the person to take all reasonably practicable steps to do that act or
thing, it is a defence to a prosecution of that person for refusing or failing
to do that thing if the person proves that, because of an emergency prevailing
at the time of the refusal or failure, it was not reasonably practicable to do
that act or thing.
82
Regulations
(1) The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary
or convenient to be prescribed for carrying out or giving effect to this Act;
and, without limiting the generality of the foregoing, may
make regulations prescribing:
(c) procedures for the election of
persons, under section 25A, as health and safety representatives; and
(f) the manner in which notices are
to be served under this Act or the regulations; and
(g) forms for the purposes of this Act
or the regulations; and
(h) civil or criminal penalties, for a
breach of the regulations, not exceeding:
(i) 50 penalty units for
an individual; or
(ii) 250 penalty units for
a body corporate.
(2) Where the Governor‑General is
satisfied that:
(a) a power or function is conferred
on a person under a law of the Commonwealth or a State or Territory; and
(b) this
Act, or a provision of this Act, prevents the proper performance of that
function, or the proper exercise of that power;
the Governor‑General may make regulations declaring
that this Act or that provision does not apply to that person, or does not
apply to that person in the circumstances specified in the regulations, and
regulations so made have effect accordingly.
(3) Regulations made under subsection (2)
cease to have effect 5 years after the day on which the regulations come into
operation unless:
(a) they are sooner repealed; or
(b) they
provide that they are to cease to have effect on a day earlier than the first‑mentioned
day;
but regulations that are the same in substance as the
regulations that have ceased to have effect by virtue of this subsection may be
made under subsection (2) at any time after such regulations have so
ceased to have effect.
(4) In subsection (2), this Act
includes the regulations.