Schedule 2 – Transitional provisions
Schedule 2 of the Bill includes provisions to deal with the
transition from the OHS Act to the WHS Act and are based on principles
developed and agreed to by Safe Work Australia as part of a coordinated
approach to implementation.
Part 1 – Application generally
Item 1 – Application of OHS Act to certain breaches etc
Subitem 1(1) provides that the
OHS Act continues to apply to a breach, or alleged breach, of that Act which
occurred before the day the WHS Act commenced. The relevant provisions in the
OHS Act would also apply to any proceedings for breaches of the OHS Act.
In the case of continuing
breaches, the OHS Act would not apply to actions or inactions to the extent that
they occur on or after the day that the WHS Act commences. For example, if two
days after commencement an inspector attends a workplace and discovers an
unsafe piece of plant, the WHS Act would apply even though the plant may have
been unsafe for 2 months and would have also constituted a breach of the OHS
Act.
Subitem 1(2) however, would
not apply where subitems 3(2), 4(2), 5(2), and 6(3) apply. These items are
explained below and preserve the OHS Act in relation to specific duty holders and
certain activities that had commenced prior to the commencement of the WHS Act
for a transitional period.
Part 2 – Application of
duties imposed under WHS Act
Item 2 – Duties of
designers
Subitem 2(1) provides that,
subject to other provisions in the item, the duties imposed on a designer under
section 22 of the WHS Act will not apply to design activities if the designer
started or completed the design before the day that the WHS Act commenced.
Subitem 2(2) provides for the
phasing in of the designer duties. If a designer has the benefit of an
exemption because of subitem 2(1), but has not completed the design on the
second anniversary of the day the WHS Act commences, then the designer must
comply with the duties in the WHS Act.
Subitem 2(3) further limits
the exception in subitem 2(1) and provides that where a designer carries out
any calculations, analysis, testing, or examination to ensure that a product is
safe the duties in paragraph 22(4)(b) of the WHS Act will apply. This means
that the designer must provide certain information to any person who is given
the design for use and must also provide this information on request from a
person who is using, or will use, the design.
Item 3 – Duties of
manufacturers
Item 3 sets out the way that
the duties placed on manufacturers in the OHS Act and WHS Act will operate on
and after commencement. Subitem 3(1) provides that, subject to other
provisions in the item, the duties imposed on a manufacturer under section 23
of the WHS Act will not apply in relation to the manufacture of plant,
substances or structures if the manufacturer started or completed any process
associated with the manufacture before the day that the WHS Act commenced.
Subitem 3(2) provides that
where a process is exempt from the operation of the WHS Act because it was
started (or started and completed) before commencement, the relevant provisions
of the OHS Act will apply.
Subitem 3(3) clarifies that if
a duty under the OHS Act applies because of subitem 3(2), then the OHS Act will
apply in relation to any breach.
Subitem 3(4) provides for the
phasing in of all of the new duties in section 23 of the WHS Act. If a
manufacturer has the benefit of an exemption because of subitem 3(1), but has
not completed the manufacture on the first anniversary of the day the WHS Act
commences, then the manufacturer must comply with the duties in the WHS Act.
Subitem 3(5) further limits
the exception in subitem 3(1) and provides that where a manufacturer carries
out any calculations, analysis, testing, or examination to ensure that a
product is safe the duties in 23(4)(b) and 23(5) of the WHS Act apply. This
means that the manufacturer must provide certain information to any person who
is provided with the product and must also provide this information on request
from a person who is using, or will use, the product.
Item 4 – Duties of
importers
Item 4 sets out the way that
the duties placed on importers in the OHS Act and WHS Act will operate on and
after commencement. The OHS Act deems importers to be manufacturers in certain
circumstances and subject to the same duties in section 18 of the OHS Act (see
section 18(3)).
Subitem 4(1) provides that,
subject to other provisions in the item, the duties imposed on an importer
under section 24 of the WHS Act will not apply in relation to the importation
of any plant, substance or structure if the importer started or completed any
steps in the importation before the day that the WHS Act commenced.
Subitem 4(2) provides that
where a process is exempt from the operation of the WHS Act because it was
started (or started and completed) before commencement, the relevant provisions
of the OHS Act will apply.
Subitem 4(3) clarifies that if
the OHS Act applies because of subitem 4(2), then the OHS Act applies in
relation to any breach.
Subitem 4(4) provides for the
phasing in of all of the importer duties. If an importer has the benefit of an
exemption because of subitem 4(1), but has not completed the importation on the
first anniversary of the day the WHS Act commences, then the importer must
comply with the duties in the WHS Act.
Subitem 4(5) further limits
the exception in subitem 4(1) and provides that where an importer carries out
any calculations, analysis, testing, or examination to ensure that a product is
safe the duties in 24(2)(b) and section 24(5)of the WHS Act will apply. This
means that the importer must provide certain information to any person who is
provided with the product and must also provide this information on request by
a person who is using the product.
Item 5 – Duties of suppliers
Item 5 sets out the way that
the duties placed on suppliers in the OHS Act and WHS Act will operate on and
after commencement. Subitem 5(1) provides that, subject to other provisions in
the item, the duties imposed on a supplier under section 25 of the WHS Act will
not apply in relation to the supply of plant, substances or structures if the
supplier started (or started and completed) any process associated with the
supply before the day that the WHS Act commenced.
Subitem 5(2) provides that
where a process is exempt from the operation of the WHS Act because it was started
(or started and finished) before the WHS Act commenced, the relevant provisions
of the OHS Act will apply. In the case of suppliers and persons deemed to be
suppliers under subsection 19(2) of the OHS Act, subitem 5(2) provides that
section 19(1) applies. This section provides, in summary, that a supplier must
ensure that plant and substances are safe for use, have been appropriately
tested, and are accompanied by adequate information.
Subitem 5(3) clarifies that if
the OHS Act applies because of subitem 5(2), then the OHS Act applies in
relation to any breach.
Subitem 5(4) provides for the
phasing in of all of the supplier duties. If a supplier has the benefit of an exemption
because if subitem 5(1), but has not completed the supply on the first
anniversary of the day the WHS Act commences, then the supplier must comply
with the duties in the WHS Act.
Subitem 5(5) further limits
the exception in subitem 5(1) and provides that where a supplier carries out
any calculations, analysis, testing, or examination to ensure that a product is
safe the duties in 25(4)(b) and 25(5) of the WHS Act would apply. This means
that the supplier must provide adequate information to any person who is
supplied with the product and must also provide this information on request
from a person who is using, or will use, the product.
Item 6 – Duties of
persons who install, construct or commission plant or structures
Item 6 sets out the way that the
duties of persons who install, construct or commission plant or structures in
the OHS Act and WHS Act will operate on and after commencement of the WHS Act.
Subitem 6(1) defines ‘OHS
installer’ and ‘WHS installer’. WHS installer is defined to include persons who
construct and commission plant in order to reflect the wider scope of duties in
the WHS Act.
Subitem 6(2) provides that,
subject to other provisions in the item, the duties imposed on a WHS installer
under section 26 of the WHS Act do not apply in relation to the installation,
construction or commissioning of plant or structures if the person started (or
started and completed) any process associated with the installation,
construction or commissioning before the day that the WHS Act commenced.
Subitem 6(3) provides that
where a process is exempt from the operation of the WHS Act because it was
started (or started and completed) before commencement of the WHS Act,the
duties imposed on OHS installers by section 20(1) of the OHS Act apply. This
section of the OHS Act provides, in summary, that an installer must ensure that
plant is erected or installed in a manner that poses no risks to the health and
safety of employees at the workplace, and is safe for its intended use.
Subitem 6(4) clarifies that if
the OHS Act applies because of subitem 6(3), then the OHS Act applies in
relation to any breach.
Subitem 6(5) provides for the
phasing in of all of the duties of WHS installers. If a person has the benefit
of an exemption because of subitem 6(1), but has not completed the relevant
activity on the second anniversary of the day the WHS Act commences, then the
person must comply with the duties in the WHS Act.
Part 3 – Notifiable incidents etc.
Item 7 – Notifiable
incidents etc.
Item 7 provides that the incident
notification provisions in the WHS Act will apply to a notifiable incident if
the relevant person becomes aware of the incident on or after the day the WHS
Act commences. For example, if a notifiable incident occurred on the day before
the WHS Act commenced but the relevant person only became aware of the incident
3 days later, they would be required to notify Comcare of the incident in
accordance with section 38 of the WHS Act.
Item 8 – Accidents and
dangerous occurrences
Item 8 ensures that the relevant
provisions in the OHS Act relating to the keeping of records of accidents and
occurrences will be preserved. This means that employers will be required to
keep these records for the length of time set out in the OHS Act.
Part 4 – Work groups, health and safety representatives and
health and safety committees
Item 9 – Work groups, health and safety representatives and
health and safety committees continue as such
Item 9 preserves certain
appointments made immediately prior to the repeal of the OHS Act and ensures
they will be recognised for the purpose of the WHS Act. Paragraph 9(1)(a)
provides for the continuation of a designated work group in operation
immediately before the repeal of the OHS Act for the purpose of the WHS Act.
Paragraph 9(1)(b) deems a
person appointed as a Health and Safety Representative (HSR) or deputy HSR
immediately prior to the repeal of the OHS Act to have been appointed as an HSR
under the WHS Act for a period of 3 years from the most recent date of
appointment under the OHS Act.
Paragraph 9(1)(c) deems a
Health and Safety Committee (HSC) established under the OHS Act to have been
established under the WHS Act subject to the adjustments required (if any) set
out in subitem 9(4).
Subitem 9(2) provides that
processes to establish or vary a designated work group, appoint an HSR, or
establish an HSC will be preserved and recognised under the WHS Act. On
commencement of the WHS Act these processes will continue to be subject to the
requirements in the OHS Act and related regulations.
Subitem 9(3) provides that if
a process to appoint an HSR is not completed within 3 months of the day the WHS
Act commences, then the process will not be preserved and a new process must be
recommenced under the WHS Act.
Clause 65 of the WHS Bill provides
that if there is an HSR at a workplace, that HSR must be a member of the HSC,
if he or she consents. Subitem 9(4) deems the HSR to also be appointed to an
HSC that is preserved by subitem (1)(c) to ensure that it is consistent with the
requirements in the WHS Act.
Subitem 9(5) clarifies that
subitem 9(4) does not prevent parties from making any changes to a HSC that are
permitted by the WHS Act.
Item 10 – Training
This item provides that a
person who has completed a course of HSR training accredited by the Commission
for the purpose of section 27 of the OHS Act will be taken to have completed an
approved course of training under the WHS Act as required by sections 86(6) or
90(4) of the WHS Act for 12 months following commencement of the WHS Act.
This means that a person who
continues to be appointed as a HSR upon the commencement of the WHS Act will
continue to have the power to issue an improvement notice or to direct that
work cease, albeit under sections 86 and 90 of the WHS Act.
Subitem 10(2) provides that
subitem 10(1) will cease to apply 12 months after the WHS Act commences. After
this time, a HSR will need to have completed an approved course of training
under the WHS Act before exercising powers and functions under sections 86 and
90 of the WHS Act.
Item 11 – Provisional
improvement notices
Item 11 provides that a
provisional improvement notice that is in effect on the day the WHS Act
commences will be preserved. The OHS Act will continue to apply in relation to
the procedural aspects of the notices, and also in relation to any parts of the
OHS Act that the notice concerns. For example, if a person wanted to appeal a
notice, the procedures in the OHS Act would apply. If the notice concerned
compliance with the general duty in section 16 of the OHS Act, then that
section would also continue to apply.
Item 12 – Disqualification
Item 12 deems a person who is
disqualified from being an HSR under the OHS Act to also be disqualified from
being an HSR under the WHS Act. Subitem 12(2) provides that the period of
disqualification is the period of disqualification outstanding on the day the
WHS Act commences, which may be a set period or indefinitely.
Subitem 12(3) provides that if
an application is made to disqualify an HSR under the WHS Act then any improper
performance of their powers, or misuse of information acquired in the course of
their role under the OHS Act should be a relevant factor.
Subitem 12(4) clarifies that
the item applies to a deputy HSR in the same way that it applies to an HSR.
Part 5 – Comcare and inspectors
Item 13 – Residual operation of OHS Act
This item defines ‘residual
operation of the OHS Act’ for the purposes of this Part.
Item 14 – Appointment
Subitem 14(1) provides that a
person who, on commencement of the WHS Act, holds office as an investigator
under the OHS Act and is a member of the staff of Comcare, is taken to have
been appointed as an inspector under the WHS Act.
Subitem 14(2) deems an
identity card issued to an inspector under the OHS Act that is valid
immediately prior to commencement of the WHS Act to be an identity card given
by the Regulator under the WHS Act.
Item 15 – Use of WHS
functions and powers to enforce OHS Act
Subitems 15(1), (2) and (3) enable
inspectors appointed (or deemed to be appointed) under the WHS Act to exercise
their powers and functions under the WHS Act in relation to the residual
operation of the OHS Act.
Inspectors will be able to
exercise their functions and powers under the WHS Act in relation to actions or
failures that occurred before the commencement of the WHS Act when
investigating matters after commencement of the WHS Act, whether or not the
investigation commenced prior to the commencement of the WHS Act.
For example an inspector will
be able to enter premises for the purpose of investigating a matter relating to
the residual operation of the OHS Act in accordance with Division 3 of Part 9
of the WHS Act.
Subitem 15(4) further provides
that any action taken or information that is acquired through the exercise of
functions or powers under the WHS Act may be used for the purposes of the OHS
Act. This would, for example, permit the use of information acquired during an
interview as evidence in a prosecution of a breach of the OHS Act.
Subitem 15(5) provides, for
the avoidance of doubt, that inspectors are also able to exercise compliance
powers for the purposes of the item.
Subitem 15(6) clarifies that
nothing in the item affects or limits any action that may be taken in relation
to the residual operation of the OHS Act.
Item 16 – WHS
inspectors may exercise functions and powers under OHS Act
Item 16 provides that inspectors
may also exercise the functions and powers of an investigator under the OHS Act
in relation to the residual operation of the OHS Act.
Item 17 – Comcare may
use powers of investigation under WHS Act for OHS Act
Subitems 17(1), (2) and (3)
enable Comcare to exercise the power to obtain information under section 155 of
the WHS Act for the purpose of investigating matters relating to the residual
operation of the OHS Act.
Comcare will be able to obtain
information in relation to actions or failures that occurred before the
commencement of the WHS Act when investigating matters after commencement of
the WHS Act, whether or not the investigation began prior to the commencement
of the WHS Act.
Subitem 17(4) further provides
that any action taken or information that is acquired through the exercise of
functions or powers under the WHS Act may be used for the purposes of the OHS
Act. This would, for example, permit information acquired on Comcare’s request
under section 155 to be used as evidence in a prosecution of a breach of the
OHS Act.
Subitem 17(5) clarifies that
nothing in the item affects or limits any action that may be taken in relation
to the residual operation of the OHS Act.
Part 6 – Enforcement
measures
Item 18 – Prohibition
notices
Item 19 – Improvement
notices
These items provide that a
prohibition notice or improvement notice that was in effect on the day the WHS
Act commenced will be preserved. The OHS Act will continue to apply in
relation to the procedural aspects of the notices, and also in relation to any
parts of the OHS Act that the notice concerns. For example, if a person wanted
to appeal a notice, the procedures in the OHS Act would apply. If the notice
concerned compliance with the general duty in section 16 of the OHS Act, then
that section would also continue to apply.
Item 20 – Undertakings
Item 20 preserves undertakings
entered into under clause 16 of Schedule 2 of the OHS Act for ‘a transitional
period’.
Subitem 20(1) provides that
the item applies to undertakings entered into under item 16 of schedule 2 to
the OHS Act.
Subitem 20(2) provides that
the OHS Act continues to apply to undertakings during a ‘transitional period’.
Subitem 20(3) defines the transitional period for the undertaking as beginning
at the start of the day the WHS Act commences and ending:
·
2 years later; or
·
when the undertaking is revoked
or ceases to be in force if this happens earlier.
Part 7 – Other matters
Item 21 – Authorisations
Item 21 preserves any
registration, licence, permit, accreditation or other form of authorisation
under the OHS Act that is prescribed in the Regulations. A preserved
authorisation will be recognised as an authorisation under the WHS Act.
Item 22 – Exemptions
Item 22 preserves any
exemption under the OHS Act that is prescribed in the Regulations. A preserved
exemption will be recognised as an exemption under the WHS Act.
Item 23 – Codes of
practice
Item 23 deals with the
preservation of the Occupational Health and Safety Code of Practice 2008
(OHS code of practice) for a transitional period. To assist the harmonisation
of WHS laws, SWA will developee a number of model codes of practice to support key duties under the model WHS Act and
Regulations. While many of these codes will be in place on commencement of the new WHS law on 1
January 2012, a number of ‘second stage’ codes will be finalised after
commencement. The codes will ultimately replace the OHS code of practice;
however, to avoid gaps, parts of the code will need to be preserved for a
transitional period.
This item preserves those
parts of the OHS code of practice that are prescribed in the regulations for a
transitional period of up to 2 years.
Item 24 – Annual reports
Subitem
24(1) provides that despite the repeal of the OHS Act, sections 74, 75 and 75A
of the OHS Act continue to apply in relation to the financial year beginning on
1 July 2011. These sections require certain matters to be included in the
annual reports of Commonwealth bodies, the Safety, Rehabilitation and
Compensation Commission, and Comcare.
Subitem
24(2) limits this requirement and provides that the information in the reports need
only relate to the period beginning on 1 July 2011 and ending on 31 December
2011. This means that reports are not required to include statistics in
relation to the second six months of the financial year beginning on
1 July 2011.
Schedule 3 – Safety, Rehabilitation
and Compensation Act 1988
Part 1 – Consequential amendments
Item 1 – Subparagraph 69(ef)(ii)
This item is consequential on
the commencement of the Work Health and Safety Act 2011 (WHS Act) and
the Work Health and Safety (Transitional and Consequential provisions) Act
2011. Section 69 of the Safety, Rehabilitation and Compensation Act 1988
(SRC Act) sets out a number of functions given to Comcare. Item 1 expands subparagraph
69(ef)(ii) to provide that Comcare may apply regulatory contributions,
application and licence fees together with interest earned on those
contributions in meeting the costs incurred by the Commission and Comcare in
carrying out their respective functions under the new WHS Act and the Work
Health and Safety (Transitional and Consequential provisions) Act 2011 (the
Transitional Act) as well as the OHS Act which will continue to have residual
operation as a result of item 1 of Schedule 2.
Item 2 – Section 69 (note)
This item is consequential on
the repeal of the OHS Act and commencement of the WHS Act. It will omit the
reference to the OHS Act in the note at the end of section 69 and replace it
with a reference to the new WHS Act.
Item 3 – Subsection 73(1)
Section 73 of the SRC Act
provides the Minister with the power to give written directions to Comcare with
respect to the performance of its functions or exercise of its powers. Section
12A of the OHS Act contains a similar provision, but with the repealing of that
Act it is convenient to have all the Minister’s powers to give directions to
Comcare located in the one provision of the SRC Act. Accordingly, item 3 amends
subsection 73(1) by inserting a reference to the WHS Act.
Item 4 – Subsection 73A(3)
This amendment is
consequential to the repeal of the OHS Act and the commencement of the WHS Act.
Under section 12A of the OHS
Act, the Minister may give directions to Comcare. As the OHS Act is being
repealed, item 4 omits the reference to provisions of the OHS Act.
Item 5 – Section 73B
Item 5 clarifies that Comcare’s
power to delegate its functions and powers under section 73B does not extend to
its functions and powers under the new WHS Act. Clause 154 of the WHS Act
enables Comcare to delegate its powers and functions under that Act.
Item 6 – Section 73B (note)
Item 7 – At the end of section 73B
Item 7 adds a new ‘Note 2’ to
aid readers of the SRC Act by advising them that the delegation of Comcare’s
functions and powers under the WHS Act are dealt with in section 154 of that
Act.
Item 6 adds a number ‘1’ to
the current note as a consequence of the second ‘note’ being adde by item 7.
Item 8 – At the end of section 89B
Section 89B of the SRC Act
sets out the Safety, Rehabilitation and Compensation Commission’s (the
Commission) functions under that Act. Item 8 adds a new note as an aid to
readers, advising them that additional functions are conferred on the Commission
by the WHS Act.
Item 9 – Subsection 89D(1)
This is a consequential
amendment to the repeal of the OHS Act and the commencement of the WHS Act.
Subsection 89D(1) of the SRC
Act provides the Minister with the power to give written directions to the Commission
with respect to the performance of its functions or the exercise of its powers.
A similar provision is contained in subsection 12(2) of the OHS Act, but as
that Act is being repealed, item 9 inserts a reference to the WHS Act in
subsection 89D(1), so that the Minister’s power to give directions to the
Commission on OHS matters would be retained.
Item 10 – Paragraph 89E(1)(b)
Item 11 – Paragraph 89E(1)(c)
Items 10 and 11 amend the
composition of the membership of the Commission.
The current composition of the
Commission comprises:
·
2 employee representatives
nominated by the ACTU
·
3 employer representatives
representing the Commonwealth and Commonwealth authorities, licensees and ACT
public sector employers
·
1 member who represents the
members and former members of the Defence Force
·
2 ‘experts’
·
An independent Chairperson
·
the CEO of Comcare
·
the CEO of SWA
Item 10 provides for the CEO
of Comcare to no longer be a member of the Commission.
Item 11 provides for an
additional employee representative nominated by the ACTU to be appointed as a
member of the Commission.
Item 12 – Subsection 89R(1)
Item 13 – After subsection 89R(1)
Item 12 amends subsection
89R(1) by adding a reference to new subsection 89R(1A). The current subsection
89R(1) provides that the Commission may delegate to the CEO of Comcare or any
of its members all or any of its functions or powers.
Item 13 would insert a new
subsection 89R(1A), which would qualify subsection 89R(1) by providing that the
Commission must not delegate to the CEO of Comcare any of its functions or powers under the WHS Act. This
is because under the WHS Act, the Commission has a role separate from that of Comcare, and accordingly,
it would not be appropriate for any of the Commission’s functions or powers to
be delegated to Comcare.
Item 14 – Subsection 91(3)
This is a minor technical
amendment that updates the language of the subsection by omitting “shall” and
substituting “must”. No change is made to the meaning of the subsection by this
proposed amendment.
Item 15 – Paragraph 91(3)(a)
This is a consequential
amendment to the commencement of the WHS Act.
Subsection 91(3) of the SRC
Act sets out how the money of Comcare may be applied. Paragraph 91(3)(a)
provides that the money may be applied towards the costs incurred by Comcare in
relation to a number of Acts including the OHS Act. Item 15 updates the
paragraph by adding references to the WHS Act and the Transitional Act.
Item 16 – Section 96
This is a consequential
amendment to the repeal of the OHS Act and the commencement of the WHS Act.
Item 16 will extend the meaning of ‘Commonwealth authority’ for the purposes of
the provisions in relation to regulatory contributions to include a body that
would not otherwise be a Commonwealth authority for the purposes of the SRC Act
if it is a public authority for the purposes of the WHS Act.
This amendment is required to
ensure that all public authorities covered by the WHS Act are liable to pay a
regulatory contribution to meet the costs incurred by Comcare and the
Commission in exercising their powers and functions under the WHS Act.
Item 17 – Paragraph 97D(2)(d)
This is a consequential
amendment to the commencement of the WHS Act.
Section 97D of the SRC Act
provides for Comcare to make determinations in relation to the OHS regulatory
contribution to be paid by premium paying employers. These determinations are
made subject to any guidelines issued by the Commission. Paragraph 97D(2)(d)
provides that the regulatory contribution to be paid includes the estimated
cost incurred by the Commission and Comcare in carrying out their respective
functions under the OHS Act.
Item 17 amends the paragraph
to include references to the WHS Act and the Transitional Act.
Item 17A – After subsection 104(2)
Item 17A inserts a news
subsection (2A) into section 104 of the SRC Act. The new subsection provides
that the Commission must not grant a licence to an applicant where, because of
the past conduct of the applicant in complying with laws or meeting obligations
in relation to OHS, rehabilitation or claims management it is unlikely, if
licensed, to meet the standards set by the Commission.
Item 18 – Paragraph 104A(2)(b)
This is a consequential
amendment to the commencement of the WHS Act.
Section 104A of the SRC Act
provides that a licensee under the SRC Act is liable to pay a licence fee and
the Commission is to estimate the licence fee based on certain matters.
Paragraph 104A(2)(b) currently provides that in the case of a licensee covered
by the OHS Act, part of the fee is to cover the cost of carrying out the
Commission’s and Comcare’s functions under the OHS Act.
Item 18 repeals the current
paragraph and substitutes a new paragraph which provides that part of the cost
of the licence includes the cost incurred, if any, by the Commission and Comcare
in carrying out their functions under the OHS Act, WHS Act and the Transitional
Act.
Item 19 – Subsection 150(2)
This is a consequential amendment to the commencement of the
WHS Act.
Section 150 of the SRC Act provides, in part, that the
Commission may make general policy guidelines and the Military Rehabilitation
and Compensation Commission (MRCC) must comply with those guidelines.
Item 19 repeals the current paragraph and substitutes a new
paragraph which would qualify the Commission’s power to make guidelines by
providing that those guidelines must not be inconsistent with any directions
made by the Minister under section 149 to the MRCC or with any directions given
to Comcare under section 73 of the SRC Act in relation to the WHS Act. See also
item 3 which deals with the Minister’s powers to give directions under section
73.
Item 20 – Paragraph 158(2)(b)
This is an amendment consequential to the repeal of the OHS
Act and the commencement of the WHS Act. Item 20 omits the reference to the OHS
Act and substitutes references to the WHS Act and the WHS (T&C) Bill.
Item 21 – Application of items
Item 21 provides that the
amendments made by items 17, 18 and 20 not only have application to the
financial year starting on 1 July 2011 but also on going application to future
financial years. Items 17 and 20 relate to regulatory contributions and item 18
relates to licence fees.
Item 22 – Application of items
This item provides that all
the other amendments in this Part apply on and from 1 July 2011.
Part 2 – Transitional provisions relating to regulatory
contributions and licence fees
This part includes
transitional provisions relating to determinations made by Comcare of the
amount of regulatory contributions and licence fees for the 2011/2012 financial
year.
The determinations made by
Comcare for the 2011/2012 financial year will have been made prior to the
commencement of the WHS Act on 1 January 2012 and will be based on the costs
incurred by the Commission and Comcare in carrying out their respective functions
under the OHS Act for the entire financial year.
These provisions would enable
Comcare to issue, following enactment of the provision, a revised estimate for
the 2011/2012 financial year which takes into account what would be the altered
state of the law from 1 January 2012.
Item 23 – Variation of determination of regulatory contribution
Divsion 4A of the SRC Act
deals with premiums and regulatory contributions. Section 97E of the SRC Act
provides, in part, that the Commission may issue guidelines to Comcare in
relation to regulatory contributions (subsection 97E(2)). Subsection 97M(1)
provides that Comcare may vary the regulatory contribution payable by an entity
or authority.
Subitem 23(1) provides that
Comcare may vary a determined regulatory contribution for the 2011-12 financial
year in order that the regulatory contribution not only include the estimated
cost, for each entity and authority, of the Commission and Comcare carrying out
their functions under the OHS Act but also the WHS Act and the WHS (T&C) Act.
Current subsection 97M(1) of
the SRC Act provides that a variation to a regulatory contribution may be made
by Comcare if, and only if, certain factors apply. Subitem 23(2) has the effect
of excluding subsection 97M(1) by providing that item 23 applies despite what
subsection 97M(1) says.
Subitem 23(3) makes clear that
the remaining parts of section 97M apply to a variation under this item, in the
same way that they apply to a normal variation.
Item 24 – Variation of licence fee
Current section 104A of the
SRC Act provides that a licence holder under the Act is required to pay a
licence fee. Part of the licence fee goes towards the cost of the Commission
and Comcare in carrying out their functions under the OHS Act, in relation to
the licence holder.
Item 24(1) provides that
Comcare may vary a licence fee for the 2011-12 financial year so that the fee
not only includes the estimated cost to the Commission and Comcare of carrying
out their functions under the OHS Act but also the WHS Act and the WHS
(T&C) Act.
Subitem 24(2) provides that if
the variation to a licence fee is a variation that increases the fee, that
increased amount is payable to Comcare.
Subitem 24(3) makes clear that
this item does not prohibit Comcare from varying a licence fee for another
reason.
Item 25 – Variation of determination of regulatory contribution
by Defence Department
This item deals with the
ability of Comcare to vary a regulatory contribution for the 2011-12 financial
year, for Australian Defence Force personnel (the ADF). Any variation to the
regulatory contribution covering civilian employees of the Department of
Defence is covered by item 21.
Section 158 of the SRC Act
provides that Comcare must determine the regulatory contribution to be paid by
the Department of Defence ‘in relation to employees engaged in defence service’
(the ADF).
Subitem 23(1) provides that
Comcare may vary a determined
regulatory contribution for the 2011-12 financial year so that the regulatory
contribution not only includes the estimated cost of the Commission and Comcare
in carrying out their functions under the OHS Act but also the WHS Act and the
WHS (T&C) Act.
Current subsection 97M(1) of
the SRC Act provides that a variation to a regulatory contribution may be made
by Comcare if, and only if, certain factors apply. Subitem 23(2) has the effect
of excluding subsection 97M(1) by providing that item 23 applies despite what
subsection 97M(1) says.
Subitem 23(3) makes clear that
the remaining parts of section 97M apply to a variation under this item, in the
same way that they apply to a normal variation.
Current section 159 of the SRC
Act provides that sections 97 to 97P of that Act apply to the Department of
Defence in relation to ADF personnel but only so far as they relate to
determinations under section 158. The references to section 159 in this item
make clear that this item does not modify the application of that section.