Tooma's annotated Work Health and Safety Act 2011 [2nd edition.] 9780455500270, 0455500274
633 52 2MB
English Pages [728] Year 2017
Polecaj historie
![Annotated Fair Work Act & related legislation 2017 [2017 edition.]
9780409347302, 0409347302](https://dokumen.pub/img/200x200/annotated-fair-work-act-amp-related-legislation-2017-2017-edition-9780409347302-0409347302.jpg)
![Mann's annotated Insurance Contracts Act [Seventh edition, revised.]
9780455500096, 0455500096](https://dokumen.pub/img/200x200/manns-annotated-insurance-contracts-act-seventh-edition-revised-9780455500096-0455500096.jpg)
![Workplace health and safety law in Australia [2nd edition.]
9780409342833, 0409342831, 9780409342840, 040934284X](https://dokumen.pub/img/200x200/workplace-health-and-safety-law-in-australia-2nd-edition-9780409342833-0409342831-9780409342840-040934284x.jpg)
![Annotated Bankruptcy Act 1966 [6th edition.]
9780409339505, 0409339504](https://dokumen.pub/img/200x200/annotated-bankruptcy-act-1966-6th-edition-9780409339505-0409339504.jpg)
![Annotated Dictionary of Construction Safety and Health [1 ed.]
9781566705141, 9781315137506, 9781351466394, 9781351466387, 9781351466400, 9781138431072](https://dokumen.pub/img/200x200/annotated-dictionary-of-construction-safety-and-health-1nbsped-9781566705141-9781315137506-9781351466394-9781351466387-9781351466400-9781138431072.jpg)
![Research Laboratory Safety [Annotated]
3110444399, 9783110444391](https://dokumen.pub/img/200x200/research-laboratory-safety-annotated-3110444399-9783110444391.jpg)
![Australian annotated class actions legislation [2nd edition.]
9780409347470, 0409347477](https://dokumen.pub/img/200x200/australian-annotated-class-actions-legislation-2nd-edition-9780409347470-0409347477.jpg)
![Tooma's annotated Work Health and Safety Act 2011 [2nd edition.]
9780455500270, 0455500274](https://dokumen.pub/img/200x200/toomas-annotated-work-health-and-safety-act-2011-2nd-edition-9780455500270-0455500274.jpg)
Citation preview
TOOMA’S ANNOTATED WORK HEALTH AND SAFETY ACT 2011
Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA ASIA PACIFIC Thomson Reuters Thomson Reuters Eagan Sydney United States of America Australia LATIN AMERICA Thomson Reuters São Paulo Brazil
EUROPE Thomson Reuters London United Kingdom
Tooma’s Annotated Work Health and Safety Act 2011
MICHAEL TOOMA BComm LLB(Hons), LLM Partner and Global Head of Safety Security Health and Environment Clyde & Co
SECOND EDITION
LAWBOOK CO. 2017
Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW
First edition Second edition
2012 2017
National Library of Australia Cataloguing-in-Publication entry Creator: Tooma, Michael, author. Title: Tooma’s annotated Work Health and Safety Act 2011 / Michael Tooma. Edition: 2nd edition. ISBN: 9780455500270 (paperback) Notes: Includes index. Industrial safety--Law and legislation--Australia. Safety regulations--Australia. Industrial hygiene--Law and legislation--New South Wales.
© 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. This edition is up to date as of 08 June 2017. Editor: Lalitha Vyamajala Product Developer: Paul Gye Publisher: Nigel Royfee Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests.
This book is dedicated to my daughter Kaitlyn Tooma.
© 2017 THOMSON REUTERS
v
ABOUT THE AUTHOR Michael Tooma is a Partner at Global law firm Clyde & Co where he heads up the Safety Security Health and Environment team and is Regional Head of its Regulation and Investigation team. Michael is the author of numerous texts on work health and safety in Australia and New Zealand. His books are the standard texts in most university courses, the reference for most regulators, lawyers, barristers and judges practising in this area and the guide for safety practitioners, corporate officers and others with an interest in this area of law. He is widely recognised as one of the leading practitioners in this area having practised, lectured and written on work health and safety law for almost 20 years. Michael is consistently ranked as a leading practitioner in Best Lawyers, APL 500 and Chambers and Partners. Legal 500 Asia Pacific 2017 noted that clients described Michael as “phenomenal” while Chambers & Partners 2017 noted that “interviewees commend Michael Tooma of Clyde & Co for his ‘exceptional understanding of the OH&S regulations’.”
© 2017 THOMSON REUTERS
vii
PREFACE The Work Health and Safety Act 2011 commenced in NSW, Queensland, ACT, NT and the Commonwealth on 1 January 2012 and in South Australia and Tasmania on 1 January 2013. Five years on we are now starting to see a significant body of case law interpreting the various provisions. Crucially these cases are not simply restricted to the duty of care provisions but many are concerned with the interpretation of the investigation and enforcement powers of the Regulators and their inspectors. The trend from the case law suggests a cautious approach to the breadth of the primary duty of care, an expansive interpretation of the powers of regulators and an onerous interpretation of the duty of officers. The key cases have been included in the update to the commentary in this edition. As with the previous edition, I have sought to annotate each clause of the Act with relevant commentary from not only the case law but also practice in this area relying heavily on my own experience working with clients across industries for almost 20 years on advising on legal issues, reviewing systems for legal compliance and implementing policies and procedures to address various aspects of the legislation. It is a privilege to work in the work health and safety area. Not only is the work complex and intellectually challenging particularly when responding to incidents, it comes with a sense of great satisfaction when one assists a client improve their safety standards and ensure that workers can go home safely to their families. Sadly, all too often the catalyst for that change is a serious incident. Many of those stories sit behind the legal principles captured in the commentary in this text. In many respects, the law in this area is written with the blood of the victims of industrial accidents and in their memory so others may not suffer the same fate. Without that context, it is often difficult for those who do not regularly practice in this space to comprehend the wide interpretation given to the words of the legislation and the breadth of the reach of its provisions despite the severity of the consequences available on conviction. As with previous works I owe a great debt of gratitude to a number of people who have made this book possible. I would like to thank the team at Thomson Reuters, particularly, Paul Gye and Lalitha Vyamajala. While authors get the lion share of the glory for their published work, a great deal of effort goes in behind the scenes in making that happen from commissioning designs for the cover, editing the manuscript, overseeing the publishing process to marketing the book. It is always a pleasure to work with such a professional team.
© 2017 THOMSON REUTERS
ix
Preface
Finally, I would also like to acknowledge the contribution of my family particularly my wife Rachel and my daughter Kaitlyn. My writing gets done on weekends and late evenings often on the kitchen table with my case folders and notes creating an obstacle course for daily family life. Despite this my family’s support for my often unreasonable writing commitments has been unwavering over the years. I hope this book proves a useful reference to colleagues in the legal profession, in-house counsel, managers, academics and students alike. MICHAEL TOOMA Sydney 07 June 2017
x
Tooma’s Annotated Work Health and Safety Act 2011
ABOUT THIS PUBLICATION Scope of this work Tooma’s Annotated Work Health and Safety Act 2011 contains New South Wales work health and safety (WHS) legislation fully consolidated to 8 June 2017. This book provides practitioners and WHS professionals with the material they need to implement compliant strategies and litigate on WHS issues in the courtroom.
Legislation Tooma’s Annotated Work Health and Safety Act 2011 contains the following legislation: • Work Health and Safety Act 2011 (NSW) • Work Health and Safety Regulation 2011 (NSW)
Legislative amendments in this edition Tooma’s Annotated Work Health and Safety Act 2011 takes account of the amendments listed below.
Work Health and Safety Act 2011 Amending Acts • Work Health and Safety (Mines) Act 2013 – Act 54 of 2013 • Civil and Administrative Legislation (Repeal and Amendment) Act 2013 – Act 95 of 2013 • Work Health and Safety Amendment Act 2013 – Act 109 of 2013 • Work Health and Safety (Mines) Amendment Act 2014 – Act 71 of 2014 • State Insurance and Care Governance Act 2015 – Act 19 of 2015 • Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Act 2015 – Act 43 of 2015 • Industrial Relations Amendment (Industrial Court) Act 2016 – Act 48 of 2016 • Statute Law (Miscellaneous Provisions) Act (No 2) 2016 – Act 55 of 2016 • Statute Law (Miscellaneous Provisions) Act 2017 – Act 22 of 2017
Work Health and Safety Regulation 2011 Amending Acts and Regulations • Work Health and Safety Amendment (Miscellaneous) Regulation 2012 – Reg 544 of 2012 • Ports Assets (Authorised Transactions) Act 2012 – Act 101 of 2012
© 2017 THOMSON REUTERS
xi
About this Publication
• Work Health and Safety Amendment (Dangerous Goods at Ports) Regulation 2012 – Reg 663 of 2012 • Work Health and Safety Amendment (Transitional) Regulation 2012 – Reg 664 of 2012 • Work Health and Safety Amendment (Fees and Transitional Provisions) Regulation 2013 – Reg 353 of 2013 • Civil and Administrative Legislation (Repeal and Amendment) Act 2013 – Act 95 of 2013 • Work Health and Safety Amendment (Transitional Provisions) Regulation 2013 – Reg 730 of 2013 • Maritime and Transport Licensing Legislation Amendment Act 2014 – Act 38 of 2014 • Work Health and Safety (Mines) Amendment Act 2014 – Act 71 of 2014 • Statute Law (Miscellaneous Provisions) Act (No 2) 2014 – Act 88 of 2014 • Work Health and Safety (Mines) Regulation 2014 – Reg 799 of 2014 • Work Health and Safety Amendment (Miscellaneous) Regulation 2015 – Reg 61 of 2015 • Pesticides Amendment Act 2015 – Act 3 of 2015 • Electricity Network Assets (Authorised Transactions) Act 2015 – Act 5 of 2015 • Work Health and Safety Amendment (Transitional Provisions) Regulation 2015 – Reg 338 of 2015 • State Insurance and Care Governance Act 2015 – Act 19 of 2015 • Work Health and Safety Amendment (Disclosure of Information) Regulation 2015 – Reg 644 of 2015 • Work Health and Safety (Mines and Petroleum) (Harmonisation) Regulation 2016 – Reg 49 of 2016
Amendment
• Statute Law (Miscellaneous Provisions) Act 2016 – Act 27 of 2016 • Work Health and Safety Amendment (Fees and Transitional Periods) Regulation 2016 – Reg 418 of 2016
Future commencements Work Health and Safety Act 2011 Future commencements Amending Number legislation Statute Law (Mis- 22 of 2017 cellaneous Provisions) Act 2017 xii
Date of gazettal/ Date of assent/registration commencement 1 Jun 2017 Sch 3.86 commences on 7 Jul 2017. Tooma’s Annotated Work Health and Safety Act 2011
About this Publication
Work Health and Safety Regulation 2011 Future commencements Amending Number legislation Gas and Electric- 15 of 2017 ity (Consumer Safety) Act 2017
Date of gazettal/ Date of assent/registration commencement 9 May 2017 Sch 2.12 commences on a date to be proclaimed.
Proposed amendments Work Health and Safety Act 2011 • Local Government Amendment (Parliamentary Inquiry Recommendations) Bill 2016 – 2nd reading speech Legislative Council 12 May 2016. Sch 3.74 commences on date of assent.
History notes The history notes have been entered into an abbreviated form using the number and year of the amending Act or regulation and a descriptor (eg “insrt”) to show the effect of the amending Act or regulation. The abbreviations used in the historical notes are as follows: • • • • • • •
insrt – inserted; am – amended; subst – substituted; rep – repealed; reinsrt – reinserted; renum – renumbered; reloc – relocated;
Example: History note under subsection 236(1) of Work Health and Safety Act 2011: [Subs (1) am Act 55 of 2016, Sch 3.55[5]] This note indicates that subsection (1) in s 236 was amended by Act 55 of 2016, Schedule 3.55[5]. Details of the short title of the amending Act or regulation, assent/gazettal/ registration and commencement dates are located in the Table of Amending Legislation.
Comparative table Tooma’s Annotated Work Health and Safety Act 2011 also includes a table that compares the provisions of the Work Health and Safety Act 2011 (NSW) (Act No 10 of 2011) with Commonwealth and other State and Territory Acts.
© 2017 THOMSON REUTERS
xiii
TABLE OF CONTENTS About the Author ............................................................................................................... vii Preface ................................................................................................................................. ix About This Publication ....................................................................................................... xi Table of Cases .................................................................................................................. xvii Table of Statutes ............................................................................................................. xxiii Comparative Table ......................................................................................................... xxvii Work Health and Safety Act 2011 (NSW) .......................................................................... 1 Table of Provisions .............................................................................................................. 1 Work Health and Safety Act .............................................................................................. 11 Work Health and Safety Regulation 2011 (NSW) .......................................................... 223 Table of Provisions .......................................................................................................... 223 Work Health and Safety Regulation ................................................................................ 245 Index ................................................................................................................................. 635
© 2017 THOMSON REUTERS
xv
TABLE OF CASES A Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 ............................................ 19.30 Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504 ................................................................................................................ 27.20 Arrowcrest Group Pty Ltd v Stevenson (1990) Australian Industrial Safety .............. 19.30 Attorney General of NSW v Tho Services Ltd (in liq) [2016] NSWCCA 221 .......................................................................................................................... 19.150 Austin Rover Ltd v Inspector of Factories [1989] 1 WLR 520 .................................. 18.10 Australian Securities and Investments Commission v Adler [2002] NSWSC 171 ............................................................................................................. 27.20 Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited (No 4) [2007] FCA 963 ........................................ 27.20 Australian Securities and Investments Commission v Healey [2011] FCA 717 ............................................................................................................................ 27.60 Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 ................................................................................................. 27.20
B Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 ............. 18.10, 19.60, 22.20, 23.20, 24.20, 25.20, 26.20 Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 ............. 46.10 Bolton Metropolitan Borough Council v Malrod Insulations Ltd [1993] ICR 358 ...................................................................................................................... 8.20 Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363 ................................................ 19.30 Bropho v Western Australia (1990) 171 CLR 1 .......................................................... 10.10 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 ...................... 19.30 Butler v Fife Coal [1912] AC 149 ....................... 21.20, 22.20, 23.20, 24.20, 25.20, 26.20
C CPSU v Vodafone Network Pty Ltd [2001] AIRC 1189 .................................. 46.40, 47.40 Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 ........................................................................ 12A.10 Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 ........................................................................... 19.30 Cain v Doyle (1946) 72 CLR 409 ................................................................................ 10.10 Callaghan v C I & D Industries Pty Ltd (1994) 60 IR 149 ....................................... 19.30 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 ..................................... 19.30 Chicco v Woodville City Corporation (1990) Aust Tort Rep 81-028 ....................... 275.20 Chow Cho Poon (Private) Ltd, Re [2011] NSWSC 300 ............................................. 46.50 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 ....... 19.40, 19.60, 20.60, 21.40, 22.50, 23.50, 24.50, 25.60, 26.50 Commonwealth of Australia v Bogle (1953) 89 CLR 229 .......................................... 10.30 [All references are to paragraph numbers] © 2017 THOMSON REUTERS
xvii
Table of Cases
Commonwealth of Australia v Cigamatic Pty Ltd (1962) 108 CLR 372 ................... 10.30 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591 ................................................................................................................... 46.40 Corporate Affairs (Vic), Commissioner for v Bracht [1989] VR 821 ......................... 27.20
D Daniels v Anderson (1995) 37 NSWLR 438 ............................................................... 27.80 Dawson v State Rail Authority (NSW) (1988) 26 IR 359 ........................................ 12A.10 Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRComm 406 ................................................................................................... 19.30 Dixon v Roy [1991] ACL Rep 355 NSW 55 ............................................................... 46.40
E Edwards v National Coal Board [1949] 1 All ER 743 ........................ 18.10, 46.20, 47.50 Essential Energy v WorkCover Authority of New South Wales [2012] NSWIRComm 83 ................................................................................................... 229.10 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 ................................................................................. 155.10, 171.10, 269.20
F Ferraloro v Preston Timber Ltd (1982) 42 ALR 627 ................................................. 19.30 Financial Sector Union NSW Branch (Geoff Derrick) v Westpac Banking Corporation [2006] NSWIRComm 76 ................................................................... 19.30
H Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 .................................... 19.30 Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 ................................... 18.10, 19.30 Hunter Quarries Pty v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580 ........................................................... 155.50, 171.05
I Inspector Buggy v Lyco Industries Pty Ltd [2005] NSWIRComm 298 ..................... 25.30 Inspector Ching v Bros Bins Systems Pty Ltd [2003] NSWIRComm 386 ................. 19.20 Inspector Collaghan v Starr (1992) Australian Industrial Safety ...................... 8.10, 20.40 Inspector Forster v A B John Pty Ltd t/as Peel Valley Machinery Service [2003] NSWIRComm 116 ....................................................................................... 19.30 Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279 .... 21.20, 22.20, 23.20, 24.20, 25.20, 26.20 Inspector Green v NSW Department of Commerce [2004] NSWIRComm 64 .............................................................................................................................. 17.10 Inspector James v Ryan (No 3) [2010] NSWIRComm 127 ........................................ 27.20 Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138 .......................................... 19.30 Inspector Kumar v Owens Container Services Australia Pty Ltd [2006] NSWIRComm 324 ................................................................................................... 27.40 [All references are to paragraph numbers] xviii
Tooma’s Annotated Work Health and Safety Act 2011
Table of Cases
Inspector Kumar v Ritchie [2006] NSWIRComm 323 ............................................... 27.40 Inspector Kumar v Rose [2006] NSWIRComm 325 ................................................... 27.40 Inspector Macready v Forcon [2007] NSWIRComm 132 ........................................ 275.20 Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58 ....................................................................................................... 8.20 Inspector Martin v Russell Larkham [2003] NSWIRComm 31 ................................. 28.20 Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 ................................................................................................... 19.30 Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 ....................................................................................... 19.30 Inspector Nash v MacMahon Mining Services Ltd [2016] NSWDC 171 ................ 19.120 Inspector Page v Growth Equities Services Pty Ltd [1994] NSWIRComm 95 .............................................................................................................................. 20.30 Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 ................................................................................................ 12A.10 Inspector Peter Beacham v BOC Ltd [2007] NSWIRComm 92 ................................ 19.30 Inspector Seneviratne v Qantas Airways Ltd [2006] NSWIRComm 69 .................... 19.30 Inspector Wolfe v Franklin (unreported, NSW CIMC, Miller CIM, No 89/927, 4 July 1990) ................................................................................................ 28.20 Italo Australian Construction Pty Ltd v Parkes (1988) 24 IR 428 .......................... 12A.10
K Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority (NSW) [2000] NSWIRComm 240 ................................................................................................... 17.10 Kirby v A & MI Hanson Pty Ltd (1994) 55 IR 40 ...................................................... 19.30 Kirk Group v Industrial Relations Commission of NSW [2010] HCA 1 .................... 19.40
L Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 ................................. 19.30 Lyco Industries Pty Ltd v WorkCover Authority (NSW) (Inspector Buggy) [2006] NSWIRComm 396 ......................................................................................... 6.10
M Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84; [2000] NSWIRComm 239 ................................................................................................................. 17.10, 46.10 Marshall v Gotham Co Ltd [1954] AC 360 .......................................... 18.10, 46.20, 47.50 Martin v Boulton and Paul (Steel Construction) Ltd [1982] ICR 366 ....................... 18.20 McKie v Al-Hassani [2015] ACTIC 1 .......................................................................... 27.20 McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464 ....................................................................................................................... 20.30 Moore v Fielders Steel Roofing Pty Ltd [2003] SAIRC 75 ........................................ 19.70 Morley v Australian Securities and Investments Commission [2010] NSWCA 331 ............................................................................................................ 27.20
P Perilya v Nash [2015] NSWSC 706 ............................................................. 155.60, 155.70 [All references are to paragraph numbers] © 2017 THOMSON REUTERS
xix
Table of Cases
Proudman v Dayman (1941) 67 CLR 536 ................................................................ 12A.10 Province of Bombay v Municipal Corp of Bombay [1947] AC 58 ............................. 10.10
Q QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150 .............................................................................................................. 47.40
R v Associated Octel Co Ltd [1996] 4 All ER 846; [1996] 1 WLR 1543 ................... 5.40 v Australian Char Pty Ltd (1995) 64 IR 387 ........................................................... 19.30 v Australian Char Pty Ltd [1999] 3 VR 834 ......................................................... 275.20 v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171 ................................................................................................. 19.30 R v Gateway Foodmarkets [1996] EWCA 1937 ....................................................... 12A.10 R v Mara [1987] 1 WLR 87 ......................................................................................... 19.80 R v Nelson Group Services [1998] EWCA 3372 ...................................................... 12A.10 Rail Infrastructure Corporation v Inspector Page [2008] NSWIRComm 169 ............................................................................................................................ 19.30 Rech v F M Hire Pty Ltd (1998) 83 IR 293 ................................................................ 19.30 Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492 ............................................. 19.30 Rice v Henley (1914) 19 CLR 19 ........................ 21.20, 22.20, 23.20, 24.20, 25.20, 26.20 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 ............................ 19.30
R R R R
S S Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5 .................................................................................................................... 19.10 Safe Work (NSW) v JSN Hanna Pty Ltd [2016] NSWDC 117 ................................. 19.100 Safe Work (NSW) v Schaefer Systems International Pty Ltd [2016] NSWDC 321 .......................................................................................................... 19.150 Safe Work NSW v Essential Energy [2016] NSWDC 219 ........................................ 19.120 Safe Work New South Wales v Austral Hydroponics [2015] NSWDC 295 ............... 19.90, 19.110, 19.150 SafeWork v Omega International [2016] NSWDC 11 ................................................. 19.30 SafeWork (NSW) v Freedom Foods Pty Ltd [2016] NSWDC 153 ............................ 19.120 SafeWork NSW v Ceerose Pty Ltd [2016] NSWDC 184 ........................................... 19.120 SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183 ......................... 19.120 SafeWork NSW v Newcastle Stevedores Pty Ltd [2016] NSWDC 294 ..................... 19.120 SafeWork NSW v Pegela Rural Enterprises Pty Ltd [2016] NSWDC 142 ................ 19.30 SafeWork NSW v Rawson Homes [2016] NSWDC 237 .............................................. 19.10 SafeWork NSW v Tamex [2016] NSWDC 295 ........................................................... 191.40 Shafron v Australian Securities and Investments Commission [2012] HCA 18 ............................................................................................................... 247.10, 252.10 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 ............................................ 12A.10 Skinner v Commissioner of Railways (1937) 37 SR (NSW) 261 ............................... 10.20 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 ................................ 18.10, 46.20, 47.50 Stevenson v Hoggard [1992] SAIRC 41 ...................................................................... 28.20 Superannuation Fund Investment Trust v Commissioner of Stamps of the State of South Australia (1979) 145 CLR 330 ....................................................... 10.20 [All references are to paragraph numbers] xx
Tooma’s Annotated Work Health and Safety Act 2011
Table of Cases
T TTS Pty Ltd v Griffıths (1991) 105 FLR 255 ................................................................. 8.20 TVW Enterprises Ltd v Duffy (1985) 62 ALR 63 ........................................................ 47.40 Taxation, Federal Commissioner of v Offıcial Liquidator of EO Farley Ltd (1940) 63 CLR 278 ................................................................................................. 10.30 Telstra Corporation Ltd v Smith (2005) 177 FCR 577 ............................................... 20.40 Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165 ........................................ 275.20 Tesco Supermarkets v Natrass [1972] AC 153 ......................................................... 12A.10 Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales (2010) 78 NSWLR 94 ............................................................................................. 19.30 Tobiassen v Reilly (2009) 178 IR 213; [2009] WASCA 26 ........................................ 19.30 Tsougranis v Inspector Carmody (No 2) [2006] NSWIRComm 133 ........................... 8.20
W Westminster City Council v Select Management Ltd [1985] 1 WLR 576; [1985] 1 All ER 897 ................................................................................................ 20.50 Whitaker v Delmina Pty Ltd (1998) 87 IR 268 ........................................................... 19.80 Work Cover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171 ............................................................................................................ 19.30 WorkCover Authority (NSW) v Boral John Perry Industries Pty Ltd t/as Boral Elevators [1998] NSWIRComm 198 .............................................................. 8.20 WorkCover Authority (NSW) v Boral John Perry Industries Pty Ltd t/as Boral Elevators (unreported, NSWIRComm, Maidment J, Case No CT1115/95, 8 August 1996) ...................................................................................... 8.20 WorkCover Authority (NSW) v Grice Constructions Pty Ltd [2002] NSWIRComm 20 ..................................................................................................... 18.10 WorkCover Authority (NSW) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451 ................................................................................................................. 19.30 WorkCover Authority (NSW) v Maine Lighting Pty Ltd (1995) 100 IR 248 .............. 19.30 WorkCover Authority (NSW) v Morrison [2001] NSWIRComm 325 ......................... 19.80 WorkCover Authority (NSW) v NSW Police Service [No 2] (2001) 104 IR 268 ............................................................................................................................ 19.30 WorkCover Authority (NSW) v Police Service (NSW) [2000] NSWIRComm 234 ................................................................................................... 10.20 WorkCover Authority (NSW) v Rowson [1994] NSWIRComm 76 ............................. 20.30 WorkCover Authority (NSW) v Technical and Further Education Commission (1999) 92 IR 251 ................................................................................ 19.80 WorkCover Authority (NSW) v Techniskil-Namutoni Pty Ltd [1995] NSWIRComm 127 ................................................................................................... 19.80 WorkCover Authority (NSW) v Wallis [1994] NSWIRComm 163 .............................. 28.20 WorkCover Authority (NSW) v Wallis (unreported, CT 1011 of 1995, 14 August 1996) ............................................................................................................ 28.20 WorkCover Authority (NSW) v Woolworths Ltd [1994] NSWIRComm 95 ................ 20.40 WorkCover Authority of NSW v Karemen Pty Ltd [2016] NSWDC 201 .................. 19.110 WorkCover Authority of NSW v Manildra Park Pty Ltd [2007] NSWIRComm 35 ..................................................................................................... 19.30 WorkCover Authority of NSW v TRW [2001] NSWIRComm 52 ................................ 19.30 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 ............................................................................................. 18.10 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 ....................................................................................................... 17.10 [All references are to paragraph numbers] © 2017 THOMSON REUTERS
xxi
Table of Cases
WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 ....................................................................................... 18.10 WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2015] NSWDC 369 ......................................................................................... 19.80 WorkCover Authority of NSW (Inspector Robinson) v Milltech Pty Ltd [2001] NSWIRComm 51 ......................................................................................... 17.10 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald’s Australia Ltd (1999) 95 IR 383 ......................................................... 20.30 WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Smith [2004] NSWIRComm 349 ............................................................................................................................ 27.80 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2000] NSWIRComm 12 ................ 275.20 WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 ..................................................................................................... 28.20
[All references are to paragraph numbers] xxii
Tooma’s Annotated Work Health and Safety Act 2011
TABLE OF STATUTES Commonwealth Broadcasting and Television Act 1942: 47.40
Commonwealth Places (Application of Laws) Act 1970 s 4:
Corporations Act 2001: 27.20 s 9: 27.20 s 9(a): 27.20 s 9(b): 27.20
Work Health and Safety Act 2011: 2.10 s 11: 11.10 s 12F(3): 11.10
Australian Capital Territory Work Health and Safety Act 2011: 2.10
New South Wales Companies Act 1936 s 282: 10.30 s 297: 10.30
Conveyancing Act 1919: 46.40 Crimes (Sentencing Procedure) Act 1999 s 10: 19.150
Occupational Health and Safety Act 1983 s 15: 19.40 s 16: 19.40 s 16(1): 46.10
Occupational Health and Safety Amendment Act 2001: 27.20 Work Health and Safety Act 2011: 1.10, 1.20, 1.30, 2.10, 3.10, 5.10, 5.20, 5.60, 5.90, 6.40, 6.50, 7.10, 7.20, 7.30, 7.40, 8.10, 10.10, 11.10, 12A.10, 14.10, 15.10, 16.10, 17.30, 18.10, 18.20, 19.10, 19.20, 19.30, 19.90, 20.20, 20.30, 20.40, 21.20, 22.20, 23.20, 24.20, 25.20, 26.20, 27.50, 28.20, 35.10, 36.30, 36.40, 36.50, 37.50, 46.30, 46.50, 155.50, 171.05, 191.10, 272.20 s 3: 3.10 s 4: 6.40, 20.30, 21.30, 22.30, 22.40, 22.50, 23.30, 23.40, 24.30, 24.40, 25.40, 25.50, 26.30, 26.40, 27.20, 36.30
© 2017 THOMSON REUTERS
s 5: 5.10, 5.20, 5.50, 5.80, 5.100, 7.40, 19.50, 38.20 s 5(2): 5.70 s 5(3): 5.70 s 5(4): 5.80, 7.40 s 5(5): 5.90 s 6: 6.10, 25.30 s 6(2): 6.10, 6.20, 25.30 s 6(3): 6.30 s 6(3)(a): 6.30 s 6(3)(b): 6.40 ss 6(3) to (5): 6.10 s 6(4): 6.50 s 6(5): 6.50 s 7: 5.80, 7.30, 19.70, 47.30 s 7(1): 7.20 s 7(1)(b): 5.80 s 7(1)(h): 7.30 s 7(3): 7.40 s 8: 7.10, 8.10, 20.40, 273.10 s 8(1): 20.40 s 8(2): 20.40 s 9: 6.40 s 9(b)(i): 27.20 s 10: 10.10, 10.30 s 12A: 12A.10 ss 13 to 16: 13.10 s 14: 14.10, 19.30, 20.20, 21.20, 22.20, 23.20, 24.20, 25.20, 26.20 s 15: 15.10, 21.20, 22.20, 23.20, 24.20, 25.20, 26.20 s 16: 16.10, 21.20, 22.20, 23.20, 24.20, 25.20, 26.20 s 17: 17.10 s 18: 18.10, 19.60, 20.60, 21.40, 22.50, 23.50, 24.50, 25.60, 26.50 s 19: 5.20, 5.50, 6.60, 15.10, 18.10, 19.20, 19.30, 19.50, 21.20, 22.20, 23.20, 24.20, 25.20, 26.20 s 19(1): 7.10, 19.10, 19.70, 19.80 s 19(2): 6.60, 7.40, 17.10, 19.10, 19.70, 19.80 s 19(3)(a): 19.100 s 19(3)(b): 19.110 s 19(3)(c): 19.120 s 19(3)(d): 19.130 s 19(3)(e): 19.140 s 19(3)(f): 19.150 s 19(3)(g): 19.160 s 19(a) to (c): 18.10
xxiii
Table of Statutes Work Health and Safety Act 2011 — cont s 19(d) to (e): 18.10 s 19(e): 18.10 ss 19 to 26: 18.10 s 20: 8.10, 20.10, 20.20, 20.30, 20.40, 20.50, 20.60, 21.20, 22.20 s 20(1)(a): 20.50 ss 20 to 22: 23.20 ss 20 to 23: 24.20 ss 20 to 24: 25.20 ss 20 to 25: 15.10, 26.20 ss 20 to 26: 6.60, 19.20 s 21: 21.10, 21.30, 21.40, 22.20 ss 21 to 26: 20.20 s 22: 22.10, 22.20, 22.50 ss 22(2)(a) to (f): 22.10 s 22(3): 22.10 s 22(4): 22.10 ss 22 to 26: 21.20 s 23: 23.10, 23.20, 23.50 s 23(2): 23.10 s 23(3): 23.10 s 23(4): 23.10 ss 23 to 26: 22.20 s 24: 24.10, 24.20, 24.50 s 24(2): 24.10 ss 24 to 26: 23.20 s 25: 6.60, 25.10, 25.20, 25.60 s 25(2): 25.10 ss 25 to 26: 24.20 s 26: 25.20, 26.10, 26.20, 26.50 s 26(2): 26.10 s 27: 27.10, 27.20, 28.20 s 27(5): 27.10 s 27(5)(b): 27.40 s 28: 7.10, 28.10, 28.20 s 29: 5.90, 29.10 s 29(c): 29.10 s 35: 35.10, 36.10, 36.50, 37.10, 38.10 s 36: 35.10, 35.30, 35.40, 36.10, 36.30, 36.40, 36.60 s 36(a): 36.40, 36.50 s 36(b)(viii): 36.20 s 36(b): 36.40 ss 36(b)(i) to (viii): 36.40 s 36(b)(ii): 36.20 s 36(b)(iv): 36.20 s 36(b)(iii): 36.20 s 37: 8.10, 35.10, 35.40, 37.10, 37.20, 37.30 s 37(a): 37.50, 37.60 s 37(b): 37.50 s 37(c): 37.50 s 37(d): 37.50 s 38: 8.10, 35.10, 35.20, 36.10, 36.50, 37.10, 38.10, 38.20 s 38(2): 35.50 s 38(3): 35.50 s 38(5): 38.40 s 39: 35.60, 36.10, 39.10, 39.30, 39.40
xxiv
s 39(2): 35.60, 39.30 ss 39(3)(a) to (c): 35.60, 39.40 ss 39(3)(d) to (e): 35.60 ss 39(d) to (e): 39.40 s 46: 5.50, 19.120, 46.10, 46.20, 46.40, 46.50, 46.60, 47.50 s 47: 7.10, 47.10, 47.30, 47.50, 47.60, 48.10, 49.10 s 48: 47.40, 48.10 s 48(2): 48.20 s 49: 47.20, 49.10 ss 49(a) to (b): 49.10 s 49(c): 49.10 s 49(d): 49.10 s 49(e): 49.10 s 76A: 76A.10 s 103: 47.70 s 104: 104.10, 104.30 ss 104 to 115: 7.10 s 107: 104.10 s 110: 104.20 s 111: 104.30 s 112: 104.10 s 113: 104.40 s 155: 155.20, 155.30, 155.50, 155.60, 155.70, 171.05 s 155(1): 155.60 s 155(2)(a) to (b): 155.40 s 155(4): 155.40 s 155(5): 155.20 s 155(6): 155.20 s 155(7): 155.30 s 171: 155.50, 171.05, 171.20, 171.30 s 171(6): 171.20 s 171(7): 171.20 s 172: 155.30, 171.30 s 172(1): 171.30 s 172(2): 155.30, 171.30 s 173(1): 171.30 s 173(2): 171.30 s 173(3): 171.30 s 192: 191.30 s 193: 191.40 s 194: 191.40 s 196: 195.10 s 196(2): 195.10 s 197: 195.10 s 198: 35.60, 39.10, 198.10 s 199(1): 198.10 s 199(1)(b): 198.10 s 200: 198.20 s 201: 35.60 s 203: 191.30 s 204: 191.30 s 210: 198.40 s 210(1): 191.50 s 210(2): 191.50 s 224: 191.60 s 224(3): 191.60
Tooma’s Annotated Work Health and Safety Act 2011
Table of Statutes Work Health and Safety Act 2011 — cont s s s s s s s s s s s s s s s s
228: 191.60 228(1): 195.30 229: 191.60 244: 12A.10 244(1): 12A.10 244(2): 12A.10 244(3): 12A.10 247: 5.90, 27.20, 247.10, 252.10 252: 27.20, 247.10, 252.10 268: 268.10, 268.20 268(1): 268.10 268(1)(b): 268.10 268(2): 268.10 268(3): 268.10 269: 155.10, 171.10, 269.10, 269.20 272: 14.10, 19.30, 20.20, 21.20, 22.20, 23.20, 24.20, 25.20, 26.20, 272.10 s 273: 7.40, 273.10 s 275: 17.30, 18.20, 19.90, 46.30 s 275(2): 17.30, 18.20, 19.90, 46.30 s 275(3): 17.30, 18.20, 19.90, 46.30 Pt 2: 19.30 Pt 2, Div 2: 6.60 Pt 2, Div 3: 6.60 Pt 5: 47.70 Pt 5, Div 2: 46.40, 47.60 Pt 12: 191.20, 195.20, 198.30 Pt 13: 191.40
Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice: 46.50, 46.60 Work Health and Safety Regulation 2011: 6.40, 7.10, 17.20, 17.30, 19.60, 35.30, 36.60 cl 7: 5.10, 19.50 cl 7(1): 20.50 cl 7(2): 20.50 cl 8: 6.40, 25.30 cl 32: 17.20 cll 32 to 38: 17.20 cl 34: 17.20 cll 34 to 36: 17.30 cl 35: 17.20 cl 36: 17.20 cl 36(3)(a): 17.20
© 2017 THOMSON REUTERS
cl 36(3)(b): 17.20 cl 36(3)(c): 17.20 cl 36(4): 17.20 cl 36(5): 17.20 cl 50: 19.160 cl 50(1): 19.160 cl 58: 19.160 cll 368 to 378: 19.160 cll 405 to 418: 19.160 cll 435 to 444: 19.160 cl 475: 19.160 cl 482: 19.160 Ch 5: 6.60 Ch 7: 6.60
Northern Territory Work Health Act 1986 s 29: 8.20
Work Health and Safety (National Uniform Legislation) Act 2011: 2.10
Queensland Work Health and Safety Act 2011: 2.10 Workplace Health and Safety Act 1995 s 167: 27.20
South Australia Occupational Health, Safety and Welfare Act 1986: 18.10 Work Health and Safety Act 2012: 2.10
Tasmania Work Health and Safety Act 2012: 2.10
United Kingdom Health and Safety at Work Act 1974 s s s s
3: 19.80 3(1): 19.30 4: 20.50 52: 8.20
xxv
COMPARATIVE TABLE INTRODUCTION The table which follows compares the provisions of the Work Health and Safety Act 2011 (NSW) (Act No 10 of 2011) with Commonwealth and other State and Territory Acts.
New South Wales vs Other Jurisdicitons This table lists the provisions of the respective Commonwealth, and other State and Territory Acts compared with the Work Health and Safety Act 2011 (NSW). The provision titles for the NSW Act are on the left, and comparable provisions of the Commonwealth, State and Territory Acts as at 30 April 2017 are to the right.
© 2017 THOMSON REUTERS
xxvii
Comparative Table
NSW ACT COMPARED WITH LEGISLATION IN OTHER JURISDICTIONS For guidance as to the use of this table see “Introduction”.
xxviii
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS 5
6 7 8 9
6
7
8
9
2 Div 2 3 Div 3 Subdiv 1 4 Subdiv 2
Commencement Object Object Interpretation Definitions Definitions Other important terms Meaning of “person conducting a business or undertaking” Meaning of “supply” Meaning of “worker” Meaning of “workplace” Examples and notes
Work Health and Safety Act 2011 (Cth) Pt 1 Div 1 1 Short title 2 Div 2 3 Div 3 Subdiv 1 4 Subdiv 2
5
Pt 1 Div 1 1
Work Health and Safety Act 2011 (NSW)
Preliminary Introduction Name of Act
Provision
9
8
7
6
5
Div 1.2 3 Div 1.3 Subdiv 1.3.1 4 Subdiv 1.3.2
Pt 1 Div 1.1 1
Work Health and Safety Act 2011 (ACT)
9
8
7
6
5
2 Div 2 3 Div 3 Subdiv 1 4 Subdiv 2
Pt 1 Div 1 1 Short title
9
8
7
6
5
2 Div 2 3 Div 3 Subdiv 1 4 Subdiv 2
Pt 1 Div 1 1 Short title
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
3
5
2
1
Pt 1
Occupational Safety and Health Act 1984 (WA)
9
8
7
6
5
2 Div 2 3 Div 3 Subdiv 1 4 Subdiv 2
Pt 1 Div 1 1 Short title
Work Health and Safety Act 2012 (SA)
8
7
6
5
Work Health and Safety Act 2011 (Qld) Pt 1 Div 1 1 Short title 2 Div 2 3 Div 3 Subdiv 1 4 Subdiv 2 5
1, 2 and 4
3
Occupational Health and Safety Act 2004 (Vic) Pt 1
NSW Act Compared With Legislation in Other Jurisdictions
xxix
xxx
Extraterritorial application Scope
Application of Act Act binds the Crown
Provision
12
12A Offences 12A Application are offences of of Criminal Code strict liability
12A Act does not apply to certain vessels, structures and facilities
12A Offences are offences of strict liability
12
11
10
10
11
Div 4
12
10
Div 4
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Div 1.4
Work Health and Safety Act 2011 (ACT)
12
10 Act binds the Commonwealth 11
Work Health and Safety Act 2011 (Cth) Div 4
12
11
10
Div 4
Work Health and Safety Act 2011 (NSW)
4
Occupational Safety and Health Act 1984 (WA)
12
11
10
Div 4
Work Health and Safety Act 2012 (SA)
12 Scope: application of Act to particular matters
10 Act binds all persons
Work Health and Safety Act 2011 (Qld) Div 4 6
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Provision
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Act 2011 (Cth) 12B Duty to consult etc where law of more than one jurisdiction applies to the same matter 12C Act not to prejudice national security 12D Act not to prejudice Australia’s defence 12E Act not to prejudice certain police operations
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
12B Offences 12B Offences are offences of strict against Act – application of liability Criminal Code etc
Work Health and Safety Act 2011 (ACT)
Occupational Safety and Health Act 1984 (WA)
Work Health and Safety Act 2012 (SA)
Work Health and Safety Act 2011 (Qld)
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
© 2017 THOMSON REUTERS
xxxi
xxxii
Health and safety duties Introductory Principles that apply to duties Principles that apply to duties Duties not transferrable Person may have more than one duty More than one person can have a duty Management of risks What is reasonably practicable
Provision
Div 1 Subdiv 1 13 14 15 16 17 Subdiv 2
13
14
15
16
17
Subdiv 2
Subdiv 2.1.2
17
16
15
14
13
Div 2.1 Subdiv 2.1.1
Subdiv 2
17
16
15
14
13
Div 1 Subdiv 1
Subdiv 2
17
16
15
14
13
Div 1 Subdiv 1
Subdiv 2
17
16
15
14
13
Div 1 Subdiv 1
Subdiv 2
17
16
15
14
13
Div 1 Subdiv 1
Work Health and Work Occupational Work Health Work Health and Work Health Work Health Safety and Health Safety Act 2012 (SA) and Safety Safety (National and Safety Health and Act 1984 (WA) Act 2012 Uniform Act 2011 and Safety (Tas) Legislation) Act (ACT) Safety Act 2011 2011 (NT) Act 2011 (Qld) (Cth) 12F Interaction with Commonwealth criminal law Pt 2 Pt 2 Pt 2 Pt 2 Pt 3 Pt 2 Pt 2
Div 1 Subdiv 1
Pt 2
Work Health and Safety Act 2011 (NSW)
4, 20, 21, 22, 23
Pt 3
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
What is “reasonably practicable” in ensuring health and safety Primary duty of care Primary duty of care Further duties of persons conducting businesses or undertakings Duty of persons conducting businesses or undertakings involving management or control of workplaces
Provision
© 2017 THOMSON REUTERS Div 2 19 Div 3
20
19
Div 3
20
Work Health and Safety Act 2011 (Cth) 18
Div 2
18
Work Health and Safety Act 2011 (NSW)
20
Div 2.3
19
Div 2.2
18
Work Health and Safety Act 2011 (ACT)
20
Div 3
19
Div 2
18
20
Div 3
19
Div 2
18
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
22, 22A
19
Occupational Safety and Health Act 1984 (WA)
20
Div 3
19
Div 2
18
Work Health and Safety Act 2012 (SA)
20
Div 3
19
Div 2
Work Health and Safety Act 2011 (Qld) 18
4, 21, 26
4, 20
Occupational Health and Safety Act 2004 (Vic) 20
NSW Act Compared With Legislation in Other Jurisdictions
xxxiii
xxxiv
Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces Duties of persons conducting businesses or undertakings that design plant, substances or structures Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures Duties of persons conducting businesses or undertakings that import plant, substances or structures
Provision
22
23
24
23
24
Work Health and Safety Act 2011 (Cth) 21
22
21
Work Health and Safety Act 2011 (NSW)
24
23
22
21
Work Health and Safety Act 2011 (ACT)
24
23
22
21
24
23
22
21
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
23
23
23
22, 22A
Occupational Safety and Health Act 1984 (WA)
24
23
22
21
Work Health and Safety Act 2012 (SA)
24
23
22
Work Health and Safety Act 2011 (Qld) 21
29
27, 28
Occupational Health and Safety Act 2004 (Vic) 21, 26
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
Duties of workers Duties of other persons at the workplace Offences and penalties
Duties of persons conducting businesses or undertakings that supply plant, substances or structures Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures Duty of officers, workers and other persons Duty of officers
Provision
29 Div 5
29
Div 5
27
27 28
Div 4
Div 4
28
26
Work Health and Safety Act 2011 (Cth) 25
26
25
Work Health and Safety Act 2011 (NSW)
Div 2.5
29
28
27
Div 2.4
26
25
Work Health and Safety Act 2011 (ACT)
Div 5
29
28
27
Div 4
26
25
Div 5
29
28
27
Div 4
26
25
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Div 4
26
25
Work Health and Safety Act 2012 (SA)
21, 57A
Div 5
29
19, 23D–23G, 23K, 27 23L 20 28
23
23
Occupational Safety and Health Act 1984 (WA)
Div 5
29
28
27
Div 4
26
Work Health and Safety Act 2011 (Qld) 25
24, 32
4, 21–23, 32 4, 25, 32
31
Occupational Health and Safety Act 2004 (Vic) 30
NSW Act Compared With Legislation in Other Jurisdictions
xxxv
xxxvi
Work Health and Safety Act 2011 (NSW)
Exceptions Incident notification What is a “notifiable incident”
34 Pt 3 35
35
33
34 Pt 3
33
32
32
Failure to comply with health and safety duty – Category 2 Failure to comply with health and safety duty – Category 3
31
Work Health and Safety Act 2011 (Cth) 30
Reckless conduct 31 – Category 1
Health and safety 30 duty
Provision
35
34 Pt 3
33
32
31
30
Work Health and Safety Act 2011 (ACT)
35
34 Pt 3
33
32
30 Meaning of health and safety duty 31
35
34 Pt 3
33
32
31
30
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
3A, 3B
3A, 18A, 19A, 20A, 21A, 22A, 23AA 3A, 3B
Occupational Safety and Health Act 1984 (WA)
35
34 Pt 3
33
32
35
33A Duty prevails over particular excuses 34 Pt 3
33
32
31
31
30
Work Health and Safety Act 2011 (Qld) 30
Work Health and Safety Act 2012 (SA)
37
Pt 5
32
Occupational Health and Safety Act 2004 (Vic) 32, 33
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
What is a “serious injury or illness” What is a “dangerous incident” Duty to notify of notifiable incidents Duty to preserve incident sites Authorisations Meaning of “authorised” Requirements for authorisation of workplaces Requirements for authorisation of plant or substance Requirements for authorisation of work Requirements for prescribed qualifications or experience
Provision
37
38 39 Pt 4 40 41 42
43 44
38
39
Pt 4 40
41
42
43
44
Work Health and Safety Act 2011 (Cth) 36
37
36
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS 44
43
42
41
Pt 4 40
39
38
37
36
Work Health and Safety Act 2011 (ACT)
44
43
42
41
Pt 4 40
39
38
37
36
44
43
42
41
Pt 4 40
39
38
37
36
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
23A
231
Occupational Safety and Health Act 1984 (WA)
44
43
42
41
Pt 4 40
39
38
37
36
Work Health and Safety Act 2012 (SA)
44
43
42
41
Pt 4 40
39
38
37
Work Health and Safety Act 2011 (Qld) 36
41
40, 42
40
40
Pt 6
39
38
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
xxxvii
xxxviii
Requirement to comply with conditions of authorisation Consultation, representation and participation Consultation, co-operation and co-ordination between duty holders Duty to consult with other duty holders Consultation with workers Duty to consult workers Nature of consultation When consultation is required Health and safety representatives
Provision
Pt 5
Div 1
46 Div 2 47 48 49 Div 3
Div 1
46
Div 2
47
48
49
Div 3
Work Health and Safety Act 2011 (Cth) 45
Pt 5
45
Work Health and Safety Act 2011 (NSW)
Div 5.3
49
48
47
Div 5.2
46
Div 5.1
Pt 5
45
Work Health and Safety Act 2011 (ACT)
Div 3
49
48
47
Div 2
46
Div 1
Pt 5
45
Div 3
49
48
47
Div 2
46
Div 1
Pt 5
45
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
30, 35
Pt 4 & 6B
Occupational Safety and Health Act 1984 (WA)
Div 3
49
48
47
Div 2
46
Div 1
Pt 5
45
Work Health and Safety Act 2012 (SA)
Div 3
49
48
47
Div 2
46
Div 1
Pt 5
Work Health and Safety Act 2011 (Qld) 45
35
36
35
Pt 4 & 7
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Request for election of health and safety representatives Request for election of health and safety representative Determination of work groups Determination of work groups Negotiations for agreement for work group Notice to workers Failure of negotiations Multiple-business work groups Determination of work groups of multiple businesses
Provision
© 2017 THOMSON REUTERS 50
Subdiv 2 51 52 53 54 Subdiv 3 55
Subdiv 2
51
52
53
54
Subdiv 3
55
Work Health and Safety Act 2011 (Cth) Subdiv 1
50
Subdiv 1
Work Health and Safety Act 2011 (NSW)
55
Subdiv 5.3.3
54
53
52
51
Subdiv 5.3.2
50
Subdiv 5.3.1
Work Health and Safety Act 2011 (ACT)
55
Subdiv 3
54
53
52
51
Subdiv 2
50
Subdiv 1
55
Subdiv 3
54
53
52
51
Subdiv 2
50
Subdiv 1
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
30A
30A, 30B
30
29
Occupational Safety and Health Act 1984 (WA)
55
Subdiv 3
54
53
52
51
Subdiv 2
50
Subdiv 1
Work Health and Safety Act 2012 (SA)
55
Subdiv 3
54
53
52
51
Subdiv 2
50
Work Health and Safety Act 2011 (Qld) Subdiv 1
47
45
44
43, 46
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
xxxix
xl
Negotiation of agreement for work groups of multiple businesses Notice to workers Withdrawal from negotiations or agreement involving multiple businesses Effect of Subdivision on other arrangements Election of health and safety representatives Eligibility to be elected Procedure for election of health and safety representatives Eligibility to vote
Provision
59
Subdiv 4 60 61
62
Subdiv 4
60
61
62
58
58
59
57
Work Health and Safety Act 2011 (Cth) 56
57
56
Work Health and Safety Act 2011 (NSW)
62
61
60
Subdiv 5.3.4
59
58
57
56
Work Health and Safety Act 2011 (ACT)
62
61
60
Subdiv 4
59
58
57
56
62
61
60
Subdiv 4
59
58
57
56
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
31
31
39E
Occupational Safety and Health Act 1984 (WA)
62
61
60
Subdiv 4
59
58
57
56
Work Health and Safety Act 2012 (SA)
62
61
60
Subdiv 4
59
58
57
Work Health and Safety Act 2011 (Qld) 56
54
52
51
48
Occupational Health and Safety Act 2004 (Vic) 48, 49, 50
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
When election not required Term of office of health and safety representative Disqualification of health and safety representatives Immunity of health and safety representatives Deputy health and safety representatives
Provision
64 65
66 67
65
66
67
Work Health and Safety Act 2011 (Cth) 63
64
63
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS 67
66
65
64
63
Work Health and Safety Act 2011 (ACT)
67
66
65
64
63
67
66
65
64
63
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
33
32, 34
32
31
Occupational Safety and Health Act 1984 (WA)
67
66
65
64
63
Work Health and Safety Act 2012 (SA)
Subdiv 4A Disqualification process 67A Definition for subdivision 67B Application of subdivision
67
66
65
64
Work Health and Safety Act 2011 (Qld) 63
57
56
55
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
xli
xlii
Work Health and Safety Act 2011 (NSW)
Subdiv 5 Powers and functions of health and safety representatives
Provision
Subdiv 5
Work Health and Safety Act 2011 (Cth)
Subdiv 5.3.5
Work Health and Safety Act 2011 (ACT)
Subdiv 5
Subdiv 5
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
Subdiv 5
Work Health and Safety Act 2012 (SA)
Work Health and Safety Act 2011 (Qld) 67C Decision on application may be given on the papers or at a hearing 67D Applications decided on the papers 67E Applications decided at a hearing 67F Notice of decision Subdiv 5
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Powers and functions of health and safety representatives Powers and functions generally limited to the particular work group Obligations of person conducting business or undertaking to health and safety representatives General obligations of person conducting business or undertaking Exceptions from obligations under section 70(1) Obligation to train health and safety representatives
Provision
© 2017 THOMSON REUTERS 69
Subdiv 6
70
71 72
Subdiv 6
70
71
72
Work Health and Safety Act 2011 (Cth) 68
69
68
Work Health and Safety Act 2011 (NSW)
72
71
70
Subdiv 5.3.6
69
68
Work Health and Safety Act 2011 (ACT)
72
71
70
Subdiv 6
69
68
72
71
70
Subdiv 6
69
68
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
35
35
33
Occupational Safety and Health Act 1984 (WA)
72
71
70
Subdiv 6
69
68
Work Health and Safety Act 2012 (SA)
72
71
70
Subdiv 6
69
Work Health and Safety Act 2011 (Qld) 68
67
69, 70
59
Occupational Health and Safety Act 2004 (Vic) 58
NSW Act Compared With Legislation in Other Jurisdictions
xliii
xliv
Obligation to share costs if multiple businesses or undertakings List of health and safety representatives Health and safety committees Health and safety committees Constitution of committee Special provision for coal and mine workplaces Functions of committee Meetings of committee Duties of person conducting business or undertaking Issue resolution
Provision
Div 4 75 76
Div 4
75
76
77 78 79
Div 5
77
78
79
Div 5
76A
74
Work Health and Safety Act 2011 (Cth) 73
74
73
Work Health and Safety Act 2011 (NSW)
Div 5.5
79
78
77
76
75
Div 5.4
74
73
Work Health and Safety Act 2011 (ACT)
Div 5
79
78
77
76
75
Div 4
74
73
Div 5
79
78
77
76
75
Div 4
74
73
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
38, 39B
41
39E, 40
37, 39C
38, 39, 39B
Occupational Safety and Health Act 1984 (WA)
Div 5
79
78
77
76
75
Div 4
74
73
Work Health and Safety Act 2012 (SA)
Div 5
79
78
77
76
75
Div 4
74
Work Health and Safety Act 2011 (Qld) 73
72
72
72
72
71
Occupational Health and Safety Act 2004 (Vic) 68
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Parties to an issue Resolution of health and safety issues Referral of issue to regulator for resolution by inspector Right to cease or direct cessation of unsafe work Definition of “cease work under this Division” Right of worker to cease unsafe work Health and safety representative may direct that unsafe work cease Worker to notify if ceases work Alternative work
Provision
81 82
Div 6 83
84 85
86 87
82
Div 6
83
84
85
86
87
Work Health and Safety Act 2011 (Cth) 80
81
80
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS 87
86
85
84
83
Div 5.6
82
81
80
Work Health and Safety Act 2011 (ACT)
87
86
85
84
83 Meaning of cease work under this Division
Div 6
82
81
80
87
86
85
84
27
26
26
87
86
85
84
83
83
82
81
80
Work Health and Safety Act 2012 (SA)
Div 6
24, 25, 33
24, 51J
Occupational Safety and Health Act 1984 (WA)
Div 6
82
81
80
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
87
86
85
84
83
Div 6
82
81
Work Health and Safety Act 2011 (Qld) 80
74
75
73
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
xlv
xlvi
Continuity of engagement of worker Request to regulator to appoint inspector to assist Provisional improvement notices Provisional improvement notices Provisional improvement notice to be in writing Contents of provisional improvement notice Provisional improvement notice may give directions to remedy contravention
Provision
90 91
92
93
91
92
93
Div 7
Div 7
90
89
Work Health and Safety Act 2011 (Cth) 88
89
88
Work Health and Safety Act 2011 (NSW)
93
92
91
90
Div 5.7
89
88
Work Health and Safety Act 2011 (ACT)
93
92
91
90
Div 7
89
88
93
92
91
90
Div 7
89
88
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
51AF
51AE
51AC
51AC
28, 51J
Occupational Safety and Health Act 1984 (WA)
93
92
91
90
Div 7
89
88
Work Health and Safety Act 2012 (SA)
93
92
91
90
Div 7
89
Work Health and Safety Act 2011 (Qld) 88
61
60
60
60
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Minor changes to provisional improvement notice Issue of provisional improvement notice Health and safety representative may cancel notice Display of provisional improvement notice Formal irregularities or defects in notice Offence to contravene a provisional improvement notice Request for review of provisional improvement notice
Provision
© 2017 THOMSON REUTERS 95
96
97
98 99
100
96
97
98
99
100
Work Health and Safety Act 2011 (Cth) 94
95
94
Work Health and Safety Act 2011 (NSW)
100
99
98
97
96
95
94
Work Health and Safety Act 2011 (ACT)
100
99
98
97
96
95
94
100
99
98
97
96
95
94
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
51AH
51AG
51AD
Occupational Safety and Health Act 1984 (WA)
100
99
98
97
96
95
94
Work Health and Safety Act 2012 (SA)
100
99
98
97
96
95
Work Health and Safety Act 2011 (Qld) 94
63
62
65
64
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
xlvii
xlviii
Work Health and Safety Act 2011 (NSW)
103
Pt 6
Div 1
103
Pt 6
Div 1
Discriminatory, coercive and misleading conduct Prohibition of discriminatory, coercive or misleading conduct Div 6.1
Pt 6
103
Div 5.8
102
102
Div 8
101
Work Health and Safety Act 2011 (ACT)
Work Health and Safety Act 2011 (Cth) 101
Part does not apply to prisoners
Regulator to 101 appoint inspector to review notice 102 Decision of inspector on review of provisional improvement notice Part not to apply Div 8 to prisoners
Provision
Div 1
Pt 6
103
Div 8
102
101
Div 1
Pt 6
103
Div 8
102
101
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Pt 6B
51AH
Occupational Safety and Health Act 1984 (WA)
Div 1
Pt 6
103
Div 8
102
101
Work Health and Safety Act 2012 (SA)
63
Occupational Health and Safety Act 2004 (Vic) 63
Div 1
Div 8 Part not to apply to prisoners and detainees 103 Part does not apply to prisoners and detainees Pt 6 Pt 7 Div 9
102
Work Health and Safety Act 2011 (Qld) 101
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Prohibition of discriminatory conduct What is “discriminatory conduct” What is a “prohibited reason” Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct Prohibition of coercion or inducement Misrepresentation Criminal proceedings in relation to discriminatory conduct
Provision
105
106
107
108 109 Div 2
106
107
108
109
Div 2
Work Health and Safety Act 2011 (Cth) 104
105
104
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS Div 6.2
109
108
107
106
105
104
Work Health and Safety Act 2011 (ACT)
Div 2
109
108
107
106
105
104
Div 2
109
108
107
106
105
104
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
35A, 56
35A, 35B, 56
Occupational Safety and Health Act 1984 (WA)
Div 2
109
108
107
106
105
104
Work Health and Safety Act 2012 (SA)
Div 2
109
108
107
106
105
Work Health and Safety Act 2011 (Qld) 104
53
76
Occupational Health and Safety Act 2004 (Vic) 76
NSW Act Compared With Legislation in Other Jurisdictions
xlix
l
Proof of discriminatory conduct Order for compensation or reinstatement Civil proceedings in relation to discriminatory or coercive conduct Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct Procedure for civil actions for discriminatory conduct General General provisions relating to orders Prohibition of multiple actions
Provision
112
113
Div 4 114 115
113
Div 4 114
115
Div 3
Div 3
112
111
Work Health and Safety Act 2011 (Cth) 110
111
110
Work Health and Safety Act 2011 (NSW)
115
Div 6.4 114
113
112
Div 6.3
111
110
Work Health and Safety Act 2011 (ACT)
115
Div 4 114
113
112
Div 3
111
110
115
Div 4 114
113
112
Div 3
111
110
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
35D
51G, 51K
Occupational Safety and Health Act 1984 (WA)
115
Div 4 114
113
112
Div 3
111
110
Work Health and Safety Act 2012 (SA)
115
Div 4 114
113
112
Div 3
111
Work Health and Safety Act 2011 (Qld) 110
78E
78A–78D
78
Occupational Health and Safety Act 2004 (Vic) 77
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Workplace entry by WHS entry permit holders Introductory Definitions Entry to inquire into suspected contraventions Entry to inquire into suspected contraventions Rights that may be exercised while at workplace Notice of entry Entry to inspect employee records or information held by another person Entry to consult and advise workers Entry to consult and advise workers
Provision
© 2017 THOMSON REUTERS Div 1 116 Div 2 117 118
119 120
Div 3 121
117
118
119 120
Div 3
121
Work Health and Safety Act 2011 (Cth) Pt 7
Div 1 116 Div 2
Pt 7
Work Health and Safety Act 2011 (NSW)
121
Div 7.3
119 120
118
117
Div 7.1 116 Div 7.2
Pt 7
Work Health and Safety Act 2011 (ACT)
121
Div 3
119 120
118
117
Div 1 116 Div 2
Pt 7
121
Div 3
119 120
118
117
Div 1 116 Div 2
Pt 7
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
121
Div 3
119 120
118
117
Div 1 116 Div 2
Pt 7
Work Health and Safety Act 2012 (SA)
121
Div 3
119 120
118
117
Div 1 116 Div 2
Work Health and Safety Act 2011 (Qld) Pt 7
88
89, 90
87
79
Occupational Health and Safety Act 2004 (Vic) Pt 8
NSW Act Compared With Legislation in Other Jurisdictions
li
lii
Notice of entry Requirements for WHS entry permit holders Contravening WHS entry permit conditions WHS entry permit holder must also hold permit under other law WHS entry permit to be available for inspection When right may be exercised Where the right may be exercised Work health and safety requirements Residential premises
Provision
125
126 127 128 129
126
127
128
129
124
124
125
123
Work Health and Safety Act 2011 (Cth) 122 Div 4
123
122 Div 4
Work Health and Safety Act 2011 (NSW)
129
128
127
126
125
124
123
122 Div 7.4
Work Health and Safety Act 2011 (ACT)
129
128
127
126
125
124
123
122 Div 4
129
128
127
126
125
124
123
122 Div 4
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
129
128
127
126
125
124
123
122 Div 4
Work Health and Safety Act 2012 (SA)
129
128
127
126
125
124
123
Work Health and Safety Act 2011 (Qld) 122 Div 4
90
81
92
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
WHS entry permit holder not required to disclose names of workers WHS entry permits Application for WHS entry permit Consideration of application Eligibility criteria Issue of WHS entry permit Conditions on WHS entry permit Term of WHS entry permit Expiry of WHS entry permit Application to revoke WHS entry permit
Provision
© 2017 THOMSON REUTERS Div 5 131 132 133 134 135 136 137 138
131
132
133
134
135
136
137
138
Work Health and Safety Act 2011 (Cth) 130
Div 5
130
Work Health and Safety Act 2011 (NSW)
138
137
136
135
134
133
132
131
Div 7.5
130
Work Health and Safety Act 2011 (ACT)
138
137
136
135
134
133
132
131
Div 5
130
138
137
136
135
134
133
132
131
Div 5
130
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
138
137
136
135
134
133
132
131
Div 5
130
Work Health and Safety Act 2012 (SA)
138
137
136
135
134
133
132
131
Div 5
Work Health and Safety Act 2011 (Qld) 130
85, 86
84
83
81, 82
80
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
liii
liv
Determination of application Dealing with disputes Application for assistance of inspector to resolve dispute Authorising authority may deal with a dispute about a right of entry under this Act
Authorising authority must permit WHS entry permit holder to show cause
Provision
140 Div 6 141
142
Div 6
141
142
Work Health and Safety Act 2011 (Cth) 139
140
139
Work Health and Safety Act 2011 (NSW)
142 Regulator may deal with a dispute about a right of entry under this Act
141
Div 7.6
140
139 Regulator must permit WHS entry permit holder to show cause
Work Health and Safety Act 2011 (ACT)
141
142 Commission may deal with a dispute about a right of entry under this Act
142
142 Regulator may deal with a dispute about a right of entry under this Act
142 Regulator may deal with a dispute about a right of entry under this Act
Div 6
Work Health and Safety Act 2011 (Qld) 139 Commission must permit WHS entry permit holder to show cause 140
141
Div 6
140
139
Work Health and Safety Act 2012 (SA)
141
Div 6
140
139 Regulator must permit WHS entry permit holder to show cause
Occupational Safety and Health Act 1984 (WA)
141
Div 6
140
139 Regulator must permit WHS entry permit holder to show cause
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
89
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Contravening order made to deal with dispute Prohibitions Person must not refuse or delay entry of WHS entry permit holder Person must not hinder or obstruct WHS entry permit holder WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace Misrepresentations about things authorised by this Part Unauthorised use or disclosure of information or documents
Provision
Div 7 144
145
146
147
148
145
146
147
148
Work Health and Safety Act 2011 (Cth) 143
Div 7 144
143
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS 148
147
146
145
Div 7.7 144
143
Work Health and Safety Act 2011 (ACT)
148
147
146
145
Div 7 144
143
148
147
146
145
Div 7 144
143
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
148
147
146
145
Div 7 144
143
Work Health and Safety Act 2012 (SA)
148
147
146
145
Div 7 144
Work Health and Safety Act 2011 (Qld) 143
94
91
93
93
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
lv
lvi
Powers of regulator Delegation by regulator Powers of regulator to obtain information Powers of regulator to obtain information
General Return of WHS entry permits Union to provide information to authorising authority Register of WHS entry permit holders The regulator Functions of regulator Functions of regulator
Provision
153 154 Div 2
155
154
Div 2
155
152
152
153
Pt 8 Div 1
151
151
Pt 8 Div 1
150
Work Health and Safety Act 2011 (Cth) Div 8 149
150
Div 8 149
Work Health and Safety Act 2011 (NSW)
155
Div 8.2
154
153
152
Pt 8 Div 8.1
151
150
Div 7.8 149
Work Health and Safety Act 2011 (ACT)
155
Div 2
154
153
152
Pt 8 Div 1
151
150
Div 8 149
155
Div 2
154
153
152
Pt 8 Div 1
151
150
Div 8 149
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
6, 14, 14A
Pt 2
Occupational Safety and Health Act 1984 (WA)
155
Div 2
154
153
152
Pt 8 Div 1
151
150
Div 8 149
Work Health and Safety Act 2012 (SA)
155
Div 2
154
153
152
Pt 8 Div 1
151
150
Work Health and Safety Act 2011 (Qld) Div 8 149
9
8, 19
7, 12–15, 18, 19, 156 8
Pt 2
86
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Securing compliance Appointment of inspectors Appointment of inspectors Special provision for mining and coal workplace inspectors Identity cards Accountability of inspectors Suspension and ending of appointment of inspectors Functions and powers of inspectors Functions and powers of inspectors Conditions on inspectors’ compliance powers
Provision
© 2017 THOMSON REUTERS 156
156
157 158 159
Div 2 160 161
157 158
159
Div 2
160
161
156A
Div 1
Work Health and Safety Act 2011 (Cth) Pt 9
Div 1
Pt 9
Work Health and Safety Act 2011 (NSW)
161
160
Div 9.2
159
157 158
156
Div 9.1
Pt 9
Work Health and Safety Act 2011 (ACT)
161
160
Div 2
159
157 158
156
Div 1
Pt 9
161
160
Div 2
159
157 158
156
Div 1
Pt 9
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
42B
43
42C
42, 42A
Pt 5
Occupational Safety and Health Act 1984 (WA)
161
160
Div 2
159
157 158
156
Div 1
Pt 9
Work Health and Safety Act 2012 (SA)
161
160
Div 2
159
157 158
156
Div 1
Work Health and Safety Act 2011 (Qld) Pt 9
96, 100 103
95
Occupational Health and Safety Act 2004 (Vic) Pt 9
NSW Act Compared With Legislation in Other Jurisdictions
lvii
lviii
Inspectors subject to regulator’s directions Exercise of inspector functions outside area of jurisdiction Powers relating to entry General powers of entry Powers of entry Notification of entry General powers on entry Special powers of entry for coal and mining workplaces
Provision
163 164 165
163 164
165
165A Powers relating to electronic equipment
Subdiv 1
Subdiv 1
165A
Div 3
Work Health and Safety Act 2011 (Cth) 162
Div 3
162A
162
Work Health and Safety Act 2011 (NSW)
165
163 164
Subdiv 9.3.1
Div 9.3
162
Work Health and Safety Act 2011 (ACT)
165
163 164
Subdiv 1
Div 3
162
165
163 164
Subdiv 1
Div 3
162
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
43
45
Occupational Safety and Health Act 1984 (WA)
165
163 164
Subdiv 1
Div 3
162
Work Health and Safety Act 2012 (SA)
165
163 164
Subdiv 1
Div 3
Work Health and Safety Act 2011 (Qld) 162
87, 98
99
98, 107 102
Occupational Health and Safety Act 2004 (Vic) 97
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
Announcement before entry on warrant
Persons assisting inspectors Special provision for coal and mining workplaces – consultation with employee representative Search warrants Search warrant
Provision
Subdiv 2 167
168
168
168
168
Subdiv 9.3.2 Subdiv 2 167 167 167A Warrants – application made other than in person
Subdiv 2 167 167A Warrants by telephone or other electronic means 168
168
Subdiv 2 167
168
Subdiv 2 167 167A Electronic application
Work Health and Work Occupational Work Health Work Health and Work Health Work Health Safety and Health Safety Act 2012 (SA) and Safety Safety (National and Safety Health and Act 1984 (WA) Act 2012 Uniform Act 2011 and Safety (Tas) Legislation) Act (ACT) Safety Act 2011 2011 (NT) Act 2011 (Qld) (Cth) 165B Expert assistance to operate electronic equipment 166 166 166 166 43, 44 166 166
Subdiv 2 167
166A
166
Work Health and Safety Act 2011 (NSW)
105
104
104, 121, 122
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
lix
lx
Limitation on entry powers Places used for residential purposes Specific powers on entry Power to require production of documents and answers to questions Abrogation of privilege against self-incrimination Warning to be given
Copy of warrant to be given to person with management or control of place
Provision
Subdiv 3 170
Subdiv 4 171
172 173
170
Subdiv 4
171
172
173
Work Health and Safety Act 2011 (Cth) 169
Subdiv 3
169
Work Health and Safety Act 2011 (NSW)
173
172
171
Subdiv 9.3.4
173
172
171
Subdiv 4
170
Subdiv 3
169A Occupier entitled to be present during search etc Subdiv 9.3.3 170
169
173
172
171
Subdiv 4
170
Subdiv 3
169
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
169
Work Health and Safety Act 2011 (ACT)
43
Occupational Safety and Health Act 1984 (WA)
173
172
171
Subdiv 4
170
Subdiv 3
169
Work Health and Safety Act 2012 (SA)
173
172
171
Subdiv 4
170
Subdiv 3
Work Health and Safety Act 2011 (Qld) 169
154
100, 120
107
Occupational Health and Safety Act 2004 (Vic) 106
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Powers to copy and retain documents Power to seize evidence etc Inspector’s power to seize dangerous workplaces and things Powers supporting seizure Receipt for seized things Forfeiture of seized things Return of seized things Access to seized things Damage and compensation Damage etc to be minimised Inspector to give notice of damage Compensation
Provision
175 176
177 178 179 180 181 Div 4 182 183 184
176
177
178
179
180
181
Div 4
182
183
184
Work Health and Safety Act 2011 (Cth) 174
175
174
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS 184
183
182
Div 9.4
181
180
179
178
177
176
175
174
Work Health and Safety Act 2011 (ACT)
184
183
182
Div 4
181
180
179
178
177
176
175
174
184
183
182
Div 4
181
180
179
178
177
176
175
174
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
43, 46
43
Occupational Safety and Health Act 1984 (WA)
184
183
182
Div 4
181
180
179
178
177
176
175
174
Work Health and Safety Act 2012 (SA)
184
183
182
Div 4
181
180
179
178
177
176
175
Work Health and Safety Act 2011 (Qld) 174
92
92
108
109
99, 101
Occupational Health and Safety Act 2004 (Vic) 99, 124
NSW Act Compared With Legislation in Other Jurisdictions
lxi
lxii
Offences in relation to inspectors Offence to hinder or obstruct inspector Offence to impersonate inspector Offence to assault, threaten or intimidate inspector Enforcement measures Improvement notices
Other matters Power to require name and address Inspector may take affidavits Attendance of inspector at coronial inquests
Provision
Div 6 188 189 190
Pt 10 Div 1
188
189
190
Pt 10
Div 1
187
187
Div 6
186
Work Health and Safety Act 2011 (Cth) Div 5 185
186
Div 5 185
Work Health and Safety Act 2011 (NSW)
Div 10.1
Pt 10
190
189
188
Div 9.6
187
186
Div 9.5 185
Work Health and Safety Act 2011 (ACT) Div 5 185
Div 1
Pt 10
190
189
188
Div 6
Div 1
Pt 10
190
189
188
Div 6
186 Inspector may 186 witness affidavits 187
Div 5 185
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Pts 6, 6A & 6B
47
47
47
Occupational Safety and Health Act 1984 (WA)
Div 1
Pt 10
190
189
188
Div 6
187 Attendance of inspector at inquiries
186
Div 5 185
Work Health and Safety Act 2012 (SA)
Div 1
Pt 10
190
189
188
187 Inspector at coronial inquests Div 6
186
Work Health and Safety Act 2011 (Qld) Div 5 185
Pt 9
125
126
121, 125
123
119
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Issue of improvement notices Contents of improvement notices Compliance with improvement notice Extension of time for compliance with improvement notices Prohibition notices Power to issue prohibition notice Contents of prohibition notice Compliance with prohibition notice Non-disturbance notices
Provision
192 193 194
Div 2 195 196 197 Div 3
193
194
Div 2
195
196
197
Div 3
Work Health and Safety Act 2011 (Cth) 191
192
191
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS Div 10.3
197
196
195
Div 10.2
194
193
192
191
Work Health and Safety Act 2011 (ACT)
Div 3
197
196
195
Div 2
194
193
192
191
Div 3
197
196
195
Div 2
194
193
192
191
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
49
49
49
48
48
48
Occupational Safety and Health Act 1984 (WA)
Div 3
197
196
195
Div 2
194
193
192
191
Work Health and Safety Act 2012 (SA)
Div 3
197
196
195
Div 2
194
193
192
Work Health and Safety Act 2011 (Qld) 191
112
112, 113
112
111
111
111, 113
Occupational Health and Safety Act 2004 (Vic) 111
NSW Act Compared With Legislation in Other Jurisdictions
lxiii
lxiv
Notice to be in writing Directions in notices Recommendations in notice Changes to notice by inspector
Issue of non-disturbance notice Contents of non-disturbance notice Compliance with non-disturbance notice Issue of subsequent notices General requirements applying to notices Application of Division
Provision
204 205 206
204
205
206
202
202 203
Div 4
Div 4
203
201
200
200
201
199
Work Health and Safety Act 2011 (Cth) 198
199
198
Work Health and Safety Act 2011 (NSW)
206
205
204
202 Application – div 10.4 203
Div 10.4
201
200
199
198
Work Health and Safety Act 2011 (ACT)
206
205
204
206
205
204
203
202
202 203
Div 4
201
200
199
198
Div 4
201
200
199
198
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT) 50
Occupational Safety and Health Act 1984 (WA)
206
205
204
203
202
Div 4
201
200
199
198
Work Health and Safety Act 2012 (SA)
206
205
204
203
202
Div 4
201
200
199
Work Health and Safety Act 2011 (Qld) 198
113
115
110
110
110
Occupational Health and Safety Act 2004 (Vic) 110
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
Injunctions for noncompliance with notices
Regulator may vary or cancel notice Formal irregularities or defects in notice Issue and giving of notice Display of notice Remedial action When regulator may carry out action Power of the regulator to take other remedial action Costs of remedial or other action Injunctions Application of Division
Provision
210 Div 5 211 212
213 Div 6 214
210 Div 5 211
212
213
Div 6 214 215
209
209
215
208
Work Health and Safety Act 2011 (Cth) 207
208
207
Work Health and Safety Act 2011 (NSW)
Div 10.6 214 Application – div 10.6 215
213
212
210 Div 10.5 211
209
208
207
Work Health and Safety Act 2011 (ACT)
215
Div 6 214
213
212
210 Div 5 211
209
208
207
215
Div 6 214
213
212
210 Div 5 211
209
208
207
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
215
Div 6 214
213
212
210 Div 5 211
209
208
207
Work Health and Safety Act 2012 (SA)
215
Div 6 214
213
212
210 Div 5 211
209
208
Work Health and Safety Act 2011 (Qld) 207
118
118
18
115
115
116
Occupational Health and Safety Act 2004 (Vic) 114
NSW Act Compared With Legislation in Other Jurisdictions
lxv
lxvi
Enforceable undertakings Regulator may accept WHS undertakings Notice of decision and reasons for decision When a WHS undertaking is enforceable Compliance with WHS undertaking Contravention of WHS undertaking Withdrawal or variation of WHS undertaking Proceeding for alleged contravention Review of decisions Reviewable decisions
Provision
218 219 220 221
222 Pt 12 Div 1
219
220
221
222
Pt 12
Div 1
217
217
218
216
Work Health and Safety Act 2011 (Cth) Pt 11
216
Pt 11
Work Health and Safety Act 2011 (NSW)
Div 12.1
Pt 12
222
221
220
219
218
217
216
Pt 11
Work Health and Safety Act 2011 (ACT)
Div 1
Pt 12
222
221
220
219
218
217
216
Pt 11
Div 1
Pt 12
222
221
220
219
218
217
216
Pt 11
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
55Q
Pt 7 Div 3
Occupational Safety and Health Act 1984 (WA)
Div 1
Pt 12
222
221
220
219
218
217
216
Pt 11
Work Health and Safety Act 2012 (SA)
Div 1
Pt 12
222
221
220
219
218
217
216
Work Health and Safety Act 2011 (Qld) Pt 11
Pt 10
17
16
Occupational Health and Safety Act 2004 (Vic) Pt 2 Div 4
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
External review Application for external review
Which decisions are reviewable Internal review Application for internal review Internal reviewer Decision of internal reviewer Decision on internal review Stays of reviewable decisions
Provision
225 226 227 228 Stays of reviewable decisions on internal review Div 3 229
225 226
227
228
Div 3 229
Div 2 224
Work Health and Safety Act 2011 (Cth) 223
Div 2 224
223
Work Health and Safety Act 2011 (NSW)
Div 3 229
228 Stays of reviewable decisions on internal review
228
Div 12.3 229
227
225 226
Div 2 224
223
Div 3 229
Div 3 229
Div 4 Review by commission
Div 3 229
228 Stay of reviewable decisions on internal review
228
228 Stays of reviewable decisions
225 226
Div 2 224
Work Health and Safety Act 2011 (Qld) 223
227
225 226
Div 2 224
223
Work Health and Safety Act 2012 (SA)
227
51, 51A, 61A
51
Occupational Safety and Health Act 1984 (WA)
227
225 226
Div 2 224
223
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
227
225 226
Div 12.2 224
223
Work Health and Safety Act 2011 (ACT)
129
128
128 128
128
Occupational Health and Safety Act 2004 (Vic) 127
NSW Act Compared With Legislation in Other Jurisdictions
lxvii
lxviii
Legal proceedings General matters
Provision
Pt 13 Div 1
Div 1
Work Health and Safety Act 2011 (Cth)
Pt 13
Work Health and Safety Act 2011 (NSW)
Div 13.1
Pt 13
Work Health and Safety Act 2011 (ACT)
Div 1
Pt 13
229D Decision on external review
229C Procedure for external review
229A Court may decline to deal with application if frivolous etc 229B Effect of application on prior decision
Div 1
Pt 13
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Pts 6A, 6B & 7
Occupational Safety and Health Act 1984 (WA)
Div 1
Pt 13
Work Health and Safety Act 2012 (SA)
Occupational Health and Safety Act 2004 (Vic)
Div 1
229B How to start review 229C Stay of operation of decision 229D Hearing procedures 229E Powers of commission on application 229F Appeals Pt 13 Pt 11
Work Health and Safety Act 2011 (Qld) 229A Decision
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
Orders generally Adverse publicity orders Orders for restoration Work health and safety project orders
Part extends to mines and coal workplaces Procedure for offences Prosecutions Procedure if prosecution is not brought Limitation period for prosecutions Multiple contraventions of health and safety duty provision Sentencing for offences Application of this Division
Provision
235 236 237 238
235 236
237
238
238
237
234 Application – div 13.2 235 236
238
237
235 236
234
238
237
235 236
234
Div 2
55R
238
237
235 236
234
Div 2
233
238
237
235 236
234
Div 2
233
136
135
131
132
234
Div 2
54A
232
234
Div 13.2
233
232
Div 2
233
232
Div 2
233
232
233
232
233
230 231
Occupational Health and Safety Act 2004 (Vic) Pt 11
232
230 231
Work Health and Safety Act 2011 (Qld)
232
52, 53, 54B
Work Health and Safety Act 2012 (SA)
33, 130 131
230 231
Occupational Safety and Health Act 1984 (WA)
230 231
230 231
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
230 231
230 231
Work Health and Safety Act 2011 (ACT)
Pt 11
Work Health and Safety Act 2011 (Cth)
229B
229A
Work Health and Safety Act 2011 (NSW)
NSW Act Compared With Legislation in Other Jurisdictions
lxix
lxx
243
Penalty notices
240 241 242
Div 3
239
Work Health and Safety Act 2011 (NSW)
Release on the giving of a court-ordered WHS undertaking Injunctions Training orders Offence to fail to comply with order Penalty notices
Provision
Div 3 Infringement notices 243 Infringement notices 243A Matters to be included in an infringement notice
240 241 242
Work Health and Safety Act 2011 (Cth) 239
Div 3 Infringement notices 243 Infringement notices
243 Infringement notices
240 241 242
239
243A Payments to WorkCover Tasmania Board
243 Infringement notices
Div 3 Infringement notices
240 241 242
239
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Div 13.3 Infringement notices
240 241 242
239
Work Health and Safety Act 2011 (ACT)
Occupational Safety and Health Act 1984 (WA)
243 Infringement notices
Div 3 Infringement notices
240 241 242
239
Work Health and Safety Act 2012 (SA)
240 241 242
Work Health and Safety Act 2011 (Qld) 239
139
138
118
Occupational Health and Safety Act 2004 (Vic) 137
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
Work Health and Safety Act 2011 (NSW)
Offences by Div 4 bodies corporate Imputing conduct 244 to bodies corporate
Provision
244
244
21B, 21C, 55
244
244
244
Work Health and Safety Act 2012 (SA)
Div 4
Occupational Safety and Health Act 1984 (WA)
Work Health Work Health and Work Health Work and Safety Safety (National and Safety Health Act 2012 Uniform Act 2011 and (Tas) Legislation) Act (ACT) Safety 2011 (NT) Act 2011 (Cth) 243B Extension of time to pay amount 243C Withdrawal of an infringement notice 243D Effect of payment of amount 243E Effect of this Division Div 4 Div 13.4 Div 4 Div 4 244
Div 4
Work Health and Safety Act 2011 (Qld)
143, 144, 145
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
lxxi
lxxii 246 WHS civil penalty provisions and the Commonwealth
246
247
WHS civil penalty provisions and the Crown
Officers
247
245 Offences and the Commonwealth
245
Offences and the Crown
245
247
247
246 246 WHS civil penalty provisions and the Territory
245 Offences and the Territory
247
246
245
Work Health Work Health and Work Health Work and Safety Safety (National and Safety Health Act 2012 Uniform Act 2011 and (Tas) Legislation) Act (ACT) Safety 2011 (NT) Act 2011 (Cth) Div 5 The Div 13.5 The Div 5 Div 5 Common- Territory wealth
Div 5
Work Health and Safety Act 2011 (NSW)
The Crown
Provision
55G
50A, 55B
Occupational Safety and Health Act 1984 (WA)
247
246
245
Div 5
Work Health and Safety Act 2012 (SA)
OccupaWork tional Health Health and and Safety Act 2011 Safety Act 2004 (Vic) (Qld) Div 5 The State, Commonwealth and other States 146–148 245 Offences and the State, Commonwealth and other States 246 WHS 147 civil penalty provisions and the State, Commonwealth and other States 247
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
248
Work Health and Safety Act 2011 (NSW)
Proceedings 250 against public authorities Imputing conduct 251 to public authorities Officer of public 252 authority
Public Div 6 authorities 249 Application to public authorities that are bodies corporate
Responsible agency for the Crown
Provision
250 251 252
251 252
249
249
250
Div 13.6
252
251
250
249
Div 6
252
251
250
249
Div 6
55E
55E
55D
23D, 55C
58
248
248 Responsible agency for the Territory
248
Occupational Safety and Health Act 1984 (WA)
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Work Health and Safety Act 2011 (ACT)
Div 6
Work Health and Safety Act 2011 (Cth) 248 Responsible agency for the Commonwealth
252
251
250
249
Div 6
248
Work Health and Safety Act 2012 (SA)
252
251
249 Application to bodies corporate or local governments 250
143, 144
143, 144
144
143, 144
OccupaWork tional Health Health and and Safety Act 2011 Safety Act 2004 (Vic) (Qld) 146 248 Responsible agency for the State, Commonwealth or another State Div 6
NSW Act Compared With Legislation in Other Jurisdictions
lxxiii
lxxiv
Proceedings against successors to public authorities WHS civil penalty provisions When is a provision a WHS civil penalty provision Proceedings for contravention of WHS civil penalty provision Involvement in contravention treated in same way as actual contravention Contravening a civil penalty provision is not an offence Civil proceeding rules and procedure to apply
Provision
255
256
257
258
256
257
258
254
254
255
Div 7
Work Health and Safety Act 2011 (Cth) 253
Div 7
253
Work Health and Safety Act 2011 (NSW)
258
257
256
255
254
Div 13.7
253
Work Health and Safety Act 2011 (ACT)
258
257
256
255
254
Div 7
253
258
257
256
255
254
Div 7
253
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
3A, 3B, 54
55F
Occupational Safety and Health Act 1984 (WA)
258
257
256
255
254
Div 7
253
Work Health and Safety Act 2012 (SA)
258
257
256
255
254
Div 7
Work Health and Safety Act 2011 (Qld) 253
Occupational Health and Safety Act 2004 (Vic) 148
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
Work Health and Safety Act 2011 (NSW)
© 2017 THOMSON REUTERS
Limitation period for WHS civil penalty proceedings Recovery of a monetary penalty Civil double jeopardy Criminal proceedings during civil proceedings Criminal proceedings after civil proceedings 262 263 264
265
262
263
264
265
265
264
263
262
261
260
260
261
259
Work Health and Safety Act 2011 (ACT)
Work Health and Safety Act 2011 (Cth) 259
261
Proceeding for a 259 contravention of a WHS civil penalty provision Proceedings may 260 be brought by the regulator or an inspector
Provision
265
264
263
262
261
260
259
265
264
263
262
261
260
259
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
55A
3A, 3B, 54, 54A
Occupational Safety and Health Act 1984 (WA)
265
264
263
262
261
260
259
Work Health and Safety Act 2012 (SA)
265
264
263
262
260 Proceeding may be taken by the regulator or an inspector 261
Work Health and Safety Act 2011 (Qld) 259
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
lxxv
lxxvi
Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings Civil liability not affected by this Act Civil liability not affected by this Act General General provisions Offence to give false or misleading information Act does not affect legal professional privilege Immunity from liability Confidentiality of information
Provision
Div 8 267 Pt 14 Div 1 268
269
270 271
267
Pt 14 Div 1
268
269
270
271
Work Health and Safety Act 2011 (Cth) 266
Div 8
266
Work Health and Safety Act 2011 (NSW)
271
270
269
268
Pt 14 Div 14.1
267
Div 13.8
266
Work Health and Safety Act 2011 (ACT)
271
270
269
268
Pt 14 Div 1
267
Div 8
266
271
270
269
268
Pt 14 Div 1
267
Div 8
266
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
59
Pt 8
34
Occupational Safety and Health Act 1984 (WA)
271
270
269
268
Pt 14 Div 1
267
Div 8
266
Work Health and Safety Act 2012 (SA)
271
270
269
268
Pt 14 Div 1
267
Div 8
Work Health and Safety Act 2011 (Qld) 266
10, 11
155
94, 153
34
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
Codes of practice Approved codes of practice Use of codes of practice in proceedings
Information sharing between regulators No contracting out Person not to levy workers
Provision
275
275
275
274
274
274
273
Div 2
273
273
272
Work Health and Safety Act 2011 (ACT)
273A Conferral of jurisdiction 273B Application of the Legislative Instruments Act 2003 Div 2 Div 14.2
272
Work Health and Safety Act 2011 (Cth)
272
271A
Work Health and Safety Act 2011 (NSW)
275
274
Div 2
273
272
275
274
Div 2
273
272
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
57
Occupational Safety and Health Act 1984 (WA)
275
274
Div 2
273
272
Work Health and Safety Act 2012 (SA)
275
274
Div 2
273
272
Work Health and Safety Act 2011 (Qld)
12, 50, 149–151 150, 152
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
lxxvii
lxxviii Sch 1
Sch 2
Sch 2
276
Work Health and Safety Act 2011 (Cth) Div 3
Div 3A 276A 276B 276C Sch 1
276
Regulationmaking powers
Miscellaneous (Repealed) Review of Act (Repealed) Application of Act to dangerous goods and high risk plant The Regulator and local tripartite consultation arrangements and other local arrangements
Div 3
Work Health and Safety Act 2011 (NSW)
Regulationmaking powers
Provision
Sch 2
Sch 1
278 Determination of fees
277 Approved forms
Sch 2 Work Health and Advisory Safety Council
Sch 1
Sch 2 Local tripartite consultation arrangements
Sch 2
276
Div 3
Work Health and Safety Act 2012 (SA)
Sch 1
60
Occupational Safety and Health Act 1984 (WA)
Sch 1
277 Administration of Act
276
Div 3
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Div 3 Div 14.3 Regulationmaking power, forms and fees 276 276
Work Health and Safety Act 2011 (ACT)
Sch 2
Sch 1 Application of Act
276
Work Health and Safety Act 2011 (Qld) Div 3
158
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
Regulationmaking powers Duties Incidents Plant, substances or structures Protection and welfare of workers Hazards and risks Records and notices Authorisations Work groups Health and safety committees and health and safety representatives Issue resolution WHS entry permits Identity cards
Provision
4 5 6 7 8 9
10 11
4
5
6
7 8 9
10 11 12
1 2 3
1 2 3
12
Sch 3
Work Health and Safety Act 2011 (Cth)
Sch 3
Work Health and Safety Act 2011 (NSW)
12
10 11
7 8 9
6
5
4
1 2 3
Sch 3
Work Health and Safety Act 2011 (ACT)
12
10 11
7 8 9
6
5
4
1 2 3
Sch 3
12
10 11
7 8 9
6
5
4
1 2 3
Sch 3
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Sch 1
Occupational Safety and Health Act 1984 (WA)
12
10 11
7 8 9
6
5
4
1 2 3
Sch 3
Work Health and Safety Act 2012 (SA)
12
10 11
7 8 9
6
5
4
1 2 3
Work Health and Safety Act 2011 (Qld) Sch 2A Reviewable decisions Sch 3
Occupational Health and Safety Act 2004 (Vic)
NSW Act Compared With Legislation in Other Jurisdictions
lxxix
lxxx
Forfeiture Review of decisions Savings, transitional and other provisions
Provision
Sch 4
13 14
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Act 2011 (Cth) 13 14
300 to 307 (not detailed here)
Pt 20 Transitional
13 14
Work Health and Safety Act 2011 (ACT)
Pt 15 Transitional provisions for Work Health and Safety (National Uniform Legislation) Act 2011 277 to 297 (not detailed here)
13 14
13 14
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
277 Repeal of Workplace Health and Safety Act 1995 278 Repeal of Dangerous Goods Safety Management Act 2001 Pt 16 Transitional provisions
Pt 15 Repeals
Sch 6 Consequential amendments, repeal and transitional provisions
13 14
Work Health and Safety Act 2011 (Qld) 13 14
Work Health and Safety Act 2012 (SA)
Occupational Health and Safety Act 2004 (Vic)
Comparative Table
Tooma’s Annotated Work Health and Safety Act 2011
© 2017 THOMSON REUTERS
(Repealed)
Provision
Sch 5
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Act 2011 (Cth)
Dictionary
Work Health and Safety Act 2011 (ACT)
Work Health and Work Health and Safety Safety (National Act 2012 Uniform (Tas) Legislation) Act 2011 (NT)
Occupational Safety and Health Act 1984 (WA)
Sch 5 Dictionary
Sch 4 Minor and consequential amendments
Sch 4 Review committees
Sch 5 Provisions of local application
OccupaWork tional Health Health and and Safety Act 2011 Safety Act 2004 (Vic) (Qld) 279 to 307 (not detailed here) Pt 18 Amendment of other legislation relating to safety 331 to 401 (not detailed here) Work Health and Safety Act 2012 (SA)
NSW Act Compared With Legislation in Other Jurisdictions
lxxxi
WORK HEALTH AND SAFETY ACT 2011 (NSW) Part 1 - Preliminary Division 1 - Introduction 1 Name of Act ................................................................................................................ 11 2 Commencement ......................................................................................................... 12 Division 2 - Object 3 Object ......................................................................................................................... 12 Division 3 - Interpretation Subdivision 1 - Definitions 4 Definitions ................................................................................................................... Subdivision 2 - Other important terms 4A Meaning of “regulator” [Repealed].............................................................................. 5 Meaning of “person conducting a business or undertaking”...................................... 6 Meaning of “supply” .................................................................................................... 7 Meaning of “worker”.................................................................................................... 8 Meaning of “workplace” .............................................................................................. 9 Examples and notes ................................................................................................... Division 4 - Application of Act 10 Act binds the Crown ................................................................................................... 11 Extraterritorial application ........................................................................................... 12 Scope.......................................................................................................................... 12A Offences are offences of strict liability........................................................................
13 16 16 21 22 24 27 27 29 29 30
Part 2 - Health and safety duties Division 1 - Introductory Subdivision 1 - Principles that apply to duties 13 Principles that apply to duties .................................................................................... 14 Duties not transferrable .............................................................................................. 15 Person may have more than one duty....................................................................... 16 More than one person can have a duty ..................................................................... 17 Management of risks .................................................................................................. Subdivision 2 - What is reasonably practicable 18 What is “reasonably practicable” in ensuring health and safety ................................
31 31 32 32 33 36
Division 2 - Primary duty of care 19 Primary duty of care ................................................................................................... 38 Division 3 - Further duties of persons conducting businesses or undertakings 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces ....................................................................... 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces ............................ 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures .................................................................................. 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures .................................................................................. 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures ............................................................................................ 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures ..................................................................................
© 2017 THOMSON REUTERS
60 65 67 70 74 77
1
Work Health and Safety Act 2011 (NSW) 26
Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures .............................................................. 80
Division 4 - Duty of officers, workers and other persons 27 Duty of officers............................................................................................................ 82 28 Duties of workers........................................................................................................ 95 29 Duties of other persons at the workplace .................................................................. 98 Division 5 - Offences and penalties 30 Health and safety duty................................................................................................ 99 31 Reckless conduct—Category 1 .................................................................................. 99 32 Failure to comply with health and safety duty—Category 2 ...................................... 99 33 Failure to comply with health and safety duty—Category 3 ...................................... 99 34 Exceptions ................................................................................................................ 100
Part 3 - Incident notification 35 36 37 38 39
What is a “notifiable incident” ................................................................................... What is a “serious injury or illness” .......................................................................... What is a “dangerous incident” ................................................................................ Duty to notify of notifiable incidents ......................................................................... Duty to preserve incident sites .................................................................................
100 103 105 107 109
Part 4 - Authorisations 40 41 42 43 44 45
Meaning of “authorised”............................................................................................ 110 Requirements for authorisation of workplaces ......................................................... 110 Requirements for authorisation of plant or substance ............................................. 110 Requirements for authorisation of work.................................................................... 110 Requirements for prescribed qualifications or experience........................................ 111 Requirement to comply with conditions of authorisation .......................................... 111
Part 5 - Consultation, representation and participation Division 1 - Consultation, co-operation and co-ordination between duty holders 46 Duty to consult with other duty holders .................................................................... 112 Division 2 - Consultation with workers 47 Duty to consult workers ............................................................................................ 117 48 Nature of consultation............................................................................................... 120 49 When consultation is required .................................................................................. 121 Division 3 - Health and safety representatives Subdivision 1 - Request for election of health and safety representatives 50 Request for election of health and safety representative ........................................ Subdivision 2 - Determination of work groups 51 Determination of work groups .................................................................................. 52 Negotiations for agreement for work group.............................................................. 53 Notice to workers...................................................................................................... 54 Failure of negotiations .............................................................................................. Subdivision 3 - Multiple-business work groups 55 Determination of work groups of multiple businesses ............................................. 56 Negotiation of agreement for work groups of multiple businesses.......................... 57 Notice to workers...................................................................................................... 58 Withdrawal from negotiations or agreement involving multiple businesses ............ 59 Effect of Subdivision on other arrangements ........................................................... Subdivision 4 - Election of health and safety representatives 60 Eligibility to be elected.............................................................................................. 61 Procedure for election of health and safety representatives ................................... 62 Eligibility to vote........................................................................................................ 63 When election not required ...................................................................................... 64 Term of office of health and safety representative................................................... 65 Disqualification of health and safety representatives............................................... 66 Immunity of health and safety representatives ........................................................ 67 Deputy health and safety representatives................................................................ Subdivision 5 - Powers and functions of health and safety representatives 68 Powers and functions of health and safety representatives ....................................
2
122 122 122 123 123 123 124 124 125 125 125 125 126 126 126 126 127 127 127
Tooma’s Annotated Work Health and Safety Act 2011
69 Powers and functions generally limited to the particular work group ...................... Subdivision 6 - Obligations of person conducting business or undertaking to health and safety representatives 70 General obligations of person conducting business or undertaking ........................ 71 Exceptions from obligations under section 70(1) ..................................................... 72 Obligation to train health and safety representatives............................................... 73 Obligation to share costs if multiple businesses or undertakings............................ 74 List of health and safety representatives .................................................................
129 130 131 132 132
Division 4 - Health and safety committees 75 Health and safety committees .................................................................................. 76 Constitution of committee ......................................................................................... 76A Special provision for coal mines............................................................................... 77 Functions of committee ............................................................................................ 78 Meetings of committee ............................................................................................. 79 Duties of person conducting business or undertaking .............................................
132 133 133 133 134 134
128
Division 5 - Issue resolution 80 Parties to an issue.................................................................................................... 135 81 Resolution of health and safety issues .................................................................... 135 82 Referral of issue to regulator for resolution by inspector......................................... 135 Division 6 - Right to cease or direct cessation of unsafe work 83 Definition of “cease work under this Division”.......................................................... 84 Right of worker to cease unsafe work...................................................................... 85 Health and safety representative may direct that unsafe work cease..................... 86 Worker to notify if ceases work ................................................................................ 87 Alternative work ........................................................................................................ 88 Continuity of engagement of worker ........................................................................ 89 Request to regulator to appoint inspector to assist ................................................. Division 7 - Provisional improvement notices 90 Provisional improvement notices.............................................................................. 91 Provisional improvement notice to be in writing....................................................... 92 Contents of provisional improvement notice ............................................................ 93 Provisional improvement notice may give directions to remedy contravention ............................................................................................................ 94 Minor changes to provisional improvement notice................................................... 95 Issue of provisional improvement notice .................................................................. 96 Health and safety representative may cancel notice ............................................... 97 Display of provisional improvement notice............................................................... 98 Formal irregularities or defects in notice .................................................................. 99 Offence to contravene a provisional improvement notice........................................ 100 Request for review of provisional improvement notice ............................................ 101 Regulator to appoint inspector to review notice....................................................... 102 Decision of inspector on review of provisional improvement notice ........................
136 136 136 136 137 137 137 137 138 138 138 138 138 138 139 139 139 139 139 140
Division 8 - Part not to apply to prisoners 103 Part does not apply to prisoners .............................................................................. 140
Part 6 - Discriminatory, coercive and misleading conduct Division 1 - Prohibition of discriminatory, coercive or misleading conduct 104 Prohibition of discriminatory conduct........................................................................ 105 What is “discriminatory conduct” .............................................................................. 106 What is a “prohibited reason” ................................................................................... 107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct............................................................................... 108 Prohibition of coercion or inducement...................................................................... 109 Misrepresentation .....................................................................................................
140 142 143 144 144 145
Division 2 - Criminal proceedings in relation to discriminatory conduct 110 Proof of discriminatory conduct ................................................................................ 145 111 Order for compensation or reinstatement ................................................................ 145 Division 3 - Civil proceedings in relation to discriminatory or coercive conduct 112 Civil proceedings in relation to engaging in or inducing discriminatory or © 2017 THOMSON REUTERS
3
Work Health and Safety Act 2011 (NSW) 113
coercive conduct....................................................................................................... 149 Procedure for civil actions for discriminatory conduct.............................................. 146
Division 4 - General 114 General provisions relating to orders ....................................................................... 147 115 Prohibition of multiple actions................................................................................... 147
Part 7 - Workplace entry by WHS entry permit holders Division 1 - Introductory 116 Definitions ................................................................................................................. 148 Division 2 - Entry to inquire into suspected contraventions 117 Entry to inquire into suspected contraventions ........................................................ 118 Rights that may be exercised while at workplace.................................................... 119 Notice of entry .......................................................................................................... 120 Entry to inspect employee records or information held by another person.............
148 148 149 149
Division 3 - Entry to consult and advise workers 121 Entry to consult and advise workers ........................................................................ 150 122 Notice of entry .......................................................................................................... 150 Division 4 - Requirements for WHS entry permit holders 123 Contravening WHS entry permit conditions ............................................................. 124 WHS entry permit holder must also hold permit under other law............................ 125 WHS entry permit to be available for inspection...................................................... 126 When right may be exercised................................................................................... 127 Where the right may be exercised ........................................................................... 128 Work health and safety requirements ...................................................................... 129 Residential premises ................................................................................................ 130 WHS entry permit holder not required to disclose names of workers .....................
150 150 151 151 151 151 151 151
Division 5 - WHS entry permits 131 Application for WHS entry permit ............................................................................. 132 Consideration of application ..................................................................................... 133 Eligibility criteria ........................................................................................................ 134 Issue of WHS entry permit ....................................................................................... 135 Conditions on WHS entry permit.............................................................................. 136 Term of WHS entry permit........................................................................................ 137 Expiry of WHS entry permit...................................................................................... 138 Application to revoke WHS entry permit .................................................................. 139 Authorising authority must permit WHS entry permit holder to show cause ........... 140 Determination of application .....................................................................................
152 152 152 152 152 152 152 153 153 154
Division 6 - Dealing with disputes 141 Application for assistance of inspector to resolve dispute ....................................... 154 142 Authorising authority may deal with a dispute about a right of entry under this Act ...................................................................................................................... 154 143 Contravening order made to deal with dispute ........................................................ 155 Division 7 - Prohibitions 144 Person must not refuse or delay entry of WHS entry permit holder ....................... 145 Person must not hinder or obstruct WHS entry permit holder................................. 146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace......................................................................................... 147 Misrepresentations about things authorised by this Part ......................................... 148 Unauthorised use or disclosure of information or documents .................................
155 155 156 156 156
Division 8 - General 149 Return of WHS entry permits ................................................................................... 157 150 Union to provide information to authorising authority .............................................. 157 151 Register of WHS entry permit holders ..................................................................... 158
Part 8 - The regulator Division 1 - Functions of regulator 152 Functions of regulator............................................................................................... 158 153 Powers of regulator .................................................................................................. 158
4
Tooma’s Annotated Work Health and Safety Act 2011
154
Delegation by regulator ............................................................................................ 158
Division 2 - Powers of regulator to obtain information 155 Powers of regulator to obtain information ................................................................ 159
Part 9 - Securing compliance Division 1 - Appointment of inspectors 156 Appointment of inspectors ........................................................................................ 156A Special provision for mining workplace inspectors [Repealed]................................ 157 Identity cards ............................................................................................................ 158 Accountability of inspectors ...................................................................................... 159 Suspension and ending of appointment of inspectors .............................................
162 162 162 162 162
Division 2 - Functions and powers of inspectors 160 Functions and powers of inspectors......................................................................... 161 Conditions on inspectors’ compliance powers ......................................................... 162 Inspectors subject to regulator’s directions .............................................................. 162A Exercise of inspector functions outside area of jurisdiction [Repealed] ..................
162 163 163 163
Division 3 - Powers relating to entry Subdivision 1 - General powers of entry 163 Powers of entry......................................................................................................... 164 Notification of entry................................................................................................... 165 General powers on entry .......................................................................................... 165A Special powers of entry for coal and mining workplaces [Repealed] ...................... 166 Persons assisting inspectors .................................................................................... 166A Special provision for coal and mining workplaces—consultation with employee representative [Repealed]........................................................................ Subdivision 2 - Search warrants 167 Search warrant ......................................................................................................... 168 Announcement before entry on warrant................................................................... 169 Copy of warrant to be given to person with management or control of place .................................................................................................................................. Subdivision 3 - Limitation on entry powers 170 Places used for residential purposes ....................................................................... Subdivision 4 - Specific powers on entry 171 Power to require production of documents and answers to questions.................... 172 Abrogation of privilege against self-incrimination..................................................... 173 Warning to be given ................................................................................................. 174 Powers to copy and retain documents..................................................................... 175 Power to seize evidence etc .................................................................................... 176 Inspector’s power to seize dangerous workplaces and things ................................ 177 Powers supporting seizure ....................................................................................... 178 Receipt for seized things .......................................................................................... 179 Forfeiture of seized things ........................................................................................ 180 Return of seized things............................................................................................. 181 Access to seized things............................................................................................
163 163 164 164 164 165 165 165 165 165 166 168 168 169 169 169 169 170 170 171 172
Division 4 - Damage and compensation 182 Damage etc to be minimised.................................................................................... 172 183 Inspector to give notice of damage .......................................................................... 172 184 Compensation........................................................................................................... 172 Division 5 - Other matters 185 Power to require name and address........................................................................ 173 186 Inspector may take affidavits.................................................................................... 173 187 Attendance of inspector at coronial inquests ........................................................... 173 Division 6 - Offences in relation to inspectors 188 Offence to hinder or obstruct inspector.................................................................... 173 189 Offence to impersonate inspector ............................................................................ 173 190 Offence to assault, threaten or intimidate inspector ................................................ 174
Part 10 - Enforcement measures Division 1 - Improvement notices 191 Issue of improvement notices................................................................................... 174 © 2017 THOMSON REUTERS
5
Work Health and Safety Act 2011 (NSW) 192 193 194
Contents of improvement notices............................................................................. 176 Compliance with improvement notice....................................................................... 177 Extension of time for compliance with improvement notices ................................... 177
Division 2 - Prohibition notices 195 Power to issue prohibition notice ............................................................................. 177 196 Contents of prohibition notice................................................................................... 178 197 Compliance with prohibition notice........................................................................... 179 Division 3 - Non-disturbance notices 198 Issue of non-disturbance notice ............................................................................... 199 Contents of non-disturbance notice.......................................................................... 200 Compliance with non-disturbance notice.................................................................. 201 Issue of subsequent notices.....................................................................................
179 180 180 180
Division 4 - General requirements applying to notices 202 Application of Division .............................................................................................. 203 Notice to be in writing............................................................................................... 204 Directions in notices ................................................................................................. 205 Recommendations in notice ..................................................................................... 206 Changes to notice by inspector................................................................................ 207 Regulator may vary or cancel notice........................................................................ 208 Formal irregularities or defects in notice .................................................................. 209 Issue and giving of notice......................................................................................... 210 Display of notice .......................................................................................................
180 180 181 181 181 181 181 181 182
Division 5 - Remedial action 211 When regulator may carry out action ....................................................................... 182 212 Power of the regulator to take other remedial action............................................... 182 213 Costs of remedial or other action ............................................................................. 182 Division 6 - Injunctions 214 Application of Division .............................................................................................. 182 215 Injunctions for noncompliance with notices.............................................................. 182
Part 11 - Enforceable undertakings 216 217 218 219 220 221 222
Regulator may accept WHS undertakings ............................................................... Notice of decision and reasons for decision ............................................................ When a WHS undertaking is enforceable ................................................................ Compliance with WHS undertaking.......................................................................... Contravention of WHS undertaking.......................................................................... Withdrawal or variation of WHS undertaking ........................................................... Proceeding for alleged contravention.......................................................................
183 183 183 183 183 184 184
Part 12 - Review of decisions Division 1 - Reviewable decisions 223 Which decisions are reviewable ............................................................................... 184 Division 2 - Internal review 224 Application for internal review .................................................................................. 225 Internal reviewer ....................................................................................................... 226 Decision of internal reviewer .................................................................................... 227 Decision on internal review ...................................................................................... 228 Stays of reviewable decisions ..................................................................................
188 189 189 189 189
Division 3 - External review 229 Application for external review ................................................................................. 190
Part 13 - Legal proceedings Division 1 - General matters 229A Part extends to mines and coal workplaces [Repealed].......................................... 229B Procedure for offences ............................................................................................. 230 Prosecutions ............................................................................................................. 231 Procedure if prosecution is not brought ................................................................... 232 Limitation period for prosecutions ............................................................................ 233 Multiple contraventions of health and safety duty provision ....................................
6
190 191 191 192 193 193
Tooma’s Annotated Work Health and Safety Act 2011
Division 2 - Sentencing for offences 234 Application of this Division........................................................................................ 235 Orders generally ....................................................................................................... 236 Adverse publicity orders ........................................................................................... 237 Orders for restoration ............................................................................................... 238 Work health and safety project orders ..................................................................... 239 Release on the giving of a court-ordered WHS undertaking ................................... 240 Injunctions................................................................................................................. 241 Training orders.......................................................................................................... 242 Offence to fail to comply with order .........................................................................
193 193 193 194 194 195 195 195 195
Division 3 - Penalty notices 243 Penalty notices ......................................................................................................... 196 Division 4 - Offences by bodies corporate 244 Imputing conduct to bodies corporate ...................................................................... 196 Division 5 - The Crown 245 Offences and the Crown........................................................................................... 246 WHS civil penalty provisions and the Crown ........................................................... 247 Officers...................................................................................................................... 248 Responsible agency for the Crown ..........................................................................
197 197 197 198
Division 6 - Public authorities 249 Application to public authorities that are bodies corporate ...................................... 250 Proceedings against public authorities..................................................................... 251 Imputing conduct to public authorities...................................................................... 252 Officer of public authority.......................................................................................... 253 Proceedings against successors to public authorities .............................................
199 199 199 199 200
Division 7 - WHS civil penalty provisions 254 When is a provision a WHS civil penalty provision.................................................. 255 Proceedings for contravention of WHS civil penalty provision ................................ 256 Involvement in contravention treated in same way as actual contravention ........... 257 Contravening a civil penalty provision is not an offence.......................................... 258 Civil proceeding rules and procedure to apply......................................................... 259 Proceeding for a contravention of a WHS civil penalty provision............................ 260 Proceedings may be brought by the regulator or an inspector ............................... 261 Limitation period for WHS civil penalty proceedings................................................ 262 Recovery of a monetary penalty .............................................................................. 263 Civil double jeopardy ................................................................................................ 264 Criminal proceedings during civil proceedings......................................................... 265 Criminal proceedings after civil proceedings............................................................ 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings.....................................................
200 200 200 201 201 201 201 201 201 201 202 202 202
Division 8 - Civil liability not affected by this Act 267 Civil liability not affected by this Act ......................................................................... 202
Part 14 - General Division 1 - General provisions 268 Offence to give false or misleading information....................................................... 269 Act does not affect legal professional privilege........................................................ 270 Immunity from liability ............................................................................................... 271 Confidentiality of information .................................................................................... 271A Information sharing between regulators ................................................................... 272 No contracting out .................................................................................................... 273 Person not to levy workers.......................................................................................
203 204 204 205 206 206 206
Division 2 - Codes of practice 274 Approved codes of practice...................................................................................... 207 275 Use of codes of practice in proceedings.................................................................. 208 Division 3 - Regulation-making powers 276 Regulation-making powers ....................................................................................... 209 © 2017 THOMSON REUTERS
7
Work Health and Safety Act 2011 (NSW) Division 3A - Miscellaneous 276A Application of Act to mining workplaces and coal workplaces—references to regulator [Repealed] ............................................................................................. 210 276B Review of Act............................................................................................................ 210 276C Repeals [Repealed] .................................................................................................. 210
SCHEDULE 1 - APPLICATION OF ACT TO DANGEROUS GOODS AND HIGH RISK PLANT ......................................................................................... 210 1........................................................................................................................................... 2........................................................................................................................................... 3........................................................................................................................................... 4........................................................................................................................................... 5........................................................................................................................................... 6...........................................................................................................................................
210 210 210 210 210 210
SCHEDULE 2 - THE REGULATOR ............................................................................. 211 1
The regulator............................................................................................................. 211
SCHEDULE 3 - REGULATION-MAKING POWERS ................................................ 211 1 2 3 4 5 6 7 8 9 10 11 12 13 14
Duties ........................................................................................................................ 211 Incidents.................................................................................................................... 211 Plant, substances or structures ................................................................................ 212 Protection and welfare of workers............................................................................ 212 Hazards and risks..................................................................................................... 212 Records and notices................................................................................................. 212 Authorisations ........................................................................................................... 212 Work groups ............................................................................................................. 213 Health and safety committees and health and safety representatives .................... 213 Issue resolution ........................................................................................................ 213 WHS entry permits ................................................................................................... 213 Identity cards ............................................................................................................ 213 Forfeiture .................................................................................................................. 213 Review of decisions.................................................................................................. 213
SCHEDULE 4 - SAVINGS, TRANSITIONAL AND OTHER PROVISIONS .............................................................................................................. 214 Part 1 - General 1
Regulations ............................................................................................................... 214
Part 2 - Provision consequent on enactment of this Act 2 3 4 5 6 7 8 9
Definition ................................................................................................................... Industry codes of practice ........................................................................................ Improvement or prohibition notices .......................................................................... Inspectors ................................................................................................................. Investigative powers and related matters................................................................. Continuation of repealed Regulations ...................................................................... Existing notices, exemptions etc .............................................................................. General saving .........................................................................................................
215 215 215 215 215 215 216 216
Part 2A - Prosecution of offences against OHS laws 9A 9B 9C 9D 9E 9F 9G 9H
Definitions ................................................................................................................. General transitional arrangements for OHS offences .............................................. Arrangements for proceedings commenced after WHS Act commencement ......... Arrangements for offences committed on or after 7/6/11 and prosecuted in Industrial Court ......................................................................................................... Requirements for workplace death offence prosecutions ........................................ Enforceable undertakings for OHS offences............................................................ Authority to prosecute for OHS offences ................................................................. Validation ..................................................................................................................
216 216 216 217 217 217 217 217
Part 3 - Provisions consequent on enactment of Work Health and Safety Legislation Amendment Act 2011 10 11 12 13 14
8
Definitions ................................................................................................................. Amendment of Coal Mine Health and Safety Act 2002 ........................................... Amendment of Crimes (Sentencing Procedure) Act 1999 ....................................... Amendment of Criminal Procedure Act 1986........................................................... Amendment of Industrial Relations Act 1996 ...........................................................
218 218 218 219 219
Tooma’s Annotated Work Health and Safety Act 2011
15 16 17 18 19 20
Amendment of Mine Health and Safety Act 2004.................................................... Amendment of Mining Act 1992 ............................................................................... Amendment of Rail Safety Act 2008 ........................................................................ Amendment of Road Transport (General) Act 2005 ................................................ Amendment of Rural Workers Accommodation Act 1969........................................ Amendment of Workplace Injury Management and Workers Compensation Act 1998 ...................................................................................................................
219 220 220 220 220 220
Part 4 - Provisions consequent on enactment of Work Health and Safety (Mines) Act 2013 21 22
Definitions ................................................................................................................. 221 Continued operation of provisions under former Acts.............................................. 221
Part 5 - Provisions consequent on enactment of Work Health and Safety Amendment Act 2013 23 24 25 26
Definition ................................................................................................................... Authority to prosecute............................................................................................... Court decisions not affected..................................................................................... Recommencement of terminated proceedings.........................................................
221 221 221 222
SCHEDULE 5 - AMENDMENT OF OTHER LEGISLATION [REPEALED]............................................................................................................... 222
Table of Amending Legislation Principal legislation
Number
Work Health and Safety Act 2011
10 of 2011
Date of gazettal/ assent/ registration 7 Jun 2011
Date of commencement 1 Jan 2012
This legislation has been amended as follows:
Amending legislation Work Health and Safety Legislation Amendment Act 2011
Number 67 of 2011
Statute Law (Miscellaneous Provisions) Act 2012 Work Health and Safety (Mines) Act 2013
42 of 2012
Civil and Administrative Legislation (Repeal and Amendment) Act 2013 Work Health and Safety Amendment Act 2013
95 of 2013
© 2017 THOMSON REUTERS
54 of 2013
109 of 2013
Date of gazettal/ assent/ registration 28 Nov 2011
Date of commencement Sch 1[1]: 28 Nov 2011 and Sch 1[2]–[19]: 1 Jan 2012 Sch 1.29: 21 Jun 6 Jul 2012 2012 1 Jul 2013 Sch 3.14: 1 Feb 2015 (Proc 786 of 2014, 12 Dec 2014) Sch 2.153: 20 Nov 1 Jan 2014 2013 3 Dec 2013 Sch 1: 3 Dec 2013 9
Table of Amending Legislation
Principal legislation
Number
Work Health and Safety Act 2011
10 of 2011
Date of gazettal/ assent/ registration 7 Jun 2011
Date of commencement 1 Jan 2012
This legislation has been amended as follows:
Amending legislation Work Health and Safety (Mines) Amendment Act 2014
Number 71 of 2014
State Insurance and Care Governance 19 of 2015 Act 2015
Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Act 2015
43 of 2015
Industrial Relations Amendment (Industrial Court) Act 2016
48 of 2016
Statute Law (Miscellaneous Provisions) Act (No 2) 2016 Statute Law (Miscellaneous Provisions) Act 2017
55 of 2016
10
22 of 2017
Date of gazettal/ assent/ registration 11 Nov 2014
Date of commencement Sch 2.5: 1 Feb 2015 (Proc 787 of 2014, 12 Dec 2014) Sch 14: 21 Aug 1 Sep 2015 2015 (Proc 524 of 2015, 28 Aug 2015) 2 Nov 2015 Sch 2: 1 Feb 2016 (Proc 46 of 2016, 29 Jan 2016) Sch 2.37: 18 Oct 8 Dec 2016 2016 (Proc 674 of 2016, 15 Nov 2016) Sch 3.55: 25 Oct 6 Jan 2017 2016 1 Jun 2017 Sch 4.52: 8 Jun 2017
Tooma’s Annotated Work Health and Safety Act 2011
WORK HEALTH AND SAFETY ACT 2011 (NSW) Part 1 – Preliminary DIVISION 1 – INTRODUCTION 1
Name of Act This Act is the Work Health and Safety Act 2011.
Basis of commentary [1.10] The annotations in this book are based on the Work Health and Safety Act 2011 (NSW) (the “Act”). These annotations are supplemented by commentary on the model Work Health and Safety laws to outline any differences in the provisions from the model. The commentary also identifies material differences in the implementation of the laws in other jurisdictions. As such, this book is intended to provide commentary on the model Work Health and Safety laws as implemented by each of the Australian jurisdictions.
Long title [1.20] The long title of the Act is: “An Act to secure the health, safety and welfare of persons at work; to repeal the Occupational Health and Safety Act 2000; and for other purposes”.
National review of occupational health and safety laws [1.30] The Act is the result of a process of review of occupational health and safety laws. The review began in April 2008 with the appointment of a three-person panel chaired by Robin Stewart-Crompton (“Stewart-Crompton Review”) to review existing occupational health and safety laws, and make recommendations for harmonised laws which would be adopted in all Australian jurisdictions. The Stewart-Crompton Panel delivered to the Workplace Relations Ministers’ Council its first report in October 2008 (“First Report”) and its second report in January 2009 (“Second Report”). The First Report and Second Report made 233 recommendations in relation to the architecture and content of model occupational health and safety laws. The recommendations of the StewartCrompton Review were considered by the Workplace Relations Ministers’ Council in May 2009. The WRMC Response to Recommendations of the National Review into Model OHS Laws set out the Workplace Relations Ministers’ Council’s decisions regarding each of the 233 recommendations. That document became the blueprint for the development of the model Work Health and Safety Bill.
© 2017 THOMSON REUTERS
11
s2
Work Health and Safety Act 2011 (NSW)
[2.10]
The Stewart-Crompton Review comments and recommendations, as set out in the First Report and Second Report, are discussed in the commentary in this book, as they illustrate the rationale behind the provisions. Consistent with the principles of statutory interpretation, the approach of the book is to rely first and foremost on the words of the provisions themselves in the context of the Act and its objects. 2
Commencement
This Act commences on 1 January 2012 or on such later day as may be appointed by proclamation before 1 January 2012. [S 2 subst Act 67 of 2011, Sch 1[1]]
Commencement [2.10] The Act commenced on 1 January 2012 in New South Wales. The Work Health and Safety Act 2011 (Cth), Work Health and Safety Act 2011 (Qld), Work Health and Safety Act 2011 (ACT), and Work Health and Safety (National Uniform Legislation) Act 2011 (NT) also commenced on 1 January 2012. The Work Health and Safety Act 2012 (SA) and the Work Health and Safety Act 2012 (Tas) commenced on 1 January 2013. DIVISION 2 – OBJECT 3
Object
(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. 12
Tooma’s Annotated Work Health and Safety Act 2011
[3.10]
Part 1 – Preliminary
s4
(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.
Rationale for objects [3.10] Section 3 reflects Recommendation 80 of the Stewart-Crompton Review. The Stewart-Crompton Review observed in the Second Report at [22.25] that: The main purpose [of including objects in the model Act] is to assist its interpretation and application. They are also an important tool in educating duty holders and the community about the purpose of the legislation and in fostering confidence in the legislative framework.
The Stewart-Crompton Review preferred an approach where the objects were drawn from objects in pre-model Act occupational health and safety legislation so that the benefit of “existing jurisprudence is not lost”: Second Report at [22.28]. DIVISION 3 – INTERPRETATION Subdivision 1 – Definitions 4
Definitions In this Act: approved code of practice means a code of practice approved under Part 14. authorised, in Part 4—see section 40. authorising authority means the Industrial Relations Commission. Category 1 offence —see section 31. Category 2 offence —see section 32. Category 3 offence —see section 33. coal workplace [Repealed]
[Def rep Act 54 of 2013, Sch 3.14[1]]
compliance powers means the functions and powers conferred on an inspector under this Act. condition includes limitation and restriction. construct includes assemble, erect, reconstruct, reassemble and re-erect. corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law. corresponding WHS law means: (a) a law of an Australian jurisdiction that has the same name as this Act, and (b) a law of an Australian jurisdiction that is prescribed by the regulations as a corresponding WHS law. court means the court having jurisdiction in the matter concerned. © 2017 THOMSON REUTERS
13
s4
Work Health and Safety Act 2011 (NSW)
[3.10]
dangerous incident, in Part 3—see section 37. demolition includes deconstruction. design, in relation to plant, a substance or a structure includes: (a) design of part of the plant, substance or structure, and (b) redesign or modify a design. disclose, in relation to information, includes divulge or communicate to any person or publish. discriminatory conduct, in Part 6—see section 105. document includes record. employee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth. employer organisation means an organisation of employers. engage in conduct means doing an act or omitting to do an act. Fair Work Act means the Fair Work Act 2009 of the Commonwealth. handling includes transport. health means physical and psychological health. health and safety duty —see section 30. health and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member. import means to bring into the jurisdiction from outside Australia. Industrial Court [Repealed] [Def rep Act 48 of 2016, Sch 2.37[1]]
inspector means an inspector appointed under Part 9. Note: Section 18(8) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 deems government officials under that Act to also be inspectors. [Def subst Act 43 of 2015, Sch 2[1]; Act 67 of 2011, Sch 1[2]]
internal reviewer means: (a) the regulator, or (b) a person appointed by the regulator under section 225. local authority means a council or county council under the Local Government Act 1993. medical treatment means treatment by a medical practitioner registered under the Health Practitioner Regulation National Law (NSW). member of staff of the regulator means: (a) in the case of SafeWork NSW—a person employed in the Department of Finance, Services and Innovation, or (b) in the case of the Secretary of the Department of Planning and Environment—a person employed in that Department. [Def am Act 22 of 2017, Sch 4.52; subst Act 19 of 2015, Sch 14[1]; insrt Act 67 of 2011, Sch 1[3]]
mining workplace [Repealed] [Def rep Act 43 of 2015, Sch 2[2]; subst Act 54 of 2013, Sch 3.14[2]]
notifiable incident —see section 35. 14
Tooma’s Annotated Work Health and Safety Act 2011
[3.10]
Part 1 – Preliminary
s4
officer means: (a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership, or (b) an officer of the Crown within the meaning of section 247, or (c) an officer of a public authority within the meaning of section 252, other than an elected member of a local authority acting in that capacity. official of a union, in Part 7—see section 116. person conducting a business or undertaking —see section 5. personal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth. plant includes: (a) any machinery, equipment, appliance, container, implement and tool, and (b) any component of any of those things, and (c) anything fitted or connected to any of those things. prohibited reason, in Part 6—see section 106. public authority means: (a) a Division of the Government Service, or (b) a NSW Government agency, or (c) a local authority, or (d) any other public or local authority constituted by or under an Act. reasonably practicable, in relation to a duty to ensure health and safety—see section 18. regulator means the regulator established under clause 1 of Schedule 2. [Def subst Act 19 of 2015, Sch 14[1]; Act 71 of 2014, Sch 2.5[1]; am Act 54 of 2013, Sch 3.14[3]; subst Act 67 of 2011, Sch 1[4]]
relevant person conducting a business or undertaking, in Part 7—see section 116. relevant union, in Part 7—see section 116. relevant worker, in Part 7—see section 116. representative, in relation to a worker, means: (a) the health and safety representative for the worker, or (b) a union representing the worker, or (c) any other person the worker authorises to represent him or her. SafeWork NSW means SafeWork NSW as referred to in clause 1 of Schedule 2. [Def insrt Act 19 of 2015, Sch 14[2]]
serious injury or illness, in Part 3—see section 36. State includes Territory. State or Territory industrial law has the same meaning as it has in the Fair Work Act. structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes: (a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels), and © 2017 THOMSON REUTERS
15
s4
Work Health and Safety Act 2011 (NSW)
[3.10]
(b) any component of a structure, and (c) part of a structure. substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. supply —see section 6. this Act includes the regulations. union means: (a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, or (b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law. volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). WHS entry permit means a WHS entry permit issued under Part 7. WHS entry permit holder means a person who holds a WHS entry permit. WHS undertaking means an undertaking given under section 216(1). work group means a work group determined under Part 5. worker —see section 7. workplace —see section 8. [S 4 am Act 22 of 2017; Act 48 of 2016; Act 43 of 2015; Act 19 of 2015; Act 71 of 2014; Act 54 of 2013; Act 67 of 2011]
Subdivision 2 – Other important terms 4A
Meaning of “regulator” [Repealed]
[S 4A rep Act 19 of 2015, Sch 14[3]; insrt Act 71 of 2014, Sch 2.5[2]]
5
Meaning of “person conducting a business or undertaking” (1) For the purposes of this Act, a person conducts a business or undertaking: (a) whether the person conducts the business or undertaking alone or with others, and (b) whether or not the business or undertaking is conducted for profit or gain.
(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. (3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. (4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. (5) An elected member of a local authority does not in that capacity conduct a business or undertaking. 16
Tooma’s Annotated Work Health and Safety Act 2011
[5.20]
Part 1 – Preliminary
s5
(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. (7) A volunteer association does not conduct a business or undertaking for the purposes of this Act. (8) In this section, volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.
Overview of PCBU [5.10] The definition of a “person conducting a business or undertaking” (“PCBU”) is a critical definition to the operation of the Act. “Not only is a person conducting a business or undertaking” the primary duty holder under the Act, almost all relevant specific duties under the Act and regulations are imposed on persons conducting a business or undertaking. A person conducting a business or undertaking is defined in s 5 to mean a person conducting a business or undertaking whether alone or with others; whether or not for profit or gain; include a business or undertaking conducted by a partnership or an unincorporated association; but does not include workers or officers, or an elected member of a local authority or “volunteer associations”. Clause 7 of the Work Health and Safety Regulation 2011 (NSW) (the “Regulation”) excludes a strata title body corporate from the operation of the definition in relation to any common areas used only for residential purposes. But the exclusion does not operate if the strata title body corporate engages any worker as an employee. A person conducting a business or undertaking is the legal entity carrying on a business or activity. That includes employers, franchisors, franchisees, labour hire firms, host employers, alliance partners, special-purpose joint venture vehicles, developers, consulting engineering firms, landlords, and commercial tenants amongst others. The intention behind the provisions is that every category of economic activity and government undertaking be caught by the provisions of the Act.
Background [5.20] The Stewart-Crompton Review observed that “[o]ver the past 25 years, changes in the organisation of work in Australia have led to a marked growth of part-time, fixed term and temporary employment arrangements”. The report observed that these changes were caused by outsourcing, downsizing, restructuring and privatisation, labour leasing, franchising and structural changes in developed economies such as higher female labour force participation and the expansion of the service industries: First Report at [2.21]. The Stewart-Crompton Review stated in Recommendation 3 that the model Act should adopt an approach whereby “the duty of care provisions together impose duties on all persons who by their conduct may cause, or contribute in a © 2017 THOMSON REUTERS
17
s5
Work Health and Safety Act 2011 (NSW)
[5.30]
specified way, to risks to the health or safety of any person from the conduct of a business or undertaking”: First Report, p xxviii. This recommendation is reflected in s 19 of the Act. While the Stewart-Crompton Review considered what definition should apply to “business or undertaking”, it had not sought to define “person conducting a business or undertaking”. The s 5 definition is an adaptation of the Stewart-Crompton Review’s recommendation in relation to the definition of “business or undertaking”. Recommendation 83 of the Stewart-Crompton review states that a “business or undertaking” be defined as “activities carried out by, or under the control of, a person” whether “alone or in concert”, of an “industrial or commercial nature or in government or local government”, whether or not “for profit or gain” and in which workers are “engaged, or caused to be engaged to carry out work” or “the activities of workers at work are directed or influenced” or “things are provided for use in the conduct of work”: Second Report, p xlvi. The Stewart-Crompton Review had in its definition of “business or undertaking” excluded the engagement of workers solely for private or domestic purposes. That exclusion is not reflected in the Act.
Person [5.30] Under Acts interpretation legislation throughout Australia, “person” is defined to include legal entities such as corporations and the Crown.
Business or undertaking [5.40] Despite Recommendations 81 to 83 of the Stewart-Crompton Review, the phrase “business or undertaking” is not defined in the legislation and must therefore take on their ordinary meaning. Business In its deliberations on the definition of “business” for the purpose of the Act, the Stewart-Crompton Review had observed that “definitions of ‘business’ consistently identify the characteristics of the carrying on of an occupation, profession, or trade; a ‘going concern’ or commercial enterprise; the carrying out of work as a whole (rather than as a distinct item of work); and being a ‘serious pursuit’ rather than a pastime, pleasure or recreation”: Second Report, p 43. The definition of business is broad, and would therefore capture all activities undertaken in the pursuit of profit or gain including incidental activities to that pursuit. Undertaking The definition of person conducting a business or undertaking is not restricted to business activities. Nor is the definition restricted to commercial ventures. The definition is expanded to include “undertakings”. Indeed, judicial considerations of the word “undertaking” have been expansive. 18
Tooma’s Annotated Work Health and Safety Act 2011
[5.70]
Part 1 – Preliminary
s5
The definition of what is an undertaking was considered in the decision of the House of Lords in R v Associated Octel Co Ltd [1996] 4 All ER 846; [1996] 1 WLR 1543. In that case, the appellant operated a chemical plant. During an annual shutdown of the plant for maintenance, a contractor was engaged to repair the lining of a tank within the chlorine plant. One of the contractor’s employees was badly burned during the process. The question arose whether the activities of the contractors were relevantly part of the “undertaking” of Associated Octel. The House of Lords held that it was. Lord Hoffmann who delivered the judgment of the House of Lords said at 1547–1549: The question … is simply whether the activity in question can be described as part of the employer’s undertaking. In most cases, the answer will be obvious. Octel’s undertaking was running a chemical plant at Ellesmere Port. Anything which constituted running the plant was part of the conduct of its undertaking.
In its consideration of the definition of “undertaking”, the Stewart-Compton Review observed that the dictionary definitions of undertaking typically refer to “an enterprise, a project or work undertaken or to be undertaken”: Second Report at [23.14].
Alone or with others [5.50] The definition of person conducting a business or undertaking is not mutually exclusive. A business or undertaking can be conducted alone or with others. This is appropriate having regard to the changing nature of work. Alliance arrangements and unincorporated joint venture structure are a common manner of service and project delivery across a number of sectors. Under s 5, each alliance “partner” would be a person conducting a business or undertaking and as such would have a duty of care under s 19 and a duty to consult, cooperate and coordinate with other alliance partners (amongst other duty holders) under s 46.
Profit or gain [5.60] The definition of person conducting a business or undertaking is applied to businesses or undertakings whether or not they are pursued for profit or gain. That is, not-for-profit undertakings are caught by the Act in the same way as commercial undertakings (except to the limited extent of the application of volunteer associations – see [5.100]). The expansion of the application to undertakings which are not for profit or gain also captures peripheral activities of companies in customer service, marketing or market research, for example.
Partnerships and unincorporated associations [5.70] A partnership or unincorporated association is included in the definition of a person conducting a business or undertaking by s 5(2). If a business or undertaking is conducted by a partnership, the partners of the partnership are the persons conducting a business or undertaking in their respective individual capacity: s 5(3). © 2017 THOMSON REUTERS
19
s5
Work Health and Safety Act 2011 (NSW)
[5.80]
Workers and officers [5.80] Section 5(4) provides that a person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. The section is intended to exclude individuals from the application of the primary duty except unless they are conducting a business or undertaking in their own personal capacity, such as sole traders for example, which is a common business structure in trades and small professional service businesses. However, the drafting of the section may lead to perverse outcomes. Section 5(4) indicates that a person does not conduct a business or undertaking to the extent that the person is engaged solely as a “worker”. Section 7 provides that a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking including relevantly work as a contractor or subcontractor: s 7(1)(b). That is, a contractor engaged by a principal may, by operation of s 5(4), not be a relevant person conducting a business or undertaking for the purpose of that work. If the usual interpretation is given to “person”, this may also include companies engaged as contractors. That would mean that in the usual modern contracting relationship, only one entity would be a person conducting a business or undertaking. This is the opposite outcome of what the Stewart-Crompton Review had recommended in reformulating the duty by reference to persons conducting a business or undertaking. However, it is nevertheless an open construction under s 5.
Elected members of local council [5.90] Section 5(5) provides that an elected member of a local authority does not, in that capacity, conduct a business or undertaking. By operation of s 247, they are also not officers of the local council for the purpose of the Act. As such, they are not covered by the Act (except to the extent through attendances at council premises as “persons at a workplace”, which is therefore caught by s 29).
Volunteer associations [5.100] Volunteer associations are excluded from the definition of persons conducting a business or undertaking. Volunteer associations are defined in s 5 to mean a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. Practically, this limits the application of the exclusion. Most volunteer associations will either employ someone or, in providing the undertaking, work with other volunteer associations who employ someone. The hinging of the exclusion on employment is also disappointing in that the purpose of introducing the concept of a person conducting a business or undertaking was to ensure that persons do not escape liability merely because they contract out their activities.
20
Tooma’s Annotated Work Health and Safety Act 2011
[6.30]
6
Part 1 – Preliminary
s6
Meaning of “supply”
(1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. (2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied. (3) A supply of a thing does not include: (a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement, or (b) a prescribed supply. (4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if: (a) the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier, and (b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer. (5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer.
Overview of “meaning of supply” [6.10] Supply is defined in s 6 in a non-exhaustive way to include supply and resupply by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. The word therefore takes on its ordinary meaning of “to furnish or provide”. Section 6(2) defines the timing of supply. Subsections 6(3) – (5) exclude certain situations from the definition of supply. The term “supply” must be given a broad interpretation to give effect to the objects of the Act: Lyco Industries Pty Ltd v WorkCover Authority (NSW) (Inspector Buggy) [2006] NSWIRComm 396.
Timing of supply [6.20] Section 6(2) provides that a supply occurs on the passing of possession to the person or an agent of the person to be supplied.
Return of possession is not supply [6.30] Section 6(3) provides that a supply of a thing does not include the return of possession of a thing to the owner of the thing at the end of a lease or other agreement: s 6(3)(a).
© 2017 THOMSON REUTERS
21
s7
Work Health and Safety Act 2011 (NSW)
[6.40]
Auctioneers and real estate agents not suppliers [6.40] Clause 8 of the Regulation provides that for the purpose of s 6(3)(b) of the Act, a supply of a thing is not included in the definition of supply if the person “does not control the supply and has no authority to make decisions about the supply”: cl 8. Examples are listed under that clause to illustrate the types of situations in contemplation. They include auctioneers who auction a thing without having possession of the thing, and real estate agents acting in their capacity as real estate agents. Note that by virtue of s 9 of the Act, examples form part of the Act. The same is true of the Regulation because of the use of the phrase “this Act” which, pursuant to s 4 of the Act, includes the Regulation.
Financiers not suppliers [6.50] A financier is taken not to supply plant, a substance or a structure for the purposes of the Act if the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier, and the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer: s 6(4). In those circumstances, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of the Act to have supplied the plant, substance or structure to the financier’s customer: s 6(5).
Importance of definition of supply is overstated [6.60] The definition of supply is relevant only to s 25 of the Act and obligations imposed on suppliers by Chs 5 and 7 of the Regulation. Section 25 imposes a duty of care on persons conducting a business or undertaking that supply plant, substances or structures. This is the successor provision to the duty imposed by s 11 of the Occupational Health and Safety Act 2000 (NSW) for example. However, on a proper construction of the duties imposed by Pt 2 Div 3, the “further duties of persons conducting businesses or undertakings” (ss 20 – 26) are subsidiary to the Pt 2 Div 2 duties which set out the “primary duty of care”. That duty, set out in s 19 of the Act, imposes a duty on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking: s 19(2). That is, despite the apparent exclusions of certain categories of persons from the definition of “supply” and therefore from the “duty of suppliers”, the same conduct may well be caught by the primary duty of care. 7
Meaning of “worker”
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: 22
Tooma’s Annotated Work Health and Safety Act 2011
[7.30]
Part 1 – Preliminary
s7
(a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or (e) an outworker, or (f) an apprentice or trainee, or (g) a student gaining work experience, or (h) a volunteer, or (i) a person of a prescribed class. (2) For the purposes of this Act, a police officer is: (a) a worker, and (b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise. (3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.
Overview of the role of the worker definition [7.10] The definition of “worker” is used throughout the Act. The primary duty of care of a person conducting a business or undertaking is owed to “workers” amongst others: s 19(1). Persons conducting a business or undertaking are required to consult “workers” in relation to matters affecting their health and safety: s 47. Protections against victimisation for health and safety related reasons are afforded to “workers” and “prospective workers”: ss 104 – 115. Workers themselves also have a duty of care: s 28. Furthermore, the very definition of what is a workplace, another key concept in the Act and Regulation, is affected by the definition of a worker: s 8.
Broad definition of worker [7.20] The definition of worker under the Act is extremely broad. A worker is a person who carries out work in any capacity for a person conducting a business or undertaking: s 7(1). That includes an employee, a contractor, a subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company, an outworker, an apprentice or trainee, a student gaining work experience, a volunteer, or a person of a prescribed class such as police officers: s 7(1). Broad definition is intentional In making its recommendations in relation to the definition of worker, the Stewart-Crompton Panel observed that it had recommended a primary duty of care that “is not reliant on the traditional employment relationship”. Consistent with that change, the Panel recommended that a “broad definition of ‘worker’ be adopted in place of ‘employee’”: Second Report at [23.256].
Work [7.30] Performance of work is the lynchpin of the definition of “worker”. A person is a worker if they carry out work for a person conducting a business or © 2017 THOMSON REUTERS
23
s8
Work Health and Safety Act 2011 (NSW)
[7.40]
undertaking. Work is not defined in the Act and therefore takes on its ordinary meaning of “exertion directed to produce or accomplish something”: Macquarie Dictionary, 5th edition, 2009. It is clear from the examples of “worker” provided by s 7 that it is not necessary for the work to be paid work. Volunteer work equally renders volunteers as “workers” for the purpose of the definition: s 7(1)(h).
Limitations of definition [7.40] It is not clear why it was necessary to have such an extensive definition of “worker” for the purpose of the Act. It has limited value in relation to the primary duty of care given the nature and scope of the primary duty of care imposed with respect to “other persons”. If a person is not a worker they will be covered by the second limb of the duty – s 19(2). That is, contrary to the observations of the Stewart-Crompton Panel, such a broad definition was not necessary. Importantly, the broad definition is not appropriate because of its interaction with other provisions of the Act where it has been used to replace “employee” where that term was previously used in work health and safety legislation. Section 273 is a good illustration of this. Under that section, a person conducting a business or undertaking is prohibited from levying or charging a worker for anything done or provided for work health and safety. However, given that workers include contractors, this is not workable. Contractors supply many things at their cost for the purpose of health and safety such as harnesses, and other personal protective equipment. While such a prohibition is understandable in relation to employees, once the definition of worker extends to independent contractors, its philosophical foundation begins to unravel. Indeed, the definition of worker is problematic because of its interaction with s 5. A worker is not a person conducting a business or undertaking under s 5(4). Yet, s 7(3) indicates that they are. 8
Meaning of “workplace”
(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. (2) In this section, place includes: (a) a vehicle, vessel, aircraft or other mobile structure, and (b) any waters and any installation on land, on the bed of any waters or floating on any waters.
Overview of workplace definition [8.10] The definition of “workplace” remains an important feature of the Act. It, for example, defines the scope of the duty under s 20 – the duty of persons conducting a business or undertaking involving management or control of a workplace. It is also a key limitation of the duty to notify incidents under s 38
24
Tooma’s Annotated Work Health and Safety Act 2011
[8.20]
Part 1 – Preliminary
s8
of the Act: see s 37 in relation to dangerous incidents. There are also a number of regulations imposing specific requirements in relation to hazards at workplaces. The Stewart-Crompton Panel recommended that a broad definition be adopted. In the Second Report, the panel said at [23.272]: We consider it is useful (and common practice) for the term “workplace” to be defined. A definition will allow a demonstration of the broad reach of the term and the various structures (including mobile and temporary structures) that are properly to be regarded as workplaces.
Section 8 of the Act defines “workplace” as a place where work is carried out for a business or undertaking. Importantly, the section defines a workplace to include “any place where a worker goes, or is likely to be, while at work”. Place “Place” is defined to include a vehicle, vessel, aircraft or other mobile structure and any waters and any installation on land, on the bed of any waters or floating on any waters: s 8(2). Work Work is not defined in the Act and therefore takes on its ordinary meaning of “exertion directed to produce or accomplish something”: Macquarie Dictionary, 5th edition, 2009. Any place that the work activities requires workers to be “Workplace” is broad enough to encompass any place where the work activity requires the worker to be: s 8(1). It includes all parts of the premises which an employee might use in performing acts normally and reasonably incidental to her or his work duties: Inspector Collaghan v Starr (1992) Australian Industrial Safety, Health and Welfare Case Digests [52-909]. It also includes the immediate environs which may have been affected by the conduct of the business or undertaking: WorkCover Authority (NSW) v Woolworths Ltd [1994] NSWIRComm 95, per Peterson J at 7 referring to the “place of work” definition in the Occupational Health and Safety Act 1983 (NSW).
Temporal limitation [8.20] A distinction needs to be made between places which have the inherent character of a workplace, whether or not workers are working there, and other premises which become transformed to “workplaces” by the performance of work by workers on behalf of the person conducting the business or undertaking. In the latter case, such premises have a temporal component to their classification as workplaces. This interpretation arises as a matter of statutory construction given the use of the present tense in the phrase “work is carried out”. In WorkCover Authority (NSW) v Boral John Perry Industries Pty Ltd t/as Boral Elevators (unreported, NSWIRComm, Maidment J, Case No CT1115/95, © 2017 THOMSON REUTERS
25
s8
Work Health and Safety Act 2011 (NSW)
[8.20]
8 August 1996), Maidment J acquitted the defendant, a lift servicing company, of charges relating to passengers being trapped in a lift. His Honour said: It would seem to me to be inconceivable that a passenger in the inclinator would consider himself, in the ordinary and natural sense of the words, to be “at the defendant’s place of work” just as, upon entering his year old home, he would not consider it to be the builder’s place of work. On the other hand, I would think that a factory or a building site would, in the ordinary and natural sense of the words, be considered to be the occupier’s or builder’s place of work during downtime such as weekends, in each case its character as a place of work having an obvious continuance.
No employees of the defendant were present at the time in question in that case. By contrast, the same defendant was subsequently convicted when a passenger was injured whilst an employee of the defendant was attempting to free him and other passengers who were trapped in a lift: WorkCover Authority (NSW) v Boral John Perry Industries Pty Ltd t/as Boral Elevators [1998] NSWIRComm 198. The existence of this distinction was also alluded to in TTS Pty Ltd v Griffıths (1991) 105 FLR 255. In interpreting the phrase “workplace” in s 29 of the Work Health Act 1986 (NT), Asche CJ said at 272: It would seem strange … that the Act was intended to cover only those workers who worked in specific business houses or factories of their employers but not those who carried on the work of their employer outside. One can think of many examples where a “workplace” may still be a “workplace” even if it existed for a very short space of time, or even where it would change continually even in the space of one day.
In Bolton Metropolitan Borough Council v Malrod Insulations Ltd [1993] ICR 358, the English High Court was called upon to interpret the phrase “at work” in s 52 of the Health and Safety at Work Act 1974 (UK) Tudor Evans J said at 367–368: … the use of the words “at work” cannot on any common sense basis mean that the duty to provide safe plant arises only when the [employees] are actually at work. Such a construction would lead to the conclusion that the duty would come to life when the employees reported for work in the morning, that it would exist throughout the working day but that it would then fall into limbo at the end of the day only to be revived next morning … In my opinion, if it had been intended to produce a result so out of keeping with the general interpretation of the safety provisions of the code of legislation, Parliament would have said so in plain language.
The temporal requirement was confirmed in Tsougranis v Inspector Carmody (No 2) [2006] NSWIRComm 133. In that case, the appellant who had been engaged by the owner of certain premises to provide structural engineering advice and drawings for renovation works by builders engaged by the owner, appealed the finding of the trial judge who found the appellant was in breach of his duty to other people at his place of work. In this regard, the appellant disputed that the accident (involving the collapse of a wall that the appellant did not instruct the builders to brace) occurred at the appellant’s “place of work”. In reaching its conclusion, the Full Bench found that “place of work” has temporal connotations and in the particular circumstances of the case, held that there was 26
Tooma’s Annotated Work Health and Safety Act 2011
[10.10]
Part 1 – Preliminary
s 10
no evidence of a continuance of the appellant’s work. Relevantly, the appellant had no employees present at the site, nor was the site a place of work, including areas affected by or in such proximity to what the appellant was contractually obliged to perform, that the areas were considered to be the defendant’s place of work. The Full Bench concluded at [55]: [T]he mere fact engineering plans were prepared … and those plans have ramifications for what work was to be done on the site, does not necessarily make the site the engineer’s place of work.
The Stewart-Crompton Panel recommended such an approach. In the Second Report, the panel said at [23.278]: We consider it preferable that the model Act limit the definition of workplace to the time at which work is being done. That period should include recesses or breaks during a continuous period of work (e.g. lunch or tea breaks, overnight and weekends).
See, by contrast, Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58. 9
Examples and notes (1) An example at the foot of a provision forms part of this Act. (2) A note at the foot of a provision forms part of this Act.
DIVISION 4 – APPLICATION OF ACT 10
Act binds the Crown
(1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities. (2) The Crown is liable for an offence against this Act. (3) Without limiting subsection (1), the Crown is liable for a contravention of a WHS civil penalty provision.
Overview [10.10] There is a strong presumption at common law that the Crown is not bound by legislation in the absence of some clear expression of legislative intent or a necessary implication that it should be: Province of Bombay v Municipal Corp of Bombay [1947] AC 58; Bropho v Western Australia (1990) 171 CLR 1. Furthermore, there is a strong presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature: Cain v Doyle (1946) 72 CLR 409 per Dixon J at 424 with whom Rich J concurred. Section 10 expresses the clear legislative intent that the Act applies to the Crown and that, as such, the Crown is liable for the criminal offences imposed by the Act.
© 2017 THOMSON REUTERS
27
s 10
Work Health and Safety Act 2011 (NSW)
[10.20]
What is the Crown? [10.20] The NSW Supreme Court considered the appropriate test for determining whether an entity or body represents the Crown in Skinner v Commissioner of Railways (1937) 37 SR (NSW) 261. Jordan CJ held that a body can be considered as an emanation of the Crown if it is a branch of a department of government (that is, a mere agent of the government) or it performs inalienable governmental functions. See also WorkCover Authority (NSW) v Police Service (NSW) [2000] NSWIRComm 234 per Hungerford J for support of this definition. However, a body does not represent the Crown if it is an independent body capable of exercising its own discretion, whether or not it is a for profit body or performs some public function or pays its revenue into the public purse: Skinner v Commissioner of Railways (1937) 37 SR (NSW) 261 per Jordan CJ at 270. The kind of relationship which suffices to confer a Crown attribute on a body in a particular case will vary depending on the type of attribute claimed: Superannuation Fund Investment Trust v Commissioner of Stamps of the State of South Australia (1979) 145 CLR 330. Where a body has several functions, it may be that only some of those functions have attributes of the Crown or, conversely, it may be that only some Crown attributes attach to the body. This is of particular relevance to State-owned corporations where the degree of ministerial involvement varies from corporation to corporation. For further reference see P Hogg, Liability of the Crown (2nd ed, Lawbook Co, 1989).
Crown in all its other capacities [10.30] Section 10 of the Act not only binds the Crown in Right of New South Wales, but also purports to bind the Crown in all its capacities so far as the legislative power of Parliament permits. As a general rule, a State Parliament does not have the power to enact legislation, binding on the Commonwealth, which defines or regulates the Commonwealth’s rights or duties towards its subjects or that controls or regulates the Commonwealth’s governmental rights: Commonwealth of Australia v Cigamatic Pty Ltd (1962) 108 CLR 372. Commonwealth of Australia v Cigamatic Pty Ltd was concerned with whether, in a winding-up, a State law can regulate the payment of creditors by overriding the priority otherwise given to debts owed to the Crown in Right of the Commonwealth. The then ss 282 and 297 of the Companies Act 1936 (NSW) bound the Crown and purported to rule out any priority for debts to the Crown in right of the Commonwealth. In finding that the State has no power to deny the Commonwealth the priority to debts owed to it, Sir Owen Dixon CJ, with whom Kitto and Windeyer JJ concurred, said at 377: There can be no doubt as to the nature or the source of the right of the Commonwealth … as a government of the Queen. Therefore to treat those rights as subject to destruction or modification or qualification by the legislature of a State must mean that under the Constitution there resides in a State or States a legislative 28
Tooma’s Annotated Work Health and Safety Act 2011
[11.10]
Part 1 – Preliminary
s 12
power to control legal rights and duties between the Commonwealth and its people … Except by adopting such a doctrine I cannot see how it could be thought that State legislative power could directly deprive the Commonwealth of the priority to which it is entitled under the law derived from the prerogative.
Menzies J, with whom Owen J concurred, delivered a separate judgment agreeing with Dixon CJ’s reasoning. Executive arm of Commonwealth bound This is not to say that the executive arm of the Commonwealth cannot be bound by State law. In Commonwealth of Australia v Cigamatic Pty Ltd (1962) 108 CLR 372, Sir Owen Dixon CJ (at 378) distinguished the issue he was dealing with, a law affecting a fiscal right of the Commonwealth as a government and affecting its treasury, from the question of the authority of a State to make some general law governing the rights of those who enter into some description of transaction and the Commonwealth, in its executive arm, choosing to enter into a transaction of that description. In Commonwealth of Australia v Bogle (1953) 89 CLR 229, Fullagar J, at 260, also noted that the Commonwealth may be governed by State laws and gave the example of the executive arm of the Commonwealth being bound by the sale of goods legislation: see also Federal Commissioner of Taxation v Offıcial Liquidator of EO Farley Ltd (1940) 63 CLR 278 at 308 per Dixon J, as he then was. Commonwealth laws The application of the Act to the Crown in Right of the Commonwealth is assisted by the provisions of two pieces of Commonwealth legislation: s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) provides that State laws are to apply to Commonwealth places (with minor exceptions for taxation measures etc); and the Work Health and Safety Act 2011 (Cth). 11
Extraterritorial application
Note. Not required in NSW.
Commonwealth extra-territorial provisions [11.10] While there is no need for an extra-territorial provision in State and Territory legislation, s 11 of the Work Health and Safety Act 2011 (Cth) follows the model Work Health and Safety Act clause in providing that the Act “extends to every external Territory”. That would mean that the Act does not apply extraterritorially contrary to the explanatory memorandum and the second reading speech which both indicate a broader application. Section 12F(3) of the Work Health and Safety Act 2011 (Cth), however, provides that “section 15.1 of the Criminal Code (extended geographical jurisdiction–category A) applies to an offence” against the Act. 12
Scope
Note. Not required in NSW.
© 2017 THOMSON REUTERS
29
s 12A
Work Health and Safety Act 2011 (NSW)
[12A.10]
12A Offences are offences of strict liability Strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence.
Nature of offences [12A.10] Section 12A provides that the duties imposed by the Act are strict liability offences. That is, they do not require mens rea: Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123. An offence entails convictions upon proof merely of each physical element of each offence: s 12A. See also Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217. Section 12A represents a departure from the interpretation of the pre-model Act laws in New South Wales and Queensland where the duty of care provisions were held to be absolute liability offences subject only to the defences provided by the respective pre-model Act legislation in those jurisdictions: see for example Italo Australian Construction Pty Ltd v Parkes (1988) 24 IR 428; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358; Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123. The implication of that distinction is that the defence of honest and reasonable mistake of fact will be available in relation to offences committed under the Act where previously such a defence was not available: Proudman v Dayman (1941) 67 CLR 536. Dixon J observed at 540: As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.
However, as Dixon J observed, the strength of the presumption that the rule applies varies with the nature of the offence and the scope of the statute. The rule does not apply to absolute liability offences. Indeed, Dixon J himself had singled out health and safety offences as potentially falling in that category because of their social nature in being concerned with the protection of health and safety of workers and others. Contrast with Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 where the defence was held not to apply to the pre-model Act NSW version of the duty of care of employers. Section 244(3) provides that if for an offence against the Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority made that mistake of fact. No need to prove directing mind In prosecuting a corporation, it is not necessary for the prosecution to show that the breach of the duty was committed by a person who can be said to be the “directing mind and will of the corporation”. That is, given the absolute nature of the duties imposed by the Act, the rule in Tesco Supermarkets v Natrass 30
Tooma’s Annotated Work Health and Safety Act 2011
[13.10]
Part 2 – Health and safety duties
s 14
[1972] AC 153 does not apply: Dawson v State Rail Authority (NSW) (1988) 26 IR 359; R v Gateway Foodmarkets [1996] EWCA 1937; and R v Nelson Group Services [1998] EWCA 3372. In any event, s 244 of the Act provides that any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate: s 244(1). Furthermore, if an offence under the Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, had the relevant knowledge, intention or recklessness: s 244(2).
Part 2 – Health and safety duties DIVISION 1 – INTRODUCTORY Subdivision 1 – Principles that apply to duties 13
Principles that apply to duties This Subdivision sets out the principles that apply to all duties that persons have under this Act. Note. The principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation.
Rationale for principles of interpretation [13.10] Sections 13 – 16 reflect Recommendation 2 of the Stewart-Crompton Review. In the First Report, the Stewart-Crompton Review observed at [4.2]–[4.3] that: In making our recommendations, we are concerned that the model Act provides for: • as broad a coverage as possible, to ensure that the duties of care deal with emerging and future hazards and risks and changes to work and work arrangements; • clarity of expression, to ensure certainty in the identification of the duty holders and that they can understand the obligations placed upon them; and • the interpretation and application of the duties of care consistent with the protection of health and safety. We accordingly propose that the model Act include a set of principles, which will, amongst other things, guide duty holders, regulators and the courts on the interpretation and application of the duties of care.
14
Duties not transferrable A duty cannot be transferred to another person.
© 2017 THOMSON REUTERS
31
s 15
Work Health and Safety Act 2011 (NSW)
[14.10]
Rationale for not transferrable requirement [14.10] Section 14 reflects Recommendation 2(a) of the Stewart-Crompton Review. That recommendation was that the duties of care under the Act be non-delegable. The rationale for such a requirement was set out in the Stewart-Crompton Review First Report at [4.7] as follows: The model Act must make clear that all duty holders must at all times accept their responsibility for health or safety and ensure that the duties of care are met. The provisions of the model Act should not permit or encourage, directly or indirectly, any duty holders to avoid their health and safety responsibilities.
The Stewart-Crompton Review observed further at [4.8]: We share the view that has been expressed in a number of submissions and during consultation that the model Act should not allow any duty holders to relinquish or pass on their duties to anyone else. To allow this to occur may result in: • a focus on passing on or relinquishing duties rather than focusing on achieving the protection of health and safety; and/or • confusion as to who has the responsibility to provide for the protection of health and safety, which may result in no-one doing so.
Section 14 makes it clear that any attempt to delegate or transfer a duty to another person will not be effective. This provision is strengthened by s 272 which voids any terms of any agreement which purports to contract out of, or limit, any duty under the Act. 15
Person may have more than one duty A person can have more than one duty by virtue of being in more than one class of duty holder.
Multiple duties [15.10] The duties imposed by the Act are broad. In addition to the primary duty of care under s 19, the Act imposes specific duties in ss 20 – 25. A person may be conducting a business or undertaking as a controller or manager of a workplace and may also be conducting a business or undertaking as a controller or manager of plant, substance and/or structures in that workplace. A person may also be conducting a business or undertaking as designer of plant, substances or structure at the same time as conducting a business or undertaking or manufacturing and/or supply of the plant or substances. Section 15 makes it clear that person will not be excused from their respective duties because of their multiple roles. 16
More than one person can have a duty (1) More than one person can concurrently have the same duty.
(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: 32
Tooma’s Annotated Work Health and Safety Act 2011
[17.10]
Part 2 – Health and safety duties
s 17
(a)
retains responsibility for the person’s duty in relation to the matter, and (b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
Concurrent duties [16.10] Section 16 makes it clear that duties imposed by the Act are concurrent. That is, more than one person may have a duty in relation to the same person, workplace, plant, substance, structure or thing. Indeed, this is very often the case and the case law is laden with examples of multiple parties being prosecuted in relation to the same incident for their respective role in contributing to, or failing to control, the relevant risk. Horizontal consultation Section 46 takes this further by requiring each overlapping duty holder to consult, cooperate and coordinate their respective activities. See commentary at [46.10] onwards. Control and influence Under s 16, each duty holder must discharge their duty to the extent to which they have capacity to influence and control the matter. This is intended to augment the duty of care – not reduce it. That is, the principle of interpretation serves to extend the duty to the extent of that control or influence. 17
Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
Duty of care implies risk management [17.10] Section 17 expressly provides that a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety, so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. This implies a risk management process. Indeed, a risk management duty has been implied in the scope of the duty of care almost from its inception. In WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80, Hill J said at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach be a pro-active and not a © 2017 THOMSON REUTERS
33
s 17
Work Health and Safety Act 2011 (NSW)
[17.10]
re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.
In Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority (NSW) [2000] NSWIRComm 240, the Full Bench said at [62]: The appellant should have been aware of all of the factors that might impinge on the safety of its employees using the trafficable ceiling. This flows from the duty to “ensure” the safety of its employees at work. The appellant had a duty to make a proper and comprehensive assessment of the risks to its employees associated with using the trafficable ceiling as a walkway. It is no defence for the appellant to say it was not aware of the construction work that might adversely affect the trafficable ceiling or it was not aware that the dust wall was to be removed at a time when its employees would be using the ceiling. Proper inquiry by the appellant … would have revealed the nature of the risk. But there was no inquiry … In failing to carry out a risk assessment the appellant exposed its employees to the risk of the construction work adversely affecting the structural integrity of the trafficable ceiling.
The scope of risks assessments was considered by the Full Bench of the Industrial Relations Commission of NSW in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84; [2000] NSWIRComm 239. Mainbrace was an appeal from the decision of Kavanagh J finding the appellant guilty of breaching s 16(1) of the Occupational Health and Safety Act 1983 (NSW) (the duty of care to other persons – a predecessor to s 19(2) of the Act). The prosecution arose from an incident that occurred when a trafficable suspended ceiling, on which three workers were standing, collapsed. The three workers were employees of an electrical contractor, Kennedy-Taylor (NSW) Pty Ltd, which had been subcontracted by the appellant to carry out electrical work at the premises of Chisholm Manufacturing, a division of Woolworths Ltd. The appellant, in turn, had been contracted by Pinnacle Pacific Pty Ltd, the project manager appointed by Chisholm, to carry out building renovation work on sections of a meat processing facility which was owned and occupied by Chisholm at Blacktown. The Full Bench of the Industrial Relations Commission of NSW dismissed the appeal. In [2000] 102 IR 84 President Wright J, Hungerford J and Boland J said at 100: [The appellant] submitted that … it was most unlikely that examination of the ceiling space would have revealed its likelihood of collapse. Given the nature of the risk, an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels… Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focused on the work associated with the demolition and re-construction of the northern wall – including the removal of the dust wall – and how it might affect the ceiling as a means of access and egress. This would have 34
Tooma’s Annotated Work Health and Safety Act 2011
[17.30]
Part 2 – Health and safety duties
s 17
revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety.
In WorkCover Authority of NSW (Inspector Robinson) v Milltech Pty Ltd [2001] NSWIRComm 51, Marks J said at [18]–[21]: Milltech is required under s 15 [of the Occupational Health and Safety Act 1983 (NSW)] to create a system of work which eliminates risks of injury to employees. All tasks must be assessed to ensure the system of work allows no risk of injury … It is not sufficient for Milltech as the employer to leave the responsibility for carrying out this task safely to be assessed by workers carrying out the task on the spot. They did not exercise the necessary foresight and vigilance to avoid any undue risk to the health and safety of persons who may have been affected by the task.
See also Inspector Green v NSW Department of Commerce [2004] NSWIRComm 64.
Risk management regulations [17.20] Clauses 32 – 38 of the Regulation prescribe a consistent process of risk management which applies wherever an express risk management duty is imposed on a person conducting a business or undertaking in the Regulation: cl 32. That process is not a general risk management obligation as existed in all predecessor regulations (with the exception of Victoria). Rather, the process applies only to hazards specifically identified in the Regulations. That process requires hazards to be identified: cl 34. Any risks arising from those hazards must then be eliminated so far as is reasonably practicable, or minimised so far as is reasonably practicable if it is not reasonably practicable to eliminate them: cl 35. Any control of risks for that purpose is to be done in accordance with the hierarchy of control measures set out in cl 36. That hierarchy is as follows. The duty holder must minimise risks, so far as is reasonably practicable, by doing one or more of the following: • substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk: cl 36(3)(a) • isolating the hazard from any person exposed to it: cl 36(3)(b) • implementing engineering controls: cl 36(3)(c). If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls: cl 36(4). If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment: cl 36(5).
Risk management code of practice [17.30] In relation to hazards not specifically identified in the Regulation, the How to Manage Work Health and Safety Risks: Code of Practice applies. That © 2017 THOMSON REUTERS
35
s 18
Work Health and Safety Act 2011 (NSW)
[17.30]
Code of Practice imposes a process identical to that set out in cll 34 – 36 of the Regulation. Under s 275 of the Act, a code of practice is admissible in proceedings under the Act as evidence of whether or not a duty or obligation under the Act has been complied with: s 275(2). In that respect, the court may have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates and rely on the code in determining what is reasonably practicable in the circumstances to which the code relates: s 275(3). The Code provides the following summary of the risk management process at p 4: • identify hazards – find out what could cause harm • assess risks if necessary – understand the nature of the harm that could be caused by the hazard, how serious the harm could be and the likelihood of it happening • control risks – implement the most effective control measure that is reasonably practicable in the circumstances • review control measures to ensure they are working as planned.
On the question of the trigger for risk management, the Code provides at p 6: Managing work health and safety risks is an ongoing process that is triggered when any changes affect your work activities. You should work through the steps in this Code when: • starting a new business or purchasing a business • changing work practices, procedures or the work environment • purchasing new or used equipment or using new substances • planning to improve productivity or reduce costs • new information about workplace risks becomes available • responding to workplace incidents (even if they have caused no injury) • responding to concerns raised by workers, health and safety representatives or others at the workplace • required by the WHS regulations for specific hazards. It is also important to use the risk management approach when designing and planning products, processes or places used for work, because it is often easier and more effective to eliminate hazards before they are introduced into a workplace by incorporating safety features at the design stage.
Subdivision 2 – What is reasonably practicable 18
What is “reasonably practicable” in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk, and 36
Tooma’s Annotated Work Health and Safety Act 2011
[18.10]
Part 2 – Health and safety duties
s 18
(ii) ways of eliminating or minimising the risk, and the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
(d)
Overview [18.10] “Reasonably practicable” is a key concept in the Act. It is a qualification to almost all duties and obligations under the Act, including the primary duty of care of a person conducting a business or undertaking: s 19. Section 18 codifies the definition of reasonable practicability in relation to the duties imposed by ss 19 – 26. However, the concept is almost as old as the law itself. Reasonable practicability does not go so far as to require the defendant to have done everything physically possible. As Lord Asquith observed in Edwards v National Coal Board [1949] 1 All ER 743 at 747: “Reasonably practicable” is a narrower term than “physically possible” … [it implies] that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the [defendants discharge the onus on them].
In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14, their Honours French CJ, Gummow, Hayne and Crennan JJ observed at [15]: The words “so far as is reasonably practicable” indicate that the duty does not require the employer to take every possible step that could be taken. The steps that are to be taken in the performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.
The High Court has also considered the meaning of the phrase in the context of the Occupational Health, Safety and Welfare Act 1986 (SA) in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6. In that case, Callinan J cited with approval a passage from Lord Oaksey’s judgment in Marshall v Gotham Co Ltd [1954] AC 360 and concluded that reasonably practicable requires consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved. See also Austin Rover Ltd v Inspector of Factories [1989] 1 WLR 520. Reasonable practicability implies some element of reasonable foreseeability: WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City © 2017 THOMSON REUTERS
37
s 19
Work Health and Safety Act 2011 (NSW)
[18.20]
Council (1998) 83 IR 362. However, caution should be exercised in importing such common law concepts as reasonable foreseeability into s 18. What is required, however, is the balancing of the nature, likelihood and gravity of the risk to safety constituting the offence (s 19(a)–(c)) with the costs, difficulty and trouble necessary to avert it (s 19(d)–(e)). In that context, it would not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 per Walton J, VP at 206–207 and WorkCover Authority (NSW) v Grice Constructions Pty Ltd [2002] NSWIRComm 20 per Wright P, Walton J, VP and Hungerford JJ. See also Holmes v RE Spence & Co Pty Ltd (1993) 5 VIR 119. Cost is the last step in the recoverable practicability assessment. The cost deliberations must include a consideration whether the cost is grossly disproportionate to the risk: s 19(e).
Relationship between reasonable practicability and codes of practice [18.20] Under s 275 of the Act, a code of practice is admissible in proceedings under the Act as evidence of whether or not a duty or obligation under the Act has been complied with: s 275(2). In that respect, the court may have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates and rely on the code in determining what is reasonably practicable in the circumstances to which the code relates: s 275(3). See also Martin v Boulton and Paul (Steel Construction) Ltd [1982] ICR 366 (QB). See further R Johnstone and M Tooma Work Health & Safety Regulation in Australia: The Model Act (Federation Press, Sydney, 2012), pp 71–75. See also R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy (3rd ed, Thomson Reuters, Sydney, 2012), pp 273–285. DIVISION 2 – PRIMARY DUTY OF CARE 19
Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and 38
Tooma’s Annotated Work Health and Safety Act 2011
[19.10]
Part 2 – Health and safety duties
s 19
(b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If: (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and (b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Note. A self-employed person is also a person conducting a business or undertaking for the purposes of this section.
Overview of primary duty of care [19.10] The primary duty of care is the centrepiece of the reforms introduced by the Act. The duty is two-fold. It applies to workers and non-workers. Section 19(1) imposes a duty on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by the person conducting the business or undertaking, and workers whose activities in carrying out work are influenced or directed by the person. That duty is owed to those workers while the workers are at work in the business or undertaking of the person. Section 19(2) imposes a duty of care with respect to persons other than workers: SafeWork NSW v Rawson Homes [2016] NSWDC 237; S Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5. Origin of primary duty Section 19 reflects the architecture recommended by the review panel report on this issue for the creation of a duty of care which is imposed on persons conducting a business or undertaking to capture broader categories of work arrangements: See Recommendations 10 to 21 of the First Report. These © 2017 THOMSON REUTERS
39
s 19
Work Health and Safety Act 2011 (NSW)
[19.20]
recommendations build on the Queensland pre-model laws duty of care provisions which from 2005 imposed the duty of care on “a person conducting a business or undertaking”: see Workplace Health and Safety Act 1995 (Qld) s 28. See further R Johnstone and M Tooma Work Health & Safety Regulation in Australia: The Model Act (Federation Press, Sydney, 2012), particularly chapters 1 and 2.
Overarching nature of “primary” duty [19.20] Importantly, the Stewart-Crompton Panel recommended that the duty imposed on persons conducting a business or undertaking be the “primary duty”. That is, the duty is overarching. While it is supplemented by the “further duties” in ss 20 – 26 of the Act, properly constructed, the duty is intended to be broad enough to capture all work arrangements as well as the further specific duties set out in those sections. In that sense, it is s 19 which is expected to be the duty most often relied upon by the Regulator in prosecutions under the Act. The regime created by the Act is an “elaborate safety code”, the objectives of which are to secure the health and safety of people at work and to protect other people from risks arising from work activities: Inspector Ching v Bros Bins Systems Pty Ltd [2003] NSWIRComm 386. The primary duty of care imposed by s 19 is at the apex of that code. Further duties are imposed by ss 20 – 26, but these duties are examples of specific circumstances already covered by s 19.
Principles of interpretation Non-delegable duties [19.30] The duties imposed by s 19 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. Concurrent nature of duties The duties are also concurrent and overlapping: ss 15 and 16. That is, more than one person can concurrently have the same duty in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting the business or undertaking in relation to an incident involving a worker while another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe workplace or plant to that same worker. Furthermore, the courts have held that the principle of totality 40
Tooma’s Annotated Work Health and Safety Act 2011
[19.30]
Part 2 – Health and safety duties
s 19
does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. Control If more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: see Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 in relation to interaction between “control” and “reasonably practicable”. Broad approach In interpreting sections such as s 19 which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149. This approach has been consistently applied by the courts in the context of the pre-model Act laws: see Kirby v A & MI Hanson Pty Ltd (1994) 55 IR 40; Rech v F M Hire Pty Ltd (1998) 83 IR 293; WorkCover Authority (NSW) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451; Callaghan v C I & D Industries Pty Ltd (1994) 60 IR 149; and Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119. Ensure means guarantee or make certain In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, Watson J said (at 470): There would appear to be no reason to make any implication that the words “to ensure” are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain.
That is, the duty imposed by s 19 is to guarantee, secure or make certain, so far as is reasonably practicable, the health and safety of workers and other persons. Duties concerned with risks to health and safety The duties under Pt 2 of the Act are concerned with risks to health, safety and welfare – not actual injury. It is not necessary for there to be an accident for a breach of s 19 of the Act to occur: see Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 and Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363. See also Arrowcrest Group Pty Ltd v Stevenson (1990) Australian Industrial Safety, Health and Welfare Case Digests [52-863]; R v Australian Char Pty Ltd (1995) 64 IR 387; and R v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171. The mere exposure of persons to risks to their health or safety can give rise to a breach of the primary duty of care. In Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149, the Full Bench of the then Industrial Court of NSW said at 157 in relation to the predecessor duty of care provisions, the duties are: © 2017 THOMSON REUTERS
41
s 19
Work Health and Safety Act 2011 (NSW)
[19.30]
concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of “risks” thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant “detriment to safety” … is but a risk.
Indeed, in many respects, it is “risk” and not “workplace” which is the lynchpin of the duties imposed by s 19. This is an important feature of the legislation that gives it its expansive character. “Risk” means the mere possibility of danger, and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171; Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270. “Health and safety” means “soundness of body” rather than merely “freedom from illness or infection”: TTS Pty Ltd v Griffıths (1991) 105 FLR 255 per Asche CJ at 267. There is no requirement to establish the mechanism by which the risk could come home: Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales (2010) 78 NSWLR 94. In R v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171, the Science Museum’s air conditioning cooling tower was inspected by officers of the UK Health and Safety Executive and was found to contain Legionella pneumophila, the bacterium which causes Legionnaires’ Disease. The Board of Trustees of the Science Museum was charged with breaching s 3(1) of the Health and Safety at Work Act 1974 (UK), the equivalent in the UK legislation of s 19(2) of the Act, in that members of the public outside the Science Museum building had been exposed to risks to their health due to an inadequate system of maintenance of the air conditioning system. This approach was confirmed by the Full Bench of the Industrial Relations Commission of New South Wales in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270. That case related to an appeal from the decision of Kavanagh J convicting the appellant, AbiGroup Contractors, in relation to five charges arising from the 1995 Kogarah Gas Disaster. The Kogarah Gas Disaster involved two gas explosions near Kogarah railway station on 4 December 1995 which claimed two lives and resulted in 16 others being injured, including officers from the New South Wales Police Force and Fire Brigade who attended the scene. The charges resulting from the Kogarah Gas Disaster included two charges for failing to ensure the health and safety of its employees and non-employees at its place of work, starting from the day on which the gas supply was disconnected by AGL Gas Networks at the defendant’s request. The gas supply line was cut and capped within one metre of the alignment of the buildings intended for demolition, which left approximately two metres of the charged gas supply line within the Kogarah station site where construction was intended to occur. The appellant submitted that her Honour erred in finding the defendant guilty in relation to those two charges because any relevant “risk” would only arise from the presence of a charged gas line in the vicinity of demolition and construction work involving the use of heavy machinery and equipment. However, no such 42
Tooma’s Annotated Work Health and Safety Act 2011
[19.30]
Part 2 – Health and safety duties
s 19
construction work took place on that day. In dismissing that aspect of the appeal, their Honours Wright P, Walton VP and Staunton JJ said at [54]–[55]: We do not consider that the appellant’s submissions in this area of its appeal should be accepted. We consider that her Honour correctly found … that there was a relevant risk to the health and safety of employees and other persons …The conclusion that [the duty of care provisions of the 1983 NSW Act] are concerned with not merely present danger but also risk to the health and safety of employees and non-employees, in the latter case, arising from the conduct of the employer’s undertaking at the employer’s place of work, is plain from the text of both statutory provisions.
In Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales (2010) 78 NSWLR 94, Spigelman CJ (with whom Beasley and Basten JJA agreed) held at [67]: In my opinion, the word “risks” in s 8(2) [the predecessor of s 19(2) in the Occupational Health and Safety Act 2000 (NSW)] also refers to the possibility of danger.
His Honour went on to explain that the word “exposed”, which appeared in the predecessor NSW duty and which has been replaced in s 19(2) with “put at” in the context of the risk, requires sufficient proximity to the source of the risk at the relevant time or times for that risk to possibly impinge upon the relevant person’s health and safety: Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales (2010) 78 NSWLR 94 per Spigelman CJ at [67]. “Not put at risk” is a narrower standard than “ensure health and safety” but is sufficiently broad to capture any risk with sufficient proximity to the person which makes the possibility of danger real and not too remote or fanciful. For distinction between the standards see the Explanatory Memorandum of the model Act at [81]. See further R Johnstone and M Tooma, Work Health and Safety Regulation in Australia (Federation Press, Sydney, 2012), pp 62–63. In Inspector Peter Beacham v BOC Ltd [2007] NSWIRComm 92, the defendant was convicted and fined $140,000 in relation to an explosion to an acetylene plant on the defendant’s site, notwithstanding that there was no one in the vicinity of the plant at the time of the explosion. This case involved an incident at the defendant’s Wetherill Park premises in New South Wales. The defendant manufactured a number of industrial gases at the plant, including acetylene. On the day of the incident, an experienced operator neglected to close a water supply valve while shutting down the plant. However, the build up of water over 13 hours resulted in water backfilling into the generator producing acetylene and building pressure inside the feed hopper. The build up resulted in an explosion blowing off the lid of the hopper. Acetylene gas escaped and its vapour ignited. There was a second ignition 20 minutes later. Kavanagh J held at [15]–[17]: The defendant submitted it had an extensive system in place for ensuring safety in relation to the acetylene generation process. … There must be the most rigorous implementation of the systems in place. Once again this offence shows that even where there are careful and considered safe procedures in place the rigorous training of employees in the implementation of that devised system on site is a key element to a commitment to a safe workplace. Maintenance, employee training and the procedures for safe working must be respected and adhered to. © 2017 THOMSON REUTERS
43
s 19
Work Health and Safety Act 2011 (NSW)
[19.30]
While causation is relevant to the question of liability, the relevant causal nexus is between one or more of the failures alleged against the defendant in the particulars of the charge and the exposure to risk to health and safety of the worker or person, particularised in the charge: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [127]. A duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety, so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable: s 17. Inherently risky occupations and third party criminal conduct The fact that a defendant operates in a high-risk environment or that the commission of the offence arose from an illegal act by a third party does not in any way reduce the defendant’s obligations under the Act. To the contrary, the fact that the defendant operates in a high hazard environment places a greater onus on them to ensure as far as is reasonably practicable the health and safety of their employees (and others) in that environment. That is because, faced with known risks, more is expected of the defendant on a proper application of the steps prescribed by s 18. In WorkCover Authority of NSW v Manildra Park Pty Ltd [2007] NSWIRComm 35, Marks J said at [12]: It is a trite observation that the more dangerous the activity being undertaken, the greater should be the level of care and vigilance utilised to ensure that the obligation to provide a safe working environment is met.
In WorkCover Authority (NSW) v NSW Police Service [No 2] (2001) 104 IR 268, the defendant submitted that the risk to health and safety of police officers was an inherent part of their occupation and that in those circumstances it could not be eliminated. In rejecting that submission, Hungerford J said at [23]–[24]: I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say … that “the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of [the criminal suspect who shot the officers]” … Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees [employers have a duty to ensure the health, safety and welfare of employees] … Although the defendant may not be able to “control”, or otherwise affect, the conduct of persons ... who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. In the same way, ... comparable steps should be taken by employers in satisfying the statutory duty in respect of their employees liable to the effects of unlawful action by criminals, such as, as identified by [counsel to the defendant], those employees engaged in “service stations, pharmacies, shops, banks, cash delivery, cigarette trucks, buses and taxis”. In identifying those occupations, [counsel to the defendant] submitted as to them that “there is a known history of violent and unlawful attacks by criminals, for which negligible precautions are provided by employers”. Senior counsel added that in the 44
Tooma’s Annotated Work Health and Safety Act 2011
[19.30]
Part 2 – Health and safety duties
s 19
emergency services (fire brigade, bush fire brigade and emergency services) the “employees are inevitably exposed to the risks of injury and death by the very nature of their duties” so that “employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken”. There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety. The submission is no answer to the present charges. I reject it.
See also Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 where the Department of Community Services was found guilty of breach of s 8(1) in relation to an incident where one of its employees was stabbed by a client during an access visit to her three children who had been removed from her care by the Department. The Department was fined $200,000: Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201. In Financial Sector Union NSW Branch (Geoff Derrick) v Westpac Banking Corporation [2006] NSWIRComm 76, Staunton J said at [24]–[33]: The day to day operations of retail banking have long been recognised in the community as prime targets for robbery. As such, they represent workplaces with inherent risks to safety for staff employed in them and the public who use them…notwithstanding the security measures in place to deal with such an occurrence, the risk of a hold-up and breach of the cash handling area in a bank premises by an offender was foreseeable.
This case involved an armed hold-up at Westpac’s Avalon branch on 21 September 2004. The hold-up occurred when three men entered the Avalon branch; one of them climbed onto the counter and over the anti-jump barrier and bulkhead, to the employee side of the counter and demanded access to the cash handling area. A second man then gained access to that area and took money from the safe and removed money from three teller drawers. In total, approximately $25,000 was stolen. Westpac was convicted of breaching the duty of care under the pre-model Act NSW Act and fined $145,000. Similarly, in Derrick v Australian and New Zealand Banking Group Ltd [2003] NSWIRComm 406 the defendant bank was prosecuted and convicted in relation to an armed hold-up at its Brookvale branch. The defendant’s anti-jump barriers (barriers intended to protect staff and cash from armed offenders in the event of a hold-up) did not extend to the ceiling. The armed offenders gained access to cash handling areas by climbing over barriers. A similar robbery at the defendant’s Katoomba branch six months earlier had highlighted the hazard posed by the deficiency in the anti-jump barriers. The bank pleaded guilty and was fined $156,000. See also Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 where the NSW Fire Brigades were convicted of breaching the duty of care under the pre-model Act NSW laws in relation to its response to a fire at an edible oil refinery and seed oil extraction plant. The NSW Fire © 2017 THOMSON REUTERS
45
s 19
Work Health and Safety Act 2011 (NSW)
[19.30]
Brigades were fined $200,000 in relation to the incident: Inspector MayoRamsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168. Duty extends to situations of civil disorder In Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138, the NSW Police Force was convicted and fined $100,000 in relation to the February 2004 Redfern Riot. The incident occurred between 3.20 pm on 15 February 2004 and 4.30 am on 16 February 2004, in an area bounded by Cleveland, Abercrombie, Lawson, Vine, Eveleigh, Louis and Caroline Streets, Redfern, NSW, an area known as “the Block”. Some 217 police officers attended the scene during the “Redfern Riot”. While attempting to contain the crowd and restore public order, some 42 officers sustained various injuries ranging from psychological damage to various forms of physical injury including bruising, cuts and abrasions. At least one officer was rendered unconscious. The beginning of the incident was marked by a number of projectiles being thrown at an unmarked police vehicle. Police were asked to attend the scene and to perform low impact, high visibility policing in an effort to deter any criminal activity. However, by approximately 7 pm, the seriousness of the situation had escalated. The roller shutters at Redfern Railway Station were closed due to the public disturbance in the vicinity. At approximately 9 pm, approximately 20 to 30 people began running towards the police, throwing bricks, bottles and other objects. A Signal 1, a signal used in a life-threatening situation, was broadcasted. Personal protective equipment was issued to the police officers at the scene. Riot protection gear was also subsequently issued. The situation continued to escalate with the rioting crowd numbers growing. At 9 pm the crowd attempted to set the Redfern Railway Station alight. The Operational Support Group (OSG) was called in. The OSG is a specialist group within the NSW Police Force who specialise in dealing with crowd control and riots. Some 34 OSG officers in total attended the incident. Part of Redfern Railway Station was set alight by the rioters. By approximately 2 am, the fire in the ticket office of the Redfern Railway Station was brought under control by the Fire Brigade. The crowd was brought under control at 3.40 am. Some of the injuries to the police officers were sustained because they were not provided with adequate personal protective equipment. The personal protective equipment issued was incomplete and inadequate for the purpose of totally protecting the officers and was poorly maintained. The riot gear was obsolete and had been poorly maintained. Only OSG personnel were issued with fire retardant clothing. One officer was unable to lower the visor on his helmet as it was so scratched that he was unable to see through it. Later, the visor on the helmet partially broke off when an object hit his helmet. He could also feel the impact of the bricks and the pavers being thrown on his shield and helmet. The defendant had been aware of the deficiencies since March 2003. Although OSG employees were specialists in riot control, most were not aware of the Standard 46
Tooma’s Annotated Work Health and Safety Act 2011
[19.30]
Part 2 – Health and safety duties
s 19
Operating Procedure that applied to the Block. The defendant was prosecuted for breach of its duty of care for failing to provide such personal protective equipment to its employees so as to ensure their health, safety and welfare at work; failing to provide sufficient instruction, information and training to its employees in the use of and the proper operation of personal protective equipment; and failing to provide adequate training, information and instruction to the employees in relation to dealing with the unplanned civil disorder at Redfern. The defendant pleaded guilty to the charge. In sentencing the defendant, Boland J (as he then was) said at [23]–[26]: Dealing with incidents of public or civil disorder is obviously a dangerous business, even for police who are properly trained and equipped. … There was clearly a risk of very serious injury to employees of the defendant from being hit by the various missiles being thrown at them over a period of many hours by a large and angry mob or being burnt by Molotov cocktails. Some 42 officers attending the incident were injured, although fortunately none seriously enough to be hospitalised for any length of time. The failures by the defendant to ensure safety as particularised in the charge amount to serious failures. Given the dangers faced by police officers in dealing with a riot there is no question that they should be provided with the equipment that best protects them from injury and training in the use of that equipment as well as training in dealing with civil disorder incidents. Whilst the OSG had personal protective equipment, there was not enough of it. There was other personal protective equipment although it was defective or in some cases obsolete or otherwise inadequate or incomplete. As the prosecutor submitted, the very purpose of personal protective equipment was to protect employees against the risk of injury – the equipment that was provided did not achieve that result because it was either defective or incomplete…[S]ome employees were trained in the use of that equipment, but again not all of them. Nor were all employees trained in dealing with civil disorder. …In the absence of adequate personal protective equipment there was every prospect of serious consequences for the health and safety of officers.
Duty extends to careless workers The primary duty of care extends not only to the ideal worker but to the careless, inattentive and inadvertent worker as well: Rail Infrastructure Corporation v Inspector Page [2008] NSWIRComm 169; Ferraloro v Preston Timber Ltd (1982) 42 ALR 627; Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; WorkCover Authority of NSW v TRW [2001] NSWIRComm 52 and SafeWork v Omega International [2016] NSWDC 11. In Ferraloro v Preston Timber Ltd (1982) 42 ALR 627, the Court said (at 629) of the predecessor duty of care which was imposed on employers that they were “bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee performing his allotted task”. Similarly in WorkCover Authority (NSW) v Maine Lighting Pty Ltd (1995) 100 IR 248, Bauer J said at 257: The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as foreseeable technical risks in industry. © 2017 THOMSON REUTERS
47
s 19
Work Health and Safety Act 2011 (NSW)
[19.30]
In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31, the Full Bench of the Industrial Relations Commission of NSW said [15]: [The employer’s duty] requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing.
A similar point was made in WorkCover Authority of NSW v TRW [2001] NSWIRComm 52, where Boland J said at [13]: I note what could only be described as the foolhardiness of the two fitters in proceeding to assemble and operate the thermal lancing equipment without proper training and without donning the protective clothing that was available … However, the duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable.
His Honour emphasised this point again in Inspector Forster v A B John Pty Ltd t/as Peel Valley Machinery Service [2003] NSWIRComm 116 where his Honour observed at [16]–[17] that: The cases are replete with examples of persons who have not adopted a safe system of work where such a system was available. It cannot be assumed by an employer that even experienced and mature employees will adopt a safe system of work. Most certainly it cannot be assumed this will be the case where the employees have not received instructions or are not subject to supervision as to the safe system of work.
By contrast see Work Cover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171. The carelessness or negligence of the injured worker may, however, be relevant in sentencing on the issue of the culpability of the offender: SafeWork NSW v Omega International [2016] NSWDC 11 and SafeWork NSW v Pegela Rural Enterprises Pty Ltd [2016] NSWDC 142. In SafeWork NSW v Pegela Rural Enterprises Pty Ltd [2016] NSWDC 142 the defendant was prosecuted and fined $90,000 in relation to a fatal incident where an experienced worker was crushed between a skid steer and a back hoe he had incorrectly attached to it. Kearns J held at [31]: In this instance, critical to the risk and the resultant incident, was the failure to attach the hoe correctly to the skid steer. The attachment was done by [the deceased]. That occurred in this case on a background of [the deceased] being an experienced earthmoving operator. He was experienced in the operation of the skid steer. He was experienced in attaching and detaching implements, but not the hoe, to the skid steer. He had done so shortly before attaching the hoe on this occasion. Every attachment and detachment required the operation of a handle to secure and release a retaining pin. That task was physically a simple one. That task was not done on this occasion. The reason for that is unknown. This was the critical failure that caused the incident. The attachment process was undertaken by [the deceased] shortly after the process of attachment was explained to him and he expressed his understanding of it. The risk was foreseeable but, in the circumstances described, the manner of the occurrence of the incident lies very low on a scale of foreseeability. 48
Tooma’s Annotated Work Health and Safety Act 2011
[19.40]
Part 2 – Health and safety duties
s 19
Reliance on the expertise of specialists Where reliance is responsibly placed on a specialist contractor to perform a task which demonstrably falls within the contractor’s area of expertise and outside the principal’s area of expertise, the duty of the principal is limited to reasonably verifying that the task has been carefully and safely performed by the specialist contractor: Tobiassen v Reilly (2009) 178 IR 213; [2009] WASCA 26 at [62]; Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492; Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117. See by contrast Inspector Seneviratne v Qantas Airways Ltd [2006] NSWIRComm 69 where Boland J (as he then was) held at [34]–[35] that while the defendant did satisfy itself that the contractor was a company with appropriate expertise to do the work and it did not need to have the relevant expertise, this does no relieve the defendant of its obligations as it would have been open to Qantas, having obtained the procedures from the contractor in writing to seek independent advice as to the safety of the written procedure and to have the fuel transfer overseen or monitored by itself or an independent expert or a suitably trained supervisor nominated by the contractor. Relevantly, however, the Qantas decision was uncontested in that the defendant pleaded guilty to the charge.
Proof of elements Onus of proof [19.40] Notwithstanding the nature of the primary duty, the prosecution must prove each element of the offence to the requisite criminal standard – that is, beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. This includes the reasonable practicability element. Charge must identify relevant failure In Kirk Group v Industrial Relations Commission of NSW [2010] HCA 1, the High Court held that a charge must identify the relevant failure on the part of the defendant which is said to constitute the offence. The case was concerned with the predecessor duty of care provisions under the Occupational Health and Safety Act 1983 (NSW) – ss 15 and 16 of that Act correspond with ss 19(1) and 19(2) respectively of the Work Health and Safety Act 2011 (NSW). In their joint judgement at [14]–[15] their honours French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that: A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer’s obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. © 2017 THOMSON REUTERS
49
s 19
Work Health and Safety Act 2011 (NSW)
[19.50]
Person conducting a business or undertaking [19.50] The duties imposed by s 19 apply only to persons conducting a business or undertaking. It follows therefore that one of the elements that the prosecution must prove beyond reasonable doubt is that the defendant was a person conducting a business or undertaking. A person conducting a business or undertaking is defined in s 5 of the Act. Clause 7 of the Regulation excludes certain persons from the scope of the definition of a person conducting a business or undertaking. See discussion at [5.10] and following.
Standard of duty [19.60] The standard of care required by the primary duty is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 related to a prosecution of Pacific Dunlop in relation to six charges under s 21 of the former Occupational Health and Safety Act 1985 (Vic), and one charge under the now repealed Occupational Health and Safety (Machinery) Regulations 1985 (Vic). The prosecution related to a fatal accident at Pacific Dunlop’s Footscray factory where a fourth year apprentice was killed while working on a machine. The machine had a hopper intake door and a discharge door. Electrical modifications had been made to the machine with a view to ensuring that the hopper door would automatically close and remain closed when the discharge door was open. When the machine was being used for production, a conveyor belt limited, but did not completely bar, access to the hopper door. On the day of the accident, the machine was not being used for production and the conveyor belt had been pushed aside, leaving the hopper door unguarded. The worker was required to modify the machine’s pneumatic system so as to override the electrical modifications and allow the hopper door to be manually operated. This work was to be effected on a control panel near the machine. It did not require work on the machine itself. The worker, however, had occasion to go to the machine and was fatally injured when the hopper door closed, trapping the upper part of his body inside. The charges were heard in the Broadmeadows Magistrate’s Court at first instance. The Magistrate dismissed the charges under the s 21 of the former Victorian OHS Act but convicted Pacific Dunlop in relation to the charge under the Regulations. The defendant and prosecutor both appealed against the Magistrate’s decision. The Full Court of the Supreme Court (Kaye and Beach JJ, Ormiston J dissenting) dismissed the defendant’s and prosecutor’s appeals. The parties appealed to the High Court. Dawson, Toohey and Gaudron JJ (with whom Brennan and Deanne JJ agreed in separate judgments) held at 257: 50
Tooma’s Annotated Work Health and Safety Act 2011
[19.70]
Part 2 – Health and safety duties
s 19
The Act is silent as to the onus of proof in relation to the offence created by s 21. That is not unusual for the rule as to the onus of proof in a criminal proceeding is clear, namely, that “it is the duty of the prosecution to prove [a defendant’s] guilt subject … to the defence of insanity and subject also to any statutory exception”.
Their Honours then considered whether the words “so far as practicable” in s 21 of the former Victorian OHS Act were such a statutory exception. In holding that “so far as practicable” was an element of the offence (and not a statutory exception) their Honours said at 262–263: There is one matter which, in our opinion, tells decisively against a construction of s 21 of the Act which would place the onus of proof in relation to practicability on an employer. The obligation imposed by s 21(1) – even as elaborated in s 21(2) … – is perfectly general. And, as the definition of “practicable” shows, the question of practicability is one which must be answered by a consideration of the means by which a risk can be removed or mitigated. … [W]here a general obligation is imposed, the means which might practicably be adopted are confined only by the nature of the risk or hazard. That is because … if it were established that one or even several methods were impracticable, it would not follow that the workplace was as safe as practicable. If the onus is on an informant, the issue is confined by the means which the informant claims were practicable in the circumstances. If the onus is on a defendant, the issue, if confined at all, is confined only by the “means of making the place safer which the ingenuity of … counsel can suggest” in the course of cross-examination … It is impossible to read into s 21 of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination.
See also Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 for a discussion of the “reasonable practicability” standard.
Worker [19.70] The duty imposed by s 19(1) is owed to workers directly engaged by the person conducting a business or undertaking, caused to be engaged by the person conducting a business or undertaking, or workers whose activities can be influenced or directed by the person conducting a business or undertaking. The term “engaged” must be given a broad interpretation to give effect to the objects of the Act. It is broad enough to accommodate any arrangement which provides occupation for a person: Moore v Fielders Steel Roofing Pty Ltd [2003] SAIRC 75. Section 19(1) extends the duty to workers “directly” engaged and “caused to be engaged”. As such, there is nothing in the section which would warrant a restriction of the duty to contractual relationships or privity of contract: R v ACR Roofing Pty Ltd (2004) 11 VR 187. “Worker” is defined in s 7 of the Act to mean anyone who performs work for a person conducting a business or undertaking including an employee, a contractor, a subcontractor, an employee of a contractor or subcontractor, a labour hire worker, an outworker, a student on work experience, an apprentice or trainee and a volunteer: s 7. See discussion at [7.10] and following. For a prosecution under s 19(1) to succeed, the onus is on the prosecution to prove, beyond reasonable doubt, that the person exposed to risk was a relevant © 2017 THOMSON REUTERS
51
s 19
Work Health and Safety Act 2011 (NSW)
[19.80]
worker of the defendant – that is a worker engaged directly by them, caused to be engaged by them or a worker whose activities the defendant could influence or direct. See further R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy (3rd ed, Thomson Reuters, Sydney, 2012), pp 273–285
Risk from work carried out as part of the conduct of the business or undertaking [19.80] Section 19(2) is the broadest expression of the duty of care. The lynchpin of liability under s 19(2) is risk arising from work in the conduct of the business or undertaking. Work “Work” is not a defined term in the Act and therefore takes on its ordinary meaning of “exertion directed to produce or accomplish something”: Macquarie Dictionary, 5th edition, 2009. The context and objects of the Act require the word “work” to be given a broad meaning to capture the myriad of business activities undertaken as part of a business undertaking. A bank employee is as much undertaking work in approving a loan, lending money or exercising a right under a security as a labourer on a construction site or a packer on a production line. All three workers are exerting effort to produce or accomplish something in furtherance of the business or undertaking of the person that engaged them – the person conducting the business or undertaking. As such, any risk arising from that work will be caught by the s 19(2) duty. Conduct of business of undertaking The question of whether the work was carried out as part of the conduct of a person’s business or undertaking is a question of fact to be determined on a case-by-case basis notwithstanding the need to interpret the duty broadly: R v Associated Octel Co Ltd [1996] 4 All ER 846; [1996] 1 WLR 1543. See also WorkCover Authority (NSW) v Technical and Further Education Commission (1999) 92 IR 251 and Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84; [2000] NSWIRComm 239. The issue of what is the relevant “business or undertaking” arose in WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2015] NSWDC 369. In that case the defendant was a bricklaying contractor engaged by a principal contractor, JMW Developments Pty Ltd, to lay bricks as part of the construction of a two storey mixed development. The building was being built with besser blocks. In the process of laying besser blocks, at about every second course, horizontal steel reinforcing bars need to be laid in place. Besser blocks are about 400mm x 200mm. They are 150mm, 200mm or 300mm in height (T36.37). They are hollow. There is a section of block that goes across the centre of the hollow, being across the short side of the block. Accordingly they have two hollow sections. Like bricks, they are laid offset. To complete the construction of a wall built of besser blocks, it is necessary that those hollows be filled with a concrete mix from ground to top. Like many forms of concrete mix, this mix requires steel reinforcing bars. These bars, in this case, were to be 52
Tooma’s Annotated Work Health and Safety Act 2011
[19.80]
Part 2 – Health and safety duties
s 19
inserted from the top of the wall when the erection of the wall was complete. The task of filling the hollows with the concrete mix was to be undertaken by a concreter. The contract between E&T Bricklaying and the principal contractor, JMW Developments was silent on the obligation of placing steel reinforcing bars. While the placing of steel bars was usually undertaken by the bricklayer, the placing of vertical bars was typically part of the concreter’s work. Notwithstanding that, the representative of the principal contractor asked the representative of the bricklaying contractor, the foreman, to place the vertical reinforcing steel which he agreed to do. A worker engaged by E&T Bricklaying received an electric shock while handling steel reinforcing bars while on a metal scaffold when the steel came into contact or close proximity to nearby low voltage electrical lines. The issue arose whether the work being conducted by the injured worker at the time of the incident formed part of the “business or undertaking” of E&T Bricklaying given that it was not work that they were engaged to perform. His Honour Scotting J held at [47]–[48]: I think Mr Rahimi [the injured worker] was “at work in the business or undertaking” of E & T. He was at work as he was at the work site and was doing a task which was integral to the construction project being undertaken. In this case, this was work in the business or undertaking of E & T… E & T would have been within its rights under its contract with JMW to refuse Mr Dagher’s [JMW’s representative] request [to place the vertical reinforcing bars]; Mr Kose [the E&T Bricklaying foreman] chose to accede to Mr Dagher’s request and assist him; in doing this, E & T embraced the placement of vertical bars as part of its work for the day. It was thus part of its “business or undertaking”. Mr Rahimi was at work in E & T’s business or undertaking and he undertook the work pursuant to a request to him by Mr Kose.
In WorkCover Authority (NSW) v Techniskil-Namutoni Pty Ltd [1995] NSWIRComm 127, Cahill ACJ held (at p 8): Although the work being performed at the time of the accident may have been the direct responsibility of a sub-contractor, who had engaged direct employees to assist in performing such work, that does not detract from the overall concept of an undertaking being conducted by Techniskil of which the work in question forms part ... In my opinion, the circumstances of a particular work site may reasonably lead to the conclusion ... that more than one employer is conducting an undertaking thereon.
In Whitaker v Delmina Pty Ltd (1998) 87 IR 268, the Victorian Supreme Court considered the meaning of the phrase “conduct of the employer’s undertaking”. In that case, Hansen J said at 280–281: The expression is broad in its meaning. In my view such a broad expression has been used deliberately to ensure that the section is effective to impose the duty it states … The word must take its meaning from the context in which it is used. In my view it means the business or enterprise of the employer … and the word “conduct” refers to the activity or what is done in the course of carrying on the business or enterprise. A business or enterprise, including for example that conducted by a municipal corporation, may be seen to be conducting its operation, performing work or providing services at one or more places, permanent or temporary and whether or not possessing a defined physical boundary. The circumstances must be as infinite as they may be variable. © 2017 THOMSON REUTERS
53
s 19
Work Health and Safety Act 2011 (NSW)
[19.80]
The case was an appeal from a decision in the local court dismissing an improvement notice. The improvement notice sought to require a horse-riding ranch, which was hiring out horses to the public for rides outside its premises, to have their customers accompanied by a supervisor. Hansen J overturned the decision holding that the scope of the ranch’s undertaking extended beyond ranch premises and required the ranch to ensure that riders were not exposed to risks to their health or safety during the ride. In R v Associated Octel Co Ltd [1996] 4 All ER 846; [1996] 1 WLR 1543 Lord Hoffmann who delivered the judgment of the House of Lords said at 1547–1549: The question, as it seems to me, is simply whether the activity in question can be described as part of the employer’s undertaking. In most cases, the answer will be obvious. Octel’s undertaking was running a chemical plant at Ellesmere Port. Anything which constituted running the plant was part of the conduct of its undertaking … the question of whether an employer may leave an independent contractor to do the work as he thinks fit depends upon whether having the work done forms part of the employer’s conduct of his undertaking. If it does, he owes a duty under section 3(1) to ensure that it is done without risk – subject, of course, to reasonable practicability, which may limit the extent to which the employer can supervise the activities of a specialist independent contractor.
In that case, the appellant operated a chemical plant. During an annual shut-down of the plant for maintenance, a contractor was engaged to repair the lining of a tank within the chlorine plant. One of the contractor’s employees was badly burned during the process. The appellant at first instance was convicted under s 3 of the Health and Safety at Work Act 1974 (UK) which imposed a duty of care on employers with respect to other persons exposed to risk arising from the conduct of the employer’s undertaking. The appellant appealed. The Court of Appeal dismissed the appeal. On appeal to the House of Lords it was held that what had to be determined was whether the activity in question was part of the employer’s undertaking at its plant to have the chlorine tank repaired. The House of Lords held that it was. In R v Mara [1987] 1 WLR 87 Parker LJ considered whether the cleaning of a factory on a weekend was part of the factory owner’s undertaking. His Lordship said at 90–91: A factory, for example, may shut down on Saturdays and Sundays for manufacturing purposes, but the employer may have the premises cleaned by a contractor over the weekend. If the contractor’s employees are exposed to risks to health or safety because machinery is left insecure, or vats containing noxious substances are left unfenced, it is, in our judgment, clear that the factory owner is in breach of his duty under section 3(1). The way in which he conducts his undertaking is to close his factory for manufacturing purposes over the weekend and to have it cleaned during the shut down period. It would clearly be reasonably practicable to secure machinery and noxious vats, and on the plain wording of the section he would be in breach of his duty if he failed to do so. 54
Tooma’s Annotated Work Health and Safety Act 2011
[19.80]
Part 2 – Health and safety duties
s 19
This passage was applied with approval by the House of Lords in R v Associated Octel Co Ltd [1996] 4 All ER 846; [1996] 1 WLR 1543. Lord Hoffman (with whom Lords Mackay LC, Goff, Jauncey and Mustill agreed) said the following regarding the above passage at [1996] 4 All ER 851: I entirely agree and I draw attention to the language used by the judge. It is part of the conduct of the undertaking, not merely to clean the factory, but also to “have the factory cleaned” by contractors. The employer must take reasonably practical steps to avoid risk to the contractors’ servants which arise, not merely from the physical state the premises (there are separate provisions for safety of premises in section 4), but also from the inadequacy of the arrangements which the employer makes with the contractors for how they will do the work.
In Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58, Cahill VP said at [21.2]: I am of the view that the defendant’s connection with the site cannot be regarded as being at an end until a handover to the proprietor had been effected in circumstances where the proprietor’s project manager signified his satisfaction that the work required had been satisfactorily completed. Until that occurred, the demolisher, in this case the defendant, in my opinion was to be regarded as ... conducting an undertaking in relation to that place of work ...
In that case the defendant was a demolition and excavation business. It was contracted to demolish the Seabreeze Hotel near Tom Ugly’s Bridge in Sydney’s south. The defendant, in order to prevent debris from falling onto the footpath or roadway of the adjacent Princes Highway, hired a company to erect a hoarding. The hoarding was erected and secured to the face of the building to be demolished. The structural integrity of the hoarding was such that it would not be stable if it were a freestanding structure. The hoarding, when in that condition, was not stable and was not erected in accordance with the relevant Australian Standards. In due course, the connection between the hoarding and the building was severed by the defendant so as to allow the building to be demolished. No steps were taken by the defendant to contact the scaffolder to have them secure the structure of the hoarding (or remove it) and the defendant took no steps to itself secure the hoarding. Two days prior to the handover of the property to the owners, the hoarding collapsed in high winds onto the adjacent footpath and roadway causing damage to passing vehicles and minor injuries to the vehicles’ occupants. At the time of the accident, most but not all of the defendant’s work under the contract had been completed. However, the balance of the work was to be completed under a separate contract. Notwithstanding this, the defendant was held to have been conducting an undertaking at the relevant time and the risk to health and safety was held to have arisen from that undertaking. Similarly, in WorkCover Authority (NSW) v Morrison [2001] NSWIRComm 325 Walton J, VP held that a swimming pool builder was conducting an undertaking at a building site even though he had completed the construction of a swimming pool to the extent possible given the state of other construction at the site and had left the site for some five months at the date of the accident.
© 2017 THOMSON REUTERS
55
s 19
Work Health and Safety Act 2011 (NSW)
[19.90]
Codes of practice [19.90] Under s 275 of the Act, a code of practice is admissible in proceedings under the Act as evidence of whether or not a duty or obligation under the Act has been complied with: s 275(2). In that respect, the court may have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates and rely on the code in determining what is reasonably practicable in the circumstances to which the code relates: s 275(3). The following codes of practice have been approved: • Confined spaces • Hazardous manual tasks • How to manage and control asbestos in the workplace • • • •
How to manage work health and safety risks How to safely remove asbestos Labelling of workplace hazardous chemicals Managing noise and preventing hearing loss at work
• Managing the risk of falls at workplaces • Managing the work environment and facilities • Preparation of safety data sheets for hazardous chemicals • Work health and safety consultation, cooperation and coordination. In Safe Work New South Wales v Austral Hydroponics [2015] NSWDC 295, the failure to comply with the Managing Risk of Falls at Workplaces Code of Practice was relied upon as evidence of a breach of the primary duty of care.
Work environment [19.100] Section 19(3)(a) provides that the PCBU’s primary duty of care includes ensuring so far as is reasonably practicable the provision and maintenance of a work environment without risks to health and safety. In Safe Work (NSW) v JSN Hanna Pty Ltd [2016] NSWDC 117 a young worker caused to be engaged by the defendant was injured when he fell 12 meters while working on a scaffold. The worker stood on a piece of timber intended as formwork when the timber gave way under his weight. There was no guard rail at the edge of the scaffold to prevent the formwork to be used as a work platform in the manner that the injured worker used it. Scotting J held at [41] that “in the absence of guard rails it was objectively foreseeable that [the hop-up] could have been used as a work platform” and that “the provision of guard rails would have gone close to eliminating the risk”. The defendant was convicted and fined $87,500.
Safe plant [19.110] Section 19(3)(b) provides that the PCBU’s primary duty of care includes ensuring so far as is reasonably practicable the provision and maintenance of safe plant and structures. 56
Tooma’s Annotated Work Health and Safety Act 2011
[19.120]
Part 2 – Health and safety duties
s 19
Plant includes any machinery, equipment, appliance, container, implement and tool; any component of any of those things, and anything fitted or connected to any of those things. A ladder is plant. In Safe Work New South Wales v Austral Hydroponics [2015] NSWDC 295 the defendant pleaded guilty and was found guilty of breaching their duty of care in relation to an accident where a worker fell from a height of 2.5 meters while removing pliable plastic sheets from the roof of a hot house. The worker was using a damaged domestic ladder which should not have been used in an industrial setting. The ladder was extended and unsecured: Safe Work New South Wales v Austral Hydroponics [2015] NSWDC 295 at [16]. Similarly, in WorkCover Authority of NSW v Karemen Pty Ltd [2016] NSWDC 201, a motor vehicle repair business was convicted and fined $75,000 in relation to a fatal incident where a mechanic was crushed underneath a vehicle he was working on when the hoist holding up the vehicle collapsed. An inspection of the hoist after the incident revealed that the hoist arms could be moved in either direction despite being locked into position contrary to the relevant standard AS/NZ 1418.9 Cranes (including hoists and winches) – vehicle hoists.
Safe systems of work [19.120] Section 19(3)(c) provides that the PCBU’s primary duty of care includes ensuring so far as is reasonably practicable the provision and maintenance of safe systems of work. A breach may occur even if the incident occurred through human error. In SafeWork (NSW) v Freedom Foods Pty Ltd [2016] NSWDC 153, the defendant was convicted and fined $75,000 in relation to an incident which resulted in de-gloving of the hand and the amputation of four fingers of a worker when he removed an in-feed chute and lost his footing while attempting to unblock a blockage on a machine. The worker was new to the role and was receiving on the job training but was working alone at the time of the incident. While the incident would not have occurred had the worker not removed the in-feed chute to unblock the machine, there was no system in place for preventing unauthorised removal of the in-feed chute of the machine. A breach may also occur even if the system of work adopted is standard industry practice of even “best practice”. In Inspector Nash v MacMahon Mining Services Ltd [2016] NSWDC 171, a worker was fatally injured on a mine site when his head was struck while riding a large steel bucket known as a kibble. The kibble was being raised through a platform. The aperture through which the kibble was to pass had a diameter of 1.68 metres. The kibble had a diameter of 1.61 metres. The deceased’s head was outside the confines of the kibble as he was seeking to communicate with a worker and his head was caught in the pinch point between the kibble and the platform. The only control in place was to instruct workers to stay wholly within the kibble while being transported. The evidence was that this was consistent with industry practice in Australia and globally and that all prior reviews conducted internally and © 2017 THOMSON REUTERS
57
s 19
Work Health and Safety Act 2011 (NSW)
[19.130]
externally including by the regulator had failed to identify this system of work as an issue prior to the incident. Notwithstanding this, the defendant was convicted and fined $75,000. The system of work must not only contemplate planned work but also factor in risks arising from change. This is known as management and also forms part of the proactive duty to consult coordinate and cooperate imposed on PCBUs by s 46. In SafeWork NSW v Ceerose Pty Ltd [2016] NSWDC 184, a principal contractor was convicted and fined $300,000 in relation to an incident where a skylight fell 11 metres on a worker, killing him. The skylight was being installed by a subcontractor. An exclusion zone was in place while the subcontractor was on site performing work. The installation of the skylight was incomplete and the skylight was not completely secured in place when the subcontractor left the site. The incident occurred when unrelated crane operations were being conducted in the area. The subcontractor was also convicted and fined $225,000: SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183. The system of work must not only contemplate risks arising from the immediate working environment but also how the work may create risks in other area that might impact the health and safety of workers. In Safe Work NSW v Essential Energy [2016] NSWDC 219, an electricity utility was convicted and fined $300,000 in relation to the electrocution of one of its line workers during the removal of a de-energised conductor that became energised when it came into contact with a live high voltage line some 450 metres away from the work area, which was not visible from the work site as it was being placed on the ground for removal. See also SafeWork NSW v Newcastle Stevedores Pty Ltd [2016] NSWDC 294.
Safe use, handling, and storage of plant, structures and substances [19.130] Section 19(3)(d) provides that the PCBU’s primary duty of care includes ensuring so far as is reasonably practicable the safe use, handling, and storage of plant, structures and substances.
Adequate facilities [19.140] Section 19(3)(e) provides that the PCBU’s primary duty of care includes ensuring so far as is reasonably practicable the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities.
Information, training and instruction [19.150] Section 19(3)(f) provides that the PCBU’s primary duty of care includes ensuring so far as is reasonably practicable the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking. See also Safe Work New 58
Tooma’s Annotated Work Health and Safety Act 2011
[19.150]
Part 2 – Health and safety duties
s 19
South Wales v Austral Hydroponics [2015] NSWDC 295 (discussed above at [19.100]) where failure to provide adequate training and instruction was a particular of the charge. Training must be meaningful. That issue was considered by the New South Wales Court of Criminal Appeal in Attorney General of NSW v Tho Services Ltd (in liq) [2016] NSWCCA 221. The case related to an appeal from a decision of Justice Curtis in the New South Wales District Court to dismiss a charge pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The incident underpinning the first instance prosecution related to an injury to a year-10 work experience student placed at the defendant’s workplace. The student suffered eye damage when he undertook welding wearing a safety helmet and safety glasses but failed to pull down the visor while welding, exposing him to the risk of flash burn. Harrison J, with whom Hoeben CJ and Campbell J agreed, said at [64]: There is in my view an irreconcilable tension between his Honour’s finding that the respondent took all reasonable institutional measures to ensure compliance with the Act on the one hand and the fact that notwithstanding those measures a work experience student was severely injured on the other hand. With respect to his Honour, he has approached the matter somewhat mechanistically, eliding the respondent’s perfunctory performance of its statutory obligations with the absence of responsibility for what occurred. It is clear that at some point during the day in question, Mr Thomas was welding in full view of the respondent’s employees without a protective visor in place. A more obvious failure of safety protocols is difficult to imagine. It therefore lies ill in the mouth of the respondent in those circumstances to say that the necessary induction process had been carried out or that the respondent’s supervising employees had been properly trained. Such an approach would unacceptably see the elevation of form over substance to the possible detriment of practical safety implementation and would in effect authorise or excuse the less than optimal discharge of the obligation to take reasonable and proper care for the safety of employees and, in the present case, work experience students.
The appeal was upheld and the defendant was fined $240,000.
Continuing obligation The obligation to provide instruction is a continuing obligation: Attorney General of NSW v Tho Services Ltd (in liq) [2016] NSWCCA 221 per Harrison J at [70], with whom Hoeben CJ and Campbell J agreed.
Failure to supervise contractor results in liability In Safe Work (NSW) v Schaefer Systems International Pty Ltd [2016] NSWDC 321, the defendant was convicted and fined $120,000 for failing to supervise a contractor engaged to provide a racking system at its premises. One of the workers engaged by a contractor of the defendant fell 6 metres from an unguarded side of a conveyor recently installed as part of the works. There were no employees of the defendant on-site at the time of the incident. A representative of the defendant had last attended the site on several months earlier and on that occasion he gave a general direction to the contractor that handrails needed to be installed on all of the finished areas of the mezzanine level where the racking was being installed. The safe work method statement © 2017 THOMSON REUTERS
59
s 20
Work Health and Safety Act 2011 (NSW)
[19.160]
prepared by the contractor and reviewed by the defendant noted a hazard of falling from heights when working at height to lay floors. The control measures specified were to lay temporary sheets to use as a base while laying sections of floor, to ensure that workers do not stand within 1 metre of the edge and for workers to work on their hands and knees if required to work near an unguarded edge. The defendant’s systems did not require its site supervisor to check whether control measures had been put in place by contractors. 23.1
Health monitoring [19.160] Section 19(3)(g) provides that the PCBU’s primary duty of care includes ensuring so far as is reasonably practicable that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
Health monitoring in relation to chemical exposure Chapter 7, Part 7.1, Division 6 of the Regulations (cll 368 – 378) provides for heath monitoring in certain circumstances of exposure to hazardous chemicals. Health monitoring is also required for lead risk work: cll 405 – 418. Similar obligations also apply to asbestos removal work: cll 435 – 444.
Work environment In relation to the monitoring of the work environment, cl 50 provides for monitoring airborne contaminants levels. The obligation arises if the PCBU is not certain, on reasonable grounds, whether or not the airborne concentration of a substance or mixture at the workplace exceeds the relevant exposure standard or where monitoring is necessary to determine whether there is a risk to health: cl 50(1). See also cl 482 on air monitoring in relation to asbestos related work and cl 475 regarding asbestos removal work requiring class A license.
Noise Audiometric testing is required in relation to any worker who is frequently required by the PCBU to use personal protective equipment to protect the worker from the risk of hearing loss associated with noise that exceeds the exposure standard for noise: cl 58. DIVISION 3 – FURTHER DUTIES OF PERSONS CONDUCTING BUSINESSES OR UNDERTAKINGS 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include: (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or 60
Tooma’s Annotated Work Health and Safety Act 2011
[20.20]
Part 2 – Health and safety duties
(b)
s 20
a prescribed person.
(2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.
Overview [20.10] Section 20 provides an example of the operation of the primary duty of a person conducting a business or undertaking in the specific context of a business or undertaking involving the management or control of a workplace. That category of person conducting a business or undertaking is defined as a person with management or control of a workplace. The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. The duty is broader than its predecessor provision of pre-model laws in that it is not restricted to the safety of the premises themselves but relevantly extends to “anything” arising from them and therefore would capture their use.
Principles of interpretation Non-delegable duties [20.20] The duties imposed by s 20 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. Concurrent nature of duties The duties are also concurrent and overlapping: ss 15 and 16. That is, a person may have a duty under s 20 as well as another further duty under ss 21 – 26, or indeed s 19. Furthermore, more than one person can concurrently have the same duty, in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting the business or undertaking in relation to an incident involving a worker, while another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe plant to that same © 2017 THOMSON REUTERS
61
s 20
Work Health and Safety Act 2011 (NSW)
[20.30]
worker. Furthermore, the courts have held that the principle of totality does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. Control Although s 20 is concerned with management or control of workplaces, that concept is not exclusive. More than one person may have control over a workplace. Under s 16, if more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: see Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 in relation to interaction between “control” and “reasonably practicable”. See further at [20.30]. Broad approach In interpreting sections such as these which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149.
Management or control of workplace [20.30] The duty imposed by s 20 relates to persons who have management or control of a workplace. In its First Report, the Stewart-Crompton Panel observed at [7.30]–[7.31] that: The question of what is meant by “management or control” is central to determining who owes the duty of care and in relation to what. The approaches and findings of the courts on the issue of “control” have been inconsistent and resulted in confusion. This inconsistency has to some degree resulted from the many uses to which “control” is put in current OHS legislation.
The Stewart-Crompton Panel recommended at [7.32] that the Act “should define ‘management or control’, either in the duty of care provision or in the definition section.” This did not occur. Neither s 20 nor the definitions in s 4 define management or control. Control in the case law The word “control” in s 20 extends to various degrees of control: Inspector Page v Growth Equities Services Pty Ltd [1994] NSWIRComm 95. More than one person can have “control” over a workplace, within the meaning of s 20, at any one time. The meaning of the word “control” was considered by Peterson J in Inspector Page v Growth Equities Services Pty Ltd [1994] NSWIRComm 95, in the context of the predecessor of s 17 of the Occupational Health and Safety 62
Tooma’s Annotated Work Health and Safety Act 2011
[20.30]
Part 2 – Health and safety duties
s 20
Act 1983 (NSW). In that case, a four-year-old child was killed by a falling timber column which was part of a barrier dividing the trading areas of two stores in the Carlingford Court Centre. The defendant, Growth Equities Services Pty Ltd, was the manager of the Carlingford Court Centre. The columns had been left in a store room in a retail store in the complex by the previous occupier of that store. The store was adjacent to the Woolworths, Grace Bros and Best & Less stores. Woolworths sought and was granted permission to use part of the vacant store. Both Grace Bros and Best & Less also sought to use other parts of the store. A representative of the defendant arranged a meeting between representatives of the three companies and let them come to their own security arrangements in relation to the store. The columns barrier was part of that arrangement. The barrier comprised of ten timber columns connected by a lengthy strip of plastic shadecloth approximately one metre wide. The shadecloth was suspended between the columns, a metre above the ground. The defendant did not authorise the use of the columns as barriers, however, it was aware of it. It was charged with breaching the duty of care of controllers at a place of work. One of the issues which the court had to determine was whether the defendant had control of the columns. Peterson J held that it did. His Honour said: the possession of the columns by Woolworths may not obviate control by Growth Equities unless possession is a requirement of “control” under s 17(2)(b) [of the Occupational Health and Safety Act 1983 (NSW)]. In my opinion, the language of the section suggests the contrary. The qualification of control imported by the words “to any extent” should not be read as confined to a duality of control … but naturally extends to cover various degrees of control.
In WorkCover Authority (NSW) v Rowson [1994] NSWIRComm 76, the defendant operated a chicken farm situated at Mangrove Mountain in NSW. One of the chicken sheds needed to have the insulation in its roof replaced. The shed was of corrugated iron construction with a corrugated iron roof. The defendant contracted with a contractor who was a licensed builder to perform the work with the assistance of two subcontractors. On the day of the accident, the contracting team arrived at the site and commenced work. After the work had proceeded for two hours, one of the subcontractors fell from the roof to the concrete floor of the shed and suffered fatal head injuries. Cullen J dismissed the charges. His Honour said: The evidence in this case indicates that the Defendant had no control over the method of work which resulted in the fatality. This was a matter under the control of a licensed builder contracted to perform the work. The Defendant relied on the competence and skill of such builder and the control of persons working under his direction. This raises questions such as whether the accident which occurred was reasonably foreseeable to the occupier of the premises; whether the occupier should be liable for the omissions of contractors and the manner of work performed under the latter’s guidance; and whether the occupier had a duty to provide such materials as “adequate safety wire, safety nets, handrails and scaffolding” and safety harnesses … There is no issue that the Defendant was the occupier of the intact premises before the maintenance or repair work commenced ... The evidence established that the intact roof of the premises was safe to walk on and work on. The premises had been emptied and the power had been disconnected. The question which has to be © 2017 THOMSON REUTERS
63
s 20
Work Health and Safety Act 2011 (NSW)
[20.40]
addressed … was whether the Defendant was the occupier at the time it was alleged the premises became unsafe. This time occurred when the contractor commenced work by removing the fixing nails and the sheets of roofing by a method of work adopted by him. The contractor thereby became the occupier for the purposes of liability ...
Ability to compel is sufficient In McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464 the Full Bench of the Industrial Relations Commission of NSW in Court Session (Wright J (P), Hungerford and Marks JJ) held at 480–481: The [Rowson] decision has significance ... in illustrating the shifting of “control” in a total sense, and thus shifting the liability to ensure safety, from one person to another ... [T]he proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to be to the extent to which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of “control” ... by reference to its ordinary meaning ..., must, it seems to us, have about it the sense of not mere “sway”, “checking” or “restraint” but rather controlling in the sense of “directing action” or “command” – the ability of a person to compel corrective action to ensure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured … however, and conformably with the context of the section, the phrase “to any extent, control” means no more than the person liable being able to compel (or direct or command) to any extent.
The scope of the duty cost by s 20 of the Act is therefore very broad and the section extends to any person conducting a business or undertaking who can to any extent compel, direct or command activities at a workplace: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald’s Australia Ltd (1999) 95 IR 383. However, while a legal right to compel or direct persons at a workplace may constitute management or control and thereby enliven the duty, the mere legal right to issue an instruction is not determinative of a breach of the standard of care: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 per French CJ and Gummow, Hayne and Crennan JJ at [33].
Workplace [20.40] Section 20 applies to persons with management or control of a “workplace”. Section 8 of the Act defines “workplace” as a place where work is carried out for a business or undertaking. Crucially, the section defines a workplace to include “any place where a worker goes, or is likely to be, while at work”. As discussed in the commentary to s 8 above, “place” is defined to include a vehicle, vessel, aircraft or other mobile structure and any waters and any installation on land, on the bed of any waters or floating on any waters: s 8(2). Work is not defined in the Act and therefore takes on its ordinary meaning of “exertion directed to produce or accomplish something”: Macquarie Dictionary, 5th edition, 2009. “Workplace” is broad enough to encompass any place where the work activity requires the worker to be: s 8(1). It includes all parts of the premises which an employee might use in performing acts normally and reasonably incidental to 64
Tooma’s Annotated Work Health and Safety Act 2011
[20.60]
Part 2 – Health and safety duties
s 21
her or his work duties: Inspector Collaghan v Starr (1992) Australian Industrial Safety, Health and Welfare Case Digests [52-909]. It also includes the immediate environs which may have been affected by the conduct of the business or undertaking: WorkCover Authority (NSW) v Woolworths Ltd [1994] NSWIRComm 95, per Peterson J at 7 referring to the “place of work” definition in the Occupational Health and Safety Act 1983 (NSW). There is therefore nothing in the Act that would warrant restricting the application of s 20 to traditional workplaces such as offices, factories or shops. A telecommunications pit is as much a workplace as the telecommunication company’s head office: see Telstra Corporation Ltd v Smith (2005) 177 FCR 577.
Occupier of residence exemption [20.50] Section 20 does not apply to the occupier of a residence, unless the residence is occupied for the purposes of or as part of the conduct of a business or undertaking such as a home business: s 20(1)(a). Common area In Westminster City Council v Select Management Ltd [1985] 1 WLR 576; [1985] 1 All ER 897, the House of Lords held that common areas of a residential block of flats were not premises occupied only as a private dwelling and as such fell within the scope of s 4 of the Health and Safety at Work Act 1974 (UK) (the equivalent of s 20). Clause 7(1) excludes a strata title body corporate from the operation of the definition in relation to any common areas used only for residential purposes. But the exclusion does not operate if the strata title body corporate engages any worker as an employee: cl 7(2). The exclusion would also not apply to a strata managing agent who, as part of the conduct of their business or undertaking manages or controls such a common area.
Standard of duty [20.60] The standard of care required by s 20 is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces (1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include: (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or (b) a prescribed person. © 2017 THOMSON REUTERS
65
s 21
Work Health and Safety Act 2011 (NSW)
[21.10]
(2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.
Overview [21.10] Section 21 is a specific example of the application of the primary duty of care in the context of management or control of fixtures, fittings, plant and structures. The duty in s 21 is imposed on a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace. The duty excludes the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking. See further discussion at [20.50]. Section 21 imposes a duty on a person conducting a business or undertaking with management or control of fixtures, fittings or plant at a workplace to ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. See further discussion at [20.30] in relation to management or control.
Principles of interpretation [21.20] In interpreting sections such as these which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149. The duties imposed by s 21 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. The duties are also concurrent and overlapping: ss 15 and 16. That is, a person may have a duty under s 21 as well as another further duty under ss 20, 22 – 26, or indeed s 19. Furthermore, more than one person can concurrently have the same duty in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting the business or undertaking in relation to an incident involving a worker while another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe plant to that same 66
Tooma’s Annotated Work Health and Safety Act 2011
[21.40]
Part 2 – Health and safety duties
s 22
worker. Furthermore, the courts have held that the principle of totality does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. More than one person can have “management or control” of a plant, fixture or fitting. If more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter, or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. See [20.30] for discussion of “management or control”.
Plant [21.30] Plant is defined in s 4 to include any machinery, equipment, appliance, container, implement, tool, any component of those things and anything fitted or connected to those things. Only plant at a workplace is caught by s 21. See discussion of workplace at [20.40] and [8.10] and following.
Standard of duty [21.40] The standard of care required by s 21 is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures (1) This section applies to a person (the designer) who conducts a business or undertaking that designs: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons: (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: © 2017 THOMSON REUTERS
67
s 22
Work Health and Safety Act 2011 (NSW)
[22.10]
(i)
the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance, or (iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure, or Example. Inspection, operation, cleaning, maintenance or repair of plant.
(f)
who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).
(3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning: (a) each purpose for which the plant, substance or structure was designed, and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2)(a) – (e). (5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) – (e).
Overview [22.10] Section 22 is a specific example of the duty of persons conducting a business or undertaking of design of plant, substances or structures that is to be used, or could reasonably be expected to be used, as, or at, a workplace. The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of certain persons listed in s 22(2)(a) – (f). To whom is the duty owed? The following categories of persons are identified as the relevant persons to whom the duty is owed. Persons: • who, at a workplace, use the plant, substance or structure for a purpose for which it was designed, or 68
Tooma’s Annotated Work Health and Safety Act 2011
[22.20]
Part 2 – Health and safety duties
s 22
• who handle the substance at a workplace, or • who store the plant or substance at a workplace, or • who construct the structure at a workplace, or • who carry out any reasonably foreseeable activity at a workplace in relation to: – the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant, or – the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance, or – the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure, or • who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to above. In addition, s 22(3) requires the designer to carry out any tests and calculations necessary to discharge the duty. Section 22(4) requires the designer to provide adequate information to end users of the plant, substance or structure.
Principles of interpretation [22.20] In interpreting sections such as these which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149. The duties imposed by s 22 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. The duties are also concurrent and overlapping: ss 15 and 16. That is, a person may have a duty under s 22 as well as another further duty under ss 20 and 21, 23 – 26, or indeed s 19. Furthermore, more than one person can concurrently have the same duty in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting © 2017 THOMSON REUTERS
69
s 23
Work Health and Safety Act 2011 (NSW)
[22.30]
the business or undertaking in relation to an incident involving a worker while another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe plant to that same worker. Furthermore, the courts have held that the principle of totality does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. If more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: see Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 in relation to interaction between “control” and “reasonably practicable”.
Design [22.30] Design is defined in s 4 to include design of part of a plant, substance or structure and redesign or modification of a design.
Plant [22.40] Plant is defined in s 4 to include any machinery, equipment, appliance, container, implement, tool, any component of those things and anything fitted or connected to those things.
Structure [22.50] Structure is defined in s 4 to mean anything that is constructed, whether fixed or moveable, temporary or permanent. It includes buildings, masts, towers, frameworks, pipelines, transport infrastructure and underground works such as shafts or tunnels, any components of such structure and part of a structure.
Standard of duty [22.50] The standard of care required by s 22 is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures (1) This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or 70
Tooma’s Annotated Work Health and Safety Act 2011
[22.50]
Part 2 – Health and safety duties
s 23
(b)
a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.
(2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons: (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or Example. Inspection, operation, cleaning, maintenance or repair of plant.
(f)
who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).
(3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning: (a) each purpose for which the plant, substance or structure was designed or manufactured, and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) – (e). (5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) – (e). © 2017 THOMSON REUTERS
71
s 23
Work Health and Safety Act 2011 (NSW)
[23.10]
Overview of duty of manufacturers [23.10] Section 23 imposes a duty on persons conducting a business or undertaking as manufacturers of plant and substances that is to be used, or could reasonably be expected to be used at, a workplace. The duty also applies to manufacturers of structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace or plant that is expected to be used or could reasonably used as a workplace. Such manufacturers are required to ensure, so far as is reasonably practicable, that the plant, substances or structures are manufactured to be without risks to the health and safety of certain persons who may be affected by them. The class of persons to whom the duty is owed is set out in s 23(2). They are persons: • who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; • who handle the substance at a workplace; • who store the plant or substance at a workplace; • who construct the structure at a workplace; • who carry out any reasonably foreseeable activity at a workplace in relation to the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; • who carry out any reasonably foreseeable activity at a workplace in relation to the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; • who carry out any reasonably foreseeable activity at a workplace in relation to the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; • who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to above. Section 23(3) requires the manufacturer to carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of their duty. Section 23(4) requires the manufacturer to give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning each purpose for which the plant, substance or structure was designed or manufactured, and the results of any calculations, analysis, testing or examination. The manufacturer is also required to provide information regarding any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity related activities (such as installation and maintenance). 72
Tooma’s Annotated Work Health and Safety Act 2011
[23.30]
Part 2 – Health and safety duties
s 23
Principles of interpretation [23.20] In interpreting sections such as these which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149. The duties imposed by s 23 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. The duties are also concurrent and overlapping: ss 15 and 16. That is, a person may have a duty under s 23 as well as another further duty under ss 20 – 22, 24 – 26, or indeed s 19. Furthermore, more than one person can concurrently have the same duty, in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting the business or undertaking in relation to an incident involving a worker while another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe plant to that same worker. Furthermore, the courts have held that the principle of totality does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. If more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: see Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 in relation to interaction between “control” and “reasonably practicable”.
Plant [23.30] Plant is defined in s 4 to include any machinery, equipment, appliance, container, implement, tool, any component of those things and anything fitted or connected to those things. © 2017 THOMSON REUTERS
73
s 24
Work Health and Safety Act 2011 (NSW)
[23.40]
Structure [23.40] Structure is defined in s 4 to mean anything that is constructed, whether fixed or moveable, temporary or permanent. It includes buildings, masts, towers, frameworks, pipelines, transport infrastructure and underground works such as shafts or tunnels, any components of such structure and part of a structure.
Standard of duty [23.50] The standard of care required by s 23 is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures (1) This section applies to a person (the importer) who conducts a business or undertaking that imports: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons: (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or Example. Inspection, operation, cleaning, maintenance or repair of plant.
74
Tooma’s Annotated Work Health and Safety Act 2011
[24.20]
Part 2 – Health and safety duties
(f)
s 24
who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).
(3) The importer must: (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2), or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning: (a) each purpose for which the plant, substance or structure was designed or manufactured, and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) – (e). (5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) – (e).
Overview of importer duty [24.10] Section 24 imposes a duty on persons conducting a business or undertaking of importing plant, substances or structures that are to be used, or could reasonably be expected to be used, at, a workplace, or in the case of plant and structures as a workplace. The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of certain persons who may be affected by it. The category of persons to whom the duty is owed is set out in s 24(2).
Principles of interpretation [24.20] In interpreting sections such as these which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149. The duties imposed by s 24 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. © 2017 THOMSON REUTERS
75
s 24
Work Health and Safety Act 2011 (NSW)
[24.30]
The duties are also concurrent and overlapping: ss 15 and 16. That is, a person may have a duty under s 24 as well as another further duty under ss 20 – 23, 25 – 26, or indeed s 19. Furthermore, more than one person can concurrently have the same duty, in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting the business or undertaking in relation to an incident involving a worker while another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe plant to that same worker. Furthermore, the courts have held that the principle of totality does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. If more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: see Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 in relation to interaction between “control” and “reasonably practicable”.
Plant [24.30] Plant is defined in s 4 to include any machinery, equipment, appliance, container, implement, tool, any component of those things and anything fitted or connected to those things.
Structure [24.40] Structure is defined in s 4 to mean anything that is constructed, whether fixed or moveable, temporary or permanent. It includes buildings, masts, towers, frameworks, pipelines, transport infrastructure and underground works such as shafts or tunnels, any components of such structure and part of a structure.
Standard of duty [24.50] The standard of care required by s 24 is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. 76
Tooma’s Annotated Work Health and Safety Act 2011
[24.50]
Part 2 – Health and safety duties
s 25
Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures (1) This section applies to a person (the supplier) who conducts a business or undertaking that supplies: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons: (a) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or Example. Inspection, storage, operation, cleaning, maintenance or repair of plant.
(f)
who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).
(3) The supplier must: (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2), or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning: (a) each purpose for which the plant, substance or structure was designed or manufactured, and © 2017 THOMSON REUTERS
77
s 25
Work Health and Safety Act 2011 (NSW)
[25.10]
(b)
the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) – (e).
(5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) – (e).
Overview of duty of supplier [25.10] Section 25 imposes a duty on a person conducting a business or undertaking as a supplier of plant, substances or structures that are to be used, or could reasonably be expected to be used, at, a workplace, or in the case of plant and structures as a workplace. The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of certain persons who may be affected by it. The class of persons to whom the duty is owed is set out in s 25(2).
Principles of interpretation [25.20] In interpreting sections such as these which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149. The duties imposed by s 25 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. The duties are also concurrent and overlapping: ss 15 and 16. That is, a person may have a duty under s 25 as well as another further duty under ss 20 – 24, 26, or indeed s 19. Furthermore, more than one person can concurrently have the same duty, in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting the business or undertaking in relation to an incident involving a worker while 78
Tooma’s Annotated Work Health and Safety Act 2011
[25.30]
Part 2 – Health and safety duties
s 25
another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe plant to that same worker. Furthermore, the courts have held that the principle of totality does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. If more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: see Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 in relation to interaction between “control” and “reasonably practicable”.
Supply [25.30] Supply is defined in s 6 in a non-exhaustive way to include supply and resupply by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. The word therefore takes on its ordinary meaning of to furnish or provide. Section 6(2) defines the timing of supply. Section 6(2) provides that a supply occurs on the passing of possession to the person or an agent of the person to be supplied. See Inspector Buggy v Lyco Industries Pty Ltd [2005] NSWIRComm 298. What is not supply? Section 6(3) provides that a supply of a thing does not include the return of possession of a thing to the owner of the thing at the end of a lease or other agreement: s 6(3)(a). Clause 8 of the Regulation provides that for the purpose of s 6(3), a supply of a thing is not included in the definition of supply if the person “does not control the supply and has no authority to make decisions about the supply”: cl 8. Examples are listed under that clause to illustrate the type of situations in contemplation. They include auctioneers who auction a thing without having possession of the thing and real estate agents acting in their capacity as real estate agents. Note that by virtue of s 9 of the Act, examples form part of the Act. The same is true of the Regulation because of the use of the phrase “this Act” which pursuant to s 4 of the Act includes the Regulation. A financier is taken not to supply plant, a substance or a structure for the purposes of the Act if the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier, and the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer: s 6(4). In those circumstances, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of the Act to have supplied the plant, substance or structure to the financier’s customer: s 6(5). © 2017 THOMSON REUTERS
79
s 26
Work Health and Safety Act 2011 (NSW)
[25.40]
Plant [25.40] Plant is defined in s 4 to include any machinery, equipment, appliance, container, implement, tool, any component of those things and anything fitted or connected to those things.
Structure [25.50] Structure is defined in s 4 to mean anything that is constructed, whether fixed or moveable, temporary or permanent. It includes buildings, masts, towers, frameworks, pipelines, transport infrastructure and underground works such as shafts or tunnels, any components of such structure and part of a structure.
Standard of duty [25.60] The standard of care required by s 25 is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures (1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons: (a) who install or construct the plant or structure at a workplace, or (b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned, or (c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure, or (d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c).
Overview of installer duty [26.10] Section 26 imposes a duty on persons conducting a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. Such persons must ensure, so far as is reasonably practicable, that the way in 80
Tooma’s Annotated Work Health and Safety Act 2011
[26.20]
Part 2 – Health and safety duties
s 26
which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of certain persons who may be affected. Section 26(2) sets out the classes of persons to whom the duty applies. These are people: • who install or construct the plant or structure at a workplace, or • who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned, or • who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure, or • who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to above.
Principles of interpretation [26.20] In interpreting sections such as these which are directed to guarding against accidents and to the preservation of human life, the courts will endeavour to carry out the objects of the legislature as far as the Act’s language will permit: Rice v Henley (1914) 19 CLR 19, per Isaacs J at 22; see also discussion of Butler v Fife Coal [1912] AC 149. The duties imposed by s 26 are non-delegable. That is, they cannot be transferred to another person: s 14. Indeed, any contractual provision that purports to contract out of the obligations imposed by the Act are void: s 272. The duties are also concurrent and overlapping: ss 15 and 16. That is, a person may have a duty under s 26 as well as another further duty under ss 20 – 25, or indeed s 19. Furthermore, more than one person can concurrently have the same duty, in which case each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty. Indeed, the case law is replete with examples of multiple duty holders found guilty of offences arising from the same factual circumstances, particularly in relation to serious incidents. Nor can related bodies corporate escape liability merely by virtue of their interrelation. It is now commonplace for prosecutors to charge related bodies corporate separately in relation to their respective involvement in the same incident. That is, a company in a group may be charged as a person conducting the business or undertaking in relation to an incident involving a worker, while another company in the same group may be separately charged as a person conducting a business or undertaking which is in management or control of a workplace, plant or fixtures for failing to provide a safe plant to that same worker. Furthermore, the courts have held that the principle of totality does not apply to separate legal entities even if they are in the same group of companies: Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279. © 2017 THOMSON REUTERS
81
s 27
Work Health and Safety Act 2011 (NSW)
[26.30]
If more than one person has a duty for the same matter, each person retains responsibility for the person’s duty in relation to the matter and must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: see Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 in relation to interaction between “control” and “reasonably practicable”.
Plant [26.30] Plant is defined in s 4 to include any machinery, equipment, appliance, container, implement, tool, any component of those things and anything fitted or connected to those things.
Structure [26.40] Structure is defined in s 4 to mean anything that is constructed, whether fixed or moveable, temporary or permanent. It includes buildings, masts, towers, frameworks, pipelines, transport infrastructure and underground works such as shafts or tunnels, any components of such structure and part of a structure.
Standard of duty [26.50] The standard of care required by s 26 is that of reasonable practicability. Reasonable practicability is defined in s 18 of the Act. See commentary at [18.10] and following. Reasonable practicability is an element of the offence which the prosecution must prove beyond reasonable doubt: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. DIVISION 4 – DUTY OF OFFICERS, WORKERS AND OTHER PERSONS 27
Duty of officers
(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33
82
Tooma’s Annotated Work Health and Safety Act 2011
[27.10]
Part 2 – Health and safety duties
s 27
in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps: (a) to acquire and keep up-to-date knowledge of work health and safety matters, and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and Example. For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include: • reporting notifiable incidents, • consulting with workers, • ensuring compliance with notices issued under this Act, • ensuring the provision of training and instruction to workers about work health and safety, • ensuring that health and safety representatives receive their entitlements to training.
(f)
to verify the provision and use of the resources and processes referred to in paragraphs (c) – (e).
Overview [27.10] Section 27 imposes a proactive duty on officers of persons conducting a business or undertaking to exercise due diligence to ensure compliance by the person conducting the business or undertaking. Duty is proactive The duty is separate from any duty imposed on the relevant person conducting the business or undertaking. In that respect it is radically different from its predecessor provisions. In theory, a person may fail to exercise due diligence to © 2017 THOMSON REUTERS
83
s 27
Work Health and Safety Act 2011 (NSW)
[27.20]
ensure compliance by the person conducting the business of undertaking even if the person conducting the business or undertaking has not actually breached the legislation. This is because the definition of due diligence in s 27(5) is process oriented, requiring certain steps to be taken. The absence of such activities could give rise to a breach of the duty in the absence of a breach by the person conducting the business or undertaking. The Stewart-Crompton Panel recommended creating “a positive duty on an officer to ensure a corporation complies with its duties under the model Act”. That duty would be “qualified by a requirement to exercise due diligence, as it applies to the responsibilities of officers (having regard to their position) within the organisation”. The officer would be “liable for his/her own conduct or omission”, not that of another person. The onus of proving a failure to meet the standard of due diligence would be on the prosecution: First Report at [8.25]. The Stewart-Crompton Panel reviewed the pre-model laws provisions in its deliberations in relation to the ideal model for imposing liability on officers. In that respect, the panel expressly rejected all the pre-model laws approaches because of their reactive nature. In preferring the proactive approach, the Stewart-Crompton Panel observed in the First Report at [8.29]–[8.31] that: The provision creates a positive duty which is seen to apply immediately, rather than accountability only applying after a contravention by the company. The duty would make clear that the officer must be proactive in taking steps to ensure compliance by the company… By making the officer liable only for his or her own acts or omissions would provide a sense of control by the officer over their personal liability and a sense of fairness… [this approach] is more likely than the other options to ensure appropriate, proactive, steps are taken by an officer for compliance by the company with the duties of care placed on the company.
From 7 June 2011, s 26 of the Occupational Health and Safety Act 2000 (NSW) was amended to reflect s 27 of the Work Health and Safety Act 2011 (NSW). References R Johnstone and M Tooma, Work Health and Safety Regulation in Australia (Federation Press, Sydney, 2012), Ch 3. M Tooma, Safety Security Health and Environment Law (2nd edition, Federation Press, Sydney, 2011), Ch 5. M Tooma, Due Diligence: Duty of Offıcers (CCH, Sydney, 2012).
Application of provisions [27.20] Section 27 applies to officers of persons conducting a business or undertaking. Section 4 of the Act defines “officer” with reference to s 9 of the Corporations Act 2001 (Cth) for the private sector and an adapted definition in ss 247 and 252 of the Act for the public sector. Only officers of a PCBU Importantly, the duty is imposed on officers of persons conducting a business or undertaking. As broad as that definition is, officers will only be caught by the 84
Tooma’s Annotated Work Health and Safety Act 2011
[27.20]
Part 2 – Health and safety duties
s 27
provisions to the extent that they are officers of a person conducting a business or undertaking. By operation of certain exclusion provisions in the Regulation (cl 7) certain classes of persons conducting a business or undertaking are excluded from the operation of the Act (such as a body corporate in strata schemes). The duty will not apply to officers of such bodies. Officers of corporations Under s 9 of the Corporations Act 2001 (Cth), “officer” of a corporation means: (a) a director or secretary of the corporation; or (b) a person: (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation’s financial standing; or (iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or (c) a receiver, or receiver manager of the property of the corporation; or (d) an administrator of the corporation; or (e) an administrator of a deed of company arrangement executed by the corporation; or (f) a liquidator of the corporation; or (g) a trustee or other person administering a compromise or arrangement made between the corporation and someone else.
That is, officers include directors, shadow directors, company secretaries, insolvency practitioners (exercising the role of receivers, receiver managers, administrators, liquidators and trustees of a company arrangement or compromise made with creditors), chief financial officers (in their capacity to influence the financial standing of a company), chief operating officers and general counsel (in their respective capacity as persons making or participating in making decisions that affect the whole or substantial part of the business or the corporation). The reach of the officer definition will be determined on a case-by-case basis based on the organisational structure and custom and practice of the relevant company or entity. The boundaries of that definition are likely to be expanded as new cases are brought and decisions are handed down with the frontier defined at its broadest by the determination of whether a person participates in making decisions that affect a substantial part of the business of the company or entity. There has been some debate as to whether the adoption of the definition of “officer” represented a significant departure from “a person, by whatever name called and whether or not a director of the body or entity, who is concerned, or takes part, in the management of the body or entity” which was the previous definition of “executive officer”. Notably, this is also the language used in s 26 © 2017 THOMSON REUTERS
85
s 27
Work Health and Safety Act 2011 (NSW)
[27.20]
of the Occupational Health and Safety Act 2000 (NSW) prior to the Occupational Health and Safety Amendment Act 2001 (NSW) and s 167 of the Workplace Health and Safety Act 1995 (Qld). That is, if the shift from the definition of “executive officer” to the new definition of “officer” was remarkable at law in the corporations law sense, there would be equivalent implications to the coverage of health and safety laws also. However, as Spigelman CJ, Beazley and Giles JJA observed in Morley v Australian Securities and Investments Commission [2010] NSWCA 331, “[b]eing concerned or taking part in management may not reach the heights of decisions affecting the whole or a substantial part of the company’s business”: Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [886]. Officers are involved in policy making and decisions that affect the whole or a substantial part of the business of the corporation: Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited (No 4) [2007] FCA 963 at [490]. Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287, Gzell J held that to participate in making decisions that affect the whole or a substantial part of the business of a company is the same as taking part in the relevant process: Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 at [377]–[385]. In Commissioner for Corporate Affairs (Vic) v Bracht [1989] VR 821, Ormiston J held in relation to the predecessor of the s 9 definition of officer that “take part in” connotes the active participation of the person in the management of a corporation. Such participation would have to be “real and direct”, but not necessarily in a role in “which ultimate control is exercised”, although it would have to be “more than the administrative carrying out of the orders of others responsible for a company’s management”: Commissioner for Corporate Affairs (Vic) v Bracht [1989] VR 821 at 831. In Morley v Australian Securities and Investments Commission [2010] NSWCA 331 the NSW Court of Appeal agreed with the proposition that the making and participating in decisions affecting the whole or a substantial part of the business of the corporation need be restricted to persons who have ultimate control: Morley v Australian Securities and Investments Commission [2010] NSWCA 331 [887]. In Morley v Australian Securities and Investments Commission [2010] NSWCA 331 the NSW Court of Appeal observed at [897] that: It is a reality of corporate life that board and other important decisions involve many persons other than the ultimate decision-makers. Just as s 9(b)(ii) of the Law recognised the reality that a person may have “the capacity to affect significantly the corporation’s financial standing”, that being sufficient for the status of an officer as defined, so s 9(b)(i) recognised the reality of participation in decision-making. But it required participation in making decisions affecting the whole or a substantial part of company’s business.
On appeal to the High Court of Australia, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Shafron v Australian Securities and Investments Commission [2012] HCA 18 set out the following principles at [23]–[26] for determining whether a person is an officer under s 9(b)(i): 86
Tooma’s Annotated Work Health and Safety Act 2011
[27.20]
Part 2 – Health and safety duties
s 27
First, the inquiry required by this paragraph of the definition must be directed to what role the person in question plays in the corporation. It is not an inquiry that is confined to the role that the person played in relation to the particular issue in respect of which it is alleged that there was a breach of duty. … Second, in a case like the present, where the breaches of duty alleged were omissions to provide advice, it is evident that determining how a reasonable person occupying the same office and having the same responsibilities would exercise the powers and discharge the duties of that office may be assisted by consideration of how the officer in question acted on occasions other than the one which is alleged to give rise to a breach of the duties imposed by s 180(1). … Third, each of the three classes of persons described in par (b) of the definition of “officer” is evidently different from (and a wider class than) the persons identified in the other paragraphs of the definition. … Fourth, sub-par (i) of par (b) distinguishes between making decisions of a particular character and participating in making those decisions. Contrary to [the appellant’s] submissions, participating in making decisions should not be understood as intended primarily, let alone exclusively, to deal with cases where there are joint decision makers. The case of joint decision making would be more accurately described as “making decisions (either alone or with others)” than as one person “participating in making decisions”. Rather, as the Court of Appeal rightly held, the idea of “participation” directs attention to the role that a person has in the ultimate act of making a decision, even if that final act is undertaken by some other person or persons. The notion of participation in making decisions presents a question of fact and degree in which the significance to be given to the role played by the person in question must be assessed.
McKie v Al-Hassani [2015] ACTIC 1 was the first decision to consider the application of the officer definition in the context of the work health and safety legislation. The case arose from a fatal incident in the ACT involving a construction project performed by Kenoss Contractors. Kenoss contracted with the ACT Government for road resurfacing works. The accident occurred when a truck driver’s bucket came into contact with or came too close to an overhead low voltage wire at the defendant’s site. Kenoss had at the relevant time only one director, Mrs Beverly Brendas. Her husband, Mr Spiros Brendas, was employed as the General Manager. Their son, Mr Dimitri Brendas, was employed as the safety officer. He had no experience or qualification in safety systems. Mr Al-Hasani, an engineer, was employed as Project Manager, managing a number of projects for the company. Kenoss was prosecuted in relation to the incident. Mr Al-Hasani was prosecuted as an officer of Kenoss. In considering the position of Mr Al-Hassani, her Honour, Chief Industrial Magistrate Walker observed at [31]–[33]: The issues in respect to Mr Al-Hasani, whilst overlapping with those relevant to Kenoss, are different in a material way. The offence relies on establishing whether Mr Al-Hasani was an “officer” of Kenoss as defined, and, if so, whether he acquitted his safety duty by the positive exercise of due diligence as required by s 27(5) of the Act. In the text “Understanding The Model Work Health And Safety Act”, Barry Sheriff and Michael Tooma, leading authorities in this area, noted: “One of the most important reforms of the model work health and safety act is the introduction of a duty of care on offıcers of companies and other organisations. The introduction of a © 2017 THOMSON REUTERS
87
s 27
Work Health and Safety Act 2011 (NSW)
[27.20]
position duty is new to the workplace health and safety regulatory framework…. In all jurisdictions, offıcers are merely attributed liability to conduct that is committed by the company, rather than being allocated to duty in their own right”. They continue: “The approach taken by the model WHS Act, however, emphasises the corporate governance responsibilities of offıcers. The personal liability in that context reflects the culpability of company offıcers in failing to meet the corporate governance responsibilities by preventing the corporate misconduct. Consistent with this rationale, offıcers under the model laws will have a duty to ensure due diligence. Thus, their attributed liability is transformed into a positive duty to ensure corporate compliance through sound corporate governance.”
Her Honour went on at [42] to discuss the application of that duty to Mr Al-Hassani and observed that “the interpretation of the concept of an officer should to be viewed through the prism of the organisation as a whole rather than a particular function in which the individual was engaged”. In relation to Mr Al-Hassani, her Honour held that he was not a person who made or participated in making decisions affecting the whole or substantial part of the business of Kenoss Contractors. In that regard, Mr Al-Hasani gave evidence at the trial regarding his role within the overall structure where he referred to Mr Spiros Brendas as “El Supremo” and stated that he reported up to Mr Spiros Brendas and Ms Beverly Brendas. He also gave evidence that he “could not tell Mr so and so to pay Mr so and so” nor could he “hire Mr so and so without people in the accounting department and the administration department”. Her Honour held at [50]: The prosecution has not established that Mr Al-Hasani had control or [was] responsible for the business or undertakings of the company; rather he had operational responsibility for delivery of specific contracts which had been entered into. His role was to implement these projects. The limited evidence before me establishes that Kenoss was essentially a “family business”, with a husband and wife director and general manager and a relatively flat management structure. In it, Mr Al-Hasani sat close to the top of that structure but there is no evidence that he made, or participated in making, decisions which affected the whole, or a substantial part of the business of the corporation… He could identify potential employees but was not responsible for hiring and firing them. His evidence was that he could not commit corporate funds. There is no evidence that he had direction over the type, or the specific contracts, which were to be pursued by Kenoss. He did prepare tenders for particular work but he did not sign off on them… What is established is that Mr Al-Hasani’s participation in the business process was operational; whether it went beyond that to being organisational is speculative. It is not clear that he made decisions, or participated in making decisions, that affected either the whole or a substantial part of Kenoss’ business
Crucially, her Honour observed at [51] that Mr Al-Hasani had responsibility as an employee but he was not charged in that capacity. It is interesting to speculate what her Honour may have held had he have been so charged.
88
Tooma’s Annotated Work Health and Safety Act 2011
[27.20]
Part 2 – Health and safety duties
s 27
Director Director of a company is also defined in s 9 of the Corporations Act 2001 to mean “a person who is appointed to the position of a director” or “is appointed to the position of an alternate director and is acting in that capacity”, regardless of the name that is given to their position: s 9(a) of the Corporations Act 2001 (Cth). A person who is not validly appointed as a director is still a director if they act in the position of a director or the directors of the company or body are accustomed to act in accordance with the person’s instructions or wishes: s 9(b) of the Corporations Act 2001. The same conclusion was reached in interpreting “director” for the purpose of s 26 of the Occupational Health and Safety Act 2000 (NSW) in Inspector James v Ryan (No 3) [2010] NSWIRComm 127. Those provisions do not apply merely because the directors act on advice given by a person in their professional capacity or business relationship with the directors or the company. Persons who make or participate in making decisions affecting the whole or substantial part of the company The definition of officer, and particularly the test of making or participating in making decisions that affect the whole or substantial part of the business of the company, was considered in Morley v Australian Securities and Investments Commission [2010] NSWCA 331. That case was an appeal from a decision of Gzell J finding Mr Shafron and Mr Morley in breach of his officer’s duties under the Corporations Act 2001 in relation to dealings regarding the separation of James Hardie Industries from the compensation fund created for the benefit of asbestos victims. The fund later proved to be insufficient to cover the liabilities. Mr Shafron was a joint secretary and general counsel of James Hardie Industries at the time that the proposal being considered. At first instance Gzell J held that Mr Shafron was relevantly an officer on the basis of his role as joint company secretary and because he participated in making decisions affecting the whole or substantial part of James Hardie Industries’ business. Mr Shafron accepted that the separation proposal was relevantly a decision affecting the whole or a substantial part of the business of the company. However, he argued that his involvement in that decision was in his capacity as general counsel and therefore did not meet the threshold test of “participation” for the purpose of the definition. In relation to the question whether Mr Shafron was relevantly an officer, their Honours Spigelman CJ, Beazley and Giles JJA held in Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [887]–[894]: It is necessary to focus on the statutory text and cases on differently expressed predecessor provisions must be approached with care … Mr Shafron was the second or third most senior executive of JHIL, reporting directly to Mr Macdonald … The definition refers to participation in making decisions of a particular character. It does not prescribe that the decisions are made by the board, and it may be that a management decision to present a highly significant proposal will suffice; but wherever the decisions be found, the test is participation in their making. Participation is more than administrative arrangement, and there must be a real © 2017 THOMSON REUTERS
89
s 27
Work Health and Safety Act 2011 (NSW)
[27.20]
contribution from the postulated participation to the making of the decisions, but beyond that it is a question of fact. Even by the touchstone suggested by Mr Shafron, we think he participated in decisions of the requisite character.
Their Honours observed that Mr Shafron was part of the project team putting forward the separation proposal. Significant announcements required his approval. Relevantly their honours held that participation in decisions may involve some “frequency or repetition”: Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [894]. The NSW Court of Appeal rejected the submission that an expansive interpretation of the participation in decisions element of the definition would open upon the floodgates. Their Honours observed at [896]: [I]t should not be forgotten that satisfaction of the definition only gives statutory status. It may be that a person participates in making decisions even if counselling against them; but if so, the participation will only satisfy the status of an officer as defined, and the person’s dissent is likely to mean that he or she is not in breach.
No requirement to be employed by PCBU There is nothing in s 9 of the Corporations Act 2001 requiring the would-be officer to be an executive or otherwise employed by the company. In Australian Securities and Investments Commission v Adler (2002) 41 ACSR 72; [2002] NSWSC 171, one of the proceedings arising from the collapse of HIH, a non-executive director of a parent company was held to be a relevant officer of a subsidiary because through his position on the parent company board and investment committee was in a position to make or participate in making decisions affecting the whole or substantial part of the business of the subsidiary, namely investment decisions. The case related to an investment of $10 m by HIH Casualty and General Insurance Ltd indirectly into the shares of the parent company, HIH Insurance Limited. Mr Rodney Adler was not a director of HIHC and had therefore argued that he was not a relevant duty holder in relation to the investment. Stantow J rejected that submission. In relation to Mr Adler’s involvement, Santow J relevantly observed at [71]–[73]: There is no evidence from the First Defendant to refute that Mr Adler was other than an active member of the HIH Board, with its group responsibilities, particularly for investment, and was an active member of the Investment Committee, with its investment oversight responsibility. The evidence is clearly to the effect that Mr Adler took a close interest in investment matters participating fully in that category of decision affecting the business of HIHC. … the HIH group of companies had as a whole an investment portfolio comprising, inter alia, both internally and externally managed equities … Mr Adler was a member of the HIH Investment Committee as well as the HIH Board … Even if it be contended that the Investment Committee did not oversee the HIH Investment Portfolio because, for example, it was subject to the direction and control of the Board of Directors of HIH (and no other basis for disputing that oversight credibly emerges) nonetheless Mr Adler cannot escape the conclusion that he participated in the making of that category of investment decisions in one or other capacity; that is either as board member or committee member, or more likely both. Moreover, that category of decisions, in particular the crucial matter of how funds of the Group were to be invested, clearly affects the whole or a 90
Tooma’s Annotated Work Health and Safety Act 2011
[27.30]
Part 2 – Health and safety duties
s 27
substantial part of the business of HIHC as a member of HIH group. It would be unreal in the extreme to assume that Mr Adler did not participate in making the varied decisions about the Group’s investments, which were so obviously a matter of vital interest to him, whether as a member of the Investment Committee or the Board.
Santow J held that Mr Adler was at the relevant time a person who made or participated in making decisions that affect the whole, or a substantial part, of the business of HIHC namely investment decisions and in any event was, as a director of the parent company, HIH, a person who had “the capacity to affect significantly HIHC’s financial standing”: Australian Securities and Investments Commission v Adler (2002) 41 ACSR 72; [2002] NSWSC 171 at [774]. The appeal was largely dismissed: see Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504. Public sector definition For the purpose of the public sector, an officer is defined in s 247 to mean a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Crown. See also s 252 for a definition of officer of public authority.
Knowledge of WHS matters [27.30] The first element of the due diligence duty is to take reasonable steps to “acquire and keep up-to-date knowledge of work health and safety matters”. In that respect there are two sub-elements to that element as follows: • acquire knowledge of work health and safety matters • keep up-to-date knowledge of work health and safety matters. Rationale for element The element is aimed at ensuring that officers acquire and maintain a sufficient base of knowledge on work health and safety matters in order to make informed decisions in relation to the health and safety performance of the company. This must involve information on the law, relevant codes of practice, guidance material and any Australian or international standards. It also, however, requires acquisition of knowledge in relation to emerging issues arising from the conduct of the undertaking of the company that may impact on the health and safety of workers and other persons. That is, officers may keep an active interest in developments in their industry such as major research impact on their operations or major incidents from which key learnings can be gleaned. Acquire knowledge The element refers to acquiring knowledge and not mere dissemination of information. That is, officers who are merely passive recipients of circulars will not have complied with this obligation. The use of the word “knowledge” in this context is deliberate. As such, a competency-based assessment of the knowledge acquired must practically form part of the requirement of this obligation. © 2017 THOMSON REUTERS
91
s 27
Work Health and Safety Act 2011 (NSW)
[27.40]
Keep up-to-date knowledge The elements also require the knowledge base to be maintained. That is, in relation to base knowledge necessary for an officer, a requirement to have refresher training on the knowledge is a necessary component of that element.
Understanding of the nature of the operations [27.40] The second element of the due diligence duty builds on the first element. Having required the officer to acquire and maintain a base knowledge in relation to work health and safety matters, the officer is then required to contextualise that knowledge in relation to the business or undertaking of the company. In that regard, the due diligence duty requires officers to take reasonable steps to gain an understanding of: • the nature of the operations of the business or undertaking of the person conducting the business or undertaking and • generally of the hazards and risks associated with those operations. Due diligence was considered as a defence in the context of s 26 of the Occupational Health and Safety Act 2000 (NSW) in Inspector Kumar v Ritchie [2006] NSWIRComm 323. In relation to the defendant’s approach to understanding the nature of the operations and risks associated with those operations, Haylen J held at [177]: [T]he hallmark of [the due diligence] defence is that the defendant would need to show that he had laid down a proper system to provide against contravention of the Act and had provided adequate supervision to ensure that the system was properly carried out… The evidence does not disclose a director’s mind concentrated on the risks of this operation or addressing systems so that those risks will be exposed to the directors in order that they might take steps to address those risks.
Mr Ritchie defended the charge on the basis that he was not in a position to influence the conduct of the company, in relation to the breach and that in any event he had exercised all due diligence. He was found guilty and convicted of the charge. Haylen J said at [173]: [The defendant]’s position as a Director meant that he had, by virtue of that position, the authority to influence the conduct of the corporation and to do so in relation to this particular contravention. It was within his authority and control to seek to have a policy of safety audits operating at the wash bay sites that addressed the critical issue … [He] was in a position to have reports made to him and policies endorsed addressing each and every aspect of this comprehensive failure by the company. This did not necessarily involve him or require him to become involved in day to day operations in a hands-on way but required effective reporting lines and recommendations from those with expertise in aspects of this specialist operation … As a Director, he had to be active and diligent in requiring information about the nature of that business, the chemicals being addressed, the risks thrown up by having to work with those chemicals, obtaining expert advice as to the best way to remove risks from the operation and ensure the safety of employees at each site.
Mr Ritchie was convicted and fined $22,500. Owens Containers was also prosecuted. It pleaded guilty, was convicted and fined $160,000: Inspector Kumar v Owens Container Services Australia Pty Ltd [2006] NSWIRComm 92
Tooma’s Annotated Work Health and Safety Act 2011
[27.50]
Part 2 – Health and safety duties
s 27
324. The divisional general manager of Owens Containers was also prosecuted. He pleaded guilty, was convicted and fined $18,500: Inspector Kumar v Rose [2006] NSWIRComm 325. Haylen J’s observations in Ritchie are equally apt in relation to s 27(5)(b). The element requires officers to take an active and personal interest in the nature of their company’s operations. This can be achieved through commissioning reports on critical risks.
Resources and processes [27.50] The third element of the due diligence duty relates to resources and processes. Officers have a duty to take reasonable steps to ensure that the person conducting the business or undertaking: • has available for use appropriate resources; • has available for use appropriate processes; • uses appropriate resources; and • uses appropriate processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking. Neither the words “resources” nor “processes” is defined in the Act. “Resources” and “processes” therefore take on their ordinary meaning. “Resources” include financial resources as well as human resources. “Processes” include systems including management systems and systems of work and procedures. Resources The US Chemical Safety and Hazard Board investigation into the 2005 BP Texas refinery disaster found that cost cutting, failure to invest and production pressures from BP Group executive managers “did not provide adequate resources to prevent major accidents” and that “budget cuts impaired process safety performance at the Texas City refinery”: US Chemical Safety and Hazard Investigation Board (2007) Investigation Report, Refinery Explosion and Fire, BP, Texas City, Texas, March 23, 2005, CSB, USA, p 210. While resource allocation includes allocation of personnel, including safety professionals, safety remains a line management responsibility. As Staunton J observed in WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Smith [2004] NSWIRComm 349, due diligence is not met by “merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established”: WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Smith at [134]. © 2017 THOMSON REUTERS
93
s 27
Work Health and Safety Act 2011 (NSW)
[27.60]
Consideration of incidents, hazards and risks [27.60] The Royal Commission into the Tricontinental Group of Companies referred to “the need for directors to have an inquiring mind”: Royal Commission into Tricontinental Group of Companies, Final Report, 31 August 1992, Vol 2, at [19.58]–[19.68]. In Australian Securities and Investments Commission v Healey [2011] FCA 717, Middelton J outlined the extent of the obligation as follows at [576]–[582]: Based upon the evidence, which in the main was uncontroversial, each director did not take all reasonable steps to focus and consider for himself the content of the financial statements … Each director was aware of or should have been aware of the relevant accounting principles which would have alerted each director to the apparent error in the proposed financial statements. Each director could then and should have made the relevant enquiries, if they had taken all the reasonable steps required of them. The directors did not focus upon or properly consider the issues the subject of ASIC’s allegations…The failure to notice certain omissions may well be explicable – but here the directors, in some cases on their own admission, clearly looked solely to management and external advisors. If they had acted, as Senior Counsel for ASIC suggested, as the final filter, taking care to read and understand the financial accounts, the errors may have been discovered earlier than they were.
Legal compliance [27.70] Officers cannot be satisfied their organisation complies with its legal obligations unless a legal compliance audit is undertaken periodically. That is, the safety management system requirements must be reviewed against the complete set of legislation, regulations, codes of practice and body of case law to ensure that the system meets all legal requirements. This can be prepared internally but once a year should be verified by a qualified external legal adviser much like financial accounts are audited by an external auditor. There should also be procedures for triggering reviews of relevant policies as legislative provisions change.
Verification [27.80] Due diligence requires more than mere provision of systems. It requires personal oversight to ensure that those resources are effectively implemented. This verification is in part fulfilled through commissioning and monitoring of safety audits. In WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Smith [2004] NSWIRComm 349, Staunton J held at [131]–[134] that: [due diligence] is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established. Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safe standards established are in fact being adhered to and under ongoing review.
In Daniels v Anderson (1995) 37 NSWLR 438 Clarke and Sheller JJA at [502] held that directors must exercise a reasonable degree of supervision and control over the activities of the company’s executive officers and may not rely on the 94
Tooma’s Annotated Work Health and Safety Act 2011
[28.20]
Part 2 – Health and safety duties
s 28
judgment of others where there is notice of mismanagement or where a matter for decision by the board poses an obvious risk. Importantly, the duty of a director is not limited to giving attention to the affairs of the company at periodic board meetings: Daniels v Anderson (1995) 37 NSWLR 438 at 501. The duty is also heightened where there is evidence of increased exposure. 28
Duties of workers While at work, a worker must: (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
Overview [28.10] Section 28 imposes a duty of care on workers. The section gives effect to recommendations 44 to 47 of the Stewart-Crompton Review. The First Report relevantly observed as follows at [9.18]–[9.19]: The objective of the duty of care placed on a worker is to ensure that the conduct or omissions of the worker do not expose any person to a risk to their health or safety. The role of the worker is more limited than that of the person for whom, or in whose business, the work is being undertaken. The worker has less ability to take active measures for health and safety. The worker’s ability to put themselves or others at risk is usually limited to their immediate conduct in acting in their role within the business or undertaking. The risk associated with the conduct of a worker is usually associated with a want of care or, occasionally, misconduct or failure to co-operate in relation to health and safety (e.g. a failure to follow instructions). We therefore consider the duty of care to be owed by a worker should have three elements: to take care of himself or herself; take care for other persons who may be affected by what the worker does or fails to do at work; and cooperate with reasonable action taken by the person conducting the business or undertaking (or the relevant person) in complying with the model Act.
Standard of duty [28.20] In relation to the standard of the duty of care to be imposed on workers, the Stewart-Crompton Review observed in the First Report at [9.20]–[9.21]: The duty of care, being subject to a consideration of what is reasonable, would necessarily be proportionate to the control a worker is able to exercise over his or her work activities and work environment. The test of reasonable care should not, in our view, be confused with the standard of conduct and proof required in a civil case for damages for negligence. A breach of the © 2017 THOMSON REUTERS
95
s 28
Work Health and Safety Act 2011 (NSW)
[28.20]
duty of care under the model Act would be a criminal offence, with significant penalties. We recommend that the model Act make clear that the requirement for proving negligence in other criminal laws apply to allegations of a breach of the duty of care of a worker. The application of that principle would require that the breach by the worker involved such a great falling short of the standard of care which a reasonable man in their position would have exercised, as to merit criminal punishment.
Section 28 of the Act deals with the reasonable care expected of a worker, only in her or his individual capacity as a worker. This is to be distinguished from the wider liability of individuals under the Act in other capacities, such as liability of an individual under s 27 of the Act as an officer: WorkCover Authority (NSW) v Wallis [1994] NSWIRComm 163. As Cunningham IM noted in Stevenson v Hoggard [1992] SAIRC 41 at 16: The defendant has been charged as an individual, and can only be called to account for his own acts or omissions as an employee, if the evidence should show any such acts or omissions to have been present. The defendant cannot be treated as in some sense a surrogate for the wider responsibilities of his (or his fellows’) employer, a wider responsibility that is separately expressed in the provisions of section 19 of the [Occupational Health, Safety and Welfare Act 1986 (SA)].
Embodiment of common law “neighbour principle” The duty of care of a worker is a codification of the common law duty of care. In WorkCover Authority (NSW) v Wallis (unreported, CT 1011 of 1995, 14 August 1996), Fisher P, Glynn and Hill JJ stated at 7–8: Section 19(a) … does not … impose a strict or absolute liability on an employee; it requires only that an employee shall take “reasonable care” for the health and safety of persons at work who may be affected by his acts and omissions at work. However, in our opinion, the test to be applied under the section in determining whether or not an employee has failed to take reasonable care in any act or omission which may affect another’s health or safety is an objective and not a subjective one. In other words, actual intent by the employee is not a necessary ingredient of contravention of the section. Nor, in our view, need the act or omission be a deliberate one. The section is mandatory and imposes a positive duty – to take reasonable care. Nevertheless, while the test is objective and “intent” is not necessary, all relevant circumstances must be taken into account in determining whether “reasonable care” was taken. For example, matters such as the employee’s state of knowledge, qualifications, expertise, experience and status as foreman, site supervisor or manager, are relevant to this issue.
Objective standard of care In WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469, Marks J considered the appropriate standard of care which is to be expected of an employee for the purposes of s 19(a) of the Occupational Health and Safety Act 1983 (NSW). His Honour concluded that an objective standard should be applied. His Honour said at 475: [T]he requisite standard to be applied is that which should reasonably in all the circumstances have been expected of an employee carrying out the duties and 96
Tooma’s Annotated Work Health and Safety Act 2011
[28.20]
Part 2 – Health and safety duties
s 28
discharging the responsibilities in a manner appropriate to the skills and expertise expected of a person holding himself or herself out to be able to undertake that work.
In Cruden, the defendant was a lift mechanic employed by Boral Johns Perry Industries Pty Ltd trading as Boral Elevators. Boral Elevators was called to release two people who had been trapped in a lift during a power failure which left a lift stranded between two floors. The defendant was dispatched to carry out the rescue. During the rescue, one of the people trapped in the lift was seriously injured when he fell in the lift shaft. One of the issues in the case was the inadequacy of the training and instructions given to the defendant by his employer in relation to the proper procedures for releasing people trapped in lifts. As Cunningham IM observed in Stevenson v Hoggard [1992] SAIRC 41, workers cannot be treated as in some way surrogates for the wider responsibilities of the person conducting a business or undertaking from whom they work. Section 28 should only be concerned with any acts and omissions of employees in relation to matters which they can control. This approach would be consistent with the approach taken by Cullen J in WorkCover Authority (NSW) v Wallis [1994] NSWIRComm 163. In Inspector Wolfe v Franklin (unreported, NSW CIMC, Miller CIM, No 89/927, 4 July 1990), Miller CIM held: [T]o determine the question of the reasonableness or otherwise of the employee’s conduct, it seems to me that the Court must determine whether the defendant has taken less care than that which a reasonable employee would have taken on the facts as they existed. It must be largely a matter of opinion based not only on the totality of the circumstances that existed but also on an assessment of the difficulties to be surmounted.
Absence of policies no excuse In Inspector Martin v Russell Larkham [2003] NSWIRComm 31, an employee was convicted of breaching the duty of care of an employee under predecessor laws for failing to address a faulty brake on a water tanker truck. The case related to an accident at a roadwork construction site at the Ewingsdale Interchange, adjacent to the Pacific Highway, Byron Bay. The defendant, an employee of Ridge Consolidated Pty Limited, was the foreman on the site. He was aware that a water tanker truck, used for spraying freshly graded sections of road, had faulty brakes but had not taken the truck out of use or notified the project manager on site. On the day of the accident, an employee was asked to drive a truck, by an operator also employed by Ridge. The employee parked the truck slightly uphill, stopped the truck, applied the handbrake and exited the truck to walk down to speak to another employee in a truck. As the two employees were speaking, the truck rolled downhill towards the driver’s side of the truck where the employees were. Another employee called out to them to “look out”. The employee ran to the truck, opened the door, reached in and grabbed the steering wheel with one hand and pulled the handbrake on. The truck collided with the other truck. The employee was caught in the door. He then fell between the two vehicles on the ground. © 2017 THOMSON REUTERS
97
s 29
Work Health and Safety Act 2011 (NSW)
[29.10]
Boland J held at [14]: The defendant’s failure to take any steps to effect repairs to the handbrake and his failure to prevent persons from operating the truck until the handbrake was repaired amounts to a relatively serious offence. That persons might be injured as a consequence of these failures was, as I have said, reasonably foreseeable. Moreover, simple, straightforward steps were available to remedy the defective handbrake and to prevent persons from operating the truck until the handbrake was repaired.
His Honour also noted that the defendant was aware of the defective handbrake on the water tanker truck but that he took no action to have it repaired because he presumed it “was someone else’s responsibility”. His Honour also noted that the defendant failed to prevent employees from operating the truck while the handbrake was defective or indeed inform the employee concerned of the defect. His Honour said at [12]–[13]: That the health and safety of persons at the defendant’s place of work might be endangered by a defective handbrake was reasonably foreseeable on objective standards … [The tanker] was used nearly every day for the two months prior to the accident. The defendant was aware of the defective handbrake, having signed off on checklists indicating the defect on a weekly basis. The fact that Ridge had no policy or system in place to repair defective vehicles did not, given all of the circumstances, relieve the defendant of his duty to take reasonable care that persons at his place of work would not be injured by a vehicle with a defective handbrake.
His Honour found the defendant guilty. 29
Duties of other persons at the workplace A person at a workplace (whether or not the person has another duty under this Part) must: (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.
Overview of duty of other persons [29.10] Section 29 imposes a duty on any person at a workplace to take reasonable care with respect to their own health and safety and the health and safety of others. That is a codification of the common law duty of care. Section 29(c) requires such persons to also follow the reasonable directions of the person conducting a business or undertaking at the workplace. Although intended to apply to visitors and workplaces, the duty is not restricted to visitors. It especially applies to trespassers, members of the public at workplaces such as shopping centres, union officials at the workplaces of their 98
Tooma’s Annotated Work Health and Safety Act 2011
[29.10]
Part 2 – Health and safety duties
s 33
members and even home owners when contractors are undertaking work at their home. See discussion at [28.20] for standard of care. DIVISION 5 – OFFENCES AND PENALTIES 30
Health and safety duty
In this Division, health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part. 31
Reckless conduct—Category 1 (1) A person commits a Category 1 offence if: (a) the person has a health and safety duty, and (b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and (c) the person is reckless as to the risk to an individual of death or serious injury or illness.
Maximum penalty: (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment or both, or (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment or both, or (c) in the case of an offence committed by a body corporate—$3,000, 000. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 32
Failure to comply with health and safety duty—Category 2 A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
Maximum penalty: (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000, or (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000, or (c) in the case of an offence committed by a body corporate—$1,500, 000. 33
Failure to comply with health and safety duty—Category 3 A person commits a Category 3 offence if:
© 2017 THOMSON REUTERS
99
s 33
Work Health and Safety Act 2011 (NSW)
[35.10]
(a) (b) Maximum (a)
the person has a health and safety duty, and the person fails to comply with that duty. penalty: in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50,000, or (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100,000, or (c) in the case of an offence committed by a body corporate—$500,000.
34
Exceptions
(1) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29. (2) An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act. (3) However: (a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27, and (b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.
Part 3 – Incident notification 35
What is a “notifiable incident” In this Act, notifiable incident means: (a) the death of a person, or (b) a serious injury or illness of a person, or (c) a dangerous incident.
Overview [35.10] The Act requires certain incidents to be notified to the Regulator: s 38. These are called “notifiable incidents”. Section 35 defines the phrase “notifiable incident”. It does so by reference to three categories: (a) the death of a person; (b) a serious injury or illness of a person which is defined in s 36; and (c) a dangerous incident which is defined in s 37.
Death of a person [35.20] The death of a person is a notifiable incident if the death arose out of the conduct of the business or undertaking regardless where death occurs: s 38.
Serious injury or illness [35.30] “Serious injury or illness” is defined in s 36 of the Act to mean an injury or illness requiring the person to have: 100
Tooma’s Annotated Work Health and Safety Act 2011
[35.40]
Part 3 – Incident notification
s 35
(a) immediate treatment as an in-patient in a hospital, or (b) immediate treatment for: (i) the amputation of any part of his or her body, or (ii) a serious head injury, or (iii) a serious eye injury, or (iv) a serious burn, or (v) the separation of his or her skin from an underlying tissue (such as degloving or scalping), or (vi) (vii) (viii) (c) medical
a spinal injury, or the loss of a bodily function, or serious lacerations, or treatment within 48 hours of exposure to a substance.
Section 36 allows the Regulations to prescribe or exclude certain injury or illnesses from the list. Clause 699 prescribes the following additional serious illnesses for the purpose of s 36: (a) any infection to which the carrying out of work is a significant contributing factor, including any infection that is reliably attributable to carrying out work: (i) with micro-organisms, or (ii) that involves providing treatment or care to a person, or (iii) that involves contact with human blood or body substances, or (iv) that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products, (b) the following occupational zoonoses contracted in the course of work involving handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products: (i) Q fever, (ii) Anthrax, (iii) Leptospirosis, (iv) Brucellosis, (v) Hendra Virus, (vi) Avian Influenza, (vii) Psittacosis.
Dangerous incident [35.40] Section 37 defines “dangerous incident” to mean an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to: (a) an uncontrolled escape, spillage or leakage of a substance, or © 2017 THOMSON REUTERS
101
s 35
Work Health and Safety Act 2011 (NSW)
(b) (c) (d) (e)
[35.50]
an uncontrolled implosion, explosion or fire, or an uncontrolled escape of gas or steam, or an uncontrolled escape of a pressurised substance, or electric shock, or
(f) the fall or release from a height of any plant, substance or thing, or (g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations, or (h) the collapse or partial collapse of a structure, or (i) the collapse or failure of an excavation or of any shoring supporting an excavation, or (j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel, or (k) the interruption of the main system of ventilation in an underground excavation or tunnel. Like s 36, s 37 enables the inclusion or exclusion of certain incidents from the definition through regulations. No such inclusions or exclusion have been prescribed.
Timing and manner of notification [35.50] If an incident is a notifiable incident, the incident must be notified to the Regulator by the fastest possible means: s 38(2). The notification must be given by telephone or in writing (including email or facsimile): s 38(3). Telephone notification If notification of an incident is done by telephone, the person giving notice must give the details of the incident requested by the regulator and if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made. Written notification A written notice must be in a form, or contain the details, approved by the regulator. A person conducting a business or undertaking must keep a record of each notifiable incident for at least five years from the day that notice of the incident is given to the regulator under this section.
Site preservation [35.60] The site of a notifiable incident must not be disturbed until an inspector arrives at the site or lifts the site preservation requirement: s 39. That includes any plant, substance, structure or thing associated with the notifiable incident: s 39(2). The site preservation requirements apply automatically and are also lifted automatically by the attendance of the inspector on site unless a non-disturbance 102
Tooma’s Annotated Work Health and Safety Act 2011
[36.20]
Part 3 – Incident notification
s 36
notice is issued by the inspector under s 198. Such a notice may apply up to seven days but the inspector may issue subsequent notices: s 201. These site preservation requirements, however, do not prevent any action to assist an injured person; remove a deceased person; or any action that is essential to make the site safe or to minimise the risk of a further notifiable incident: s 39(3)(a) – (c). Nor does the restriction prevent actions associated with a police investigation or for which an inspector or the regulator has given permission: s 39(3)(d) – (e). 36
What is a “serious injury or illness” In this Part, serious injury or illness of a person means an injury or illness requiring the person to have: (a) immediate treatment as an in-patient in a hospital, or (b) immediate treatment for: (i) the amputation of any part of his or her body, or (ii) a serious head injury, or (iii) a serious eye injury, or (iv) a serious burn, or (v) the separation of his or her skin from an underlying tissue (such as degloving or scalping), or (vi) a spinal injury, or (vii) the loss of a bodily function, or (viii) serious lacerations, or (c) medical treatment within 48 hours of exposure to a substance, and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.
Overview [36.10] Section 36 defines “serious injury or illness” in the definition of “notifiable incident” in s 35. If an incident arising from the conduct of a business or undertaking of a person constitutes a “serious injury or illness” it is a notifiable incident for the purpose of s 35 and therefore the person conducting that business or undertaking has a duty to notify that incident under s 38 and not to disturb the incident site under s 39.
Serious [36.20] “Serious” is a qualification to a number of injuries or illnesses captured by the definition of “serious injury or illness” including: head injury (s 36(b)(ii)); eye injury (s 36(b)(iii)); burn (s 36(b)(iv)); and laceration (s 36(b)(viii)). Serious is not defined in the legislation and therefore takes on its ordinary meaning of “critical”, “giving cause for apprehension”, or “of grave aspect”: Macquarie Dictionary, 5th edition, 2009.
© 2017 THOMSON REUTERS
103
s 36
Work Health and Safety Act 2011 (NSW)
[36.30]
Injury or illness [36.30] Section 36 applies to injuries and illnesses. Neither “injury” nor “illness” is defined in the Act and therefore take on respectively their ordinary meanings. “Injury” means “harm of any kind done or sustained” to a person: Macquarie Dictionary, 5th edition, 2009. “Illness” means “a state of bad health” or “sickness”: Macquarie Dictionary, 5th edition, 2009. Given that s 4 of the Act defines health to mean “physical and psychological health”, the “injuries” and “illnesses” caught by s 36 are not restricted to physical injuries and illnesses but may include psychological illnesses.
Immediate treatment [36.40] “Immediate treatment” is a qualifying phrase to all but one category of injuries and illnesses for the purpose of the definition of “serious injury or illness” under s 36: see s 36(a) and s 36(b)(i) – (viii). The phrase “immediate treatment” is not defined in the Act and therefore takes on its ordinary meaning. “Immediate” means “occurring or accomplished without delay” or “instant”: Macquarie Dictionary, 5th edition, 2009. “Treatment” relevantly means “the application of medicines, surgery, psychotherapy to a patient to cure a disease or condition”: Macquarie Dictionary, 5th edition, 2009. Therefore “immediate treatment” is the urgent application of such medicines or medical techniques. However, given the context, such treatment need not be in a hospital. Only one category specifies being an in-patient in a hospital, suggesting that other categories need not be restricted in that way: contrast s 36(a) with s 36(b).
Inpatient [36.50] Section 36(a) requires an injury or illness requiring a person to have immediate treatment as an inpatient in a hospital to be notified as a notifiable incident under s 38 by virtue of s 35 of the Act. Inpatient is not defined in the Act and therefore takes on its ordinary meaning of “a patient who is accommodated in a hospital for the duration of their treatment”: Macquarie Dictionary, 5th edition, 2009 (author’s emphasis). The Farlex Medical Dictionary goes further to define inpatient as “a patient who is admitted to a hospital or clinic for treatment that requires at least one overnight stay”: Farlex Medical Dictionary, USA. A mere X-ray or medical check-up in a hospital following an incident would not be sufficient to trigger the notification requirements. The procedure would need to involve admission to hospital and being assigned a hospital bed.
Additional prescribed illnesses [36.60] Section 36 allows the Regulation to prescribe or exclude certain injury or illnesses from the list. Clause 699 prescribes the following additional serious illnesses for the purpose of s 36: (a) any infection to which the carrying out of work is a significant contributing factor, including any infection that is reliably attributable to carrying out work: 104
Tooma’s Annotated Work Health and Safety Act 2011
[36.60]
Part 3 – Incident notification
s 37
(i) (ii) (iii) (iv)
with micro-organisms, or that involves providing treatment or care to a person, or that involves contact with human blood or body substances, or that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products, (b) the following occupational zoonoses contracted in the course of work involving handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products: (i) Q fever, (ii) (iii) (iv) (v)
Anthrax, Leptospirosis, Brucellosis, Hendra Virus,
(vi) Avian Influenza, (vii) Psittacosis. 37
What is a “dangerous incident”
In this Part, a dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to: (a) an uncontrolled escape, spillage or leakage of a substance, or (b) an uncontrolled implosion, explosion or fire, or (c) an uncontrolled escape of gas or steam, or (d) an uncontrolled escape of a pressurised substance, or (e) electric shock, or (f) the fall or release from a height of any plant, substance or thing, or (g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations, or (h) the collapse or partial collapse of a structure, or (i) the collapse or failure of an excavation or of any shoring supporting an excavation, or (j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel, or (k) the interruption of the main system of ventilation in an underground excavation or tunnel, or (l) any other event prescribed by the regulations, but does not include an incident of a prescribed kind.
© 2017 THOMSON REUTERS
105
s 37
Work Health and Safety Act 2011 (NSW)
[37.10]
Overview [37.10] Section 37 defines “dangerous incidents” for the purpose of s 35. “Dangerous incidents” are notifiable incidents and therefore must be notified by a person who conducts a business or undertaking if they arise out of the conduct of their business or undertaking: s 38.
Incident in relation to a workplace [37.20] Section 37 defines “dangerous incidents” by reference to “incidents in relation to a workplace”. “In relation to” While section 37 confines the dangerous incident definition by reference to workplaces, the definition is not limited to incidents that occur “at” workplaces but rather incidents “in relation to” workplaces. A mere connection with the workplace is sufficient. Workplace “Workplace” is defined in s 8 of the Act to mean a place where work is carried out for a “business or undertaking”. It includes any “place” where a “worker” goes or is likely to be while at work. “Place” for the purpose of the definition includes a vehicle, vessel, aircraft, mobile structure, and any waters, any installation on land, on the bed of any waters or floating on any waters: s 8(2). “Worker” is defined in s 7 to mean a person who carries out work in any capacity for a person conducting a business or undertaking including an employee, a contractor, a subcontractor, an employee of a contractor or subcontractor, a labour hire worker, an outworker, an apprentice, a trainee, a student on work experience, or a volunteer: s 7.
Exposure to serious risk [37.30] Section 37 is limited to incidents that involve an exposure to “serious risk” to health and safety. The phrase “serious risk” is not defined in the legislation and therefore takes on its ordinary meaning of “critical” or “grave” risk (Macquarie Dictionary, 5th edition, 2009) measured in terms of both likelihood and consequences.
Risk emanating from immediate or imminent exposure [37.40] The phrase “serious risk” is further restricted to risks emanating from immediate or imminent exposure to certain specified hazards. That is, exposure which is immediate as in “direct” exposure, or imminent as in “impending” or “likely to occur any moment”: Macquarie Dictionary, 5th edition, 2009. The existence of relevant controls are therefore relevant to the consideration of whether a particular incident is a dangerous incident. 106
Tooma’s Annotated Work Health and Safety Act 2011
[37.60]
Part 3 – Incident notification
s 38
Uncontrolled [37.50] The term “uncontrolled” is used as a qualifier to a number of hazards including: escape, spillage or leakage of a substance (s 37(a)); implosion, explosion or fire, (s 37(b)); escape of gas or steam (s 37(c)) and escape of a pressurised substance, or (s 37(d)). “Uncontrolled” is not defined in the Act and therefore takes on its ordinary meaning of “unrestrained”: Macquarie Dictionary, 5th edition, 2009.
Escape of substance or gas [37.60] Under s 37(a) an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to an uncontrolled escape, spillage or leakage of a substance is a dangerous incident and as such a notifiable incident. The section is not restricted to hazardous substances. Any immediate or imminent exposure to an uncontrolled release of substance is notifiable provided it meets the “serious risk” qualification. 38
Duty to notify of notifiable incidents
(1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (2) The notice must be given in accordance with this section and by the fastest possible means. (3) The notice must be given: (a) by telephone, or (b) in writing. Example. The written notice can be given by facsimile, email or other electronic means.
(4) A person giving notice by telephone must: (a) give the details of the incident requested by the regulator, and (b) if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made. (5) A written notice must be in a form, or contain the details, approved by the regulator. (6) If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking: (a) details of the information received, or (b) an acknowledgement of receiving the notice. (7) A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is © 2017 THOMSON REUTERS
107
s 38
Work Health and Safety Act 2011 (NSW)
[38.10]
given to the regulator under this section. Maximum penalty: (a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000. (8) Despite subsection (1), a person is not required to give notice under this section of an incident that occurs at a workplace to which the Work Health and Safety (Mines and Petroleum Sites) Act 2013 applies. [Subs (8) am Act 43 of 2015, Sch 2[3]; Act 54 of 2013, Sch 3.14[4]; subst Act 67 of 2011, Sch 1[5]] [S 38 am Act 43 of 2015; Act 54 of 2013; Act 67 of 2011]
Overview [38.10] Section 38 is the operative incident notification provision. It imposes the obligation on a person who conducts a business or undertaking to ensure the Regulator is notified of incidents falling within the definition of “notifiable incident” under s 35. Section 38 prescribes the manner and timing of such notification. The duty is to “ensure the Regulator is notified” rather than necessarily to notify. That is, if the duty holder is satisfied that notification in accordance with the Act has taken place, they would not have a separate duty to do so.
Person who conducts a business or undertaking [38.20] The duty imposed by s 38 is imposed on a person who conducts a business or undertaking rather than a “person conducting a business or undertaking” which is the defined term in s 5. It is not clear why the legislature chose to depart from the universally used terminology in this instance, but the departure means that the s 5 definition does not apply. That phrase takes on its ordinary meaning. The inclusions and exclusions sets out in s 5 cannot be assumed to automatically apply save as they may apply by operation of the ordinary meaning of the words in the context of s 38.
Timing of notification [38.30] A person who conducts a business or undertaking is required to notify the Regulator immediately upon becoming aware of a notifiable incident arising from the conduct of their business or undertaking. Immediately means without delay. Hence, the usual corporate procedures requiring escalation of notifications and taking advice may be problematic in the face of this obligation.
Manner of notification [38.40] Notification must be effected by the quickest available means including telephone or in writing (by email or facsimile). Notification which is made in writing must be in the form prescribed by the regulator: s 38(5).
108
Tooma’s Annotated Work Health and Safety Act 2011
[39.30]
39
Part 3 – Incident notification
s 39
Duty to preserve incident sites
(1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (2) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident. (3) Subsection (1) does not prevent any action: (a) to assist an injured person, or (b) to remove a deceased person, or (c) that is essential to make the site safe or to minimise the risk of a further notifiable incident, or (d) that is associated with a police investigation, or (e) for which an inspector or the regulator has given permission. (4) This section does not apply to a workplace to which the Work Health and Safety (Mines and Petroleum Sites) Act 2013 applies. [Subs (4) am Act 43 of 2015, Sch 2[3]; Act 54 of 2013, Sch 3.14[5]] [S 39 am Act 43 of 2015; Act 54 of 2013]
Overview [39.10] Section 39 requires that the person with management or control of a workplace at which a notifiable incident has occurred is to ensure, so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site. However, the inspector may waive the site preservation requirement. This will occur, for example, if the inspector does not wish to attend the site. The site preservation requirements are lifted once the inspector attends site. However, if the inspector wishes to preserve the site after their visit, they can issue a non-disturbance notice: s 198.
Meaning of reasonably practicable [39.20] “Reasonably practicable” is not a defined term for the purpose of this part and as such takes on its ordinary meaning of what is reasonable to be done in all the circumstances.
Site [39.30] “Site” of a notifiable incident for the purpose of s 39 includes any plant, substance, structure or thing associated with the notifiable incident: s 39(2). © 2017 THOMSON REUTERS
109
s 40
Work Health and Safety Act 2011 (NSW)
[39.40]
Exception to site preservation [39.40] Section 39 does not prevent a person from assisting an injured person, removing a deceased person or doing anything that is essential to make the site safe or to minimise the risk of a further notifiable incident: s 39(3)(a) – (c). The requirements also do not prevent any action that is associated with a police investigation or for which an inspector or the regulator has given permission: s 39(d) – (e).
Part 4 – Authorisations 40
Meaning of “authorised” In this Part, authorised means authorised by a licence, permit, registration or other authority (however described) as required by the regulations. 41
Requirements for authorisation of workplaces
A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if: (a) the regulations require the workplace or workplaces in that class of workplace to be authorised, and (b) the workplace is not authorised in accordance with the regulations. Maximum penalty: (a) in the case of an individual—$50,000, or (b) in the case of a body corporate—$250,000. 42
Requirements for authorisation of plant or substance
(1) A person must not use plant or a substance at a workplace if: (a) the regulations require the plant or substance or its design to be authorised, and (b) the plant or substance or its design is not authorised in accordance with the regulations. Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. (2) A person who conducts a business or undertaking must not direct or allow a worker to use the plant or substance at a workplace if: (a) the regulations require the plant or substance or its design to be authorised, and (b) the plant or substance or its design is not authorised in accordance with the regulations. Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. 43
Requirements for authorisation of work (1) A person must not carry out work at a workplace if: (a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised, and
110
Tooma’s Annotated Work Health and Safety Act 2011
[39.40]
Part 4 – Authorisations
(b)
s 45
the person, or the person on whose behalf the work is carried out, is not authorised in accordance with the regulations.
Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. (2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if: (a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised, and (b) the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with the regulations. Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. 44
Requirements for prescribed qualifications or experience (1) A person must not carry out work at a workplace if: (a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience, and (b) the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.
Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. (2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if: (a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience, and (b) the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. 45
Requirement to comply with conditions of authorisation
A person must comply with the conditions of any authorisation given to that person under the regulations. Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. © 2017 THOMSON REUTERS
111
s 46
Work Health and Safety Act 2011 (NSW)
[46.10]
Part 5 – Consultation, representation and participation DIVISION 1 – CONSULTATION, CO-OPERATION AND CO-ORDINATION BETWEEN DUTY HOLDERS 46
Duty to consult with other duty holders If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000.
Overview [46.10] The horizontal consultation duty is a key plank of the Act. It requires overlapping duty holders to consult, coordinate and cooperate with each other in relation to areas of overlap of the duty. This duty has always been implied in the scope of the duty of care: Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84; [2000] NSWIRComm 239. Mainbrace was an appeal from the decision of Kavanagh J finding the appellant guilty of breaching s 16(1) of the Occupational Health and Safety Act 1983 (NSW) (the duty of employers with respect to other persons). The prosecution arose from an incident that occurred when a trafficable suspended ceiling, on which three workers were standing, collapsed. The three workers were employees of an electrical contractor, Kennedy-Taylor (NSW) Pty Ltd, which had been subcontracted by the appellant to carry out electrical work at the premises of Chisholm Manufacturing, a division of Woolworths Ltd. The appellant, in turn, had been contracted by Pinnacle Pacific Pty Ltd, the project manager appointed by Chisholm, to carry out building renovation work on sections of a meat processing facility which was owned and occupied by Chisholm at Blacktown. Mainbrace was prosecuted for, amongst other things, failing to instruct all persons engaged in construction works at the site that the suspended ceiling above the Hanging Area was not to be entered or used as an access way until its structural integrity for such purposes was adequately assessed and failing to notify employees of Thermal Insulations Pty Ltd and Kennedy-Taylor (NSW) Pty Ltd, of the demolition of the dust suppression wall which had been erected in the Hanging Area, and of the potential effect of this on the structural integrity of the trafficable suspended ceiling in the Area. The Full Bench of the New South Wales Industrial Relations Commission held at [73]–[76]: a proper risk assessment would have also focused on the work associated with the demolition and re-construction of the northern wall – including the removal of the dust wall – and how it might affect the ceiling as a means of access and egress. This 112
Tooma’s Annotated Work Health and Safety Act 2011
[46.10]
Part 5 – Consultation, representation and participation
s 46
would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety … It follows, we think … a failure to instruct persons that the ceiling space above the Hanging Area was not to be entered or used as an access until its structural integrity had been adequately assessed. The appellant had submitted that there was no evidence that it had control over access to the ceiling space and, therefore, was not in a position to instruct persons not to enter the space. If an employer is conducting an undertaking and has a statutory duty to ensure that persons not in its employment are not exposed to risks to health or safety, that employer is under an obligation to stipulate whatever conditions are needed to avoid those risks. The employer cannot, having omitted to do so, say that he was not in a position to exercise control … The evidence is that there were no instructions given to any persons that the ceiling space above the Hanging Area was not to be entered or used as an access way until its structural integrity had been adequately assessed. It appears that the appellant was not even aware of the risk. But it is not a matter whether the appellant was or was not aware. It is a matter of whether the appellant should have been aware … If the appellant had been aware, as it should have been, instructions not to use the trafficable ceiling until its safety was assured would have prevented the risk to safety arising.
Section 46 expressly creates a separate and express duty for such consultation. The Explanatory Memorandum for the model Bill provides the following justification at [194]: Managing work health and safety risks is more effective if duty holders exchange information on how the work should be done so that it is without risk to health and safety. Co-operating with other duty holders and co-ordinating activities is particularly important for workplaces where there are multiple PCBUs.
There are three separate and interrelated elements of the duty under s 46, namely consultation, cooperation and coordination. A duty holder does not comply with s 46 unless they comply with all three elements of the duty to the requisite standard of reasonable practicability. In Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14, a labour hire company was convicted and fined $12,000 for failing to consult coordinate and co-operate with an overlapping duty holder. Mr Jack Reynolds was an apprentice, employed by Trainee and Apprentice Services Inc (TAPS) and placed at Shear Edge Roofing was seriously injured when guttering he was handling came into contact with overhead low voltage and high voltage wires. Shear Edge Roofing was engaged by Inspire Construction Services Pty Ltd. No Job safety analysis was done by TAPS prior to placing Mr Reynolds on the job site. In relation to the risk, Industrial Magistrate Ardlie observed at [6]: There were no safety measures in place on the site. The site involved a high risk with the proximity of the powerlines. It was surely not rocket science that an employer and also the person in control, or the company in control of the site, which I am told is the © 2017 THOMSON REUTERS
113
s 46
Work Health and Safety Act 2011 (NSW)
[46.20]
third defendant, Inspire Construction Services Pty Ltd, which is now in liquidation, could have seen, as I can see from the photographs, that the powerlines presented a real and present danger.
On the consultation obligation, Industrial Magistrate Ardlie observed at [8]: The defendant, prior to this incident, certainly had an awareness of work health and safety issues. It had three field officers on site who attempted to attend the various sites every eight weeks.…nevertheless there remained the duty to consult with other duty holders, and that is made clear by s 46 which is the basis upon which the prosecution proceeds.
Reasonable practicability [46.20] The duty imposed by s 46 is qualified by reasonable practicability. As the Explanatory Memorandum to the model Bill correctly observes at [195] “[t]he phrase ‘so far as is reasonably practicable’ is not defined in this context, so its ordinary meaning will apply”. That is, reasonably feasible – something reasonable capable of being put into practice, done or effected within the available means: Macquarie Dictionary, 5th edition, 2009. It is a narrower concept than “physically” possible: Edwards v National Coal Board [1949] 1 All ER 743 at 747; Marshall v Gotham Co Ltd [1954] AC 360; and Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6.
Code of Practice on consultation [46.30] The Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice also provides further guidance. Under s 275 of the Act, a code of practice is admissible in proceedings under the Act as evidence of whether or not a duty or obligation under the Act has been complied with: s 275(2). In that respect, the court may have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates and rely on the code in determining what is reasonably practicable in the circumstances to which the code relates: s 275(3).
Consult [46.40] While consultation is defined for the purpose of Pt 5 Div 2, that definition does not apply to s 46. As such, “consult” takes on its ordinary relevant meaning of taking counsel, referring to a person for information and having regard for a person’s interest or convenience in making plans: Macquarie Dictionary, 5th edition, 2009. In Dixon v Roy [1991] ACL Rep 355 NSW 55, Young J, in the Supreme Court of NSW noted that consultation involves, at the very least, a three-pronged process of providing information to the person who is to be consulted; receiving a response to that information; and considering that response. While Young J was considering consultation in the context of Conveyancing Act 1919 (NSW), the analysis is instructive to its use in s 46. In CPSU v Vodafone Network Pty Ltd [2001] AIRC 1189 the court noted at [25] that: 114
Tooma’s Annotated Work Health and Safety Act 2011
[46.50]
Part 5 – Consultation, representation and participation
s 46
Consultation is not perfunctory advice on what is about to happen. This is a common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.
See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591. The Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice at p 19 provides that: The objective of consultation is to make sure everyone associated with the work has a shared understanding of what the risks are, which workers are affected and how the risks will be controlled. The exchange of information will allow the duty holders to work together to plan and manage health and safety.
In that regard, the Code provides that consultation should include: • what each will be doing, how, when and where and what plant or substances may be used • who has control or influence over aspects of the work or the environment in which the work is being undertaken • ways in which the activities of each duty holder may affect the work environment • ways in which the activities of each duty holder may affect what others do • identifying the workers that are or will be involved in the activity and who else may be affected by the activity • what procedures or arrangements may be in place for the consultation and representation of workers, and for issue resolution • what information may be needed by another duty holder for health and safety purposes • what each knows about the hazards and risks associated with their activity • whether the activities of others may introduce or increase hazards or risks • what each will be providing for health and safety, particularly for controlling risks • what further consultation or communication may be required to monitor health and safety or to identify any changes in the work or environment.
In relation to the interrelationship between consultation, cooperation and coordination the Code provides at p 19 that: consultation will determine which health and safety duties are shared and what each person needs to do to co-operate and co-ordinate activities with each other to comply with their health and safety duty.
Cooperate [46.50] Cooperate is not defined in the Act, therefore it takes on its ordinary meaning of working or acting together or jointly: Macquarie Dictionary, 5th edition, 2009. The meaning of “cooperate” was considered in the context of international insolvency laws by the Supreme Court of New South Wales in Re Chow Cho Poon (Private) Ltd [2011] NSWSC 300. The question before the court in that © 2017 THOMSON REUTERS
115
s 46
Work Health and Safety Act 2011 (NSW)
[46.60]
case was whether the local court “cooperates” with a foreign court simply by deploying its own jurisdiction in support of orders made by the foreign court for the purpose of the UNCITRAL Model Law on Cross Border Insolvency as enacted in Australia requiring that the court “cooperate” to the maximum extent possible with a relevant foreign court on certain matters of insolvency. Barrett J relevantly held in relation to the meaning of “cooperate” at [59]: “Cooperate” means literally “work with” or “act with”. What Art 25 envisages is some form of collaboration, joint enterprise or agreed parallel or complementary action of two or more courts in relation to the exercise of the independent jurisdiction of each … It is not possible to think that one court can “cooperate with” another without that other being aware.
The analysis of the Supreme Court is instructive, by analogy, in the relation to the duty to consult, cooperate and coordinate under s 46 of the Act. Barrett J observed that in cooperating with a court of a foreign jurisdiction, the court should not disregard important provisions of its own legal system. Furthermore, Barrett J observed that cooperation in the relevant context should also include enforcement. Both observations are useful in the work health and safety context. In requiring a duty holder to cooperate with another duty holder in relation to discharging their respective duties in areas of overlap of activities, a duty holder cannot simply ignore their own systems and processes and simply rely on the other duty holder’s assessment of the risks or suggested controls. They must continue to have regard to their own safe systems of work and consider and assess the adequacy of any proposed measures to address risks arising from the activities, particularly the interaction between the respective activities of the duty holders. Furthermore, cooperation implies mutual or joint enforcement by the overlapping duty holders of the relevant controls. The Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice provides at p 20 that cooperation: may involve implementing arrangements in accordance with any agreements reached during consultation with the other duty holder and involve not acting in a way that may compromise what they are doing for health and safety. Co-operation also means that, if you are approached by other duty holders wanting to consult with you on a health and safety matter, you should not obstruct communication and respond to reasonable requests from other duty holders to assist them in meeting their duty.
Coordinate [46.60] The duty imposed by s 46 requires the relevant duty holder to coordinate their activities with overlapping duty holders. Like its related terms regarding horizontal consultation duty, “coordinate” is also not defined and takes on its ordinary meaning of “to combine in harmonious relation or action”: Macquarie Dictionary, 5th edition, 2009. At the very least, the duty to coordinate means that the respective duty holders must ensure that any risks arising from the interaction of controls they have put in place are managed effectively. The Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice provides at p 20 that: 116
Tooma’s Annotated Work Health and Safety Act 2011
[47.20]
Part 5 – Consultation, representation and participation
s 47
[t]he co-ordination of activities requires duty holders to work together so that each person can meet their duty of care effectively without leaving any gaps in health and safety protection … This will include making sure that the measures you each put in place work effectively together to control the risks. You should: • identify when and how each control measure is to be implemented • ensure control measures complement each other. Co-ordination of activities may include the scheduling of work activities so that each duty holder carries out their work separately. It may require work to be arranged in a way that will allow for necessary precautions to be in place or pre-conditions met before particular work is done.
Furthermore, the Code provides that where work is not effectively coordinated, the parties should consult further to determine what should be changed. DIVISION 2 – CONSULTATION WITH WORKERS 47
Duty to consult workers
(1) The reasonably regulations, who are, or or safety.
person conducting a business or undertaking must, so far as is practicable, consult, in accordance with this Division and the with workers who carry out work for the business or undertaking are likely to be, directly affected by a matter relating to work health
Maximum penalty: (a) in the case of an individual—$20,000, or (b) in the case of a body corporate—$100,000. (2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures. (3) The agreed procedures must not be inconsistent with section 48.
Overview [47.10] Section 47 imposes a duty on the person conducting a business or undertaking to consult with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. The section gives effect to Recommendation 96 of the Stewart-Crompton Review which was in the following terms: The model Act should include a broad obligation for the person conducting the business or undertaking most directly involved in the engagement or direction of the affected workers to consult with those workers (and their representatives), as far as is reasonably necessary, about matters affecting, or likely to affect, their health and safety.
Triggers for consultation [47.20] The Stewart-Crompton Review further recommends that consultation: occur when any of the following activities is undertaken: © 2017 THOMSON REUTERS
117
s 47
Work Health and Safety Act 2011 (NSW)
[47.30]
a) identifying hazards and assessing risks arising from the work performed or to be performed at the business or undertaking; b) making decisions about ways to eliminate or control those risks; c) the adequacy of facilities for the welfare of workers; d) proposing changes that may directly affect the health and safety of workers; e) making decisions regarding procedures for the resolution of health and safety issues, consultation mechanisms, monitoring the health of workers and conditions at the workplace; and f) the provision of information and training for workers.
Section 49 gives effect to those triggers.
Duty applies to workers [47.30] The duty imposed by s 47 applies to workers and not just employees. “Worker” is defined in s 7 of the Act to mean anyone who “carries out work in any capacity for a person conducting a business or undertaking”. Section 7 goes on to define worker to include an employee, a contractor, a subcontractor, an employee of a contractor or subcontractor, a labour hire worker, an apprentice, a trainee, a student on work experience, an outworker and a volunteer. Additional categories of workers are also prescribed such as member of the Australian Defence Forces and Federal Police at a Commonwealth level and members of the Police force at a State level.
Meaning of consultation [47.40] Consultation is defined in s 48 to mean provision of relevant information about the matter with workers and giving the worker a reasonable opportunity to express their views and to raise work health or safety issues in relation to the matter and to contribute to the decision-making process relating to the matter. Consultation requires that the views of workers are taken into account by the person conducting the business or undertaking and that the workers consulted are advised of the outcome of the consultation in a timely manner. It follows therefore that consultation does not mean negotiation. It is not joint decision making: CPSU v Vodafone Network Pty Ltd [2001] AIRC 1189. The views of the worker need not be adopted. The duty merely requires those views to be taken into account by the duty holder – the relevant person conducting the business or undertaking. In TVW Enterprises Ltd v Duffy (1985) 62 ALR 63, in interpreting consultation provisions in the Broadcasting and Television Act 1942 (Cth), Sheppard J observed at 70 that each case depends on its own facts. However, “consultation needs to be real; it must not be a merely formal or perfunctory exercise”. See also CPSU v Vodafone Network Pty Ltd [2001] AIRC 1189. Even though the person conducting the business or undertaking retained the right and duty to make the final decision following consultation, consultation is not a mere formality. It is a process designed to assist the persons conducting the business or undertaking by giving them access to ideas from workers as well 118
Tooma’s Annotated Work Health and Safety Act 2011
[47.60]
Part 5 – Consultation, representation and participation
s 47
as provide an opportunity for workers to point out any health and safety issues arising from the relevant decision whether as it relates to the effectiveness of controls, the interaction of various controls or the practical difficulties of implementing the proposed controls: See QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150.
Reasonable practicability [47.50] The duty imposed by s 47 is qualified by reasonable practicability. Reasonable practicability is not defined for the purpose of s 47 and therefore takes on its ordinary meaning. The Explanatory Memorandum to the model Bill provides the following explanation of the scope of the duty at [197]–[200]: The duty to consult is qualified by the phrase “so far as is reasonably practicable”. This qualification requires the level of consultation to be proportionate to the circumstances, including the significance of the workplace health or safety issue in question. What is reasonably practicable will depend on the circumstances surrounding each situation. A PCBU may need to take into account the urgency of the requirement to change the work environment, plant or systems etc., and the availability of workers most directly affected or their representatives. The extent of consultation that is reasonably practicable must be that which will ensure that the relevant PCBU has all relevant available information, including the views of workers and can therefore make a properly informed decision. More serious health or safety matters will generally attract more extensive consultation requirements. The consultation should also ensure that the workers are aware of the reasons for decisions made by the PCBU – and even if they do not agree with the decisions – can understand them. This will make compliance with systems of work, including the use of protective devices or equipment provided, more likely to occur and be effective.
This is consistent with the ordinary meaning of “reasonably practicable” which (as indicated in the context of s 46 at [46.20]) means reasonably feasible or capable of being put into practice in the circumstances rather than what is strictly possible: Edwards v National Coal Board [1949] 1 All ER 743 at 747; Marshall v Gotham Co Ltd [1954] AC 360; and Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6.
Manner of consultation [47.60] Consultation under s 47 must be undertaken in accordance with Pt 5 Div 2 and the Regulations. HSR must be consulted Section 48(2) provides that where workers are represented by a health and safety representative, consultation must involve that representative. Other agreed arrangements Section 47(2), however, provides that if a person conducting a business or undertaking and the workers have agreed to procedures for consultation, the consultation must be conducted in accordance with those procedures (provided © 2017 THOMSON REUTERS
119
s 48
[47.70]
Work Health and Safety Act 2011 (NSW)
that they are not inconsistent with s 48): s 47(2) – (3). In accordance with s 49(e)(i), the making of decisions about the procedures for consultation with workers is itself a trigger for consultation for the purpose of the s 47 duty to consult.
Exemption relating to prisoners [47.70] Part 5 does not apply to workers who are in lawful detention or custody: s 103. 48
Nature of consultation (1) Consultation under this Division requires: (a) that relevant information about the matter is shared with workers, and (b) that workers be given a reasonable opportunity: (i) to express their views and to raise work health or safety issues in relation to the matter, and (ii) to contribute to the decision-making process relating to the matter, and (c) that the views of workers are taken into account by the person conducting the business or undertaking, and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.
Overview of nature of consultation [48.10] Section 48 defines the nature of consultation required by s 47. It provides that consultation requires more than mere provision of information. It requires for the information to be provided to workers with a reasonable opportunity for their input and for that input to be “taken into account” in making the relevant decision. Furthermore, the final decision – the responsibility for which lies with the person conducting a business or undertaking – must be communicated to the relevant workers. The Explanatory Memorandum to the model Bill characterises the purpose of s 48 as a section concerned with establishing the requirements of “meaningful consultation”: [201]. See further discussion at [47.40].
Consultation must representative
include
health
and
safety
[48.20] Under s 48(2), consultation must involve a health and safety representative where such a representative is elected to represent the relevant workers.
120
Tooma’s Annotated Work Health and Safety Act 2011
[49.10]
Part 5 – Consultation, representation and participation
s 49
Consulting with health and safety representative alone may not be enough Interestingly, the Explanatory Memorandum of the model Bill provides that consulting the health and safety representative may be sufficient to meet the consultation duty “depending on the work health or safety issue in question”: [203]. That implies, that such consultation may not be sufficient in some circumstances. That is, on some issues, direct consultation with workers may be warranted. 49
When consultation is required
Consultation under this Division is required in relation to the following health and safety matters: (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking, (b) when making decisions about ways to eliminate or minimise those risks, (c) when making decisions about the adequacy of facilities for the welfare of workers, (d) when proposing changes that may affect the health or safety of workers, (e) when making decisions about the procedures for: (i) consulting with workers, or (ii) resolving work health or safety issues at the workplace, or (iii) monitoring the health of workers, or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or (v) providing information and training for workers, or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section.
Trigger for consultation [49.10] Section 49 sets out the triggers for consultation under s 47. It provides that consultation is required in relation to: • risk management process: s 49(a) – (b); • facilities for the welfare of workers: s 49(c); • when proposing changes that may affect the health or safety of workers: s 49(d); • procedures for consulting with workers or issue resolution: s 49(e). • procedures for monitoring the health of workers or monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; s 49(e); or • providing information and training for workers: s 49(e). © 2017 THOMSON REUTERS
121
s 50
Work Health and Safety Act 2011 (NSW)
[49.10]
DIVISION 3 – HEALTH AND SAFETY REPRESENTATIVES Subdivision 1 – Request for election of health and safety representatives 50
Request for election of health and safety representative A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more health and safety representatives to represent workers who carry out work for the business or undertaking. Subdivision 2 – Determination of work groups 51
Determination of work groups
(1) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of one or more work groups of workers. (2) The purpose of determining a work group is to facilitate the representation of workers in the work group by one or more health and safety representatives. (3) A work group may be determined for workers at one or more workplaces. 52
Negotiations for agreement for work group (1) A work group is to be determined by negotiation and agreement between: (a) the person conducting the business or undertaking, and (b) the workers who will form the work group or their representatives.
(2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50. (3) The purpose of the negotiations is to determine: (a) the number and composition of work groups to be represented by health and safety representatives, and (b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected, and (c) the workplace or workplaces to which the work groups will apply, and (d) the businesses or undertakings to which the work groups will apply. (4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. (5) The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. 122
Tooma’s Annotated Work Health and Safety Act 2011
[49.10]
Part 5 – Consultation, representation and participation
s 55
(6) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups. 53
Notice to workers
(1) The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement. Maximum penalty: (a) in the case of an individual—$2,000, or (b) in the case of a body corporate—$10,000. (2) The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement. Maximum penalty: (a) in the case of an individual—$2,000, or (b) in the case of a body corporate—$10,000. 54
Failure of negotiations
(1) If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section. (2) An inspector appointed under subsection (1) may decide: (a) the matters referred to in section 52(3), or any of those matters which is the subject of the proposed variation (as the case requires), or (b) that work groups should not be determined or that the agreement should not be varied (as the case requires). (3) For the purposes of this section, there is a failure of negotiations if: (a) the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after: (i) a request is made under section 50, or (ii) a party to the agreement requests the variation of the agreement, or (b) agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence. (4) A decision under this section is taken to be an agreement under section 52. Subdivision 3 – Multiple-business work groups 55 Determination of work groups of multiple businesses (1) Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at one or more workplaces. © 2017 THOMSON REUTERS
123
s 55
Work Health and Safety Act 2011 (NSW)
[49.10]
(2) The particulars of the work groups are to be determined by negotiation and agreement, in accordance with section 56, between each of the persons conducting the businesses or undertakings and the workers. (3) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. (4) The determination of one or more work groups under this Subdivision does not: (a) prevent the determination under this Subdivision or Subdivision 2 of any other work group of the workers concerned, or (b) affect any work groups of those workers that have already been determined under this Subdivision or Subdivision 2. 56 Negotiation of agreement for work groups of multiple businesses (1) Negotiations concerning work groups under this Subdivision must be directed only at the following: (a) the number and composition of work groups to be represented by health and safety representatives, (b) the number of health and safety representatives and deputy health and safety representatives (if any) for each work group, (c) the workplace or workplaces to which the work groups will apply, (d) the businesses or undertakings to which the work groups will apply. (2) A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (3) If agreement cannot be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this Subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter. (4) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements. 57
Notice to workers
(1) A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement. Maximum penalty: (a) in the case of an individual—$2,000, or (b) in the case of a body corporate—$10,000. 124
Tooma’s Annotated Work Health and Safety Act 2011
[49.10]
Part 5 – Consultation, representation and participation
s 61
(2) A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement. Maximum penalty: (a) in the case of an individual—$2,000, or (b) in the case of a body corporate—$10,000. 58 Withdrawal from negotiations or agreement involving multiple businesses (1) A party to a negotiation for an agreement, or to an agreement, concerning a work group under this Subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties. (2) If a party withdraws from an agreement concerning a work group under this Subdivision: (a) the other parties must negotiate a variation to the agreement in accordance with section 56, and (b) the withdrawal does not affect the validity of the agreement between the other parties in the meantime. 59
Effect of Subdivision on other arrangements To avoid doubt, nothing in this Subdivision affects the capacity of 2 or more persons conducting businesses or undertakings and their workers to enter into other agreements or make other arrangements, in addition to complying with this Part, concerning the representation of those workers. Subdivision 4 – Election of health and safety representatives 60
Eligibility to be elected A worker is: (a) eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group, and (b) not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative.
61
Procedure for election of health and safety representatives
(1) The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted. (2) However, an election must comply with the procedures (if any) prescribed by the regulations. (3) If a majority of the workers in a work group so determine, the election may be conducted with the assistance of a union or other person or organisation. (4) The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed by the regulations to enable elections to be © 2017 THOMSON REUTERS
125
s 61
Work Health and Safety Act 2011 (NSW)
[49.10]
conducted. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. 62
Eligibility to vote
(1) A health and safety representative for a work group is to be elected by members of that work group. (2) All workers in a work group are entitled to vote for the election of a health and safety representative for that work group. 63
When election not required
If the number of candidates for election as a health and safety representative for a work group equals the number of vacancies, the election need not be conducted and each candidate is to be taken to have been elected as a health and safety representative for the work group. 64
Term of office of health and safety representative
(1) A health and safety representative for a work group holds office for 3 years. (2) However a person ceases to hold office as a health and safety representative for a work group if: (a) the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking, or (b) the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative, or (c) the person is disqualified under section 65 from acting as a health and safety representative, or (d) the person is removed from that position by a majority of the members of the work group in accordance with the regulations. (3) A health and safety representative is eligible for re-election. 65
Disqualification of health and safety representatives
(1) An application may be made to the Industrial Relations Commission to disqualify a health and safety representative on the ground that the representative has: (a) exercised a power or performed a function as a health and safety representative for an improper purpose, or (b) used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative. (2) The following persons may make an application under this section: (a) any person adversely affected by: (i) the exercise of a power or the performance of a function referred to in subsection (1)(a), or 126
Tooma’s Annotated Work Health and Safety Act 2011
[49.10]
s 68
Part 5 – Consultation, representation and participation
(ii)
(b)
the use or disclosure subsection (1)(b), the regulator.
of
information
referred
to
in
(3) If the Industrial Relations Commission is satisfied that a ground in subsection (1) is made out, the Commission may disqualify the health and safety representative for a specified period or indefinitely. 66
Immunity of health and safety representatives A health and safety representative is not personally liable for anything done or omitted to be done in good faith: (a) in exercising a power or performing a function under this Act, or (b) in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act. 67
Deputy health and safety representatives
(1) Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group. (2) If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act: (a) the powers and functions may be exercised or performed by a deputy health and safety representative for the work group, and (b) this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety representative. (3) Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives. Subdivision 5 – Powers and functions of health and safety representatives 68
Powers and functions of health and safety representatives
(1) The powers and functions of a health and safety representative for a work group are: (a) to represent the workers in the work group in matters relating to work health and safety, and (b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group, and (c) to investigate complaints from members of the work group relating to work health and safety, and (d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking. (2) In exercising a power or performing a function, the health and safety representative may: (a) inspect the workplace or any part of the workplace at which a worker in the work group works: © 2017 THOMSON REUTERS
127
s 68
Work Health and Safety Act 2011 (NSW)
[49.10]
(i)
(b) (c)
(d)
(e) (f) (g)
at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person’s representative, and with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person’s representative, and request the establishment of a health and safety committee, and receive information concerning the work health and safety of workers in the work group, and whenever necessary, request the assistance of any person.
Note. A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices.
(3) Despite subsection (2)(f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that: (a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. (4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity. 69 Powers and functions generally limited to the particular work group (1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group. (2) Subsection (1) does not apply if: (a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group, or 128
Tooma’s Annotated Work Health and Safety Act 2011
[49.10]
Part 5 – Consultation, representation and participation
s 70
(b)
a member of another work group asks for the representative’s assistance, and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable. (3) In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates. Subdivision 6 – Obligations of person conducting business or undertaking to health and safety representatives 70 General obligations of person conducting business or undertaking (1) The person conducting a business or undertaking must: (a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking, and (b) confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group, and (c) allow any health and safety representative for the work group to have access to information that the person has relating to: (i) hazards (including associated risks) at the workplace affecting workers in the work group, and (ii) the health and safety of the workers in the work group, and (d) with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person’s representative, and (e) with the consent of one or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person’s representative, and (f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act, and (g) allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided, and © 2017 THOMSON REUTERS
129
s 70
Work Health and Safety Act 2011 (NSW)
[49.10]
(h)
permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works, and (i) provide any other assistance to the health and safety representative for the work group that may be required by the regulations.
Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (2) The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (3) Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. 71
Exceptions from obligations under section 70(1) (1) This section applies despite section 70(1).
(2) The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that: (a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (3) The person conducting a business or undertaking is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in section 70(1)(f). (4) The person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a work group to have access to the workplace: (a) if the assistant has had his or her WHS entry permit revoked, or (b) during any period that the assistant’s WHS entry permit is suspended or the assistant is disqualified from holding a WHS entry permit. (5) The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group. 130
Tooma’s Annotated Work Health and Safety Act 2011
[49.10]
Part 5 – Consultation, representation and participation
s 72
(6) If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter. 72
Obligation to train health and safety representatives
(1) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is: (a) approved by the regulator, and (b) a course that the health and safety representative is entitled under the regulations to attend, and (c) subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking. (2) The person conducting the business or undertaking must: (a) as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training, and (b) pay the course fees and any other reasonable costs associated with the health and safety representative’s attendance at the course of training. (3) If: (a) a health and safety representative represents a work group of the workers of more than one business or undertaking, and (b) the person conducting any of those businesses or undertakings has complied with this section in relation to the representative, each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative. (4) Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (5) If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1)(c) and (2), either party may ask the regulator to appoint an inspector to decide the matter. (6) The inspector may decide the matter in accordance with this section. (7) A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6). Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000.
© 2017 THOMSON REUTERS
131
s 73
Work Health and Safety Act 2011 (NSW)
[49.10]
73 Obligation to share costs if multiple businesses or undertakings (1) If a health and safety representative, or deputy health and safety representative (if any), represents a work group of workers carrying out work for 2 or more persons conducting businesses or undertakings: (a) the costs of the representative exercising powers and performing functions under this Act, and (b) the costs referred to in section 72(2)(b), for which any of the persons conducting those businesses or undertakings are liable must be apportioned equally between each of those persons unless they agree otherwise. (2) An agreement to apportion the costs in another way may be varied at any time by negotiation and agreement between each of the persons conducting the businesses or undertakings. 74
List of health and safety representatives
(1) A person conducting a business or undertaking must ensure that: (a) a list of each health and safety representative and deputy health and safety representative (if any) for each work group of workers carrying out work for the business or undertaking is prepared and kept up to date, and (b) a copy of the up-to-date list is displayed: (i) at the principal place of business of the business or undertaking, and (ii) at any other workplace that is appropriate taking into account the constitution of the relevant work group or work groups, in a manner that is readily accessible to workers in the relevant work group or work groups. Maximum penalty: (a) in the case of an individual—$2,000, or (b) in the case of a body corporate—$10,000. (2) A person conducting a business or undertaking must provide a copy of the up-to-date list prepared under subsection (1) to the regulator as soon as practicable after it is prepared. DIVISION 4 – HEALTH AND SAFETY COMMITTEES 75
Health and safety committees
(1) The person conducting a business or undertaking at a workplace must establish a health and safety committee for the business or undertaking or part of the business or undertaking: (a) within 2 months after being requested to do so by: (i) a health and safety representative for a work group of workers carrying out work at that workplace, or (ii) 5 or more workers at that workplace, or (b) if required by the regulations to do so, within the time prescribed by the regulations. Maximum penalty: 132
Tooma’s Annotated Work Health and Safety Act 2011
[76A.10]
Part 5 – Consultation, representation and participation
s 77
(a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000. (2) A person conducting a business or undertaking at a workplace may establish a health and safety committee for the workplace or part of the workplace on the person’s own initiative. Note: If a health and safety committee is not required to be established, other consultation procedures can be established for a workplace—see Division 2 of this Part.
76
Constitution of committee
(1) Subject to subsections (2) – (4), the constitution of a health and safety committee may be agreed between the person conducting the business or undertaking and the workers at the workplace. (2) If there is a health and safety representative at a workplace, that representative, if he or she consents, is a member of the committee. (3) If there are 2 or more health and safety representatives at a workplace, those representatives may choose one or more of their number (who consent) to be members of the committee. (4) At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking. (5) If agreement is not reached under this section within a reasonable time, any party may ask the regulator to appoint an inspector to decide the matter. (6) An inspector appointed on a request under subsection (5) may decide the constitution of the health and safety committee or that the committee should not be established. (7) A decision of an inspector under this section is taken to be an agreement under this section between the parties. 76A Special provision for coal mines The health and safety committee for a workplace that is a coal mine within the meaning of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 must include: (a) at least 1 person who is a site safety and health representative for the coal mine, and (b) at least 1 person who is an electrical safety and health representative for the coal mine. [S 76A am Act 43 of 2015, Sch 2[3] and [4]; subst Act 54 of 2013, Sch 3.14[6]]
Overview [76A.10] Section 76A is specific to New South Wales and was inserted to address the interaction between the mining legislation and the work health and safety legislation. It has no equivalent in the model Work Health and Safety Act. 77
Functions of committee The functions of a health and safety committee are:
© 2017 THOMSON REUTERS
133
s 77
Work Health and Safety Act 2011 (NSW)
[76A.10]
(a)
to facilitate co-operation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers’ health and safety at work, and (b) to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace, and (c) any other functions prescribed by the regulations or agreed between the person conducting the business or undertaking and the committee. 78
Meetings of committee A health and safety committee must meet: (a) at least once every 3 months, and (b) at any reasonable time at the request of at least half of the members of the committee.
79
Duties of person conducting business or undertaking
(1) The person conducting a business or undertaking must allow each member of the health and safety committee to spend the time that is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (2) Any time that a member of a health and safety committee spends for the purposes set out in subsection (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (3) The person conducting a business or undertaking must allow the health and safety committee for a workplace to have access to information that the person has relating to: (a) hazards (including associated risks) at the workplace, and (b) the health and safety of the workers at the workplace. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (4) Despite subsection (3), the person conducting a business or undertaking must not allow the health and safety committee to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that: (a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. 134
Tooma’s Annotated Work Health and Safety Act 2011
[76A.10]
Part 5 – Consultation, representation and participation
s 82
DIVISION 5 – ISSUE RESOLUTION 80
Parties to an issue (1) In this Division, parties, in relation to an issue, means the following: (a) the person conducting the business or undertaking or the person’s representative, (b) if the issue involves more than one business or undertaking, the person conducting each business or undertaking or the person’s representative, (c) if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative, (d) if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative.
(2) A person conducting a business or undertaking must ensure that the person’s representative (if any) for the purposes of this Division: (a) is not a health and safety representative, and (b) has an appropriate level of seniority, and is sufficiently competent, to act as the person’s representative. 81
Resolution of health and safety issues
(1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue. (2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations. (3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue. 82
Referral of issue to regulator for resolution by inspector
(1) This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue. (2) A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue. (3) A request to the regulator under this section does not prevent: (a) a worker from exercising the right under Division 6 of this Part to cease work, or (b) a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part to cease work. (4) On attending a workplace under this section, an inspector may exercise any of the inspector’s compliance powers under this Act in relation to the workplace. © 2017 THOMSON REUTERS
135
s 83
Work Health and Safety Act 2011 (NSW)
[76A.10]
DIVISION 6 – RIGHT TO CEASE OR DIRECT CESSATION OF UNSAFE WORK 83
Definition of “cease work under this Division” In this Division, cease work under this Division means: (a) to cease, or refuse, to carry out work under section 84, or (b) to cease work on a direction under section 85.
84
Right of worker to cease unsafe work A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard. 85 Health and safety representative may direct that unsafe work cease (1) A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard. (2) However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after: (a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work, and (b) attempting to resolve the matter as an issue under Division 5 of this Part. (3) The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under Division 5 of this Part if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction. (4) The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3). (5) The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section. (6) A health and safety representative cannot give a direction under this section unless the representative has: (a) completed initial training prescribed by the regulations referred to in section 72(1)(b), or (b) previously completed that training when acting as a health and safety representative for another work group, or (c) completed training equivalent to that training under a corresponding WHS law. 86
Worker to notify if ceases work A worker who ceases work under this Division must:
136
Tooma’s Annotated Work Health and Safety Act 2011
[76A.10]
Part 5 – Consultation, representation and participation
s 90
(a)
as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative, and (b) remain available to carry out suitable alternative work. 87
Alternative work If a worker ceases work under this Division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties. 88
Continuity of engagement of worker
If a worker ceases work under this Division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work: (a) at the same or another workplace, and (b) that was safe and appropriate for the worker to carry out. 89
Request to regulator to appoint inspector to assist The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work. Note. The issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work.
DIVISION 7 – PROVISIONAL IMPROVEMENT NOTICES 90
Provisional improvement notices
(1) This section applies if a health and safety representative reasonably believes that a person: (a) is contravening a provision of this Act, or (b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated. (2) The health and safety representative may issue a provisional improvement notice requiring the person to: (a) remedy the contravention, or (b) prevent a likely contravention from occurring, or (c) remedy the things or operations causing the contravention or likely contravention. (3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person. (4) A health and safety representative cannot issue a provisional improvement notice unless the representative has: (a) completed initial training prescribed by the regulations referred to in section 72(1)(b), or © 2017 THOMSON REUTERS
137
s 90
Work Health and Safety Act 2011 (NSW)
[76A.10]
(b)
previously completed that training when acting as a health and safety representative for another work group, or (c) completed training equivalent to that training under a corresponding WHS law.
(5) A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter. 91
Provisional improvement notice to be in writing A provisional improvement notice must be in writing.
92
Contents of provisional improvement notice A provisional improvement notice must state: (a) that the health and safety representative believes the person: (i) is contravening a provision of this Act, or (ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated, and (b) the provision the representative believes is being, or has been, contravened, and (c) briefly, how the provision is being, or has been contravened, and (d) the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.
93 Provisional improvement notice may give directions to remedy contravention (1) A provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates. (2) A direction included in a provisional improvement notice may: (a) refer to a code of practice, and (b) offer the person to whom it is issued a choice of ways in which to remedy the contravention. 94
Minor changes to provisional improvement notice A health and safety representative may make minor changes to a provisional improvement notice: (a) for clarification, or (b) to correct errors or references, or (c) to reflect changes of address or other circumstances. 95
Issue of provisional improvement notice A provisional improvement notice may be issued to a person in accordance with section 209. 96
Health and safety representative may cancel notice The health and safety representative may at any time cancel a provisional improvement notice issued to a person by written notice given to that person. 138
Tooma’s Annotated Work Health and Safety Act 2011
[76A.10]
97
Part 5 – Consultation, representation and participation
s 101
Display of provisional improvement notice
(1) A person to whom a provisional improvement notice is issued must as soon as practicable display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. Maximum penalty: (a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000. (2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) during the period that the notice is in force. Maximum penalty: (a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000. 98
Formal irregularities or defects in notice A provisional improvement notice is not invalid only because of: (a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice, or (b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person.
99
Offence to contravene a provisional improvement notice
(1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace. (2) The person must comply with the provisional improvement notice within the time specified in the notice. Maximum penalty: (a) in the case of an individual—$50,000, or (b) in the case of a body corporate—$250,000. 100
Request for review of provisional improvement notice
(1) Within 7 days after a provisional improvement notice is issued to a person: (a) the person to whom it was issued, or (b) if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work, may ask the regulator to appoint an inspector to review the notice. (2) If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review. 101
Regulator to appoint inspector to review notice
(1) The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100. (2) The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice. © 2017 THOMSON REUTERS
139
s 101
Work Health and Safety Act 2011 (NSW)
[104.10]
(3) An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired. 102 Decision of inspector on review of provisional improvement notice (1) After reviewing the provisional improvement notice, the inspector must: (a) confirm the provisional improvement notice, or (b) confirm the provisional improvement notice with changes, or (c) cancel the provisional improvement notice. (2) The inspector must give a copy of his or her decision to: (a) the applicant for the review of the provisional improvement notice, and (b) the health and safety representative who issued the notice. (3) A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act. DIVISION 8 – PART NOT TO APPLY TO PRISONERS 103
Part does not apply to prisoners
Nothing in this Part applies to a worker who is in lawful detention or custody.
Part 6 – Discriminatory, coercive and misleading conduct DIVISION 1 – PROHIBITION OF DISCRIMINATORY, COERCIVE OR MISLEADING CONDUCT 104
Prohibition of discriminatory conduct
(1) A person must not engage in discriminatory conduct for a prohibited reason. Maximum penalty: (a) in the case of an individual—$100,000, or (b) in the case of a body corporate—$500,000. (2) A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct. Note. Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.
Overview of anti-victimisation provisions [104.10] Section 104 prohibits a person from engaging in “discriminatory conduct” where the dominant reason for that conduct is “a prohibited reason”.
140
Tooma’s Annotated Work Health and Safety Act 2011
[104.10]
Part 6 – Discriminatory, coercive and misleading conduct
s 104
Section 107 prohibits a person from requesting, instructing, inducing, encouraging, authorising or assisting another person to engage in “discriminatory conduct”. Breach of s 104 is an offence attracting a penalty of $100,000 for individuals and $500,000 for corporations. In addition, it gives rise to a civil cause of action by a person affected by the contravention or an authorised representative of that person: s 112. Discriminatory conduct Discriminatory conduct is defined in s 105 of the Act to mean: • dismissing a worker, or • terminating a contract for services with a worker, or • putting a worker to his or her detriment in the engagement of the worker, or • altering the position of a worker to the worker’s detriment, or • refusing or failing to offer to engage a prospective worker, or • treating a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement, or • terminating a commercial arrangement with another person, or • refusing or failing to enter into a commercial arrangement with another person, or • organising to take any of the above action referred or threatening to organise or take that action. Prohibited reason Prohibited reason is defined in s 106 to mean conduct engaged in because the person: • is, has been or proposes to be a health and safety representative or a member of a health and safety committee, or • undertakes, has undertaken or proposes to undertake another role under this Act, or • exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee, or • exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way, or • performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way, or • refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way, or © 2017 THOMSON REUTERS
141
s 105
Work Health and Safety Act 2011 (NSW)
[104.20]
• assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act, or • raises or has raised or proposes to raise an issue or concern about work health and safety with the person conducting a business or undertaking; an inspector; a WHS entry permit holder; a health and safety representative; a member of a health and safety committee; another worker; any other person who has a duty under this Act in relation to the matter; or any other person exercising a power or performing a function under this Act, or • is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act, or • is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act.
Onus of proof of discrimination [104.20] The onus of proof that the discriminatory conduct engaged in was for a prohibited reason lies with the defendant: s 110.
Orders available [104.30] Section 111 allows a court to order compensation to the affected person or order re-instatement, employment or re-employment, in addition to any penalty imposed in relation to a breach of s 104 (or s 107).
Time limitation [104.40] Time limitation of the civil proceedings is one year: s 113. Time starts from the date on which the applicant knew or ought to have known of the cause of action. 105
What is “discriminatory conduct”
(1) For the purposes of this Part, a person engages in discriminatory conduct if: (a)
the person: (i) dismisses a worker, or (ii) terminates a contract for services with a worker, or (iii) puts a worker to his or her detriment in the engagement of the worker, or (iv) alters the position of a worker to the worker’s detriment, or (b) the person: (i) refuses or fails to offer to engage a prospective worker, or (ii) treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement, or (c) the person terminates a commercial arrangement with another person, or 142
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
(d)
Part 6 – Discriminatory, coercive and misleading conduct
s 106
the person refuses or fails to enter into a commercial arrangement with another person.
(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action. 106
What is a “prohibited reason”
Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person referred to in section 105(1)(c) or (d) (as the case requires): (a) is, has been or proposes to be a health and safety representative or a member of a health and safety committee, or (b) undertakes, has undertaken or proposes to undertake another role under this Act, or (c) exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee, or (d) exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way, or (e) performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way, or (f) refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way, or (g) assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act, or (h) raises or has raised or proposes to raise an issue or concern about work health and safety with: (i) the person conducting a business or undertaking, or (ii) an inspector, or (iii) a WHS entry permit holder, or (iv) a health and safety representative, or (v) a member of a health and safety committee, or (vi) another worker, or (vii) any other person who has a duty under this Act in relation to the matter, or (viii) any other person exercising a power or performing a function under this Act, or (i) is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act, or (j) is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act. © 2017 THOMSON REUTERS
143
s 107
Work Health and Safety Act 2011 (NSW)
[104.40]
107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104. Maximum penalty: (a) in the case of an individual—$100,000, or (b) in the case of a body corporate—$500,000. Note. Civil proceedings may be brought under Division 3 of this Part if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason.
108
Prohibition of coercion or inducement
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person: (a) to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act, or (b) to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act, or (c) to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way, or (d) to refrain from seeking, or continuing to undertake, a role under this Act. Maximum penalty: (a) in the case of an individual—$100,000, or (b) in the case of a body corporate—$500,000. Note. Civil proceedings may be brought under Division 3 of this Part in relation to a contravention of this section.
(2) In this section, a reference to taking action or threatening to take action against a person includes a reference to not taking a particular action or threatening not to take a particular action in relation to that person. (3) To avoid doubt, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person. (4) In this section, emergency services worker includes an officer, employee or member of any of the following: (a) the Ambulance Service of NSW, (b) Fire and Rescue NSW, (c) the NSW Rural Fire Service, (d) the NSW Police Force, (e) the State Emergency Service, (f) the NSW Volunteer Rescue Association Inc, (g) the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001, (h) an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989. 144
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
109
Part 6 – Discriminatory, coercive and misleading conduct
s 111
Misrepresentation
(1) A person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s: (a) rights or obligations under this Act, or (b) ability to initiate, or participate in, a process or proceedings under this Act, or (c) ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act. Maximum penalty: (a) in the case of an individual—$100,000, or (b) in the case of a body corporate—$500,000. (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. DIVISION 2 – CRIMINAL PROCEEDINGS IN RELATION TO DISCRIMINATORY OR COERCIVE CONDUCT 110
Proof of discriminatory conduct
(1) This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution: (a) proves that the discriminatory conduct was engaged in, and (b) proves that a circumstance referred to in section 106(a) – (j) existed at the time the discriminatory conduct was engaged in, and (c) adduces evidence that the discriminatory conduct was engaged in for a prohibited reason. (2) The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves on the balance of probabilities, that the reason was not the dominant reason for the conduct. (3) To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof. 111
Order for compensation or reinstatement
If a person is convicted or found guilty of an offence under section 104 or 107, the court may (in addition to imposing a penalty) make either or both of the following orders: (a) an order that the offender pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate, (b) in relation to a person who was or is an employee or prospective employee, an order that: (i) the person be reinstated or reemployed in his or her former position or, if that position is not available, in a similar position, or (ii) the person be employed in the position for which he or she had applied or a similar position. © 2017 THOMSON REUTERS
145
s 112
Work Health and Safety Act 2011 (NSW)
[104.40]
DIVISION 3 – CIVIL PROCEEDINGS IN RELATION TO DISCRIMINATORY OR COERCIVE CONDUCT 112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct (1) An eligible person may apply to the District Court for an order under this section. (2) The District Court may make one or more of the orders set out in subsection (3) in relation to a person who has: (a) engaged in discriminatory conduct for a prohibited reason, or (b) requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason, or (c) contravened section 108. (3) For the purposes of subsection (2), the orders that the District Court may make are: (a) an injunction, or (b) in the case of conduct referred to in subsection (2)(a) or (b), an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the District Court considers appropriate, or (c) in the case of conduct referred to in subsection (2)(a) in relation to a worker who was or is an employee or prospective employee, an order that: (i) the worker be reinstated or reemployed in his or her former position or, if that position is not available, in a similar position, or (ii) the prospective worker be employed in the position for which he or she had applied or a similar position, or (d) any other order that the District Court considers appropriate. [Subs (3) am Act 55 of 2016, Sch 3.55[1]–[3]]
(4) For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct. (5) Nothing in this section is to be construed as limiting any other power of the District Court. (6) For the purposes of this section, each of the following is an eligible person: (a) a person affected by the contravention, (b) a person authorised as a representative by a person referred to in paragraph (a). [S 112 am Act 55 of 2016]
113
Procedure for civil actions for discriminatory conduct
(1) A proceeding brought under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued. 146
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
Part 6 – Discriminatory, coercive and misleading conduct
s 115
(2) In a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct. (3) It is a defence to a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) if the defendant proves that: (a) the conduct was reasonable in the circumstances, and (b) a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law. (4) To avoid doubt, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof. DIVISION 4 – GENERAL 114
General provisions relating to orders
(1) The making of an order in a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) does not prevent the bringing of a proceeding for an offence under section 104 or 107 in relation to the same conduct. (2) If the District Court makes an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b), the court cannot make an order under section 111 in a proceeding for an offence under section 104 or 107 in relation to the same conduct. (3) If the court makes an order under section 111 in a proceeding for an offence under section 104 or 107, the District Court cannot make an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b) that is the same conduct. 115
Prohibition of multiple actions
A person cannot: (a) commence a proceeding under Division 3 of this Part if the person has commenced a proceeding or made an application or complaint in relation to the same matter under a law of the Commonwealth or a State and that proceeding, application or complaint has not been withdrawn, or (b) recover any compensation under Division 3 of this Part if the person has received compensation for the matter under a law of the Commonwealth or a State, or (c) commence or continue an application under Division 3 of this Part if the person has failed in a proceeding, application or complaint in relation to the same matter under a law of the Commonwealth or a State, other than a proceeding, application or complaint relating to workers’ compensation.
© 2017 THOMSON REUTERS
147
s 116
Work Health and Safety Act 2011 (NSW)
[104.40]
Part 7 – Workplace entry by WHS entry permit holders Note. Division 7 of Part 13 sets out the procedure in relation to the bringing of proceedings in relation to WHS civil penalty provisions.
DIVISION 1 – INTRODUCTORY 116
Definitions
In this Part: official of a union means a person who holds an office in, or is an employee of, the union. relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry. relevant union means the union that a WHS entry permit holder represents. relevant worker, in relation to a workplace, means a worker: (a) who is a member, or eligible to be a member, of a relevant union, and (b) whose industrial interests the relevant union is entitled to represent, and (c) who works at that workplace. DIVISION 2 – ENTRY TO INQUIRE INTO SUSPECTED CONTRAVENTIONS 117
Entry to inquire into suspected contraventions
(1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. 118
Rights that may be exercised while at workplace
(1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act: (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention, (b) consult with the relevant workers in relation to the suspected contravention, (c) consult with the relevant person conducting a business or undertaking about the suspected contravention, (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that: (i) is kept at the workplace, or 148
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
(e)
Part 7 – Workplace entry by WHS entry permit holders
s 120
(ii) is accessible from a computer that is kept at the workplace, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.
(2) However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d). WHS civil penalty provision. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. Notes: 1 At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120. 2 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.
119
Notice of entry
(1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to: (a) the relevant person conducting a business or undertaking, and (b) the person with management or control of the workplace. (2) Subsection (1) does not apply if to give the notice would: (a) defeat the purpose of the entry to the workplace, or (b) unreasonably delay the WHS entry permit holder in an urgent case. (3) Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120. 120 Entry to inspect employee records or information held by another person (1) This section applies if a WHS entry permit holder is entitled under section 117 to enter a workplace to inquire into a suspected contravention of this Act. (2) For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of: (a) employee records that are directly relevant to a suspected contravention, or © 2017 THOMSON REUTERS
149
s 120
Work Health and Safety Act 2011 (NSW)
(b)
[104.40]
other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking.
(3) Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking. (4) The notice must comply with the regulations. (5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Note. The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.
DIVISION 3 – ENTRY TO CONSULT AND ADVISE WORKERS 121
Entry to consult and advise workers
(1) A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, one or more relevant workers who wish to participate in the discussions. (2) A WHS entry permit holder may, after entering a workplace under this Division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk. 122
Notice of entry
(1) Before entering a workplace under this Division, a WHS entry permit holder must give notice of the proposed entry to the relevant person conducting a business or undertaking. (2) The notice must comply with the regulations. (3) The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. DIVISION 4 – REQUIREMENTS FOR WHS ENTRY PERMIT HOLDERS 123 Contravening WHS entry permit conditions A WHS entry permit holder must not contravene a condition imposed on the WHS entry permit. WHS civil penalty provision. Maximum penalty: $10,000. 124 WHS entry permit holder must also hold permit under other law A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or the Industrial Relations Act 1996. WHS civil penalty provision. Maximum penalty: $10,000. 150
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
Part 7 – Workplace entry by WHS entry permit holders
s 130
125 WHS entry permit to be available for inspection A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under Division 2 or 3 of this Part, have his or her WHS entry permit and photographic identification available for inspection by any person on request. WHS civil penalty provision. Maximum penalty: $10,000. 126 When right may be exercised A WHS entry permit holder may exercise a right under Division 2 or 3 of this Part only during the usual working hours at the workplace. WHS civil penalty provision. Maximum penalty: $10,000. 127 Where the right may be exercised A WHS entry permit holder may exercise a right of entry to a workplace only in relation to: (a) the area of the workplace where the relevant workers work, or (b) any other work area that directly affects the health or safety of those workers. 128
Work health and safety requirements
A WHS entry permit holder must not exercise a right of entry to a workplace under Division 2 or 3 of this Part unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with: (a) any work health and safety requirement that applies to the workplace, and (b) any other legislated requirement that applies to that type of workplace. WHS civil penalty provision. Maximum penalty: $10,000. 129 Residential premises A WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes. WHS civil penalty provision. Maximum penalty: $10,000. 130 WHS entry permit holder not required to disclose names of workers (1) A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace. (2) A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker. © 2017 THOMSON REUTERS
151
s 131
Work Health and Safety Act 2011 (NSW)
[104.40]
DIVISION 5 – WHS ENTRY PERMITS 131
Application for WHS entry permit
(1) A union may apply to the authorising authority for the issue of a WHS entry permit to a person who is an official of the union. (2) The application must specify the person who is to hold the WHS entry permit and include a statutory declaration by that person declaring that he or she: (a) is an official of the union, and (b) has satisfactorily completed the prescribed training, and (c) holds, or will hold, an entry permit under: (i) the Fair Work Act, or, (ii) the Industrial Relations Act 1996. 132 Consideration of application In considering whether to issue a WHS entry permit, the authorising authority must take into account: (a) the object of this Act, and (b) the object of allowing union right of entry to workplaces for work health and safety purposes. 133
Eligibility criteria
The authorising authority must not issue a WHS entry permit to an official of a union unless the authorising authority is satisfied that the official: (a) is an official of the union, and (b) has satisfactorily completed the prescribed training, and (c) holds, or will hold, an entry permit under: (i) the Fair Work Act, or (ii) the Industrial Relations Act 1996. 134 Issue of WHS entry permit The authorising authority may issue a WHS entry permit to a person if the authorising authority has taken into account the matters in section 132 and is satisfied about the matters in section 133. 135
Conditions on WHS entry permit
The authorising authority may impose conditions on a WHS entry permit. 136 Term of WHS entry permit A WHS entry permit has effect for a term of 3 years from the date it is issued. 137
Expiry of WHS entry permit
(1) Unless it is earlier revoked, a WHS entry permit expires at the first of the following to occur: (a) at the end of the term of the WHS entry permit, (b) at the end of the term of the entry permit held by the WHS entry permit holder under: (i) the Fair Work Act, or (ii) the Industrial Relations Act 1996, (c) when the permit holder ceases to be an official of the union that applied for the permit, 152
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
(d)
Part 7 – Workplace entry by WHS entry permit holders
s 139
the union that applied for the permit ceases to be: (i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, or (ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Industrial Relations Act 1996.
(2) An application may be made for the issue of a subsequent WHS entry permit before or after the current WHS entry permit expires. 138
Application to revoke WHS entry permit
(1) The following persons may apply to the authorising authority for a WHS entry permit held by a person to be revoked: (a) the regulator, (b) the relevant person conducting a business or undertaking, (c) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this Part, (d) any other person affected by the exercise or purported exercise of a right under this Part by a WHS entry permit holder. (2) The grounds for an application for revocation of a WHS entry permit are: (a) that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or the Industrial Relations Act 1996, or (b) that the permit holder has contravened any condition of the WHS entry permit, or (c) that the permit holder has acted or purported to act in an improper manner in the exercise of any right under this Act, or (d) in exercising or purporting to exercise a right under this Part, that the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace. (3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned. (4) The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application. 139 Authorising authority must permit WHS entry permit holder to show cause (1) If, on an application under section 138, the authorising authority is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the authorising authority must: (a) give the WHS entry permit holder written notice (a show cause notice), and (b) if the authorising authority considers it appropriate, suspend the operation of the WHS entry permit until the authorising authority decides the application for revocation. © 2017 THOMSON REUTERS
153
s 139
Work Health and Safety Act 2011 (NSW)
[104.40]
(2) The show cause notice must: (a) contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the authorising authority written reasons explaining why the WHS entry permit should not be revoked, and (b) be accompanied by a summary of the reasons for the application, and (c) if applicable, be accompanied by a notice of suspension of the permit. 140
Determination of application
(1) If the authorising authority is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make one or more of the following orders: (a) an order imposing conditions on the WHS entry permit, (b) an order suspending the WHS entry permit, (c) an order revoking the WHS entry permit, (d) an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked, (e) an order imposing any alternative action the authorising authority considers appropriate. (2) In deciding what action to take under subsection (1), in relation to a person, the authorising authority must take into account: (a) the seriousness of any findings of the authorising authority having regard to the object of this Act, and (b) any other matters the authority considers relevant. DIVISION 6 – DEALING WITH DISPUTES 141 Application for assistance of inspector to resolve dispute If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. 142 Authorising authority may deal with a dispute about a right of entry under this Act (1) The authorising authority may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable). (2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the authorising authority deals with the dispute by arbitration, it may make one or more of the following orders: (a) an order imposing conditions on a WHS entry permit, (b) an order suspending a WHS entry permit, (c) an order revoking a WHS entry permit, (d) an order about the future issue of WHS entry permits to one or more persons, 154
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
(e)
Part 7 – Workplace entry by WHS entry permit holders
s 145
any other order it considers appropriate.
(4) The authorising authority may deal with the dispute: (a) on its own initiative, or (b) on application by any of the following to whom the dispute relates: (i) a WHS entry permit holder, (ii) the relevant union, (iii) the relevant person conducting a business or undertaking, (iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry, (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder, (vi) the regulator. (5) In dealing with a dispute, the authorising authority must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this Part. 143 Contravening order made to deal with dispute A person must not contravene an order under section 142(3). WHS civil penalty provision. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. DIVISION 7 – PROHIBITIONS 144 Person must not refuse or delay entry of WHS entry permit holder (1) A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace Maximum (a) (b)
under this Part. WHS civil penalty provision. penalty: in the case of an individual—$10,000, or in the case of a body corporate—$50,000.
(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse. 145 Person must not hinder or obstruct WHS entry permit holder A person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace in accordance with this Part. WHS civil penalty provision. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. © 2017 THOMSON REUTERS
155
s 146
Work Health and Safety Act 2011 (NSW)
[104.40]
146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace A WHS entry permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper manner. WHS civil penalty provision. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. 147
Misrepresentations about things authorised by this Part
(1) A person must not take action: (a) with the intention of giving the impression, or (b) reckless as to whether the impression is given, that the doing of a thing is authorised by this Part if it is not so authorised. WHS civil penalty provision. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised. 148 Unauthorised use or disclosure of information or documents A person must not use or disclose information or a document obtained under Division 2 of this Part in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless: (a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent: (i) a serious risk to a person’s health or safety, or (ii) a serious threat to public health or safety, or (b) the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities, or (c) the use or disclosure is required or authorised by or under law, or (d) the person reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 of the Commonwealth): (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law, (ii) the enforcement of laws relating to the confiscation of the proceeds of crime, (iii) the protection of the public revenue, 156
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
Part 7 – Workplace entry by WHS entry permit holders
s 150
(iv)
the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct, (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal, or (e) if the information is, or the document contains, personal information—the use or disclosure is made with the consent of the individual to whom the information relates. WHS civil penalty provision. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. DIVISION 8 – GENERAL 149
Return of WHS entry permits
(1) The person to whom a WHS entry permit is issued must return the permit to the authorising authority within 14 days of any of the following things happening: (a) the permit is revoked or suspended, (b) the permit expires. WHS civil penalty provision. Maximum penalty: $2,000. (2) After the end of a period of suspension of a WHS entry permit, the authorising authority must return the WHS entry permit to the person to whom it was issued if: (a) the person, or the person’s union, applies to the authorising authority for the return of the permit, and (b) the permit has not expired. 150
Union to provide information to authorising authority
The relevant union must advise the authorising authority if: (a) the WHS entry permit holder resigns from or otherwise leaves the union, or (b) the WHS entry permit holder has had any entry permit granted under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or the Industrial Relations Act 1996 (no matter when in force) cancelled or suspended, or (c) the union ceases to be: (i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, or (ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Industrial Relations Act 1996. WHS civil penalty provision. Maximum penalty: © 2017 THOMSON REUTERS
157
s 150
Work Health and Safety Act 2011 (NSW)
[104.40]
(a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000. 151 Register of WHS entry permit holders The authorising authority must keep available for public access an up-to-date register of WHS entry permit holders in accordance with the regulations.
Part 8 – The regulator DIVISION 1 – FUNCTIONS OF REGULATOR 152 Functions of regulator The regulator has the following functions: (a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act, (b) to monitor and enforce compliance with this Act, (c) to provide advice and information on work health and safety to duty holders under this Act and to the community, (d) to collect, analyse and publish statistics relating to work health and safety, (e) to foster a co-operative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters, (f) to promote and support education and training on matters relating to work health and safety, (g) to engage in, promote and co-ordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator, (h) to conduct and defend proceedings under this Act before a court or tribunal, (i) any other function conferred on the regulator by this Act. 153
Powers of regulator
(1) Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act. 154
Delegation by regulator
(1) The regulator may, by instrument in writing, delegate to an authorised person a power or function under this Act other than this power of delegation. (2) A delegation under this section: (a) may be made subject to such conditions as the regulator thinks fit, and (b) is revocable at will, and (c) does not derogate from the power of the regulator to act. (3) In this section: 158
Tooma’s Annotated Work Health and Safety Act 2011
[104.40]
Part 8 – The regulator
s 155
authorised person means: (a) a member of staff of the regulator, or (b) a person of a class prescribed by the regulations or of a class approved by the regulator. [S 154 insrt Act 67 of 2011, Sch 1[6]]
DIVISION 2 – POWERS OF REGULATOR TO OBTAIN INFORMATION 155
Powers of regulator to obtain information
(1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act. (2) The regulator may, by written notice served on the person, require the person to do one or more of the following: (a) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge, (b) to produce to the regulator, in accordance with the notice, those documents, (c) to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents. (3) The notice must: (a) state that the requirement is made under this section, and (b) contain a statement to the effect that a failure to comply with a requirement is an offence, and (c) if the notice requires the person to provide information or documents or answer questions: (i) contain a statement about the effect of sections 172 and 269, and (ii) state that the person may attend with a legal practitioner. (4) The regulator must not make a requirement under subsection (2)(c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2)(a) and (b) and has been unable to do so. (5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse. © 2017 THOMSON REUTERS
159
s 155
Work Health and Safety Act 2011 (NSW)
[155.10]
(7) Section 172 (with any necessary changes) applies to a requirement under this section.
Legal professional privilege [155.10] It is now well settled that a person is entitled to resist the giving of information or the production of documents which would reveal communications between a client and their lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services including representation in legal proceedings: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. This position is supported by s 269.
Reasonable excuse [155.20] A defence of “reasonable excuse” is available for breach of s 155: s 155(5). However, the burden of proof of proving reasonable excuse rests with the defendant: s 155(6).
Privilege against self-incrimination [155.30] Section 155(7) imports the application of the use immunity privilege available pursuant to s 172. That is, the right of silence is displaced by operation of s 155 but the information cannot be used against an individual in any civil or criminal proceedings (other than proceedings arising out of false or misleading information): s 172(2).
Written answers [155.40] Section 155(4) precludes the Regulator from requiring a person to appear and provide a statement to the Regulator until the Regulator has taken reasonable steps to obtain the information in writing or through document production pursuant to s 155(2)(a) – (b).
Relationship between powers on entry and power to request information [155.50] The relationship between the powers available to inspectors on entry (s 171) and the power of the regulator to request information (s 155) was considered in Hunter Quarries Pty v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580. The matter arose out of an investigation into the death of Mr Ryan Messenger, one of Hunter Quarries’ employees, on 9 September 2014, while he was working at the quarry which it operates at Karuah. That investigation was the result of a notification which it had given that day to the Department pursuant to the incident notification requirements of the Work Health and Safety Act 2011. A Departmental Inspector, Inspector Flowers, attended the mine in response to the notification. A dispute then arose as to his intention to exercise powers granted to inspectors upon entry to a workplace under s 171 of the Work Health and Safety Act 2011 particularly by seeking to interview witnesses. Hunter 160
Tooma’s Annotated Work Health and Safety Act 2011
[155.70]
Part 8 – The regulator
s 155
Quarries disputed his reliance on that power inviting him instead to exercise the power given to the regulator to request information under section 155 of the Work Health and Safety Act 2011. The inspector refused and insisted on his reliance on the powers upon entry – s 171. Hunter Quarries brought an application to the Supreme Court of NSW seeking declaratory relief in relation to powers of the inspector and seeking to restrain the inspector from obtaining information in relation to the incident pursuant to s 171. Schmidt J dismissed the summons. Her Honour held at [89]: On the proper construction of this Act, once an inspector has so exercised the statutory power of entry at a workplace, he or she is empowered by s 171 to require a person to tell him or her who has custody of or access to a document; to require that person to produce that document, while the inspector is still at the workplace, or later; and to require a person at the workplace to answer the questions which the inspector puts. That power is not displaced, limited or circumscribed by the powers granted to regulators by s 155 of the Act.
Scope of power to request information [155.60] The breadth of the power conferred by s 155 was considered by Hall J in Perilya v Nash [2015] NSWSC 706. Hall J held at [114]–[115] that that the provisions of s 155(1) are wide in scope: Section 155(1) contains the expression “in relation to” a possible contravention of the Act. As noted above, s 155(1) refers to documents etc “… that will assist the regulator to monitor or enforce compliance with this Act…”The power under s 155(1)… is sufficiently broad to enable a regulator to obtain and examine documents called for in a notice where he/she holds the requisite belief on reasonable grounds for the purpose of determining whether in some relevant way, they do or may assist in determining whether a contravention of the WHS Act has occurred and/or for monitoring or enforcing compliance with the WHS Act.
The fact that a particular document otherwise caught by s 155 may contain information relevant to matters other than work health and safety does not invalidate the notice issued under s 155: Perilya v Nash [2015] NSWSC 706 per Hall J at [97].
Triggers for power to request information [155.70] In Perilya v Nash [2015] NSWSC 706, Hall J held at [96] that the Regulator’s power under s 155 is “enlivened where “… the regulator has reasonable grounds to believe” the following matters: (1) That the “person is capable” of, inter alia, providing information including documents etc; (2) The “information”, “documents” and/or “evidence” concerns or relates to “a possible contravention of this Act”; and/or (3) The giving of information, provision of documents or giving of evidence will assist the regulator to monitor and enforce compliance with the Act. The use of the word “assist” carries the meaning of helping or supporting or promoting the performance of the regulator’s function to monitor or enforce compliance etc.” © 2017 THOMSON REUTERS
161
s 156
Work Health and Safety Act 2011 (NSW)
[155.70]
That is, it is not up to the recipient of the notice to determine relevance: Perilya v Nash [2015] NSWSC 706 at [117]. The only relevant limitation in that context is the “reasonable grounds belief” of the Regulator: Perilya v Nash [2015] NSWSC 706 at [117].
Part 9 – Securing compliance DIVISION 1 – APPOINTMENT OF INSPECTORS 156
Appointment of inspectors
The regulator may, by instrument, appoint any of the following as an inspector: (a) an officer or employee of a public authority, (b) the holder of a statutory office, (c) a person who is appointed as an inspector under a corresponding WHS law, (d) a person in a prescribed class of persons. 156A Special provision for mining workplace inspectors [Repealed] [S 156A rep Act 43 of 2015, Sch 2[5]; subst Act 54 of 2013, Sch 3.14[7]; am Act 67 of 2011]
157
Identity cards
(1) The regulator must give each inspector an identity card that states the person’s name and appointment as an inspector and includes any other matter prescribed by the regulations. (2) An inspector must produce his or her identity card for inspection on request when exercising compliance powers. (3) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the regulator as soon as practicable. 158
Accountability of inspectors
(1) An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector’s functions. (2) The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter and the regulator considers that the inspector should not deal, or should no longer deal, with the matter. 159
Suspension and ending of appointment of inspectors
(1) The regulator may suspend or end the appointment of an inspector. (2) A person’s appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector. DIVISION 2 – FUNCTIONS AND POWERS OF INSPECTORS 160 Functions and powers of inspectors An inspector has the following functions and powers under this Act: 162
Tooma’s Annotated Work Health and Safety Act 2011
[155.70]
Part 9 – Securing compliance
s 164
(a) to provide information and advice about compliance with this Act, (b) to assist in the resolution of: (i) work health and safety issues at workplaces, and (ii) issues related to access to a workplace by an assistant to a health and safety representative, and (iii) issues related to the exercise or purported exercise of a right of entry under Part 7, (c) to review disputed provisional improvement notices, (d) to require compliance with this Act through the issuing of notices, (e) to investigate contraventions of this Act and assist in the prosecution of offences, (f) to attend coronial inquests in relation to work-related deaths and examine witnesses. 161 Conditions on inspectors’ compliance powers An inspector’s compliance powers are subject to any conditions specified in the instrument of the inspector’s appointment. 162
Inspectors subject to regulator’s directions
(1) An inspector is subject to the regulator’s directions in the exercise of the inspector’s compliance powers. (2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter. 162A Exercise of inspector functions outside area of jurisdiction [Repealed] [S 162A rep Act 43 of 2015, Sch 2[5]; am Act 19 of 2015; Act 54 of 2013; Act 67 of 2011]
DIVISION 3 – POWERS RELATING TO ENTRY Subdivision 1 – General powers of entry 163
Powers of entry
(1) An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace. (2) An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace. (3) If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately. (4) An inspector may enter any place if the entry is authorised by a search warrant. Note. An inspector may enter residential premises to gain access to a workplace (see section 170(c)).
164
Notification of entry
(1) An inspector may enter a place under section 163 without prior notice to any person. (2) An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry: © 2017 THOMSON REUTERS
163
s 164
Work Health and Safety Act 2011 (NSW)
[155.70]
(a)
the relevant person conducting a business or undertaking at the workplace, (b) the person with management or control of the workplace, (c) any health and safety representative for workers carrying out work for that business or undertaking at the workplace. (3) However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay. (4) In this section, relevant person conducting a business or undertaking means the person conducting any business or undertaking in relation to which the inspector is exercising the powers of entry. 165
General powers on entry
(1) An any of the (a) (b) (c) (d)
(e) (f) (g)
inspector who enters a workplace under this Division may do all or following: inspect, examine and make inquiries at the workplace, inspect and examine anything (including a document) at the workplace, bring to the workplace and use any equipment or materials that may be required, take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings), take and remove for analysis a sample of any substance or thing without paying for it, require a person at the workplace to give the inspector reasonable help to exercise the inspector’s powers under paragraphs (a) to (e), exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of this Act.
(2) A person required to give reasonable help under subsection (1)(f) must not, without reasonable excuse, refuse or fail to comply with the requirement. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse. 165A Special powers of entry for coal and mining workplaces [Repealed] [S 165A rep Act 54 of 2013, Sch 3.14[9]; am Act 67 of 2011]
166
Persons assisting inspectors
(1) A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 165 to assist the inspector if the inspector considers the assistance is necessary. (2) The assistant: 164
Tooma’s Annotated Work Health and Safety Act 2011
[155.70]
Part 9 – Securing compliance
s 170
(a)
may do the things at the place and in the manner that the inspector reasonably requires to assist the inspector to exercise compliance powers, but (b) must not do anything that the inspector does not have power to do, except as permitted under a search warrant. (3) Anything done lawfully by the assistant is taken for all purposes to have been done by the inspector. 166A Special provision for coal and mining workplaces—consultation with employee representative [Repealed] [S 166A rep Act 54 of 2013, Sch 3.14[10]]
Subdivision 2 – Search warrants 167
Search warrant
(1) An inspector may apply to an authorised officer for a search warrant if the inspector believes on reasonable grounds that a provision of this Act has been or is being or is about to be contravened in or about any premises. (2) An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant to enter the premises and to search the premises for evidence of a contravention of this Act. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (4) In this section: authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. 168
Announcement before entry on warrant
Note. Not required in NSW.
169 Copy of warrant to be given to person with management or control of place Note. Not required in NSW.
Subdivision 3 – Limitation on entry powers 170 Places used for residential purposes Despite anything else in this Division, the powers of an inspector under this Division in relation to entering a place are not exercisable in relation to any part of a place that is used only for residential purposes except: (a) with the consent of the person with management or control of the place, or (b) under the authority conferred by a search warrant, or (c) for the purpose only of gaining access to a suspected workplace, but only: (i) if the inspector reasonably believes that no reasonable alternative access is available, and © 2017 THOMSON REUTERS
165
s 170
Work Health and Safety Act 2011 (NSW)
(ii)
[171.05]
at a reasonable time having regard to the times at which the inspector believes work is being carried out at the place to which access is sought.
Subdivision 4 – Specific powers on entry 171 Power to require production of documents and answers to questions (1) An inspector who enters a workplace under this Division may: (a) require a person to tell the inspector who has custody of, or access to, a document, or (b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a specified period, or (c) require a person at the workplace to answer any questions put by the inspector. (2) A requirement under subsection (1)(b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document. (3) An conducted (a) (b)
interview conducted by an inspector under subsection (1)(c) must be in private if: the inspector considers it appropriate, or the person being interviewed so requests.
(4) Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview. (5) Subsection (3) may be invoked during an interview by: (a) the inspector, or (b) the person being interviewed, in which case the subsection applies to the remainder of the interview. (6) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. Note. See sections 172 and 173 in relation to self-incrimination and section 269 in relation to legal professional privilege.
(7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse.
Relationship between powers on entry and power to request information [171.05] The relationship between the powers available to inspectors on entry (s 171) and the power of the regulator to request information (s 155) was 166
Tooma’s Annotated Work Health and Safety Act 2011
[171.30]
Part 9 – Securing compliance
s 171
considered in Hunter Quarries Pty v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580. The matter arose out of an investigation into the death of Mr Ryan Messenger, one of Hunter Quarries’ employees, on 9 September 2014, while he was working at the quarry which it operates at Karuah. That investigation was the result of a notification which it had given that day to the Department pursuant to the incident notification requirements of the Work Health and Safety Act 2011. A Departmental Inspector, Inspector Flowers, attended the mine in response to the notification. A dispute then arose as to his intention to exercise powers granted to inspectors upon entry to a workplace under s 171 of the Work Health and Safety Act 2011 particularly by seeking to interview witnesses. Hunter Quarries disputed his reliance on that power inviting him instead to exercise the power given to the regulator to request information under s 155 of the Work Health and Safety Act 2011. The inspector refused and insisted on his reliance on the powers upon entry – s 171. Hunter Quarries brought an application to the Supreme Court of NSW seeking declaratory relief in relation to powers of the inspector and seeking to restrain the inspector from obtaining information in relation to the incident pursuant to s 171. Schmidt J dismissed the summons. Her Honour held at [89]: On the proper construction of this Act, once an inspector has so exercised the statutory power of entry at a workplace, he or she is empowered by s 171 to require a person to tell him or her who has custody of or access to a document; to require that person to produce that document, while the inspector is still at the workplace, or later; and to require a person at the workplace to answer the questions which the inspector puts. That power is not displaced, limited or circumscribed by the powers granted to regulators by s 155 of the Act.
Legal professional privilege [171.10] It is now well settled that a person is entitled to resist the giving of information or the production of documents which would reveal communications between a client and their lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services including representation in legal proceedings: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. This position is supported by s 269.
Reasonable excuse [171.20] A defence of “reasonable excuse” is available for breach of s 171: s 171(6). However, the burden of proof of proving reasonable excuse rests with the defendant: s 171(7).
Privilege against self-incrimination [171.30] The right of silence is displaced by operation of s 172(1) but the information cannot be used against an individual in any civil or criminal proceedings (other than proceedings arising out of false or misleading information): s 172(2). Before requiring a person to answer a question or provide information or a document under s 171, an inspector must: © 2017 THOMSON REUTERS
167
s 172
Work Health and Safety Act 2011 (NSW)
[171.30]
• identify themselves to the person as an inspector by producing the inspector’s identity card or in some other way; • warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; • warn the person about the effect of s 172; and • advise the person about the protection afforded to information which is subject to legal professional privilege: s 173(1). It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning: s 173(2). However, an inspector can obtain and use evidence given to the inspector voluntarily by any person: s 173(3). This is why from a PCBU’s perspective it is imperative that any information or documents provided to inspectors as part of an investigation be done under a notice. 172
Abrogation of privilege against self-incrimination
(1) A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty. (2) However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document. 173
Warning to be given
(1) Before requiring a person to answer a question or provide information or a document under this Part, an inspector must: (a) identify himself or herself to the person as an inspector by producing the inspector’s identity card or in some other way, and (b) warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence, and (c) warn the person about the effect of section 172, and (d) advise the person about the effect of section 269. (2) It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector under this Part on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning in subsection (1)(c). (3) Nothing in this section prevents an inspector from obtaining and using evidence given to the inspector voluntarily by any person. 168
Tooma’s Annotated Work Health and Safety Act 2011
[171.30]
174
Part 9 – Securing compliance
s 177
Powers to copy and retain documents
(1) An inspector may: (a) make copies of, or take extracts from, a document given to the inspector in accordance with a requirement under this Act, and (b) keep that document for the period that the inspector considers necessary. (2) While an inspector retains custody of a document, the inspector must permit the following persons to inspect or make copies of the document at all reasonable times: (a) the person who produced the document, (b) the owner of the document, (c) a person authorised by a person referred to in paragraph (a) or (b). 175
Power to seize evidence etc
(1) An inspector who enters a workplace under this Part may: (a) seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act, or (b) take and remove for analysis, testing or examination a sample of any substance or thing without paying for it. (2) An inspector who enters a place with a search warrant may seize the evidence for which the warrant was issued. (3) An inspector may also seize anything else at the place if the inspector reasonably believes: (a) the thing is evidence of an offence against this Act, and (b) the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence. 176
Inspector’s power to seize dangerous workplaces and things
(1) This section applies if an inspector who enters a workplace under this Part reasonably believes that: (a) the workplace or part of the workplace, or (b) plant at the workplace, or (c) a substance at the workplace or part of the workplace, or (d) a structure at a workplace, is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur. (2) The inspector may seize the workplace or part, the plant, the substance or the structure. 177
Powers supporting seizure
(1) Having seized a thing, an inspector may: (a) move the thing from the place where it was seized (the place of seizure), or (b) leave the thing at the place of seizure but take reasonable action to restrict access to it, or © 2017 THOMSON REUTERS
169
s 177
Work Health and Safety Act 2011 (NSW)
[171.30]
Examples Sealing a thing and marking it to show access to it is restricted. Sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted.
(c)
if the thing is plant or a structure—dismantle or cause to be dismantled the plant or structure.
(2) If an inspector restricts access to a seized thing, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector’s approval. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (3) To control of (a) (b)
enable a thing to be seized, an inspector may require the person in it: to take it to a stated reasonable place by a stated reasonable time, and if necessary, to remain in control of it at the stated place for a reasonable time.
(4) The requirement: (a) must be made by written notice, or (b) if for any reason it is not practicable to give the notice, may be made orally and confirmed by written notice as soon as practicable. (5) A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement. (6) The person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (3) or (5). Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse. 178
Receipt for seized things
(1) As soon as practicable after an inspector seizes a thing, the inspector must give a receipt for it to the person from whom it was seized. (2) However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place of seizure. (3) The receipt must describe generally each thing seized and its condition. (4) This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt required by this section (given the thing’s nature, condition and value). 179
Forfeiture of seized things
(1) A seized thing is forfeited to the State if the regulator: (a) cannot find the person entitled to the thing after making reasonable inquiries, or 170
Tooma’s Annotated Work Health and Safety Act 2011
[171.30]
Part 9 – Securing compliance
s 180
(b)
cannot return it to the person entitled to it, after making reasonable efforts, or (c) reasonably believes it is necessary to forfeit the thing to prevent it being used to commit an offence against this Act.
(2) Subsection (1)(a) does not require the regulator to make inquiries if it would be unreasonable to make inquiries to find the person entitled to the thing. (3) Subsection (1)(b) does not require the regulator to make efforts if it would be unreasonable to make efforts to return the thing to the person entitled to it. (4) If the regulator decides to forfeit the thing under subsection (1)(c), the regulator must tell the person entitled to the thing of the decision by written notice. (5) Subsection (4) does not apply if: (a) the regulator cannot find the person entitled to the thing, after making reasonable inquiries, or (b) it is impracticable or would be unreasonable to give the notice. (6) The notice must state: (a) the reasons for the decision, and (b) that the person entitled to the thing may apply within 28 days after the date of the notice for the decision to be reviewed, and (c) how the person may apply for the review, and (d) that the person may apply for a stay of the decision if the person applies for a review. (7) In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing’s nature, condition and value. (8) Any costs reasonably incurred by the State in storing or disposing of a thing forfeited under subsection (1)(c) may be recovered in a court of competent jurisdiction as a debt due to the State from that person. (9) In this section, person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it in which case it means the owner of the thing. 180
Return of seized things
(1) If a seized thing has not been forfeited, the person entitled to the thing may apply to the regulator for the return of the thing after the end of 6 months after it was seized. (2) The regulator must return the thing to the applicant under subsection (1) unless the regulator has reasonable grounds to retain the thing. (3) The regulator may impose any conditions on the return of the thing under this section that the regulator considers appropriate to eliminate or minimise any risk to work health or safety related to the thing. (4) In this section, person entitled to a thing means the person entitled to possess the thing or the owner of the thing. © 2017 THOMSON REUTERS
171
s 181
181
Work Health and Safety Act 2011 (NSW)
[171.30]
Access to seized things
(1) Until a seized thing is forfeited or returned, the regulator must permit the following persons to inspect it and, if it is a document, to make copies of it at all reasonable times: (a) the person from whom the thing was seized, (b) the owner of the thing, (c) a person authorised by a person referred to in paragraph (a) or (b). (2) Subsection (1) does not apply if it is impracticable or would be unreasonable to allow inspection or copying. DIVISION 4 – DAMAGE AND COMPENSATION 182
Damage etc to be minimised
In the exercise, or purported exercise, of a compliance power, an inspector must take all reasonable steps to ensure that the inspector, and any assistant to the inspector, cause as little inconvenience, detriment and damage as is practicable. 183
Inspector to give notice of damage
(1) This section applies if an inspector or an assistant to an inspector damages a thing when exercising or purporting to exercise a compliance power. (2) The inspector must, as soon as practicable, give written notice of the damage to the person who the inspector believes on reasonable grounds, is the person in control of the thing. (3) If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector’s or assistant’s control, the inspector may state it in the notice. (4) If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened. (5) This section does not apply to damage the inspector reasonably believes is trivial. 184
Compensation
(1) A person may claim compensation from the State if the person incurs loss or expense because of the exercise or purported exercise of a power under Division 3 of this Part. (2) Compensation may be claimed and ordered in a proceeding: (a) brought in a court of competent jurisdiction, or (b) for an offence against this Act brought against the person claiming compensation. (3) The court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case. (4) The regulations may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order. 172
Tooma’s Annotated Work Health and Safety Act 2011
[171.30]
Part 9 – Securing compliance
s 189
DIVISION 5 – OTHER MATTERS 185
Power to require name and address
(1) An inspector may require a person to provide the person’s name and residential address if: (a) the inspector finds the person committing an offence against this Act, or (b) the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has committed an offence against this Act. (2) When asking a person to provide his or her name and residential address, the inspector must: (a) tell the person the reason for the requirement to provide their name and residential address, and (b) warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse. (3) If the inspector reasonably believes that the name or residential address is false, the inspector may ask the person to give evidence of its correctness.It is not an offence for a person to fail to give that evidence. (4) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1). Maximum penalty: $10,000. (5) Subsection (4) places an evidential burden on the accused to show a reasonable excuse. 186 Inspector may take affidavits An inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of his or her compliance powers. 187
Attendance of inspector at coronial inquests
An inspector may attend and has authority to examine witnesses at any inquest into the cause of death of a worker while carrying out work. DIVISION 6 – OFFENCES IN RELATION TO INSPECTORS 188 Offence to hinder or obstruct inspector A person must not intentionally hinder or obstruct an inspector in exercising his or her compliance powers, or induce or attempt to induce any other person to do so. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. 189 Offence to impersonate inspector A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector. Maximum penalty: $10,000. © 2017 THOMSON REUTERS
173
s 190
Work Health and Safety Act 2011 (NSW)
[191.10]
190 Offence to assault, threaten or intimidate inspector A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an inspector or a person assisting an inspector. Maximum penalty: (a) in the case of an individual—$50,000 or imprisonment for 2 years or both, or (b) in the case of a body corporate—$250,000.
Part 10 – Enforcement measures DIVISION 1 – IMPROVEMENT NOTICES 191
Issue of improvement notices
(1) This section applies if an inspector reasonably believes that a person: (a) is contravening a provision of this Act, or (b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. (2) The (a) (b) (c)
inspector may issue an improvement notice requiring the person to: remedy the contravention, or prevent a likely contravention from occurring, or remedy the things or operations causing the contravention or likely contravention.
Overview [191.10] An inspector may issue an improvement notice requiring a person to remedy a contravention of the Act, prevent a likely contravention of the Act or remedy the things or operations causing the contravention or likely contravention of the Act if the inspector forms the reasonable belief that a person is contravening or has contravened the Act in circumstances where the contravention will continue or be repeated.
Reasonable belief [191.20] The jurisdiction to issue an improvement notice is triggered by the inspector’s reasonable belief of a contravention which is taking place or likely to continue or be repeated. That is, the test is not whether the contravention has in fact taken place or is taking place but rather whether there is sufficient basis for an inspector to reasonably form that belief in the circumstances. The substantive matters giving rise to the notice may be reviewed internally or externally under Pt 12 of the Act but questions of jurisdiction to issue such notices must be more narrowly construed.
Form of notice [191.30] A notice must be in writing: s 203. 174
Tooma’s Annotated Work Health and Safety Act 2011
[191.40]
Part 10 – Enforcement measures
s 191
The form and content of the notice is prescribed by s 192. An improvement notice must state the provision the inspector believes is being or has been contravened, and briefly, how the provision is being, or has been, contravened. It must also state the day by which the person is required to remedy the contravention or likely contravention. The day stated for compliance with the improvement notice must be reasonable in all the circumstances. An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates: s 192. A direction included in an improvement notice or prohibition notice may refer to a code of practice and may offer the person to whom it is issued a choice of ways in which to remedy the contravention: s 204.
Compliance with notice [191.40] It is an offence to fail to comply with an improvement notice: s 193. An inspector may extend the period for compliance with an improvement notice: s 194. It is common for the remedial actions prescribed in post incident improvement notices to form the basis of subsequent prosecutions for breach of the primary duty of care. In that respect, an improvement notice is strategically significant. Compliance with a notice is an admission that the direction(s) required by the notice were reasonably practicable. This was considered in SafeWork NSW v Tamex [2016] NSWDC 295. That case related to an injury to a truck driver employed by a contractor of the defendant while his truck was being unloaded by an employee of the defendant at the defendant’s premises. In the aftermath of the incident, a WorkSafe NSW inspector attended the site and issued two improvement notices. The first notice directed the defendant to “ensure so far as is reasonably practicable the health and safety of workers/other persons by implementing a safe work procedure to manage the risks associated with persons being struck by moving plant and/or loads being moved at the workplace”: [2016] NSWDC 295 at [48]. The second notice directed the defendant to “eliminate the risks associated with metal gates falling from cages, where this is not reasonably practicable you must minimise the risks so far is as reasonably practicable by developing and implementing a system for ensuring the gates are secured in position during transport”: [2016] NSWDC 295 at [49]. The defendant took certain steps in compliance with those notices which were set out in a revised Safe Work Method Statement for the unloading process. Those steps were later abandoned as being impracticable. The defendant was prosecuted in relation to the incident. The particulars of the charge reflected the very steps that were identified by the defendant in its revised post-incident Safe Work Method Statement. No evidence was led by the prosecutor in relation to the reasonable practicality of the particulars of the charge other than the post-incident compliance by the defendant with its improvement notices. The defendant argued that the Court can have no regard to steps taken by the defendant post-incident under compulsion of a statutory notice. Scotting J reasoned as follows at [76]: © 2017 THOMSON REUTERS
175
s 192
Work Health and Safety Act 2011 (NSW)
[191.50]
The defendant contended that the Court could not consider any of the steps taken by the defendant after the incident because it was legally compelled to take those steps by the issue of the Improvement Notices. The defendant did not cite any authority for that proposition. The argument can be simply disposed of on the basis that the Improvement Notices did not require the defendant to take the particular steps taken by it after the incident. The Improvement Notices required it to take steps that were reasonably practicable as required by the Act. The defendant chose to take the particular steps that it did. I can see no reason why the taking of the particular steps by the defendant cannot be some evidence of the fact that they were reasonably practicable. When the Court comes to apply section 18 of the Act, that evidence may not be determinative of the issue. At that point, I must be satisfied beyond reasonable doubt that the steps were reasonably practicable to achieve the provision of a safe working environment at the time leading up to the incident and not with the benefit of hindsight.
Given the implication of accepting an improvement notice, the appeal provisions contained in Part 13 are of some importance.
Display of notice [191.50] A person to whom an improvement notice is issued must, as soon as possible, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice: s 210(1). It is an offence to intentionally remove, destroy, damage or deface an improvement notice so displayed while the notice is in force: s 210(2).
Appeal of notices [191.60] The following persons may appeal against an improvement notice: • the person to whom the notice was issued • a person conducting a business or undertaking whose interests are affected by the decision • a worker whose interests are affected by the decision • a health and safety representative who represents a worker whose interests are affected by the decision. Such persons may apply to the Regulator for a review of the notice: s 224. An application for internal review must be made within the time specified for compliance in the notice or within 14 days of the notice, whichever is the lesser period: s 224(3). An application for internal review of a notice stays the notice: s 228. Section 229 also provides for an external review of the notice or decision of the regulator in an internal review. 192
Contents of improvement notices
(1) An improvement notice must state: (a) that the inspector believes the person: (i) is contravening a provision of this Act, or 176
Tooma’s Annotated Work Health and Safety Act 2011
[191.60]
Part 10 – Enforcement measures
s 195
(ii)
has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated, and (b) the provision the inspector believes is being, or has been, contravened, and (c) briefly, how the provision is being, or has been, contravened, and (d) the day by which the person is required to remedy the contravention or likely contravention. (2) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. (3) The day stated for compliance with the improvement notice must be reasonable in all the circumstances. 193 Compliance with improvement notice The person to whom an improvement notice is issued must comply with the notice within the period specified in the notice. Maximum penalty: (a) in the case of an individual—$50,000, or (b) in the case of a body corporate—$250,000. 194
Extension of time for compliance with improvement notices
(1) This section applies if a person has been issued with an improvement notice. (2) An inspector may, by written notice given to the person, extend the compliance period for the improvement notice. (3) However, the inspector may extend the compliance period only if the period has not ended. (4) In this section: compliance period means the period stated in the improvement notice under section 192, and includes that period as extended under this section. DIVISION 2 – PROHIBITION NOTICES 195
Power to issue prohibition notice
(1) This section applies if an inspector reasonably believes that: (a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, or (b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. (2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied. © 2017 THOMSON REUTERS
177
s 195
Work Health and Safety Act 2011 (NSW)
[195.10]
(3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.
Overview of prohibition notices [195.10] A prohibition notice is a notice issued by an inspector prohibiting an activity. The notice may only be issued if the inspector reasonably believes that an activity may occur or is occurring at a workplace that will involve or involves a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. The notice may be initially given orally but must be confirmed in writing: s 196. The content of the notice is prescribed by s 196. It is an offence to fail to comply with the notice: s 197. The notice may include (and typically includes) directions on the measures to be taken to remedy the risk: s 196(2).
Appeal against prohibition notices [195.20] Prohibition notices are subject to internal and external review under Pt 12. An application for review may be made by: • the person to whom the notice was issued; • the person with management or control of the workplace, plant or substance; • a person conducting a business or undertaking whose intents are affected by the decision; • a worker whose interests are affected by the decision; • a health and safety representative (HSR) who represents a worker whose interests are affected by the decision; or • a HSR who gave a direction to cease work that is relevant to the prohibition notice.
Stay [195.30] A prohibition notice is not automatically stayed by the lodging of an application for internal review: s 228(1).
Display of notice [195.40] A prohibition notice must be displayed in a prominent place at or near the workplace affected by it: s 210. 196
Contents of prohibition notice
(1) A prohibition notice must state: (a) that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief, and (b) briefly, the activity that the inspector believes involves or will involve the risk and the matters that give or will give rise to the risk, and (c) the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity. 178
Tooma’s Annotated Work Health and Safety Act 2011
[198.40]
Part 10 – Enforcement measures
s 198
(2) A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention referred to in subsection (1)(c). (3) Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following: (a) a workplace, or part of a workplace, at which the activity is not to be carried out, (b) anything 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. 197 Compliance with prohibition notice The person to whom a direction is given under section 195(2) or a prohibition notice is issued must comply with the direction or notice. Maximum penalty: (a) in the case of an individual—$100,000, or (b) in the case of a body corporate—$500,000. DIVISION 3 – NON-DISTURBANCE NOTICES 198
Issue of non-disturbance notice
An inspector may issue a non-disturbance notice to the person with management or control of a workplace if the inspector reasonably believes that it is necessary to do so to facilitate the exercise of his or her compliance powers.
Overview of non-disturbance notice [198.10] A non-disturbance notice is a notice issued by an inspector preserving the site of a notifiable incident or preventing the disturbance of a site in other circumstances: s 199(1). The notice is issued by the inspector only if they have a reasonable belief that the issuing of the notice is necessary to facilitate their compliance powers: s 198. The non-disturbance notice must specify a period not exceeding seven days for which it will apply. If the notice does not relate to a notifiable incident that period must also be reasonable in the circumstances: s 199(1)(b).
Compliance with notice [198.20] It is an offence to fail to comply with a non-disturbance notice without reasonable excuse: s 200. The onus of proving reasonable excuse rests with the defendant.
Appeal of notice [198.30] A non-disturbance notice is subject to internal and external review under Pt 12.
Display of notice [198.40] A non-disturbance notice must be displayed in a prominent place at or near the workplace affected by it: s 210. © 2017 THOMSON REUTERS
179
s 199
199
Work Health and Safety Act 2011 (NSW)
[198.40]
Contents of non-disturbance notice
(1) A non-disturbance notice may require the person to: (a) preserve the site at which a notifiable incident has occurred for a specified period, or (b) prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a specified period that is reasonable in the circumstances. (2) A non-disturbance notice must specify the period (of no more than 7 days) for which it applies and set out: (a) the obligations of the person to whom the notice is issued, and (b) the measures to be taken to preserve a site or prevent disturbance of a site, and (c) the penalty for contravening the notice. (3) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the site. (4) A non-disturbance notice does not prevent any action: (a) to assist an injured person, or (b) to remove a deceased person, or (c) that is essential to make the site safe or to prevent a further incident, or (d) that is associated with a police investigation, or (e) for which an inspector has given permission. 200
Compliance with non-disturbance notice
(1) A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person. Maximum penalty: (a) in the case of an individual—$50,000, or (b) in the case of a body corporate—$250,000. (2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse. 201 Issue of subsequent notices If an inspector considers it necessary to do so, he or she may issue one or more subsequent non-disturbance notices to a person, whether before or after the expiry of the previous notice, each of which must comply with section 199. DIVISION 4 – GENERAL REQUIREMENTS APPLYING TO NOTICES 202
Application of Division
In this Division, notice means improvement notice, prohibition notice or non-disturbance notice. 203 Notice to be in writing A notice must be in writing. 180
Tooma’s Annotated Work Health and Safety Act 2011
[198.40]
s 209
Part 10 – Enforcement measures
204 Directions in notices A direction included in an improvement notice or prohibition notice may: (a) refer to a code of practice, and (b) offer the person to whom it is issued a choice of ways in which to remedy the contravention. 205
Recommendations in notice
(1) An improvement recommendations.
notice
or
prohibition
notice
may
include
(2) It is not an offence to fail to comply with recommendations in a notice. 206
Changes to notice by inspector
(1) An (a) (b) (c)
inspector may make minor changes to a notice: for clarification, or to correct errors or references, or to reflect changes of address or other circumstances.
(2) An inspector may also, in accordance with section 194, extend the compliance period for an improvement notice. 207
Regulator may vary or cancel notice
Except as provided in section 206, a notice issued by an inspector may only be varied or cancelled by the regulator. 208 Formal irregularities or defects in notice A notice is not invalid only because of: (a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice, or (b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person in accordance with section 209. 209
Issue and giving of notice
(1) A notice may be issued or given to a person: (a) by delivering it personally to the person or sending it by post or facsimile or electronic transmission to the person’s usual or last known place of residence or business, or (b) by leaving it for the person at the person’s usual or last known place of residence or business with a person who appears to be over 16 years and who appears to reside or work there, or (c) by leaving it for the person at the workplace to which the notice relates with a person who is or appears to be the person with management or control of the workplace, or (d) in a prescribed manner. (2) The regulations may prescribe: (a) the manner of issuing a notice, and (b) the steps a person to whom a notice is issued must take to bring it to the attention of other persons. © 2017 THOMSON REUTERS
181
s 210
210
Work Health and Safety Act 2011 (NSW)
[198.40]
Display of notice
(1) A person to whom a notice is issued must, as soon as possible, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. Maximum penalty: (a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000. (2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force. Maximum penalty: (a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000. DIVISION 5 – REMEDIAL ACTION 211
When regulator may carry out action
(1) This section applies if a person to whom a prohibition notice is issued fails to take reasonable steps to comply with the notice. (2) The regulator may take any remedial action the regulator believes reasonable to make the workplace or situation safe after giving written notice to the person to whom the prohibition notice was issued of: (a) the regulator’s intention to take that action, and (b) the owner’s or person’s liability for the costs of that action. 212
Power of the regulator to take other remedial action
(1) This section applies if the regulator reasonably believes that: (a) circumstances in which a prohibition notice can be issued exist, and (b) a prohibition notice cannot be issued at a workplace because, after taking reasonable steps, the person with management or control of the workplace cannot be found. (2) The regulator may take any remedial action necessary to make the workplace safe. 213
Costs of remedial or other action
The regulator may recover the reasonable costs of any remedial action taken under: (a) section 211 from the person to whom the notice is issued, or (b) section 212 from any person to whom the prohibition notice could have been issued in relation to the matter, as a debt due to the regulator. DIVISION 6 – INJUNCTIONS 214 Application of Division In this Division, notice means improvement notice, prohibition notice or non-disturbance notice. 215 Injunctions for noncompliance with notices (1) The regulator may apply to the District Court for an injunction: 182
Tooma’s Annotated Work Health and Safety Act 2011
[198.40]
Part 11 – Enforceable undertakings
s 220
(a) compelling a person to comply with a notice, or (b) restraining a person from contravening a notice. (2) The regulator may do so: (a) whether or not proceedings have been brought for an offence against this Act in connection with any matter in relation to which the notice was issued, and (b) whether any period for compliance with the notice has expired.
Part 11 – Enforceable undertakings 216
Regulator may accept WHS undertakings
(1) The regulator may accept a written undertaking (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act. Note. Section 230(4) requires the regulator to publish guidelines in relation to the acceptance of WHS undertakings.
(2) A WHS undertaking cannot be accepted for a contravention or alleged contravention that is a Category 1 offence. (3) The giving of a WHS undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates. 217
Notice of decision and reasons for decision
(1) The regulator must give the person seeking to make a WHS undertaking written notice of the regulator’s decision to accept or reject the WHS undertaking and of the reasons for the decision. (2) The regulator must publish, on the regulator’s website, notice of a decision to accept a WHS undertaking and the reasons for that decision. 218 When a WHS undertaking is enforceable A WHS undertaking takes effect and becomes enforceable when the regulator’s decision to accept the undertaking is given to the person who made the undertaking or at any later date specified by the regulator. 219 Compliance with WHS undertaking A person must not contravene a WHS undertaking made by that person that is in effect. Maximum penalty: (a) in the case of an individual—$50,000, or (b) in the case of a body corporate—$250,000. 220
Contravention of WHS undertaking
(1) The regulator may apply to the District Court for an order if a person contravenes a WHS undertaking. (2) If the Court is satisfied that the person who made the WHS undertaking has contravened the undertaking, the Court, in addition to the imposition of any penalty, may make one or both of the following orders: (a) an order directing the person to comply with the undertaking, © 2017 THOMSON REUTERS
183
s 220
Work Health and Safety Act 2011 (NSW)
(b)
[198.40]
an order discharging the undertaking.
(3) In addition to the orders referred to in subsection (2), the Court may make any other order that the Court considers appropriate in the circumstances, including orders directing the person to pay to the State: (a) the costs of the proceedings, and (b) the reasonable costs of the regulator in monitoring compliance with the WHS undertaking in the future. (4) Nothing in this section prevents proceedings being brought for the contravention or alleged contravention of this Act to which the WHS undertaking relates. Note. Section 222 specifies circumstances affecting proceedings for a contravention for which a WHS undertaking has been given.
221
Withdrawal or variation of WHS undertaking
(1) A person who has made a WHS undertaking may at any time, with the written agreement of the regulator: (a) withdraw the undertaking, or (b) vary the undertaking. (2) However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of the Act. (3) The regulator must publish, on the regulator’s website, notice of the withdrawal or variation of a WHS undertaking. 222
Proceeding for alleged contravention
(1) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if a WHS undertaking is in effect in relation to that contravention. (2) No proceedings may be brought for a contravention or alleged contravention of this Act against a person who has made a WHS undertaking in relation to that contravention and has completely discharged the WHS undertaking. (3) The regulator may accept a WHS undertaking in relation to a contravention or alleged contravention before proceedings in relation to that contravention have been finalised. (4) If the regulator accepts a WHS undertaking before the proceedings are finalised, the regulator must take all reasonable steps to have the proceedings discontinued as soon as possible.
Part 12 – Review of decisions DIVISON 1 – REVIEWABLE DECISIONS 223
Which decisions are reviewable
(1) The following table sets out: (a) decisions made under this Act that are reviewable in accordance with this Part (reviewable decisions), and 184
Tooma’s Annotated Work Health and Safety Act 2011
[198.40]
(b)
Item 1
2
3
4
Part 12 – Review of decisions
s 223
who is eligible to apply for review of a reviewable decision (the eligible person). Provision under which Eligible person in relation to reviewable decision is made reviewable decision Section 54(2) (decision (1) A worker whose interests are following failure to affected by the decision or commence negotiations) his or her representative appointed for the purpose of section 52(1)(b). (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A health and safety representative who represents a worker whose interests are affected by the decision. Section 72(6) (decision in (1) A person conducting a relation to training of health business or undertaking and safety representative) whose interests are affected by the decision. (2) A health and safety representative whose interests are affected by the decision. Section 76(6) (decision (1) A worker whose interests are relating to health and safety affected by the decision. committee) (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A health and safety representative who represents a worker whose interests are affected by the decision. Section 102 (decision on (1) The person to whom the review of provisional provisional improvement improvement notice) notice was issued. (2) The health and safety representative who issued the provisional improvement notice. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision.
© 2017 THOMSON REUTERS
185
s 223
Item
5 6 7
8
9
186
Work Health and Safety Act 2011 (NSW)
[198.40]
Provision under which Eligible person in relation to reviewable decision is made reviewable decision (5) A person conducting a business or undertaking whose interests are affected by the decision. Section 179 (forfeiture of The person entitled to the thing. seized things) Section 180 (return of seized The person entitled to the thing. things) Section 191 (issue of (1) The person to whom the improvement notice) notice was issued. (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. Section 194 (extension of (1) The person to whom the time for compliance with notice was issued. improvement notice) (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. Section 195 (issue of (1) The person to whom the prohibition notice) notice was issued. (2) The person with management or control of the workplace, plant or substance. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision.
Tooma’s Annotated Work Health and Safety Act 2011
[198.40]
Item
10
11
12
Part 12 – Review of decisions
s 223
Provision under which Eligible person in relation to reviewable decision is made reviewable decision (6) A health and safety representative who gave a direction under section 85 to cease work, that is relevant to the prohibition notice. Section 198 (issue of (1) The person to whom the non-disturbance notice) notice was issued. (2) The person with management or control of the workplace. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision. Section 201 (issue of (1) The person to whom the subsequent notice) notice was issued. (2) The person with management or control of the workplace. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision. Section 207 (decision of (1) The person to whom the regulator to vary or cancel notice was issued. notice) (2) The person with management or control of the workplace. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision.
© 2017 THOMSON REUTERS
187
s 223
Item
13
Work Health and Safety Act 2011 (NSW)
[198.40]
Provision under which Eligible person in relation to reviewable decision is made reviewable decision (6) In the case of a prohibition notice, a health and safety representative whose direction under section 85 to cease work gave rise to the notice. A prescribed provision of the A person prescribed by the regulations regulations as eligible to apply for review of the reviewable decision.
[Subs (1) am Act 55 of 2016, Sch 3.55[4]]
(2) Unless the contrary intention appears, a reference in this Part to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order, determination or decision, (b) giving, suspending, revoking or refusing to give a direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue an authorisation, (d) imposing a condition, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, a thing, or (g) doing or refusing to do any other act or thing. (3) In this section person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it, in which case it means the owner of the thing. Note: Decisions under the regulations that will be reviewable decisions will be set out in the regulations. [S 223 am Act 55 of 2016]
DIVISION 2 – INTERNAL REVIEW 224
Application for internal review
(1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within: (a) the prescribed time after the day on which the decision first came to the eligible person’s notice, or (b) such longer period as the regulator allows. (2) The application must be made in the manner and form required by the regulator. (3) For the purposes of this section, the prescribed time is: (a) in the case of a decision to issue an improvement notice the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser, and (b) in any other case, 14 days. 188
Tooma’s Annotated Work Health and Safety Act 2011
[198.40]
225
Part 12 – Review of decisions
s 228
Internal reviewer
(1) The regulator may appoint a person or body to review decisions on applications under this Division. (2) The person who made the decision cannot be an internal reviewer in relation to that decision. 226
Decision of internal reviewer
(1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received. (2) The decision may be: (a) to confirm or vary the reviewable decision, or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. (3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer. (4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information. (5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time. (6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer. 227
Decision on internal review
As soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing: (a) the decision on the internal review, and (b) the reasons for the decision. 228
Stays of reviewable decisions
(1) An application for an internal review of a reviewable decision (other than a decision to issue a prohibition notice or a non-disturbance notice) stays the operation of the decision. (2) If an application is made for internal review of a decision to issue a prohibition notice or a non-disturbance notice, the reviewer may stay the operation of the decision. (3) The reviewer may make the decision to stay the operation of a decision on the reviewer’s own initiative or on the application of the applicant for review. (4) The reviewer must make a decision on an application for a stay within one working day after the reviewer receives the application. © 2017 THOMSON REUTERS
189
s 228
Work Health and Safety Act 2011 (NSW)
[229.10]
(5) If the reviewer has not made a decision to stay a decision within the time set out in subsection (4), the reviewer is taken to have made a decision to grant a stay. (6) A stay of the operation of a decision pending a decision on an internal review continues until whichever of the following is the earlier: (a) the end of the prescribed period for applying for an external review of the decision made on the internal review, (b) an application for external review is made. DIVISION 3 – EXTERNAL REVIEW 229
Application for external review
(1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of: (a) a reviewable decision made by the regulator, or (b) a decision made, or taken to have been made, on an internal review. (2) The application must be made: (a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant’s notice, or (b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant’s notice, or (c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided. (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned.
Stay of notice [229.10] In determining whether to stay an improvement notice pending an external review, the court will have regard to whether there was a serious issue to be tried and the balance of convenience: Essential Energy v WorkCover Authority of New South Wales [2012] NSWIRComm 83. If the requirement to comply with the notice is not stayed, exposure to prosecution is not a relevant consideration: Essential Energy v WorkCover Authority of New South Wales [2012] NSWIRComm 83 per Backman J at [40].
Part 13 – Legal proceedings DIVISION 1 – GENERAL MATTERS 229A
Part extends to mines and coal workplaces [Repealed]
[S 229A rep Act 54 of 2013, Sch 3.14[11]; am Act 67 of 2011]
190
Tooma’s Annotated Work Health and Safety Act 2011
[229.10]
229B
Part 13 – Legal proceedings
s 230
Procedure for offences
(1) Except as provided by this section, proceedings for an offence against this Act or the regulations are to be dealt with summarily: (a) before the Local Court, or (b) before the District Court in its summary jurisdiction. (2) [Repealed] [Subs (2) rep Act 48 of 2016, Sch 2.37[2]]
(3) Proceedings for a Category 1 offence committed by an individual are to be taken on indictment. (4) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is $50,000, despite any higher maximum monetary penalty provided in respect of the offence. (5) [Repealed] [Subs (5) rep Act 67 of 2011, Sch 1[11]]
(6) [Repealed] [Subs (6) rep Act 48 of 2016, Sch 2.37[2]] [S 229B am Act 48 of 2016; Act 67 of 2011]
230
Prosecutions
(1) Subject to subsection (4), proceedings for an offence against this Act may only be brought by: (a) the regulator, or (b) an inspector with the written authorisation of the regulator (either generally or in a particular case), or (c) the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate, but only as permitted by subsection (3) if the offence concerned is a Category 1 offence or a Category 2 offence. (1A) Proceedings for an offence against this Act may also be brought by an Australian legal practitioner authorised in writing to represent a person who is authorised under this section to bring the proceedings. [Subs (1A) insrt Act 109 of 2013, Sch 1[1]]
(2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons. (3) The secretary of an industrial organisation of employees can bring proceedings for a Category 1 offence or a Category 2 offence only if the regulator has (after referral of the matter to the regulator and the Director of Public Prosecutions under section 231) declined to follow the advice of the Director of Public Prosecutions to bring the proceedings. (4) The regulator must issue, and publish on the regulator’s website, general guidelines for or in relation to: (a) the prosecution of offences under this Act, and (b) the acceptance of WHS undertakings under this Act. © 2017 THOMSON REUTERS
191
s 230
Work Health and Safety Act 2011 (NSW)
[229.10]
(5) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act. (6) The court before which proceedings for an offence against this Act are brought by the secretary of an industrial organisation of employees must not direct that any portion of a fine or other penalty imposed in the proceedings be paid to the prosecutor (despite section 122 of the Fines Act 1996). [S 230 am Act 109 of 2013]
231
Procedure if prosecution is not brought
(1) If: (a) a person reasonably considers that the occurrence of an act, matter or thing constitutes a Category 1 offence or a Category 2 offence, and (b) no prosecution has been brought in relation to the occurrence of the act, matter or thing after 6 months but not later than 12 months after that occurrence, the person may make a written request to the regulator that a prosecution be brought. (2) Within 3 months after the regulator receives a request the regulator must: (a) advise the person (in writing): (i) whether the investigation is complete, and (ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought, and (b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a). (3) If the regulator advises the person that a prosecution for a Category 1 or Category 2 offence will not be brought, the regulator must: (a) advise the person that the person may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration, and (b) if the person makes a written request to the regulator to do so, refer the matter to the Director of Public Prosecutions within 1 month of the request. (4) The Director of Public Prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the Director considers that a prosecution should be brought. (5) The regulator must ensure a copy of the advice is given to: (a) the person who made the request, and (b) the person who the applicant believes committed the offence. (6) If the regulator declines to follow the advice of the Director of Public Prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5). (7) In this section a reference to the occurrence of an act, matter or thing includes a reference to a failure in relation to an act, matter or thing. 192
Tooma’s Annotated Work Health and Safety Act 2011
[229.10]
232
Part 13 – Legal proceedings
s 236
Limitation period for prosecutions
(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur: (a) within 2 years after the offence first comes to the notice of the regulator, (b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act, (c) if a WHS undertaking has been given in relation to the offence, within 6 months after: (i) the WHS undertaking is contravened, or (ii) it comes to the notice of the regulator that the WHS undertaking has been contravened, or (iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking. (2) A proceeding for a Category 1 offence may be brought after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period. 233
Multiple contraventions of health and safety duty provision
(1) 2 or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence. (3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence. (4) In this section health and safety duty provision means a provision of Division 2, 3 or 4 of Part 2. DIVISION 2 – SENTENCING FOR OFFENCES 234 Application of this Division This Division applies if a court convicts a person, or finds a person guilty (the offender), of an offence against this Act. 235
Orders generally
(1) One or more orders may be made under this Division against the offender. (2) Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence. 236
Adverse publicity orders
(1) The court may make an order (an adverse publicity order) in relation to the offender requiring the offender: © 2017 THOMSON REUTERS
193
s 236
Work Health and Safety Act 2011 (NSW)
[229.10]
(a)
to take either or both of the following actions within the period specified in the order: (i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter, (ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter, and (b) to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order. [Subs (1) am Act 55 of 2016, Sch 3.55[5]]
(2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence. (3) If the offender fails to give evidence to the regulator in accordance with subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions specified in the order. (4) However, if: (a) the offender gives evidence to the regulator in accordance with subsection (1)(b), and (b) despite that evidence, the regulator is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order, the regulator may apply to the court for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions. (5) If the regulator or a person authorised in writing by the regulator takes an action or actions in accordance with subsection (3) or an order under subsection (4), the regulator is entitled to recover from the offender, by action in a court of competent jurisdiction, an amount in relation to the reasonable expenses of taking the action or actions as a debt due to the regulator. [S 236 am Act 55 of 2016]
237
Orders for restoration
(1) The court may order the offender to take such steps as are specified in the order, within the period so specified, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender’s power to remedy. (2) The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if an application for the extension is made before the end of that period. 238
Work health and safety project orders
(1) The court may make an order requiring the offender to undertake a specified project for the general improvement of work health and safety within the period specified in the order. (2) The order may specify conditions that must be complied with in undertaking the specified project. 194
Tooma’s Annotated Work Health and Safety Act 2011
[229.10]
239
Part 13 – Legal proceedings
s 242
Release on the giving of a court-ordered WHS undertaking
(1) The court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions (a court-ordered WHS undertaking). (2) A court-ordered WHS undertaking must specify the following conditions: (a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned, (b) that the offender does not commit, during the period of the adjournment, any offence against this Act, (c) that the offender observes any special conditions imposed by the court. (3) An offender who has given a court-ordered WHS undertaking under this section may be called on to appear before the court by order of the court. (4) An order under subsection (3) must be served on the offender not less than 4 days before the time specified in it for the appearance. (5) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered WHS undertaking, it must discharge the offender without any further hearing of the proceeding. 240
Injunctions
If a court finds a person guilty of an offence against this Act, the court may issue an injunction requiring the person to cease contravening this Act. Note. An injunction may also be obtained under section 215 for noncompliance with a non-disturbance notice, improvement notice or prohibition notice.
241
Training orders
The court may make an order requiring the person to undertake or arrange for one or more workers to undertake a specified course of training. 242
Offence to fail to comply with order
(1) A person must not, without reasonable excuse, fail to comply with an order under this Division. Maximum penalty: (a) in the case of an individual—$50,000, or (b) in the case of a body corporate—$250,000. (2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse. (3) This section does not apply to an order or injunction under section 239 or 240.
© 2017 THOMSON REUTERS
195
s 243
Work Health and Safety Act 2011 (NSW)
[229.10]
DIVISION 3 – PENALTY NOTICES 243
Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act, being an offence prescribed by the regulations as a penalty notice offence. (2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section. (3) A penalty notice under this section is declared to be a penalty notice for the purposes of the Fines Act 1996. (4) A penalty notice may be served personally or by post. (5) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence. (6) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (7) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section, and (c) prescribe different amounts of penalties for different offences or classes of offences. (8) The amount of a penalty prescribed under this section for an offence is not to exceed 20% of the maximum amount of penalty that could be imposed for the offence by a court. (9) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in relation to offences. (10) In this section, authorised officer means a member of staff of the regulator authorised in writing by the regulator as an authorised officer for the purposes of this section. DIVISION 4 – OFFENCES BY BODIES CORPORATE 244
Imputing conduct to bodies corporate
(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. 196
Tooma’s Annotated Work Health and Safety Act 2011
[247.10]
Part 13 – Legal proceedings
s 247
(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact. DIVISION 5 – THE CROWN 245
Offences and the Crown
(1) If the Crown is guilty of an offence against this Act, the penalty to be imposed on the Crown is the penalty applicable to a body corporate. (2) For the purposes of this Act, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown. (3) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the Crown for that offence to prove that the person referred to in subsection (2) had the relevant knowledge, intention or recklessness. (4) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the Crown for that offence if the person referred to in subsection (2) made that mistake of fact. 246
WHS civil penalty provisions and the Crown
(1) If the Crown contravenes a WHS civil penalty provision, the monetary penalty to be imposed on the Crown is the penalty applicable to a body corporate. (2) For the purposes of a WHS civil penalty provision, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown. (3) If a WHS civil penalty provision requires proof of knowledge, it is sufficient in proceedings against the Crown for a contravention of that provision to prove that the person referred to in subsection (2) had that knowledge. 247
Officers
(1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown is taken to be an officer of the Crown for the purposes of this Act. (2) A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act.
Officer of the Crown [247.10] Section 247 defines officers for the purpose of the Crown. Section 252 defines officers of public authorities. An officer of the Crown is a person who makes or participates in making decisions that affect the whole or substantial part of the business or undertakings of the Crown. The inquiry is directed at the role the person plays in the relevant business or undertaking of © 2017 THOMSON REUTERS
197
s 248
Work Health and Safety Act 2011 (NSW)
[247.10]
the Crown: Shafron v Australian Securities and Investments Commission [2012] HCA 18. The task is an objective task of what decisions a reasonable person, occupying the same office and having the same responsibilities, would make or participate in making: Shafron v Australian Securities and Investments Commission [2012] HCA 18. The definition is not merely restricted to persons who “make” decisions but extends to those who merely “participate” in making decisions. This is important in the context of the public sector. 248
Responsible agency for the Crown
(1) A provisional improvement notice, improvement notice, prohibition notice, non-disturbance notice, penalty notice or notice of entry under Part 7 to be given to or served on the Crown under this Act may be given to or served on the responsible agency. (2) If a penalty notice is to be served on the Crown for an offence against this Act, the responsible agency may be specified in the penalty notice. (3) If proceedings are brought against the Crown for an offence against this Act or in relation to a contravention of this Act, the responsible agency in relation to the offence or contravention may be specified in any document initiating, or relating to, the proceedings. (4) The responsible agency in relation to an offence or a contravention of this Act is entitled to act in proceedings against the Crown for the offence or relating to the contravention and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused or defendant in the proceedings are conferred or imposed on the responsible agency. (5) The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court’s leave. (6) In this section, the responsible agency: (a) in relation to a notice referred to in subsection (1) is: (i) in the case of a provisional improvement notice, improvement notice or penalty notice, the agency of the Crown the acts or omissions of which are alleged to contravene this Act, (ii) in the case of a prohibition notice, the agency of the Crown which has control over the activity referred to in section 195(1)(a) or (b), (iii) in the case of a non-disturbance notice, the agency of the Crown with the management and control of the workplace, (iv) in the case of a notice of entry under Part 7, the agency of the Crown conducting the relevant business or undertaking or with the management and control of the workplace, and (b) in relation to an offence or proceedings for a contravention of this Act, is the agency of the Crown: (i) the acts or omissions of which are alleged to constitute the offence or contravention, or (ii) if that agency has ceased to exist, that is the successor of that agency, or 198
Tooma’s Annotated Work Health and Safety Act 2011
[252.10]
Part 13 – Legal proceedings
(iii)
s 252
if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency.
DIVISION 6 – PUBLIC AUTHORITIES 249 Application to public authorities that are bodies corporate This Division applies only to public authorities that are bodies corporate. 250
Proceedings against public authorities
(1) Proceedings may be brought under this Act against a public authority in its own name. (2) Nothing in this Division affects any privileges that a public authority may have under the Crown. 251
Imputing conduct to public authorities
(1) For the purposes of this Act, any conduct engaged in on behalf of a public authority by an employee, agent or officer of the public authority acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the public authority. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the public authority for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the public authority for that offence if the person referred to in subsection (1) made that mistake of fact. 252
Officer of public authority
(1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act. (2) A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act. [Subs (2) insrt Act 67 of 2011, Sch 1[12]] [S 252 am Act 67 of 2011]
Officer of the Crown [252.10] Section 247 defines officers for the purpose of the Crown. Section 252 defines officers of public authorities. An officer of a public authority is a person who makes or participates in making decisions that affect the whole or a substantial part of the business or undertakings of a public authority. The inquiry is directed at the role the person plays in the relevant business or undertaking of a public authority: Shafron v Australian Securities and Investments Commission [2012] HCA 18. The task is an objective task of what decisions a reasonable person, occupying the same office and having the same responsibilities, would make or participate in making: Shafron v Australian © 2017 THOMSON REUTERS
199
s 253
Work Health and Safety Act 2011 (NSW)
[252.10]
Securities and Investments Commission [2012] HCA 18. The definition is not merely restricted to persons who “make” decisions but extends to those who merely “participate” in making decisions. This is important in the context of the public sector. 253
Proceedings against successors to public authorities
(1) Proceedings for an offence against this Act that were instituted against a public authority before its dissolution, or that could have been instituted against a public authority if not for its dissolution, may be continued or instituted against its successor if the successor is a public authority. (2) A penalty notice served on a public authority for an offence against this Act is taken to be a penalty notice served on its successor if the successor is a public authority. (3) Similarly, any penalty paid by a public authority in relation to an penalty notice is taken to be a penalty paid by its successor if the successor is a public authority. DIVISION 7 – WHS CIVIL PENALTY PROVISIONS 254
When is a provision a WHS civil penalty provision
(1) A subsection of Part 7 (or a section of Part 7 that is not divided into subsections) is a WHS civil penalty provision if: (a) the words “WHS civil penalty provision” and one or more amounts by way of monetary penalty are set out at the foot of the subsection (or section), or (b) another provision of Part 7 specifies that the subsection (or section) is a WHS civil penalty provision. (2) A subclause of the regulations (or a clause of the regulations that is not divided into subclauses) is a WHS civil penalty provision if: (a) the words “WHS civil penalty provision” and one or more amounts by way of monetary penalty are set out at the foot of the subclause (or clause), or (b) another provision of the regulations specifies that the subclause (or clause) is a WHS civil penalty provision. 255 Proceedings for contravention of WHS civil penalty provision Subject to this Division, proceedings may be brought in the Local Court or the District Court against a person for a contravention of a WHS civil penalty provision. [S 255 am Act 48 of 2016, Sch 2.37[3]]
256 Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a WHS civil penalty provision is taken to have contravened that provision. (2) A person is involved in a contravention of a civil penalty provision if, and only if, the person: 200
Tooma’s Annotated Work Health and Safety Act 2011
[252.10]
Part 13 – Legal proceedings
s 263
(a) has aided, abetted, counselled or procured the contravention, or (b) has induced the contravention, whether by threats or promises or otherwise, or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention, or (d) has conspired with others to effect the contravention. 257 Contravening a civil penalty provision is not an offence A contravention of a WHS civil penalty provision is not an offence. 258
Civil proceeding rules and procedure to apply
A court must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a contravention of a WHS civil penalty provision. 259 Proceeding for a contravention of a WHS civil penalty provision (1) In a proceeding for a contravention of a WHS civil penalty provision, if the court is satisfied that a person has contravened a WHS civil penalty provision, the court may: (a) order the person to pay a monetary penalty that the court considers appropriate, and (b) make any other order that the court considers appropriate, including an injunction. (2) A monetary penalty imposed under subsection (1) must not exceed the relevant maximum amount of monetary penalty specified under Part 7 or the regulations in relation to a contravention of that WHS civil penalty provision. 260 Proceedings may be brought by the regulator or an inspector Proceedings for a contravention of a WHS civil penalty provision may only be brought by: (a) the regulator, or (b) an inspector with the written authorisation of the regulator (either generally or in a particular case). 261 Limitation period for WHS civil penalty proceedings Proceedings for a contravention of a WHS civil penalty provision may be brought within 2 years after the contravention first comes to the notice of the regulator. 262 Recovery of a monetary penalty If the court orders a person to pay a monetary penalty: (a) the penalty is payable to the State, and (b) the State may enforce the order as if it were a judgment of the court. 263 Civil double jeopardy A court must not make an order against a person under section 259 for contravention of a WHS civil penalty provision if an order has been made against the person under a civil penalty provision under an Act of the Commonwealth or a State in relation to conduct that is substantially the same as the conduct constituting the contravention. © 2017 THOMSON REUTERS
201
s 264
264
Work Health and Safety Act 2011 (NSW)
[252.10]
Criminal proceedings during civil proceedings
(1) Proceedings against a person for a contravention of a WHS civil penalty provision are stayed if: (a) criminal proceedings are commenced or have already commenced against the person for an offence, and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision. (2) The proceedings for the order may be resumed if the person is not convicted or found guilty of the offence. Otherwise, the proceedings for the order are dismissed. 265
Criminal proceedings after civil proceedings
Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a WHS civil penalty provision regardless of whether an order has been made against the person under section 259. 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings (1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: (a) the individual previously gave the information or produced the documents in proceedings against the individual for a contravention of a WHS civil penalty provision (whether or not the order was made), and (b) the conduct alleged to constitute the offence is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision. (2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the contravention of the WHS civil penalty provision. DIVISION 8 – CIVIL LIABILITY NOT AFFECTED BY THIS ACT 267
Civil liability not affected by this Act
Except as provided in Part 6 and Part 7 and Division 7 of this Part, nothing in this Act is to be construed as: (a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act, or (b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings, or (c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be brought, in relation to breaches of duties or obligations imposed by the regulations. 202
Tooma’s Annotated Work Health and Safety Act 2011
[268.10]
Part 14 – General
s 268
Part 14 – General DIVISION 1 – GENERAL PROVISIONS 268
Offence to give false or misleading information
(1) A person must not give information in complying or purportedly complying with this Act that the person knows: (a) to be false or misleading in a material particular, or (b) omits any matter or thing without which the information is misleading. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (2) A person must not produce a document in complying or purportedly complying with this Act that the person knows to be false or misleading in a material particular without: (a) indicating the respect in which it is false or misleading and, if practicable, providing correct information, or (b) accompanying the document with a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate: (i) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular, and (ii) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. [Subs (2) am Act 55 of 2016, Sch 3.55[6]]
(3) Subsection (2) places an evidential burden on the accused to show that the accused had indicated the extent to which the document was false or misleading or that the accompanying document sufficiently explained the extent to which the document was false or misleading. [S 268 am Act 55 of 2016]
Offence of misleading [268.10] Section 268 creates an offence of misleading the Regulator in the provision of information or production of documents. The duty is imposed on the person (including companies) who furnishes the information or document. Section 268(1) prohibits a person from giving information which the person knows to be false or misleading in a material particular. Furthermore, s 268(1)(b) expressly includes instructions where the misleading conduct occurs through the omission of “any matter or thing”. © 2017 THOMSON REUTERS
203
s 269
Work Health and Safety Act 2011 (NSW)
[268.20]
Section 268(2) deals with the production of documents. The section makes it an offence to produce a document which is false or misleading without proper explanation. The onus of providing the explanation is shifted on the person producing the document: s 268(3).
Application to advisors [268.20] Section 268 is not restricted to duty holders. It applies to the persons furnishing the information or producing the document even if under instructions. That is, it applies equally to third party advisors including legal advisors and unions. 269 Act does not affect legal professional privilege Nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege.
Overview [269.10] Section 269 preserves the application of legal professional privilege to any document or information to which the privilege applies. The section of itself does not confer any special right or privilege.
Legal professional privilege [269.20] It is now well settled that a person is entitled to resist the giving of information or the production of documents which would reveal communications between a client and their lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services including representation in legal proceedings: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. This position is supported by s 269. Privilege not restricted to legal proceedings The privilege is not merely a rule of evidence, it is a rule of substantive law and an important common law immunity: Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49. As such, the privilege is not restricted to processes of discovery and giving evidence in legal proceedings: O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1. Rather, the privilege is available with respect to any process which would otherwise compel a person to produce privileged documents or information, including statutory notices including s 155 of the Act. 270
Immunity from liability
(1) An inspector, or other person engaged in the administration of this Act, incurs no civil liability for an act or omission done or omitted to be done in good faith and in the execution or purported execution of powers and functions under this Act. 204
Tooma’s Annotated Work Health and Safety Act 2011
[269.20]
Part 14 – General
s 271
(2) A civil liability that would, but for subsection (1), attach to a person, attaches instead to the State. 271
Confidentiality of information
(1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7). (2) The person must not do any of the following: (a) disclose to anyone else: (i) the information, or (ii) the contents of or information contained in the document, (b) give access to the document to anyone else, (c) use the information or document for any purpose. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document: (a) about a person, with the person’s consent, or (b) that is necessary for the exercise of a power or function under this Act, or (c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use: (i) is necessary for administering, or monitoring or enforcing compliance with, this Act, or (ii) is necessary for the administration or enforcement of another Act prescribed by the regulations, or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or (iv) is necessary for the recognition of authorisations under a corresponding WHS law, or (v) is required for the exercise of a power or function under a corresponding WHS law, or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or (e) that is required or authorised under a law, or (f) to a Minister. (4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless: (a) the disclosure is made with the consent of the complainant, or (b) the disclosure is required under a law. Maximum penalty: (a) in the case of an individual—$10,000, or © 2017 THOMSON REUTERS
205
s 271
Work Health and Safety Act 2011 (NSW)
(b) 271A
[272.10]
in the case of a body corporate—$50,000.
Information sharing between regulators
(1) Either one of the regulators or a member of staff of either one of the regulators is authorised to disclose information or give access to a document to the other regulator or a member of staff of the other regulator if the disclosure or giving of access is for the purpose of assisting the other regulator to exercise the powers or functions of the other regulator under this Act or the Work Health and Safety (Mines and Petroleum Sites) Act 2013. [Subs (1) am Act 43 of 2015, Sch 2[3]; Act 19 of 2015, Sch 14[5]; Act 54 of 2013, Sch 3.14[12]]
(2) Section 271 applies to the use of information or a document that a person obtains or gains access to as a result of the disclosure of the information or the giving of access to the document as authorised by this section, as if the person had obtained the information or gained access to the document in exercising a power or function under this Act. (3) Section 271(2) does not apply to the disclosure of information or giving of access to a document as authorised by this section. [S 271A am Act 43 of 2015; Act 19 of 2015; Act 54 of 2013; insrt Act 67 of 2011, Sch 1[13]]
272 No contracting out A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.
Contracting out [272.10] Section 272 confirms the application of common law principles rendering void as being against public policy any contractual term which purports to contract out of a criminal obligation. Section 272 extends to situations where the legal obligation is merely limited or modified and not just to situations where it is excluded.
Insurance contracts [272.20] An insurance contract which prompts to indemnify an insured against liability for an offence under the Act would relevantly “modify the operation of this Act” in that the insured would not be liable to pay a penalty if convicted of an offence as intended by the Act. Such contracts are therefore void. 273 Person not to levy workers A person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety. Maximum penalty: (a) in the case of an individual—$5,000, or (b) in the case of a body corporate—$25,000.
206
Tooma’s Annotated Work Health and Safety Act 2011
[273.10]
Part 14 – General
s 274
Levy worker offence [273.10] Section 273 creates an offence of levying or charging workers for “anything done or provided” in relation to worker health and safety. This includes personal protective equipment and amenities provided at a workplace. Given the broad definition of “worker” under s 8 of the Act, the prohibition extends to contractors, subcontractors, and employees of contractors and subcontractors. The prohibition extends to permitting a levy or charge to be imposed, thereby capturing restrictions where a person conducting a business or undertaking knowingly ignores activities of its contractors falling foul of the prohibition. While the section is aimed at equipment and amenities, there is nothing in the language of the section which would preclude it applying to supervision or inspections and audits. DIVISION 2 – CODES OF PRACTICE 274
Approved codes of practice
(1) The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice. (2) The Minister may only approve, vary or revoke a code of practice under subsection (1) if that code of practice, variation or revocation was developed by a process that involved consultation between: (a) the Governments of the Commonwealth and each State and Territory, and (b) unions, and (c) employer organisations. (3) A code of practice may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether: (a) with or without modification, or (b) as in force at a particular time or from time to time. (4) An approval of a code of practice, or a variation or revocation of an approved code of practice, takes effect when notice of it is published in the Gazette or on such later date as is specified in the approval, variation or revocation. (5) As soon as practicable after approving a code of practice, or varying or revoking an approved code of practice, the Minister must ensure that notice of the approval, variation or revocation is published in the Gazette and a newspaper circulating generally throughout the State. (6) The regulator must ensure that a copy of: (a) each code of practice that is currently approved, and (b) each document applied, adopted or incorporated (to any extent) by an approved code of practice, is available for inspection by members of the public without charge at the office of the regulator during normal business hours. © 2017 THOMSON REUTERS
207
s 274
Work Health and Safety Act 2011 (NSW)
[275.10]
Editorial note: For notices of approved codes of practice published or varied under this section, see Gazettes No 127 of 16.12.2011, p 7194; No 63 of 18.7.2014, p 2695; No 64 of 31.7.2015, p 2311; No 23 of 1.4.2016, p 575 and No 27 of 27.1.2017, p 202.
275
Use of codes of practice in proceedings
(1) This section applies in a proceeding for an offence against this Act. (2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with. (3) The court may: (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates, and (b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates. Note: See section 18 for the meaning of reasonably practicable.
(4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.
Codes of practice [275.10] The following are model codes of practice for the purpose of the Act: • Confined spaces • Hazardous manual tasks • How to manage and control asbestos in the workplace • How to manage work health and safety risks • How to safely remove asbestos • Labelling of workplace hazardous chemicals • Managing noise and preventing hearing loss at work • Managing the risk of falls at workplaces • Managing the work environment and facilities • Preparation of safety data sheets for hazardous chemicals • Work health and safety consultation, cooperation and coordination.
Australian standards [275.20] Australian standards are not legally enforceable unless called up in a specific provision of the Act or Regulation. In the absence of any such provision, Australian standards do not have any particular status nor do they set any relevant standard, a breach of which would automatically give rise to a breach of a duty under the Act: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2000] NSWIRComm 12 (Arbor Products was overturned on an appeal but not in this respect). See also R v Australian Char Pty Ltd [1999] 3 VR 834; Tenix Defence 208
Tooma’s Annotated Work Health and Safety Act 2011
[275.20]
Part 14 – General
s 276
Pty Ltd v Maccarron [2003] WASCA 165; Chicco v Woodville City Corporation (1990) Aust Tort Rep 81-028; and Inspector Macready v Forcon [2007] NSWIRComm 132. See further R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy (3rd ed, Thomson Reuters, Sydney, 2012), pp 466–468. DIVISION 3 – REGULATION-MAKING POWERS 276
Regulation-making powers
(1) The Governor may make regulations in relation to: (a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act. (2) Without limiting subsection (1), the regulations may make provision for or in relation to matters set out in Schedule 3. (3) The (a) (b) (c)
(d)
(e) (f)
(g)
(h)
regulations may: be of general or limited application, or differ according to differences in time, place or circumstance, or leave any matter or thing to be, from time to time, determined, applied or approved by the regulator, an inspector or any other prescribed person or body of persons, or apply, adopt or incorporate any matter contained in any document formulated, issued or published by a person or body whether: (i) with or without modification, or (ii) as in force at a particular time or as in force or remade from time to time, or prescribe exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed, or allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator, or prescribe fees for doing any act or providing any service for the purposes of this Act and prescribe the circumstances and way in which fees can be refunded, waived or reduced, or prescribe a penalty for any contravention of the regulations not exceeding $30,000.
(4) The Minister is not to recommend the making of a regulation containing provisions that confer jurisdiction of the Civil and Administrative Tribunal to exercise functions unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions. [Subs (4) insrt Act 95 of 2013, Sch 2.153[1]] [S 276 am Act 95 of 2013] © 2017 THOMSON REUTERS
209
s 276A
Work Health and Safety Act 2011 (NSW)
[275.20]
DIVISION 3A – MISCELLANEOUS 276A Application of Act to mining workplaces and coal workplaces—references to regulator [Repealed] [S 276A rep Act 67 of 2011, Sch 1[14]]
276B
Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. 276C
Repeals [Repealed]
[S 276C om Act 15 of 1987, s 30C]
SCHEDULE 1 – APPLICATION OF ACT TO DANGEROUS GOODS AND HIGH RISK PLANT This Act applies to the storage and handling of dangerous goods even if the dangerous goods are not at a workplace or for use in carrying out work. 1 2
For the purposes of clause 1: (a) a reference in this Act to carrying out work includes a reference to the storage or handling of dangerous goods, and (b) a reference in this Act to a workplace includes a reference to the premises at or in which the dangerous goods are stored or handled, and (c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety.
This Act applies to the operation or use of high risk plant, affecting public safety, even if the plant is not situated, operated or used at a workplace or for use in carrying out work. 3
4
For the purposes of clause 3: (a) a reference in this Act to carrying out work includes a reference to the operation and use of high risk plant affecting public safety, and (b) a reference in this Act to a workplace includes a reference to any high risk plant affecting public safety and the premises at or in which the plant is situated or used, and (c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety.
The operation of this Schedule is subject to any exclusions or modifications prescribed by the regulations. 5 6
In this Schedule: dangerous goods means anything prescribed as dangerous goods. high risk plant means plant prescribed as high risk plant.
210
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 3 – Regulation-making powers Part 14 – General
cl 2
SCHEDULE 2 – THE REGULATOR 1
The regulator (1) For the purposes of this Act, the regulator is: (a) the Secretary of the Department of Finance, Services and Innovation, unless paragraph (b) applies, or (b) in relation to a mine or petroleum site to which the Work Health and Safety (Mines and Petroleum Sites) Act 2013 applies or a workplace at which activities under the Petroleum (Offshore) Act 1982 are carried out—the regulator under the Work Health and Safety (Mines and Petroleum Sites) Act 2013.
(2) The Secretary of the Department of Finance, Services and Innovation is, as the regulator under this Act, to be known as SafeWork NSW. (3) [Repealed] (4) [Repealed] (5) [Repealed] (6) SafeWork NSW is subject to the control and direction of the Minister except in relation to: (a) the contents of any advice, report or recommendation given to the Minister, or (b) any decision that relates to proceedings for offences under this Act, or (c) any decision that relates to a WHS undertaking. (7) Nothing in this clause limits section 12A of the Work Health and Safety (Mines and Petroleum Sites) Act 2013. Note: That section authorises both regulators to exercise their functions in relation to all workplaces. [Cl 1 am Act 43 of 2015, Sch 2[6]–[8]; insrt Act 19 of 2015, Sch 14[6]] [Sch 2 am Act 43 of 2015; subst Act 19 of 2015, Sch 14[6]]
SCHEDULE 3 – REGULATION-MAKING POWERS 1
Duties
(1) Matters relating to the way in which duties imposed by this Act are to be performed. (2) Matters relating to the regulation or prohibition of specified activities or a specified class of activities: (a) at workplaces or a specified class of workplaces, or (b) by a specified class of persons on whom duties or obligations are imposed by this Act, to eliminate or minimise risks to health and safety. (3) Imposing duties on persons in relation to any matter provided for under the regulations. 2
Incidents Matters relating to incidents at workplaces including:
© 2017 THOMSON REUTERS
211
cl 2
Work Health and Safety Act 2011 (NSW)
(a)
regulating or requiring the taking of any action to avoid an incident at a workplace or in the course of conducting a business or undertaking, and (b) regulating, requiring or prohibiting the taking of any action in the event of an incident at a workplace or in the conduct of a business or undertaking. 3
Plant, substances or structures Matters relating to plant, substances or structures, including: (a) regulating the storage and handling of plant, substances and structures, and (b) regulating or requiring: (i) the examination, testing, labelling, maintenance or repair of plant and structures, or (ii) the examination, testing, analysis or labelling of any substance.
4
Protection and welfare of workers Matters relating to the protection and welfare of workers including: (a) regulating or requiring the provision and use of protective clothing or equipment, or rescue equipment, in specified circumstances, and (b) regulating or requiring the provision of specified facilities for the welfare of workers at the workplace, and (c) matters relating to health and safety in relation to accommodation provided to workers.
5
Hazards and risks Matters relating to hazards and risks including: (a) the prescribing of standards relating to the use of or exposure to any physical, biological, chemical or psychological hazard, and (b) matters relating to safety cases, safety management plans and safety management systems (however described), and (c) matters relating to measures to control risks.
6
Records and notices
(1) The keeping and availability of records of health and safety representatives and deputy health and safety representatives. (2) The keeping of records in relation to incidents. (3) The keeping of records of specified activities, matters or things to be kept by specified persons. (4) The giving of notice of or information about specified activities, matters or things to the regulator, an inspector or other specified person. 7
Authorisations
(1) Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of Part 4 or the regulations including providing for: (a) applications for the grant, issue, renewal, variation, suspension and cancellation of authorisations, including the minimum age to be eligible for an authorisation, and 212
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 3 – Regulation-making powers Part 14 – General
(b) (c) (d) (e) (f) (g) (h)
cl 14
the evidence and information to be provided in relation to applications including the provision of statutory declarations, and exemptions, and variations of authorisations by the regulator whether on application or otherwise, and authorisation of persons as trainers and assessors, and examination of applicants for authorisations, and conditions of authorisations, and fees for applications for the grant, issue, renewal and variation of authorisations.
(2) The recognition of authorisations under corresponding WHS laws and exceptions to recognition. (3) The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations. Work groups Matters relating to work groups and variation of work groups and agreements or variations of agreements relating to the determination of work groups. 8
Health and safety committees and health and safety representatives Matters relating to health and safety committees and health and safety representatives. 9
10
Issue resolution Matters relating to issue resolution including: (a) the minimum requirements for an agreed procedure for resolving an issue, and (b) the requirements for a default issue resolution procedure where there is no agreed procedure.
11
WHS Matters (a) (b) (c) (d) (e) (f)
entry permits relating to WHS entry permits, including providing for: eligibility for WHS entry permits, and procedures for applications for WHS entry permits and objections to applications for WHS entry permits, and conditions of WHS entry permits, and the form of WHS entry permits, and requirements for training, and records of WHS entry permits.
12
Identity cards Matters relating to identity cards.
13
Forfeiture Matters relating to: (a) costs of forfeiture and disposal of forfeited things, and (b) disposal of seized things and forfeited things.
14
Review of decisions Matters relating to the review of decisions under the regulations including:
© 2017 THOMSON REUTERS
213
cl 14
Work Health and Safety Act 2011 (NSW)
(a)
prescribing decisions as reviewable decisions for the purposes of Part 12 or for the purposes of the regulations, and (b) prescribing procedures for internal and external review of decisions under the regulations, and (c) conferring jurisdiction on the Local Court or the Industrial Relations Commission to conduct reviews under the regulations, and (d) conferring jurisdiction on the Civil and Administrative Tribunal to conduct administrative reviews under the Administrative Decisions Review Act 1997. [Cl 14 am Act 95 of 2013, Sch 2.153[2]] [Sch 3 am Act 95 of 2013]
SCHEDULE 4 – SAVINGS, TRANSITIONAL AND OTHER PROVISIONS Part 1 – General 1
Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act and any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. (4) A provision referred to in subclause (1) has effect, if the regulations so provide, despite any other clause of this Schedule. (5) The power to make regulations under subclause (1) extends to authorise the making of regulations whereby the provisions of this Act are deemed to be amended in a specified manner, but any regulation made pursuant to this subclause: (a) may only be made for or with respect to matters for or with respect to which this Act makes provision, and (b) may not be made so as to have effect after 31 December 2012, and (c) ceases to have effect, unless sooner revoked or otherwise ceasing to have effect, on 31 December 2012. (6) Subclause (5)(b) and (c) do not apply, and are taken never to have applied, to or in respect of: (a) Schedule 18B to the Work Health and Safety Regulation 2011, or 214
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 4 – Savings, transitional and other provisions Part 14 – General
(b)
cl 7
any other provision of the Work Health and Safety Regulation 2011 that does not specifically state that provisions of this Act are deemed to be amended in a specified manner (whether that provision was made before or after the commencement of this subclause).
[Cl 1 am Act 54 of 2013, Sch 3.14[13]; Act 109 of 2013, Sch 1[2] and [3]; Act 42 of 2012, Sch 1.29; Act 67 of 2011, Sch 1[15]]
Part 2 – Provision consequent on enactment of this Act 2
Definition In this Part: OHS Act means the Occupational Health and Safety Act 2000.
Industry codes of practice An industry code of practice approved and in force under Part 4 of the OHS Act immediately before the repeal of that Act is taken to be an approved code of practice under Part 14 of this Act. 3
4
Improvement or prohibition notices
(1) An improvement notice or provisional improvement notice may be issued under this Act in relation to a contravention of the OHS Act or the regulations under the OHS Act that occurred before the commencement of this Act. (2) An improvement notice or prohibition notice issued under the OHS Act and in force on the commencement of this Act is taken to be an improvement notice or prohibition notice issued under this Act. (3) Any appeal, review or other proceeding pending under the OHS Act in relation to an improvement notice or prohibition notice issued under the OHS Act is taken to be a proceeding pending under the corresponding provision of this Act. 5
Inspectors
(1) A person appointed as an inspector under the OHS Act and holding office on the repeal of the OHS Act is taken to be appointed as an inspector under this Act, subject to the regulations under this Schedule. (2) An identification card issued to the inspector under the OHS Act (or to a person taken to have been appointed as an inspector under section 47A or 47B of the OHS Act) is taken to be an identity card issued under this Act until its replacement under this Act, and may be used by an inspector under this Act even though it refers to provisions of the OHS Act. [Cl 5 am Act 67 of 2011, Sch 1[16]]
Investigative powers and related matters Part 9 (Securing compliance) extends to the exercise of powers in connection with the OHS Act or a regulation under the OHS Act in relation to offences committed against the OHS Act or the regulation before its repeal or in relation to any other matter that continues to have any force or effect (except as provided by or under this Schedule). 6
7
Continuation of repealed Regulations
Without limiting clause 1, the regulations under that clause may make provision for or with respect to: © 2017 THOMSON REUTERS
215
cl 7
Work Health and Safety Act 2011 (NSW)
(a)
the continued operation after the commencement of this Act of a regulation or provision of a regulation made or continued in operation by or under the OHS Act or by or under an Act repealed by the OHS Act, or (b) anything done under any such regulation or provision and having any force or effect immediately before the commencement of this Act. [Cl 7 subst Act 67 of 2011, Sch 1[17]]
Existing notices, exemptions etc A notice, direction, order, requirement, exemption or other instrument that: (a) is given, issued or made under the OHS Act, and (b) is in force on the repeal of the OHS Act, has effect for the purposes of any corresponding provision of or made under this Act, unless this Act or the regulations otherwise provide. 8
[Cl 8 am Act 67 of 2011, Sch 1[18]]
9
General saving
Anything done under the OHS Act or a provision of the OHS Act that has any force or effect immediately before its repeal is taken to have been done under the corresponding provision of this Act, subject to any express or implied provision to the contrary in this Act or the regulations made under this Act.
Part 2A – Prosecution of offences against OHS laws Definitions
9A
In this Part: OHS Act means the Occupational Health and Safety Act 2000. OHS laws means the OHS Act or the OHS Regulation. OHS offence means an offence against a provision of the OHS laws. OHS Regulation means the Occupational Health and Safety Regulation 2001. WHS Act means this Act. WHS laws means this Act or the WHS Regulation. WHS Regulation means regulations under this Act. [Cl 9A insrt Act 109 of 2013, Sch 1[4]]
9B
General transitional arrangements for OHS offences
Proceedings for an OHS offence alleged to have been committed before the repeal of the OHS Act are to be dealt with after the repeal of the OHS Act as if that Act had not been repealed, except as otherwise provided by this Part. [Cl 9B insrt Act 109 of 2013, Sch 1[4]]
Arrangements for proceedings commenced after WHS Act commencement Proceedings for an OHS offence that are commenced after the commencement of the WHS Act are to be dealt with as follows: (a) proceedings are to be dealt with summarily before the Local Court or the District Court in its summary jurisdiction, except as provided by paragraph (b), 9C
216
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 4 – Savings, transitional and other provisions Part 14 – General
(b)
cl 9H
proceedings for an offence against section 32A (Reckless conduct causing death at workplace by person with OHS duties) of the OHS Act are to be taken on indictment.
[Cl 9C insrt Act 109 of 2013, Sch 1[4]]
Arrangements for offences committed on or after 7/6/11 and prosecuted in Industrial Court 9D
Proceedings for an OHS offence alleged to have been committed on or after 7 June 2011 that were commenced in the Industrial Court before the commencement of the WHS Act but not finally determined by the Industrial Court before that commencement are discontinued in the Industrial Court on that commencement and are then to be dealt with: (a) summarily before the District Court in its summary jurisdiction, unless paragraph (b) applies, or (b) on indictment in the case of proceedings for an offence against section 32A of the OHS Act. [Cl 9D insrt Act 109 of 2013, Sch 1[4]]
9E
Requirements for workplace death offence prosecutions
Proceedings for an offence against section 32A of the OHS Act cannot be instituted after the commencement of the WHS Act except with the written consent of a Minister of the Crown (including such a consent given before the commencement of the WHS Act) or by an inspector under the WHS Act. [Cl 9E insrt Act 109 of 2013, Sch 1[4]]
9F
Enforceable undertakings for OHS offences
(1) Part 11 (Enforceable undertakings) of the WHS Act extends to a contravention or alleged contravention of a provision of the OHS laws that occurred or is alleged to have occurred on or after 7 June 2011. (2) This clause does not apply to a contravention or alleged contravention of section 32A of the OHS Act. [Cl 9F insrt Act 109 of 2013, Sch 1[4]]
9G
Authority to prosecute for OHS offences
(1) In addition to the persons authorised under section 106 of the OHS Act to institute proceedings for an OHS offence, proceedings for such an offence may be instituted by an Australian legal practitioner representing a person so authorised to institute the proceedings. (2) This clause extends to proceedings instituted before the commencement of this Part and before the commencement of the WHS Act. [Cl 9G insrt Act 109 of 2013, Sch 1[4]]
9H
Validation
(1) Any act or omission that would have been valid had this Part been in force at the time of the act or omission is taken to be (and always to have been) valid.
© 2017 THOMSON REUTERS
217
cl 9H
Work Health and Safety Act 2011 (NSW)
(2) To remove doubt, this clause extends to the commencement or institution of criminal proceedings (including the purported commencement or institution of criminal proceedings) and any act or omission in connection with criminal proceedings. [Cl 9H insrt Act 109 of 2013, Sch 1[4]] [Pt 2A insrt Act 109 of 2013, Sch 1[4]]
Part 3 – Provisions consequent on enactment of Work Health and Safety Legislation Amendment Act 2011 10
Definitions In this Part: amending Act means the Work Health and Safety Legislation Amendment Act 2011. OHS Act means the Occupational Health and Safety Act 2000.
[Cl 10 insrt Act 67 of 2011, Sch 1[19]]
11
Amendment of Coal Mine Health and Safety Act 2002
(1) Section 8B of the Coal Mine Health and Safety Act 2002 (the CMHS Act) extends to matters arising before the commencement of this Act as if a reference in that section to this Act included a reference to the OHS Act. (2) A reference to this Act in section 14, 15 or 16 of the CMHS Act includes a reference to the OHS Act in relation to an offence committed before the commencement of this Act. (3) A site-specific occupational health and safety management plan prepared for the purposes of section 75 of the CMHS Act that is in force immediately before the commencement of this Act is taken to have been prepared as a site-specific work health and safety management plan. (4) A reference to this Act in section 175 of the CMHS Act includes a reference to the OHS Act in relation to a failure that occurs before the commencement of this Act. (5) A reference to this Act in section 191 of the CMHS Act includes a reference to the OHS Act in relation to an offence committed before the commencement of this Act. (6) A reference to this Act in section 220 of the CMHS Act includes a reference to the OHS Act in relation to a matter or thing done or omitted before the commencement of this Act. (7) A reference to the OHS Act in clause 27 (Validation) of Schedule 3 to the CMHS Act includes a reference to this Act if the relevant date under that clause is after the commencement of this Act. [Cl 11 insrt Act 67 of 2011, Sch 1[19]]
Amendment of Crimes (Sentencing Procedure) Act 1999 Section 27 of the Crimes (Sentencing Procedure) Act 1999 continues to apply as it was in force before the commencement of this Act to and in relation to an offence against Division 1 of Part 2 of the OHS Act committed before the commencement of this Act. 12
[Cl 12 insrt Act 67 of 2011, Sch 1[19]]
218
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 4 – Savings, transitional and other provisions Part 14 – General
13
cl 15
Amendment of Criminal Procedure Act 1986
Sections 215 and 257D of the Criminal Procedure Act 1986 continue to apply as it was in force before the commencement of this Act to and in respect of proceedings for an offence committed before that commencement. [Cl 13 insrt Act 67 of 2011, Sch 1[19]]
14
Amendment of Industrial Relations Act 1996
(1) There is no right of appeal under section 197A (Appeals against acquittals in proceedings for offences against occupational health and safety legislation) of the Industrial Relations Act 1996 (the IR Act) after the repeal of that section, except as provided by subclause (2). (2) Section 197A of the IR Act continues to apply (despite its repeal) to and in relation to an appeal commenced under that section before its repeal. (3) Section 210(1)(j) of the IR Act continues to apply as it was in force before the commencement of this Act to and in relation to: (a) any complaint made about a workplace matter (as referred to in that provision) before the repeal of that provision, and (b) the exercise before the repeal of that provision of any function conferred under Division 2 of Part 2 of the OHS Act. (4) Section 383A(a) of the IR Act continues to apply (despite its repeal) to and in relation to the recovery of any amount ordered to be paid under section 114 of the OHS Act by the Local Court constituted by an Industrial Magistrate before the repeal of that provision. [Cl 14 insrt Act 67 of 2011, Sch 1[19]]
15
Amendment of Mine Health and Safety Act 2004
(1) Section 8 of the Mine Health and Safety Act 2004 (the MHS Act) extends to matters arising before the commencement of this Act as if a reference in that section to this Act included a reference to the OHS Act. (2) A reference to this Act in sections 18, 19 and 20 of the MHS Act includes a reference to the OHS Act in relation to an offence committed before the commencement of this Act. (3) A reference to this Act in section 100 of the MHS Act includes a reference to the OHS Act in relation to a serious breach of a provision of the OHS Act or the regulations under that Act that occurs before the commencement of this Act. (4) A reference to this Act in section 164 of the MHS Act includes a reference to the OHS Act in relation to a failure that occurs before the commencement of this Act. (5) A reference to this Act in section 189 of the MHS Act includes a reference to the OHS Act in relation to a matter or thing done or omitted before the commencement of this Act. [Cl 15 insrt Act 67 of 2011, Sch 1[19]]
© 2017 THOMSON REUTERS
219
cl 16
16
Work Health and Safety Act 2011 (NSW)
Amendment of Mining Act 1992
A reference to this Act in section 378E of the Mining Act 1992 includes a reference to the OHS Act in relation to an order or direction given before the commencement of this Act. [Cl 16 insrt Act 67 of 2011, Sch 1[19]]
17
Amendment of Rail Safety Act 2008
(1) Section 138(1) of the Rail Safety Act 2008 (the Act) continues to apply as it was in force before the commencement of this Act to and in respect of offences committed before the commencement of this Act. (2) Section 138(2) of the Act continues to apply as it was in force before the commencement of this Act to and in respect of improvement or prohibition notices issued before the commencement of this Act. (3) Except as otherwise provided by this clause, an amendment made to the Act by the amending Act does not apply to an act or omission that occurs before the commencement of the amendment. [Cl 17 insrt Act 67 of 2011, Sch 1[19]]
18
Amendment of Road Transport (General) Act 2005
For the purposes of section 244A of the Road Transport (General) Act 2005, a person who commits an act or omission that constitutes an offence under an applicable road law and under the OHS Act is not liable to be punished twice in relation to that offence if it was committed before the commencement of this Act. [Cl 18 insrt Act 67 of 2011, Sch 1[19]]
19
Amendment of Rural Workers Accommodation Act 1969
For the purposes of section 20 of the Rural Workers Accommodation Act 1969 (the Act), a person who commits an act or omission that constitutes an offence under the Act (or any regulations made under the Act) and under the OHS Act is not liable to be punished twice in relation to that offence if it was committed before the commencement of this Act. [Cl 19 insrt Act 67 of 2011, Sch 1[19]]
Amendment of Workplace Injury Management and Workers Compensation Act 1998 20
(1) A reference in section 245A (Evidence—criminal proceedings under WHS legislation) of the Workplace Injury Management and Workers Compensation Act 1998 to work health and safety legislation includes (in relation to an offence committed before the commencement of this Act) a reference to occupational health and safety legislation within the meaning of that Act as in force before that commencement. (2) For the purposes of the operation of section 254 of the Workplace Injury Management and Workers Compensation Act 1998 after the commencement of this Act, an injury reported before that commencement by or on behalf of an employer to an inspector under the OHS Act is taken to have been reported to an inspector under this Act. (3) The Workers Compensation and Work Health and Safety Council of New South Wales is a continuation of the Workers Compensation and Workplace 220
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 4 – Savings, transitional and other provisions Part 14 – General
cl 25
Occupational Health and Safety Council of New South Wales as constituted under the Workplace Injury Management and Workers Compensation Act 1998 before the commencement of this Act. [Cl 20 insrt Act 67 of 2011, Sch 1[19]] [Pt 3 insrt Act 67 of 2011, Sch 1[19]]
Part 4 – Provisions consequent on enactment of Work Health and Safety (Mines) Act 2013 21
Definitions In this Part: former Acts means the Mine Health and Safety Act 2004 and the Coal Mine Health and Safety Act 2002. WHS(M) Act means the Work Health and Safety (Mines) Act 2013.
[Cl 21 insrt Act 54 of 2013, Sch 3.14[14]]
Continued operation of provisions under former Acts A reference in section 229A or 271A to the WHS(M) Act includes a reference to each of the former Acts. 22
[Cl 22 insrt Act 54 of 2013, Sch 3.14[14]] [Pt 4 insrt Act 54 of 2013, Sch 3.14[14]]
Part 5 – Provisions consequent on enactment of Work Health and Safety Amendment Act 2013 23
Definition In this Part: amending Act means the Work Health and Safety Amendment Act 2013.
[Cl 23 insrt Act 109 of 2013, Sch 1[5]]
24
Authority to prosecute
(1) Section 230(1A) as inserted by the amending Act extends to proceedings brought before the commencement of that Act. (2) Proceedings brought or purporting to have been brought before the commencement of section 230(1A) that would have been validly brought had section 230(1A) been in force at the time the proceedings were brought are taken to have been (and always to have been) validly brought. [Cl 24 insrt Act 109 of 2013, Sch 1[5]]
25
Court decisions not affected
(1) An amendment made by the amending Act does not affect any decision of a court made before the date of assent to that Act, except as provided by subclause (2). (2) A decision of a court made before the date of assent to the amending Act that would have been validly made had the amendments made by that Act been in force when the decision was made (and that would otherwise not have been valid) is validated. [Cl 25 insrt Act 109 of 2013, Sch 1[5]]
© 2017 THOMSON REUTERS
221
cl 26
Work Health and Safety Act 2011 (NSW)
Recommencement of terminated proceedings
26
(1) Proceedings for an OHS offence that were terminated before the date of assent to the amending Act because they were not validly instituted may be recommenced whether or not the time for commencing the proceedings has expired if the proceedings would have been validly instituted if the amending Act had commenced before the proceedings were terminated. (2) Proceedings cannot be recommenced under this clause later than 6 months after the date of assent to the amending Act. (3) Terminated proceedings that were terminated in the District Court may be recommenced under this clause on the basis of the applications and other documents by which those proceedings were last commenced, and any thing done in the terminated proceedings (other than the termination of the proceedings) is taken to have been done in the recommenced proceedings. (4) In this clause: OHS offence means an offence against a provision of the Occupational Health and Safety Act 2000 or the Occupational Health and Safety Regulation 2001. proceedings includes purported proceedings. terminated includes stayed, dismissed or not proceeded with for any other reason (including nullity). [Cl 26 insrt Act 109 of 2013, Sch 1[5]] [Pt 5 insrt Act 109 of 2013, Sch 1[5]] [Sch 4 am Act 54 of 2013; Act 109 of 2013; Act 42 of 2012; Act 67 of 2011]
SCHEDULE 5 – AMENDMENT OF OTHER LEGISLATION [REPEALED] [Sch 5 om Act 15 of 1987, s 30C]
222
Tooma’s Annotated Work Health and Safety Act 2011
WORK HEALTH AND SAFETY REGULATION 2011 (NSW) CHAPTER 1 - PRELIMINARY Part 1.1 - Introductory matters 1 2 3 4 5 5A 6 7 8 9
Name of Regulation.................................................................................................. Commencement........................................................................................................ Authorising provisions............................................................................................... Repeal ...................................................................................................................... Definitions ................................................................................................................. Meaning of corresponding WHS law ........................................................................ Determination of safety management system.......................................................... Meaning of “person conducting a business or undertaking”—persons excluded ................................................................................................................... Meaning of supply .................................................................................................... Provisions linked to health and safety duties in Act.................................................
245 245 245 245 245 268 268 268 269 269
Part 1.2 - Application 10 11 12
Application of the Act to dangerous goods and high risk plant ............................... 269 Application of this Regulation ................................................................................... 270 Assessment of risk in relation to a class of hazards, tasks, circumstances or things .................................................................................................................... 270
Part 1.3 - Incorporated documents 13 14 15
Documents incorporated as in force when incorporated ......................................... 270 Inconsistencies between provisions ......................................................................... 270 References to standards .......................................................................................... 271
CHAPTER 2 - REPRESENTATION AND PARTICIPATION Part 2.1 - Representation Division 1 - Work groups 16 Negotiations for and determination of work groups ................................................. 273 17 Matters to be taken into account in negotiations ..................................................... 273 Division 2 - Health and safety representatives 18 Procedures for election of health and safety representatives.................................. 19 Person conducting business or undertaking must not delay election...................... 20 Removal of health and safety representatives......................................................... 21 Training for health and safety representatives.........................................................
274 274 274 274
Part 2.2 - Issue resolution 22 23
Agreed procedure—minimum requirements............................................................. 275 Default procedure ..................................................................................................... 275
Part 2.3 - Cessation of unsafe work 24
Continuity of engagement of worker ........................................................................ 276
Part 2.4 - Workplace entry by WHS entry permit holders 25 26 27 28 29 30 31
Training requirements for WHS entry permits.......................................................... Form of WHS entry permit ....................................................................................... Notice of entry—general........................................................................................... Additional requirements—entry under section 117 .................................................. Additional requirements—entry under section 120 .................................................. Additional requirements—entry under section 121 .................................................. Register of WHS entry permit holders .....................................................................
© 2017 THOMSON REUTERS
276 277 277 278 278 278 279
223
Work Health and Safety Regulation 2011 (NSW)
CHAPTER 3 - GENERAL MANAGEMENT
RISK
AND
WORKPLACE
Part 3.1 - Managing risks to health and safety 32 33 34 35 36 37 38
Application of Part 3.1 .............................................................................................. Specific requirements must be complied with.......................................................... Duty to identify hazards............................................................................................ Managing risks to health and safety ........................................................................ Hierarchy of control measures ................................................................................. Maintenance of control measures ............................................................................ Review of control measures .....................................................................................
281 281 281 281 281 282 282
Part 3.2 - General workplace management Division 1 - Information, training and instruction 39 Provision of information, training and instruction ..................................................... 283 Division 2 - General working environment 40 Duty in relation to general workplace facilities......................................................... 283 41 Duty to provide and maintain adequate and accessible facilities ............................ 284 Division 3 - First aid 42 Duty to provide first aid ............................................................................................ 284 Division 4 - Emergency plans 43 Duty to prepare, maintain and implement emergency plan ..................................... 285 Division 5 - Personal protective equipment 44 Provision to workers and use of personal protective equipment ............................. 45 Personal protective equipment used by other persons............................................ 46 Duties of worker........................................................................................................ 47 Duty of person other than worker.............................................................................
286 287 287 287
Division 6 - Remote or isolated work 48 Remote or isolated work........................................................................................... 287 Division 7 - Managing risks from airborne contaminants 49 Ensuring exposure standards for substances and mixtures not exceeded ............. 288 50 Monitoring airborne contaminant levels.................................................................... 288 Division 8 - Hazardous atmospheres 51 Managing risks to health and safety ........................................................................ 289 52 Ignition sources ........................................................................................................ 289 Division 9 - Storage of flammable or combustible substances 53 Flammable and combustible material not to be accumulated ................................. 289 Division 10 - Falling objects 54 Management of risk of falling objects....................................................................... 289 55 Minimising risk associated with falling objects ......................................................... 290
CHAPTER 4 - HAZARDOUS WORK Part 4.1 - Noise 56 57 58 59
Meaning of “exposure standard for noise” ............................................................... Managing risk of hearing loss from noise ................................................................ Audiometric testing ................................................................................................... Duties of designers, manufacturers, importers and suppliers of plant ....................
291 291 291 292
Part 4.2 - Hazardous manual tasks 60 61
Managing risks to health and safety ........................................................................ 293 Duties of designers, manufacturers, importers and suppliers of plant or structures .................................................................................................................. 293
Part 4.3 - Confined spaces Division 1 - Preliminary 62 Confined spaces to which this Part applies ............................................................. 295
224
Tooma’s Annotated Work Health and Safety Act 2011
63
Application to emergency service workers............................................................... 295
Division 2 - Duties of designer, manufacturer, importer, supplier, installer and constructor of plant or structure 64 Duty to eliminate or minimise risk ............................................................................ 295 Division 3 - Duties of person conducting business or undertaking 65 Entry into confined space must comply with this Division ....................................... 66 Managing risks to health and safety ........................................................................ 67 Confined space entry permit .................................................................................... 68 Signage..................................................................................................................... 69 Communication and safety monitoring ..................................................................... 70 Specific control—connected plant and services....................................................... 71 Specific control—atmosphere................................................................................... 72 Specific control—flammable gases and vapours ..................................................... 73 Specific control—fire and explosion ......................................................................... 74 Emergency procedures............................................................................................. 75 Personal protective equipment in emergencies ....................................................... 76 Information, training and instruction for workers ...................................................... 77 Confined space entry permit and risk assessment must be kept............................
296 296 297 297 298 298 298 299 299 300 300 301 301
Part 4.4 - Falls 78 79 80
Management of risk of fall ........................................................................................ 302 Specific requirements to minimise risk of fall........................................................... 303 Emergency and rescue procedures ......................................................................... 304
Part 4.5 - High risk work Division 1 - Licensing of high risk work Subdivision 1 - Requirement to be licensed 81 Licence required to carry out high risk work ............................................................ 304 82 Exceptions ................................................................................................................ 305 83 Recognition of high risk work licences in other jurisdictions.................................... 306 84 Duty of person conducting business or undertaking to ensure direct supervision................................................................................................................ 306 85 Evidence of licence—duty of person conducting business or undertaking ............. 306 Subdivision 2 - Licensing process 86 Who may apply for a licence.................................................................................... 307 87 Application for high risk work licence ....................................................................... 307 88 Additional information ............................................................................................... 308 89 Decision on application............................................................................................. 309 90 Matters to be taken into account.............................................................................. 309 91 Refusal to grant high risk work licence—process .................................................... 310 91A Conditions of licence ................................................................................................ 310 92 Duration of licence.................................................................................................... 310 93 Licence document .................................................................................................... 310 94 Licence document to be available ............................................................................ 311 95 Reassessment of competency of licence holder...................................................... 311 Subdivision 3 - Amendment of licence document 96 Notice of change of address .................................................................................... 312 97 Licence holder to return licence ............................................................................... 312 98 Replacement licence document ............................................................................... 312 99 Voluntary surrender of licence.................................................................................. 312 Subdivision 4 - Renewal of high risk work licence 100 Regulator may renew licence ................................................................................... 313 101 Application for renewal ............................................................................................. 313 102 Licence continues in force until application is decided ............................................ 313 103 Renewal of expired licence ...................................................................................... 313 104 Provisions relating to renewal of licence.................................................................. 313 105 Status of licence during review ................................................................................ 314 Subdivision 5 - Suspension and cancellation of high risk work licence 106 Suspension or cancellation of licence ...................................................................... 314 107 Matters taken into account ....................................................................................... 315 108 Notice to and submissions by licence holder........................................................... 316 © 2017 THOMSON REUTERS
225
Work Health and Safety Regulation 2011 (NSW) 109 110 111 112
Notice of decision ..................................................................................................... Immediate suspension.............................................................................................. Licence holder to return licence document .............................................................. Regulator to return licence document after suspension ..........................................
316 317 317 317
Division 2 - Accreditation of assessors Subdivision 1 - Requirement to be accredited 113 Accreditation required to assess competency for high risk work licence ................ 114 Accredited assessor must act in accordance with accreditation ............................. Subdivision 2 - Accreditation process 115 Regulator may accredit assessors ........................................................................... 116 Application for accreditation ..................................................................................... 117 Additional information ............................................................................................... 118 Decision on application............................................................................................. 119 Matters to be taken into account.............................................................................. 120 Refusal to grant accreditation—process .................................................................. 121 Conditions of accreditation ....................................................................................... 122 Duration of accreditation........................................................................................... 123 Accreditation document ............................................................................................ 124 Accreditation document to be available ................................................................... Subdivision 3 - Amendment of accreditation document 125 Changes to information ............................................................................................ 126 Accredited assessor to return accreditation document ............................................ 127 Replacement accreditation document ...................................................................... 128 Voluntary surrender of accreditation......................................................................... Subdivision 4 - Renewal of accreditation 129 Regulator may renew accreditation.......................................................................... 130 Application for renewal ............................................................................................. 131 Accreditation continues in force until application is decided.................................... 132 Provisions relating to application.............................................................................. Subdivision 5 - Suspension and cancellation 133 Regulator may suspend or cancel accreditation ...................................................... 134 Suspension or cancellation of accreditation............................................................. 135 Matters to be taken into account.............................................................................. 136 Notice to and submissions by accredited assessor ................................................. 137 Notice of decision ..................................................................................................... 138 Immediate suspension.............................................................................................. 139 Accredited assessor to return accreditation document ............................................ 140 Regulator to return accreditation document after suspension ................................. Subdivision 6 - Agreements with RTOs 141 Regulator may enter into agreement with RTO .......................................................
318 318 318 318 319 319 320 321 321 321 321 322 322 322 323 323 323 323 324 324 324 324 325 325 325 326 327 327 327
Part 4.6 - Demolition work Division 1 - Notice of demolition work 142 Notice of demolition work ......................................................................................... 327 Division 2 - Licensing of demolition work 143 Demolition work required to be licensed .................................................................. 328
Part 4.7 - General electrical safety in workplaces and energised electrical work Division 1 - Preliminary 144 Meaning of “electrical equipment” ............................................................................ 328 145 Meaning of “electrical installation” ............................................................................ 328 146 Meaning of “electrical work” ..................................................................................... 328 Division 2 - General risk management 147 Risk management..................................................................................................... 329 Division 3 - Electrical equipment and electrical installations 148 Electrical equipment and electrical installations to which this Division applies ...................................................................................................................... 330 149 Unsafe electrical equipment ..................................................................................... 330
226
Tooma’s Annotated Work Health and Safety Act 2011
150 151
Inspection and testing of electrical equipment ......................................................... 330 Untested electrical equipment not to be used.......................................................... 331
Division 4 - Electrical work on energised electrical equipment 152 Application of Division 4 ........................................................................................... 153 Persons conducting a business or undertaking to which this Division applies ...................................................................................................................... 154 Electrical work on energised electrical equipment—prohibited................................ 155 Duty to determine whether equipment is energised ................................................ 156 De-energised equipment must not be inadvertently re-energised ........................... 157 Electrical work on energised electrical equipment—when permitted....................... 158 Preliminary steps ...................................................................................................... 159 Unauthorised access to equipment being worked on .............................................. 160 Contact with equipment being worked on ................................................................ 161 How the work is to be carried out ............................................................................ 162 Record keeping ........................................................................................................
331 331 332 332 332 332 333 333 334 334 335
Division 5 - Electrical equipment and installations and construction work—additional duties 163 Duty of person conducting business or undertaking................................................ 336 Division 6 - Residual current devices 164 Use of socket outlets in hostile operating environment ........................................... 336 165 Testing of residual current devices........................................................................... 337 Division 7 - Overhead and underground electric lines 166 Duty of person conducting a business or undertaking............................................. 337
Part 4.8 - Diving work Division 1 - Preliminary 167 Purpose of Part 4.8 .................................................................................................. 338 Division 2 - General diving work—fitness and competence of worker 168 Person conducting business or undertaking must ensure fitness of workers ......... 169 Certificate of medical fitness .................................................................................... 170 Duty to keep certificate of medical fitness ............................................................... 171 Competence of worker—general diving work—general qualifications..................... 171A Competence of worker—general diving work—additional knowledge and skill ............................................................................................................................ 172 Competence of worker—incidental diving work ....................................................... 173 Competence of worker—limited scientific diving work ............................................. 174 Competence of competent person supervising general diving work ....................... 175 Evidence of competence—duty of person conducting business or undertaking ............................................................................................................... Division 3 - Managing risks—general diving work 176 Management of risks to health and safety ............................................................... 177 Appointment of competent person to supervise diving work ................................... 178 Additional control—dive plan .................................................................................... 179 Dive plan must be complied with ............................................................................. 180 Additional control—dive safety log to be kept.......................................................... 181 Use of dive safety log............................................................................................... 182 Record keeping ........................................................................................................
338 338 339 339 339 340 340 340 340 341 341 342 342 342 343 344
Division 4 - High risk diving work 183 Duties of person conducting business or undertaking ............................................. 345 184 Duty of worker—competence ................................................................................... 345
CHAPTER 5 - PLANT AND STRUCTURES Part 5.1 - General duties for plant and structures Division 1 - Preliminary 185 Application of Part 5.1 to plant ................................................................................. 347 186 Application of Part 5.1 to structures ......................................................................... 347 © 2017 THOMSON REUTERS
227
Work Health and Safety Regulation 2011 (NSW) Division 2 - Duties of persons conducting businesses or undertakings that design plant 187 Provision of information to manufacturer ................................................................. 188 Hazard identified in design during manufacture....................................................... 189 Guarding ................................................................................................................... 190 Operational controls.................................................................................................. 191 Emergency stop controls .......................................................................................... 192 Warning devices .......................................................................................................
347 348 348 349 350 350
Division 3 - Duties of persons conducting businesses or undertakings that manufacture plant 193 Control of risk ........................................................................................................... 351 194 Guarding ................................................................................................................... 351 195 Information must be obtained and provided............................................................. 352 Division 4 - Duties of persons conducting businesses or undertakings that import plant 196 Information to be obtained and provided by importer .............................................. 352 197 Control of risk ........................................................................................................... 352 Division 5 - Duties of persons conducting businesses or undertakings that supply plant 198 Information to be obtained and provided by supplier............................................... 353 199 Supply of second-hand plant—duties of supplier..................................................... 353 200 Second-hand plant to be used for scrap or spare parts .......................................... 354 Division 6 - Duties of persons conducting businesses or undertakings that install, construct or commission plant or structures 201 Duties of persons conducting businesses or undertakings that install, construct or commission plant.................................................................................. 354 202 Duties of persons conducting businesses or undertakings that install, construct or commission structures.......................................................................... 354 Division 7 - General duties of a person conducting a business or undertaking involving the management or control of plant Subdivision 1 - Management of risks 203 Management of risks to health and safety ............................................................... 355 Subdivision 2 - Additional control measures for general plant 204 Control of risks arising from installation or commissioning...................................... 205 Preventing unauthorised alterations to or interference with plant............................ 206 Proper use of plant and controls .............................................................................. 207 Plant not in use ........................................................................................................ 208 Guarding ................................................................................................................... 209 Guarding and insulation from heat and cold ............................................................ 210 Operational controls.................................................................................................. 211 Emergency stops ...................................................................................................... 212 Warning devices ....................................................................................................... 213 Maintenance and inspection of plant........................................................................
355 356 356 356 356 358 358 359 359 359
Subdivision 3 - Additional control measures for certain plant 214 Powered mobile plant—general control of risk ........................................................ 215 Powered mobile plant—specific control measures .................................................. 216 Roll-over protection on tractors ................................................................................ 217 Protective structures on earthmoving machinery [Repealed] .................................. 218 Industrial lift trucks.................................................................................................... 219 Plant that lifts or suspends loads ............................................................................. 220 Exception—plant not specifically designed to lift or suspend a person................... 221 Plant used in connection with tree lopping .............................................................. 222 Industrial robots ........................................................................................................ 223 Lasers ....................................................................................................................... 224 Pressure equipment.................................................................................................. 225 Scaffolds ................................................................................................................... 226 Plant with presence-sensing safeguarding system—records ..................................
360 360 361 361 361 362 363 363 364 364 365 365 366
228
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.2 - Additional duties relating to registered plant and plant designs Division 1 - Application of Part 5.2 227 Application of Part 5.2 .............................................................................................. 367 Division 2 - Duty of person conducting a business or undertaking who designs plant to record plant design 228 Records and information .......................................................................................... 367 229 Record of standards or engineering principles used ............................................... 368 230 Records to be available for inspection ..................................................................... 368 Division 3 - Duties of a person conducting a business or undertaking 231 Duty of persons conducting businesses or undertakings that manufacture plant .......................................................................................................................... 232 Duty of persons conducting businesses or undertakings that import plant ............. 233 Duty of persons conducting businesses or undertakings that supply plant............. 234 Duty of persons conducting businesses or undertakings that commission plant ..........................................................................................................................
368 369 369 369
Division 4 - Duties of a person conducting a business or undertaking involving the management or control of plant Subdivision 1 - Control measures for registered plant 235 Major inspection of registered mobile cranes and tower cranes ............................. 236 Lifts ........................................................................................................................... 237 Records of plant ....................................................................................................... Subdivision 2 - Control measures for amusement devices and passenger ropeways 238 Operation of amusement devices and passenger ropeways................................... 239 Storage of amusement devices and passenger ropeways ...................................... 240 Maintenance, inspection and testing of amusement devices and passenger ropeways .................................................................................................................. 241 Annual inspection of amusement devices and passenger ropeways ...................... 242 Log book and manuals for amusement devices ......................................................
369 370 371 372 372 372 373 374
Part 5.3 - Registration of plant designs and items of plant Division 1 - Plant designs to be registered 243 Plant design to be registered ................................................................................... 375 244 Altered plant designs to be registered ..................................................................... 375 245 Recognition of designs registered by corresponding regulator................................ 375 Division 2 - Items of plant to be registered 246 Items of plant to be registered ................................................................................. 375 247 Recognition of plant registered by corresponding regulator .................................... 376 Division 3 - Registration process for plant designs 248 Application of Division 3 ........................................................................................... 249 Who can apply to register a plant design ................................................................ 250 Application for registration ........................................................................................ 251 Design verification statement ................................................................................... 252 Who can be the design verifier ................................................................................ 253 Duty of design verifier............................................................................................... 254 Design verification statements not to be made in certain circumstances................ 255 Additional information ............................................................................................... 256 Decision on application............................................................................................. 257 Refusal of registration—process .............................................................................. 258 Conditions of registration.......................................................................................... 259 Duration of registration of plant design .................................................................... 260 Plant design registration number.............................................................................. 261 Registration document.............................................................................................. 262 Registration document to be available ..................................................................... 263 Disclosure of design information ..............................................................................
376 376 376 376 377 377 377 377 378 378 379 379 379 380 380 380
Division 4 - Registration process for an item of plant 264 Application of Division 4 ........................................................................................... 381 265 Who can apply to register an item of plant .............................................................. 381 266 Application for registration ........................................................................................ 381 © 2017 THOMSON REUTERS
229
Work Health and Safety Regulation 2011 (NSW) 267 268 269 270 271 272 273 274 275 276 277 278 279 280
When is a person competent to inspect plant.......................................................... Additional information ............................................................................................... Decision on application............................................................................................. Refusal of registration—process .............................................................................. Conditions of registration.......................................................................................... Duration of registration ............................................................................................. Plant registration number ......................................................................................... Registration document.............................................................................................. Registration document to be available ..................................................................... Regulator may renew registration ............................................................................ Application for renewal ............................................................................................. Registration continues in force until application is decided ..................................... Decision on application............................................................................................. Status of registration during review..........................................................................
381 382 382 383 383 383 383 384 384 384 384 385 385 385
Division 5 - Changes to registration and registration documents 281 Application of Division .............................................................................................. 282 Changes to information ............................................................................................ 283 Amendment of registration imposed by regulator .................................................... 284 Amendment on application by registration holder.................................................... 285 Minor corrections to registration ............................................................................... 286 Regulator to give amended registration document .................................................. 287 Registration holder to return registration document................................................. 288 Replacement registration document.........................................................................
386 386 386 387 388 388 388 388
Division 6 - Cancellation of registration 288A Application of Division .............................................................................................. 288B Regulator may cancel registration............................................................................ 288C Cancellation process ................................................................................................ 288D Registration holder to return registration document.................................................
389 389 389 390
CHAPTER 6 - CONSTRUCTION WORK Part 6.1 - Preliminary 289 290 291 292 293
Meaning Meaning Meaning Meaning Meaning
of of of of of
“construction work” ................................................................................ “structure” .............................................................................................. “high risk construction work” ................................................................. “construction project” ............................................................................. “principal contractor”..............................................................................
391 391 392 393 393
Part 6.2 - Duties of designer of structure and person who commissions construction work 294 295 296
Person who commissions work must consult with designer.................................... 393 Designer must give safety report to person who commissions design ................... 394 Person who commissions project must give information to principal contractor .................................................................................................................. 394
Part 6.3 - Duties of person conducting business or undertaking Division 1 - General 297 Management of risks to health and safety ............................................................... 394 298 Security of workplace ............................................................................................... 394 Division 2 - High risk construction work—safe work method statements 299 Safe work method statement required for high risk construction work.................... 300 Compliance with safe work method statement ........................................................ 301 Safe work method statement—copy to be given to principal contractor ................. 302 Review of safe work method statement ................................................................... 303 Safe work method statement must be kept .............................................................
395 395 396 396 396
Division 3 - Excavation work 304 Excavation work—underground essential services information............................... 397 305 Management of risks to health and safety associated with excavation work .......... 398 306 Additional controls—trenches ................................................................................... 398
Part 6.4 - Additional duties of principal contractor 307
Application of Part 6.4 .............................................................................................. 399
230
Tooma’s Annotated Work Health and Safety Act 2011
308 309 310 311 312 313 314 315
Specific control measure—signage identifying principal contractor......................... WHS management plan—preparation...................................................................... WHS management plan—duty to inform.................................................................. WHS management plan—review ............................................................................. High risk construction work—safe work method statements ................................... Copy of WHS management plan must be kept ....................................................... Further health and safety duties—specific clauses.................................................. Further health and safety duties—specific risks ......................................................
399 399 400 400 400 401 401 402
Part 6.5 - General construction induction training Division 1 - General construction induction training requirements 316 Duty to provide general construction induction training ........................................... 402 317 Duty to ensure worker has been trained.................................................................. 402 318 Recognition of general construction induction training cards issued in other jurisdictions ............................................................................................................... 403 Division 2 - General construction induction training cards 319 Issue of card ............................................................................................................. 320 Content of card ......................................................................................................... 321 Replacement card..................................................................................................... 322 Refusal to issue or replace card .............................................................................. 323 Cancellation of card—grounds ................................................................................. 324 Cancellation of card—process.................................................................................. 325 RTO may enter agreement to issue cards ...............................................................
403 404 404 404 405 405 405
Division 3 - Duties of workers 326 Duties of workers...................................................................................................... 405 327 Alteration of general construction induction training card ........................................ 406
CHAPTER 7 - HAZARDOUS CHEMICALS Part 7.1 - Hazardous chemicals Division 1 - Application of Part 7.1 328 Application of Part 7.1 .............................................................................................. 407 Division 2 - Obligations relating to safety data sheets and other matters Subdivision 1 - Obligations of manufacturers and importers 329 Classification of hazardous chemicals ..................................................................... 409 330 Manufacturer or importer to prepare and provide safety data sheets ..................... 409 331 Safety data sheets—research chemical, waste product or sample for analysis ..................................................................................................................... 410 332 Emergency disclosure of chemical identities to registered medical practitioner ................................................................................................................ 410 333 Emergency disclosure of chemical identities to emergency service worker............ 411 334 Packing hazardous chemicals .................................................................................. 411 335 Labelling hazardous chemicals................................................................................. 411 Subdivision 2 - Obligations of suppliers 336 Restriction on age of person who can supply hazardous chemicals....................... 412 337 Retailer or supplier packing hazardous chemicals................................................... 412 338 Supplier labelling hazardous chemicals ................................................................... 413 339 Supplier to provide safety data sheets..................................................................... 413 340 Supply of prohibited and restricted carcinogens ...................................................... 413 Subdivision 3 - Obligations of persons conducting businesses or undertakings 341 Labelling hazardous chemicals—general requirement ............................................ 414 342 Labelling hazardous chemicals—containers ............................................................ 414 343 Labelling hazardous chemicals—pipe work ............................................................. 415 344 Person conducting business or undertaking to obtain and give access to safety data sheets .................................................................................................... 415 345 Changes to safety data sheets................................................................................. 417 Division 3 - Register and manifest of hazardous chemicals Subdivision 1 - Hazardous chemicals register 346 Hazardous chemicals register .................................................................................. 417 © 2017 THOMSON REUTERS
231
Work Health and Safety Regulation 2011 (NSW) Subdivision 2 - Manifest of Schedule 11 hazardous chemicals 347 Manifest of hazardous chemicals ............................................................................. 418 348 Regulator must be notified if manifest quantities to be exceeded........................... 418 Division 4 - Placards 349 Outer warning placards—requirement to display ..................................................... 420 350 Placard—requirement to display .............................................................................. 420 Division 5 - Control of risk—obligations of persons conducting businesses or undertakings Subdivision 1 - General obligations relating to management of risk 351 Management of risks to health or safety.................................................................. 352 Review of control measures ..................................................................................... 353 Safety signs .............................................................................................................. 354 Identification of risk of physical or chemical reaction............................................... 355 Specific control—fire and explosion ......................................................................... 356 Keeping hazardous chemicals stable....................................................................... Subdivision 2 - Spills and damage 357 Containing and managing spills ............................................................................... 358 Protecting hazardous chemicals from damage ........................................................ Subdivision 3 - Emergency plans and safety equipment 359 Fire protection and firefighting equipment................................................................ 360 Emergency equipment.............................................................................................. 361 Emergency plans ...................................................................................................... 362 Safety equipment...................................................................................................... Subdivision 4 - Storage and handling systems 363 Control of risks from storage or handling systems .................................................. 364 Containers for hazardous chemicals used, handled or stored in bulk..................... 365 Stopping use and disposing of handling systems.................................................... 366 Stopping use of underground storage and handling systems ................................. 367 Notification of abandoned tank................................................................................. Division 6 - Health monitoring 368 Duty to provide health monitoring ............................................................................ 369 Duty to inform of health monitoring .......................................................................... 370 Duty to ensure that appropriate health monitoring is provided................................ 371 Duty to ensure health monitoring is supervised by registered medical practitioner with experience...................................................................................... 372 Duty to pay costs of health monitoring..................................................................... 373 Information that must be provided to registered medical practitioner...................... 374 Duty to obtain health monitoring report.................................................................... 375 Duty to give health monitoring report to worker....................................................... 376 Duty to give health monitoring report to regulator ................................................... 377 Duty to give health monitoring report to relevant persons conducting businesses or undertakings...................................................................................... 378 Health monitoring records ........................................................................................
421 421 422 422 423 423 423 424 424 425 425 426 426 426 427 427 428 428 429 429 429 429 430 430 431 431 431 431
Division 7 - Induction, information, training and supervision 379 Duty to provide supervision ...................................................................................... 432 Division 8 - Prohibition, authorisation and restricted use 380 Using, handling and storing prohibited carcinogens ................................................ 381 Using, handling and storing restricted carcinogens ................................................. 382 Using, handling and storing restricted hazardous chemicals................................... 383 Application for authorisation to use, handle or store prohibited and restricted carcinogens............................................................................................... 384 Authorisation to use, handle or store prohibited carcinogens and restricted carcinogens .............................................................................................................. 385 Changes to information in application to be reported .............................................. 386 Regulator may cancel authorisation ......................................................................... 387 Statement of exposure to be given to workers ........................................................ 388 Records to be kept ...................................................................................................
432 432 433 433 434 434 434 434 435
Division 9 - Pipelines 389 Management of risk by pipeline owner .................................................................... 435
232
Tooma’s Annotated Work Health and Safety Act 2011
390 391
Pipeline builder’s duties............................................................................................ 436 Management of risks to health and safety by pipeline operator.............................. 436
Part 7.2 - Lead Division 1 - Lead process 392 Meaning of “lead process”........................................................................................ 393 Regulator may decide lead process......................................................................... 394 Meaning of “lead risk work” ...................................................................................... 395 Duty to give information about health risks of lead process....................................
437 438 438 438
Division 2 - Control of risk 396 Containment of lead contamination.......................................................................... 397 Cleaning methods..................................................................................................... 398 Prohibition on eating, drinking and smoking ............................................................ 399 Provision of changing and washing facilities............................................................ 400 Laundering, disposal and removal of personal protective equipment ..................... 401 Review of control measures .....................................................................................
439 439 439 440 440 441
Division 3 - Lead risk work 402 Identifying lead risk work .......................................................................................... 442 403 Notification of lead risk work .................................................................................... 443 404 Changes to information in notification of lead risk work .......................................... 443 Division 4 - Health monitoring 405 Duty to provide health monitoring before first commencing lead risk work............. 406 Duty to ensure that appropriate health monitoring is provided................................ 407 Frequency of biological monitoring........................................................................... 408 Duty to ensure health monitoring is supervised by registered medical practitioner with relevant experience........................................................................ 409 Duty to pay costs of health monitoring..................................................................... 410 Information that must be provided to registered medical practitioner...................... 411 Duty to obtain health monitoring report.................................................................... 412 Duty to give health monitoring report to worker....................................................... 413 Duty to give health monitoring report to regulator ................................................... 414 Duty to give health monitoring report to relevant persons conducting businesses or undertakings...................................................................................... 415 Removal of worker from lead risk work.................................................................... 416 Duty to ensure medical examination if worker removed from lead risk work .......... 417 Return to lead risk work after removal ..................................................................... 418 Health monitoring records ........................................................................................
444 444 444 445 446 446 446 447 447 448 448 448 449 449
CHAPTER 8 - ASBESTOS Part 8.1 - Prohibitions and authorised conduct 419
Work involving asbestos or ACM—prohibitions and exceptions.............................. 451
Part 8.2 - General duty 420
Exposure to airborne asbestos at workplace ........................................................... 452
Part 8.3 - Management of asbestos and associated risks 421 422 423 424 425 426 427 428 429 430
Application of Part 8.3 .............................................................................................. Asbestos to be identified or assumed at workplace ................................................ Analysis of sample.................................................................................................... Presence and location of asbestos to be indicated ................................................. Asbestos register ...................................................................................................... Review of asbestos register ..................................................................................... Access to asbestos register ..................................................................................... Transfer of asbestos register by person relinquishing management or control ....................................................................................................................... Asbestos management plan ..................................................................................... Review of asbestos management plan ....................................................................
452 452 453 453 453 454 454 455 455 456
Part 8.4 - Management of naturally occurring asbestos 431 432 433
Naturally occurring asbestos .................................................................................... 456 Asbestos management plan ..................................................................................... 457 Review of asbestos management plan .................................................................... 457
© 2017 THOMSON REUTERS
233
Work Health and Safety Regulation 2011 (NSW) 434
Training in relation to naturally occurring asbestos.................................................. 458
Part 8.5 - Asbestos at the workplace Division 1 - Health monitoring 435 Duty to provide health monitoring ............................................................................ 436 Duty to ensure that appropriate health monitoring is provided................................ 437 Duty to ensure health monitoring is supervised by registered medical practitioner with relevant experience........................................................................ 438 Duty to pay costs of health monitoring..................................................................... 439 Information that must be provided to registered medical practitioner...................... 440 Duty to obtain health monitoring report.................................................................... 441 Duty to give health monitoring report to worker....................................................... 442 Duty to give health monitoring report to regulator ................................................... 443 Duty to give health monitoring report to relevant persons conducting businesses or undertakings...................................................................................... 444 Health monitoring records ........................................................................................
458 458 459 459 459 460 460 460 461 461
Division 2 - Training 445 Duty to train workers about asbestos....................................................................... 461 Division 3 - Control on use of certain equipment 446 Duty to limit use of equipment.................................................................................. 462
Part 8.6 - Demolition and refurbishment 447 448 449 450 451 452 453 454 455 456 457
Application—Part 8.6 ................................................................................................ Review of asbestos register ..................................................................................... Duty to give asbestos register to person conducting business or undertaking of demolition or refurbishment.............................................................. Duty to obtain asbestos register............................................................................... Determining presence of asbestos or ACM ............................................................. Identification and removal of asbestos before demolition........................................ Identification and removal of asbestos before demolition of residential premises ................................................................................................................... Emergency procedure .............................................................................................. Emergency procedure—residential premises........................................................... Identification and removal of asbestos before refurbishment .................................. Refurbishment of residential premises .....................................................................
463 463 463 463 463 464 465 465 466 466 466
Part 8.7 - Asbestos removal work 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474
Duty to ensure asbestos removalist is licensed....................................................... Asbestos removal supervisor must be present or readily available ........................ Asbestos removal worker must be trained............................................................... Licensed asbestos removalist must keep training records ...................................... Duty to give information about health risks of licensed asbestos removal work .......................................................................................................................... Asbestos removalist must obtain register ................................................................ Asbestos removal control plan ................................................................................. Asbestos removal control plan to be kept and available ......................................... Regulator must be notified of asbestos removal...................................................... Licensed asbestos removalist must inform certain persons about intended asbestos removal work............................................................................................. Person with management or control of workplace must inform persons about asbestos removal work................................................................................... Signage and barricades for asbestos removal work................................................ Limiting access to asbestos removal area ............................................................... Decontamination facilities ......................................................................................... Disposing of asbestos waste and contaminated personal protective equipment ................................................................................................................. Clearance inspection ................................................................................................ Clearance certificates ...............................................................................................
467 467 468 468 468 469 469 469 470 471 472 472 472 473 474 475 475
Part 8.8 - Asbestos removal requiring Class A licence 475 476 477
Air monitoring—asbestos removal requiring Class A licence................................... 476 Action if respirable asbestos fibre level too high ..................................................... 477 Removing friable asbestos ....................................................................................... 478
234
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.9 - Asbestos-related work 478 479 480 481 482 483 484
Application of Part 8.9 .............................................................................................. Uncertainty as to presence of asbestos................................................................... Duty to give information about health risks of asbestos-related work ..................... Asbestos-related work to be in separate area ......................................................... Air monitoring............................................................................................................ Decontamination facilities ......................................................................................... Disposing of asbestos waste and contaminated personal protective equipment .................................................................................................................
479 479 479 479 480 480 481
Part 8.10 - Licensing of asbestos removalists and asbestos assessors Division 1 - Asbestos removalists—requirement to be licensed 485 Requirement to hold Class A asbestos removal licence.......................................... 486 Exception to requirement to hold Class A asbestos removal licence ...................... 487 Requirement to hold Class B asbestos removal licence ......................................... 488 Recognition of asbestos removal licences in other jurisdictions..............................
482 482 482 483
Division 2 - Asbestos assessors—requirement to be licensed 489 Requirement to hold asbestos assessor licence...................................................... 483 490 Recognition of asbestos assessor licences in other jurisdictions ............................ 483 Division 3 - Licensing process 491 Who may apply for a licence.................................................................................... 492 Application for asbestos removal licence or asbestos assessor licence ................. 493 Content of application—Class A asbestos removal licence ..................................... 494 Content of application—Class B asbestos removal licence..................................... 495 Content of application—asbestos assessor licence................................................. 496 Additional information ............................................................................................... 497 Decision on application............................................................................................. 498 Class A asbestos removal licence—regulator to be satisfied about additional matters ..................................................................................................... 499 Class B asbestos removal licence—regulator to be satisfied about additional matters ..................................................................................................... 500 Matters to be taken into account.............................................................................. 501 Refusal to grant licence—process............................................................................ 502 Conditions of licence ................................................................................................ 503 Duration of licence.................................................................................................... 504 Licence document .................................................................................................... 505 Licence document to be available............................................................................ Division 4 - Amendment of licence and licence document 506 Changes to information ............................................................................................ 507 Change to nominated supervisor ............................................................................. 508 Amendment imposed by regulator ........................................................................... 509 Amendment on application by licence holder .......................................................... 510 Minor corrections to licence...................................................................................... 511 Regulator to give amended licence to the holder .................................................... 512 Licence holder to return licence ............................................................................... 513 Replacement licence document ............................................................................... 514 Voluntary surrender of licence..................................................................................
483 484 485 485 486 486 486 487 487 488 488 488 489 489 489 490 490 490 491 492 492 492 492 493
Division 5 - Renewal of licence 515 Regulator may renew licence ................................................................................... 516 Application for renewal ............................................................................................. 517 Provisions relating to renewal of licence.................................................................. 518 Renewal of asbestos removal licence—regulator to be satisfied about certain matters .......................................................................................................... 519 Status of licence during review ................................................................................
494 494
Division 6 - Suspension and cancellation of licence 520 Suspension or cancellation of licence ...................................................................... 521 Matters taken into account ....................................................................................... 522 Notice to and submissions by licence holder........................................................... 523 Notice of decision ..................................................................................................... 524 Immediate suspension..............................................................................................
495 495 496 496 497
© 2017 THOMSON REUTERS
235
493 493 493
Work Health and Safety Regulation 2011 (NSW) 525 526
Licence holder to return licence document .............................................................. 497 Regulator to return licence document after suspension .......................................... 498
Division 7 - General 527 Asbestos removal licence register............................................................................ 498 528 Asbestos assessors register..................................................................................... 498 529 Work must be supervised by named supervisor...................................................... 498
CHAPTER 9 - MAJOR HAZARD FACILITIES Part 9.1 - Preliminary Division 1 - Application and interpretation 530 This Chapter does not apply to certain facilities ...................................................... 531 Meaning of “major incident”...................................................................................... 532 Meaning of hazardous chemicals that are “present or likely to be present” ........... 533 Meaning of “operator” of a facility or proposed facility............................................. 534 Meaning of “modification” of a facility.......................................................................
499 499 500 500 501
Division 2 - Requirement to be licensed 535 A major hazard facility must be licensed.................................................................. 501
Part 9.2 - Determinations about major hazard facilities 536 537 538 539 540 541 542 543 544 544A 545 546 547 548 549
Operators of certain facilities must notify regulator.................................................. Notification—proposed facilities................................................................................ Content of notification............................................................................................... When regulator may conduct inquiry........................................................................ Inquiry procedure...................................................................................................... Determination in relation to facility, on inquiry ......................................................... Determination in relation to over-threshold facility ................................................... Suitability of facility operator..................................................................................... Conditions on determination of major hazard facility ............................................... Conditions on determination—payment of relevant fee ........................................... Notice and effect of determinations.......................................................................... When regulator may revoke a determination ........................................................... Re-notification if quantity of Schedule 15 chemicals increases............................... Notification by new operator..................................................................................... Time in which major hazard facility licence must be applied for .............................
502 503 503 504 504 505 505 505 506 506 506 507 507 507 508
Part 9.3 - Duties of operators of determined major hazard facilities Division 1 - Application of Part 9.3 550 Application of Part 9.3 .............................................................................................. 508 Division 2 - Safety case outline 551 Safety case outline must be provided ...................................................................... 508 552 Content ..................................................................................................................... 508 553 Alteration................................................................................................................... 509 Division 3 - Management of risk 554 Identification of major incidents and major incident hazards ................................... 509 555 Safety assessment ................................................................................................... 510 556 Control of risk............................................................................................................ 511 557 Emergency plan ........................................................................................................ 511 558 Safety management system ..................................................................................... 513 558A Security arrangements.............................................................................................. 513 559 Review of risk management ..................................................................................... 513 Division 4 - Safety case 560 Safety case must be provided.................................................................................. 561 Content ..................................................................................................................... 562 Co-ordination for multiple facilities ........................................................................... 563 Review ......................................................................................................................
514 514 515 516
Part 9.4 - Licensed major hazard facilities—risk management 564 565
Identification of major incidents and major incident hazards ................................... 516 Safety assessment ................................................................................................... 517
236
Tooma’s Annotated Work Health and Safety Act 2011
566 567 568 569 570 571 572 573
Control of risk ........................................................................................................... Emergency plan........................................................................................................ Safety management system ..................................................................................... Review of risk management ..................................................................................... Safety case—review ................................................................................................. Information for visitors .............................................................................................. Information for local community—general................................................................ Information for local community—major incident .....................................................
517 517 518 518 519 519 519 520
Part 9.5 - Consultation and workers’ safety role 574 575
Safety role for workers ............................................................................................. 521 Operator of major hazard facility must consult with workers ................................... 521
Part 9.6 - Duties of workers at licensed major hazard facilities 576
Duties........................................................................................................................ 522
Part 9.7 - Licensing of major hazard facilities Division 1 - Licensing process 577 Who may apply for a licence.................................................................................... 578 Application for major hazard facility licence ............................................................. 579 Additional information ............................................................................................... 580 Decision on application............................................................................................. 581 Matters to be taken into account.............................................................................. 582 When decision is to be made................................................................................... 583 Refusal to grant major hazard facility licence—process .......................................... 584 Conditions of licence ................................................................................................ 585 Duration of licence.................................................................................................... 585A Conditions of licence—payment of relevant fee....................................................... 586 Licence document .................................................................................................... 587 Licence document to be available............................................................................
522 523 524 524 525 525 525 525 526 526 526 526
Division 2 - Amendment of licence and licence document 588 Changes to information ............................................................................................ 589 Amendment imposed by regulator ........................................................................... 590 Amendment on application by operator ................................................................... 591 Minor corrections to major hazard facility licence .................................................... 592 Regulator to give amended licence document to operator ...................................... 593 Operator to return licence......................................................................................... 594 Replacement licence document ...............................................................................
527 527 528 528 529 529 529
Division 3 - Renewal of major hazard facility licence 595 Regulator may renew licence ................................................................................... 596 Application for renewal ............................................................................................. 597 Licence continues in force until application is decided ............................................ 598 Provisions relating to renewal of licence.................................................................. 599 Status of major hazard facility licence during review...............................................
529 530 530 530 530
Division 4 - Transfer of major hazard facility licence 600 Transfer of major hazard facility licence .................................................................. 531 Division 5 - Suspension and cancellation of major hazard facility licence 601 Cancellation of major hazard facility licence—on operator’s application................. 602 Suspension or cancellation of licence—on regulator’s initiative .............................. 603 Matters to be taken into account.............................................................................. 604 Notice to and submissions by operator.................................................................... 605 Notice of decision ..................................................................................................... 606 Immediate suspension.............................................................................................. 607 Operator to return licence document........................................................................ 608 Regulator to return licence document after suspension ..........................................
531 532 532 533 533 534 534 534
CHAPTER 10 - MINES CHAPTER 11 - GENERAL Part 11.1 - Review of decisions under this Regulation Division 1 - Reviewable decisions 676 Which decisions under this Regulation are reviewable ........................................... 537 © 2017 THOMSON REUTERS
237
Work Health and Safety Regulation 2011 (NSW) Division 2 - Internal review 677 Application ................................................................................................................ 678 Application for internal review .................................................................................. 679 Internal reviewer ....................................................................................................... 680 Decision of internal reviewer .................................................................................... 681 Decision on internal review ...................................................................................... 682 Internal review—reviewable decision continues.......................................................
542 542 542 542 543 543
Division 3 - External review 683 Application for external review ................................................................................. 543
Part 11.2 - Exemptions Division 1 - General 684 General power to grant exemptions ......................................................................... 543 685 Matters to be considered in granting exemptions .................................................... 544 Division 2 - High risk work licences 686 High risk work licence—exemption .......................................................................... 544 687 High risk work licence—regulator to be satisfied about certain matters.................. 544 Division 3 - Major hazard facilities 688 Major hazard facility—exemption ............................................................................. 545 689 Major hazard facility—regulator to be satisfied about certain matters..................... 545 Division 4 - Exemption process 690 Application for exemption ......................................................................................... 691 Conditions of exemption ........................................................................................... 692 Form of exemption document................................................................................... 693 Compliance with conditions of exemption ................................................................ 694 Notice of decision in relation to exemption .............................................................. 695 Publication of notice of exemption ........................................................................... 696 Notice of refusal of exemption.................................................................................. 697 Amendment or cancellation of exemption ................................................................ 698 Notice of amendment or cancellation.......................................................................
545 546 546 546 546 546 547 547 547
Part 11.3 - Miscellaneous 699 700 701 702
Incident notification—prescribed serious illnesses................................................... Inspectors’ identity cards .......................................................................................... Review of decisions under the Act—stay of decision .............................................. Confidentiality of information—exception relating to administration or enforcement of other laws ........................................................................................ 702A Penalty notice offences and penalties...................................................................... 703 Regulatory action where either SafeWork NSW or mines regulator is the regulator [Repealed] .................................................................................................
547 548 548 548 549 550
SCHEDULE 1 - REPEALS ............................................................................................ 551 SCHEDULE 2 - FEES ..................................................................................................... 551 SCHEDULE 3 - HIGH RISK WORK LICENCES AND CLASSES OF HIGH RISK WORK .................................................................................................... 554 1
Boom-type elevating work platform .......................................................................... 558
SCHEDULE 4 - HIGH RISK WORK LICENCES—COMPETENCY REQUIREMENTS ....................................................................................................... 559 1
Purpose of this Schedule ......................................................................................... 559
SCHEDULE 5 - REGISTRATION OF PLANT AND PLANT DESIGNS ............... 561 Part 1 - Plant requiring registration of design 1 2
Items of plant requiring registration of design.......................................................... 561 Exceptions ................................................................................................................ 561
Part 2 - Items of plant requiring registration 3 4
Items of plant requiring registration.......................................................................... 562 Exceptions ................................................................................................................ 562
SCHEDULE 6 - CLASSIFICATION OF MIXTURES ................................................ 564 1
Purpose of this Schedule ......................................................................................... 564
SCHEDULE 7 - SAFETY DATA SHEETS .................................................................. 568 238
Tooma’s Annotated Work Health and Safety Act 2011
1 2
Safety data sheets—content .................................................................................... 568 Safety data sheets—research chemical, waste product or sample for analysis ..................................................................................................................... 568
SCHEDULE 8 - DISCLOSURE OF INGREDIENTS IN SAFETY DATA SHEET .......................................................................................................................... 570 1 2 3 4
Purpose of this Schedule ......................................................................................... Identity of ingredients to be disclosed...................................................................... Generic names used to disclose identity of ingredients .......................................... Disclosing proportions of ingredients .......................................................................
570 570 571 571
SCHEDULE 9 - CLASSIFICATION, PACKAGING AND LABELLING REQUIREMENTS ....................................................................................................... 573 Part 1 - Correct classification 1
Correct classification of a substance, mixture or article .......................................... 573
Part 2 - Correct packing 2
Correctly packing hazardous chemicals................................................................... 573
Part 3 - Correct labelling 3 4 5 6 7 8 9 10
Labelling hazardous chemicals—general................................................................. Labelling hazardous chemicals—small container .................................................... Labelling hazardous chemicals—research chemicals or samples for analysis ..................................................................................................................... Labelling hazardous chemicals—decanted or transferred chemicals...................... Labelling hazardous chemicals—known hazards .................................................... Labelling hazardous chemicals—waste products .................................................... Labelling hazardous chemicals—explosives ............................................................ Labelling hazardous chemicals—agricultural and veterinary chemicals..................
574 574 574 575 575 575 575 576
SCHEDULE 10 - PROHIBITED CARCINOGENS, RESTRICTED CARCINOGENS AND RESTRICTED HAZARDOUS CHEMICALS ............... 577 SCHEDULE 11 - PLACARD AND MANIFEST QUANTITIES................................ 580 1
Determination of classification of flammable liquids ................................................ 584
SCHEDULE 12 - MANIFEST REQUIREMENTS ...................................................... 585 1 2 3 4 5 6 7
Manifest—general information.................................................................................. Manifest—bulk storage and containers .................................................................... Manifest—identification of hazardous chemical ....................................................... Manifest—storage area for packaged hazardous chemicals ................................... Manifest—hazardous chemicals being manufactured.............................................. Manifest—hazardous chemicals in transit................................................................ Manifest—plan of workplace ....................................................................................
585 585 585 586 587 587 587
SCHEDULE 13 - PLACARD REQUIREMENTS ....................................................... 588 1 2 3 4 5 6 7
Displaying placards................................................................................................... Maintaining placards................................................................................................. Outer warning placards—requirements.................................................................... Placards for particular hazardous chemicals stored in bulk .................................... Placards for unstable explosives, organic peroxides type A or self-reactive substances type A stored in bulk.............................................................................. Placards for packaged Schedule 11 hazardous chemicals (other than flammable liquids category 4) and IBCs .................................................................. Placards for flammable liquids category 4 packaged or in bulk ..............................
588 588 588 589 591 592 593
SCHEDULE 14 - REQUIREMENTS FOR HEALTH MONITORING ..................... 594 SCHEDULE 15 - HAZARDOUS CHEMICALS AT MAJOR HAZARD FACILITIES (AND THEIR THRESHOLD QUANTITY)....................................... 597 1 2 3 4 5 6
Definitions ................................................................................................................. Relevant hazardous chemicals................................................................................. Threshold quantity of one hazardous chemical ....................................................... Threshold quantity of more than 1 hazardous chemical.......................................... How table 15.1 must be used .................................................................................. How table 15.2 must be used ..................................................................................
597 597 597 597 598 598
SCHEDULE 16 - MATTERS TO BE INCLUDED IN EMERGENCY PLAN FOR MAJOR HAZARD FACILITY ............................................................. 604 1
Site and hazard detail............................................................................................... 604
© 2017 THOMSON REUTERS
239
Work Health and Safety Regulation 2011 (NSW) 2 3 4 5
Command structure and site personnel ................................................................... Notifications .............................................................................................................. Resources and equipment........................................................................................ Procedures ...............................................................................................................
604 605 605 605
SCHEDULE 17 - ADDITIONAL MATTERS TO BE INCLUDED IN SAFETY MANAGEMENT SYSTEM OF MAJOR HAZARD FACILITY ..................................................................................................................... 606 1 2 3 4 5 6 7 8
Safety policy and safety objectives .......................................................................... Organisation and personnel ..................................................................................... Operational controls.................................................................................................. Duties of operators ................................................................................................... Management of change............................................................................................ Principles and standards .......................................................................................... Performance monitoring ........................................................................................... Audit..........................................................................................................................
606 606 606 606 607 607 607 607
SCHEDULE 18 - ADDITIONAL MATTERS TO BE INCLUDED IN SAFETY CASE FOR A MAJOR HAZARD FACILITY ....................................... 608 Part 1 - Facility description 1 2
The facility ................................................................................................................ 608 The surrounding area ............................................................................................... 608
Part 2 - Safety information 3 4 5 6 7
Control measures to limit the consequences of major incidents ............................. Performance monitoring ........................................................................................... Safety management system ..................................................................................... Safety and reliability of facility structures and plant................................................. Major incident history................................................................................................
609 609 610 610 610
SCHEDULE 18A - PENALTY NOTICE OFFENCES ................................................ 611 SCHEDULE 18B - SAVINGS AND TRANSITIONAL PROVISIONS .................... 613 Part 1 - Preliminary 1
Definitions ................................................................................................................. 613
Part 2 - Prosecution of offences against OHS laws 2 3 4 5 6
General transitional arrangements for OHS offences .............................................. Arrangements for proceedings commenced after WHS Act commencement ......... Arrangements for offences committed on or after 7/6/11 and prosecuted in Industrial Court ......................................................................................................... Requirements for workplace death offence prosecutions ........................................ Enforceable undertakings for OHS offences............................................................
613 613 613 613 614
Part 3 - Duties concerning structures, plant and substances 7 8 9 10
Duties concerning structures .................................................................................... Duties concerning design, manufacture and supply of plant and substances ........ Duties concerning importation of plant, substances and structures ........................ Duties to provide current relevant information .........................................................
614 614 615 615
Part 4 - Consultation and representation 11 12 13 14 15 16
Work groups ............................................................................................................. Existing health and safety representatives............................................................... Gap training of health and safety representatives ................................................... Health and safety committees .................................................................................. Elections commenced under OHS Act ..................................................................... WHS entry permit holders ........................................................................................
615 615 616 616 616 616
Part 5 - WHS Regulation Division 1 - General workplace management 17 Emergency planning ................................................................................................. 18 Remote or isolated work........................................................................................... 19 Audiometric testing ................................................................................................... 20 Duty of designers and manufacturers to provide information about noise .............. 21 Testing or emergency and rescue procedures—fall arrest systems........................ 22 High risk work licensing............................................................................................ 23 Carrying out work on energised electrical equipment..............................................
240
617 617 617 617 617 617 619
Tooma’s Annotated Work Health and Safety Act 2011
24 25 26 27 28 29 30 31 32
General diving work (excluding construction and vessel diving work) .................... Construction and vessel diving work........................................................................ Protective structures on earthmoving machinery ..................................................... Scaffolds—written confirmation of inspection........................................................... Major inspection of registered mobile cranes and tower cranes ............................. Annual inspection of amusement devices................................................................ Registration of plant design...................................................................................... Registration of plant.................................................................................................. Construction work—duties of designer of structure and person who commissions work .................................................................................................... Safe work method statement required for high risk construction work.................... WHS management plan ........................................................................................... Issue of general construction induction training card............................................... Classification and labelling of hazardous chemicals—compliance with GHS .......................................................................................................................... Notification if manifest quantities exceeded ............................................................. Using, handling and storing prohibited and restricted carcinogens ......................... Pipelines ...................................................................................................................
622 622 622 623
Division 2 - Asbestos 40 Asbestos licences ..................................................................................................... 41 Registers and plans.................................................................................................. 42 Health monitoring of workers.................................................................................... 43 Training ..................................................................................................................... 44 Decontamination and labelling of personal protective equipment ........................... 45 Clearance inspection for licensed asbestos work .................................................... 46 Air monitoring—asbestos removal requiring Class A licence...................................
623 624 624 624 624 624 625
Division 3 - Major hazard facilities 47 Provisionally registered major hazard facilities ........................................................ 48 Hazard facility notification......................................................................................... 49 Emergency plans ...................................................................................................... 50 Registered major hazard facilities ............................................................................ 51 Pending applications................................................................................................. 52 Provision of information ............................................................................................
625 625 625 626 626 626
33 34 35 36 37 38 39
619 620 620 620 620 620 621 621 621 621 622 622
Division 4 - Mines and coal mines 53 Plant registration....................................................................................................... 627 54 Electrical work on energised electrical equipment [Expired].................................... 627 54A Induction training ...................................................................................................... 627
Part 6 - Authorisations under OHS laws 55 56 57 58
Definitions and application........................................................................................ Authorisations in force under OHS laws .................................................................. Pending applications for authorisations.................................................................... Review of decisions on authorisations under OHS laws .........................................
627 628 628 628
Part 7 - Miscellaneous 59 60 61 62 63 64 65 66 67 68 69 70
Incident notification ................................................................................................... Exemptions ............................................................................................................... Policies and procedures ........................................................................................... Equivalent provisions................................................................................................ Saving of Dangerous Goods Regulation relating to ports ....................................... Demolition work ........................................................................................................ Pesticide operators and fumigators.......................................................................... Revocation of codes of practice ............................................................................... Powers of regulator to obtain information ................................................................ Power of inspectors to obtain information, documents and evidence ..................... Confidentiality of information obtained under OHS Act............................................ References to corresponding WHS law in Parts 4.5 and 5.3 and clause 318 of WHS Regulation ...................................................................................................
628 629 629 629 629 631 631 631 632 632 632 632
Part 8 - Provisions consequent on making of Work Health and Safety Amendment (Miscellaneous) Regulation 2015 71
Registration of plant design for passenger ropeways and fixed concrete placing booms .......................................................................................................... 632
© 2017 THOMSON REUTERS
241
Table of Amending Legislation
Table of Amending Legislation Principal legislation
Number
Work Health and Safety Regulation 2011
674 of 2011
Date of gazettal/ assent/ registration
This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Work Health and Safety 9 of 2012 Amendment (Savings) Regulation 2012 Statute Law (Miscellaneous Act 42 of 21 Jun 2012 2012 Provisions) Act 2012 Work Health and Safety 544 of 2012 Amendment (Miscellaneous) Regulation 2012 Ports Assets (Authorised Act 101 of 26 Nov 2012 2012 Transactions) Act 2012 Work Health and Safety 663 of 2012 Amendment (Dangerous Goods at Ports) Regulation 2012 Work Health and Safety 664 of 2012 Amendment (Transitional) Regulation 2012 Civil and Administrative Act 95 of 20 Nov 2013 2013 Legislation (Repeal and Amendment) Act 2013 Work Health and Safety 353 of 2013 Amendment (Fees and Transitional Provisions) Regulation 2013 Work Health and Safety 730 of 2013 Amendment (Transitional Provisions) Regulation 2013 Maritime and Transport Act 38 of 24 Jun 2014 2014 Licensing Legislation Amendment Act 2014
242
Date of commencement Reg (except cl 164): 1 Jan 2012; Cl 164: 1 Jan 2013
Date of commencement Cl 3: 13 Jan 2012 Sch 2.70: 6 Jul 2012 Sch 1: 2 Nov 2012 Sch 6.8: 26 Nov 2012 Sch 1: 21 Dec 2012
Cl 3: 21 Dec 2012 Sch 2.155: 1 Jan 2014 Sch 1: 1 Jul 2013
Cl 3: 20 Dec 2013 Sch 2.2: 24 Jun 2014
Tooma’s Annotated Work Health and Safety Act 2011
Principal legislation
Number
Work Health and Safety Regulation 2011
674 of 2011
Date of gazettal/ assent/ registration
Reg (except cl 164): 1 Jan 2012; Cl 164: 1 Jan 2013
This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Work Health and Safety Act 71 of 11 Nov 2014 (Mines) Amendment Act 2014 2014 Statute Law (Miscellaneous Provisions) Act (No 2) 2014 Work Health and Safety (Mines) Regulation 2014 Pesticides Amendment Act 2015 Electricity Network Assets (Authorised Transactions) Act 2015 State Insurance and Care Governance Act 2015
Act 88 of 2014 799 of 2014
Work Health and Safety Amendment (Miscellaneous) Regulation 2015
61 of 2015
Work Health and Safety Amendment (Transitional Provisions) Regulation 2015 Work Health and Safety Amendment (Disclosure of Information) Regulation 2015 Statute Law (Miscellaneous Provisions) Act 2016
338 of 2015
© 2017 THOMSON REUTERS
28 Nov 2014
Act 3 of 2015 18 May 2015 Act 5 of 2015 4 Jun 2015
Act 19 of 2015
21 Aug 2015
Date of commencement Sch 2.6: 1 Feb 2015 (Proc 787 of 2014, 12 Dec 2014) Sch 2.79: 8 Jan 2015 Sch 13: 1 Feb 2015 Sch 2.2: 18 May 2015 Sch 8.33: 4 Jun 2015 Sch 15.23: 1 Sep 2015 (Proc 524 of 2015, 28 Aug 2015) Sch 1[1]–[76] and [78]–[97]: 13 Feb 2015; Sch 1[77]: 1 Jul 2015 Cl 3: 1 Jul 2015 Cl 3: 23 Oct 2015
644 of 2015
Act 27 of 2016
Date of commencement
7 Jun 2016
Sch 2.62: 8 Jul 2016
243
Table of Amending Legislation
Principal legislation
Number
Work Health and Safety Regulation 2011
674 of 2011
Date of gazettal/ assent/ registration
This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Work Health and Safety 49 of 2016 (Mines and Petroleum) Amendment (Harmonisation) Regulation 2016 Work Health and Safety 418 of 2016 Amendment (Fees and Transitional Periods) Regulation 2016
244
Date of commencement Reg (except cl 164): 1 Jan 2012; Cl 164: 1 Jan 2013
Date of commencement Sch 2: 1 Feb 2016
Sch 1: 1 Jul 2016
Tooma’s Annotated Work Health and Safety Act 2011
CHAPTER 1 – PRELIMINARY Part 1.1 – Introductory matters Note. The numbering of provisions of this Regulation closely corresponds to the same numbering of regulations in model regulations prepared for and approved by the Council of Australian Governments. To maximise uniformity between this Regulation and the model regulations, the numbers of some provisions in the model regulations that are not relevant have not been used in the numbering of provisions of this Regulation, unless required for provisions particular to the State. Adoption of the numbering of the model regulations also results in alphanumeric numbering (for example, clause 272A and Schedule 18A) being used to insert further provisions particular to the State.
1
2
Name of Regulation This Regulation is the Work Health and Safety Regulation 2011. Commencement
(1) This Regulation (subject to subclause (2)) commences on 1 January 2012 and is required to be published on the NSW legislation website. (2) Clause 164 commences on 1 January 2013. 3
Authorising provisions
Note. The Model Work Health and Safety Regulations contain a provision dealing with authorising provisions of legislation.
4
5
Repeal The Regulations listed in Schedule 1 are repealed. Definitions (1) In this Regulation: abrasive blasting means propelling a stream of abrasive material at high speed against a surface using compressed air, liquid, steam, centrifugal wheels or paddles to clean, abrade, etch or otherwise change the original appearance or condition of the surface. accredited assessor means: (a) a person who is accredited under Part 4.5 to conduct assessments, or (b) the regulator. ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail, 7th edition, approved by the Australian Transport Council. Note. The ADG Code is accessible at http://www.ntc.gov.au.
administrative control means a method of work, a process or a procedure designed to minimise risk, but does not include: (a) an engineering control, or (b) the use of personal protective equipment.
© 2017 THOMSON REUTERS
245
cl 5
Chapter 1 – Preliminary
airborne contaminant means a contaminant in the form of a fume, mist, gas, vapour or dust, and includes micro-organisms. [Def am Reg 61 of 2015, Sch 1[1]]
amusement device means plant operated for hire or reward that provides entertainment, sightseeing or amusement through movement of the equipment, or part of the equipment, or when passengers or other users travel or move on, around or along the equipment, but does not include: (a) a miniature train and railway system owned and operated by a model railway society, club or association, or (b) a ride or device that is used as a form of transport and that is, in relation to its use for that purpose, regulated under another Act or an Act of the Commonwealth, or (c) a boat or flotation device: (i) that is solely propelled by a person who is in or on the boat or device, and (ii) that is not attached to any mechanical elements or equipment outside the boat or device, and that does not rely on any artificial flow of water to move, or (d) any plant specifically designed for a sporting, professional stunt, theatrical or acrobatic purpose or activity, or (e) a coin-operated or token-operated device that: (i) is intended to be ridden, at the one time, by not more than 4 children who must be below the age of 10 years, and (ii) is usually located in a shopping centre or similar public location, and (iii) does not necessarily have an operator. [Def am Reg 61 of 2015, Sch 1[2]]
appropriate training in underwater medicine [Repealed] [Def rep Reg 61 of 2015, Sch 1[3]]
article means a manufactured item, other than a fluid or particle, that: (a) is formed into a particular shape or design during manufacture, and (b) has hazard properties and a function that are wholly or partly dependent on the shape or design. asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock forming minerals including the following: (a) actinolite asbestos, (b) grunerite (or amosite) asbestos (brown), (c) anthophyllite asbestos, (d) chrysotile asbestos (white), (e) crocidolite asbestos (blue), (f) tremolite asbestos, (g) a mixture that contains 1 or more of the minerals referred to in paragraphs (a) to (f). asbestos containing material (ACM) means any material or thing that, as part of its design, contains asbestos. 246
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
asbestos-contaminated dust or debris (ACD) means dust or debris that has settled within a workplace and is, or is assumed to be, contaminated with asbestos. asbestos management plan —see clause 429 or 432. asbestos register —see clause 425. asbestos-related work means work involving asbestos (other than asbestos removal work to which Part 8.7 applies) that is permitted under the exceptions set out in clause 419(3), (4) and (5). asbestos removal licence means a Class A asbestos removal licence or a Class B asbestos removal licence. asbestos removal work means: (a) work involving the removal of asbestos or ACM, or (b) in Part 8.10, Class A asbestos removal work or Class B asbestos removal work. asbestos removalist means a person conducting a business or undertaking who carries out asbestos removal work. asbestos waste means asbestos or ACM removed and disposable items used during asbestos removal work including plastic sheeting and disposable tools. biological monitoring means: (a) the measurement and evaluation of a substance, or its metabolites, in the body tissue, fluids or exhaled air of a person exposed to the substance, or (b) blood lead level monitoring. blood lead level means the concentration of lead in whole blood expressed in micromoles per litre (µmol/L) or micrograms per decilitre (µg/dL). blood lead level monitoring means the testing of the venous or capillary blood of a person by a laboratory accredited by NATA, under the supervision of a registered medical practitioner, to determine the blood lead level. boiler means: (a) a vessel, or an arrangement of vessels and interconnecting parts, in which steam or vapour is generated or in which water or other liquid is heated at a pressure above that of the atmosphere by the application of fire, the products of combustion, electrical power or similar high temperature means, and (b) the superheaters, reheaters, economisers, boiler piping, supports, mountings, valves, gauges, fittings, controls, boiler setting and other equipment directly associated with those vessels, but does not include: (c) except in Schedules 3 and 4, a fully flooded or pressurised system where water or another liquid is heated to a temperature lower than the normal atmospheric boiling temperature of the liquid, or (d) for the purposes of Parts 5.2 and 5.3 and in Schedules 3 and 4, a boiler designed or manufactured to the following codes: © 2017 THOMSON REUTERS
247
cl 5
Chapter 1 – Preliminary
(i)
AMBSC Part 1—Australian Miniature Boiler Safety Committee Code for Copper Boilers, (ii) AMBSC Part 2—Australian Miniature Boiler Safety Committee Code for Steel Boilers, (iii) AMBSC Part 3—Australian Miniature Boiler Safety Committee Code for Sub-Miniature Boilers, (iv) AMBSC Part 4—Australian Miniature Boiler Safety Committee Code for Duplex Steel Boilers, or (e) in Schedules 3 and 4: (i) a direct fired process heater, or (ii) boilers with less than 5 square metres heating surface or 150 kilowatt output, or (iii) unattended boilers certified in compliance with AS 2593:2004 (Boilers—Safety management and supervision systems). [Def am Reg 61 of 2015, Sch 1[4]]
boom-type elevating work platform means a telescoping device, hinged device, or articulated device, or any combination of these, used to support a platform on which personnel, equipment and materials may be elevated. bridge crane means a crane that: (a) consists of a bridge beam or beams, that are mounted to end carriages at each end, and (b) is capable of travelling along elevated runways, and (c) has 1 or more hoisting mechanisms arranged to traverse across the bridge. building maintenance equipment means a suspended platform and associated equipment, including a building maintenance unit or a swing stage, that incorporates permanently installed overhead supports to provide access to the faces of a building for maintenance, but does not include a suspended scaffold. building maintenance unit means a power operated suspended platform and associated equipment on a building specifically designed to provide permanent access to the faces of the building for maintenance. bulk, in relation to a hazardous chemical, means any quantity of a hazardous chemical that is: (a) in a container with a capacity exceeding 500 litres or net mass of more than 500 kilograms, or (b) if the hazardous chemical is a solid—an undivided quantity exceeding 500 kilograms. capacity, of a container (in Chapter 7), means the internal volume of the container at a temperature of 15°C expressed in litres. card holder means the person to whom a general construction induction training card is issued. certificate of medical fitness means a certificate of medical fitness that complies with clause 169. certification, in relation to a specified VET course, means: 248
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
(a)
a statement of attainment issued by an RTO stating that the person to whom it is issued has successfully completed the specified VET course, or (b) in the case of high risk work—a notice of satisfactory assessment stating that the person to whom it is issued has successfully completed the specified VET course, or (c) an equivalent statement or notice issued by a corresponding RTO. certified safety management system, in Chapter 8, means a safety management system that complies with AS 4801:2001 (Occupational health and safety management systems), or an equivalent system determined by the regulator. chemical identity means a name, in accordance with the nomenclature systems of the International Union of Pure and Applied Chemistry or the Chemical Abstracts Service, or a technical name, that gives a chemical a unique identity. class means: (a) in relation to high risk work, a class of work specified in Schedule 3, (b) in relation to asbestos removal work, Class A asbestos removal work or Class B asbestos removal work. Class A asbestos removal licence means a licence that authorises the carrying out of Class A asbestos removal work and Class B asbestos removal work by or on behalf of the licence holder. Class A asbestos removal work means work that is required to be licensed under clause 485. Class B asbestos removal licence means a licence that authorises the carrying out of Class B asbestos removal work by or on behalf of the licence holder. Class B asbestos removal work means work that is required to be licensed under clause 487, but does not include Class A asbestos removal work. class label means a pictogram described in the ADG Code for a class, or division of a class, of dangerous goods. clearance certificate —see clause 474. clearance inspection —see clause 473. combustible dust means finely divided solid particles (including dust, fibres or flyings) that are: (a) suspended in air or settle out of the atmosphere under their own weight, and (b) able to burn or glow in air, and (c) able to form an explosive mixture with air at atmospheric pressure and normal temperature. [Def insrt Reg 61 of 2015, Sch 1[5]]
combustible liquid means a liquid, other than a flammable liquid, that has a flash point, and a fire point less than its boiling point. combustible substance means a substance that is combustible, and includes dust, fibres, fumes, mists or vapours produced by the substance. © 2017 THOMSON REUTERS
249
cl 5
Chapter 1 – Preliminary Examples. Wood, paper, oil, iron filings.
competency assessment, in Part 4.5, means an assessment in relation to the completion of a specified VET course to carry out a class of high risk work. competent person means: (a) for electrical work on energised electrical equipment or energised electrical installations (other than testing referred to in clauses 150 and 165)—a person who is authorised under the Home Building Act 1989 to do electrical wiring work, (b) for general diving work—see clauses 174 and 177, (c) for a major inspection of a mobile crane or a tower crane under clause 235—see clause 235, (d) for an inspection of an amusement device or passenger ropeway under clause 241—see clause 241, (e) for design verification under clause 252—a person who has the skills, qualifications, competence and experience to design the plant or verify the design, (f) for a clearance inspection under clause 473—a person who has acquired through training or experience the knowledge and skills of relevant asbestos removal industry practice and holds: (i) a certification in relation to the specified VET course for asbestos assessor work, or (ii) a tertiary qualification in occupational health and safety, occupational hygiene, science, building, construction or environmental health, (g) for any other case—a person who has acquired through training, qualification or experience the knowledge and skills to carry out the task. [Def am Reg 61 of 2015, Sch 1[6]]
concrete placement unit with delivery boom [Repealed] [Def rep Reg 61 of 2015, Sch 1[7]]
concrete placing boom means plant incorporating a knuckle boom, capable of power operated slewing and luffing to place concrete by way of pumping through a pipeline attached to, or forming part of, the boom of the plant. confined space means an enclosed or partially enclosed space that: (a) is not designed or intended primarily to be occupied by a person, and (b) is, or is designed or intended to be, at normal atmospheric pressure while any person is in the space, and (c) is or is likely to be a risk to health and safety from: (i) an atmosphere that does not have a safe oxygen level, or (ii) contaminants, including airborne gases, vapours and dusts, that may cause injury from fire or explosion, or (iii) harmful concentrations of any airborne contaminants, or (iv) engulfment, but does not include a mine shaft or the workings of a mine. 250
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
confined space entry permit means a confined space entry permit issued under clause 67. construction project —see clause 292. construction work —see clause 289. consumer product means a thing that: (a) is packed or repacked primarily for use by a household consumer or for use in an office, and (b) if the thing is packed or repacked primarily for use by a household consumer—is packed in the way and quantity in which it is intended to be used by a household consumer, and (c) if the thing is packed or repacked primarily for use in an office—is packed in the way and quantity in which it is intended to be used for office work. container, in relation to a hazardous chemical, means anything in or by which a hazardous chemical is, or has been, wholly or partly covered, enclosed or packed, including anything necessary for the container to perform its function as a container. contaminant means any substance that may be harmful to health or safety. control measure, in relation to a risk to health and safety, means a measure to eliminate or minimise the risk. conveyor means equipment or apparatus operated by power other than manual power and by which loads are raised, lowered or transported or capable of being raised, lowered, transported, or continuously driven, by: (a) an endless belt, rope or chain or other similar means, or (b) buckets, trays or other containers or fittings moved by an endless belt, rope, chain or similar means, or (c) a rotating screw, or (d) a vibration or walking beam, or (e) a powered roller conveyor if the rollers are driven by an endless belt, rope or chain or other similar means, and includes the superstructure, gear and auxiliary equipment used in connection with that equipment or apparatus. correct classification means the set of hazard classes and hazard categories assigned to a hazardous chemical when it is correctly classified. Note. Part 1 of Schedule 9 sets out when a hazardous chemical is correctly classified.
crane means an appliance intended for raising or lowering a load and moving it horizontally including the supporting structure of the crane and its foundations, but does not include any of the following: (a) an industrial lift truck, (b) earthmoving machinery, (c) an amusement device, (d) a tractor, (e) an industrial robot, (f) a conveyor, (g) building maintenance equipment, (h) a suspended scaffold, © 2017 THOMSON REUTERS
251
cl 5
Chapter 1 – Preliminary
(i)
a lift.
current certificate of medical fitness means a certificate of medical fitness that: (a) was issued within the past 12 months, and (b) has not expired or been revoked. demolition work means work to demolish or dismantle a structure, or part of a structure that is loadbearing or otherwise related to the physical integrity of the structure, but does not include: (a) the dismantling of formwork, falsework, or other structures designed or used to provide support, access or containment during construction work, or (b) the removal of power, light or telecommunication poles. derrick crane means a slewing strut boom crane with its boom pivoted at the base of a mast that is: (a) guyed (guy derrick) or held by backstays (stiff legged derrick), and (b) capable of luffing under load. designer, in relation to plant, a substance or a structure, has the same meaning as it has in section 22 of the Act. determined major hazard facility means a facility that has been determined under clause 541 or 542 to be a major hazard facility. direct fired process heater means an arrangement of 1 or more coils, located in the radiant zone or convection zone, or both, of a combustion chamber, the primary purpose of which is to raise the temperature of a process fluid circulated through the coils, to allow distillation, fractionalism, reaction or other petrochemical processing of the process fluid, whether that fluid is liquid or gas, or a combination of liquid and gas. dogging work means: (a) the application of slinging techniques, including the selection and inspection of lifting gear, to safely sling a load, or (b) the directing of a plant operator in the movement of a load when the load is out of the operator’s view. duty holder, in Part 3.1, means a person referred to in clause 32. EANx, in Part 4.8, means a mixture of oxygen and nitrogen in which the volume of oxygen is at least 22%. earthmoving machinery means operator controlled plant used to excavate, load, transport, compact or spread earth, overburden, rubble, spoil, aggregate or similar material, but does not include a tractor or industrial lift truck. electrical equipment —see clause 144 (and clause 148 for Division 3 of Part 4.7). electrical installation —see clause 145 (and clause 148 for Division 3 of Part 4.7). electrical risk means risk to a person of death, shock or other injury caused directly or indirectly by electricity. electrical work —see clause 146. 252
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
electricity supply authority means a person or body engaged in the distribution of electricity to the public or in the generation of electricity for supply, directly or indirectly, to the public whether by statute, franchise agreement or otherwise and includes: (a) an energy services corporation within the meaning of the Energy Services Corporations Act 1995, and (a1) a network operator within the meaning of the Electricity Supply Act 1995, and (b) the Country Rail Infrastructure Authority constituted by the Transport Administration Act 1988, and (c) Rail Corporation New South Wales, and (d) Transport for NSW, and (e) the Water Administration Ministerial Corporation constituted by the Water Management Act 2000. [Def am Act 5 of 2015, Sch 8.33]
emergency service organisation includes any of the following: (a) the Ambulance Service of NSW, (b) Fire and Rescue NSW, (c) the NSW Rural Fire Service, (d) the NSW Police Force, (e) the State Emergency Service, (f) the NSW Volunteer Rescue Association Inc, (g) the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001, (h) an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989. emergency service worker includes an officer, employee or member of any of the following: (a) the Ambulance Service of NSW, (b) Fire and Rescue NSW, (c) the NSW Rural Fire Service, (d) the NSW Police Force, (e) the State Emergency Service, (f) the NSW Volunteer Rescue Association Inc, (g) the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001, (h) an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989. engineering control means a control measure that is physical in nature, including a mechanical device or process. entry, by a person into a confined space, means the person’s head or upper body is in the confined space or within the boundary of the confined space. essential services means the supply of: (a) gas, water, sewerage, telecommunications, electricity and similar services, or © 2017 THOMSON REUTERS
253
cl 5
Chapter 1 – Preliminary
(b) chemicals, fuel and refrigerant in pipes or lines. excavation means a trench, tunnel or shaft, but does not include: (a) a mine, or (b) a bore to which the Water Act 1912 applies, or (c) a trench for use as a place of interment. excavation work means work to: (a) make an excavation, or (b) fill or partly fill an excavation. exposure standard, except in Part 4.1, means an exposure standard in the Workplace Exposure Standard for Airborne Contaminants. exposure standard for noise —see clause 56. external review means an external review under Part 11.1. extra-low voltage means voltage that does not exceed 50 volts alternating current (50V AC) or 120 volts ripple-free direct current (120V ripple-free DC). facility, in Chapter 9, means a workplace at which Schedule 15 chemicals are present or likely to be present. fall arrest system means plant or material designed to arrest a fall. Example. An industrial safety net, a catch platform, a safety harness system (other than a system that relies entirely on a restraint technique system).
fault, in relation to plant, means a break or defect that may cause the plant to present a risk to health and safety. female of reproductive capacity, in Part 7.2, means a female other than a female who provides information stating that she is not of reproductive capacity. fire risk hazardous chemical means a hazardous chemical that: (a) is any of the following: (i) a flammable gas, (ii) a flammable liquid (hazard category 1 to 3), (iii) a flammable solid, (iv) a substance liable to spontaneous combustion, (v) a substance which, in contact with water, emits flammable gases, (vi) an oxidizing substance, (vii) an organic peroxide, and (b) burns readily or supports combustion. fitness criteria, in relation to diving work, means the fitness criteria specified in clause M4 of Appendix M to AS/NZS 2299.1:2007 (Occupational diving operations—Standard operational practice). flammable gas has the same meaning as it has in the GHS. flammable liquid means a flammable liquid within the meaning of the GHS that has a flash point of less than 93°C. forklift truck, in Schedules 3 and 4, means a powered industrial truck equipped with lifting media made up of a mast and an elevating load carriage to which is attached a pair of fork arms or other arms that can be 254
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
raised 900mm or more above the ground, but does not include a pedestrian-operated truck or a pallet truck. friable asbestos means material that: (a) is in a powder form or that can be crumbled, pulverised or reduced to a powder by hand pressure when dry, and (b) contains asbestos. gantry crane means a crane that: (a) consists of a bridge beam or beams supported at one or both ends by legs mounted to end carriages, and (b) is capable of travelling on supporting surfaces or deck levels, whether fixed or not, and (c) has a crab with 1 or more hoisting units arranged to travel across the bridge. [Def am Reg 61 of 2015, Sch 1[8]]
gas cylinder means a rigid vessel: (a) that does not exceed 3000 litres water capacity and is without openings or integral attachments on the shell other than at the ends, and (b) that is designed for the storage and transport of gas under pressure, and (c) that is covered by AS 2030.1:2009 (Gas cylinders—General requirements). general construction induction training means training delivered in Australia by an RTO for the specified VET course for general construction induction training. general construction induction training card means: (a) in Division 2 of Part 6.5—a general construction induction training card issued under that Division, (b) in any other case—a general construction induction training card issued: (i) under Division 2 of Part 6.5 or under a corresponding WHS law, or (ii) by an RTO under an agreement between the regulator and an RTO or a corresponding regulator and an RTO. [Def am Reg 544 of 2012, Sch 1[1]]
general construction induction training certification means a certification for the completion of the specified VET course for general construction induction training. general diving work means work carried out in or under water while breathing compressed gas, and includes: (a) incidental diving work, and (b) limited scientific diving work, but does not include high risk diving work. genuine research means systematic investigative or experimental activities that are carried out for either acquiring new knowledge (whether or not the knowledge will have a specific practical application) or creating new or improved materials, products, devices, processes or services. © 2017 THOMSON REUTERS
255
cl 5
Chapter 1 – Preliminary
GHS means the Globally Harmonised System of Classification and Labelling of Chemicals, Third revised edition, published by the United Nations as modified under Schedule 6. Note. The Schedule 6 tables replace some tables in the GHS.
hazard category means a division of criteria within a hazard class in the GHS. hazard class means the nature of a physical, health or environmental hazard under the GHS. hazard pictogram means a graphical composition, including a symbol plus other graphical elements, that is assigned in the GHS to a hazard class or hazard category. hazard statement means a statement assigned in the GHS to a hazard class or hazard category describing the nature of the hazards of a hazardous chemical including, if appropriate, the degree of hazard. hazardous area means an area in which: (a) an explosive gas is present in the atmosphere in a quantity that requires special precautions to be taken for the construction, installation and use of plant, or (b) a combustible dust is present, or could reasonably be expected to be present, in the atmosphere in a quantity that requires special precautions to be taken for the construction, installation and use of plant. [Def subst Reg 61 of 2015, Sch 1[9]]
hazardous chemical means a substance, mixture or article that satisfies the criteria for a hazard class in the GHS (including a classification referred to in Schedule 6), but does not include a substance, mixture or article that satisfies the criteria solely for one of the following hazard classes: (a) acute toxicity—oral—category 5, (b) acute toxicity—dermal—category 5, (c) acute toxicity—inhalation—category 5, (d) skin corrosion/irritation—category 3, (e) serious eye damage/eye irritation—category 2B, (f) aspiration hazard—category 2, (g) flammable gas—category 2, (h) acute hazard to the aquatic environment—category 1, 2 or 3, (i) chronic hazard to the aquatic environment—category 1, 2, 3 or 4, (j) hazardous to the ozone layer. Note. The Schedule 6 tables replace some tables in the GHS.
hazardous manual task means a task that requires a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any person, animal or thing that involves 1 or more of the following: (a) repetitive or sustained force, (b) high or sudden force, (c) repetitive movement, (d) sustained or awkward posture, (e) exposure to vibration. 256
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
Examples. 1 A task requiring a person to restrain live animals. 2 A task requiring a person to lift or move loads that are unstable or unbalanced or are difficult to grasp or hold. 3 A task requiring a person to sort objects on a conveyor belt.
Hazchem Code means a Hazchem Code under the ADG Code, also known as an Emergency Action Code. head or upper body means the area of a person’s body at or above the person’s shoulders. health monitoring, of a person, means monitoring the person to identify changes in the person’s health status because of exposure to certain substances. heritage boiler means a boiler that: (a) was manufactured before 1952, and (b) is used for a historical purpose or activity, including an activity that is ancillary to a historical activity. Examples.
Historical activity: a historical display, parade, demonstration or re-enactment. 2 Activity ancillary to a historical activity: restoring, maintaining, modifying, servicing, repairing or housing a boiler used, or to be used, for a historical activity. high risk construction work —see clause 291. high risk diving work means work: (a) carried out in or under water or any other liquid while breathing compressed gas, and (b) involving 1 or more of the following: (i) construction work, 1
Notes: 1 Subparagraph (ii) includes some additional construction-related activities. 2 For construction work generally, see Chapter 6. For the meaning of construction work, see clause 289.
(ii) work of the kind described in clause 289(3)(d), (iii) inspection work carried out in order to determine whether or not work described in subparagraph (i) or (ii) is necessary, (iv) the recovery or salvage of a large structure or large item of plant for commercial purposes, but does not include minor work carried out in the sea or the waters of a bay or inlet or a marina that involves cleaning, inspecting, maintaining or searching for a vessel or mooring. high risk work means any work set out in Schedule 3 as being within the scope of a high risk work licence. high risk work licence means any of the licences listed in Schedule 3. hoist means an appliance intended for raising or lowering a load or people, and includes an elevating work platform, a mast climbing work platform, personnel and materials hoist, scaffolding hoist and serial hoist, but does not include a lift or building maintenance equipment. © 2017 THOMSON REUTERS
257
cl 5
Chapter 1 – Preliminary
ignition source means a source of energy capable of igniting flammable or combustible substances. importer, in relation to plant, a substance or a structure, has the same meaning as it has in section 24 of the Act. incidental diving work means general diving work that: (a) is incidental to the conduct of the business or undertaking in which the diving work is carried out, and Example. Acting underwater is incidental to the business or undertaking of filming.
(b) involves limited diving, (c) [Repealed] [Def am Reg 61 of 2015, Sch 1[10]]
independent, in relation to clearance inspections and air monitoring under Chapter 8, means: (a) not involved in the removal of the asbestos, and (b) not involved in a business or undertaking involved in the removal of the asbestos, in relation to which the inspection or monitoring is conducted. industrial lift truck means powered mobile plant, designed to move goods, materials or equipment that is equipped with an elevating load carriage and is in the normal course of use equipped with a load-holding attachment, but does not include a mobile crane or earthmoving machinery. industrial robot means plant that is a multifunctional manipulator and its controllers, capable of handling materials, parts or tools, or specialised devices, through variable programmed motions for the performance of a variety of tasks. inflatable device (continuously blown) means an amusement device that is an inflatable device that relies on a continuous supply of air pressure to maintain its shape. [Def insrt Reg 61 of 2015, Sch 1[11]]
in situ asbestos means asbestos or ACM fixed or installed in a structure, equipment or plant, but does not include naturally occurring asbestos. intermediate bulk container (IBC) has the same meaning as IBC has in the ADG Code. internal review means internal review under Part 11.1. in transit, in relation to a thing, means that the thing: (a) is supplied to, or stored at, a workplace in containers that are not opened at the workplace, and (b) is not used at the workplace, and (c) is kept at the workplace for not more than 5 consecutive days. lead means lead metal, lead alloys, inorganic lead compounds and lead salts of organic acids. lead process —see clause 392. lead process area means a workplace or part of a workplace where a lead process is carried out. 258
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
lead risk work —see clause 394. licence holder means: (a) in the case of a high risk work licence—the person who is licensed to carry out the work, or (b) in the case of an asbestos assessor licence—the person who is licensed: (i) to carry out air monitoring during Class A asbestos removal work, and (ii) to carry out clearance inspections of Class A asbestos removal work, and (iii) to issue clearance certificates in relation to Class A asbestos removal work, or (c) in the case of an asbestos removal licence—the person conducting the business or undertaking to whom the licence is granted, or (d) in the case of a major hazard facility licence—the operator of the major hazard facility to whom the licence is granted or transferred. licensed asbestos assessor means a person who holds an asbestos assessor licence. licensed asbestos removalist means a person conducting a business or undertaking who is licensed under this Regulation to carry out Class A asbestos removal work or Class B asbestos removal work. licensed asbestos removal work means asbestos removal work for which a Class A asbestos removal licence or Class B asbestos removal licence is required. licensed major hazard facility means a major hazard facility that is licensed under Part 9.7. lift means plant that is, or is intended to be, permanently installed in or attached to a structure, in which people, goods or materials may be raised or lowered within a car or cage, or on a platform and the movement of which is restricted by a guide or guides, and includes: (a) a chairlift, escalator, moving walkway and stairway lift, and (b) any supporting structure, machinery, equipment, gear, lift well, enclosures and entrances. limited diving means diving that does not involve any of the following: (a) diving to a depth below 30 metres, (b) the need for a decompression stop, (c) the use of mechanical lifting equipment or a buoyancy lifting device, (d) diving beneath anything that would require the diver to move sideways before being able to ascend, (e) the use of plant that is powered from the surface, (f) diving for more than 28 days during a period of 6 months. limited scientific diving work means general diving work that: (a) is carried out for the purpose of professional scientific research, natural resource management or scientific research as an educational activity, and © 2017 THOMSON REUTERS
259
cl 5
Chapter 1 – Preliminary
(b)
involves only limited diving.
local authority, in relation to a facility, means the local authority for the local authority area in which the facility and the surrounding area are located. local community, in relation to a major hazard facility, means the community in the surrounding area. lower explosive limit (LEL), in relation to a flammable gas, vapour or mist, means the concentration of the gas, vapour or mist in air below which the propagation of a flame does not occur on contact with an ignition source. maintain, in relation to plant or a structure in Chapter 5, includes repair or servicing of plant or a structure. major hazard facility means a facility: (a) at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds their threshold quantity, or (b) that is determined by the regulator under Part 9.2 to be a major hazard facility. major hazard facility licence means a licence granted under Part 9.7 in relation to a major hazard facility. major incident —see clause 531. major incident hazard means a hazard that could cause, or contribute to causing, a major incident. manifest means a written summary of the hazardous chemicals used, handled or stored at a workplace. Note. See Schedule 12 (Manifest requirements) for what a manifest must contain.
manifest quantity, in relation to a Schedule 11 hazardous chemical, means the manifest quantity referred to in Schedule 11, table 11.1, column 5 for that hazardous chemical. manufacturer, in relation to plant, a substance or a structure, has the same meaning as it has in section 23 of the Act. mast climbing work platform means a hoist with a working platform used for temporary purposes to raise personnel and materials to the working position by means of a drive system mounted on an extendable mast that may be tied to a structure. materials hoist means a hoist that: (a) consists of a car, bucket or platform cantilevered from, and travelling up and down outside, a face of the support of a structure, and (b) is used for hoisting things and substances but not persons. membrane filter method means the membrane filter method described in the Guidance note on the Membrane Filter Method for Estimating Airborne Asbestos Fibres [NOHSC:3003 (2005)]. mixture in Part 7.1, means a combination of, or a solution composed of, 2 or more substances that do not react with each other. 260
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
mobile crane means a crane capable of travelling over a supporting surface without the need for fixed runways and relying only on gravity for stability. modification, in relation to a facility—see clause 534. musculoskeletal disorder means an injury to, or disease of, the musculoskeletal system, whether occurring suddenly or over time, but does not include an injury caused by crushing, entrapment or cutting resulting principally from the mechanical operation of plant. NATA means the National Association of Testing Authorities, Australia. NATA-accredited laboratory means a testing laboratory accredited by NATA, or recognised by NATA either solely or with someone else. naturally occurring asbestos means the natural geological occurrence of asbestos minerals found in association with geological deposits including rock, sediment or soil. non-friable asbestos means material containing asbestos that is not friable asbestos, including material containing asbestos fibres reinforced with a bonding compound. Note. Non-friable asbestos may become friable asbestos through deterioration (see definition of friable asbestos).
non-slewing mobile crane means a mobile crane incorporating a boom or jib that cannot be slewed, and includes: (a) an articulated mobile crane, or (b) a locomotive crane, but does not include vehicle tow trucks. notice of satisfactory assessment means a notice stating that the person to whom it is issued has successfully completed a specified VET course. operator, in relation to a facility or a proposed facility—see clause 533. operator protective device, includes a roll-over protective structure, falling object protective structure, operator restraining device and seat belt. order-picking forklift truck, in Schedules 3 and 4, means a forklift truck where the operator’s controls are incorporated with the lifting media and elevate with the lifting media. packaged hazardous chemicals means Schedule 11 hazardous chemicals in a container with: (a) a capacity not exceeding 500 litres, or (b) a net mass not exceeding 500 kilograms. passenger ropeway means a powered ropeway used for transporting, in a horizontal or inclined plane, passengers moved by a carrier that is: (a) attached to or supported by a moving rope, or (b) attached to a moving rope but supported by a standing rope or other overhead structure, including, in relation to the powered ropeway, the prime mover, any associated transmission machinery and any supporting structure and equipment, but does not include any of the following: (c) a cog railway, (d) a cable car running on rails, © 2017 THOMSON REUTERS
261
cl 5
Chapter 1 – Preliminary
(e) a flying fox or similar device, (f) an elevating system for vehicles or boat style carriers associated with amusement devices, Example An elevating system for a log ride or boat flume ride.
(g)
a winding system in a mine.
[Def insrt Reg 61 of 2015, Sch 1[11]]
person with management or control of plant at a workplace has the same meaning as it has in section 21 of the Act. person with management or control of a workplace has the same meaning as it has in section 20 of the Act. personal protective equipment means anything used or worn by a person to minimise risk to the person’s health and safety, including air supplied respiratory equipment. personnel and materials hoist means a hoist: (a) that is a cantilever hoist, a tower hoist or several winches configured to operate as a hoist, and (b) that is intended to carry goods, materials or people. pipeline means pipe work that crosses a boundary of a workplace, beginning or ending at the nearest fluid or slurry control point (along the axis of the pipeline) to the boundary. pipe work means a pipe or assembly of pipes, pipe fittings, valves and pipe accessories used to convey a hazardous chemical. placard means a sign or notice: (a) displayed or intended for display in a prominent place, or next to a container or storage area for hazardous chemicals at a workplace, and (b) that contains information about the hazardous chemical stored in the container or storage area. placard quantity, in relation to a Schedule 11 hazardous chemical, means the placard quantity referred to in Schedule 11, table 11.1 column 4 for the Schedule 11 hazardous chemical. plant, in Parts 5.2 and 5.3, includes a structure. platform height, in relation to an inflatable device (continuously blown), means the height of the highest part of the device designed to support persons using it (the platform), as measured from the surface supporting the device to the top surface of the platform when the device is inflated but unloaded. [Def insrt Reg 61 of 2015, Sch 1[11]]
portal boom crane means a boom crane or a jib crane that is mounted on a portal frame that, in turn, is supported on runways along which the crane travels. powered mobile plant means plant that is provided with some form of self-propulsion that is ordinarily under the direct control of an operator. precautionary statement means a phrase prescribed by the GHS that describes measures that are recommended to be taken to prevent or minimise: 262
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
(a) the adverse effects of exposure to a hazardous chemical, or (b) improper handling of a hazardous chemical. presence-sensing safeguarding system includes: (a) a sensing system that uses 1 or more forms of radiation either self-generated or otherwise generated by pressure, and (b) the interface between the final switching devices of the sensing system and the machine primary control elements, and (c) the machine stopping capabilities, by which the presence of a person or part of a person within the sensing field will cause the dangerous parts of a machine to be brought to a safe state. pressure equipment means boilers, pressure vessels and pressure piping. pressure piping: (a) means an assembly of pipes, pipe fittings, valves and pipe accessories subject to internal or external pressure and used to contain or convey liquid or to transmit liquid pressure, and (b) includes distribution headers, bolting, gaskets, pipe supports and pressure containing accessories, but (c) does not include: (i) a boiler or pressure vessel, or (ii) any piping that is regulated under the Gas Supply Act 1996, the Petroleum (Offshore) Act 1982 or the Pipelines Act 1967. pressure vessel: (a) means a vessel subject to internal or external pressure, and (b) includes: (i) interconnected parts and components, valves, gauges and other fittings up to the first point of connection to connecting piping, and (ii) fired heaters, and (iii) gas cylinders, but (c) does not include a boiler or pressure piping. primary emergency service organisation means Fire and Rescue NSW. [Def am Reg 61 of 2015, Sch 1[12]]
principal contractor, in relation to a construction project—see clause 293. product identifier means the name or number used to identify a product on a label or in a safety data sheet. prohibited carcinogen means a substance: (a) listed in Schedule 10, table 10.1, column 2, and (b) present in a concentration of: (i) for a solid or liquid—0.1% or more, determined as a weight/weight (w/w) concentration, and (ii) for a gas—0.1% or more, determined as a volume/volume (v/v) concentration. proposed facility means: (a) an existing workplace that is to become a facility due to the introduction of Schedule 15 chemicals, or (b) a facility that is being designed or constructed. © 2017 THOMSON REUTERS
263
cl 5
Chapter 1 – Preliminary
proposed major hazard facility means: (a) an existing facility or other workplace that is to become a major hazard facility due to the introduction of Schedule 15 chemicals or the addition of further Schedule 15 chemicals, or (b) a major hazard facility that is being designed or constructed. quantity, in Chapter 7, means: (a) for a hazardous chemical that is not a liquid or a gas or a gas under pressure and is in a container or storage or handling system—the mass in kilograms of the hazardous chemical in the container or storage or handling system, and (b) for a hazardous chemical that is a liquid and is not a gas under pressure and is in a container or storage or handling system—the net capacity in litres of the container or storage or handling system, and (c) for a hazardous chemical that is a gas or gas under pressure in a container or storage or handling system—the water capacity in litres of the container or storage or handling system, and (d) for a hazardous chemical that is not a liquid and is in bulk and not in a container—the undivided mass in kilograms, and (e) for a hazardous chemical that is a thing and is not a gas—the net capacity of the part of the thing that comprises a hazardous chemical. reach stacker means a powered reach stacker that incorporates an attachment for lifting and lowering a shipping container. reciprocating steam engine means equipment that is driven by steam acting on a piston causing the piston to move, and includes an expanding (steam) reciprocating engine. registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student). registered training organisation (RTO) means a training organisation that: (a) is listed as a registered training organisation on the National Register established under the National Vocational Education and Training Regulator Act 2011 of the Commonwealth, and (b) has entered into an agreement with the regulator to deliver training and conduct assessments. relevant fee, in relation to a matter, means the fee specified in Schedule 2 for that matter. research chemical means a substance or mixture that: (a) is manufactured in a laboratory for genuine research, and (b) is not for use or supply for a purpose other than analysis or genuine research. respirable asbestos fibre means an asbestos fibre that: (a) is less than 3 micrometres wide, and (b) more than 5 micrometres long, and (c) has a length to width ratio of more than 3:1. restricted carcinogen means a substance: 264
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
(a)
listed in Schedule 10, table 10.2, column 2 for a use listed in column 3, and (b) present in a concentration of: (i) for a solid or liquid—0.1% or more, determined as a weight/weight (w/w) concentration, and (ii) for a gas—0.1% or more, determined as a volume/volume (v/v) concentration. retailer means a person whose principal business is supplying consumer products to members of the public who are not engaged in the further supply of those products. rigging work means: (a) the use of mechanical load shifting equipment and associated gear to move, place or secure a load using plant, equipment or members of a structure to ensure the stability of those members, or (b) the setting up or dismantling of cranes or hoists. safe oxygen level means a minimum oxygen content of air of 19.5% by volume under normal atmospheric pressure and a maximum oxygen content of air of 23.5% by volume under normal atmospheric pressure. [Def am Reg 61 of 2015, Sch 1[13]]
Safe Work Australia means Safe Work Australia as established under section 5 of the Safe Work Australia Act 2008 of the Commonwealth. safe work method statement means: (a) in relation to electrical work on energised electrical equipment—a safe work method statement prepared under clause 161, (b) in relation to high risk construction work—a safe work method statement referred to in clause 299 (as revised under clause 302). safety data sheet means a safety data sheet prepared under clause 330 or 331. scaffold means a temporary structure specifically erected to support access or working platforms. scaffolding work means erecting, altering or dismantling a temporary structure that is or has been erected to support a platform and from which a person or object could fall more than 4 metres from the platform or the structure. Schedule 11 hazardous chemical means a hazardous chemical or combination of hazardous chemicals specified in Schedule 11, table 11.1. Schedule 15 chemical means a hazardous chemical that: (a) is specified in Schedule 15, table 15.1, or (b) belongs to a class, type or category of hazardous chemicals specified in Schedule 15, table 15.2. self erecting tower crane means a crane: (a) that is not disassembled into a tower element and a boom or jib element in the normal course of use, and (b) where the erection and dismantling processes are an inherent part of the crane’s function. © 2017 THOMSON REUTERS
265
cl 5
Chapter 1 – Preliminary
shaft means a vertical or inclined way or opening, from the surface downwards or from any underground working, the dimensions of which (apart from the perimeter) are less than its depth. signal word means the word “danger” or “warning” used on a label to indicate to a label reader the relative severity level of a hazard, and to alert the reader to a potential hazard, under the GHS. slewing mobile crane means a mobile crane incorporating a boom or jib that can be slewed, but does not include: (a) a front end loader, or (b) a backhoe, or (c) an excavator, or (d) other earth moving equipment, when configured for crane operation. slinging techniques means the exercising of judgement in relation to the suitability and condition of lifting gear and the method of slinging, by consideration of the nature of the load, its mass and its centre of gravity. specified VET course means: (a) in relation to general construction induction training—the VET course Work Safely in the Construction Industry or a corresponding subsequent VET accredited course, or (b) in relation to Class A asbestos removal work—the VET course Remove friable asbestos, or (c) in relation to Class B asbestos removal work—the VET course Remove non friable asbestos, or (d) in relation to the supervision of asbestos removal work—the VET course Supervise asbestos removal, or (e) in relation to asbestos assessor work—the VET course Conduct asbestos assessment associated with removal, or (f) in relation to high risk work—the relevant VET course specified in Schedule 4. [Def am Reg 61 of 2015, Sch 1[14] and [15]]
structure, in Chapter 6—see clause 290. substance, in Part 7.1, means a chemical element or compound in its natural state or obtained or generated by a process: (a) including any additive necessary to preserve the stability of the element or compound and any impurities deriving from the process, but (b) excluding any solvent that may be separated without affecting the stability of the element or compound, or changing its composition. supplier, in relation to plant, a substance or a structure, has the same meaning as it has in section 25 of the Act. surrounding area, in relation to a facility, means the area surrounding the facility in which the health and safety of persons could potentially be adversely affected by a major incident occurring. suspended scaffold means a scaffold incorporating a suspended platform that is capable of being raised or lowered when in use. 266
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.1 – Introductory matters
cl 5
technical name, in the definition of chemical identity, means a name that is: (a) ordinarily used in commerce, regulations and codes to identify a substance or mixture, other than an International Union of Pure and Applied Chemistry or Chemical Abstracts Service name, and (b) recognised by the scientific community. temporary work platform means: (a) a fixed, mobile or suspended scaffold, or (b) an elevating work platform, or (c) a mast climbing work platform, or (d) a work box supported by a crane, hoist, forklift truck or other form of mechanical plant, or (e) building maintenance equipment, including a building maintenance unit, or (f) a portable or mobile fabricated platform, or (g) any other temporary platform that: (i) provides a working area, and (ii) is designed to prevent a fall. the Act means the Work Health and Safety Act 2011. theatrical performance means acting, singing, playing a musical instrument, dancing or otherwise performing literary or artistic works or expressions of traditional custom or folklore. threshold quantity, in relation to a Schedule 15 chemical, means: (a) the threshold quantity of a specific hazardous chemical as determined under clause 3 of Schedule 15, or (b) the aggregate threshold quantity of 2 or more hazardous chemicals as determined under clause 4 of Schedule 15. tower crane means: (a) a boom crane or a jib crane mounted on a tower structure, and (b) in Schedule 3: (i) the crane, if a jib crane, may be a horizontal or luffing jib type, and (ii) the tower structure may be demountable or permanent, but, in Schedule 3, does not include a self erecting tower crane. tractor means a motor vehicle, whether wheeled or track mounted, designed to provide power and movement to any attached machine or implement by a transmission shaft, belt or linkage system but does not include earthmoving machinery. trench means a horizontal or inclined way or opening: (a) the length of which is greater than its width and greater than or equal to its depth, and (b) that commences at and extends below the surface of the ground, and (c) that is open to the surface along its length. tunnel means an underground passage or opening that: (a) is approximately horizontal, and (b) commences at the surface of the ground or at an excavation. © 2017 THOMSON REUTERS
267
cl 5
Chapter 1 – Preliminary
turbine means equipment that is driven by steam acting on a turbine or rotor to cause a rotary motion. UN number has the same meaning as it has in Attachment 2 of the ADG Code. vehicle hoist means a device to hoist vehicles designed to provide access for under-chassis examination or service. vehicle loading crane means a crane mounted on a vehicle for the purpose of loading and unloading the vehicle. VET course has the same meaning as it has in the National Vocational Education and Training Regulator Act 2011 of the Commonwealth. WHS management plan, in relation to a construction project, means a management plan prepared or revised under Part 6.4. work box means a personnel carrying device, designed to be suspended from a crane, to provide a working area for a person elevated by and working from the device. Workplace Exposure Standards for Airborne Contaminants means the Workplace Exposure Standards for Airborne Contaminants published by Safe Work Australia on its website with a date of effect of 18 April 2013 as in force or remade from time to time. [Def insrt Reg 799 of 2014, Sch 13[1]]
work positioning system means any plant or structure, other than a temporary work platform, that enables a person to be positioned and safely supported at a location for the duration of the relevant work being carried out. (2) [Repealed] Note. Not required in NSW. [Cl 5 am Act 5 of 2015; Reg 61 of 2015; Reg 799 of 2014; Reg 544 of 2012]
Meaning of corresponding WHS law
5A
For the purposes of paragraph (b) of the definition of corresponding WHS law in section 4 of the Act, the Work Health and Safety (National Uniform Legislation) Act 2011 of the Northern Territory is prescribed as such a law. [Cl 5A insrt Reg 544 of 2012, Sch 1[2]]
6
Determination of safety management system
The regulator may make a determination for the purposes of the definition of certified safety management system. Meaning of “person conducting a business or undertaking”—persons excluded 7
(1) For the purposes of section 5(6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises. (2) Subclause (1) does not apply if the strata title body corporate engages any worker as an employee. 268
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.2 – Application
cl 10
(3) For the purposes of section 5(6) of the Act, an incorporated association may be taken not to be a person conducting a business or undertaking if the incorporated association consists of a group of volunteers working together for 1 or more community purposes where: (a) the incorporated association, either alone or jointly with any other similar incorporated association, does not employ any person to carry out work for the incorporated association, and (b) none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the incorporated association. (4) In this clause, strata title body corporate means an owners corporation constituted under the Strata Schemes Management Act 1996. Meaning of supply For the purposes of section 6(3)(b) of the Act, a supply of a thing does not include the supply of a thing by a person who does not control the supply and has no authority to make decisions about the supply. 8
Examples. 1 An auctioneer who auctions a thing without having possession of the thing. 2 A real estate agent acting in his or her capacity as a real estate agent.
Provisions linked to health and safety duties in Act If a note at the foot of a provision of this Regulation states “WHS Act” followed by a reference to a section number, the clause provision sets out the way in which a person’s duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the clause provision. 9
Note. A failure to comply with a duty or obligation under a section of the Act referred to in a “WHS Act” note is an offence to which a penalty applies.
Part 1.2 – Application 10
Application of the Act to dangerous goods and high risk plant
(1) The Schedule 1 (a) (b) (c)
following provisions of the Act are excluded from the operation of to the Act: Divisions 2 to 8 of Part 5, Part 6, Part 7.
(1A) Dangerous goods (within the meaning of the ADG Code) listed in Column 2 of the Table to clause 328(1A) are prescribed for the purposes of Schedule 1 to the Act as dangerous goods if the quantity of the goods at a place is more than the relevant threshold for the goods referred to in Column 3 of that Table. (1B) The following plant is prescribed as high risk plant for the purposes of Schedule 1 to the Act: (a) boilers categorised as hazard level A, B or C according to criteria in section 2.1 of AS:4343:2005 (Pressure equipment—Hazard levels), (b) pressure vessels categorised as hazard level A, B or C according to the criteria in section 2.1 of AS:4343:2005 (Pressure equipment—Hazard levels), except: © 2017 THOMSON REUTERS
269
cl 10
Chapter 1 – Preliminary
(i) LP Gas fuel vessels for automotive use, and (ii) serially produced vessels, (c) lifts, including escalators and moving walkways, (d) amusement devices covered by section 2.1 of AS:3533.1:2009 (Amusement rides and devices—Design and construction), except devices specified in subclause (1C), (e) gas cylinders. (1C) Subclause (1B)(d) does not apply to the following: (a) class 1 devices, (b) playground devices, (c) water slides where water facilitates patrons to slide easily, predominantly under gravity, along a static structure, (d) wave generators where patrons do not come into contact with the parts of machinery used for generating water waves, (e) inflatable devices that are sealed, (f) inflatable devices that do not use a non-return valve. 11
Application of this Regulation
A duty imposed on a person under a provision of this Regulation in relation to health and safety does not limit or affect any duty the person has under the Act or, unless otherwise expressly provided, any other provision of this Regulation. Assessment of risk in relation to a class of hazards, tasks, circumstances or things 12
If this Regulation require an assessment of risks to health and safety associated with a hazard, task, thing or circumstance, an assessment of risks associated with a class of hazards, tasks, things or circumstances may be conducted if: (a) all hazards, tasks, things or circumstances in the class are the same, and (b) the assessment of risks for the class does not result in any worker or other person being exposed to a greater, additional or different risk to health and safety than if the risk assessment were carried out in relation to each individual hazard, task, thing or circumstance.
Part 1.3 – Incorporated documents 13
Documents incorporated as in force when incorporated
A reference to any document applied, adopted or incorporated by, or referred to in, this Regulation is to be read as a reference to that document as in force at the time the document is applied, adopted, incorporated or referred to unless express provision is made to the contrary. 14
Inconsistencies between provisions
If a provision of any document applied, adopted or incorporated by, or referred to in, this Regulation is inconsistent with any provision in this Regulation, the provision of this Regulation prevails. 270
Tooma’s Annotated Work Health and Safety Act 2011
Part 1.3 – Incorporated documents
15
cl 15
References to standards
(1) In this Regulation, a reference consisting of the words “Australian Standard” or the letters “AS” followed in either case by a number or a number accompanied by a reference to a calendar year is a reference to the standard so numbered published by or on behalf of Standards Australia. (2) In this Regulation, a reference consisting of the expression “Australian/ New Zealand Standard” or “AS/NZS” followed in either case by a number or a number accompanied by a reference to a calendar year is a reference to the standard so numbered published jointly by or on behalf of Standards Australia and the Standards Council of New Zealand.
© 2017 THOMSON REUTERS
271
CHAPTER 2 – REPRESENTATION AND PARTICIPATION Part 2.1 – Representation DIVISION 1 – WORK GROUPS Negotiations for and determination of work groups Negotiations for and determination of work groups and variations of work groups must be directed at ensuring that the workers are grouped in a way that: (a) most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented, and (b) has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group. 16
Note. Under the Act, a work group may be determined for workers at more than 1 workplace (section 51(3)) or for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces (Subdivision 3 of Division 3 of Part 5 of the Act).
Matters to be taken into account in negotiations For the purposes of sections 52(6) and 56(4) of the Act, negotiations for and determination of work groups and variation of agreements concerning work groups must take into account all relevant matters, including the following: (a) the number of workers, (b) the views of workers in relation to the determination and variation of work groups, (c) the nature of each type of work carried out by the workers, (d) the number and grouping of workers who carry out the same or similar types of work, (e) the areas or places where each type of work is carried out, (f) the extent to which any worker must move from place to place while at work, (g) the diversity of workers and their work, (h) the nature of any hazards at the workplace or workplaces, (i) the nature of any risks to health and safety at the workplace or workplaces, (j) the nature of the engagement of each worker, for example as an employee or as a contractor, (k) the pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term, (l) the times at which work is carried out, (m) any arrangements at the workplace or workplaces relating to overtime or shift work. 17
© 2017 THOMSON REUTERS
273
cl 18
Chapter 2 – Representation and participation
DIVISION 2 – HEALTH AND SAFETY REPRESENTATIVES 18
Procedures for election of health and safety representatives
(1) This clause sets out minimum procedural requirements for the election of a health and safety representative for a work group for the purposes of section 61(2) of the Act. (2) The person conducting the election must take all reasonable steps to ensure that the following procedures are complied with: (a) each person conducting a business or undertaking in which a worker in the work group works is informed of the date on which the election is to be held as soon as practicable after the date is determined, (b) all workers in the work group are given an opportunity to: (i) nominate for the position of health and safety representative, and (ii) vote in the election, (c) all workers in the work group and all relevant persons conducting a business or undertaking are informed of the outcome of the election. Person conducting business or undertaking must not delay election 19
A person conducting a business or undertaking at a workplace must not unreasonably delay the election of a health and safety representative. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 20
Removal of health and safety representatives
(1) For the purposes of section 64(2)(d) of the Act, the majority of the members of a work group may remove a health and safety representative for the work group if the members sign a written declaration that the health and safety representative should no longer represent the work group. (2) A member of the work group nominated by the members who signed the declaration must, as soon as practicable: (a) inform the following persons of the removal of the health and safety representative: (i) the health and safety representative who has been removed, (ii) each person conducting a business or undertaking in which a worker in the work group works, and (b) take all reasonable steps to inform all members of the work group of the removal. (3) The removal of the health and safety representative takes effect when the persons referred to in subclause (2)(a) and the majority of members of the work group have been informed of the removal. 21
Training for health and safety representatives
(1) For the purposes of section 72(1) of the Act, a health and safety representative is entitled to attend the following courses of training in work health and safety: 274
Tooma’s Annotated Work Health and Safety Act 2011
Part 2.2 – Issue resolution
cl 23
(a) an initial course of training of 5 days, (b) 1 day’s refresher training each year, with the entitlement to the first refresher training commencing 1 year after the initial training. (2) In approving a course of training in work health and safety for the purposes of section 72(1) of the Act, the regulator may have regard to any relevant matters, including: (a) the content and quality of the curriculum, including its relevance to the powers and functions of a health and safety representative, and (b) the qualifications, knowledge and experience of the person who is to provide the course. [Subcl (2) am Reg 61 of 2015, Sch 1[16]]
(3) The regulator may revoke or vary an approval under this clause. (4) The regulator may impose conditions on an approval under this clause and may vary those conditions. Note. This clause prescribes courses of training to which a health and safety representative is entitled. In addition to these courses, the health and safety representative and the person conducting the business or undertaking may agree that the representative will attend or receive further training. [Cl 21 am Reg 61 of 2015]
Part 2.2 – Issue resolution 22
Agreed procedure—minimum requirements
(1) This clause sets out minimum requirements for an agreed procedure for issue resolution at a workplace. (2) The agreed procedure for issue resolution at a workplace must include the steps set out in clause 23. (3) A person conducting a business or undertaking at a workplace must ensure that the agreed procedure for issue resolution at the workplace: (a) complies with subclause (2), and (b) is set out in writing, and (c) is communicated to all workers to whom the agreed procedure applies. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 23
Default procedure
(1) This clause sets out the default procedure for issue resolution for the purposes of section 81(2) of the Act. (2) Any party to the issue may commence the procedure by informing each other party: (a) that there is an issue to be resolved, and (b) the nature and scope of the issue. (3) As soon as parties are informed of the issue, all parties must meet or communicate with each other to attempt to resolve the issue. © 2017 THOMSON REUTERS
275
cl 23
Chapter 2 – Representation and participation
(4) The parties must have regard to all relevant matters, including the following: (a) the degree and immediacy of risk to workers or other persons affected by the issue, (b) the number and location of workers and other persons affected by the issue, (c) the measures (both temporary and permanent) that must be implemented to resolve the issue, (d) who will be responsible for implementing the resolution measures. (5) A party may, in resolving the issue, be assisted or represented by a person nominated by the party. (6) If the issue is resolved, details of the issue and its resolution must be set out in a written agreement if any party to the issue requests this. Note. Under the Act, parties to an issue include not only a person conducting a business or undertaking, a worker and a health and safety representative, but also representatives of these persons (see section 80 of the Act).
(7) If a written agreement is prepared all parties to the issue must be satisfied that the agreement reflects the resolution of the issue. (8) A copy of the written agreement must be given to: (a) all parties to the issue, and (b) if requested, to the health and safety committee for the workplace. (9) To avoid doubt, nothing in this procedure prevents a worker from bringing a work health and safety issue to the attention of the worker’s health and safety representative.
Part 2.3 – Cessation of unsafe work Continuity of engagement of worker For the purposes of section 88 of the Act, the prescribed purposes are the assessment of eligibility for, or the calculation of benefits for, any benefit or entitlement associated with the worker’s engagement, including 1 or more of the following: (a) remuneration and promotion, as affected by seniority, (b) superannuation benefits, (c) leave entitlements, (d) any entitlement to notice of termination of the engagement. 24
Part 2.4 – Workplace entry by WHS entry permit holders 25
Training requirements for WHS entry permits
(1) The prescribed training for the purposes of sections 131 and 133 of the Act is training, that is provided or approved by the regulator, in relation to the following: (a) the right of entry requirements under Part 7 of the Act, (b) the issue resolution requirements under the Act and this Regulation, 276
Tooma’s Annotated Work Health and Safety Act 2011
Part 2.4 – Workplace entry by WHS entry permit holders
cl 27
(c) the duties under, and the framework of, the Act and this Regulation, (d) the requirements for the management of risks under section 17 of the Act, (e) the meaning of reasonably practicable as set out in section 18 of the Act, (f) the relationship between the Act and this Regulation and the Fair Work Act and the Industrial Relations Act 1996. (2) The training must include providing the participant with information about the availability of any guidance material published by the regulator in relation to the Act and this Regulation. (3) For the purpose of approving training, the regulator may have regard to any relevant matters, including: (a) the content and quality of the curriculum, including its relevance to the powers and functions of a WHS permit holder, and (b) the qualifications, knowledge and experience of the person who is to provide the training. [Subcl (3) am Reg 61 of 2015, Sch 1[17]]
(4) The regulator may revoke or vary an approval under this clause. (5) The regulator may impose conditions on an approval under this clause and may vary those conditions. [Cl 25 am Reg 61 of 2015]
26
Form of WHS entry permit A WHS entry permit must include the following: (a) the section of the Act under which the WHS entry permit is issued, (b) the full name of the WHS entry permit holder, (c) the name of the union that the WHS entry permit holder represents, (d) a statement that the WHS entry permit holder is entitled, while the WHS entry permit is in force, to exercise the rights given to the WHS entry permit holder under the Act, (e) the date of issue of the WHS entry permit, (f) the expiry date for the WHS entry permit, (g) the signature of the WHS entry permit holder, (h) any conditions on the WHS entry permit.
27
Notice of entry—general A notice of entry under Part 7 of the Act must: (a) be written, and (b) include the following: (i) the full name of the WHS entry permit holder, (ii) the name of the union that the WHS entry permit holder represents, (iii) the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace, (iv) the name and address of the workplace entered or proposed to be entered, (v) the date of entry or proposed entry,
© 2017 THOMSON REUTERS
277
cl 27
Chapter 2 – Representation and participation
(vi)
the additional information and other matters required under clause 28, 29 or 30 (as applicable).
Additional requirements—entry under section 117 A notice of entry under section 119 of the Act in relation to an entry under section 117 must also include the following: (a) so far as is practicable, the particulars of the suspected contravention to which the notice relates, (b) a declaration stating: (i) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union, and (ii) the provision in the union’s rules that entitles the union to represent the industrial interests of that worker, and (iii) that the suspected contravention relates to, or affects, that worker. 28
Note. Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.
29
Additional requirements—entry under section 120
A notice of entry under section 120 of the Act in relation to an entry under that section must also include the following: (a) so far as is practicable, the particulars of the suspected contravention to which the notice relates, (b) a description of the employee records and other documents, or of the classes of records and documents, directly relevant to the suspected contravention, that are proposed to be inspected, (c) a declaration stating: (i) that the union is entitled to represent the industrial interests of a worker who is a member, or eligible to be a member, of that union, and (ii) the provision in the union’s rules that entitles the union to represent the industrial interests of that worker, and (iii) that the suspected contravention relates to, or affects, that worker, and (iv) that the records and documents proposed to be inspected relate to that contravention. Note. Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.
Additional requirements—entry under section 121 A notice of entry under section 122 of the Act in relation to an entry under section 121 must also include a declaration stating: (a) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace proposed to be entered and is a member, or eligible to be a member, of that union, and (b) the provision in the union’s rules that entitles the union to represent the industrial interests of that worker. 30
278
Tooma’s Annotated Work Health and Safety Act 2011
Part 2.4 – Workplace entry by WHS entry permit holders
cl 31
Note. Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.
Register of WHS entry permit holders For the purposes of section 151 of the Act, the authorising authority must publish on its website: (a) an up-to-date register of WHS entry permit holders, and (b) the date on which the register was last updated. 31
Note. The authorising authority in NSW is the Industrial Relations Commission—see section 4 of the Act.
© 2017 THOMSON REUTERS
279
CHAPTER 3 – GENERAL RISK AND WORKPLACE MANAGEMENT Part 3.1 – Managing risks to health and safety Application of Part 3.1 This Part applies to a person conducting a business or undertaking who has a duty under this Regulation to manage risks to health and safety. 32
33
Specific requirements must be complied with
Any specific requirements under this Regulation for the management of risk must be complied with when implementing the requirements of this Part. Examples. 1 A requirement not to exceed an exposure standard. 2 A duty to implement a specific control measure. 3 A duty to assess risk.
Duty to identify hazards A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety. 34
35
36
Managing risks to health and safety A duty holder, in managing risks to health and safety, must: (a) eliminate risks to health and safety so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable. Hierarchy of control measures
(1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety. (2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following: (a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk, (b) isolating the hazard from any person exposed to it, (c) implementing engineering controls. (4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.
© 2017 THOMSON REUTERS
281
cl 36
Chapter 3 – General risk and workplace management
(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment. Note. A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.
Maintenance of control measures
37
A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains: (a) fit for purpose, and (b) suitable for the nature and duration of the work, and (c) installed, set up and used correctly. Review of control measures
38
(1) A duty holder must review and as necessary revise control measures implemented under this Regulation so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety. (2) Without limiting subclause (1), the duty holder must review and as necessary revise a control measure in the following circumstances: (a) the control measure does not control the risk it was implemented to control so far as is reasonably practicable, Examples. 1 2
The results of monitoring show that the control measure does not control the risk.
A notifiable incident occurs because of the risk.
(b)
before a change at the workplace that is likely to give rise to a new or different risk to health or safety that the measure may not effectively control, (c) a new relevant hazard or risk is identified, (d) the results of consultation by the duty holder under the Act or this Regulation indicate that a review is necessary, (e) a health and safety representative requests a review under subclause (4). (3) Without limiting subclause (2)(b), a change at the workplace includes: (a) a change to the workplace itself or any aspect of the work environment, or (b) a change to a system of work, a process or a procedure. (4) A health and safety representative for workers at a workplace may request a review of a control measure if the representative reasonably believes that: (a) a circumstance referred to in subclause (2)(a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and (b) the duty holder has not adequately reviewed the control measure in response to the circumstance. 282
Tooma’s Annotated Work Health and Safety Act 2011
Part 3.2 – General workplace management
cl 40
Part 3.2 – General workplace management DIVISION 1 – INFORMATION, TRAINING AND INSTRUCTION 39
Provision of information, training and instruction
(1) This clause applies for the purposes of section 19 of the Act to a person conducting a business or undertaking. (2) The person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to: (a) the nature of the work carried out by the worker, and (b) the nature of the risks associated with the work at the time the information, training or instruction is provided, and (c) the control measures implemented. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure, so far as is reasonably practicable, that the information, training and instruction provided under this clause is provided in a way that is readily understandable by any person to whom it is provided. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. DIVISION 2 – GENERAL WORKING ENVIRONMENT Duty in relation to general workplace facilities A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the following: (a) the layout of the workplace allows, and the workplace is maintained so as to allow, for persons to enter and exit and to move about without risk to health and safety, both under normal working conditions and in an emergency, (b) work areas have space for work to be carried out without risk to health and safety, (c) floors and other surfaces are designed, installed and maintained to allow work to be carried out without risk to health and safety, (d) lighting enables: (i) each worker to carry out work without risk to health and safety, and (ii) persons to move within the workplace without risk to health and safety, and (iii) safe evacuation in an emergency, (e) ventilation enables workers to carry out work without risk to health and safety, (f) workers carrying out work in extremes of heat or cold are able to carry out work without risk to health and safety, 40
© 2017 THOMSON REUTERS
283
cl 40
Chapter 3 – General risk and workplace management
(g)
work in relation to or near essential services does not give rise to a risk to the health and safety of persons at the workplace.
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 41
Duty to provide and maintain adequate and accessible facilities
(1) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that the facilities provided under subclause (1) are maintained so as to be: (a) in good working order, and (b) clean, safe and accessible. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) For the purposes of this clause, a person conducting a business or undertaking must have regard to all relevant matters, including the following: (a) the nature of the work being carried out at the workplace, (b) the nature of the hazards at the workplace, (c) the size, location and nature of the workplace, (d) the number and composition of the workers at the workplace. DIVISION 3 – FIRST AID 42
Duty to provide first aid
(1) A person conducting a business or undertaking at a workplace must ensure: (a) the provision of first aid equipment for the workplace, and (b) that each worker at the workplace has access to the equipment, and (c) access to facilities for the administration of first aid. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person conducting a business or undertaking at a workplace must ensure that: (a) an adequate number of workers are trained to administer first aid at the workplace, or (b) workers have access to an adequate number of other persons who have been trained to administer first aid. Maximum penalty: 284
Tooma’s Annotated Work Health and Safety Act 2011
Part 3.2 – General workplace management
cl 43
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) For the purposes of this clause, the person conducting the business or undertaking must have regard to all relevant matters, including the following: (a) the nature of the work being carried out at the workplace, (b) the nature of the hazards at the workplace, (c) the size and location of the workplace, (d) the number and composition of the workers and other persons at the workplace. DIVISION 4 – EMERGENCY PLANS 43
Duty to prepare, maintain and implement emergency plan
(1) A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following: (a) emergency procedures, including: (i) an effective response to an emergency, and (ii) evacuation procedures, and (iii) notifying emergency service organisations at the earliest opportunity, and (iv) medical treatment and assistance, and (v) effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace, (b) testing of the emergency procedures, including the frequency of testing, (c) information, training and instruction to relevant workers in relation to implementing the emergency procedures. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person conducting a business or undertaking at a workplace must maintain the emergency plan for the workplace so that it remains effective. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) For the purposes of subclauses (1) and (2), the person conducting the business or undertaking must have regard to all relevant matters, including the following: (a) the nature of the work being carried out at the workplace, (b) the nature of the hazards at the workplace, (c) the size and location of the workplace, (d) the number and composition of the workers and other persons at the workplace. [Subcl (3) am Reg 61 of 2015, Sch 1[18]] © 2017 THOMSON REUTERS
285
cl 43
Chapter 3 – General risk and workplace management
(4) A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. [Cl 43 am Reg 61 of 2015]
DIVISION 5 – PERSONAL PROTECTIVE EQUIPMENT 44
Provision to workers and use of personal protective equipment
(1) This clause applies if personal protective equipment is to be used to minimise a risk to health and safety in relation to work at a workplace in accordance with clause 36. (2) The person conducting a business or undertaking who directs the carrying out of work must provide the personal protective equipment to workers at the workplace, unless the personal protective equipment has been provided by another person conducting a business or undertaking. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Example. Equipment that has been provided by a labour hire company.
(3) The person conducting the business or undertaking who directs the carrying out of work must ensure that personal protective equipment provided under subclause (2) is: (a) selected to minimise risk to health and safety, including by ensuring that the equipment is: (i) suitable having regard to the nature of the work and any hazard associated with the work, and (ii) a suitable size and fit and reasonably comfortable for the worker who is to use or wear it, and (b) maintained, repaired or replaced so that it continues to minimise risk to the worker who uses it, including by ensuring that the equipment is: (i) clean and hygienic, and (ii) in good working order, and (c) used or worn by the worker, so far as is reasonably practicable. (4) The person conducting a business or undertaking who directs the carrying out of work must provide the worker with information, training and instruction in the: (a) proper use and wearing of personal protective equipment, and (b) the storage and maintenance of personal protective equipment. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. A person conducting a business or undertaking must not charge or impose a levy on a worker for the provision of personal protective equipment (see section 273 of the Act).
286
Tooma’s Annotated Work Health and Safety Act 2011
Part 3.2 – General workplace management
cl 48
Personal protective equipment used by other persons The person conducting a business or undertaking who directs the carrying out of work must ensure, so far as is reasonably practicable, that: (a) personal protective equipment to be used or worn by any person other than a worker at the workplace is capable of minimising risk to the person’s health and safety, and (b) the person uses or wears the equipment. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 45
46
Duties of worker
(1) This clause applies if a person conducting a business or undertaking provides a worker with personal protective equipment. (2) The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The worker must not intentionally misuse or damage the equipment. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) The worker must inform the person conducting the business or undertaking of any damage to, defect in or need to clean or decontaminate any of the equipment of which the worker becomes aware. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Duty of person other than worker A person other than a worker must wear personal protective equipment at a workplace in accordance with any information, training or reasonable instruction provided by the person conducting the business or undertaking at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 47
DIVISION 6 – REMOTE OR ISOLATED WORK 48
Remote or isolated work
(1) A person conducting a business or undertaking must manage risks to the health and safety of a worker associated with remote or isolated work, in accordance with Part 3.1. Note. WHS Act—section 19 (see clause 9). © 2017 THOMSON REUTERS
287
cl 48
Chapter 3 – General risk and workplace management
(2) In minimising risks to the health and safety of a worker associated with remote or isolated work, a person conducting a business or undertaking must provide a system of work that includes effective communication with the worker. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) In this clause: assistance includes rescue, medical assistance and the attendance of emergency service workers. remote or isolated work, in relation to a worker, means work that is isolated from the assistance of other persons because of location, time or the nature of the work. DIVISION 7 – MANAGING RISKS FROM AIRBORNE CONTAMINANTS Ensuring exposure standards for substances and mixtures not exceeded 49
A person conducting a business or undertaking at a workplace must ensure that no person at the workplace is exposed to a substance or mixture in an airborne concentration that exceeds the exposure standard for the substance or mixture. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 50
Monitoring airborne contaminant levels
(1) A person conducting a business or undertaking at a workplace must ensure that air monitoring is carried out to determine the airborne concentration of a substance or mixture at the workplace to which an exposure standard applies if: (a) the person is not certain on reasonable grounds whether or not the airborne concentration of the substance or mixture at the workplace exceeds the relevant exposure standard, or (b) monitoring is necessary to determine whether there is a risk to health. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person conducting a business or undertaking at a workplace must ensure that the results of air monitoring carried out under subclause (1) are recorded, and kept for 30 years after the date the record is made. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) A person conducting a business or undertaking at a workplace must ensure that the results of air monitoring carried out under subclause (1) are readily accessible to persons at the workplace who may be exposed to the substance or mixture. Maximum penalty: 288
Tooma’s Annotated Work Health and Safety Act 2011
Part 3.2 – General workplace management
cl 54
(a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. DIVISION 8 – HAZARDOUS ATMOSPHERES 51
Managing risks to health and safety
(1) A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with a hazardous atmosphere at the workplace, in accordance with Part 3.1. Note. WHS Act—section 19 (see clause 9).
(2) An atmosphere is a hazardous atmosphere if: (a) the atmosphere does not have a safe oxygen level, or (b) the concentration of oxygen in the atmosphere increases the fire risk, or (c) the concentration of flammable gas, vapour, mist or fumes exceeds 5% of the LEL for the gas, vapour, mist or fumes, or (d) combustible dust is present in a quantity and form that would result in a hazardous area. 52
Ignition sources
(1) A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with an ignition source in a hazardous atmosphere at the workplace, in accordance with Part 3.1. Note. WHS Act—section 19 (see clause 9).
(2) This clause does not apply if the ignition source is part of a deliberate process or activity at the workplace. DIVISION 9 – STORAGE OF FLAMMABLE OR COMBUSTIBLE SUBSTANCES 53
Flammable and combustible material not to be accumulated
(1) A person conducting a business or undertaking at a workplace must ensure that, if flammable or combustible substances are kept at the workplace, the substances are kept at the lowest practicable quantity for the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In this clause, flammable or combustible substances include: (a) flammable and combustible liquids, including waste liquids, in containers, whether empty or full, and (b) gas cylinders, whether empty or full. DIVISION 10 – FALLING OBJECTS Management of risk of falling objects A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person. 54
© 2017 THOMSON REUTERS
289
cl 54
Chapter 3 – General risk and workplace management
Note. WHS Act—section 19 (see clause 9).
55
Minimising risk associated with falling objects
(1) This clause applies if it is not reasonably practicable to eliminate the risk referred to in clause 54. (2) The person conducting the business or undertaking at a workplace must minimise the risk of an object falling on a person by providing adequate protection against the risk in accordance with this clause. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including: (a) preventing an object from falling freely, so far as is reasonably practicable, or (b) if it is not reasonably practicable to prevent an object from falling freely—providing, so far as is reasonably practicable, a system to arrest the fall of a falling object. Examples. 1 Providing a secure barrier. 2 Providing a safe means of raising and lowering objects. 3 Providing an exclusion zone persons are prohibited from entering.
290
Tooma’s Annotated Work Health and Safety Act 2011
CHAPTER 4 – HAZARDOUS WORK Part 4.1 – Noise 56
Meaning of “exposure standard for noise”
(1) In this Regulation, exposure standard for noise, in relation to a person, means: (a) LAeq,8h of 85 dB(A), or (b) LC,peak of 140 dB(C). (2) In this clause: LAeq,8h means the eight-hour equivalent continuous A-weighted sound pressure level in decibels (dB(A)) referenced to 20 micropascals, determined in accordance with AS/NZS 1269.1:2005 (Occupational noise management—Measurement and assessment of noise immission and exposure). LC,peak means the C-weighted peak sound pressure level in decibels (dB(C)) referenced to 20 micropascals, determined in accordance with AS/NZS 1269.1:2005 (Occupational noise management—Measurement and assessment of noise immission and exposure). 57
Managing risk of hearing loss from noise
(1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety relating to hearing loss associated with noise. Note. WHS Act—section 19 (see clause 9).
(2) A person conducting a business or undertaking at a workplace must ensure that the noise that a worker is exposed to at the workplace does not exceed the exposure standard for noise. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 58 Audiometric testing (1) This clause applies in relation to a worker who is frequently required by the person conducting the business or undertaking to use personal protective equipment to protect the worker from the risk of hearing loss associated with noise that exceeds the exposure standard for noise. (2) The person conducting the business or undertaking who provides the personal protective equipment as a control measure must provide audiometric testing for the worker: (a) within 3 months of the worker commencing the work, and (b) in any event, at least every 2 years. Maximum penalty:
© 2017 THOMSON REUTERS
291
cl 58
Chapter 4 – Hazardous work
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) In this clause, audiometric testing means the testing and measurement of the hearing threshold levels of each ear of a person by means of pure tone air conduction threshold tests. Duties of designers, manufacturers, importers and suppliers of plant 59
(1) A designer of plant must ensure that the plant is designed so that its noise emission is as low as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A designer of plant must give to each person who is provided with the design for the purpose of giving effect to it adequate information about: (a) the noise emission values of the plant, and (b) the operating conditions of the plant when noise emission is to be measured, and (c) the methods the designer has used to measure the noise emission of the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) A manufacturer of plant must ensure that the plant is manufactured so that its noise emission is as low as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) A manufacturer of plant must give to each person to whom the manufacturer provides the plant adequate information about: (a) the noise emission values of the plant, and (b) the operating conditions of the plant when noise emission is to be measured, and (c) the methods the manufacturer has used to measure the noise emission of the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) An importer of plant must take all reasonable steps to: (a) obtain information about: (i) the noise emission values of the plant, and (ii) the operating conditions of the plant when noise emission is to be measured, and (iii) the methods the designer or manufacturer has used to measure the noise emission of the plant, and 292
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.2 – Hazardous manual tasks
cl 61
(b)
give that information to any person to whom the importer supplies the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (6) A supplier of plant must take all reasonable steps to: (a) obtain the information the designer, manufacturer or importer is required to give a supplier under subclause (2), (4) or (5), and (b) give that information to any person to whom the supplier supplies the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000.
Part 4.2 – Hazardous manual tasks 60
Managing risks to health and safety
(1) A person conducting a business or undertaking must manage risks to health and safety relating to a musculoskeletal disorder associated with a hazardous manual task, in accordance with Part 3.1. Note. WHS Act—section 19 (see clause 9).
(2) In determining the control measures to implement under subclause (1), the person conducting the business or undertaking must have regard to all relevant matters that may contribute to a musculoskeletal disorder, including: (a) postures, movements, forces and vibration relating to the hazardous manual task, and (b) the duration and frequency of the hazardous manual task, and (c) workplace environmental conditions that may affect the hazardous manual task or the worker performing it, and (d) the design of the work area, and (e) the layout of the workplace, and (f) the systems of work used, and (g) the nature, size, weight or number of persons, animals or things involved in carrying out the hazardous manual task. Duties of designers, manufacturers, importers and suppliers of plant or structures 61
(1) A designer of plant or a structure must ensure that the plant or structure is designed so as to eliminate the need for any hazardous manual task to be carried out in connection with the plant or structure. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If it is not reasonably practicable to comply with subclause (1), the designer must ensure that the plant or structure is designed so that the need for any hazardous manual task to be carried out in connection with the plant or © 2017 THOMSON REUTERS
293
cl 61
Chapter 4 – Hazardous work
structure is minimised so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The designer must give to each person who is provided with the design for the purpose of giving effect to it adequate information about the features of the plant or structure that eliminate or minimise the need for any hazardous manual task to be carried out in connection with the plant or structure. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) A manufacturer of plant or a structure must ensure that the plant or structure is manufactured so as to eliminate the need for any hazardous manual task to be carried out in connection with the plant or structure. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) If it is not reasonably practicable to comply with subclause (4), the manufacturer must ensure that the plant or structure is manufactured so that the need for any hazardous manual task to be carried out in connection with the plant or structure is minimised so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (6) The manufacturer must give to each person to whom the manufacturer provides the plant or structure adequate information about the features of the plant or structure that eliminate or minimise the need for any hazardous manual task to be carried out in connection with the plant or structure. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (7) An importer of plant or a structure must take all reasonable steps to: (a) obtain the information the designer or manufacturer is required to give under subclause (3) or (6), and (b) give that information to any person to whom the importer supplies the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (8) A supplier of plant or a structure must take all reasonable steps to: (a) obtain the information the designer, manufacturer or importer is required to give a supplier under subclause (3), (6) or (7), and 294
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.3 – Confined spaces
(b)
cl 64
give that information to any person to whom the supplier supplies the plant.
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000.
Part 4.3 – Confined spaces DIVISION 1 – PRELIMINARY 62
Confined spaces to which this Part applies (1) This Part applies to confined spaces that: (a) are entered by any person, or (b) are intended or likely to be entered by any person, or (c) could be entered inadvertently by any person.
(2) In this Part, a reference to a confined space in relation to a person conducting a business or undertaking is a reference to a confined space that is under the person’s management or control. 63
Application to emergency service workers
Clauses 67 and 68 do not apply to the entry into a confined space by an emergency service worker if, at the direction of the emergency service organisation, the worker is: (a) rescuing a person from the space, or (b) providing first aid to a person in the space. DIVISION 2 – DUTIES OF DESIGNER, MANUFACTURER, IMPORTER, SUPPLIER, INSTALLER AND CONSTRUCTOR OF PLANT OR STRUCTURE 64
Duty to eliminate or minimise risk
(1) This clause applies in relation to plant or a structure that includes a space that is, or is intended to be, a confined space. (2) A designer, manufacturer, importer or supplier of the plant or structure, and a person who installs or constructs the plant or structure, must ensure that: (a) the need for any person to enter the space and the risk of a person inadvertently entering the space are eliminated, so far as is reasonably practicable, or (b) if it is not reasonably practicable to eliminate the need to enter the space or the risk of a person inadvertently entering the space: (i) the need or risk is minimised so far as is reasonably practicable, and (ii) the space is designed with a safe means of entry and exit, and (iii) the risk to the health and safety of any person who enters the space is eliminated so far as is reasonably practicable or, if it is not reasonably practicable to eliminate the risk, the risk is minimised so far as is reasonably practicable. Maximum penalty: © 2017 THOMSON REUTERS
295
cl 64
Chapter 4 – Hazardous work
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. DIVISION 3 – DUTIES OF PERSON CONDUCTING BUSINESS OR UNDERTAKING 65
Entry into confined space must comply with this Division
A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that a worker does not enter a confined space before this Division has been complied with in relation to that space. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 66
Managing risks to health and safety
(1) A person conducting a business or undertaking must manage, in accordance with Part 3.1, risks to health and safety associated with a confined space at a workplace including risks associated with entering, working in, on or in the vicinity of the confined space (including a risk of a person inadvertently entering the confined space). Note. WHS Act—section 19 (see clause 9).
(2) A person conducting a business or undertaking must ensure that a risk assessment is conducted by a competent person for the purposes of subclause (1). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The person must ensure that a risk assessment conducted under subclause (2) is recorded in writing. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) For the purposes of subclauses (1) and (2), the person conducting a business or undertaking must have regard to all relevant matters, including the following: (a) whether the work can be carried out without the need to enter the confined space, (b) the nature of the confined space, (c) if the hazard is associated with the concentration of oxygen or the concentration of airborne contaminants in the confined space—any change that may occur in that concentration, (d) the work required to be carried out in the confined space, the range of methods by which the work can be carried out and the proposed method of working, (e) the type of emergency procedures, including rescue procedures, required. (5) The person conducting a business or undertaking must ensure that a risk assessment under this clause is reviewed and as necessary revised by a competent 296
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.3 – Confined spaces
cl 68
person to reflect any review and revision of control measures under Part 3.1. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 67 Confined space entry permit (1) A person conducting a business or undertaking at a workplace must not direct a worker to enter a confined space to carry out work unless the person has issued a confined space entry permit for the work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A confined space entry permit must: (a) be completed by a competent person, and (b) be in writing, and (c) specify the following: (i) the confined space to which the permit relates, (ii) the names of persons permitted to enter the space, (iii) the period of time during which the work in the space will be carried out, (iv) measures to control risk associated with the proposed work in the space, and (d) contain space for an acknowledgement that work in the confined space has been completed and that all persons have left the confined space. (3) The control measures specified in a confined space permit must: (a) be based on a risk assessment conducted under clause 66, and (b) include: (i) control measures to be implemented for safe entry, and (ii) details of the system of work provided under clause 69. (4) The person conducting a business or undertaking must ensure that, when the work for which the entry permit was issued is completed: (a) all workers leave the confined space, and (b) the acknowledgement referred to in subclause (2)(d) is completed by the competent person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 68 Signage (1) A person conducting a business or undertaking must ensure that signs that comply with subclause (2) are erected: (a) immediately before work in a confined space commences and while the work is being carried out, and (b) while work is being carried out in preparation for, and in the completion of, work in a confined space. Maximum penalty: © 2017 THOMSON REUTERS
297
cl 68
Chapter 4 – Hazardous work
(a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The signs must: (a) identify the confined space, and (b) inform workers that they must not enter the space unless they have a confined space entry permit, and (c) be clear and prominently located next to each entry to the space. Communication and safety monitoring A person conducting a business or undertaking must ensure that a worker does not enter a confined space to carry out work unless the person provides a system of work that includes: (a) continuous communication with the worker from outside the space, and (b) monitoring of conditions within the space by a standby person who is in the vicinity of the space and, if practicable, observing the work being carried out. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 69
70
Specific control—connected plant and services
(1) A person conducting a business or undertaking must, so far as is reasonably practicable, eliminate any risk associated with work in a confined space in either of the following circumstances: (a) the introduction of any substance or condition into the space from or by any plant or services connected to the space, (b) the activation or energising in any way of any plant or services connected to the space. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) If it is not reasonably practicable for the person to eliminate risk under subclause (1), the person must minimise that risk so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 71
Specific control—atmosphere
(1) A person conducting a business or undertaking must ensure, in relation to work in a confined space, that: (a) purging or ventilation of any contaminant in the atmosphere of the space is carried out, so far as is reasonably practicable, and (b) pure oxygen or gas mixtures with oxygen in a concentration exceeding 21% by volume are not used for purging or ventilation of any airborne contaminant in the space. Maximum penalty: 298
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.3 – Confined spaces
cl 73
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that, while work is being carried out in a confined space: (a) the atmosphere of the space has a safe oxygen level, or (b) if it is not reasonably practicable to comply with paragraph (a) and the atmosphere in the space has an oxygen level less than 19.5% by volume—any worker carrying out work in the space is provided with air supplied respiratory equipment. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) In this clause, purging means the method used to displace any contaminant from a confined space. Notes: 1 Clause 44 applies to the use of personal protective equipment, including the equipment provided under subclause (2). 2 Clause 50 applies to airborne contaminants.
72
Specific control—flammable gases and vapours
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that while work is being carried out in a confined space, the concentration of any flammable gas, vapour or mist in the atmosphere of the space is less than 5% of its LEL. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If it is not reasonably practicable to limit the atmospheric concentration of a flammable gas, vapour or mist in a confined space to less than 5% of its LEL and the atmospheric concentration of the flammable gas, vapour or mist in the space is: (a) equal to or greater than 5% but less than 10% of its LEL—the person must ensure that any worker is immediately removed from the space unless a suitably calibrated, continuous-monitoring flammable gas detector is used in the space, or (b) equal to or greater than 10% of its LEL—the person must ensure that any worker is immediately removed from the space. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Specific control—fire and explosion A person conducting a business or undertaking must ensure that an ignition source is not introduced into a confined space (from outside or within the space) if there is a possibility of the ignition source causing a fire or explosion in the space. Maximum penalty: 73
© 2017 THOMSON REUTERS
299
cl 73
Chapter 4 – Hazardous work
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 74
Emergency procedures
(1) A person conducting a business or undertaking must: (a) establish first aid procedures and rescue procedures to be followed in the event of an emergency in a confined space, and (b) ensure that the procedures are practised as necessary to ensure that they are efficient and effective. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that first aid and rescue procedures are initiated from outside the confined space as soon as practicable in an emergency. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure, in relation to any confined space, that: (a) the entry and exit openings of the confined space are large enough to allow emergency access, and (b) the entry and exit openings of the space are not obstructed, and (c) plant, equipment and personal protective equipment provided for first aid or emergency rescue are maintained in good working order. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. See Part 3.2 for general provisions relating to first aid, personal protective equipment and emergency plans.
75
Personal protective equipment in emergencies
(1) This clause applies in relation to a worker who is to enter a confined space in order to carry out first aid or rescue procedures in an emergency. (2) The person conducting the business or undertaking for which the worker is carrying out work must ensure that air supplied respiratory equipment is available for use by, and is provided to, the worker in an emergency in which: (a) the atmosphere in the confined space does not have a safe oxygen level, or (b) the atmosphere in the space has a harmful concentration of an airborne contaminant, or (c) there is a serious risk of the atmosphere in the space becoming affected in the way referred to in paragraph (a) or (b) while the worker is in the space. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 300
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.3 – Confined spaces
cl 77
(3) The person conducting the business or undertaking for which the worker is carrying out work must ensure that suitable personal protective equipment is available for use by, and is provided to, the worker in an emergency in which: (a) an engulfment has occurred inside the confined space, or (b) there is a serious risk of an engulfment occurring while the worker is in the space. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. Clause 44 applies to the use of personal protective equipment, including the equipment provided under this clause.
76
Information, training and instruction for workers
(1) A person conducting a business or undertaking must ensure that relevant workers are provided with suitable and adequate information, training and instruction in relation to the following: (a) the nature of all hazards relating to a confined space, (b) the need for, and the appropriate use of, control measures to control risks to health and safety associated with those hazards, (c) the selection, fit, use, wearing, testing, storage and maintenance of any personal protective equipment, (d) the contents of any confined space entry permit that may be issued in relation to work carried out by the worker in a confined space, (e) emergency procedures. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that a record of all training provided to a worker under this clause is kept for 2 years. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) In subclause (1), relevant worker means: (a) a worker who, in carrying out work for the business or undertaking, could: (i) enter or work in a confined space, or (ii) carry out any function in relation to work in a confined space or the emergency procedures established under clause 74, but who is not required to enter the space, or (b) any person supervising a worker referred to in paragraph (a). 77
Confined space entry permit and risk assessment must be kept (1) This clause applies if a person conducting a business or undertaking: (a) prepares a risk assessment under clause 66, or (b) issues a confined space entry permit under clause 67. (2) Subject to subclause (3), the person must keep:
© 2017 THOMSON REUTERS
301
cl 77
Chapter 4 – Hazardous work
(a) (b) Maximum (a) (b)
a copy of the risk assessment until at least 28 days after the work to which it relates is completed, and a copy of the confined space entry permit at least until the work to which it relates is completed. penalty: in the case of an individual—$1,250, or in the case of a body corporate—$6,000.
(3) If a notifiable incident occurs in connection with the work to which the assessment or permit relates, the person must keep the copy of the assessment or permit (as applicable) for at least 2 years after the incident occurs. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The person must ensure that, for the period for which the assessment or permit must be kept under this clause, a copy is available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (5) The person must ensure that, for the period for which the assessment or permit must be kept under this clause, a copy is available to any relevant worker on request. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000.
Part 4.4 – Falls Management of risk of fall
78
(1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person. Note. WHS Act—section 19 (see clause 9).
(2) Subclause (1) includes the risk of a fall: (a) in or on an elevated workplace from which a person could fall, or (b) in the vicinity of an opening through which a person could fall, or (c) in the vicinity of an edge over which a person could fall, or (d) on a surface through which a person could fall, or (e) in any other place from which a person could fall. (3) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which subclause (1) applies is carried out on the ground or on a solid construction. Maximum penalty: (a) in the case of an individual—$6,000, or 302
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.4 – Falls
(b)
cl 79
in the case of a body corporate—$30,000.
(4) A person conducting a business or undertaking must provide safe means of access to and exit from: (a) the workplace, and (b) any area within the workplace referred to in subclause (2). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) In this clause, solid construction means an area that has: (a) a surface that is structurally capable of supporting all persons and things that may be located or placed on it, and (b) barriers around its perimeter and any openings to prevent a fall, and (c) an even and readily negotiable surface and gradient, and (d) a safe means of entry and exit. 79
Specific requirements to minimise risk of fall
(1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. Examples. 1 Providing temporary work platforms. 2 Providing training in relation to the risks involved in working at the workplace. 3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs. Note. A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose.
(4) This clause does not apply in relation to the following work: (a) the performance of stunt work, (b) the performance of acrobatics, (c) a theatrical performance, (d) a sporting or athletic activity, (e) horse riding. © 2017 THOMSON REUTERS
303
cl 79
Chapter 4 – Hazardous work
Note. Clause 36 applies to the management of risk in relation to this work.
(5) In this clause, fall prevention device includes: (a) a secure fence, and (b) edge protection, and (c) working platforms, and (d) covers. Note. See clause 5(1) for definitions of fall arrest system and work positioning system.
Emergency and rescue procedures
80
(1) This clause applies if a person conducting a business or undertaking provides a fall arrest system as a control measure. (2) Without limiting clause 79, the person must establish emergency procedures, including rescue procedures, in relation to the use of the fall arrest system. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure that the emergency procedures are tested so that they are effective. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The person must provide relevant workers with suitable and adequate information, training and instruction in relation to the emergency procedures. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) In this clause, relevant worker means: (a) a worker who, in carrying out work in the business or undertaking, uses or is to use a fall arrest system, and (b) a worker who may be involved in initiating or implementing the emergency procedures.
Part 4.5 – High risk work DIVISION 1 – LICENSING OF HIGH RISK WORK Subdivision 1 – Requirement to be licensed Licence required to carry out high risk work A person must not carry out a class of high risk work unless the person holds a high risk work licence for that class of high risk work, except as provided in clause 82.
81
Notes: 1 See section 43 of the Act. 2 Schedule 3 sets out the high risk work licences and classes of high risk work that are within the scope of each licence. Schedule 4 sets out the qualifications required for a high risk work licence.
304
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
82
cl 82
Exceptions
(1) A person who carries out high risk work is not required to be licensed to carry out the work if the work is carried out: (a) in the course of training towards a certification in order to be licensed to carry out the high risk work, and (b) under the supervision of a person who is licensed to carry out the high risk work. [Subcl (1) subst Reg 61 of 2015, Sch 1[19]]
(1A) A person who holds a certification in relation to a specified VET course for high risk work is not required to be licensed to carry out the work: (a) for 60 days after the certification is issued, and (b) if the person applies for the relevant high risk work licence within that 60-day period, until: (i) the person is granted the licence, or (ii) the expiry of 28 days after the person is given written notice under clause 91(2) of a decision to refuse to grant the licence. [Subcl (1A) insrt Reg 61 of 2015, Sch 1[19]]
(1B) A person who carries out high risk work is not required to be licensed to carry out the work if the work is carried out while an accredited assessor is conducting an assessment of the person’s competency in relation to the work. [Subcl (1B) insrt Reg 61 of 2015, Sch 1[19]]
(2) A person who carries out high risk work involving plant is not required to be licensed if: (a) the work is carried out at a workplace solely for the purpose of the manufacture, testing, trialling, installation, commissioning, maintenance, servicing, repair, alteration, demolition or disposal of the plant at that workplace or moving the plant within the workplace, and (b) the plant is operated or used without a load except when standard weight loads with predetermined fixing points are used for calibration of the plant. (3) For the purposes of subclause (2)(a), moving includes operating the plant in order to load the plant onto, or unload it from, a vehicle or equipment used to move it. [Subcl (3) subst Reg 61 of 2015, Sch 1[20]]
(4) A person who carries out high risk work with a crane or hoist is not required to be licensed as a crane operator if: (a) the work is limited to setting up or dismantling the crane or hoist, and (b) the person carrying out the work holds a licence in relation to rigging, which qualifies the person to carry out the work. Note. See Schedule 3 for the classes of crane operator licence.
(5) A person who carries out high risk work with a heritage boiler is not required to be licensed as a boiler operator. [Cl 82 am Reg 61 of 2015] © 2017 THOMSON REUTERS
305
cl 83
Chapter 4 – Hazardous work
Recognition of high risk work licences in other jurisdictions
83
(1) In this Subdivision, a reference to a high risk work licence includes a reference to an equivalent licence: (a) granted under a corresponding WHS law, and (b) that is being used in accordance with the terms and conditions under which it was granted. (2) Subclause (1) does not apply to a licence that is suspended or cancelled or has expired in the corresponding jurisdiction. Duty of person conducting business or undertaking to ensure direct supervision 84
(1) A person conducting a business or undertaking must ensure that a person supervising the work of a person carrying out high risk work as required by clause 82(1) provides direct supervision of the person except in the circumstances set out in subclause (2). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. [Subcl (1) am Reg 61 of 2015, Sch 1[21]]
(2) Direct supervision of a person is not required if: (a) the nature or circumstances of a particular task make direct supervision impracticable or unnecessary, and (b) the reduced level of supervision will not place the health or safety of the supervised person or any other person at risk. (3) In this clause, direct supervision of a person means the oversight by the supervising person of the work of that person for the purposes of: (a) directing, demonstrating, monitoring and checking the person’s work in a way that is appropriate to the person’s level of competency, and (b) ensuring a capacity to respond in an emergency situation. [Cl 84 am Reg 61 of 2015]
Evidence of licence—duty of person conducting business or undertaking 85
(1) A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work for which a high risk work licence is required unless the person sees written evidence provided by the worker that the worker has the relevant high risk work licence for that work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work in the circumstances referred to in clause 82(1) unless the person sees written evidence provided by the worker that the worker is undertaking the course of training referred to in clause 82(1)(a). Maximum penalty: (a) in the case of an individual—$3,600, or 306
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
(b)
cl 87
in the case of a body corporate—$18,000.
[Subcl (2) subst Reg 61 of 2015, Sch 1[22]]
(2A) A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work in the circumstances referred to in clause 82(1A) unless the person sees written evidence provided by the worker that the worker: (a) in the circumstances referred to in clause 82(1A)(a)—holds a certification referred to in clause 82(1A), and (b) in the circumstances referred to in clause 82(1A)(b): (i) holds a certification referred to in clause 82(1A), and (ii) has applied for the relevant licence within the period referred to in clause 82(1A)(b). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. [Subcl (2A) insrt Reg 61 of 2015, Sch 1[22]]
(3) A person conducting a business or undertaking at a workplace must not direct or allow a worker to supervise high risk work as referred to in clauses 82(1) and 84 unless the person sees written evidence that the worker holds the relevant high risk work licence for that high risk work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. [Subcl (3) subst Reg 61 of 2015, Sch 1[22]]
(4) A person conducting a business or undertaking at a workplace must keep a record of the written evidence provided: (a) under subclause (1) or (2)—for at least 1 year after the high risk work is carried out, (b) under subclause (3)—for at least 1 year after the last occasion on which the worker performs the supervision work. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. [Subcl (4) am Reg 61 of 2015, Sch 1[23]] [Cl 85 am Reg 61 of 2015]
Subdivision 2 – Licensing process Who may apply for a licence Only a person who holds a qualification set out in Schedule 4 may apply for a high risk work licence.
86
87
Application for high risk work licence
(1) An application for a high risk work licence must be made in the manner and form required by the regulator. (2) The application must include the following information: © 2017 THOMSON REUTERS
307
cl 87
Chapter 4 – Hazardous work
(a) the applicant’s name and residential address, (b) a photograph of the applicant in the form required by the regulator, (c) evidence of the applicant’s age, (d) any other evidence of the applicant’s identity required by the regulator, (e) the class of high risk work licence to which the application relates, (f) a copy of a certification: (i) that is held by the applicant in relation to the specified VET course, or each of the specified VET courses, for the high risk work licence applied for, and (ii) that was issued not more than 60 days before the application is made, (g) a declaration that the applicant does not hold an equivalent licence under a corresponding WHS law, (h) a declaration as to whether or not the applicant has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law, (i) details of any conviction or finding of guilt declared under paragraph (h), (j) a declaration as to whether or not the applicant has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law, (k) details of any enforceable undertaking declared under paragraph (j), (l) if the applicant has previously been refused an equivalent licence under a corresponding WHS law, a declaration giving details of that refusal, (m) if the applicant has previously held an equivalent licence under a corresponding WHS law, a declaration: (i) describing any condition imposed on that licence, and (ii) stating whether or not that licence had been suspended or cancelled and, if so, whether or not the applicant had been disqualified from applying for any licence, and (iii) giving details of any suspension, cancellation or disqualification. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation. [Subcl (2) am Reg 61 of 2015, Sch 1[24] and [25]]
(3) The application must be accompanied by the relevant fee. [Cl 87 am Reg 61 of 2015]
Additional information
88
(1) If an application for a high risk work licence does not contain sufficient information to enable the regulator to make a decision whether or not to grant the licence, the regulator may ask the applicant to provide additional information. (2) A request for additional information must: (a) specify the date (not being less than 28 days after the request) by which the additional information is to be given, and (b) be confirmed in writing. 308
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
cl 90
(3) If an applicant does not provide the additional information by the date specified, the application is to be taken to have been withdrawn. (4) The regulator may make more than 1 request for additional information under this clause. 89
Decision on application
(1) Subject to subclause (3), the regulator must grant a high risk work licence if satisfied about the matters referred to in subclause (2). (2) The regulator must be satisfied about the following: (a) the application has been made in accordance with this Regulation, (b) the applicant does not hold an equivalent licence under a corresponding WHS law unless that licence is due for renewal, (c) the applicant: (i) resides in this jurisdiction, or (ii) resides outside this jurisdiction and circumstances exist that justify the grant of the licence, (d) the applicant is at least 18 years of age, (e) the applicant has provided the certification required under clause 87(2)(f), (f) the applicant is able to carry out the work to which the licence relates safely and competently. (3) The regulator must refuse to grant a high risk work licence if satisfied that: (a) the applicant is disqualified under a corresponding WHS law from holding an equivalent licence, or (b) the applicant, in making the application, has: (i) given information that is false or misleading in a material particular, or (ii) failed to give any material information that should have been given. (4) If the regulator decides to grant the licence, it must notify the applicant within 14 days after making the decision. (5) If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 88, the regulator is taken to have refused to grant the licence applied for. Note. A refusal to grant a high risk work licence (including under subclause (5)) is a reviewable decision (see clause 676).
90
Matters to be taken into account
For the purposes of clause 89(2)(f), the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty, (b) in relation to any equivalent licence applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the licence, and © 2017 THOMSON REUTERS
309
cl 90
Chapter 4 – Hazardous work
(ii) any condition imposed on the licence, if granted, and (iii) any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence, (c) any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law, (d) the applicant’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law. Refusal to grant high risk work licence—process
91
(1) If the regulator proposes to refuse to grant a licence, the regulator must give a written notice to the applicant: (a) informing the applicant of the reasons for the proposed refusal, and (b) advising the applicant that the applicant may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal. (2) After the date specified in a notice under subclause (1), the regulator must: (a) if the applicant has made a submission in relation to the proposed refusal to grant the licence—consider that submission, and (b) whether or not the applicant has made a submission—decide whether to grant or refuse to grant the licence, and (c) within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision. Note. A decision to refuse to grant a licence is a reviewable decision (see clause 676).
91A
Conditions of licence
(1) The regulator may impose any conditions it considers appropriate on a high risk work licence. (2) Without limiting subclause (1), the regulator may impose conditions in relation to one or more of the following: (a) control measures that must be implemented in relation to the carrying out of work or activities under the licence, (b) the circumstances in which work or activities authorised by the licence may be carried out. (3) The regulator must give the licence holder written notice of any conditions imposed on the licence. Notes: 1 A person must comply with the conditions of a licence (see section 45 of the Act). 2 A decision to impose a condition on a licence is a reviewable decision (see clause 676). [Cl 91A insrt Reg 61 of 2015, Sch 1[26]]
Duration of licence Subject to this Division, a high risk work licence takes effect on the day it is granted and, unless cancelled earlier, expires 5 years after that day. 92
93
Licence document
(1) If the regulator grants a high risk work licence, the regulator must issue to the applicant a licence document in the form determined by the regulator. 310
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
cl 95
(2) The (a) (b) (c) (d)
licence document must include the following: the name of the licence holder, a photograph of the licence holder, the date of birth of the licence holder, a copy of the signature of the licence holder or provision for the inclusion of a copy signature, (e) the class of high risk work licence and a description of the work within the scope of the licence, (f) the date on which the licence was granted, (g) the expiry date of the licence.
[Subcl (2) am Reg 61 of 2015, Sch 1[27]]
(3) For the purposes of subclause (2)(e), if the regulator grants more than 1 class of high risk work licence to a person, the licence document must contain a description of each class of licence and the work that is within the scope of each licence. (4) If a licence holder holds more than 1 high risk work licence, the regulator may issue to the licence holder one licence document in relation to some or all those licences. (5) Despite clause 92, if a licence document is issued under subclause (4), the licences to which that licence document related expire on the date that the first of those licences expires. [Cl 93 am Reg 61 of 2015]
94
Licence document to be available
(1) A licence holder must keep the licence document available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) does not apply if the licence document is not in the licence holder’s possession because: (a) it has been returned to the regulator under clause 97, or (b) the licence holder has applied for, but has not received, a replacement licence document under clause 98. 95
Reassessment of competency of licence holder
The regulator may direct a licence holder to obtain a reassessment of the competency of the licence holder to carry out the high risk work covered by the licence if the regulator reasonably believes that the licence holder may not be competent to carry out that work. Examples. 1
The training or competency assessment of the licence holder did not meet the standard required to hold the licence.
2
The regulator receives information that the licence holder has carried out high risk work incompetently.
© 2017 THOMSON REUTERS
311
cl 96
Chapter 4 – Hazardous work
Subdivision 3 – Amendment of licence document Notice of change of address The licence holder of a high risk work licence must give written notice to the regulator of a change of residential address, within 14 days of the change occurring. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000.
96
Licence holder to return licence If a high risk work licence is amended, the licence holder must return the licence document to the regulator for amendment at the written request of the regulator and within the time specified in the request. 97
Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. Replacement licence document
98
(1) A licence holder must give written notice to the regulator as soon as practicable if the licence document is lost, stolen or destroyed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If a licence document is lost, stolen or destroyed, the licence holder may apply to the regulator for a replacement document. Note. A licence holder is required to keep the licence document available for inspection (see clause 94).
(3) An application for a replacement licence document must be made in the manner and form required by the regulator. (4) The application must: (a) include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)
be accompanied by the relevant fee.
(5) The regulator must issue a replacement licence document if satisfied that the original document was lost, stolen or destroyed. (6) If the regulator refuses to issue a replacement licence document, it must give the licence holder written notice of this decision, including the reasons for the decision, within 14 days after making the decision. Note. A decision to refuse to replace a licence is a reviewable decision (see clause 676).
Voluntary surrender of licence
99
(1) A licence holder may voluntarily surrender the licence document to the regulator. (2) The licence expires on the surrender of the licence document. 312
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
cl 104
Subdivision 4 – Renewal of high risk work licence Regulator may renew licence
100
The regulator may renew a high risk work licence on application by the licence holder. Application for renewal
101
(1) An application for renewal of a high risk work licence must be made in the manner and form required by the regulator. (2) The application must include the following information: (a) the name and residential address of the applicant, (b) if required by the regulator, a photograph of the applicant in the form required by the regulator, (c) any other evidence of the applicant’s identity required by the regulator, (d) a declaration by the applicant that he or she has maintained his or her competency to carry out the high risk work, including by obtaining any reassessment directed under clause 95. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation. [Subcl (2) am Reg 61 of 2015, Sch 1[28]]
(3) The application must be accompanied by the relevant fee. (4) The application must be made before the expiry of the licence. [Cl 101 am Reg 61 of 2015]
Licence continues in force until application is decided If a licence holder applies under clause 101 for the renewal of a high risk work licence, the licence is taken to continue in force from the day it would, apart from this clause, have expired until the licence holder is given notice of the decision on the application. 102
Renewal of expired licence A person whose high risk work licence has expired may apply for a renewal of that licence: (a) within 12 months after the expiry of the licence, or (b) if the person satisfies the regulator that exceptional circumstances exist—within any longer period that the regulator allows. 103
Notes: 1
As the licence has expired, the applicant cannot carry out the work covered by the licence until the licence is renewed. An application made after a period referred to in paragraph (a) or (b) would be an application for a new licence under clause 87.
2
See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
104
Provisions relating to renewal of licence
(1) For the purposes of this Subdivision: (a) clause 88 applies as if a reference in that clause to an application for a licence were a reference to an application to renew a licence, and © 2017 THOMSON REUTERS
313
cl 104
Chapter 4 – Hazardous work
(b)
clauses 89 (except subclause (5)), 90, 91A and 92 apply as if a reference in those clauses to the grant of a licence were a reference to the renewal of a licence, and (c) clause 91 applies as if a reference in that clause to a refusal to grant a licence were a reference to a refusal to renew a licence.
[Subcl (1) am Reg 61 of 2015, Sch 1[29]]
(2) The regulator may renew a high risk work licence granted to a person under a corresponding WHS law unless that licence is renewed under that law. Note. A refusal to renew a licence is a reviewable decision (see clause 676). [Cl 104 am Reg 61 of 2015, Sch 1[30]]
105
Status of licence during review
(1) This clause applies if the regulator gives a licence holder written notice of its decision to refuse to renew the licence. (2) If the licence holder does not apply for internal review of the decision, the licence continues to have effect until the last of the following events: (a) the expiry of the licence, (b) the end of the period for applying for an internal review. (3) If the licence holder applies for an internal review of the decision, the licence continues to have effect until the earlier of the following events: (a) the licence holder withdraws the application for review, (b) the regulator makes a decision on the review. (4) If the licence holder does not apply for an external review, the licence continues to have effect until the end of the time for applying for an external review. (5) If the licence holder applies for an external review, the licence continues to have effect until the earlier of the following events: (a) the licence holder withdraws the application for review, (b) the Civil and Administrative Tribunal makes a decision on the review. [Subcl (5) am Act 95 of 2013, Sch 2.155[1]]
(6) The licence continues to have effect under this clause even if its expiry date passes. [Cl 105 am Act 95 of 2013]
Subdivision 5 – Suspension and cancellation of high risk work licence 106
Suspension or cancellation of licence
(1) The regulator may suspend or cancel a high risk work licence if satisfied about 1 or more of the following: (a) the licence holder has failed to take reasonable care to carry out the high risk work safely and competently, (ab) the licence holder has failed to comply with a condition of the licence, (b) the licence holder has failed to obtain a reassessment of competency directed under clause 95, 314
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
cl 107
(c)
the licence holder, in the application for the grant or renewal of the licence or on request by the regulator for additional information: (i) gave information that was false or misleading in a material particular, or (ii) failed to give any material information that should have been given in that application or on that request, (d) the licence was granted or renewed on the basis of a certification that was obtained on the basis of the giving of false or misleading information by any person or body or that was obtained improperly through a breach of a condition of accreditation by the accredited assessor who conducted the competency assessment. [Subcl (1) am Reg 61 of 2015, Sch 1[31]]
(2) If the regulator suspends or cancels a licence, the regulator may disqualify the licence holder from applying for: (a) a further high risk work licence of the same class, or (b) another licence under this Regulation to carry out work which requires skills that are the same as or similar to those required for the work authorised by the licence that has been suspended or cancelled. (3) If the regulator suspends a licence, the regulator may vary the conditions of the licence, including by imposing different or additional conditions. [Subcl (3) insrt Reg 61 of 2015, Sch 1[32]]
(4) A variation of conditions under subclause (3) takes effect when the suspension of the licence ends. [Subcl (4) insrt Reg 61 of 2015, Sch 1[32]] Notes: 1 A decision to suspend a licence, to cancel a licence or to disqualify the licence holder from applying for a further licence is a reviewable decision (see clause 676). 2 A variation of licence conditions is a reviewable decision (see clause 676). [Cl 106 am Reg 61 of 2015, Sch 1[32]]
107
Matters taken into account
(1) In making a decision under clause 106, the regulator must have regard to: (a) any submissions made by the licence holder under clause 108, and (b) any advice received from a corresponding regulator. (2) For the purposes of clause 106(1)(a), the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law, of which the licence holder has been convicted or found guilty, (b) in relation to any equivalent licence applied for or held by the licence holder under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the licence, and (ii) any condition imposed on the licence, if granted, and (iii) any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence, © 2017 THOMSON REUTERS
315
cl 107
Chapter 4 – Hazardous work
(c)
any enforceable undertaking the licence holder has entered into under the Act or a corresponding WHS law, (d) the licence holder’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law. 108
Notice to and submissions by licence holder
(1) Before suspending or cancelling a high risk work licence, the regulator must give the licence holder a written notice of: (a) the proposed suspension or cancellation, and (b) any proposed disqualification, and (c) any proposed variation of licence conditions. (2) A notice under subclause (1) must: (a) outline all relevant allegations, facts and circumstances known to the regulator, and (b) advise the licence holder that the licence holder may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation, any proposed disqualification and any proposed variation of licence conditions. [Cl 108 subst Reg 61 of 2015, Sch 1[33]]
109
Notice of decision
(1) The regulator must give the licence holder written notice of a decision under clause 106 to suspend or cancel a high risk work licence within 14 days after making the decision. (2) The notice must: (a) state that the licence is to be suspended or cancelled, and (b) if the licence is to be suspended, state: (i) when the suspension begins and ends, and (ii) the reasons for the suspension, and (iii) whether the licence holder is required to undergo retraining or reassessment or take any other action before the suspension ends, and (iv) whether or not the licence holder is disqualified from applying for a further licence during the suspension, and (v) if the licence conditions are to be varied—the variation, and (vi) if the licence conditions are to be varied—that the variation will take effect when the suspension ends, and (c) if the licence is to be cancelled, state: (i) when the cancellation takes effect, and (ii) the reasons for the cancellation, and (iii) whether or not the licence holder is disqualified from applying for a further licence, and (d) if the licence holder is to be disqualified from applying for a further licence, state: (i) when the disqualification begins and ends, and (ii) the reasons for the disqualification, and 316
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
cl 112
(iii)
whether or not the licence holder is required to undergo retraining or reassessment or take any other action before the disqualification ends, and (iv) any other class of high risk work licence or other licence under this Regulation the licence holder is disqualified from applying for during the period of suspension or disqualification, and (e) state when the licence document must be returned to the regulator. [Subcl (2) am Reg 61 of 2015, Sch 1[34]] [Cl 109 am Reg 61 of 2015]
110
Immediate suspension
(1) The regulator may suspend a high risk work licence on a ground referred to in clause 106 without giving notice under clause 108 if satisfied that: (a) work carried out under the high risk work licence should cease because the work may involve an imminent serious risk to the health or safety of any person, or (b) a corresponding regulator has suspended an equivalent licence held by the licence holder under this clause as applying in the corresponding jurisdiction. (2) If the regulator decides to suspend a licence under this clause: (a) the regulator must give the licence holder written notice of the suspension and the reasons for the suspension, and (b) the suspension of the licence takes effect on the giving of the notice. (3) The regulator must then: (a) give notice under clause 108 within 14 days after giving the notice under subclause (2), and (b) make its decision under clause 106. (4) If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period. (5) If the regulator gives notice under subclause (3), the licence remains suspended until the decision is made under clause 106. 111
Licence holder to return licence document
A licence holder, on receiving a notice under clause 109, must return the licence document to the regulator in accordance with the notice. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 112
Regulator to return licence document after suspension
When the period of suspension of a licence ends, the regulator must return the licence document to the licence holder within 14 days after the licence suspension ends.
© 2017 THOMSON REUTERS
317
cl 113
Chapter 4 – Hazardous work
DIVISION 2 – ACCREDITATION OF ASSESSORS Subdivision 1 – Requirement to be accredited Accreditation required to assess competency for high risk work licence 113
A person who is not an accredited assessor must not: (a) conduct a competency assessment, or (b) issue a notice of satisfactory assessment, or (c) in any other way hold himself or herself out to be an accredited assessor. Note. See section 43 of the Act.
114
Accredited assessor must act in accordance with accreditation
(1) An accredited assessor must not conduct a competency assessment unless: (a) the competency assessment relates to a class of high risk work for which the assessor is accredited, and (b) the accredited assessor conducts the competency assessment for or on behalf of an RTO. (2) An accredited assessor must not issue a notice of satisfactory assessment unless the competency assessment relates to a class of high risk work for which the assessor is accredited. (3) An accredited assessor who conducts a competency assessment must do so in accordance with the conditions of accreditation imposed under clause 121. (4) An accredited assessor who issues a notice of satisfactory assessment must do so in accordance with any conditions of accreditation imposed under clause 121. (5) Subclauses (1) to (4) do not apply if the regulator is the accredited assessor. Note. See section 43 of the Act.
Subdivision 2 – Accreditation process Regulator may accredit assessors The regulator may, under this Division, accredit persons to conduct assessments.
115
116
Application for accreditation
(1) An application for accreditation must be made in the manner and form required by the regulator. (2) The application must include the following information: (a) the name and residential address of the applicant, (b) any other evidence of the applicant’s identity required by the regulator, (c) details of the class of high risk work to which the application relates, (d) evidence that the applicant is qualified to conduct the type of competency assessment in relation to the class of high risk work to which the application relates, 318
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
(e) (f)
(g) (h)
(i) (j)
(k)
cl 118
details of any current equivalent accreditation under a corresponding WHS law, a declaration as to whether or not the applicant has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law, details of any conviction or finding of guilt declared under paragraph (f), a declaration as to whether or not the applicant has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law, details of any enforceable undertaking declared under paragraph (h), if the applicant has previously been refused an equivalent accreditation under a corresponding WHS law, a declaration giving details of that refusal, if the applicant has previously held an equivalent accreditation under a corresponding WHS law, a declaration: (i) describing any condition imposed on that accreditation, and (ii) stating whether or not that accreditation had been suspended or cancelled and, if so, whether or not the applicant had been disqualified from applying for any accreditation, and (iii) giving details of any suspension, cancellation or disqualification.
Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3) The application must be accompanied by the relevant fee. 117
Additional information
(1) If an application for accreditation does not contain sufficient information to enable the regulator to make a decision whether or not to grant the accreditation, the regulator may ask the applicant to provide additional information. (2) A request for additional information must: (a) specify the date (being not less than 28 days after the request) by which the additional information is to be given, and (b) be confirmed in writing. (3) If an applicant does not provide the additional information by the date specified, the application is taken to have been withdrawn. (4) The regulator may make more than 1 request for additional information under this clause. 118
Decision on application
(1) Subject to subclause (3), the regulator must grant an accreditation if satisfied about the matters referred to in subclause (2). (2) The regulator must be satisfied that: (a) the applicant: (i) is qualified to conduct the competency assessment to which the application relates, and © 2017 THOMSON REUTERS
319
cl 118
Chapter 4 – Hazardous work
(ii)
is able to conduct the competency assessment to which the application relates competently, and (iii) is able to ensure compliance with any conditions that will apply to the accreditation, or (b) the applicant holds a current equivalent accreditation under a corresponding WHS law. (3) The regulator must refuse to grant an accreditation if satisfied that: (a) the applicant is disqualified under a corresponding WHS law from holding an equivalent accreditation, or (b) the applicant, in making the application, has: (i) given information that is false or misleading in a material particular, or (ii) failed to give any material information that should have been given. (4) If the regulator decides to grant the accreditation, it must notify the applicant within 14 days after making the decision. (5) If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 117, the regulator is taken to have refused to grant the accreditation applied for. (6) For the purposes of subclause (2)(a)(i), an applicant is qualified to provide the competency assessment if: (a) the applicant’s competencies, skills and knowledge are in accordance with the Standards for NVR Registered Training Organisations 2011 published by the Commonwealth, and (b) the applicant holds a current high risk work licence for the class of high risk work to which the competency assessment relates. Note. A refusal to grant accreditation (including a refusal under subclause (5)) is a reviewable decision (see clause 676).
Matters to be taken into account For the purposes of clause 118(2)(a)(ii) and (iii), the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty, (b) any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law, (c) in relation to any equivalent accreditation applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the accreditation, and (ii) any condition imposed on the accreditation, if granted, and (iii) any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation, (d) the applicant’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.
119
320
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
cl 123
Refusal to grant accreditation—process
120
(1) If the regulator proposes to refuse to grant an accreditation, the regulator must give the applicant a written notice: (a) informing the applicant of the reasons for the proposed refusal, and (b) advising the applicant that the applicant may, by a specified date (being not less than 28 days after the notice is given), make a submission to the regulator in relation to the proposed refusal. (2) After the date specified in a notice under subclause (1), the regulator must: (a) if the applicant has made a submission in relation to the proposed refusal to grant the accreditation—consider that submission, and (b) whether or not the applicant has made a submission—decide whether to grant or refuse to grant the accreditation, and (c) within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision. Note. A refusal to grant an accreditation is a reviewable decision (see clause 676).
Conditions of accreditation
121
(1) The regulator may impose any conditions it considers appropriate on an accreditation. (2) Without limiting subclause (1), the regulator may impose conditions: (a) relating to the competency assessments and assessment activities that may be carried out, and (b) relating to the circumstances in which competency assessments or assessment activities may be carried out, and (c) requiring the accredited assessor to keep specified information, and (d) requiring the accredited assessor to give specified information to the regulator. Notes: 1
A person must comply with the conditions of accreditation (see section 45 of the Act).
2
A decision to impose a condition on an accreditation is a reviewable decision (see clause 676).
Duration of accreditation An accreditation takes effect on the day it is granted and, unless cancelled earlier, expires 3 years after that day. 122
123
Accreditation document
(1) If the regulator grants an accreditation, it must issue to the applicant an accreditation document in the form determined by the regulator. (2) An (a) (b) (c) (d) (e)
accreditation document must include the following: the name of the accredited assessor, the class of high risk work to which the accreditation relates, any conditions imposed on the accreditation by the regulator, the date on which the accreditation was granted, the expiry date of the accreditation.
© 2017 THOMSON REUTERS
321
cl 123
Chapter 4 – Hazardous work
(3) If an assessor is accredited to conduct a competency assessment in relation to more than 1 class of high risk work, the regulator may issue to the accredited assessor one accreditation document in relation to some or all of those classes of high risk work. (4) If 2 or more of the classes of high risk work referred to in subclause (3) represent levels of the same type of work, it is sufficient if the accreditation document contains a description of the class of work that represents the highest level. 124
Accreditation document to be available
(1) An accredited assessor must keep the accreditation document available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) An accredited assessor must make the accreditation document available for inspection by any person in relation to whom the assessor is conducting, or is to conduct, a competency assessment. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) Subclauses (1) and (2) do not apply if the accreditation document is not in the accredited assessor’s possession because: (a) it has been returned to the regulator under clause 126, or (b) the accreditation assessor has applied for, but has not received, a replacement accreditation document under clause 127. Subdivision 3 – Amendment of accreditation document 125
Changes to information
(1) An accredited assessor must give the regulator written notice of any change to any material particular in any information given at any time by the assessor to the regulator in relation to the accreditation within 14 days after the assessor becomes aware of the change. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) applies whether the information was given in the application for grant or renewal of the accreditation or in any other circumstance. Accredited assessor to return accreditation document If an accreditation is amended, the accredited assessor must return the accreditation document to the regulator for amendment at the written request of the regulator and within the time specified in the request. Maximum penalty: (a) in the case of an individual—$1,250, or 126
322
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
(b) 127
cl 130
in the case of a body corporate—$6,000.
Replacement accreditation document
(1) An accredited assessor must give written notice to the regulator as soon as practicable if the accreditation document is lost, stolen or destroyed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If an accreditation document is lost, stolen or destroyed an accredited assessor may apply to the regulator for a replacement accreditation document. Note. An accreditation holder is required to keep the accreditation document available for inspection (see clause 124).
(3) An application for a replacement accreditation document must be made in the manner and form required by the regulator. (4) The application must: (a) include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)
be accompanied by the relevant fee.
(5) The regulator must issue a replacement accreditation document if satisfied that the original document was lost, stolen or destroyed. (6) If the regulator refuses to issue a replacement accreditation document, it must give the accredited assessor written notice of this decision, including the reasons for the decision, within 14 days after making the decision. Note. A refusal to issue a replacement accreditation document is a reviewable decision (see clause 676).
128
Voluntary surrender of accreditation
(1) An accredited assessor may voluntarily surrender the accreditation document to the regulator. (2) The accreditation expires on the surrender of the accreditation document. Subdivision 4 – Renewal of accreditation Regulator may renew accreditation The regulator may renew an accreditation on the application of the accredited assessor.
129
130
Application for renewal
(1) An application for renewal of accreditation must be made in the manner and form required by the regulator. (2) An application must: (a) include the information referred to in clause 116(2), and Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation. © 2017 THOMSON REUTERS
323
cl 130
Chapter 4 – Hazardous work
(b)
be accompanied by the relevant fee.
(3) The application must be made before the expiry of the accreditation. Accreditation continues in force until application is decided If an accredited assessor applies under clause 130 for the renewal of accreditation, the accreditation is taken to continue in force from the day it would, apart from this clause, have expired until the accredited assessor is given notice of the decision on the application. 131
132
Provisions relating to application
For the purposes of this Division: (a) clause 117 applies as if a reference in that clause to an application for accreditation were a reference to an application to renew an accreditation, and (b) clauses 118 (except subclause (5)), 119, 121 and 122 apply as if a reference in those clauses to the grant of an accreditation were a reference to the renewal of an accreditation, and (c) clause 120 applies as if a reference in that clause to a refusal to grant an accreditation were a reference to a refusal to renew an accreditation. Note. A refusal to renew an accreditation is a reviewable decision (see clause 676).
Subdivision 5 – Suspension and cancellation 133
Regulator may suspend or cancel accreditation
(1) The regulator may, under this Division: (a) suspend or cancel an accreditation, and (b) if suspending an accreditation, vary the conditions of the accreditation, including by imposing different or additional conditions. (2) If the regulator cancels an accreditation, the regulator may disqualify the accredited assessor from applying for a further accreditation for a specified period. Note. A decision to suspend or cancel an accreditation, to vary the conditions of an accreditation or to disqualify an accredited assessor from applying for a further accreditation is a reviewable decision (see clause 676).
134
Suspension or cancellation of accreditation
(1) The regulator may suspend or cancel an accreditation if satisfied about 1 or more of the following: (a) the accredited assessor is no longer qualified to conduct the competency assessment specified in the assessor’s accreditation document, (b) the accredited assessor is not able to conduct the competency assessment to which the accreditation relates competently, (c) the accredited assessor has failed to comply with a condition imposed on the accreditation under clause 121, (d) the accredited assessor, in the application for the grant or renewal of accreditation or on request by the regulator for additional information: 324
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.5 – High risk work
cl 137
(i)
gave information that was false or misleading in a material particular, or (ii) failed to give any material information that should have been given in that application or on that request. (2) In subclause (1)(a), qualified has the same meaning in relation to an accredited assessor as it has in clause 118 in relation to an applicant for accreditation. 135
Matters to be taken into account
(1) In making a decision under clause 133, the regulator must have regard to: (a) any submissions made by the accredited assessor under clause 136, and (b) any advice received from a corresponding regulator. (2) For the purposes of clause 134(1)(b) and (c), the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law, of which the accredited assessor has been convicted or found guilty, (b) any enforceable undertaking the accredited assessor has entered into under the Act or a corresponding WHS law, (c) in relation to any equivalent accreditation applied for or held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the accreditation, and (ii) any condition imposed on the accreditation, if granted, and (iii) any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation, (d) any suspension of a high risk work licence held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law, (e) the accredited assessor’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law. Notice to and submissions by accredited assessor Before suspending or cancelling an accreditation, the regulator must give the accreditation holder a written notice of the proposed suspension or cancellation and any proposed disqualification: (a) outlining all relevant allegations, facts and circumstances known to the regulator, and (b) advising the accreditation holder that the accreditation holder may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation and any proposed disqualification. 136
137
Notice of decision
(1) The regulator must give the accredited assessor written notice of a decision under clause 134 to suspend or cancel the accreditation within 14 days after making the decision. © 2017 THOMSON REUTERS
325
cl 137
Chapter 4 – Hazardous work
(2) The notice must: (a) state that the accreditation is to be suspended or cancelled, and (b) if the accreditation is to be suspended, state: (i) when the suspension begins and ends, and (ii) the reasons for the suspension, and (iii) whether or not the accredited assessor is required to undergo retraining or reassessment or take any other action before the suspension ends, and (iv) whether any variation is to be made to the conditions of accreditation, and (v) whether or not the accredited assessor is disqualified from obtaining a further accreditation during the suspension, and (c) if the accreditation is to be cancelled, state: (i) when the cancellation takes effect, and (ii) the reasons for the cancellation, and (iii) whether or not the accredited assessor is disqualified from applying for a further accreditation, and (d) if the accredited assessor is to be disqualified from obtaining a further accreditation, state: (i) when the disqualification begins and ends, and (ii) the reasons for the disqualification, and (iii) whether or not the accredited assessor is required to undergo retraining or reassessment or take any other action before the disqualification ends, and (e) state when the accreditation document must be returned to the regulator. 138
Immediate suspension
(1) The regulator may suspend an accreditation on a ground referred to in clause 134 without giving notice under clause 136 if satisfied that a person may be exposed to an imminent serious risk to his or her health or safety if the accreditation were not suspended. (2) If the regulator decides to suspend an accreditation under this clause: (a) the regulator must give the accredited assessor written notice of the suspension and the reasons for the suspension, and (b) the suspension takes effect on the giving of the notice. (3) The regulator must then: (a) give notice under clause 136 within 14 days after giving the notice under subclause (2), and (b) make its decision under clause 134. (4) If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period. (5) If the regulator gives notice under subclause (3), the accreditation remains suspended until the decision is made under clause 134. 326
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.6 – Demolition work
cl 142
Accredited assessor to return accreditation document An accredited assessor, on receiving a notice under clause 137, must return the accreditation document to the regulator in accordance with that notice. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 139
Regulator to return accreditation document after suspension The regulator must return the accreditation document to the accredited assessor within 14 days after the suspension ends. 140
Subdivision 6 – Agreements with RTOs Regulator may enter into agreement with RTO The regulator may enter into an agreement with an RTO to share information to assist the regulator in relation to the accreditation of assessors.
141
Part 4.6 – Demolition work DIVISION 1 – NOTICE OF DEMOLITION WORK 142
Notice of demolition work
(1) Subject to subclause (4), a person conducting a business or undertaking who proposes to carry out any of the following demolition work must ensure that written notice is given to the regulator in accordance with this clause at least 5 days before the work commences: (a) demolition of a structure, or a part of a structure that is loadbearing or otherwise related to the physical integrity of the structure, that is at least 6 metres in height, (b) demolition work involving load shifting machinery on a suspended floor, (c) demolition work involving explosives. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(2) The notice must be given in the manner and form required by the regulator. (3) Subclause (4) applies to an emergency service organisation in relation to demolition work carried out or proposed to be carried out by an emergency service worker at the direction of the emergency service organisation in responding to an emergency. (4) An emergency service organisation must give notice under subclause (1) as soon as practicable (whether before or after the work is carried out). (5) In this clause a reference to the height of a structure is a reference to the height of the structure measured from the lowest level of the ground immediately adjacent to the base of the structure at the point at which the height is to be measured to its highest point. © 2017 THOMSON REUTERS
327
cl 143
Chapter 4 – Hazardous work
DIVISION 2 – LICENSING OF DEMOLITION WORK 143
Demolition work required to be licensed
Note. Not adopted in NSW. See clause 64 of Schedule 18B (Savings and transitional provisions).
Part 4.7 – General electrical safety in workplaces and energised electrical work DIVISION 1 – PRELIMINARY 144
Meaning of “electrical equipment”
(1) In this Part, electrical equipment means any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that: (a) is used for controlling, generating, supplying, transforming or transmitting electricity at a voltage greater than extra-low voltage, or (b) is operated by electricity at a voltage greater than extra-low voltage, or (c) is part of an electrical installation located in an area in which the atmosphere presents a risk to health and safety from fire or explosion, or (d) is, or is part of, an active impressed current cathodic protection system within the meaning of AS 2832.1:2004 (Cathodic protection of metals—Pipes and cables). (2) In this Part, electrical equipment does not include any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that is part of a motor vehicle if: (a) the equipment is part of a unit of the vehicle that provides propulsion for the vehicle, or (b) the electricity source for the equipment is a unit of the vehicle that provides propulsion for the vehicle. (3) In this clause, motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle. 145 Meaning of “electrical installation” (1) In this Part, electrical installation means a group of items of electrical equipment that: (a) are permanently electrically connected together, and (b) can be supplied with electricity from the works of an electricity supply authority or from a generating source. (2) An item of electrical equipment may be part of more than 1 electrical installation. (3) In subclause (1)(a): (a) an item of electrical equipment connected to electricity by a plug and socket outlet is not permanently electrically connected, and (b) connection achieved through using works of an electricity supply authority is not a consideration in determining whether or not electrical equipment is electrically connected. 146 Meaning of “electrical work” (1) In this Part, electrical work means: 328
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.7 – General electrical safety in workplaces and energised electrical work
cl 147
(a)
connecting electricity supply wiring to electrical equipment or disconnecting electricity supply wiring from electrical equipment, or (b) installing, removing, adding, testing, replacing, repairing, altering or maintaining electrical equipment or an electrical installation. (2) In this Part, electrical work does not include the following: (a) work that involves connecting electrical equipment to an electricity supply by means of a flexible cord plug and socket outlet, (b) work on a non-electrical component of electrical equipment, if the person carrying out the work is not exposed to an electrical risk, Example. Painting electrical equipment covers and repairing hydraulic components of an electrical motor.
(c)
replacing electrical equipment or a component of electrical equipment if that task can be safely performed by a person who does not have expertise in carrying out electrical work, Example. Replacing a fuse or a light bulb.
(d) (e)
(f)
(g)
(h)
assembling, making, modifying or repairing electrical equipment as part of a manufacturing process, building or repairing ducts, conduits or troughs, where electrical wiring is or will be installed if: (i) the ducts, conduits or troughs are not intended to be earthed, and (ii) the wiring is not energised, and (iii) the work is supervised by an authorised electrician, locating or mounting electrical equipment, or fixing electrical equipment in place, if this task is not performed in relation to the connection of electrical equipment to an electricity supply, assisting an authorised electrician to carry out electrical work if: (i) the assistant is directly supervised by the authorised electrician, and (ii) the assistance does not involve physical contact with any energised electrical equipment, carrying out electrical work, other than work on energised electrical equipment, in order to meet eligibility requirements in relation to becoming an authorised electrician.
(3) In this clause, authorised electrician means a person who is authorised under the Home Building Act 1989 to do electrical wiring work. DIVISION 2 – GENERAL RISK MANAGEMENT Risk management A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with electrical risks at the workplace, in accordance with Part 3.1. 147
Example. Electrical risks associated with the design, construction, installation, protection, maintenance and testing of electrical equipment and electrical installations at a workplace. Note. WHS Act—section 19 (see clause 9). © 2017 THOMSON REUTERS
329
cl 148
Chapter 4 – Hazardous work
DIVISION 3 – ELECTRICAL EQUIPMENT AND ELECTRICAL INSTALLATIONS Electrical equipment and electrical installations to which this Division applies 148
In this Division, a reference to electrical equipment or an electrical installation in relation to a person conducting a business or undertaking is a reference to electrical equipment or an electrical installation that is under the person’s management or control. 149
Unsafe electrical equipment
(1) A person conducting a business or undertaking at a workplace must ensure that any unsafe electrical equipment at the workplace: (a) is disconnected (or isolated) from its electricity supply, and (b) once disconnected (or isolated): (i) is not reconnected until it is repaired or tested and found to be safe, or (ii) is replaced or permanently removed from use. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) For the purposes of this clause, electrical equipment or a component of electrical equipment is unsafe if there are reasonable grounds for believing it to be unsafe. 150
Inspection and testing of electrical equipment
(1) A person conducting a business or undertaking at a workplace must ensure that electrical equipment is regularly inspected and tested by a competent person if the electrical equipment is: (a) supplied with electricity through an electrical socket outlet, and (b) used in an environment in which the normal use of electrical equipment exposes the equipment to operating conditions that are likely to result in damage to the equipment or a reduction in its expected life span, including conditions that involve exposure to moisture, heat, vibration, mechanical damage, corrosive chemicals or dust. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) In the case of electrical equipment that is new and unused at the workplace, the person conducting the business or undertaking: (a) is not required to comply with subclause (1), and (b) must ensure that the equipment is inspected for obvious damage before being used. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Note. However, electrical equipment that is unsafe must not be used (see clause 149).
330
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.7 – General electrical safety in workplaces and energised electrical work
cl 153
(3) The person must ensure that a record of any testing carried out under subclause (1) is kept until the electrical equipment is: (a) next tested, or (b) permanently removed from the workplace or disposed of. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The record of testing: (a) must specify the following: (i) the name of the person who carried out the testing, (ii) the date of the testing, (iii) the outcome of the testing, (iv) the date on which the next testing must be carried out, and (b) may be in the form of a tag attached to the electrical equipment tested. Untested electrical equipment not to be used A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that electrical equipment is not used if the equipment: (a) is required to be tested under clause 150, and (b) has not been tested. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 151
DIVISION 4 – ELECTRICAL WORK ON ENERGISED ELECTRICAL EQUIPMENT Application of Division 4 This Division does not apply to work carried out: (a) by or on behalf of an electricity supply authority on the electrical equipment, including electric line-associated equipment, controlled or operated by the authority to generate, transform, transmit or supply electricity, or (b) by a person accredited to provide contestable services within the meaning of Part 3 of the Electricity Supply (Safety and Network Management) Regulation 2014, but only while the accredited person is providing the contestable services or carrying out other work authorised by an electricity supply authority.
152
[Cl 152 subst Reg 61 of 2015, Sch 1[35]]
Persons conducting a business or undertaking to which this Division applies In this Division (except clauses 156, 159 and 160), a reference to a person conducting a business or undertaking in relation to electrical work is a reference to the person conducting the business or undertaking who is carrying out the electrical work. 153
© 2017 THOMSON REUTERS
331
cl 154
Chapter 4 – Hazardous work
Electrical work on energised electrical equipment—prohibited Subject to this Division, a person conducting a business or undertaking must ensure that electrical work is not carried out on electrical equipment while the equipment is energised. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 154
155
Duty to determine whether equipment is energised
(1) A person conducting a business or undertaking must ensure that, before electrical work is carried out on electrical equipment, the equipment is tested by a competent person to determine whether or not it is energised. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. Clause 157 allows electrical testing to be carried out on electrical equipment for the purposes of this clause. Clause 161 sets out how the testing is to be carried out.
(2) The person conducting a business or undertaking must ensure that: (a) each exposed part is treated as energised until it is isolated and determined not to be energised, and (b) each high-voltage exposed part is earthed after being de-energised. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. De-energised equipment must not be inadvertently re-energised A person conducting a business or undertaking must ensure that electrical equipment that has been de-energised to allow electrical work to be carried out on it is not inadvertently re-energised while the work is being carried out. 156
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Electrical work on energised electrical equipment—when permitted 157
(1) A person conducting a business or undertaking must ensure that electrical work on energised electrical equipment is not carried out unless: (a) it is necessary in the interests of health and safety that the electrical work is carried out on the equipment while the equipment is energised, or Example. It may be necessary that life-saving equipment remain energised and operating while electrical work is carried out on the equipment.
(b)
it is necessary that the electrical equipment to be worked on is energised in order for the work to be carried out properly, or (c) it is necessary for the purposes of testing required under clause 155, or
332
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.7 – General electrical safety in workplaces and energised electrical work
(d) Maximum (a) (b)
cl 159
there is no reasonable alternative means of carrying out the work. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
(2) The electrical work that may be carried out under subclause (1)(a), (b) and (d) may include testing of the energised electrical equipment. 158
Preliminary steps
(1) A person conducting a business or undertaking must ensure the following before electrical work on energised electrical equipment commences: (a) a risk assessment is conducted in relation to the proposed electrical work, (b) the area where the electrical work is to be carried out is clear of obstructions so as to allow for easy access and exit, (c) the point at which the electrical equipment can be disconnected or isolated from its electricity supply is: (i) clearly marked or labelled, and (ii) clear of obstructions so as to allow for easy access and exit by the worker who is to carry out the electrical work or any other competent person, and (iii) capable of being operated quickly, (d) the person authorises the electrical work after consulting with the person with management or control of the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) For the purposes of subclause (1)(a), the risk assessment must be: (a) conducted by a competent person, and (b) recorded. Note. Clause 12 permits risk assessments to be conducted, in certain circumstances, in relation to a class of hazards, tasks, things or circumstances. [Subcl (2) am Reg 61 of 2015, Sch 1[36]]
(3) Subclause (1)(c) does not apply to electrical work on electrical equipment if: (a)
the work is to be carried out on the supply side of the main switch on the main switchboard for the equipment, and (b) the point at which the equipment can be disconnected from its electricity supply is not reasonably accessible from the work location. [Cl 158 am Reg 61 of 2015]
Unauthorised access to equipment being worked on A person conducting a business or undertaking must ensure that only persons authorised by the person conducting the business or undertaking enter the immediate area in which electrical work on energised electrical equipment is being carried out. Maximum penalty: 159
© 2017 THOMSON REUTERS
333
cl 159
Chapter 4 – Hazardous work
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Contact with equipment being worked on A person conducting a business or undertaking must ensure that, while electrical work is being carried out on energised electrical equipment, all persons are prevented from creating an electrical risk by inadvertently making contact with an exposed energised component of the equipment. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 160
161
How the work is to be carried out
(1) A person conducting a business or undertaking must ensure that electrical work on energised electrical equipment is carried out: (a) by a competent person who has tools, testing equipment and personal protective equipment that: (i) are suitable for the work, and (ii) have been properly tested, and (iii) are maintained in good working order, and (b) in accordance with a safe work method statement prepared for the work, and (c) subject to subclause (5), with a safety observer present who has the competence and qualifications specified in subclause (4). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the person who carries out the electrical work uses the tools, testing equipment and personal protective equipment properly. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) For the purposes of subclause (1)(b), the safe work method statement must: (a) identify the electrical work, and (b) specify hazards associated with that electrical work and risks associated with those hazards, and (c) describe the measures to be implemented to control the risks, and (d) describe how the risk control measures are to be implemented, monitored and reviewed. (4) For the purposes of subclause (1)(c): (a) the safety observer must be competent: (i) to implement control measures in an emergency, and (ii) to rescue and resuscitate the worker who is carrying out the work, if necessary, and 334
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.7 – General electrical safety in workplaces and energised electrical work
(b)
cl 162
the safety observer must have been assessed in the previous 12 months as competent to rescue and resuscitate a person.
[Subcl (4) am Reg 61 of 2015, Sch 1[37]]
(5) A safety observer is not required if: (a) the work consists only of testing, and (b) the person conducting the business or undertaking has conducted a risk assessment under clause 158(1)(a) that shows that there is no serious risk associated with the proposed work. [Cl 161 am Reg 61 of 2015]
162
Record keeping
(1) This clause applies if a person conducting a business or undertaking prepares: (a) a risk assessment under clause 158, or (b) a safe work method statement under clause 161. (2) Subject to subclause (3), the person must keep: (a) a copy of the risk assessment until at least 28 days after the work to which it relates is completed, and (b) a copy of the safe work method statement until the work to which it relates is completed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) If a notifiable incident occurs in connection with the work to which the assessment or statement relates, the person must keep the assessment or statement (as applicable) for at least 2 years after the incident occurs. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The person must ensure that, for the period for which the assessment or statement must be kept under this clause, a copy is readily accessible to any worker engaged by the person to carry out electrical work to which the assessment or statement relates. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (5) The person must ensure that, for the period for which the assessment or statement must be kept under this clause, a copy is available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. © 2017 THOMSON REUTERS
335
cl 163
Chapter 4 – Hazardous work
DIVISION 5 – ELECTRICAL EQUIPMENT AND INSTALLATIONS AND CONSTRUCTION WORK—ADDITIONAL DUTIES 163
Duty of person conducting business or undertaking
(1) A person conducting a business or undertaking that includes the carrying out of construction work must comply with AS/NZS 3012:2010 (Electrical installations—Construction and demolition sites). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) For the purposes of subclause (1), AS/NZS 3012:2010 (Electrical installations—Construction and demolition sites) applies as if any term that is defined in that Standard and that is also defined in the Act or this Regulation has the same meaning as it has in the Act or this Regulation. (3) If any requirement in AS/NZS 3012:2010 (Electrical installations—Construction and demolition sites) deals with the same matter as a requirement under this Part, it is sufficient that the person conducting the business or undertaking complies with the requirement in AS/NZS 3012:2010 as modified by subclause (2). DIVISION 6 – RESIDUAL CURRENT DEVICES 164
Use of socket outlets in hostile operating environment
(1) This clause applies in the following circumstances: (a) electrical equipment is used in an environment in which the normal use of electrical equipment exposes the equipment to operating conditions that are likely to result in damage to the equipment or a reduction in its expected life span, including conditions that involve exposure to moisture, heat, vibration, mechanical damage, corrosive chemicals or dust, (b) electrical equipment is moved between different locations in circumstances where damage to the equipment or to a flexible electricity supply cord is reasonably likely, (c) electrical equipment is frequently moved during its normal use, (d) electrical equipment forms part of, or is used in connection with, an amusement device. (2) In a circumstance set out in subclause (1), a person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that any electrical risk associated with the supply of electricity to the electrical equipment through a socket outlet is minimised by the use of an appropriate residual current device. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) Without limiting subclause (2), the residual current device must have a tripping current that does not exceed 30 milliamps if electricity is supplied to the equipment through a socket outlet not exceeding 20 amps. 336
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.7 – General electrical safety in workplaces and energised electrical work
cl 166
(4) Subclause (2) does not apply if the supply of electricity to the electrical equipment: (a) does not exceed 50 volts alternating current, or (b) is direct current, or (c) is provided through an isolating transformer that provides at least an equivalent level of protection, or (d) is provided from a non-earthed socket outlet supplied by an isolated winding portable generator that provides at least an equivalent level of protection. Notes: 1 This clause commences on 1 January 2013 (see clause 2(2)). 2 Residual current devices are also regulated under the Electricity (Consumer Safety) Act 2004.
165
Testing of residual current devices
(1) A person with management or control of a workplace must take all reasonable steps to ensure that residual current devices used at the workplace are tested regularly by a competent person to ensure that the devices are operating effectively. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The person must keep a record of all testing of a residual current device (other than any testing conducted daily) until the earlier of the following occurs: (a) the device is next tested, (b) the device is permanently removed from use. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. DIVISION 7 – OVERHEAD AND UNDERGROUND ELECTRIC LINES 166
Duty of person conducting a business or undertaking
(1) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If it is not reasonably practicable to ensure the safe distance of a person, plant or thing from an overhead or underground electric line, the person conducting the business or undertaking at the workplace must ensure that: (a) a risk assessment is conducted in relation to the proposed work, and (b) control measures implemented are consistent with: (i) the risk assessment, and (ii) if an electricity supply authority is responsible for the electric line, any requirements of the authority. Maximum penalty: © 2017 THOMSON REUTERS
337
cl 166
Chapter 4 – Hazardous work
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. The Electricity (Consumer Safety) Act 2004 and the Electricity Supply (Safety and Network Management) Regulation 2008 also apply to the person conducting the business or undertaking.
Part 4.8 – Diving work DIVISION 1 – PRELIMINARY Purpose of Part 4.8 The purpose of this Part is to impose duties on a person conducting a business or undertaking at a workplace to ensure: (a) the fitness and competence of persons who carry out general diving work and high risk diving work, and (b) the health and safety of persons who carry out general diving work and high risk diving work, and (c) the health and safety of other persons at workplaces where general diving work or high risk diving work is carried out. 167
[Cl 167 am Reg 61 of 2015, Sch 1[38]]
DIVISION 2 – GENERAL DIVING WORK—FITNESS AND COMPETENCE OF WORKER Person conducting business or undertaking must ensure fitness of workers 168
(1) A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out general diving work or undergo training for general diving work unless the worker holds a current certificate of medical fitness. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must not direct or allow a worker to carry out general diving work or undergo training for diving work unless the work or training complies with any conditions on the current certificate of medical fitness of the worker. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 169
Certificate of medical fitness
A certificate of medical fitness must: (a) be issued by a registered medical practitioner with training in underwater medicine, and [Para (a) am Reg 61 of 2015, Sch 1[39]]
(b)
338
state (i) (ii) (iii)
the following: the name of the person to whom it is issued, its date of issue and its expiry date, whether or not the person to whom it is issued is, in accordance with the fitness criteria, medically fit to carry out diving work, Tooma’s Annotated Work Health and Safety Act 2011
Part 4.8 – Diving work
(iv)
cl 171A
any conditions in relation to the type of diving work the person to whom it is issued is fit to carry out, or the circumstances in which the person is fit to carry out general diving work, including, in the case of a person who is under 18 years of age, any particular conditions applicable to the age of the person.
[Cl 169 am Reg 61 of 2015]
Duty to keep certificate of medical fitness A person conducting a business or undertaking at a workplace must keep the certificate of medical fitness of a worker who carries out general diving work for 1 year after the work is carried out. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 170
Competence of worker—general diving work—general qualifications 171
(1) A person must not carry out any type of general diving work unless the person holds a certificate for general diving work, issued by a training organisation, that demonstrates that the person has acquired the relevant competencies for that type of general diving work. (2) This clause does not apply in relation to incidental diving work or limited diving work. (3) In subclause (1), relevant competencies means the competencies specified in AS 4005.2:2000 (Training and certification of recreational divers) or AS/NZS 2815 (Training and certification of occupational divers) that are relevant to the type of general diving work to which subclause (1) applies. Note: See section 44 of the Act. [Cl 171 subst Reg 61 of 2015, Sch 1[40]]
Competence of worker—general diving work—additional knowledge and skill 171A
(1) In addition to clause 171, a person must not carry out general diving work unless the person has, through training, qualification or experience, acquired sound knowledge and skill in relation to the following: (a) the application of diving physics, (b) the use, inspection and maintenance of diving equipment (including emergency equipment) and air supply of the type to be used in the proposed general diving work, (c) the use of decompression tables or dive computers, (d) dive planning, (e) ways of communicating with another diver and with persons at the surface during general diving work, (f) how to safely carry out general diving work of the type proposed to be carried out, (g) diving physiology, emergency procedures and first aid. Note: See section 44 of the Act. © 2017 THOMSON REUTERS
339
cl 171A
Chapter 4 – Hazardous work
(2) This clause does not apply in relation to incidental diving work or limited scientific diving work. [Cl 171A insrt Reg 61 of 2015, Sch 1[40]]
172
Competence of worker—incidental diving work
(1) A person must not carry out incidental diving work unless the person: (a) has the knowledge and skill referred to in clause 171A, and (b) has relevant diving experience, and (c) is accompanied and supervised in the water by a person who has the competencies referred to in clause 171. Note: See section 44 of the Act.
(2) In this clause, a person has relevant diving experience if the person has logged at least 15 hours of diving, of which at least 8 hours and 20 minutes were spent diving between 10 metres above and any depth below the maximum depth at which the diving work is to be carried out. [Cl 172 subst Reg 61 of 2015, Sch 1[40]]
173
Competence of worker—limited scientific diving work
(1) A person who is not permanently resident in Australia must not carry out limited scientific diving work unless the person has: (a) the training, qualification or experience referred to in clause 171A, and (b) relevant diving experience, including relevant diving experience obtained outside Australia. Note. See section 44 of the Act. [Subcl (1) am Reg 61 of 2015, Sch 1[41]]
(2) In this clause, a person has relevant diving experience if the person has logged at least 60 hours diving of which at least 8 hours and 20 minutes were spent diving between 10 metres above and any depth below the maximum depth at which the limited scientific diving work is to be carried out. [Cl 173 am Reg 61 of 2015]
Competence of competent person supervising general diving work A person appointed under clause 177 must not perform any function associated with that appointment unless the person has: (a) the qualification specified in clause 171, and 174
[Para (a) am Reg 61 of 2015, Sch 1[42]]
(b)
experience in the type of diving work to be supervised.
Note. See section 44 of the Act. [Cl 174 am Reg 61 of 2015]
Evidence of competence—duty of person conducting business or undertaking 175
(1) A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out general diving work unless the person sees written evidence provided by the worker that the worker has the relevant competence required under this Division. Maximum penalty: 340
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.8 – Diving work
cl 177
(a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) A person conducting a business or undertaking at a workplace must not direct or allow a person appointed under clause 177 to perform any of the functions associated with that appointment unless the person conducting the business or undertaking sees written evidence provided by the person appointed that the person appointed has the competence required under clause 174. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. [Subcl (2) am Reg 61 of 2015, Sch 1[43]]
(3) A person conducting a business or undertaking must keep the written evidence given to the person: (a) under subclause (1)—for at least 1 year after the diving work is carried out, (b) under subclause (2)—for at least 1 year after the last occasion on which the person performs a function associated with the appointment. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. [Cl 175 am Reg 61 of 2015]
DIVISION 3 – MANAGING RISKS—GENERAL DIVING WORK 176
Management of risks to health and safety
(1) A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with general diving work, in accordance with Part 3.1. Note. WHS Act—section 19 (see clause 9).
(2) A person conducting a business or undertaking must ensure that a risk assessment is conducted by a competent person for the purposes of subclause (1). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The person must ensure that a risk assessment conducted under subclause (2) is recorded in writing. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. Appointment of competent person to supervise diving work A person conducting a business or undertaking at a workplace must appoint 1 or more competent persons to: (a) supervise general diving work carried out in the business or undertaking, and 177
© 2017 THOMSON REUTERS
341
cl 177
Chapter 4 – Hazardous work
(b) Maximum (a) (b)
perform other functions under this Division. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
Note. See clause 174 for the qualifications of the competent person.
178
Additional control—dive plan
(1) A person conducting a business or undertaking at a workplace must not direct or allow general diving work to be carried out unless a dive plan for the dive: (a) is prepared by a competent person appointed under clause 177, or (b) has been prepared by a competent person appointed under clause 177 on an earlier occasion for a similar dive. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A dive plan must state the following: (a) the method of carrying out the diving work to which it relates, (b) the tasks and duties of each person involved in the dive, (c) the diving equipment, breathing gases and procedures to be used in the dive, (d) as applicable, dive times, bottom times and decompression profiles, (e) hazards relating to the dive and measures to be implemented in the control of risks associated with those hazards, (f) emergency procedures. 179
Dive plan must be complied with
(1) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that general diving work is carried out in accordance with the dive plan prepared for it. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person conducting a business or undertaking must ensure that a competent person appointed by the person under clause 177 gives workers instruction in relation to the dive plan before commencing the diving work to which the plan relates. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Additional control—dive safety log to be kept A person conducting a business or undertaking at a workplace where general diving work is carried out must keep a dive safety log that contains the following information about each dive carried out by a worker: (a) the name of the worker who carries out the dive, 180
342
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.8 – Diving work
cl 181
(b) the name of any other person with whom the dive is carried out, (c) the name of the competent person appointed under clause 177 to supervise the diving work, (d) the date and location of the dive, (e) the time each diver enters and leaves the water, (f) the maximum depth of the dive, (g) any incident, difficulty, discomfort or injury that occurs or is experienced during the dive, (h) if the dive was carried out using a dive computer—the dive time, (i) if the dive was carried out using dive tables—the repetitive dive group, if available, and either the bottom time or the dive time, (j) if the repetitive group and surface interval result in a repetitive factor—the surface interval and the repetitive factor, (k) if the dive is carried out using EANx: (i) the oxygen content of the EANx, and (ii) the maximum operating depth of the EANx, (l) if the dive is carried out using mixed gas: (i) the oxygen content and the nitrogen content (if any) of the gas, and (ii) the maximum operating depth of the mixed gas, and (iii) the minimum operating depth of the bottom mix. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 181 Use of dive safety log (1) This clause applies to a person conducting a business or undertaking at a workplace where general diving work is carried out. (2) The person conducting the business or undertaking must ensure that, after each dive carried out in connection with the general diving work is completed, the return of each diver is verified in the dive safety log, as soon as practicable after the return, by: (a) the diver, and (b) a competent person appointed under clause 177 to supervise the diving work. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) If workers are carrying out general diving work from a vessel, the person conducting the business or undertaking must ensure that a competent person appointed under clause 177 to supervise the diving work makes and verifies entries in the dive safety log of the number of workers and other persons on board the vessel: (a) before the diving work commences, and (b) before the vessel leaves the location after the diving work is completed. Maximum penalty: © 2017 THOMSON REUTERS
343
cl 181
Chapter 4 – Hazardous work
(a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The person conducting the business or undertaking must ensure that the dive safety log is kept for at least 1 year after the last entry is made. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (5) In this clause, an event is verified in the dive safety log: (a) by signing, or (b) if the log is electronic, by entering the verifier’s unique identifier. 182
Record keeping
(1) This clause applies if a person conducting a business or undertaking prepares: (a) a risk assessment under clause 176, or (b) a dive plan under clause 178. (2) Subject to subclause (3), the person must keep: (a) a copy of the risk assessment until at least 28 days after the work to which it relates is completed, and (b) a copy of the dive plan until the work to which it relates is completed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) If a notifiable incident occurs in connection with the work to which the assessment or dive plan relates, the person must keep the assessment or dive plan (as applicable) for at least 2 years after the incident occurs. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The person must ensure that, for the period for which the assessment or dive plan must be kept under this clause, a copy is readily accessible to any worker engaged by the person to carry out the work to which the assessment or dive plan relates. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (5) The person must ensure that, for the period for which the assessment or dive plan must be kept under this clause, a copy is available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 344
Tooma’s Annotated Work Health and Safety Act 2011
Part 4.8 – Diving work
cl 184
DIVISION 4 – HIGH RISK DIVING WORK Duties of person conducting business or undertaking A person conducting a business or undertaking at a workplace where high risk diving work is carried out must ensure that the following are in accordance with AS/NZS 2299.1:2007 (Occupational diving operations—Standard operational practice): (a) the fitness of persons carrying out the work, (b) the competence of persons carrying out the work,
183
Note. See section 44 of the Act.
(c) Maximum (a) (b)
the carrying out of the work. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
Duty of worker—competence A person must not carry out high risk diving work unless the person has the qualifications, knowledge, skills and experience required by AS/NZS 2299.1:2007 (Occupational diving operations—Standard operational practice) for work of the kind to be carried out by the person. 184
Note. See section 44 of the Act.
© 2017 THOMSON REUTERS
345
CHAPTER 5 – PLANT AND STRUCTURES Part 5.1 – General duties for plant and structures Note. If a jurisdiction enacts Schedule 1 of the Act, this Part will extend to plant outside the workplace as provided for in that Schedule.
DIVISION 1 – PRELIMINARY 185
Application of Part 5.1 to plant
(1) Subject to this clause, this Part applies to all plant. (2) Subject to subclause (3), this Part does not apply to plant that: (a) relies exclusively on manual power for its operation, and (b) is designed to be primarily supported by hand. (3) This Part applies to explosive power tools that are designed to be supported by hand. 186
Application of Part 5.1 to structures
This Part applies to structures as provided in this Part. DIVISION 2 – DUTIES OF PERSONS CONDUCTING BUSINESSES OR UNDERTAKINGS THAT DESIGN PLANT Provision of information to manufacturer A designer of plant must ensure, when the design of the plant is made available to the manufacturer of the plant, that the manufacturer is provided with: (a) information to enable the plant to be manufactured in accordance with the design specifications, and (b) if applicable, information about: (i) the installation, commissioning, decommissioning, use, handling, storage and, if the plant is capable of being dismantled, dismantling of the plant, and (ii) the hazards and risks associated with the use of the plant that the designer has identified, and (iii) testing or inspections to be carried out on the plant, and (iv) the systems of work and competency of operators that are necessary for the safe use of the plant, and (v) the emergency procedures (if any) that are required to be implemented if there is a malfunction of the plant. Maximum penalty: (a) in the case of an individual—$3,600, or 187
© 2017 THOMSON REUTERS
347
cl 187
Chapter 5 – Plant and structures
(b)
in the case of a body corporate—$18,000.
Note. A designer also has duties under section 22 of the Act.
Hazard identified in design during manufacture If a manufacturer of plant informs the designer of the plant that there is a hazard in the design of plant for which the designer has not provided a control measure, the designer must: (a) revise the information originally supplied to the manufacturer to ensure that: (i) the risk is eliminated so far as is reasonably practicable, or (ii) if it is not reasonably practicable to eliminate the risk, the risk is minimised so far as is reasonably practicable, or (b) notify the manufacturer, in writing, that the designer is of the opinion that it is not necessary to revise the information originally supplied to the manufacturer to ensure compliance with this Part. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 188
Note. A designer also has duties under section 22 of the Act.
189
Guarding
(1) This clause applies if a designer of plant uses guarding as a control measure. (2) The designer must ensure, so far as is reasonably practicable, that the guarding designed for that purpose will prevent access to the danger point or danger area of the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The designer must ensure that: (a) if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant—the guarding is a permanently fixed physical barrier, or (b) if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant—the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or (c) if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b)—the guarding used is a physical barrier that can only be altered or removed by the use of tools, or (d) if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c)—the design includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded. Maximum penalty: 348
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
cl 190
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The designer must ensure that the guarding is designed: (a) to be of solid construction and securely mounted so as to resist impact or shock, and (b) to make bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable, and (c) so as not to cause a risk in itself. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) If the plant to be guarded contains moving parts and those parts may break or cause workpieces to be ejected from the plant, the designer must ensure, so far as is reasonably practicable, that the guarding will control any risk from those broken or ejected parts and workpieces. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (6) Despite anything to the contrary in this clause, the designer must ensure: (a) that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and (b) if the guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 190
Operational controls
(1) A designer of plant must ensure that the design provides for any operator’s controls for the plant to be: (a) identified on the plant so as to indicate their nature and function and direction of operation, and (b) located so as to be readily and conveniently operated by each person using the plant, and (c) located or guarded to prevent unintentional activation, and (d) able to be locked into the “off” position to enable the disconnection of all motive power. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If the need for plant to be operated during maintenance or cleaning cannot be eliminated, the designer of the plant must ensure that the design provides for operator’s controls that: © 2017 THOMSON REUTERS
349
cl 190
Chapter 5 – Plant and structures
(a)
permit operation of the plant while a person is undertaking the maintenance or cleaning of the plant, and (b) while the plant is being maintained or cleaned, cannot be operated by any person other than the person who is carrying out the maintenance or cleaning of the plant, and (c) will allow operation of the plant in such a way that any risk associated with the activities in relation to any person who is carrying out the maintenance or cleaning: (i) is eliminated so far as is reasonably practicable, or (ii) if it is not reasonably practicable to eliminate the risk, is minimised so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 191
Emergency stop controls
(1) If plant is designed to be operated or attended by more than 1 person and more than 1 emergency stop control is fitted, the designer of the plant must ensure that the design provides for the multiple emergency stop controls to be of the “stop and lock-off” type so that the plant cannot be restarted after an emergency stop control has been used unless that emergency stop control is reset. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If the design of the plant includes an emergency stop control for the plant, the designer of the plant must ensure that the design provides: (a) for the stop control to be prominent, clearly and durably marked and immediately accessible to each operator of the plant, and (b) for any handle, bar or push button associated with the stop control to be coloured red, and (c) that the stop control cannot be adversely affected by electrical or electronic circuit malfunction. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 192
Warning devices
(1) This clause applies if the design of plant includes an emergency warning device or it is necessary to include an emergency warning device to minimise risk. (2) The designer of the plant must ensure that the design provides for the device to be positioned on the plant to ensure the device will work to best effect. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 350
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
cl 194
DIVISION 3 – DUTIES OF PERSONS CONDUCTING BUSINESSES OR UNDERTAKINGS THAT MANUFACTURE PLANT 193
Control of risk
(1) A manufacturer of plant must ensure the following: (a) that the plant is manufactured and inspected having regard to the information provided to the manufacturer by the designer of the plant under the Act and this Regulation, (b) if the information provided to the manufacturer by the designer of the plant under the Act and this Regulation requires the plant to be tested—that the plant is tested in accordance with that information, (c) if, during the manufacturing process, any hazard is identified in the design of the plant for which the designer has not provided a control measure: (i) that the hazard is not incorporated into the manufacture of the plant, and (ii) that the designer of the plant is given written notice of the hazard as soon as practicable, and (iii) that all reasonable steps are taken to consult with the designer of the plant in relation to the alteration of the design to rectify the hazard. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A manufacturer of plant must ensure that, if it is not possible to inform the designer about the hazard in accordance with subclause (1): (a) the risk is eliminated, so far as is reasonably practicable, or (b) if it is not reasonably practicable to eliminate the risk, the risk is minimised so far as is reasonably practicable. Note. WHS Act—section 23 (see clause 9).
(3) A manufacturer to whom subclause (1)(c) applies must not manufacture the plant until: (a) the designer gives the manufacturer the revised information or written instruction under clause 188, or (b) the manufacturer eliminates or minimises the risk under subclause (2). Note. WHS Act—section 23 (see clause 9).
(4) If the designer notifies a manufacturer of plant under clause 188, the manufacturer may proceed in accordance with the designer’s original information. 194
Guarding
(1) A manufacturer of plant must ensure that guarding used as a control measure is of solid construction and securely mounted so as to resist impact or shock. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. © 2017 THOMSON REUTERS
351
cl 194
Chapter 5 – Plant and structures
(2) A manufacturer of plant must ensure: (a) that any guarding used as a control measure in relation to plant is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and (b) if the guarding is removed—that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Information must be obtained and provided A manufacturer of plant must: (a) take all reasonable steps to obtain the information required to be provided to the manufacturer by the designer of the plant under section 22(4)(a) and (c) of the Act and clauses 187 and 188, and (b) ensure that a person to whom the manufacturer supplies the plant is, at the time of supply, provided with the information provided to the manufacturer by the designer under section 22(4)(a) and (c) of the Act and clause 187, and (c) if the manufacturer acts in accordance with clause 193(1)(c), ensure that a person to whom the manufacturer supplies the plant is provided with the information, applicable to the plant, that is required to be provided by the designer under sections 22(4)(a) and (c) of the Act and clause 188. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 195
DIVISION 4 – DUTIES OF PERSONS CONDUCTING BUSINESSES OR UNDERTAKINGS THAT IMPORT PLANT Information to be obtained and provided by importer An importer of plant must: (a) take all reasonable steps to obtain: (i) the information that would be required to be provided by a manufacturer under section 23(4)(a) and (c) of the Act, and (ii) the information that would be required to be provided by the designer of the plant to the manufacturer under clauses 187 and 188, and (b) give that information to any person to whom the importer supplies the plant. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 196
Control of risk An importer of plant must: (a) ensure that the plant is inspected having regard to the information provided by the manufacturer, and
197
352
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
(b)
(c)
(d)
Maximum (a) (b)
cl 199
if the information provided by the manufacturer requires the plant to be tested—ensure that the plant is tested in accordance with that information, and if any hazards are identified: (i) ensure that the plant is not supplied until the risks have been eliminated so far as is reasonably practicable, and (ii) if it is not reasonably practicable to eliminate the risks, inform the person to whom the plant is supplied about the risks, and take all reasonable steps to ensure that the designer and manufacturer of the plant are consulted in relation to any alteration made to the plant to control the risk. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
DIVISION 5 – DUTIES OF PERSONS CONDUCTING BUSINESSES OR UNDERTAKINGS THAT SUPPLY PLANT Information to be obtained and provided by supplier A supplier of plant must: (a) take all reasonable steps to obtain the information required to be provided by the manufacturer under section 23(4)(a) and (c) of the Act and this Regulation, and (b) ensure that, when the plant is supplied, the person to whom the plant is supplied is given the information obtained by the supplier under paragraph (a). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 198
199
Supply of second-hand plant—duties of supplier
(1) A supplier of second-hand plant must ensure, so far as is reasonably practicable, that any faults in the plant are identified. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A supplier of second-hand plant must ensure that the person to whom the plant is supplied is, before the plant is supplied, given written notice: (a) of the condition of the plant, and (b) of any faults identified under subclause (1), and (c) if appropriate, that the plant should not be used until the faults are rectified. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) This clause does not apply to plant to be used for scrap or spare parts. © 2017 THOMSON REUTERS
353
cl 200
Chapter 5 – Plant and structures
Second-hand plant to be used for scrap or spare parts A supplier of plant to be used for scrap or spare parts must, before the plant is supplied, inform the person to whom the plant is supplied, either in writing or by marking the plant, that the plant is being supplied for scrap or spare parts and that the plant in its current form is not to be used as plant. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000.
200
DIVISION 6 – DUTIES OF PERSONS CONDUCTING BUSINESSES OR UNDERTAKINGS THAT INSTALL, CONSTRUCT OR COMMISSION PLANT OR STRUCTURES Duties of persons conducting businesses or undertakings that install, construct or commission plant 201
(1) This clause applies to a person who conducts a business or undertaking that installs, constructs or commissions plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The person must ensure that the plant is installed, constructed or commissioned having regard to: (a) the information provided by the designer, manufacturer, importer or supplier of the plant under the Act and this Regulation, or (b) the instructions provided by a competent person to the extent that those instructions relate to health and safety. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Duties of persons conducting businesses or undertakings that install, construct or commission structures 202
(1) This clause applies to a person who conducts a business or undertaking that installs, constructs or commissions a structure that is to be used, or could reasonably be expected to be used, as or at, a workplace. (2) The person must ensure that the structure is installed, constructed or commissioned having regard to: (a) the information provided by the designer, manufacturer, importer or supplier of the structure under the Act and this Regulation, or (b) the instructions provided by a competent person to the extent that those instructions relate to health and safety. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. DIVISION 7 – GENERAL DUTIES OF A PERSON CONDUCTING A BUSINESS OR UNDERTAKING INVOLVING THE MANAGEMENT OR CONTROL OF PLANT Note: A person with management or control of plant at a workplace is the person conducting a business or undertaking at the workplace to the extent that the business or undertaking involves the
354
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
cl 204
management or control of plant in whole or in part at the workplace. See the definition of person with management or control of plant at a workplace in clause 5(1) and section 21 of the Act.
Subdivision 1 – Management of risks Management of risks to health and safety A person with management or control of plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1.
203
Note. WHS Act—section 21 (see clause 9).
Subdivision 2 – Additional control measures for general plant 204
Control of risks arising from installation or commissioning
(1) A person with management or control of plant at a workplace must not commission the plant unless the person has established that the plant is, so far as is reasonably practicable, without risks to the health and safety of any person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person with management or control of plant at a workplace must not decommission or dismantle the plant unless the decommissioning or dismantling can be carried out, so far as is reasonably practicable, without risks to the health and safety of any person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) A person with management or control of plant at a workplace must ensure that a person who installs, assembles, constructs, commissions or decommissions or dismantles the plant is a competent person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) A person with management or control of plant at a workplace must ensure that a person who installs, assembles, constructs, commissions or decommissions or dismantles the plant is provided with the available information for eliminating or minimising risks to health or safety. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) A person with management or control of plant at a workplace must ensure that the processes for the installation, construction, commissioning, decommissioning and dismantling of plant include inspections that ensure, so far as is reasonably practicable, that risks associated with these activities are monitored. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. © 2017 THOMSON REUTERS
355
cl 205
205
Chapter 5 – Plant and structures
Preventing unauthorised alterations to or interference with
plant The person with management or control of plant at a workplace must, so far as is reasonably practicable, prevent alterations to or interference with the plant that are not authorised by the person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 206
Proper use of plant and controls
(1) The person with management or control of plant at a workplace must take all reasonable steps to ensure that plant is used only for the purpose for which it was designed, unless the person has determined that the proposed use does not increase the risk to health or safety. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In determining whether or not a proposed use of plant increases the risk to health or safety, the person with management or control of the plant must ensure that the risk associated with the proposed use is assessed by a competent person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person with management or control of plant at a workplace must take all reasonable steps to ensure that all health and safety features and warning devices (including guarding, operational controls, emergency stops and warning devices) are used in accordance with the instructions and information provided by that person under clause 39. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Plant not in use The person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that plant that is not in use is left in a state that does not create a risk to the health or safety of any person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 207
208
Guarding
(1) This clause applies if guarding is used as a control measure in relation to plant at a workplace. (2) The person with management or control of the plant must ensure that: (a) if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier, or 356
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
cl 208
(b)
if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or (c) if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools, or (d) if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c), the guarding includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person with management or control of the plant must ensure that the guarding: (a) is of solid construction and securely mounted so as to resist impact or shock, and (b) makes bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable, and (c) does not create a risk in itself, and (d) is properly maintained. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) If the plant to be guarded contains moving parts that may break or cause workpieces to be ejected from the plant, the person with management or control of the plant must ensure, so far as is reasonably practicable, that the guarding will control any risk from those broken or ejected parts and workpieces. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) Despite anything to the contrary in this clause, the person with management or control of the plant must ensure: (a) that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and (b) if guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. © 2017 THOMSON REUTERS
357
cl 209
209
Chapter 5 – Plant and structures
Guarding and insulation from heat and cold
The person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that any pipe or other part of the plant associated with heat or cold is guarded or insulated so that the plant is without risks to the health and safety of any person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 210
Operational controls
(1) The person with management or control of plant at a workplace must ensure that any operator’s controls are: (a) identified on the plant so as to indicate their nature and function and direction of operation, and (b) located so as to be readily and conveniently operated by each person using the plant, and (c) located or guarded to prevent unintentional activation, and (d) able to be locked into the “off” position to enable the disconnection of all motive power. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If the need for plant to be operated during maintenance or cleaning cannot be eliminated, the person with management or control of the plant at a workplace must ensure that the operator’s controls: (a) permit operation of the plant while a person is undertaking the maintenance or cleaning of the plant, and (b) while the plant is being maintained or cleaned, either: (i) cannot be operated by any person other than the person who is carrying out the maintenance or cleaning of the plant, or (ii) if subparagraph (i) cannot be complied with because the plant must be operated by a person other than the person who is carrying out the maintenance or cleaning of the plant, cannot be operated except by a person authorised by the person with management or control of the plant for that purpose, and (c) will allow operation of the plant in such a way that any risk associated with the activities in relation to any person who is carrying out the maintenance or cleaning: (i) is eliminated so far as is reasonably practicable, or (ii) if it is not reasonably practicable to eliminate the risk, is minimised so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 358
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
211
cl 213
Emergency stops
(1) If plant at a workplace is designed to be operated or attended by more than 1 person and more than 1 emergency stop control is fitted, the person with management or control of plant at the workplace must ensure that the multiple emergency stop controls are of the “stop and lock off” type so that the plant cannot be restarted after an emergency stop control has been used unless that emergency stop control is reset. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If the design of plant at a workplace includes an emergency stop control, the person with management or control of the plant at the workplace must ensure that: (a) the stop control is prominent, clearly and durably marked and immediately accessible to each operator of the plant, and (b) any handle, bar or push button associated with the stop control is coloured red, and (c) the stop control cannot be adversely affected by electrical or electronic circuit malfunction. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 212
Warning devices
(1) This clause applies if the design of plant includes an emergency warning device or it is necessary to include an emergency warning device to minimise risk. (2) The person with management or control of the plant must ensure that the device is positioned on the plant to ensure that the device will work to best effect. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 213
Maintenance and inspection of plant
(1) The person with management or control of plant at a workplace must ensure that the maintenance, inspection and, if necessary, testing of the plant is carried out by a competent person. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The maintenance, inspection and testing must be carried out: (a) in accordance with the manufacturer’s recommendations, if any, or (b) if there are no manufacturer’s recommendations, in accordance with the recommendations of a competent person, or (c) in relation to inspection, if it is not reasonably practicable to comply with paragraph (a) or (b), annually. © 2017 THOMSON REUTERS
359
cl 214
Chapter 5 – Plant and structures
Subdivision 3 – Additional control measures for certain plant Note. The person with management or control of plant at a workplace is the person conducting a business or undertaking at a workplace to the extent that the business or undertaking involves the management or control of plant in whole or in part at the workplace. See the definition of person with management or control of plant at a workplace in clause 5(1) and section 21 of the Act.
Powered mobile plant—general control of risk The person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1, manage risks to health and safety associated with the following: (a) the plant overturning, (b) things falling on the operator of the plant, (c) the operator being ejected from the plant, (d) the plant colliding with any person or thing, (e) mechanical failure of pressurised elements of plant that may release fluids that pose a risk to health and safety. 214
Note. WHS Act—section 21 (see clause 9).
215
Powered mobile plant—specific control measures
(1) This clause applies to a person with management or control of powered mobile plant at a workplace. [Subcl (1) am Reg 61 of 2015, Sch 1[44]]
(2) The person must ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices for the plant is provided, maintained and used. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure, so far as is reasonably practicable, that no person other than the operator rides on the plant unless the person is provided with a level of protection that is equivalent to that provided to the operator. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The person must ensure that the plant does not collide with pedestrians or other powered mobile plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) Without limiting subclause (4), if there is a possibility of the plant colliding with pedestrians or other powered mobile plant, the person must ensure that the plant has a warning device that will warn persons who may be at risk from the movement of the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. [Cl 215 am Reg 61 of 2015]
360
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
216
cl 218
Roll-over protection on tractors
(1) The person with management or control of a tractor at a workplace must ensure that the tractor is not used unless it is securely fitted with a roll-over protective structure. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If a tractor is used in a place that is too low for the tractor to work while it is fitted with a roll-over protective structure, the structure may be lowered or removed for the period during which the tractor is used in such a situation (but only if other measures to minimise the risk of roll-over are in place). (3) This clause does not apply if the tractor is: (a) installed in a fixed position, and in a manner which would no longer permit it to be used as powered mobile plant, or (b) a tractor with a mass of less than 560 kilograms or a mass of 15,000 kilograms or more, or (c) being used for a historical purpose or activity. (4) In this clause: historical purpose or activity, in relation to the use of a tractor, includes an activity ancillary to a historical activity. Examples.
Historical activity: a historical display, parade, demonstration or re-enactment. 2 Activity ancillary to a historical activity: restoring, maintaining, modifying or housing a tractor used, or to be used, for a historical activity. roll-over protective structure means a structure designed to protect a tractor operator from injury if the tractor rolls over in any direction. 1
Note. Clauses 214 and 215 also apply to a tractor.
217
Protective structures on earthmoving machinery [Repealed]
[Cl 217 am Reg 61 of 2015, Sch 1[45]]
218
Industrial lift trucks
(1) The person with management or control of an industrial lift truck at a workplace must ensure that the truck is: (a) equipped with lifting attachments that are suitable for the load to be lifted or moved by the truck, and (b) operated in a manner that ensures that the risks to the operator of the truck and other persons at or near the workplace that arise from systems of work and the environment in which the truck is used: (i) are eliminated so far as is reasonably practicable, or (ii) if it is not reasonably practicable to eliminate the risks, are minimised so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or © 2017 THOMSON REUTERS
361
cl 218
Chapter 5 – Plant and structures
(b)
in the case of a body corporate—$30,000.
(2) The person with management or control of an industrial lift truck at a workplace must ensure that the truck is not used to carry a passenger unless: (a) the truck is designed to carry a seated passenger, and (b) the passenger seat is: (i) fitted with suitable seat restraints, and (ii) located within the zone of protection that is provided by the operator protective device required to be fitted to the industrial lift truck. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person with management or control of an industrial lift truck at a workplace must take all reasonable steps to ensure that a passenger in an industrial lift truck is seated in a seat that complies with subclause (2)(b). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. Clauses 214 and 215 also apply to an industrial lift truck.
219
Plant that lifts or suspends loads
(1) This clause applies in relation to plant that is used to lift or suspend persons or things. (2) The person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that the plant used is specifically designed to lift or suspend the load. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) If it is not reasonably practicable to use plant that is specifically designed to lift or suspend the load, the person must ensure that: (a) the plant does not cause a greater risk to health and safety than if specifically designed plant were used, and (b) if the plant is lifting or suspending persons, the use of the plant complies with clause 220. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The person must ensure that the lifting and suspending is carried out: (a) with lifting attachments that are suitable for the load being lifted or suspended, and (b) within the safe working limits of the plant. Maximum penalty: (a) in the case of an individual—$6,000, or 362
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
(b)
cl 221
in the case of a body corporate—$30,000.
(5) The person must ensure, so far as is reasonably practicable, that no loads are suspended or travel over a person unless the plant is specifically designed for that purpose. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (6) The person must ensure, so far as is reasonably practicable, that loads are lifted or suspended in a way that ensures that the load remains under control during the activity. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (7) The person must ensure, so far as is reasonably practicable, that no load is lifted simultaneously by more than 1 item of plant unless the method of lifting ensures that the load placed on each item of plant does not exceed the design capacity of the plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 220 Exception—plant not specifically designed to lift or suspend a person (1) For the purposes of clause 219(3)(b), the person with management or control of the plant at a workplace must ensure that: (a) the persons are lifted or suspended in a work box that is securely attached to the plant, and (b) the persons in the work box remain substantially within the work box while they are being lifted or suspended, and (c) if there is a risk of a person falling from a height, a safety harness is provided and worn by the person in order to prevent, so far as is reasonably practicable, injury to the person as a result of the fall, and (d) means are provided by which the persons being lifted or suspended can safely exit from the plant in the event of a failure in its normal operation. (2) This clause does not apply to plant used in connection with: (a) the performance of stunt work, or (b) the performance of acrobatics, or (c) theatrical performances. Note. Part 4.4 (except clause 79) applies to the matters in subclause (2).
221
Plant used in connection with tree lopping
(1) Clause 220(1)(a) and (b) do not apply in connection with tree lopping if: (a) a risk assessment shows that lifting or suspending a person in a harness with a crane to place the person in a tree to carry out tree lopping does not create a greater risk to health or safety than using plant specifically designed to lift a person or climbing a tree, and © 2017 THOMSON REUTERS
363
cl 221
Chapter 5 – Plant and structures
(b)
the tree lopping is carried out by a person who is a competent person in the use of the harness referred to in paragraph (a), and (c) a crane is used to put the competent person in the tree to lop it, and (d) the crane has safety mechanisms that would prevent the competent person from inadvertently falling, and (e) while attached to the crane, the competent person is in visual, audio or radio communication with the crane operator. (2) In this clause, harness means a work positioning harness that is designed and certified, in accordance with AS/NZS 1891.1:2007 (Industrial fall-arrest systems—Harnesses and ancillary equipment), for the purpose of lifting and suspending a person. 222
Industrial robots
(1) This clause applies to a person with management or control of an industrial robot or other remotely or automatically energised plant at a workplace. (2) The person must not direct or allow a worker to work in the immediate vicinity of the plant if it could start without warning and cause a hazard, unless suitable control measures are in place to control the risks to health and safety. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) If the remote or automatic energising of the plant could lead to risks to health and safety, the person must ensure that access to the area in the immediate vicinity of the plant is controlled at all times: (a) by isolating the area, or (b) by: (i) providing interlocked guards, or (ii) if a risk remains, providing presence-sensing devices, or (iii) if a risk then remains, providing permit to work systems. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 223
Lasers
(1) This clause applies to the person with management or control, at a workplace, of laser equipment that may create a risk to health and safety. (2) The person must ensure that laser equipment intended for use on plant is designed, constructed and installed so as to prevent accidental irradiation of any person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure that laser equipment on plant is protected so that any operator of the plant or other person is not exposed to direct radiation, radiation produced by reflection or diffusion or secondary radiation. Maximum penalty: 364
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.1 – General duties for plant and structures
cl 225
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The person must ensure that the visual equipment used for the observation or adjustment of laser equipment on plant does not create a risk to health or safety from laser rays. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) The person must ensure that the workers operating the laser equipment are trained in the proper operation of the equipment. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (6) The person must ensure that Class 3B and Class 4 lasers (within the meaning of AS 2397:1993—Safe use of lasers in the building and construction industry) are not used in construction work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 224
Pressure equipment
(1) The person with management or control of pressure equipment at a workplace must ensure that: (a) the equipment is inspected on a regular basis by a competent person, and (b) any gas cylinder that is inspected is marked with a current inspection mark showing the date of the most recent inspection. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The person with management or control of gas cylinders at a workplace that is a gas cylinder filling station must ensure that: (a) a gas cylinder is not filled with gas unless it bears a current inspection mark, and (b) a gas cylinder is only filled with gas for which that cylinder is designed. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 225
Scaffolds
(1) This clause applies in relation to: (a) a suspended scaffold, and (b) a cantilevered scaffold, and (c) a spur scaffold, and © 2017 THOMSON REUTERS
365
cl 225
Chapter 5 – Plant and structures
(d) a hung scaffold, and (e) any other scaffold from which a person or thing could fall more than 4 metres. (2) The person with management or control of a scaffold at a workplace must ensure that the scaffold is not used unless the person receives written confirmation from a competent person, who has inspected the scaffold, that construction of the scaffold has been completed. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person with management or control of a scaffold at a workplace must ensure that the scaffold and its supporting structure are inspected by a competent person: (a) before use of the scaffold is resumed after an incident occurs that may reasonably be expected to affect the stability of the scaffold, and (b) before use of the scaffold is resumed after repairs, and (c) at least every 30 days. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) If an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health or safety, the person with management or control of the scaffold must ensure that: (a) any necessary repairs, alterations and additions are made or carried out, and (b) the scaffold and its supporting structure are inspected again by a competent person before use of the scaffold is resumed. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) The person with management or control of a scaffold at a workplace must ensure that unauthorised access to the scaffold is prevented while the scaffold is incomplete or unattended. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Example. Danger tags and other warning signs.
226
Plant with presence-sensing safeguarding system—records
(1) The person with management or control of plant with a presence-sensing safeguarding system at a workplace must keep a record of safety integrity tests, inspections, maintenance, commissioning, decommissioning, dismantling and alterations of the plant for the period set out in subclause (2). Maximum penalty: (a) in the case of an individual—$1,250, or 366
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.2 – Additional duties relating to registered plant and plant designs
(b)
cl 228
in the case of a body corporate—$6,000.
(2) The record must be kept for: (a) 5 years unless paragraph (b) applies, or (b) the life of the plant or until the person relinquishes control of the plant if the plant is registered plant or has been altered. (3) The person must keep the record available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The person must make the record available to any person to whom the person relinquishes control of the plant. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000.
Part 5.2 – Additional duties relating to registered plant and plant designs Notes. 1 The person with management or control of plant at a workplace is the person conducting a business or undertaking at a workplace to the extent that the business or undertaking involves the management or control of plant in whole or in part at the workplace. See the definition of person with management or control of plant at a workplace in clause 5(1) and section 21 of the Act. 2 This Part applies in addition to Part 5.1. 3 In this Part, plant includes a structure (see definition of plant in clause 5(1)).
DIVISION 1 – APPLICATION OF PART 5.2 Application of Part 5.2 This Part applies to: (a) plant that is required to be registered under Part 5.3, or (b) plant the design of which is required to be registered under Part 5.3.
227
DIVISION 2 – DUTY OF PERSON CONDUCTING A BUSINESS OR UNDERTAKING WHO DESIGNS PLANT TO RECORD PLANT DESIGN Records and information If the design of plant is required to be registered under Part 5.3, the designer of that plant must make a record that contains: (a) the method used to determine the control measures for the plant and the control measures that result from that determination, and (b) a copy of the information provided to a manufacturer under section 22 of the Act in relation to that plant, and (c) a copy of the information provided to a manufacturer under clause 187 in relation to that plant, and (d) if applicable, a copy of the information provided to a manufacturer under clause 188 in relation to that plant. Maximum penalty: 228
© 2017 THOMSON REUTERS
367
cl 228
Chapter 5 – Plant and structures
(a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 229
Record of standards or engineering principles used
(1) If the design of plant is required to be registered under Part 5.3, the designer of the plant must record any published technical standard, including any part of a published technical standard, that was used to design the plant. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If the designer of the plant has not used published technical standards to design the plant, the designer must record any engineering principles used to design the plant. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 230
Records to be available for inspection
(1) A designer of plant must ensure that the records made under clauses 228 and 229 are kept available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) A designer of plant must ensure that the records made under clauses 228 and 229 are made available for inspection by the design verifier of the plant design. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) A designer of plant must keep the records made under clauses 228 and 229 for the design life of the plant. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. DIVISION 3 – DUTIES OF A PERSON CONDUCTING A BUSINESS OR UNDERTAKING Duty of persons conducting businesses or undertakings that manufacture plant A manufacturer must not supply plant specified in Part 1 of Schedule 5 unless the design of that plant is registered under Part 5.3. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 231
368
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.2 – Additional duties relating to registered plant and plant designs
cl 235
Duty of persons conducting businesses or undertakings that import plant 232
An importer must not supply plant specified in Part 1 of Schedule 5 unless the design of that plant is registered under Part 5.3. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Duty of persons conducting businesses or undertakings that supply plant A supplier must not supply plant specified in Part 1 of Schedule 5 unless the design of that plant is registered under Part 5.3. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 233
Duty of persons conducting businesses or undertakings that commission plant 234
(1) This clause applies to a person who conducts a business or undertaking that commissions plant. (2) The person must not commission an item of plant that is specified in Part 2 of Schedule 5 for use in a workplace unless that item of plant is registered under Part 5.3. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) Nothing in subclause (2) prevents a person from performing any necessary adjustments, tests or inspections as part of the commissioning process before the plant is commissioned at a workplace. DIVISION 4 – DUTIES OF A PERSON CONDUCTING A BUSINESS OR UNDERTAKING INVOLVING THE MANAGEMENT OR CONTROL OF PLANT Subdivision 1 – Control measures for registered plant 235
Major inspection of registered mobile cranes and tower cranes
(1) This clause applies to the person with management or control of a registered mobile crane or tower crane at a workplace. (2) The person must ensure that a major inspection of the crane is carried out by, or under the supervision of, a competent person: (a) at the end of the design life recommended by the manufacturer for the crane, or (b) if there are no manufacturer’s recommendations—in accordance with the recommendations of a competent person, or (c) if it is not reasonably practicable to comply with paragraph (a) or (b)— every 10 years from the date that the crane was first commissioned or first registered, whichever occurred first. Maximum penalty: © 2017 THOMSON REUTERS
369
cl 235
Chapter 5 – Plant and structures
(a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. [Subcl (2) subst Reg 61 of 2015, Sch 1[46]]
(3) A major inspection carried out under and in accordance with an equivalent provision of a corresponding WHS law is taken to be a major inspection for the purposes of this clause. [Subcl (3) subst Reg 61 of 2015, Sch 1[46]]
(4) In this clause, a competent person is a person who: (a) complies with both of the following: (i) has acquired through training, qualification or experience the knowledge and skills to carry out a major inspection of the plant, and (ii) is: (A) registered under a law that provides for the registration of professional engineers, or (B) a member (or is qualified to be a member) of Engineers Australia with the status of Chartered Professional Engineer, or (C) entered on the National Professional Engineers Register administered by the Institution of Engineers Australia. (b) is determined by the regulator to be a competent person. [Subcl (4) am Reg 61 of 2015, Sch 1[47]]
(5) The regulator may, on the application of a person, make a determination in relation to the person for the purposes of subclause (4)(b) if the regulator considers that exceptional circumstances exist. (6) In this clause, major inspection means: (a) an examination of all critical components of the crane, if necessary by stripping down the crane and removing paint, grease and corrosion to allow a thorough examination of each critical component, and (b) a check of the effective and safe operation of the crane. [Subcl (6) insrt Reg 61 of 2015, Sch 1[48]] [Cl 235 am Reg 61 of 2015]
236
Lifts
(1) The person with management or control of a lift at a workplace (including a person with management or control of maintenance of a lift) must ensure that: (a) if there is a risk of a person falling down a lift well: (i) secure barriers are provided to prevent access to openings into the lift well by someone other than a person who is performing work in the lift well, and (ii) secure working platforms or equivalent arrangements are provided for a person who is working in the lift well to prevent a fall from height, and 370
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.2 – Additional duties relating to registered plant and plant designs
(b)
cl 237
if there is a risk to a person working in a lift well from objects falling onto that person—a secure barrier is provided to prevent, so far as is reasonably practicable, falling objects from striking the person or otherwise causing a risk.
Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The person must ensure that there is a safe means of entry to and exit from the base of the lift well. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The person must ensure that there is fixed, in a prominent place in the lift, a sign that states the safe working load specified in the design of the lift. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 237
Records of plant
(1) This clause applies in relation to plant that is required to be registered under Part 5.3. (2) The person with management or control of the plant at a workplace must keep a record of all tests, inspections, maintenance, commissioning, decommissioning, dismantling and alterations of the plant for the period set out in subclause (3). Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) The record must be kept for the period that the plant is used or until the person relinquishes control of the plant. (4) The person must keep the record available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (5) The person must make the record available to any person to whom the person relinquishes control of the plant. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000.
© 2017 THOMSON REUTERS
371
cl 238
Chapter 5 – Plant and structures
Subdivision 2 – Control measures for amusement devices and passenger ropeways 238
Operation of amusement devices and passenger ropeways
(1) The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that the device or ropeway is operated only by a person who has been provided with instruction and training in its proper operation. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that: (a) the amusement device or passenger ropeway is checked before it is operated on each day on which it is to be operated, and (b) the amusement device or passenger ropeway is operated without passengers before it is operated with passengers on each day on which it is to be operated, and (c) the daily checks and operation of the amusement device or passenger ropeway without passengers are properly and accurately recorded in a log book for the device or ropeway. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. [Cl 238 subst Reg 61 of 2015, Sch 1[49]]
239
Storage of amusement devices and passenger ropeways
(1) The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that the device or ropeway is stored so as to be without risk to health and safety. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that a person who stores the device or ropeway is a competent person or is under the supervision of a competent person. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. [Cl 239 subst Reg 61 of 2015, Sch 1[49]]
Maintenance, inspection and testing of amusement devices and passenger ropeways 240
(1) The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that the maintenance, inspection and, if necessary, testing of the device or ropeway is carried out: 372
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.2 – Additional duties relating to registered plant and plant designs
cl 241
(a) by a competent person, and (b) in accordance with: (i) the recommendations of the designer or manufacturer or designer and manufacturer, or (ii) if a maintenance manual for the device or ropeway has been prepared by a competent person, the requirements of the maintenance manual. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person is not a competent person to carry out a detailed inspection of an amusement device or passenger ropeway that includes an electrical installation unless the person is qualified, or is assisted by a person who is qualified, to inspect electrical installations. [Cl 240 subst Reg 61 of 2015, Sch 1[49]]
Annual inspection of amusement devices and passenger ropeways 241
(1) The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that a detailed inspection of the device or ropeway is carried out at least once every 12 months by a competent person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) An annual inspection must include the following: (a) a check of information about the operational history of the amusement device or passenger ropeway since the last detailed inspection, (b) a check of the log book for the amusement device or passenger ropeway, (c) a check that maintenance and inspections of the amusement device or passenger ropeway have been undertaken under clause 240, (d) a check that any required tests have been carried out, and that appropriate records have been maintained, (e) a detailed inspection of the amusement device or passenger ropeway to ensure compliance with the Act and this Regulation (including a specific inspection of the critical components of the amusement device or passenger ropeway). (3) The regulator may extend the date for an inspection by up to 35 days if an inspection is scheduled to coincide with the same event each year. (4) If the date is extended under subclause (3), the new date is the date from which future annual inspections of the amusement device or passenger ropeway are determined. (5) In this clause, a competent person is a person who: © 2017 THOMSON REUTERS
373
cl 241
Chapter 5 – Plant and structures
(a)
in the case of an inflatable device (continuously blown) with a platform height less than 9 metres—has acquired through training, qualification or experience the knowledge and skills to inspect the device, or (b) in the case of any other amusement device or a passenger ropeway: (i) has acquired through training, qualification or experience the knowledge and skills to inspect the plant, and (ii) is: (A) registered under a law that provides for the registration of professional engineers, or (B) a member (or is qualified to be a member) of Engineers Australia with the status of Chartered Professional Engineer, or (C) entered on the National Professional Engineers Register administered by the Institution of Engineers Australia, or (c) in the case of any amusement device or passenger ropeway—is determined by the regulator to be a competent person. (6) The regulator may, on the application of a person, make a determination in relation to the person for the purposes of subclause (5)(c) if the regulator considers that exceptional circumstances exist. (7) An annual inspection carried out under and in accordance with an equivalent provision of a corresponding WHS law is taken to be an annual inspection for the purposes of this clause. [Cl 241 subst Reg 61 of 2015, Sch 1[49]]
242
Log book and manuals for amusement devices
(1) The person with management or control of an amusement device at a workplace, in addition to complying with the record-keeping requirements of clause 237, must ensure that: (a) details of the erection or storage of the amusement device (including the date of erection) are recorded in the log book for the amusement device on each occasion on which it is erected or stored, and (b) the log book and operating and maintenance manuals for the amusement device are kept with the amusement device. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) The person with management or control of an amusement device at a workplace must ensure that persons involved in the commissioning, installation, use, storage and testing, and the decommissioning, dismantling and disposal, of an amusement device are given: (a) the log book for the amusement device in which details concerning erection, storage, operation and maintenance of the amusement device are recorded, and (b) the operating and maintenance manuals for the amusement device. Maximum penalty: (a) in the case of an individual—$1,250, or 374
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
(b)
cl 246
in the case of a body corporate—$6,000.
Note: Clause 237(5) requires the person with management or control of the amusement device to give the log book and maintenance records to the person being supplied with the plant. [Cl 242 subst Reg 61 of 2015, Sch 1[49]]
Part 5.3 – Registration of plant designs and items of plant Note. In this Part, plant includes a structure (see definition of plant in clause 5(1)).
DIVISION 1 – PLANT DESIGNS TO BE REGISTERED 243
Plant design to be registered
The design of an item of plant specified in Part 1 of Schedule 5 must be registered under this Part. Note. See section 42 of the Act.
244
Altered plant designs to be registered
(1) If the design of an item of plant specified in Part 1 of Schedule 5 that is registered under this Part is altered, the altered design must be registered under this Part. Note. See section 42 of the Act.
(2) In this clause a reference to the alteration of a design is a reference to an alteration that may affect health or safety. (3) This clause does not apply in relation to a tower crane or a gantry crane if: (a) the crane is relocated for use in a different workplace, and (b) the design of the supporting structure or foundations of the crane is altered in accordance with a site-specific design prepared for the purpose of the safe operation of the crane at the new location, and (c) the design of the crane is not altered in any other way. [Subcl (3) insrt Reg 61 of 2015, Sch 1[50]] [Cl 244 am Reg 61 of 2015]
245
Recognition of designs registered by corresponding regulator
(1) A design of an item of plant is not required to be registered under this Part if the design is registered under a corresponding WHS law. (2) A design referred to in subclause (1) that is altered is not required to be registered under this Part if the altered design is registered by the corresponding regulator that registered the original design. DIVISION 2 – ITEMS OF PLANT TO BE REGISTERED 246
Items of plant to be registered
(1) An item of plant specified in Part 2 of Schedule 5 must be registered under this Part. Note. See section 42 of the Act.
(2) The purpose of registering an item of plant is to ensure that it is inspected by a competent person and is safe to operate. © 2017 THOMSON REUTERS
375
cl 247
Chapter 5 – Plant and structures
Recognition of plant registered by corresponding regulator An item of plant is not required to be registered under this Part if the plant is registered under a corresponding WHS law. 247
DIVISION 3 – REGISTRATION PROCESS FOR PLANT DESIGNS Application of Division 3 This Division applies to the registration of a design of an item of plant specified in Part 1 of Schedule 5. 248
249
Who can apply to register a plant design
(1) A person conducting a business or undertaking that designs an item of plant may apply to the regulator for the registration of the design of that item of plant. (2) A person with management or control of an item of plant may apply to the regulator for the registration of the design of that item of plant. 250
Application for registration
(1) An application for registration of the design of an item of plant must be made in the manner and form required by the regulator. (2) The (a) (b) (c)
(d) (e)
(f) (g) (h)
application must include the following information: the applicant’s name, whether or not the applicant is a body corporate, if the applicant conducts the business or undertaking under a business name—that business name and a certificate or other written evidence of the registration of the business name, any other evidence of the applicant’s identity required by the regulator, a statement signed by the designer of the item of plant: (i) stating that the designer has complied with the designer’s obligations under section 22 of the Act in relation to the design, and (ii) specifying the published technical standards and engineering principles used in the design, and a design verification statement that accords with clause 251, representational drawings of the design, a declaration that the applicant does not hold an equivalent registration under a corresponding WHS law.
Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3) Any drawings or other documents provided with the application must be capable of being kept in an electronic form. (4) The application must be accompanied by the relevant fee. Design verification statement The design verification statement must: (a) be written and signed by a person who is eligible to be a design verifier for the design, and
251
376
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
cl 255
(b)
state that the design was produced in accordance with published technical standards or engineering principles specified in the statement, and (c) include: (i) the name, business address and qualifications (if applicable) of the design verifier, and (ii) if applicable, the name and business address of the organisation for which the design verifier works.
252
Who can be the design verifier
(1) A person is eligible to be a design verifier for the design of an item of plant if the person is a competent person. (2) Despite subclause (1), a person is not eligible to be a design verifier for the design of an item of plant if the person was involved in the production of the design. [Subcl (2) subst Reg 61 of 2015, Sch 1[51]]
(3) [Repealed] [Subcl (3) rep Reg 61 of 2015, Sch 1[51]] [Cl 252 am Reg 61 of 2015]
Duty of design verifier A design verifier of the design of an item of plant specified in Part 1 of Schedule 5 must document the design verification process carried out by that person and the results of that process. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 253
Design verification statements not to be made in certain circumstances A person must not make a design verification statement for the design of an item of plant specified in Part 1 of Schedule 5 if the person: (a) is not eligible to be a design verifier for that design, or (b) has not carried out a verification of the design. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 254
255
Additional information
(1) If an application for registration of a design of an item of plant does not contain enough information to enable the regulator to make a decision whether or not to grant the registration, the regulator may ask the applicant to provide additional information. (2) A request for additional information must: (a) specify the date (not being less than 28 days after the request) by which the additional information is to be given, and (b) be confirmed in writing. © 2017 THOMSON REUTERS
377
cl 255
Chapter 5 – Plant and structures
(3) If an applicant does not provide the additional information by the date specified, the application is taken to have been withdrawn. (4) The regulator may make more than 1 request for additional information under this clause. 256
Decision on application
(1) Subject to subclause (3), the regulator must grant the registration if satisfied about the matters referred to in subclause (2). (2) The (a) (b) (c)
regulator must be satisfied about the following: the application has been made in accordance with this Division, the design is not registered under a corresponding WHS law, if the applicant is an individual, the applicant: (i) resides in this jurisdiction, or (ii) resides outside this jurisdiction and circumstances exist that justify the grant of the registration, (d) if the applicant is a body corporate, the applicant’s registered office: (i) is located in this jurisdiction, or (ii) is located outside this jurisdiction and circumstances exist that justify the grant of the registration, (e) the applicant is able to ensure compliance with any conditions that will apply to the registration.
(3) The regulator must refuse to grant a registration if satisfied that, in making the application, the applicant has: (a) given information that is false or misleading in a material particular, or (b) failed to give any material information that should have been given. (4) If the regulator decides to grant the registration, it must notify the applicant within 14 days after making the decision. (5) If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 255, the regulator is taken to have refused to grant the registration applied for. Note. A refusal to grant a registration (including under subclause (5)) is a reviewable decision (see clause 676).
257
Refusal of registration—process
(1) If the regulator proposes to refuse to grant a registration, the regulator must give the applicant a written notice: (a) informing the applicant of the reasons for the proposed refusal, and (b) advising the applicant that the applicant may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal. (2) After the date specified in a notice under subclause (1), the regulator must: (a) if the applicant has made a submission in relation to the proposed refusal to grant the registration—consider that submission, and (b) whether or not the applicant has made a submission—decide whether to grant or refuse to grant the registration, and 378
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
(c)
cl 260
within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision.
Note. A refusal to grant a registration is a reviewable decision (see clause 676).
Conditions of registration
258
(1) The regulator may impose any conditions it considers appropriate on the registration of a plant design. (2) Without limiting subclause (1), the regulator may impose conditions in relation to 1 or more of the following: (a) the use and maintenance of plant manufactured to the design, (b) the recording or keeping of information, (c) the provision of information to the regulator. Notes: 1
A person must comply with the conditions of registration (see section 45 of the Act).
2
A decision to impose a condition on a registration is a reviewable decision (see clause 676).
259
Duration of registration of plant design
A registration of a plant design takes effect on the day it is granted and is granted for an unlimited duration. 260
Plant design registration number
(1) This clause applies if the regulator registers a design of an item of plant. (2) The regulator must issue a plant design registration number for the design to the applicant. (3) The person to whom the plant design registration number is issued must give the registration number to the manufacturer, importer or supplier of plant manufactured to that design. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The manufacturer, supplier or importer of plant to whom a plant design registration number is given under this clause must give that number to the person with management or control of the plant: (a) manufactured to that design, or (b) supplied to that person by the manufacturer, supplier or importer. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (5) The person with management or control of plant at a workplace for which a plant design is registered must ensure that the design registration number is kept readily accessible in the vicinity of the plant at all times. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. © 2017 THOMSON REUTERS
379
cl 261
261
Chapter 5 – Plant and structures
Registration document
(1) If the regulator registers a design of an item of plant, the regulator must issue to the applicant a registration document in the form determined by the regulator. (2) The registration document must include the following: (a) the name of the registration holder, (b) if the registration holder conducts the business or undertaking under a business name, that business name, (c) the registration number of the plant design, (d) any conditions imposed on the registration by the regulator, (e) the date on which the registration was granted. 262
Registration document to be available
(1) A registration holder must keep the registration document available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) does not apply if the registration document is not in the registration holder’s possession because: (a) it has been returned to the regulator under clause 287, or (b) the registration holder has applied for, but has not received, a replacement registration document under clause 288. 263
Disclosure of design information
(1) Subject to this clause, the regulator must not disclose to any person any confidential information provided by an applicant for registration of a design of an item of plant. (2) The regulator may disclose information about a plant design in either of the following circumstances: (a) to a corresponding regulator or an authorised officer of a corresponding regulator, at the request of the corresponding regulator, (b) to any person authorised by the applicant for the registration of the design. (3) The regulator may give a copy of the design verification statement to: (a) workers engaged by the person with management or control at a workplace of plant manufactured to the design, or (b) a health and safety representative of those workers. (4) The regulator may provide the person with management or control of plant with the minimum information about the plant design that is necessary for the safe operation of the plant if the registration holder for the design of the plant cannot be located or no longer exists. 380
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
cl 267
DIVISION 4 – REGISTRATION PROCESS FOR AN ITEM OF PLANT 264
Application of Division 4
This Division applies in relation to the registration of an item of plant specified in Part 2 of Schedule 5 as requiring registration. 265
Who can apply to register an item of plant
A person with management or control of an item of plant may apply to the regulator for the registration of that item of plant. 266
Application for registration
(1) An application for registration of an item of plant must be made in the manner and form required by the regulator. (2) The (a) (b) (c)
(d) (e) (f) (g)
(h) (i) (j)
application must include the following information: the applicant’s name, whether or not the applicant is a body corporate, if the applicant conducts the business or undertaking under a business name—that business name and a certificate or other written evidence of the registration of the business name, any other evidence of the applicant’s identity required by the regulator, sufficient information to clearly identify the item of plant, [Repealed] if the design of the item of plant was also required to be registered under this Part, details of: (i) the plant design registration number, and (ii) the regulator or corresponding regulator that registered the design, a statement that the item of plant has been inspected by a competent person and assessed by that person as being safe to operate, the date that the item of plant was first commissioned or was first registered, if known, whichever occurred first, a declaration that the applicant does not hold an equivalent registration under a corresponding WHS law.
Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation. [Subcl (2) am Reg 61 of 2015, Sch 1[52] and [53]]
(3) The application must be accompanied by the relevant fee. [Cl 266 am Reg 61 of 2015]
267
When is a person competent to inspect plant
A person is a competent person to inspect an item of plant for registration if the person has: (a) educational or vocational qualifications in an engineering discipline relevant to the plant to be inspected, or (b) knowledge of the technical standards relevant to the plant to be inspected. © 2017 THOMSON REUTERS
381
cl 268
268
Chapter 5 – Plant and structures
Additional information
(1) If an application for registration of an item of plant does not contain enough information to enable the regulator to make a decision whether or not to grant the registration, the regulator may ask the applicant to provide additional information. (2) A request for additional information must: (a) specify the date (not being less than 28 days after the request) by which the additional information is to be given, and (b) be confirmed in writing. (3) If an applicant does not provide the additional information by the date specified, the application is taken to have been withdrawn. (4) The regulator may make more than 1 request for additional information under this clause. 269
Decision on application
(1) Subject to subclause (3), the regulator must grant the registration if satisfied about the matters referred to in subclause (2). (2) The (a) (b) (c)
regulator must be satisfied about the following: the application has been made in accordance with this Division, the item of plant is not registered under a corresponding WHS law, the item of plant is: (i) located in this jurisdiction, or (ii) located outside this jurisdiction and circumstances exist that justify the grant of the registration, (d) if the applicant is an individual, the applicant: (i) resides in this jurisdiction, or (ii) resides outside this jurisdiction and circumstances exist that justify the grant of the registration, (e) if the applicant is a body corporate, the applicant’s registered office: (i) is located in this jurisdiction, or (ii) is located outside this jurisdiction and circumstances exist that justify the grant of the registration, (f) the applicant is able to ensure compliance with any conditions that will apply to the registration.
[Subcl (2) am Reg 61 of 2015, Sch 1[54]]
(3) The regulator must refuse to grant a registration if satisfied that, in making the application, the applicant has: (a) given information that is false or misleading in a material particular, or (b) failed to give any material information that should have been given. (4) If the regulator decides to grant the registration, it must notify the applicant within 14 days after making the decision. (5) If the regulator does not make a decision within 120 days after receiving the application or additional information requested under clause 268, the regulator is taken to have refused to grant the registration applied for. 382
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
cl 273
Note. A refusal to grant a registration (including under subclause (5)) is a reviewable decision (see clause 676). [Cl 269 am Reg 61 of 2015]
270
Refusal of registration—process
(1) If the regulator proposes to refuse to grant a registration, the regulator must give the applicant a written notice: (a) informing the applicant of the reasons for the proposed refusal, and (b) advising the applicant that the applicant may, by a specified date, (being not less than 28 days after giving the notice) make a submission to the regulator in relation to the proposed refusal. (2) After the date specified in a notice under subclause (1), the regulator must: (a) if the applicant has made a submission in relation to the proposed refusal to grant the registration—consider that submission, and (b) whether or not the applicant has made a submission—decide whether to grant or refuse to grant the registration, and (c) within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision. Note. A refusal to grant a registration is a reviewable decision (see clause 676).
271
Conditions of registration
(1) The regulator may impose any conditions it considers appropriate on the registration of an item of plant. (2) Without limiting subclause (1), the regulator may impose conditions in relation to 1 of more of the following: (a) the use and maintenance of the item of plant, (b) the recording or keeping of information, (c) the provision of information to the regulator. Note. 1 A person must comply with the conditions of registration (see section 45 of the Act). 2 A decision to impose a condition on a registration is a reviewable decision (see clause 676).
Duration of registration A registration of an item of plant takes effect on the day it is granted and expires 5 years after that day. 272
273
Plant registration number
(1) This clause applies if the regulator registers an item of plant. (2) The regulator must issue a plant registration number for the plant to the registration holder within 14 days after that registration. (3) The registration holder must give the plant registration number to the person with management or control of the plant at a workplace as soon as practicable after being issued with the number under subclause (2). Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. © 2017 THOMSON REUTERS
383
cl 273
Chapter 5 – Plant and structures
(4) The person with management or control of the plant at a workplace must ensure that the plant registration number is marked on the item of plant. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 274
Registration document
(1) If the regulator registers an item of plant, the regulator must issue to the applicant within 14 days a registration document in the form determined by the regulator. (2) The registration document must include the following: (a) the name of the registration holder, (b) if the registration holder conducts the business or undertaking under a business name, that business name, (c) the registration number for the item of plant, (d) any conditions imposed on the registration by the regulator, (e) the date on which the plant was first commissioned or first registered, whichever occurred first, (f) the date on which the registration was granted, (g) the expiry date of the registration. 275
Registration document to be available
(1) The holder of the registration of an item of plant must keep the registration document available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) does not apply if the registration document is not in the registration holder’s possession because: (a) it has been returned to the regulator under clause 287, or (b) the registration holder has applied for, but has not received, a replacement registration document under clause 288. 276
Regulator may renew registration
The regulator may, on application, renew the registration of an item of plant. 277
Application for renewal
(1) An application for renewal of a registration of an item of plant must be made in the manner and form required by the regulator. (2) The (a) (b) (c)
application must include the following information: the applicant’s name, any evidence of identity required by the regulator, if the applicant conducts the business or undertaking under a business name, that business name and a certificate or other written evidence of the registration of the business name, (d) the registration number of the item of plant,
384
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
(e)
cl 280
a declaration that the item of plant has been maintained, inspected and tested in accordance with clause 213.
Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3) The application must be accompanied by the relevant fee. (4) The application must be made before the expiry of the registration. Registration continues in force until application is decided If a registration holder applies under clause 277 for the renewal of a registration, the registration is taken to continue in force from the day it would, apart from this clause, have ended until the registration holder is given notice of the decision on the application. 278
279
Decision on application
(1) The regulator must renew the registration of an item of plant if the regulator is satisfied that: (a) the application for renewal has been made in accordance with this Division, and (b) the plant has been maintained, inspected and tested in accordance with clause 213. (2) For the purposes of this Division: (a) clause 268 applies as if a reference in that clause to an application for registration were a reference to an application to renew registration, and (b) clauses 269 (except subclause (5)), 271 and 272 apply as if a reference in those clauses to the grant of a registration were a reference to the renewal of a registration, and (c) clause 270 applies as if a reference in that clause to a refusal to grant a registration were a reference to a refusal to renew a registration. Note. A refusal to renew a registration is a reviewable decision (see clause 676).
280
Status of registration during review
(1) If the regulator gives the registration holder written notice of a decision to refuse to renew the registration, the registration continues to have effect in accordance with this clause. (2) If the registration holder does not apply for internal review, the registration continues to have effect until the last of the following events: (a) the expiry of the registration, (b) the end of the period for applying for an internal review. (3) If the registration holder applies for an internal review, the registration continues to have effect until the earlier of the following events: (a) the registration holder withdraws the application for review, (b) the regulator makes a decision on the review. (4) If the registration holder does not apply for an external review, the registration continues to have effect until the end of the time for applying for an external review. © 2017 THOMSON REUTERS
385
cl 280
Chapter 5 – Plant and structures
(5) If the registration holder applies for an external review, the registration continues to have effect until the earlier of the following events: (a) the registration holder withdraws the application for review, (b) the Civil and Administrative Tribunal makes a decision on the review. [Subcl (5) am Act 95 of 2013, Sch 2.155[2]]
(6) The registration continues to have effect under this clause even if its expiry date passes. [Cl 280 am Act 95 of 2013]
DIVISION 5 – CHANGES TO REGISTRATION AND REGISTRATION DOCUMENTS Application of Division This Division applies to: (a) the registration of a design of an item of plant, and (b) the registration of an item of plant.
281
282
Changes to information
(1) A registration holder must give the regulator written notice of any change to: (a) the registration holder’s name, or (b) any of the information referred to in clauses 250, 255(1), 266 or 268(1) within 14 days after the registration holder becomes aware of the change. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) applies whether the information was given in the application for grant of the registration or in any other circumstance. (3) Without limiting subclause (1), a registration holder for an item of plant must give written notice to the regulator if: (a) the item of plant is altered to an extent or in a way that requires the plant to be subject to new control measures, or (b) the item of plant is usually fixed and is relocated, or (c) the registration holder no longer has management or control of the item of plant. 283
Amendment of registration imposed by regulator
(1) The regulator may, on its own initiative, amend a registration, including by amending the registration to: (a) vary or delete a condition of the registration, or (b) impose a new condition on the registration. (2) Before amending a registration, the regulator must give the registration holder written notice: (a) setting out the proposed amendment and the reasons for it, and 386
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
(b)
cl 284
advising the registration holder that the registration holder may make a submission to the regulator in relation to the proposed amendment within a specified period (being not less than 28 days from the date of the notice).
(3) After the date specified in a notice under subclause (2), the regulator must: (a) if the registration holder has made a submission in relation to the proposed amendment—consider that submission, and (b) whether or not the registration holder has made a submission—decide: (i) to make the proposed amendment, or (ii) not to make any amendment, or (iii) to make a different amendment that results from consideration of any submission made by the registration holder, and (c) within 14 days after making that decision, give the registration holder written notice that: (i) sets out the amendment, if any, or states that no amendment is to be made, and (ii) if a submission was made in relation to the proposed amendment—sets out the regulator’s reasons for making the amendment, and (iii) specifies the date (being not less than the 28 days after the registration holder is given the notice) on which the amendment, if any, takes effect. Note. A decision to amend a registration is a reviewable decision (see clause 676).
284
Amendment on application by registration holder
(1) The regulator, on application by the registration holder, may amend a registration, including by amending the registration to vary or delete a condition of the registration. (2) If the regulator proposes to refuse to amend the registration, the regulator must give the registration holder a written notice: (a) informing the registration holder of the proposed refusal to amend the registration and the reasons for the proposed refusal, and (b) advising the registration holder that the registration holder may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal. (3) After the date specified in a notice under subclause (2), the regulator must: (a) if the registration holder has made a submission in relation to the proposed refusal—consider that submission, and (b) whether or not the registration holder has made a submission—decide: (i) to make the amendment applied for, or (ii) not to make any amendment, or (iii) to make a different amendment that results from consideration of any submission made by the registration holder, and (c) within 14 days after making that decision, give the registration holder written notice of the decision in accordance with this clause. © 2017 THOMSON REUTERS
387
cl 284
Chapter 5 – Plant and structures
(4) If the regulator makes the amendment applied for, the notice under subclause (3)(c) must specify the date (being not less than 28 days after the registration holder is given the notice) on which the amendment takes effect. (5) If the regulator refuses to make the amendment or makes a different amendment, the notice under subclause (3)(c) must: (a) if a submission was made in relation to the proposed refusal of the amendment applied for—set out the reasons for the regulator’s decision, and (b) if the regulator makes a different amendment: (i) set out the amendment, and (ii) specify the date (being not less than 28 days after the licence holder is given the notice) on which the amendment takes effect. Note. A refusal to make the amendment applied for, or a decision to make a different amendment, is a reviewable decision (see clause 676).
285
Minor corrections to registration
The regulator may make minor amendments to a registration, including an amendment: (a) to correct an obvious error, or (b) to change an address, or (c) that does not impose a significant burden on the registration holder. Regulator to give amended registration document If the regulator amends a registration and considers that the registration document requires amendment, the regulator must give the registration holder an amended registration document within 14 days after making the decision to amend the registration. 286
Registration holder to return registration document A registration holder must return the registration document to the regulator for amendment at the written request of the regulator within the time specified in the request. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 287
288
Replacement registration document
(1) A registration holder must give written notice to the regulator as soon as practicable if the registration document is lost, stolen or destroyed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If a registration document is lost, stolen or destroyed, the registration holder may apply to the regulator for a replacement document. Note. A registration holder is required to keep a registration document available for inspection (see clause 275).
(3) An application for a replacement registration document must be made in the manner and form required by the regulator. 388
Tooma’s Annotated Work Health and Safety Act 2011
Part 5.3 – Registration of plant designs and items of plant
cl 288C
(4) The application must: (a) include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)
be accompanied by the relevant fee.
(5) The regulator must issue a replacement registration document if satisfied that the original document was lost, stolen or destroyed. (6) If the regulator refuses to issue a replacement registration document, it must give the registration holder written notice of this decision, including the reasons for the decision within 14 days of making the decision. Note. A refusal to issue a replacement registration document is a reviewable decision (see clause 676).
DIVISION 6 – CANCELLATION OF REGISTRATION [Div 6 insrt Reg 61 of 2015, Sch 1[55]]
Application of Division This Division applies to: (a) the registration of a design of an item of plant, and (b) the registration of an item of plant.
288A
[Cl 288A insrt Reg 61 of 2015, Sch 1[55]]
Regulator may cancel registration The regulator may cancel a registration if satisfied that: (a) the registration holder, in applying for the registration: (i) gave information that was false or misleading in a material particular, or (ii) failed to give any material information that should have been given, or (b) the design of the item of plant, or the item of plant (as applicable), is unsafe.
288B
Note: A decision to cancel a registration is a reviewable decision (see clause 676). [Cl 288B insrt Reg 61 of 2015, Sch 1[55]]
288C
Cancellation process
(1) Before cancelling a registration, the regulator must give the registration holder written notice: (a) setting out the proposal to cancel the registration and the reasons for it, and (b) advising the registration holder that the registration holder may make a submission to the regulator in relation to the proposed cancellation within a specified period (being not less than 28 days from the date of the notice). (2) After the date specified in a notice under subclause (1), the regulator must: (a) if the registration holder has made a submission in relation to the proposed cancellation—consider that submission, and (b) whether or not the registration holder has made a submission, decide: © 2017 THOMSON REUTERS
389
cl 288C
Chapter 5 – Plant and structures
(i) to cancel the registration, or (ii) not to cancel the registration, and (c) within 14 days after making that decision, give the registration holder written notice that: (i) states whether or not the registration is cancelled, and (ii) if a submission was made in relation to the proposed cancellation—sets out the regulator’s reasons for cancelling the registration, and (iii) specifies the date on which the cancellation, if any, takes effect. Note: A decision to cancel a registration is a reviewable decision (see clause 676). [Cl 288C insrt Reg 61 of 2015, Sch 1[55]]
Registration holder to return registration document A registration holder who receives a cancellation notice under clause 288C must return the registration document to the regulator at the written request of the regulator within the time specified in the request. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000.
288D
[Cl 288D insrt Reg 61 of 2015, Sch 1[55]]
390
Tooma’s Annotated Work Health and Safety Act 2011
CHAPTER 6 – CONSTRUCTION WORK Part 6.1 – Preliminary 289
Meaning of “construction work”
(1) In this Chapter, construction work means any work carried out in connection with the construction, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, refurbishment, demolition, decommissioning or dismantling of a structure. (2) Without limiting subclause (1), construction work includes the following: (a) any installation or testing carried out in connection with an activity referred to in subclause (1), (b) the removal from the workplace of any product or waste resulting from demolition, (c) the prefabrication or testing of elements, at a place specifically established for the construction work, for use in construction work, (d) the assembly of prefabricated elements to form a structure, or the disassembly of prefabricated elements forming part of a structure, (e) the installation, testing or maintenance of an essential service in relation to a structure, (f) any work connected with an excavation, (g) any work connected with any preparatory work or site preparation (including landscaping as part of site preparation) carried out in connection with an activity referred to in subclause (1), (h) an activity referred to in subclause (1), that is carried out on, under or near water, including work on buoys and obstructions to navigation. (3) In this Chapter, construction work does not include any of the following: (a) the manufacture of plant, (b) the prefabrication of elements, other than at a place specifically established for the construction work, for use in construction work, (c) the construction or assembly of a structure that once constructed or assembled is intended to be transported to another place, (d) testing, maintenance or repair work of a minor nature carried out in connection with a structure, (e) mining activities or petroleum activities. [Subcl (3) am Reg 49 of 2016, Sch 2[1]] [Cl 289 am Reg 49 of 2016]
290
Meaning of “structure”
(1) In this Chapter, structure has the same meaning as it has in the Act. Examples. 1 A roadway or pathway.
© 2017 THOMSON REUTERS
391
cl 290 2 3
Chapter 6 – Construction work
A ship or submarine. Foundations, earth retention works and other earthworks, including river works and sea defence works. Formwork, falsework or any other structure designed or used to provide support, access or containment during construction work. An airfield. A dock, harbour, channel, bridge, viaduct, lagoon or dam. A sewer or sewerage or drainage works.
4 5 6 7
(2) This Chapter does not apply to plant unless: (a) the plant is: (i) a ship or submarine, or (ii) a pipe or pipeline, or (iii) an underground tank, or (iv) designed or used to provide support, access or containment during work in connection with construction work, or (b) work on the plant relates to work that is carried out in connection with construction work, or (c) the plant is fixed plant on which outage work or overhaul work that involves or may involve work being carried out by 5 or more persons conducting businesses or undertakings at any point in time. Note. This Chapter does not apply to the manufacture of plant (see clause 289(3)(a)).
Meaning of “high risk construction work” In this Chapter, high risk construction work means construction work that: (a) involves a risk of a person falling more than 2 metres, or (b) is carried out on a telecommunication tower, or (c) involves demolition of an element of a structure that is load-bearing or otherwise related to the physical integrity of the structure, or (d) involves, or is likely to involve, the disturbance of asbestos, or (e) involves structural alterations or repairs that require temporary support to prevent collapse, or (f) is carried out in or near a confined space, or (g) is carried out in or near: (i) a shaft or trench with an excavated depth greater than 1.5 metres, or (ii) a tunnel, or (h) involves the use of explosives, or (i) is carried out on or near pressurised gas distribution mains or piping, or (j) is carried out on or near chemical, fuel or refrigerant lines, or (k) is carried out on or near energised electrical installations or services, or (l) is carried out in an area that may have a contaminated or flammable atmosphere, or (m) involves tilt-up or precast concrete, or (n) is carried out on, in or adjacent to a road, railway, shipping lane or other traffic corridor that is in use by traffic other than pedestrians, or (o) is carried out in an area at a workplace in which there is any movement of powered mobile plant, or
291
392
Tooma’s Annotated Work Health and Safety Act 2011
Part 6.2 - Duties of designer of structure and person who commissions construction cl 294
(p)
is carried out in an area in which there are artificial extremes of temperature, or (q) is carried out in or near water or other liquid that involves a risk of drowning, or (r) involves diving work. Meaning of “construction project” In this Chapter, a construction project is a project that involves construction work where the cost of the construction work is $250,000 or more. 292
293
Meaning of “principal contractor”
(1) In this Chapter, a person conducting a business or undertaking that commissions a construction project is, subject to this clause, the principal contractor for the project. (2) If the person referred to in subclause (1) engages another person conducting a business or undertaking as principal contractor for the construction project and authorises the person to have management or control of the workplace and to discharge the duties of a principal contractor under this Chapter, the person so engaged is the principal contractor for the project. (3) If the owner of residential premises is an individual who directly or indirectly engages a person conducting a business or undertaking to undertake a construction project in relation to the premises, the person so engaged is the principal contractor for the project if the person has management or control of the workplace. (4) A construction project has only one principal contractor at any specific time. Note. A person with management or control of a workplace must comply with section 20 of the Act.
Part 6.2 – Duties of designer of structure and person who commissions construction work 294
Person who commissions work must consult with designer
(1) A person conducting a business or undertaking that commissions construction work in relation to a structure must, so far as is reasonably practicable, consult with the designer of the whole or any part of the structure about how to ensure that risks to health and safety arising from the design during the construction work are: (a) eliminated, so far as is reasonably practicable, or (b) if it is not reasonably practicable to eliminate the risks, minimised so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) Consultation must include giving the designer any information that the person who commissions the construction work has in relation to the hazards and risks at the workplace where the construction work is to be carried out. © 2017 THOMSON REUTERS
393
cl 295
Chapter 6 – Construction work
Designer must give safety report to person who commissions design 295
(1) The designer of a structure or any part of a structure that is to be constructed must give the person conducting a business or undertaking who commissioned the design a written report that specifies the hazards relating to the design of the structure that, so far as the designer is reasonably aware: (a) create a risk to the health or safety of persons who are to carry out any construction work on the structure or part, and (b) are associated only with the particular design and not with other designs of the same type of structure. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) If the person conducting a business or undertaking who commissions a construction project did not commission the design of the construction project, the person must take all reasonable steps to obtain a copy of the written report referred to in subclause (1) in relation to that design. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Person who commissions project must give information to principal contractor If a person conducting a business or undertaking that commissions a construction project engages a principal contractor for the project, the person must give the principal contractor any information the person has in relation to hazards and risks at or in the vicinity of the workplace where the construction work is to be carried out. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 296
Part 6.3 – Duties of person conducting business or undertaking Note. As a principal contractor is a person conducting a business or undertaking, this Part also applies to a principal contractor.
DIVISION 1 – GENERAL 297 Management of risks to health and safety A person conducting a business or undertaking must manage risks associated with the carrying out of construction work in accordance with Part 3.1. Note. WHS Act—section 19 (see clause 9).
298
Security of workplace
(1) A person with management or control of a workplace at which construction work is carried out must ensure, so far as is reasonably practicable, that the workplace is secured from unauthorised access. Maximum penalty: 394
Tooma’s Annotated Work Health and Safety Act 2011
Part 6.3 – Duties of person conducting business or undertaking
cl 300
(a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) In complying with subclause (1), the person must have regard to all relevant matters, including: (a) risks to health and safety arising from unauthorised access to the workplace, and (b) the likelihood of unauthorised access occurring, and Example. The proximity of the workplace to places frequented by children, including schools, parks and shopping precincts.
(c)
to the extent that unauthorised access to the workplace cannot be prevented—how to isolate hazards within the workplace.
DIVISION 2 – HIGH RISK CONSTRUCTION WORK—SAFE WORK METHOD STATEMENTS Safe work method statement required for high risk construction work 299
(1) A person conducting a business or undertaking that includes the carrying out of high risk construction work must, before high risk construction work commences, ensure that a safe work method statement for the proposed work: (a) is prepared, or (b) has already been prepared by another person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A safe work method statement must: (a) identify the work that is high risk construction work, and (b) specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and (c) describe the measures to be implemented to control the risks, and (d) describe how the control measures are to be implemented, monitored and reviewed. (3) A safe work method statement must: (a) be prepared taking into account all relevant matters, including: (i) circumstances at the workplace that may affect the way in which the high risk construction work is carried out, and (ii) if the high risk construction work is carried out in connection with a construction project—the WHS management plan that has been prepared for the workplace, and (b) be set out and expressed in a way that is readily accessible and understandable to persons who use it. 300
Compliance with safe work method statement
(1) A person conducting a business or undertaking that includes the carrying out of high risk construction work must put in place arrangements for ensuring that high risk construction work is carried out in accordance with the safe work © 2017 THOMSON REUTERS
395
cl 300
Chapter 6 – Construction work
method statement for the work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If high risk construction work is not carried out in accordance with the safe work method statement for the work, the person must ensure that the work: (a) is stopped immediately or as soon as it is safe to do so, and (b) resumed only in accordance with the statement. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Safe work method statement—copy to be given to principal contractor A person conducting a business or undertaking that includes carrying out high risk construction work in connection with a construction project must, before the high risk construction work commences, ensure that a copy of the safe work method statement for the work is given to the principal contractor. 301
Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Review of safe work method statement A person conducting a business or undertaking must ensure that a safe work method statement is reviewed and as necessary revised if relevant control measures are revised under clause 38. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 302
303
Safe work method statement must be kept
(1) Subject to subclause (2), a person conducting a business or undertaking must keep a copy of the safe work method statement until the high risk construction work to which it relates is completed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If a notifiable incident occurs in connection with the high risk construction work to which the statement relates, the person must keep the statement for at least 2 years after the incident occurs. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) The person must ensure that for the period for which the statement must be kept under this clause, a copy is readily accessible to any worker engaged by 396
Tooma’s Annotated Work Health and Safety Act 2011
Part 6.3 – Duties of person conducting business or undertaking
cl 304
the person to carry out the high risk construction work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) The person must ensure that for the period for which the statement must be kept under this clause, a copy is available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. DIVISION 3 – EXCAVATION WORK 304
Excavation work—underground essential services information
(1) This clause applies in relation to a part of a workplace where excavation work is being carried out and any adjacent areas. (2) A person with management or control of the workplace must take all reasonable steps to obtain current underground essential services information about the areas referred to in subclause (1) before directing or allowing the excavation work to commence. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The person with management or control of the workplace must provide the information obtained under subclause (2) to any person engaged by the person to carry out the excavation work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) The person with management or control of the workplace and any person conducting a business or undertaking who is given information under subclause (3) must have regard to the information referred to in subclause (2) in carrying out or directing or allowing the carrying out of the excavation work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Note. Legislation relating to the essential services may also impose duties on the person conducting the business or undertaking and the persons carrying out the work.
(5) The person with control or management of the workplace must ensure that the information referred to in subclause (2) is available for inspection under the Act for the period specified in subclause (6). Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (6) The information must be available: © 2017 THOMSON REUTERS
397
cl 304
Chapter 6 – Construction work
(a)
if a notifiable incident occurs in connection with the excavation work to which the information relates—for at least 2 years after the incident occurs, and (b) in every other case—until the excavation work is completed. (7) In this clause: underground essential services means essential services that use pipes, cables or other associated plant located underground. underground essential services information, in relation to proposed excavation work, means the following information about underground essential services that may be affected by the excavation: (a) the essential services that may be affected, (b) the location, including the depth, of any pipes, cables or other plant associated with the affected essential services, (c) any conditions on the proposed excavation work. Management of risks to health and safety associated with excavation work 305
(1) A person conducting a business or undertaking must manage risks to health and safety associated with excavation work, in accordance with Part 3.1. Note. WHS Act—section 19 (see clause 9).
(2) The (a) (b) (c) (d)
risks this clause applies to include the following: a person falling into an excavation, a person being trapped by the collapse of an excavation, a person working in an excavation being struck by a falling thing, a person working in an excavation being exposed to an airborne contaminant.
(3) In complying with subclause (1), the person must have regard to all relevant matters, including the following: (a) the nature of the excavation, (b) the nature of the excavation work, including the range of possible methods of carrying out the work, (c) the means of entry into and exit from the excavation, if applicable. 306
Additional controls—trenches
(1) A person conducting a business or undertaking, who proposes to excavate a trench at least 1.5 metres deep must ensure, so far as is reasonably practicable, that the work area is secured from unauthorised access (including inadvertent entry). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In complying with subclause (1), the person must have regard to all relevant matters, including: (a) risks to health and safety arising from unauthorised access to the work area, and (b) the likelihood of unauthorised access occurring. 398
Tooma’s Annotated Work Health and Safety Act 2011
Part 6.4 – Additional duties of principal contractor
cl 309
(3) In addition, the person must minimise the risk to any person arising from the collapse of the trench by ensuring that all sides of the trench are adequately supported by doing 1 or more of the following: (a) shoring by shielding or other comparable means, (b) benching, (c) battering. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) Subclause (3) does not apply if the person receives written advice from a geotechnical engineer that all sides of the trench are safe from collapse. (5) An advice under subclause (4): (a) may be subject to a condition that specified natural occurrences may create a risk of collapse, and (b) must state the period of time to which the advice applies.
Part 6.4 – Additional duties of principal contractor Application of Part 6.4 This Part: (a) applies in relation to a construction project, and (b) imposes duties on the principal contractor for the project that are additional to the duties imposed under Part 6.3.
307
Note. As a principal contractor has management or control of a workplace, the principal contractor is also subject to duties imposed by the Act and this Regulation on a person with management or control of a workplace.
Specific control measure—signage identifying principal contractor The principal contractor for a construction project must ensure that signs are installed, that: (a) show the principal contractor’s name and telephone contact numbers (including an after hours telephone number), and (b) show the location of the site office for the project, if any, and (c) are clearly visible from outside the workplace, or the work area of the workplace, where the construction project is being undertaken. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 308
309
WHS management plan—preparation
(1) The principal contractor for a construction project must prepare a written WHS management plan for the workplace before work on the project commences. Maximum penalty: (a) in the case of an individual—$6,000, or © 2017 THOMSON REUTERS
399
cl 309
Chapter 6 – Construction work
(b)
in the case of a body corporate—$30,000.
(2) A WHS management plan must include the following: (a) the names, positions and health and safety responsibilities of all persons at the workplace whose positions or roles involve specific health and safety responsibilities in connection with the project, (b) the arrangements in place, between any persons conducting a business or undertaking at the workplace where the construction project is being undertaken, for consultation, co operation and the co-ordination of activities in relation to compliance with their duties under the Act and this Regulation, (c) the arrangements in place for managing any work health and safety incidents that occur, (d) any site-specific health and safety rules, and the arrangements for ensuring that all persons at the workplace are informed of these rules, (e) the arrangements for the collection and any assessment, monitoring and review of safe work method statements at the workplace. 310
WHS management plan—duty to inform
The principal contractor for a construction project must ensure, so far as is reasonably practicable, that each person who is to carry out construction work in connection with the project is, before commencing work, made aware of: (a) the content of the WHS management plan for the workplace, and (b) the person’s right to inspect the WHS management plan under clause 313. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 311
WHS management plan—review
(1) The principal contractor for a construction project must review and as necessary revise the WHS management plan to ensure that it remains up to date. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The principal contractor for a construction project must ensure, so far as is reasonably practicable, that each person carrying out construction work in connection with the project is made aware of any revision to the WHS management plan. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. High risk construction work—safe work method statements The principal contractor for a construction project must take all reasonable steps to obtain a copy of the safe work method statement relating to high risk construction work before the high risk construction work commences. Maximum penalty: 312
400
Tooma’s Annotated Work Health and Safety Act 2011
Part 6.4 – Additional duties of principal contractor
cl 314
(a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Note. The WHS management plan contains arrangements for co operation between persons conducting a business or undertaking at the construction project workplace, including in relation to the preparation of safe work method statements (see clause 309(2)(b) and (e)).
313
Copy of WHS management plan must be kept
(1) Subject to subclause (2), the principal contractor for a construction project must ensure that a copy of the WHS management plan for the project is kept until the project to which it relates is completed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If a notifiable incident occurs in connection with the construction project to which the statement relates, the person must keep the WHS management plan for at least 2 years after the incident occurs. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) The person must ensure that, for the period for which the WHS management plan must be kept under this clause, a copy is readily accessible to any person who is to carry out construction work in connection with the construction project. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) The person must ensure that for the period for which the WHS management plan must be kept under this clause, a copy is available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (5) In this clause, WHS management plan means the initial plan and all revised versions of the plan. 314
Further health and safety duties—specific clauses
The principal contractor for a construction project must put in place arrangements for ensuring compliance at the workplace with the following: (a) Division 2 of Part 3.2, (b) Division 3 of Part 3.2, (c) Division 4 of Part 3.2, (d) Division 5 of Part 3.2, (e) Division 7 of Part 3.2, (f) Division 8 of Part 3.2, (g) Division 9 of Part 3.2, (h) Division 10 of Part 3.2, © 2017 THOMSON REUTERS
401
cl 314
Chapter 6 – Construction work
(i) Maximum (a) (b)
Part 4.4. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
Note. All persons conducting a business or undertaking at the construction project workplace have these same duties (see Part 3.2 of this Regulation and section 19 of the Act). Section 16 of the Act provides for situations in which more than 1 person has the same duty.
315
Further health and safety duties—specific risks
The principal contractor for a construction project must in accordance with Part 3.1 manage risks to health and safety associated with the following: (a) the storage, movement and disposal of construction materials and waste at the workplace, (b) the storage at the workplace of plant that is not in use, (c) traffic in the vicinity of the workplace that may be affected by construction work carried out in connection with the construction project, (d) essential services at the workplace. Note. WHS Act—section 20 (see clause 9).
Part 6.5 – General construction induction training DIVISION 1 – GENERAL CONSTRUCTION INDUCTION TRAINING REQUIREMENTS Duty to provide general construction induction training A person conducting a business or undertaking must ensure that general construction induction training is provided to a worker engaged by the person who is to carry out construction work, if the worker: (a) has not successfully completed general construction induction training, or (b) successfully completed general construction induction training more than 2 years previously and has not carried out construction work in the preceding 2 years. 316
Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 317
Duty to ensure worker has been trained
(1) A person conducting a business or undertaking must not direct or allow a worker to carry out construction work unless: (a) the worker has successfully completed general construction induction training, and (b) if the worker completed the training more than 2 years previously—the worker has carried out construction work in the preceding 2 years. Maximum penalty: (a) in the case of an individual—$3,600, or 402
Tooma’s Annotated Work Health and Safety Act 2011
Part 6.5 – General construction induction training
(b)
cl 319
in the case of a body corporate—$18,000.
(2) The person conducting the business or undertaking must ensure that: (a) the worker holds a general construction induction training card, or (b) if the worker has applied for but not yet been issued with a general construction induction training card, the worker holds a general construction induction training certification, issued within the preceding 60 days. Recognition of general construction induction training cards issued in other jurisdictions 318
(1) In this Part (other than Division 2), a reference to a general construction induction training card includes a reference to a similar card issued under a corresponding WHS law. (2) Subclause (1) does not apply to a card that is cancelled in the corresponding jurisdiction. [Cl 318 subst Reg 61 of 2015, Sch 1[56]]
DIVISION 2 – GENERAL CONSTRUCTION INDUCTION TRAINING CARDS 319
Issue of card
(1) A person who has successfully completed general construction induction training in this jurisdiction may apply to the regulator for a general construction induction training card. (2) The application must be made in the manner and form required by the regulator. (3) The application must include the following information: (a) the applicant’s name and any other evidence of the applicant’s identity required by the regulator, (b) either: (i) a general construction induction training certification issued to the applicant, or (ii) a written declaration by the person who provided the general construction induction training on behalf of the relevant RTO that the applicant has successfully completed general construction induction training. (4) The application must be accompanied by the relevant fee. (5) The application must be made: (a) within 60 days after the issue of the general construction induction training certification, or (b) if the application is accompanied by a declaration referred to in subclause (3)(b)(ii), at any time after completion of the general construction induction training. [Subcl (5) am Reg 61 of 2015, Sch 1[57]]
(6) The regulator must issue a general construction induction training card to the applicant if: © 2017 THOMSON REUTERS
403
cl 319
Chapter 6 – Construction work
(a) the application has been made in accordance with this clause, and (b) the regulator is satisfied that the applicant has successfully completed general construction induction training. (7) The regulator must make a decision on the application as soon as practicable. (8) If the regulator has not decided on the application within 60 days, the applicant is taken to hold a general construction induction training card until a decision is made. [Cl 319 am Reg 61 of 2015]
320
Content of card
A general construction induction training card must: (a) state the following: (i) that the card holder has completed general construction induction training, (ii) the name of the card holder, (iii) the date on which the card was issued, (iv) a unique identifying number, (v) the State in which the card was issued, and (b) contain the card holder’s signature. 321
Replacement card
(1) If a general construction induction training card issued by the regulator is lost, stolen or destroyed, the card holder may apply to the regulator for a replacement card. Note. A card holder is required to keep the card available for inspection under clause 326.
(2) An application for a replacement general construction induction training card must be made in the manner and form required by the regulator. (3) The application must: (a) include a declaration about the circumstances in which the card was lost, stolen or destroyed, and Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)
be accompanied by the relevant fee.
(4) The regulator may issue a replacement card if satisfied that the original general construction induction training card has been lost, stolen or destroyed. Refusal to issue or replace card The regulator may refuse to issue a general construction induction training card or a replacement general construction induction training card if satisfied that the applicant: (a) gave information that was false or misleading in a material particular, or (b) failed to give information that should have been given, or (c) produced a general construction induction training certification that had been obtained on the basis of the giving of false or misleading information by any person or body. 322
404
Tooma’s Annotated Work Health and Safety Act 2011
Part 6.5 – General construction induction training
cl 326
Note. A decision to refuse to issue or replace a general construction induction training card is a reviewable decision (see clause 676).
323
Cancellation of card—grounds
The regulator may cancel a general construction induction training card issued by the regulator if satisfied that the card holder, when applying for the card: (a) gave information that was false or misleading in a material particular, or (b) failed to give information that should have been given, or (c) produced a general construction induction training certification that had been obtained on the basis of the giving of false or misleading information by any person or body. Note. A decision to cancel a general construction induction training card is a reviewable decision (see clause 676).
324
Cancellation of card—process
(1) The regulator must, before cancelling a general construction induction training card, give the card holder: (a) written notice of the proposed cancellation that outlines all relevant allegations, facts and circumstances known to the regulator, and (b) a reasonable opportunity to make submissions to the regulator in relation to the proposed cancellation. (2) On cancelling a general induction card, the regulator must give the card holder a written notice of its decision, stating: (a) when the cancellation takes effect, and (b) the reasons for the cancellation, and (c) when the card must be returned to the regulator. 325
RTO may enter agreement to issue cards
Note. The Model Work Health and Safety Regulations contain a provision enabling the regulator to enter agreements with a RTO regarding the issue of general induction construction training cards.
DIVISION 3 – DUTIES OF WORKERS 326
Duties of workers
(1) A worker carrying out construction work must keep available for inspection under the Act: (a) his or her general construction induction training card, or (b) in the circumstances set out in clause 319(5), a general induction training certification held by the worker, until a decision is made on the application for the general construction induction training card. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) A card holder, on receiving a cancellation notice under clause 324(2), must return the card in accordance with the notice. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. © 2017 THOMSON REUTERS
405
cl 326
Chapter 6 – Construction work
(3) Subclause (1)(a) does not apply if the card is not in the possession of the worker (card holder) because: (a) it has been lost, stolen or destroyed, and (b) the card holder has applied for, but has not received, a replacement card under clause 321. Alteration of general construction induction training card A person who holds a general construction induction training card must not intentionally or recklessly alter the card. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 327
406
Tooma’s Annotated Work Health and Safety Act 2011
CHAPTER 7 – HAZARDOUS CHEMICALS Part 7.1 – Hazardous chemicals Note. Most of the obligations in this Part apply to persons conducting businesses or undertakings at a workplace. However, some obligations apply to persons in different capacities, for example importers and suppliers of hazardous chemicals.
DIVISION 1 – APPLICATION OF PART 7.1 328
Application of Part 7.1
(1) This Part applies to: (a) the use, handling and storage of hazardous chemicals at a workplace and the generation of hazardous substances at a workplace, and (b) a pipeline used to convey a hazardous chemical. (1A) This Part applies to the handling or storage of dangerous goods listed in Column 2 of the Table to this subclause, other than at a workplace, if the quantity of the dangerous goods is more than the relevant threshold referred to in Column 3 of that Table. Table Column 1 Column 2 Item Dangerous goods 1 Liquefied Petroleum Gas (LP gas) (dangerous goods Class 2.1) 2 Compressed gas of Class 2.1 (excluding LP gas), Class 2.2 or compressed oxygen if:
Column 3 Threshold quantities If the LP gas is stored in packages outside a building, and connected by piping to appliances within the building that contain the gas—500 L (water capacity) (a) each is in one or more containers in an aggregate capacity not exceeding 50 L, and
(b)
3 4
the dangerous goods as a whole form part of a welding set or are used or intended to be used with a portable flame torch. Compressed oxygen or air that is used or intended to be used for medical 250 L
Dangerous goods Class 3 Pool Chlorine and 100 kg or L spa sanitising agents
© 2017 THOMSON REUTERS
407
cl 328
Chapter 7 – Hazardous chemicals
Column 1 Column 2 Item Dangerous goods 5 Sodium Hypochlorite designated by UN Number 1791 6 Dangerous goods Class 9 7 Dangerous goods Packing Group 1 8 C1 combustible liquids 9 Dangerous goods Class 2.3 10 Any dangerous goods other than those stated above
Column 3 Threshold quantities 100 L
100 kg or L 5 kg or L 1000 L Nil kg or L 100 kg or L
(2) This Part does not apply to a pipeline that is regulated under the Gas Supply Act 1996, the Petroleum (Offshore) Act 1982 or the Pipelines Act 1967. (3) This Part does not apply to hazardous chemicals and explosives being transported by road, rail, sea or air if the transport is regulated under any of the following: (a) the Dangerous Goods (Road and Rail Transport) Act 2008 and the regulations under that Act, (b) the document entitled International Maritime Dangerous Goods Code published by the International Maritime Organization, copies of which are available for inspection at the offices of the regulator, (c) the document entitled Technical Instructions for the Safe Transport of Dangerous Goods by Air published by the International Civil Aviation Organization, copies of which are available for inspection at the offices of the regulator, (d) the document entitled Dangerous Goods Regulations published by the International Air Transport Association, copies of which are available for inspection at the offices of the regulator. (4) This Part does not apply to the following hazardous chemicals in the circumstances described: (a) hazardous chemicals in batteries when incorporated in plant, (b) fuel, oils or coolants in a container fitted to a vehicle, vessel, aircraft, mobile plant, appliance or other device, if the fuel, oil or coolant is intended for use in the operation of the device, (c) fuel in the fuel container of a domestic or portable fuel burning appliance, if the quantity of fuel does not exceed 25 kilograms or 25 litres, (d) hazardous chemicals in portable firefighting or medical equipment for use in a workplace, (e) hazardous chemicals that form part of the integrated refrigeration system of refrigerated freight containers, (f) potable liquids that are consumer products at retail premises. 408
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 330
(5) This Part, other than the following clauses and Schedule 7, does not apply to substances, mixtures or articles categorised only as explosives under the GHS: (a) clause 329, (b) clause 330, (c) clause 339, (d) clause 344, (e) clause 345. (6) This Part does not apply to the following: (a) food and beverages within the meaning of the Food Standards Australia New Zealand Food Standards Code that are in a package and form intended for human consumption, (b) tobacco or products made of tobacco, (c) therapeutic goods within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth at the point of intentional intake by or administration to humans, (d) veterinary chemical products within the meaning of the Agvet Code at the point of intentional administration to animals. (7) In subclause (6)(d), Agvet Code means the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth. DIVISION 2 – OBLIGATIONS RELATING TO SAFETY DATA SHEETS AND OTHER MATTERS Subdivision 1 – Obligations of manufacturers and importers Notes: 1 A manufacturer or importer of hazardous chemicals may also be a person conducting a business or undertaking at a workplace. 2 A manufacturer or importer is defined in section 23 or 24 of the Act as a person conducting a business or undertaking of manufacturing or importing.
329
Classification of hazardous chemicals
The manufacturer or importer of a substance, mixture or article must, before first supplying it to a workplace: (a) determine whether the substance, mixture or article is a hazardous chemical, and (b) if the substance, mixture or article is a hazardous chemical—ensure that the hazardous chemical is correctly classified in accordance with Part 1 of Schedule 9. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Manufacturer or importer to prepare and provide safety data sheets 330
(1) A manufacturer or importer of a hazardous chemical must prepare a safety data sheet for the hazardous chemical: (a) before first manufacturing or importing the hazardous chemical, or © 2017 THOMSON REUTERS
409
cl 330
Chapter 7 – Hazardous chemicals
(b)
if that is not practicable—as soon as practicable after first manufacturing or importing the hazardous chemical and before first supplying it to a workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The safety data sheet must comply with clause 1 of Schedule 7 unless clause 331 applies. (3) The manufacturer or importer of the hazardous chemical must: (a) review the safety data sheet at least once every 5 years, and (b) amend the safety data sheet whenever necessary to ensure that it contains correct, current information. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The manufacturer or importer of the hazardous chemical must provide the current safety data sheet for the hazardous chemical to any person, if the person: (a) is likely to be affected by the hazardous chemical, and (b) asks for the safety data sheet. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) Subclauses (3) and (4) do not apply to a manufacturer or importer of a hazardous chemical who has not manufactured or imported the hazardous chemical in the past 5 years. Safety data sheets—research chemical, waste product or sample for analysis 331
(1) This clause applies if: (a) a hazardous chemical is a research chemical, waste product or sample for analysis, and (b) it is not reasonably practicable for a manufacturer or importer of the hazardous chemical to comply with clause 1 of Schedule 7. (2) The manufacturer or importer must prepare a safety data sheet for the hazardous chemical that complies with clause 2 of Schedule 7. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Emergency disclosure of chemical identities to registered medical practitioner 332
(1) This clause applies if a registered medical practitioner: (a) reasonably believes that knowing the chemical identity of an ingredient of a hazardous chemical may help to treat a patient, and 410
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 335
(b)
requests the manufacturer or importer of the hazardous chemical to give the registered medical practitioner the chemical identity of the ingredient, and (c) gives an undertaking to the manufacturer or importer that the chemical identity of the ingredient will be used only to help treat the patient, and (d) gives an undertaking to the manufacturer or importer to give the manufacturer or importer as soon as practicable a written statement about the need to obtain the chemical identity of the ingredient. (2) The manufacturer or importer of a hazardous chemical must give the registered medical practitioner the chemical identity of an ingredient of the hazardous chemical as soon as practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Emergency disclosure of chemical identities to emergency service worker The manufacturer or importer of a hazardous chemical must give an emergency service worker the chemical identity of an ingredient of the hazardous chemical as soon as practicable after the worker requests it. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 333
Packing hazardous chemicals The manufacturer or importer of a hazardous chemical must ensure that the hazardous chemical is correctly packed, in accordance with Part 2 of Schedule 9, as soon as practicable after manufacturing or importing the hazardous chemical. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 334
335
Labelling hazardous chemicals
(1) The manufacturer or importer of a hazardous chemical must ensure that the hazardous chemical is correctly labelled as soon as practicable after manufacturing or importing the hazardous chemical. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A hazardous chemical is correctly labelled if the selection and use of label elements is in accordance with the GHS and it complies with Part 3 of Schedule 9. (3) This clause does not apply to a hazardous chemical if: (a) the hazardous chemical is a consumer product that is labelled in accordance with the Standard for the Uniform Scheduling of Medicines and Poisons 2011 published by the Commonwealth, as in force or remade from time to time, and © 2017 THOMSON REUTERS
411
cl 335
Chapter 7 – Hazardous chemicals
(b) the container for the hazardous chemical has its original label, and (c) it is reasonably foreseeable that the hazardous chemical will be used in a workplace only in: (i) a quantity that is consistent with household use, and (ii) a way that is consistent with household use, and (iii) a way that is incidental to the nature of the work carried out by a worker using the hazardous chemical. (4) This clause does not apply to hazardous chemicals in transit. (5) This clause does not apply to a hazardous chemical that: (a) is therapeutic goods within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth, and (b) is in a form intended for human consumption, for administration to or by a person or use by a person for therapeutic purposes, and (c) is labelled in accordance with that Act or an order made under that Act. (6) This clause does not apply to cosmetics and toiletries. Subdivision 2 – Obligations of suppliers Notes: 1 A supplier of hazardous chemicals may also be a person conducting a business or undertaking at a workplace. 2 A supplier is defined in section 25 of the Act as a person who conducts a business or undertaking of supplying. 3 An operator of a major hazard facility is required to notify certain quantities of hazardous chemicals under Part 9.2.
Restriction on age of person who can supply hazardous chemicals 336
A person conducting a business or undertaking must not direct or allow a worker to supply a hazardous chemical that is a flammable gas or flammable liquid to another person into any container or vehicle provided by that other person unless the worker is at least 16 years of age. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Examples. 1 Decanting fuel into a fuel container. 2 Refuelling a car.
337
Retailer or supplier packing hazardous chemicals
(1) The supplier of a hazardous chemical must not supply the hazardous chemical for use at another workplace if the supplier knows or ought reasonably to know that the hazardous chemical is not correctly packed. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) A retailer who supplies a hazardous chemical in a container provided by the person supplied with the chemical must ensure that the hazardous chemical is 412
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 340
correctly packed. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Supplier labelling hazardous chemicals The supplier of a hazardous chemical must not supply the hazardous chemical to another workplace if the supplier knows or ought reasonably to know that the hazardous chemical is not correctly labelled in accordance with clause 335. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 338
339
Supplier to provide safety data sheets
(1) The supplier of a hazardous chemical to a workplace must ensure that the current safety data sheet for the hazardous chemical is provided with the hazardous chemical: (a) when the hazardous chemical is first supplied to the workplace, and (b) if the safety data sheet for the hazardous chemical is amended—when the hazardous chemical is first supplied to the workplace after the safety data sheet is amended. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A hazardous chemical is taken to be first supplied to a workplace if the supply is the first supply of the hazardous chemical to the workplace for 5 years. (3) The supplier of a hazardous chemical to a workplace must ensure that the current safety data sheet for the hazardous chemical is provided to a person at the workplace if the person asks for the safety data sheet. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) This clause does not apply to a supplier of a hazardous chemical if: (a) the hazardous chemical is a consumer product, or (b) the supplier is a retailer. Note. A manufacturer or importer is required to prepare a safety data sheet under clause 330.
340
Supply of prohibited and restricted carcinogens
(1) The supplier of a prohibited carcinogen referred to in an item in Schedule 10, table 10.1 must not supply the substance unless the person to be supplied with the substance gives the supplier evidence that: (a) the substance is to be used, handled or stored for genuine research or analysis, and (b) either: (i) the regulator has authorised the person to use, handle or store the substance under clause 384, or © 2017 THOMSON REUTERS
413
cl 340
Chapter 7 – Hazardous chemicals
(ii)
the regulator has granted an exemption under Part 11.2 to the person to use, handle or store the substance.
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The supplier of a restricted carcinogen referred to in an item in Schedule 10, table 10.2, column 2 must not supply the substance for a use referred to in column 3 for the item unless the person to be supplied with the substance gives the supplier evidence that: (a) the regulator has authorised the person to use, handle or store the substance under clause 384, or (b) the regulator has granted an exemption to the person under Part 11.2 to use, handle or store the substance. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) A supplier under subclause (1) or (2) must keep a record of: (a) the name of the person supplied, and (b) the name and quantity of the substance supplied. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The supplier must keep the record for 5 years after the substance was last supplied to the person. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. Subdivision 3 – Obligations of persons conducting businesses or undertakings Labelling hazardous chemicals—general requirement A person conducting a business or undertaking at a workplace must ensure that a hazardous chemical used, handled or stored at the workplace is correctly labelled in accordance with clause 335. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 341
342
Labelling hazardous chemicals—containers
(1) A person conducting a business or undertaking at a workplace must ensure that a hazardous chemical is correctly labelled in accordance with clause 335 if the hazardous chemical is: (a) manufactured at the workplace, or (b) transferred or decanted from its original container at the workplace. Maximum penalty: 414
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 344
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that a container that stores a hazardous chemical is correctly labelled in accordance with clause 335 while the container contains the hazardous chemical. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. [Subcl (2) am Reg 61 of 2015, Sch 1[58]]
(3) A person conducting a business or undertaking at a workplace must ensure that a container labelled for a hazardous chemical is used only for the use, handling or storage of the hazardous chemical. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) This clause does not apply to a container if: (a) the hazardous chemical in the container is used immediately after it is put in the container, and (b) the container is thoroughly cleaned immediately after the hazardous chemical is used, handled or stored so that the container is in the condition it would be in if it had never contained the hazardous chemical. [Cl 342 am Reg 61 of 2015]
Labelling hazardous chemicals—pipe work A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that a hazardous chemical in pipe work is identified by a label, sign or another way on or near the pipe work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 343
Person conducting business or undertaking to obtain and give access to safety data sheets 344
(1) A person conducting a business or undertaking at a workplace must obtain the current safety data sheet for a hazardous chemical prepared in accordance with this Regulation from the manufacturer, importer or supplier of the hazardous chemical in the following circumstances: (a) either: (i) not later than when the hazardous chemical is first supplied for use at the workplace, or (ii) if the person is not able to obtain the safety data sheet under subparagraph (i)—as soon as practicable after the hazardous chemical is first supplied to the workplace but before the hazardous chemical is used at the workplace, (b) if the safety data sheet for the hazardous chemical is amended either: © 2017 THOMSON REUTERS
415
cl 344
Chapter 7 – Hazardous chemicals
(i)
not later than when the hazardous chemical is first supplied to the workplace after the safety data sheet is amended, or (ii) if the person is not able to obtain the amended safety data sheet under subparagraph (i)—as soon as practicable after the hazardous chemical is first supplied to the workplace after the safety data sheet is amended and before the hazardous chemical supplied is used at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The hazardous chemical is taken to be first supplied to a workplace if the supply is the first supply of the hazardous chemical to the workplace for 5 years. (3) The person must ensure that the current safety data sheet for the hazardous chemical is readily accessible to: (a) a worker who is involved in using, handling or storing the hazardous chemical at the workplace, and (b) an emergency service worker, or anyone else, who is likely to be exposed to the hazardous chemical at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) Subclauses (1) and (3) do not apply to a hazardous chemical that: (a) is in transit, or (b) if the person conducting the business or undertaking at the workplace is a retailer—is: (i) a consumer product, and (ii) intended for supply to other premises, or (c) is a consumer product and it is reasonably foreseeable that the hazardous chemical will be used at the workplace only in: (i) quantities that are consistent with household use, and (ii) a way that is consistent with household use, and (iii) a way that is incidental to the nature of the work carried out by a worker using the hazardous chemical. (5) In the circumstances referred to in subclause (4), the person must ensure that sufficient information about the safe use, handling and storage of the hazardous chemical is readily accessible to: (a) a worker at the workplace, and (b) an emergency service worker, or anyone else, who is likely to be exposed to the hazardous chemical at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (6) The person must ensure that the current safety data sheet for the hazardous chemical is readily accessible to a person at the workplace if the person: (a) is likely to be affected by the hazardous chemical, and 416
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
(b) Maximum (a) (b)
cl 346
asks for the safety data sheet. penalty: in the case of an individual—$3,600, or in the case of a body corporate—$18,000.
Changes to safety data sheets A person conducting a business or undertaking at a workplace may change a safety data sheet for a hazardous chemical only if: (a) the person: (i) is an importer or manufacturer of the hazardous chemical, and (ii) changes the safety data sheet in a way that is consistent with the duties of the importer or manufacturer under clause 330, or (b) the change is only the attachment of a translation of the safety data sheet, and clearly states that the translation is not part of the original safety data sheet. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 345
Note. The manufacturer or importer of a hazardous chemical must amend a safety data sheet as necessary to ensure the information is correct and current (see clause 330(3)(b)).
DIVISION 3 – REGISTER AND MANIFEST OF HAZARDOUS CHEMICALS Subdivision 1 – Hazardous chemicals register 346
Hazardous chemicals register
(1) A person conducting a business or undertaking at a workplace must ensure that: (a) a register of hazardous chemicals used, handled or stored at the workplace is prepared and kept at the workplace, and (b) the register is maintained to ensure the information in the register is up to date. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The register must include: (a) a list of hazardous chemicals used, handled or stored, and (b) the current safety data sheet for each hazardous chemical listed. (3) The person must ensure that the register is readily accessible to: (a) a worker involved in using, handling or storing a hazardous chemical, and (b) anyone else who is likely to be affected by a hazardous chemical at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. © 2017 THOMSON REUTERS
417
cl 346
Chapter 7 – Hazardous chemicals
(4) This clause does not apply to a hazardous chemical if: (a) the hazardous chemical is in transit, unless there is a significant or frequent presence of the hazardous chemical in transit at the workplace, or (b) the hazardous chemical is a consumer product and the person is not required to obtain a safety data sheet for the hazardous chemical under clause 344. Note: See clause 344(4). [Subcl (4) am Reg 61 of 2015, Sch 1[59]] [Cl 346 am Reg 61 of 2015]
Subdivision 2 – Manifest of Schedule 11 hazardous chemicals Note. Clause 361 requires an emergency plan to be prepared if the quantity of hazardous chemicals used, handled or stored at a workplace exceeds the manifest quantity for that hazardous chemical.
347
Manifest of hazardous chemicals
(1) A person conducting a business or undertaking at a workplace must, if the quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals used, handled or stored at the workplace exceeds the manifest quantity for the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals: (a) prepare a manifest of Schedule 11 hazardous chemicals, and (b) amend the manifest as soon as practicable if: (i) the type or quantity of Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals that must be listed in the manifest changes, or (ii) there is a significant change in the information required to be recorded in the manifest. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A manifest of Schedule 11 hazardous chemicals must comply with Schedule 12. (3) The person must keep the manifest: (a) in a place determined in agreement with the primary emergency service organisation, and (b) available for inspection under the Act, and (c) readily accessible to the emergency service organisation. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Regulator must be notified if manifest quantities to be exceeded 348
(1) A person conducting a business or undertaking at a workplace must ensure that the regulator is given written notice if a quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals that exceeds the manifest 418
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 348
quantity is used, handled or stored, or is to be used, handled or stored, at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The notice under subclause (1) must be given: (a) immediately after the person knows that the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is to be first used, handled or stored at the workplace or at least 14 days before that first use handling or storage (whichever is earlier), and (b) immediately after the person knows that there will be a significant change in the risk of using, handling or storing the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals at the workplace or at least 14 days before that change (whichever is earlier). (c) [Repealed] [Subcl (2) am Reg 61 of 2015, Sch 1[60] and [61]]
(3) The notice under subclause (1) must include the following: (a) the name and ABN of the person conducting the business or undertaking, (b) the type of business or undertaking conducted, (c) if the workplace was previously occupied by someone else—the name of the most recent previous occupier, if known, (d) the activities of the business or undertaking that involve using, handling or storing Schedule 11 hazardous chemicals, (e) the manifest prepared by the person conducting the business or undertaking under clause 347, (f) in the case of a notice under subclause (2)(b)—details of the changes to the manifest. (4) A person conducting a business or undertaking at a workplace must ensure that the regulator is given written notice as soon as practicable after the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals ceases to be used, handled or stored at the workplace if it is not likely to be used, handled or stored at the workplace in the future. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) The notice under subclause (4) must include the information referred to in subclause (3)(a), (b) and (d). (6) If the regulator asks for any further information about the manifest quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals, the person must ensure that the information is given to the regulator. Maximum penalty: (a) in the case of an individual—$6,000, or © 2017 THOMSON REUTERS
419
cl 348
Chapter 7 – Hazardous chemicals
(b)
in the case of a body corporate—$30,000.
[Cl 348 am Reg 61 of 2015]
DIVISION 4 – PLACARDS 349
Outer warning placards—requirement to display
(1) A person conducting a business or undertaking at a workplace must ensure that an outer warning placard is prominently displayed at the workplace if the total quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals used, handled or stored at the workplace exceeds the placard quantity for the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) An outer warning placard must comply with Schedule 13. (3) This clause does not apply to a workplace if: (a) the workplace is a retail outlet, and (b) the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is used to refuel a vehicle, and is either: (i) a flammable gas, or (ii) a flammable liquid. 350
Placard—requirement to display
(1) A person conducting a business or undertaking at a workplace must ensure that a placard is prominently displayed at the workplace if the total quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals stored at the workplace exceeds the placard quantity for the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A placard must comply with Schedule 13. (3) This clause does not apply to a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals if: (a) the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is in bulk in a container, including an IBC, that is intended for transport and a placard is displayed on the container in accordance with the ADG Code, or (b) the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is a flammable liquid stored in an underground tank at a retail outlet and used to refuel a vehicle.
420
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 352
DIVISION 5 – CONTROL OF RISK—OBLIGATIONS OF PERSONS CONDUCTING BUSINESSES OR UNDERTAKINGS Subdivision 1 – General obligations relating to management of risk 351
Management of risks to health or safety
(1) A person conducting a business or undertaking must manage, in accordance with Part 3.1, risks to health and safety associated with using, handling, generating or storing a hazardous chemical at a workplace. Note. WHS Act—section 19 (see clause 9).
(2) In managing risks the person must have regard to the following: (a) the hazardous properties of the hazardous chemical, (b) any potentially hazardous chemical or physical reaction between the hazardous chemical and another substance or mixture, including a substance that may be generated by the reaction, (c) the nature of the work to be carried out with the hazardous chemical, (d) any structure, plant or system of work: (i) that is used in the use, handling, generation or storage of the hazardous chemical, or (ii) that could interact with the hazardous chemical at the workplace. Review of control measures In addition to the circumstances in clause 38, a person conducting a business or undertaking at a workplace must ensure that any measures implemented to control risks in relation to a hazardous chemical at the workplace are reviewed and as necessary revised in any of the following circumstances: (a) following any change to the safety data sheet for the hazardous chemical or the register of hazardous chemicals, (b) if the person obtains a health monitoring report for a worker under Division 6 that contains: (i) test results that indicate that the worker has been exposed to the hazardous chemical and has an elevated level of metabolites in his or her body for that hazardous chemical, or (ii) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work using, handling, generating or storing the hazardous chemical that triggered the requirement for health monitoring, or (iii) any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the work using, handling, generating or storing the hazardous chemical that triggered the requirement for health monitoring, (c) if monitoring carried out under clause 50 determines that the airborne concentration of the hazardous chemical at the workplace exceeds the relevant exposure standard, (d) at least once every 5 years. Maximum penalty: 352
© 2017 THOMSON REUTERS
421
cl 352
Chapter 7 – Hazardous chemicals
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 353
Safety signs
(1) This clause applies if a safety sign is required to control an identified risk in relation to using, handling, generating or storing hazardous chemicals at a workplace. (2) A person conducting a business or undertaking at the workplace must display a safety sign at the workplace to: (a) warn of a particular hazard associated with the hazardous chemicals, or (b) state the responsibilities of a particular person in relation to the hazardous chemicals. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure that the safety sign is: (a) located next to the hazard, and (b) clearly visible to a person approaching the hazard. (4) In this clause, safety sign does not include a placard. 354
Identification of risk of physical or chemical reaction
(1) A person conducting a business or undertaking at a workplace must identify any risk of a physical or chemical reaction in relation to a hazardous chemical used, handled, generated or stored at a workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) Subclause (1) does not apply if the hazardous chemical undergoes the physical or chemical reaction in a manufacturing process or as part of a deliberate process or activity at the workplace. (3) A person conducting a business or undertaking at a workplace must take all reasonable steps to ensure that a hazardous chemical is used, handled, generated or stored so as not to contaminate food, food packaging or personal use products. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Examples. Personal use products: • cosmetics, • face washer.
(4) Subclause (3) does not apply to the use of a hazardous chemical for agricultural purposes when used in accordance with the Pesticides Act 1999. 422
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 357
Specific control—fire and explosion A person conducting a business or undertaking at a workplace must, if there is a possibility of fire or explosion in a hazardous area being caused by an ignition source being introduced into the area, ensure that the ignition source is not introduced into the area (from outside or within the space). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 355
356
Keeping hazardous chemicals stable
(1) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that a hazardous chemical used, handled or stored at the workplace does not become unstable, decompose or change so as to: (a) create a hazard that is different from the hazard originally created by the hazardous chemical, or (b) significantly increase the risk associated with any hazard in relation to the hazardous chemical. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person conducting a business or undertaking at a workplace must ensure that: (a) if the stability of a hazardous chemical used, handled or stored at the workplace is dependent on the maintenance of the proportions of the ingredients of the hazardous chemical—the proportions are maintained as stated in the safety data sheet for the chemical or by the manufacturer of the hazardous chemical, and (b) if a hazardous chemical used, handled or stored at the workplace is known to be unstable above a particular temperature—the hazardous chemical is used, handled or stored at or below that temperature. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) This clause does not apply if: (a) the hazardous chemical is changed or allowed to become unstable, without risk to health or safety, as part of a deliberate process or activity at the workplace, or (b) the hazardous chemical undergoes a chemical reaction in a manufacturing process or as part of a deliberate process or activity at the workplace. Subdivision 2 – Spills and damage 357
Containing and managing spills
(1) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that where there is a risk from a spill or leak of a hazardous chemical in a solid or liquid form, provision is made in © 2017 THOMSON REUTERS
423
cl 357
Chapter 7 – Hazardous chemicals
each part of the workplace where the hazardous chemical is used, handled, generated or stored for a spill containment system that contains within the workplace any part of the hazardous chemical that spills or leaks, and any resulting effluent. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that the spill containment system does not create a hazard by bringing together different hazardous chemicals that are not compatible. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure that the spill containment system provides for the cleanup and disposal of a hazardous chemical that spills or leaks, and any resulting effluent. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) In subclause (2), compatible, for 2 or more substances, mixtures or items, means that the substances, mixtures or items do not react together to cause a fire, explosion, harmful reaction or evolution of flammable, toxic or corrosive vapour. Protecting hazardous chemicals from damage A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that containers of hazardous chemicals and any associated pipe work or attachments are protected against damage caused by an impact or excessive loads. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 358
Subdivision 3 – Emergency plans and safety equipment 359
Fire protection and firefighting equipment
(1) A person conducting a business or undertaking at a workplace must ensure the following: (a) the workplace is provided with fire protection and firefighting equipment that is designed and built for the types of hazardous chemicals at the workplace in the quantities in which they are used, handled, generated or stored at the workplace, and the conditions under which they are used, handled, generated or stored, having regard to: (i) the fire load of the hazardous chemicals, and (ii) the fire load from other sources, and (iii) the compatibility of the hazardous chemicals with other substances and mixtures at the workplace, 424
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
(b)
(c) (d) Maximum (a) (b)
cl 361
the fire protection and firefighting equipment is compatible with firefighting equipment used by the primary emergency service organisation, the fire protection and firefighting equipment is properly installed, tested and maintained, a dated record is kept of the latest testing results and maintenance until the next test is conducted. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
[Subcl (1) am Reg 61 of 2015, Sch 1[62]]
(2) If a part of the fire protection and firefighting equipment provided at the workplace becomes unserviceable or inoperative, the person must ensure that: (a) the implications of the equipment being unserviceable or inoperative are assessed, and (b) for risks that were controlled by the equipment when functioning fully, alternative measures are taken to manage the risks. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must ensure that the fire protection and firefighting equipment is returned to full operation as soon as practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. [Cl 359 am Reg 61 of 2015]
Emergency equipment A person conducting a business or undertaking at a workplace that uses, handles, generates or stores hazardous chemicals must ensure that equipment is always available at the workplace for use in an emergency. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 360
Note. A person conducting a business or undertaking must comply with Division 4 of Part 3.2.
361
Emergency plans
(1) This clause applies if the quantity of a Schedule 11 hazardous chemical used, handled, generated or stored at a workplace exceeds the manifest quantity for that hazardous chemical. (2) A person conducting a business or undertaking at the workplace must give a copy of the emergency plan prepared under Division 4 of Part 3.2 for the workplace to the primary emergency service organisation. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. © 2017 THOMSON REUTERS
425
cl 361
Chapter 7 – Hazardous chemicals
(3) If the primary emergency service organisation gives the person a written recommendation about the content or effectiveness of the emergency plan, the person must revise the plan in accordance with the recommendation. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 362
Safety equipment
(1) This clause applies if safety equipment is required to control an identified risk in relation to using, handling, generating or storing hazardous chemicals at a workplace. (2) A person conducting a business or undertaking at the workplace must ensure that the safety equipment is provided, maintained and readily accessible to persons at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Subdivision 4 – Storage and handling systems 363
Control of risks from storage or handling systems
(1) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that a system used at the workplace for the use, handling or storage of hazardous chemicals: (a) is used only for a purpose for which it was designed, manufactured, modified, supplied or installed, and (b) is operated, tested, maintained, installed, repaired and decommissioned having regard to the health and safety of workers and other persons at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that sufficient information, training and instruction is given to a person who operates, tests, maintains or decommissions a system used at a workplace for the use, handling or storage of hazardous chemicals for the activity to be carried out safely. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Example. Information provided at a training course.
Containers for hazardous chemicals used, handled or stored in bulk A person conducting a business or undertaking at a workplace must ensure that a container in which a hazardous chemical is used, handled or stored in bulk and any associated pipe work or attachments: (a) have stable foundations and supports, and 364
426
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 366
(b)
are secured to the foundations and supports to prevent any movement between the container and the associated pipe work or attachments to prevent: (i) damage to the container, the associated pipe work or attachments, and (ii) a notifiable incident. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 365
Stopping use and disposing of handling systems
(1) This clause applies to a system used at a workplace for the use, handling or storage of hazardous chemicals if a person conducting a business or undertaking at the workplace intends that the system no longer be used for the use, handling or storage of the hazardous chemicals or be disposed of. (2) The person must ensure, so far as is reasonably practicable, that the system is free of the hazardous chemicals when the system stops being used for the use, handling or storage of the hazardous chemicals or is disposed of. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) If it is not reasonably practicable to remove the hazardous chemicals from the system, the person must correctly label the system. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. For correctly labelling hazardous chemicals, see Subdivision 3 of Division 2.
366
Stopping use of underground storage and handling systems
(1) This clause applies in relation to a system used at a workplace for the use, handling or storage of hazardous chemicals underground if a person conducting a business or undertaking at the workplace intends that the system no longer be used for the use, handling or storage of the hazardous chemicals or be disposed of. (2) The person must ensure, so far as is reasonably practicable, that the system is removed. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) If it is not reasonably practicable to remove the system, the person must ensure, so far as is reasonably practicable, that the system is without risks to health and safety. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. © 2017 THOMSON REUTERS
427
cl 367
367
Chapter 7 – Hazardous chemicals
Notification of abandoned tank
(1) This clause applies to a person conducting a business or undertaking at a workplace if: (a) the person controls or manages a tank at the workplace that is underground, partially underground or fully mounded, and (b) the tank was used to store flammable gases or flammable liquids. (2) The tank is taken to be abandoned if: (a) the tank has not been used to store flammable gases or flammable liquids for 2 years, or (b) the person does not intend to use the tank to store flammable gases or flammable liquids again. (3) The person must notify the regulator of the abandonment of the tank as soon as practicable after the tank is abandoned. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) In this clause, tank means a container, other than an IBC designed to use, handle or store hazardous chemicals in bulk, and includes fittings, closures and other equipment attached to the container. DIVISION 6 – HEALTH MONITORING Duty to provide health monitoring A person conducting a business or undertaking must ensure that health monitoring is provided to a worker carrying out work for the business or undertaking if: (a) the worker is carrying out ongoing work at a workplace using, handling, generating or storing hazardous chemicals and there is a significant risk to the worker’s health because of exposure to a hazardous chemical referred to in Schedule 14, table 14.1, column 2, or (b) the person identifies that because of ongoing work carried out by a worker using, handling, generating or storing hazardous chemicals there is a significant risk that the worker will be exposed to a hazardous chemical (other than a hazardous chemical referred to in Schedule 14, table 14.1) and either: (i) valid techniques are available to detect the effect on the worker’s health, or (ii) a valid way of determining biological exposure to the hazardous chemical is available and it is uncertain, on reasonable grounds, whether the exposure to the hazardous chemical has resulted in the biological exposure standard being exceeded. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 368
Note. The biological exposure standard is published by Safe Work Australia.
428
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 372
Duty to inform of health monitoring A person conducting a business or undertaking who is required to provide health monitoring to a worker must give information about the health monitoring requirements to: (a) a person who is likely to be engaged to carry out work using, handling, generating or storing a hazardous chemical, and (b) a worker for the business or undertaking, before the worker commences work using, handling, generating or storing a hazardous chemical. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 369
Duty to ensure that appropriate health monitoring is provided A person conducting a business or undertaking must ensure that health monitoring of a worker referred to in clause 368 includes health monitoring of a type referred to in an item in Schedule 14, table 14.1, column 3 in relation to a hazardous chemical referred to in column 2 for the item, unless: (a) an equal or better type of health monitoring is available, and (b) the use of that other type of monitoring is recommended by a registered medical practitioner with experience in health monitoring. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 370
Duty to ensure health monitoring is supervised by registered medical practitioner with experience 371
(1) A person conducting a business or undertaking must ensure that the health monitoring of a worker referred to in clause 368 is carried out by or under the supervision of a registered medical practitioner with experience in health monitoring. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must consult the worker in relation to the selection of the registered medical practitioner. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 372
Duty to pay costs of health monitoring
(1) A person conducting a business or undertaking must pay all expenses relating to health monitoring referred to in clause 368. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. © 2017 THOMSON REUTERS
429
cl 372
Chapter 7 – Hazardous chemicals
(2) If 2 or more persons conducting businesses or undertakings have a duty to provide health monitoring for a worker and have arranged for one of them to commission the health monitoring, the costs of the health monitoring for which any of those persons is liable must be apportioned equally between each of those persons unless they agree otherwise. Information that must be provided to registered medical practitioner A person conducting a business or undertaking who commissions health monitoring for a worker must provide the following information to the registered medical practitioner carrying out or supervising the health monitoring: (a) the name and address of the person conducting the business or undertaking, (b) the name and date of birth of the worker, (c) the work that the worker is, or will be, carrying out that has triggered the requirement for health monitoring, (d) if the worker has started that work—how long the worker has been carrying out that work. 373
Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 374
Duty to obtain health monitoring report
(1) A person conducting a business or undertaking who commissions health monitoring referred to in clause 368 must take all reasonable steps to obtain a health monitoring report from the registered medical practitioner who carried out or supervised the monitoring as soon as practicable after the monitoring is carried out in relation to a worker. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The health monitoring report must include the following: (a) the name and date of birth of the worker, (b) the name and registration number of the registered medical practitioner, (c) the name and address of the person conducting the business or undertaking who commissioned the health monitoring, (d) the date of the health monitoring, (e) any test results that indicate whether or not the worker has been exposed to a hazardous chemical, (f) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work that triggered the requirement for health monitoring, (g) any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the type of work that triggered the requirement for health monitoring, 430
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
(h)
cl 378
whether medical counselling is required for the worker in relation to the work that triggered the requirement for health monitoring.
Duty to give health monitoring report to worker The person conducting a business or undertaking who commissioned health monitoring for a worker must give a copy of the health monitoring report to the worker as soon as practicable after the person obtains the report. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 375
Duty to give health monitoring report to regulator A person conducting a business or undertaking for whom a worker is carrying out work for which health monitoring is required must give a copy of the health monitoring report relating to a worker to the regulator as soon as practicable after obtaining the report if the report contains: (a) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work using, handling, generating or storing hazardous chemicals that triggered the requirement for health monitoring, or (b) any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the work using, handling, generating or storing hazardous chemicals that triggered the requirement for health monitoring. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 376
Duty to give health monitoring report to relevant persons conducting businesses or undertakings The person who commissioned health monitoring for a worker under clause 368 must give a copy of the health monitoring report to all other persons conducting businesses or undertakings who have a duty to provide health monitoring for the worker as soon as practicable after obtaining the report. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 377
378
Health monitoring records
(1) A person conducting a business or undertaking must ensure that health monitoring reports in relation to a worker carrying out work for the business or undertaking are kept as a confidential record: (a) identified as a record in relation to the worker, and (b) for at least 30 years after the record is made. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. © 2017 THOMSON REUTERS
431
cl 378
Chapter 7 – Hazardous chemicals
(2) The person must ensure that the health monitoring report and results of a worker are not disclosed to another person without the worker’s written consent. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) Subclause (2) does not apply if the record is disclosed under clause 376 or 377 or to a person who must keep the record confidential under a duty of professional confidentiality. DIVISION 7 – INDUCTION, INFORMATION, TRAINING AND SUPERVISION 379
Duty to provide supervision
(1) A person conducting a business or undertaking at a workplace must provide any supervision to a worker that is necessary to protect the worker from risks to the worker’s health and safety arising from the work if, at the workplace, the worker: (a) uses, handles, generates or stores a hazardous chemical, or (b) operates, tests, maintains, repairs or decommissions a storage or handling system for a hazardous chemical, or (c) is likely to be exposed to a hazardous chemical. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that the supervision of the worker is suitable and adequate having regard to: (a) the nature of the risks associated with the hazardous chemical, and (b) the information, training and instruction required under clause 39. Note. In addition, section 19(3)(f) of the Act requires the provision of information, training, instruction and supervision.
DIVISION 8 – PROHIBITION, AUTHORISATION AND RESTRICTED USE Using, handling and storing prohibited carcinogens A person conducting a business or undertaking at a workplace must not use, handle or store, or direct or allow a worker at the workplace to use, handle or store, a prohibited carcinogen referred to in Schedule 10, table 10.1, column 2 unless: (a) the prohibited carcinogen is used, handled or stored for genuine research or analysis, and (b) the regulator has authorised the use, handling or storage of the prohibited carcinogen under clause 384. 380
Note. See section 43 of the Act.
Using, handling and storing restricted carcinogens A person conducting a business or undertaking at a workplace must not use, handle or store, or direct or allow a worker at the workplace to use, handle or store, a restricted carcinogen referred to in an item in Schedule 10, table 10.2, 381
432
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 383
column 2 for a purpose referred to in column 3 for the item unless the regulator has authorised the use, handling or storage of the restricted carcinogen under clause 384. Note. See section 43 of the Act.
382
Using, handling and storing restricted hazardous chemicals
(1) A person conducting a business or undertaking at a workplace must not use, handle or store, or direct or allow a worker at the workplace to use, handle or store, a restricted hazardous chemical referred to in an item in Schedule 10, table 10.3, column 2 for a purpose referred to in column 3 for the item. (2) A person conducting a business or undertaking at a workplace must not use, handle or store, or direct or allow a worker at the workplace to use, handle or store, polychlorinated biphenyls (PCBs) unless the use, handling or storage is: (a) in relation to existing electrical equipment or construction material, or (b) for disposal purposes, or (c) for genuine research and analysis. Note. See section 43 of the Act.
Application for authorisation to use, handle or store prohibited and restricted carcinogens 383
(1) A person conducting a business or undertaking at a workplace may apply in writing to the regulator for authorisation to use, handle or store a prohibited carcinogen or restricted carcinogen referred to in Schedule 10 at the workplace. (2) The application must include the following information: (a) the applicant’s name and business address, (b) if the applicant conducts the business or undertaking under a business name, that business name, (c) the name and address of the supplier of the carcinogen, (d) the address where the carcinogen will be used, handled or stored, (e) the name of the carcinogen, (f) the quantity of the carcinogen to be used, handled or stored at the workplace each year, (g) the purpose and activity for which the carcinogen will be used, handled or stored, (h) the number of workers that may be exposed to the carcinogen, (i) information about how the person will manage risks to health and safety, including a summary of the steps taken, or to be taken, by the person in relation to the following: (i) hazard identification, (ii) control measures, (iii) if elimination or substitution of the carcinogen is not reasonably practicable—why the elimination or substitution is not reasonably practicable, (j) any other information requested by the regulator. © 2017 THOMSON REUTERS
433
cl 384
Chapter 7 – Hazardous chemicals
Authorisation to use, handle or store prohibited carcinogens and restricted carcinogens 384
(1) If a person applies under clause 383, the regulator may grant an authorisation to use, handle or store a prohibited carcinogen or restricted carcinogen under this clause. (2) The regulator may authorise the person to use, handle or store a prohibited carcinogen referred to in an item in Schedule 10, table 10.1 at the workplace only if the carcinogen will be used, handled or stored only for genuine research or analysis. (3) The regulator may authorise the person to use, handle or store a restricted carcinogen referred to in an item in Schedule 10, table 10.2 at the workplace only if the carcinogen will be used, handled or stored only for a use referred to in column 3 for the item. (4) The regulator may impose any conditions on the authorisation that the regulator considers necessary to achieve the objectives of the Act or this Regulation. (5) The regulator must refuse to authorise the use, handling or storage of the carcinogen for a use not referred to in this clause. Note. A decision to refuse an authorisation is a reviewable decision (see clause 676).
Changes to information in application to be reported A person who applies under clause 383 for authorisation to use, handle or store a prohibited carcinogen or restricted carcinogen must give the regulator written notice of any change in the information given in the application before the change or as soon as practicable after the person becomes aware of the change. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 385
Regulator may cancel authorisation The regulator may cancel an authorisation to use, handle or store a prohibited carcinogen or restricted carcinogen given under clause 384 if satisfied that: (a) the person granted the authorisation has not complied with a condition on the authorisation, or (b) the risk to the health or safety of a worker that may be affected by using, handling or storing the carcinogen has changed since the authorisation was granted. 386
Note. A decision to cancel an authorisation is a reviewable decision (see clause 676).
387
Statement of exposure to be given to workers
(1) This clause applies if: (a) a person conducting a business or undertaking at a workplace is authorised under clause 384 to use, handle or store a prohibited carcinogen or restricted carcinogen at the workplace, and (b) a worker uses, handles or stores the prohibited carcinogen or restricted carcinogen at the workplace. 434
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.1 – Hazardous chemicals
cl 389
(2) The person must give to the worker, at the end of the worker’s engagement by the person, a written statement of the following: (a) the name of the prohibited or restricted carcinogen to which the worker may have been exposed during the engagement, (b) the time the worker may have been exposed, (c) how and where the worker may obtain records of the possible exposure, (d) whether the worker should undertake regular health assessments, and the relevant tests to undertake. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 388
Records to be kept
(1) This clause applies if a person conducting a business or undertaking at a workplace is authorised under clause 384 to use, handle or store a prohibited carcinogen or restricted carcinogen at the workplace. (2) The person must: (a) record the full name, date of birth and address of each worker likely to be exposed to the prohibited carcinogen or restricted carcinogen during the period of authorisation, and (b) keep a copy of each authorisation given to the person including any conditions imposed on the authorisation. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The person must keep the records for 30 years after the authorisation ends. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. DIVISION 9 – PIPELINES 389
Management of risk by pipeline owner
(1) The owner of a pipeline used to transfer hazardous chemicals must manage risks associated with the transfer of the hazardous chemicals through that pipeline. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Example. Risks associated with the testing, installation, commissioning, operation, maintenance and decommissioning of the pipeline.
(2) The owner of a pipeline used to transfer hazardous chemicals must ensure, so far as is reasonably practicable, that an activity, structure, equipment or substance that is not part of the pipeline does not affect the hazardous chemicals or the pipeline in a way that increases risk. Maximum penalty: © 2017 THOMSON REUTERS
435
cl 389
Chapter 7 – Hazardous chemicals
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 390
Pipeline builder’s duties
(1) This clause applies to a person who intends to build a pipeline that will: (a) cross into a public place, and (b) be used to transfer a Schedule 11 hazardous chemical. (2) The person must ensure that, before the building of the pipeline commences, the regulator is given the following information: (a) the name of the pipeline’s intended owner and operator, (b) the pipeline’s specifications, (c) the intended procedures for the operation, maintenance, renewal and relaying of the pipeline, (d) any public place that the pipeline will cross, (e) the intended emergency response procedures. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) The person must ensure that the regulator is given the information in the following circumstances: (a) before the pipeline is commissioned, (b) before the pipeline is likely to contain a hazardous chemical, (c) if there is any change in the information given under subclause (2)—when the information changes, (d) if part of the pipeline is to be repaired—before the pipeline is repaired, (e) if part of the pipeline is removed, decommissioned, closed or abandoned—when the removal, decommissioning, closure or abandonment occurs. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 391
Management of risks to health and safety by pipeline operator
(1) A person conducting a business or undertaking at a workplace who is the operator of a pipeline (the operator) used to transfer hazardous chemicals must manage, in accordance with Part 3.1, risks to health and safety associated with the transfer of the hazardous chemicals through the pipeline. Note. WHS Act—section 19 (see clause 9).
(2) The operator of a pipeline used to transfer a hazardous chemical must ensure, so far as is reasonably practicable, that the hazardous chemical transferred is identified by a label, sign or another way on or near the pipeline. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 436
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.2 – Lead
cl 392
(3) The operator of a pipeline that transfers a Schedule 11 hazardous chemical into a public place must ensure that the regulator is notified of: (a) the supplier of the hazardous chemical, and (b) the receiver of the hazardous chemical, and (c) the correct classification of the hazardous chemical. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000.
Part 7.2 – Lead Note. In workplaces where lead processes are carried out, this Part applies in addition to Part 7.1.
DIVISION 1 – LEAD PROCESS 392
Meaning of “lead process”
In this Part, a lead process consists of any of the following carried out at a workplace: (a) work that exposes a person to lead dust or lead fumes arising from the manufacture or handling of dry lead compounds, (b) work in connection with the manufacture, assembly, handling or repair of, or parts of, batteries containing lead that involves the manipulation of dry lead compounds, or pasting or casting lead, (c) breaking up or dismantling batteries containing lead, or sorting, packing and handling plates or other parts containing lead that are removed or recovered from the batteries, (d) spraying molten lead metal or alloys containing more than 5% by weight of lead metal, (e) melting or casting lead alloys containing more than 5% by weight of lead metal in which the temperature of the molten material exceeds 450°C, (f) recovering lead from its ores, oxides or other compounds by thermal reduction process, (g) dry machine grinding, discing, buffing or cutting by power tools alloys containing more than 5% by weight of lead metal, (h) machine sanding or buffing surfaces coated with paint containing more than 1% by dry weight of lead, (i) a process by which electric arc, oxyacetylene, oxy gas, plasma arc or a flame is applied for welding, cutting or cleaning, to the surface of metal coated with lead or paint containing more than 1% by dry weight of lead metal, (j) radiator repairs that may cause exposure to lead dust or lead fumes, (k) fire assays if lead, lead compounds or lead alloys are used, (l) hand grinding and finishing lead or alloys containing more than 50% by dry weight of lead, (m) spray painting with lead paint containing more than 1% by dry weight of lead, © 2017 THOMSON REUTERS
437
cl 392
Chapter 7 – Hazardous chemicals
(n)
(o)
(p)
(q) (r)
(s) 393
melting lead metal or alloys containing more than 50% by weight of lead metal if the exposed surface area of the molten material exceeds 0.1 square metre and the temperature of the molten material does not exceed 450°C, using a power tool, including abrasive blasting and high pressure water jets, to remove a surface coated with paint containing more than 1% by dry weight of lead and handling waste containing lead resulting from the removal, a process that exposes a person to lead dust or lead fumes arising from manufacturing or testing detonators or other explosives that contain lead, a process that exposes a person to lead dust or lead fumes arising from firing weapons at an indoor firing range, foundry processes involving: (i) melting or casting lead alloys containing more than 1% by weight of lead metal in which the temperature of the molten material exceeds 450°C, or (ii) dry machine grinding, discing, buffing or cutting by power tools lead alloys containing more than 1% by weight of lead metal, a process decided by the regulator to be a lead process under clause 393.
Regulator may decide lead process
(1) The regulator may decide that a process to be carried out at a workplace is a lead process. (2) The regulator must not decide that the process is a lead process unless the regulator is satisfied on reasonable grounds that the process creates a risk to the health of a worker at the workplace having regard to blood lead levels of workers, or airborne lead levels, at the workplace. Note. A decision that a process is a lead process is a reviewable decision (see clause 676).
(3) The regulator must, within 14 days after a decision is made under subclause (1), give written notice of the decision to the person conducting a business or undertaking at the workplace. Meaning of “lead risk work” In this Part, lead risk work means work carried out in a lead process that is likely to cause the blood lead level of a worker carrying out the work to exceed: (a) for a female of reproductive capacity—10µg/dL (0.48µmol/L), or (b) in any other case—30µg/dL (1.45µmol/L). 394
395
Duty to give information about health risks of lead process
(1) A person conducting a business or undertaking that carries out a lead process must give information about the lead process to: (a) a person who is likely to be engaged to carry out the lead process—before the person is engaged, and (b) a worker for the business or undertaking—before the worker commences the lead process. Maximum penalty: 438
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.2 – Lead
cl 398
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If work is identified as lead risk work after a worker commences the work, the person conducting a business or undertaking must give information about the lead process to the worker as soon as practicable after it is identified as lead risk work and before health monitoring of the worker is provided under Division 4 of this Part. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The information that must be given is: (a) information about the health risks and toxic effects associated with exposure to lead, and (b) if the lead process involves lead risk work—the need for, and details of, health monitoring under Division 4 of this Part. DIVISION 2 – CONTROL OF RISK 396
Containment of lead contamination
A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that contamination by lead is confined to a lead process area at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 397
Cleaning methods
(1) A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that a lead process area at the workplace is kept clean. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that the methods used to clean a lead process area: (a) do not create a risk to the health of persons in the immediate vicinity of the area, and (b) do not have the potential to spread the contamination of lead. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 398
Prohibition on eating, drinking and smoking
(1) A person conducting a business or undertaking at a workplace must take all reasonable steps to ensure that a person does not eat, drink, chew gum, smoke or carry materials used for smoking in a lead process area at the workplace. Maximum penalty: © 2017 THOMSON REUTERS
439
cl 398
Chapter 7 – Hazardous chemicals
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person conducting a business or undertaking at a workplace must provide workers with an eating and drinking area that, so far as is reasonably practicable, cannot be contaminated with lead from a lead process. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 399
Provision of changing and washing facilities
(1) A person conducting a business or undertaking at a workplace must provide and maintain in good working order changing rooms and washing, showering and toilet facilities at the workplace so as to: (a) minimise secondary lead exposure from contaminated clothing, and (b) minimise ingestion of lead, and (c) avoid the spread of lead contamination. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure, so far as is reasonably practicable, that workers at the workplace remove clothing and equipment that is or is likely to be contaminated with lead, and wash their hands and faces, before entering an eating or drinking area at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Laundering, disposal and removal of personal protective equipment 400
(1) A person conducting a business or undertaking at a workplace must ensure that personal protective equipment that is likely to be contaminated with lead dust: (a) is sealed in a container before being removed from the lead process area, and (b) so far as is reasonably practicable, is disposed of on the completion of the lead process work at a site equipped to accept leadcontaminated equipment, and (c) if it is not reasonably practicable to dispose of the personal protective equipment that is clothing: (i) is laundered at a laundry, whether on site or off-site, equipped to launder lead-contaminated clothing, or (ii) if it is not practicable to launder the clothing—is kept in the sealed container until it is re-used for lead process work, and (d) if it is not reasonably practicable to dispose of the personal protective equipment that is not clothing: (i) is decontaminated before it is removed from the lead process area, or 440
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.2 – Lead
cl 401
(ii)
if it is not practicable to decontaminate the equipment in the lead process area—is kept in the sealed container until it is re-used for lead process work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Example. Work boots.
(2) The person must ensure that a sealed container referred to in subclause (1) is decontaminated before being removed from the lead process area. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. Clause 335 also requires the container to be labelled to indicate the presence of lead.
(3) The person must take all reasonable steps to ensure that clothing contaminated with lead-dust is not removed from the workplace unless it is to be: (a) laundered in accordance with this clause, or (b) disposed of. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 401
Review of control measures
(1) A person conducting a business or undertaking at a workplace must ensure that any measures implemented to control health risks from exposure to lead at the workplace are reviewed and as necessary revised in the following circumstances: (a) a worker is removed from carrying out lead risk work at the workplace under clause 415, (b) the person obtains a health monitoring report for a worker under Division 4 that contains: (i) test results that indicate that the worker has reached or exceeded the relevant blood lead level for that worker under clause 415, and (ii) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the lead risk work that triggered the requirement for health monitoring, and (iii) any recommendation that the person conducting the business or undertaking take remedial measures, including a recommendation that the worker be removed from carrying out lead risk work at the workplace, (c) the control measure does not control the risk it was implemented to control so far as is reasonably practicable,
2
Examples. 1 Results of any monitoring. A notifiable incident occurs because of the risk.
© 2017 THOMSON REUTERS
441
cl 401
Chapter 7 – Hazardous chemicals
(d)
(e) (f) (g) (h) (i) Maximum (a) (b)
before a change at the workplace that is likely to give rise to a new or different risk to health or safety that the measure may not effectively control, a new relevant hazard or risk is identified, the results of consultation by the person under the Act or this Regulation indicate that a review is necessary, a health and safety representative requests a review under subclause (3), the regulator requires the review, at least once every 5 years. penalty: in the case of an individual—$3,600, or in the case of a body corporate—$18,000.
(2) Without limiting subclause (1)(d), a change at the workplace includes: (a) a change to the workplace itself or any aspect of the work environment, or (b) a change to a system of work, a process or a procedure. (3) A health and safety representative for workers at a workplace may request a review of a control measure if the representative reasonably believes that: (a) a circumstance referred to in subclause (1)(a), (b), (c), (d), (e) or (f) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and (b) the duty holder has not adequately reviewed the control measure in response to the circumstance. DIVISION 3 – LEAD RISK WORK 402
Identifying lead risk work
(1) A person conducting a business or undertaking at a workplace must assess each lead process carried out by the business or undertaking at the workplace to determine if lead risk work is carried out in the process. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In assessing a lead process, the person must have regard to the following: (a) past biological monitoring results of workers, (b) airborne lead levels, (c) the form of lead used, (d) the tasks and processes required to be undertaken with lead, (e) the likely duration and frequency of exposure to lead, (f) possible routes of exposure to lead, (g) any information about incidents, illnesses or diseases in relation to the use of lead at the workplace. (3) In assessing a lead process, the person must not have regard to the effect of using personal protective equipment on the health and safety of workers at the workplace. 442
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.2 – Lead
cl 404
(4) If a person conducting a business or undertaking at a workplace is unable to determine whether lead risk work is carried out in a lead process at the workplace, the process is taken to include lead risk work until the person determines that lead risk work is not carried out in the process. 403
Notification of lead risk work
(1) Subject to subclause (5), if a person conducting a business or undertaking at a workplace determines that work at the workplace is lead risk work, the person must give the regulator written notice within 7 days that the work is lead risk work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) A notice under this clause must state the kind of lead process being carried out that includes the lead risk work. (3) The person must: (a) keep a copy of the notice given to the regulator while the lead risk work is carried out at the workplace, and (b) ensure that a copy of the notice is readily accessible to a worker who is likely to be exposed to lead, and the worker’s health and safety representative. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) Subclause (5) applies to an emergency service organisation in relation to work carried out by an emergency service worker who, at the direction of the emergency service organisation, is: (a) rescuing a person, or (b) providing first aid to a person. (5) The emergency service organisation must give notice under subclause (1) as soon as practicable after determining that the work is lead risk work. 404
Changes to information in notification of lead risk work
(1) A person conducting a business or undertaking at a workplace must give the regulator written notice of any change in the information given in a notice under clause 403 before the change or as soon as practicable after the person becomes aware of the change. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) The person must: (a) keep a copy of the notice given to the regulator while the lead risk work is carried out at the workplace, and © 2017 THOMSON REUTERS
443
cl 404
Chapter 7 – Hazardous chemicals
(b)
ensure that a copy of the notice is readily accessible to a worker who is likely to be exposed to lead, and the worker’s health and safety representative. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. DIVISION 4 – HEALTH MONITORING Duty to provide health monitoring before first commencing lead risk work 405
(1) A person conducting a business or undertaking at a workplace must ensure that health monitoring is provided to a worker: (a) before the worker first commences lead risk work for the person, and (b) 1 month after the worker first commences lead risk work for the person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If work is identified as lead risk work after a worker commences the work, the person conducting the business or undertaking must ensure that health monitoring of the worker is provided: (a) as soon as practicable after the lead risk work is identified, and (b) 1 month after the first monitoring of the worker under paragraph (a). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Duty to ensure that appropriate health monitoring is provided Subject to clause 407, a person conducting a business or undertaking must ensure that health monitoring of a worker referred to in clause 405 includes health monitoring of a type referred to in an item in Schedule 14, table 14.2 unless: (a) an equal or better type of health monitoring is available, and (b) the use of that other type of monitoring is recommended by a registered medical practitioner with experience in health monitoring. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 406
407
Frequency of biological monitoring
(1) A person conducting a business or undertaking at a workplace must arrange for biological monitoring of each worker who carries out lead risk work for the person to be carried out at the following times: (a) for females not of reproductive capacity and males: (i) if the last monitoring shows a blood lead level of less than 30µg/dL (1.45µmol/L)—6 months after the last biological monitoring of the worker, or 444
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.2 – Lead
cl 408
(ii)
(b)
Maximum (a) (b)
if the last monitoring shows a blood lead level of 30µg/dL (1.45µmol/L) or more but less than 40µg/dL (1.93µmol/L)—3 months after the last biological monitoring of the worker, or (iii) if the last monitoring shows a blood lead level of 40µg/dL (1.93µmol/L) or more—6 weeks after the last biological monitoring of the worker, for females of reproductive capacity: (i) if the last monitoring shows a blood lead level of less than 10µg/dL (0.48µmol/L)—3 months after the last biological monitoring of the worker, or (ii) if the last monitoring shows a blood lead level of 10µg/dL (0.48µmol/L) or more—6 weeks after the last biological monitoring of the worker. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
(2) The person must increase the frequency of biological monitoring of a worker who carries out lead risk work if the worker carries out an activity that is likely to significantly change the nature or increase the duration or frequency of the worker’s lead exposure. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The regulator may determine a different frequency for biological monitoring of workers at a workplace, or a class of workers, carrying out lead risk work having regard to: (a) the nature of the work and the likely duration and frequency of the workers’ lead exposure, and (b) the likelihood that the blood lead level of the workers will significantly increase. (4) The regulator must give a person conducting a business or undertaking written notice of a determination under subclause (3) within 14 days after making the determination. (5) The person conducting a business or undertaking at the workplace must arrange for biological monitoring to be carried out at the frequency stated in a determination notified to the person under subclause (4). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. A determination of a different frequency for biological monitoring is a reviewable decision (see clause 676).
Duty to ensure health monitoring is supervised by registered medical practitioner with relevant experience 408
(1) A person conducting a business or undertaking must ensure that the health monitoring of a worker referred to in this Division is carried out by or under the supervision of a registered medical practitioner with experience in health © 2017 THOMSON REUTERS
445
cl 408
Chapter 7 – Hazardous chemicals
monitoring. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must consult the worker in relation to the selection of the registered medical practitioner. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 409
Duty to pay costs of health monitoring
(1) A person conducting a business or undertaking must pay all expenses relating to health monitoring referred to in this Division. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) If 2 or more persons conducting businesses or undertakings have a duty to provide health monitoring for a worker and have arranged for one of them to commission the health monitoring, the costs of the health monitoring for which any of those persons is liable must be apportioned equally between each of those persons unless they agree otherwise. Information that must be provided to registered medical practitioner A person conducting a business or undertaking who commissions health monitoring for a worker must provide the following information to the registered medical practitioner carrying out or supervising the health monitoring: (a) the name and address of the person conducting the business or undertaking, (b) the name and date of birth of the worker, (c) the lead risk work that the worker is, or will be, carrying out that has triggered the requirement for health monitoring, (d) if the worker has started that work, how long the worker has been carrying out that work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 410
411
Duty to obtain health monitoring report
(1) A person conducting a business or undertaking who commissioned health monitoring referred to in this Division must take all reasonable steps to obtain a health monitoring report from the registered medical practitioner who carried out or supervised the monitoring as soon as practicable after the monitoring is carried out in relation to a worker. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 446
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.2 – Lead
cl 413
(2) The health monitoring report must include the following: (a) the name and date of birth of the worker, (b) the name and registration number of the registered medical practitioner, (c) the name and address of the person conducting the business or undertaking who commissioned the health monitoring, (d) the date of health monitoring, (e) if a blood sample is taken—the date the blood sample is taken, (f) the results of biological monitoring that indicate blood lead levels in the worker’s body, (g) the name of the pathology service used to carry out tests, (h) any test results that indicate that the worker has reached or exceeded the relevant blood lead level for that worker under clause 415, (i) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the lead risk work that triggered the requirement for health monitoring, (j) any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the type of work that triggered the requirement for health monitoring, Note. The duty under clause 415 to remove a worker from carrying out lead risk work applies even if there is no recommendation of a registered medical practitioner to do so.
(k)
whether medical counselling is required for the worker in relation to the work that triggered the requirement for health monitoring.
Duty to give health monitoring report to worker A person conducting a business or undertaking who commissioned health monitoring for a worker must give a copy of the health monitoring report to the worker as soon as practicable after the person obtains the report. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 412
Duty to give health monitoring report to regulator A person conducting a business or undertaking for which a worker is carrying out work for which health monitoring is required must give a copy of the health monitoring report relating to the worker to the regulator as soon as practicable after obtaining the report if the report contains: (a) test results that indicate that the worker has reached or exceeded the relevant blood lead level for that person under clause 415, or (b) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work that triggered the requirement for health monitoring, or (c) any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the work that triggered the requirement for health monitoring. Maximum penalty: 413
© 2017 THOMSON REUTERS
447
cl 413
Chapter 7 – Hazardous chemicals
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Duty to give health monitoring report to relevant persons conducting businesses or undertakings A person conducting a business or undertaking who commissioned health monitoring for a worker under this Division must give a copy of the health monitoring report to all other persons conducting businesses or undertakings who have a duty to provide health monitoring for the worker as soon as practicable after obtaining the report. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 414
415
Removal of worker from lead risk work
(1) A person conducting a business or undertaking for which a worker is carrying out work must immediately remove the worker from carrying out lead risk work if following health monitoring: (a) biological monitoring of the worker shows that the worker’s blood lead level is, or is more than: (i) for females not of reproductive capacity and males—50µg/dL (2.42µmol/L), or (ii) for females of reproductive capacity—20µg/dL (0.97µmol/L), or (iii) for females who are pregnant or breastfeeding—15µg/dL (0.72µmol/L), or (b) the registered medical practitioner who supervised the health monitoring recommends that the worker be removed from carrying out the lead risk work, or (c) there is an indication that a risk control measure has failed and, as a result, the worker’s blood lead level is likely to reach the relevant level for the worker referred to in paragraph (a). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must notify the regulator as soon as practicable if a worker is removed from carrying out lead risk work under subclause (1). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Duty to ensure medical examination if worker removed from lead risk work 416
(1) This clause applies if a worker is removed from carrying out lead risk work under clause 415. (2) The person conducting the business or undertaking who removes the worker from carrying out lead risk work must arrange for the worker to be 448
Tooma’s Annotated Work Health and Safety Act 2011
Part 7.2 – Lead
cl 418
medically examined by a registered medical practitioner with experience in health monitoring within 7 days after the day the worker is removed. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must consult the worker in the selection of the registered medical practitioner. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 417
Return to lead risk work after removal
(1) This clause applies if: (a) a worker is removed from carrying out lead risk work under clause 415, and (b) the person conducting a business or undertaking at the workplace who removed the worker expects the worker to return to carrying out lead risk work at the workplace. (2) The person conducting the business or undertaking must arrange for health monitoring under the supervision of a registered medical practitioner with experience in health monitoring at a frequency decided by the practitioner to determine whether the worker’s blood lead level is low enough for the worker to return to carrying out lead risk work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person conducting the business or undertaking must ensure that the worker does not return to carrying out lead risk work until: (a) the worker’s blood lead level is less than: (i) for females not of reproductive capacity and males—40µg/dL (1.93µmol/L), or (ii) for females of reproductive capacity—10µg/dL (0.48µmol/L), and (b) a registered medical practitioner with experience in health monitoring is satisfied that the worker is fit to return to carrying out lead risk work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 418
Health monitoring records
(1) A person conducting a business or undertaking must ensure that health monitoring reports in relation to a worker carrying out work for the business or undertaking are kept as a confidential record: (a) identified as a record in relation to the worker, and © 2017 THOMSON REUTERS
449
cl 418
(b) Maximum (a) (b)
Chapter 7 – Hazardous chemicals
for at least 30 years after the record is made. penalty: in the case of an individual—$1,250, or in the case of a body corporate—$6,000.
(2) The person must ensure that the health monitoring report and results of a worker are not disclosed to another person without the worker’s written consent. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) Subclause (2) does not apply if the record is disclosed under clause 412, 413 or 414 or to a person who must keep the record confidential under a duty of professional confidentiality. [Cl 418 subst Reg 61 of 2015, Sch 1[63]]
450
Tooma’s Annotated Work Health and Safety Act 2011
CHAPTER 8 – ASBESTOS Part 8.1 – Prohibitions and authorised conduct 419
Work involving asbestos or ACM—prohibitions and exceptions
(1) A person conducting a business or undertaking must not carry out, or direct or allow a worker to carry out, work involving asbestos. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In this clause, work involves asbestos if the work involves manufacturing, supplying, transporting, storing, removing, using, installing, handling, treating, disposing of or disturbing asbestos or ACM. (3) Subclause (1) does not apply if the work involving asbestos is any of the following: (a) genuine research and analysis, (b) sampling and identification in accordance with this Regulation, (c) maintenance of, or service work on, non friable asbestos or ACM, fixed or installed before 31 December 2003, in accordance with this Regulation, (d) removal or disposal of asbestos or ACM, including demolition, in accordance with this Regulation, (e) the transport and disposal of asbestos or asbestos waste in accordance with the Protection of the Environment Operations Act 1997, (f) demonstrations, education or practical training in relation to asbestos or ACM, (g) display, or preparation or maintenance for display, of an artefact or thing that is, or includes, asbestos or ACM, (h) management in accordance with this Regulation of in situ asbestos that was installed or fixed before 31 December 2003, (i) work that disturbs asbestos during mining operations that involve the extraction of, or exploration for, a mineral other than asbestos, (j) laundering asbestos contaminated clothing in accordance with this Regulation. (4) Subclause (1) does not apply if the regulator approves the method adopted for managing risk associated with asbestos. (5) Subclause (1) does not apply to the following: (a) soil that a competent person has determined: (i) does not contain any visible ACM or friable asbestos, or
© 2017 THOMSON REUTERS
451
cl 419
Chapter 8 – Asbestos
(ii)
if friable asbestos is visible—does not contain more than trace levels of asbestos determined in accordance with AS 4964:2004 (Method for the qualitative identification of asbestos in bulk samples), (b) naturally occurring asbestos managed in accordance with an asbestos management plan prepared under clause 432.
Part 8.2 – General duty 420
Exposure to airborne asbestos at workplace
(1) A person conducting a business or undertaking at a workplace must ensure that: (a) exposure of a person at the workplace to airborne asbestos is eliminated so far as is reasonably practicable, and (b) if it not reasonably practicable to eliminate exposure to airborne asbestos—exposure is minimised so far as is reasonably practicable. Note. WHS Act—section 19 (see clause 9).
(2) A person conducting a business or undertaking at a workplace must ensure that the exposure standard for asbestos is not exceeded at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) Subclauses (1)(a) and (2) do not apply in relation to an asbestos removal area: (a) that is enclosed to prevent the release of respirable asbestos fibres in accordance with clause 477, and (b) in which negative pressure is used in accordance with that clause.
Part 8.3 – Management of asbestos and associated risks 421
Application of Part 8.3
(1) This Part does not apply to naturally occurring asbestos. (2) Clauses 425, 426, 427, 428, 429 and 430 do not apply to any part of residential premises that is used only for residential purposes. [Subcl (2) insrt Reg 61 of 2015, Sch 1[64]] [Cl 421 am Reg 61 of 2015]
422
Asbestos to be identified or assumed at workplace
(1) A person with management or control of a workplace must ensure, so far as is reasonably practicable, that all asbestos or ACM at the workplace is identified by a competent person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A person with management or control of a workplace must: 452
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.3 – Management of asbestos and associated risks
cl 425
(a)
if material at the workplace cannot be identified but a competent person reasonably believes that the material is asbestos or ACM—assume that the material is asbestos, and (b) if part of the workplace is inaccessible to workers and likely to contain asbestos or ACM—assume that asbestos is present in the part of the workplace. (3) Subclause (1) does not apply if the person: (a) assumes that asbestos or ACM is present, or (b) has reasonable grounds to believe that asbestos or ACM is not present. (4) If asbestos or ACM is assumed to be present at a workplace, it is taken to be identified at the workplace. 423
Analysis of sample
(1) A person with management or control of a workplace may identify asbestos or ACM by arranging for a sample of material at the workplace to be analysed for the presence of asbestos or ACM. (2) If a person with management or control of a workplace arranges for an analysis, the person must ensure that the sample is analysed only by: (a) a NATA-accredited laboratory accredited for the relevant test method, or (b) a laboratory approved by the regulator in accordance with guidelines published by Safe Work Australia, or (c) a laboratory operated by the regulator. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. Presence and location of asbestos to be indicated A person with management or control of a workplace must ensure that: (a) the presence and location of asbestos or ACM identified at the workplace under clause 422 is clearly indicated, and (b) if it is reasonably practicable to do so, indicate the presence and location of the asbestos or ACM by a label.
424
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 425 Asbestos register (1) A person with management or control of a workplace must ensure that a register (an asbestos register) is prepared and kept at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) The person must ensure that the asbestos register is maintained to ensure the information in the register is up to date. Maximum penalty: © 2017 THOMSON REUTERS
453
cl 425
Chapter 8 – Asbestos
(a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The asbestos register must: (a) record any asbestos or ACM identified at the workplace under clause 422, or likely to be present at the workplace from time to time including: (i) the date on which the asbestos or ACM was identified, and (ii) the location, type and condition of the asbestos or ACM, or (b) state that no asbestos or ACM is identified at the workplace if the person knows that no asbestos or ACM is identified, or is likely to be present from time to time, at the workplace. (4) The person is not required to prepare an asbestos register for a workplace if a register has already been prepared for that workplace. (5) Subject to subclause (6), this clause applies to buildings whenever constructed. (6) This clause does not apply to a workplace if: (a) the workplace is a building that was constructed after 31 December 2003, and (b) no asbestos has been identified at the workplace, and (c) no asbestos is likely to be present at the workplace from time to time. Review of asbestos register A person with management or control of a workplace where an asbestos register is kept must ensure that the register is reviewed and as necessary revised if: (a) the asbestos management plan is reviewed under clause 430, or (b) further asbestos or ACM is identified at the workplace, or (c) asbestos is removed from, or disturbed, sealed or enclosed at, the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 426
427
Access to asbestos register
(1) A person with management or control of a workplace where an asbestos register is kept must ensure that the asbestos register is readily accessible to: (a) a worker who has carried out, carries out or intends to carry out, work at the workplace, and (b) a health and safety representative who represents a worker referred to in paragraph (a), and (c) a person conducting a business or undertaking who has carried out, carries out or intends to carry out, work at the workplace, and (d) a person conducting a business or undertaking who has required, requires, or intends to require work to be carried out at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or 454
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.3 – Management of asbestos and associated risks
(b)
cl 429
in the case of a body corporate—$18,000.
(2) If a person conducting a business or undertaking carries out, or intends to carry out, work at a workplace that involves a risk of exposure to airborne asbestos, the person with management or control of the workplace must ensure that the person is given a copy of the asbestos register. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Transfer of asbestos register by person relinquishing management or control If a person with management or control of a workplace plans to relinquish management or control of the workplace, the person must ensure, so far as is reasonably practicable, that the asbestos register is given to the person, if any, assuming management or control of the workplace. 428
Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 429
Asbestos management plan
(1) This clause applies if asbestos or ACM is: (a) identified at a workplace under clause 422, or (b) likely to be present at a workplace from time to time. (2) A person with management or control of the workplace must ensure that a written plan (an asbestos management plan) for the workplace is prepared. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) A person with management or control of the workplace must ensure that the asbestos management plan is maintained to ensure the information in the plan is up to date. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) An asbestos management plan must include information about the following: (a) the identification of asbestos or ACM, Example. A reference or link to the asbestos register for the workplace and signage and labelling.
(b)
decisions, and reasons for decisions, about the management of asbestos at the workplace, Example. Safe work procedures and control measures.
(c)
procedures for detailing incidents or emergencies involving asbestos or ACM at the workplace, (d) workers carrying out work involving asbestos. Example. Consultation, responsibilities, information and training. © 2017 THOMSON REUTERS
455
cl 429
Chapter 8 – Asbestos
(5) A person with management or control of a workplace must ensure that a copy of the asbestos management plan for the workplace is readily accessible to: (a) a worker who has carried out, carries out or intends to carry out, work at the workplace, and (b) a health and safety representative who represents a worker referred to in paragraph (a), and (c) a person conducting a business or undertaking who has carried out, carries out or intends to carry out, work at the workplace, and (d) a person conducting a business or undertaking who has required, requires, or intends to require work to be carried out at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 430
Review of asbestos management plan
(1) A person with management or control of a workplace that has an asbestos management plan must ensure that the plan is reviewed and as necessary revised in the following circumstances: (a) there is a review of the asbestos register or a control measure, (b) asbestos is removed from, or disturbed, sealed or enclosed at, the workplace, (c) the plan is no longer adequate for managing asbestos or ACM at the workplace, (d) a health and safety representative requests a review under subclause (2), (e) at least once every 5 years. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) A health and safety representative for workers at a workplace may request a review of an asbestos management plan if the representative reasonably believes that: (a) a circumstance referred to in subclause (1)(a), (b) or (c) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and (b) the person with management and control of the workplace has not adequately reviewed the asbestos management plan in response to the circumstance.
Part 8.4 – Management of naturally occurring asbestos Naturally occurring asbestos The person with management or control of a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with naturally occurring asbestos at the workplace. 431
Note. WHS Act—section 20 (see clause 9).
456
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.4 – Management of naturally occurring asbestos
432
cl 433
Asbestos management plan
(1) This clause applies if naturally occurring asbestos is: (a) identified at a workplace, or (b) likely to be present at a workplace. (2) A person with management or control of the workplace must ensure that a written plan (an asbestos management plan) for the workplace is prepared in relation to the naturally occurring asbestos. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) A person with management or control of the workplace must ensure that the asbestos management plan is maintained to ensure the information in the plan is up to date. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) An asbestos management plan must include information about the following: (a) the identification of naturally occurring asbestos, (b) decisions, and reasons for decisions, about the management of naturally occurring asbestos at the workplace, Example. Safe work procedures and control measures.
(c)
procedures for detailing incidents or emergencies involving naturally occurring asbestos at the workplace, (d) workers carrying out work involving naturally occurring asbestos. Example. Consultation, responsibilities, information and training.
(5) A person with management or control of a workplace must ensure that a copy of the asbestos management plan for naturally occurring asbestos at the workplace is readily accessible to: (a) a worker who has carried out, carries out or intends to carry out, work at the workplace, and (b) a health and safety representative who represents a worker referred to in paragraph (a), and (c) a person conducting a business or undertaking who has carried out, carries out or intends to carry out, work at the workplace, and (d) a person conducting a business or undertaking who has required, requires, or intends to require work to be carried out at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Review of asbestos management plan A person with management or control of a workplace that has an asbestos management plan for naturally occurring asbestos must ensure that the plan is reviewed and as necessary revised if the plan is no longer adequate for managing 433
© 2017 THOMSON REUTERS
457
cl 433
Chapter 8 – Asbestos
naturally occurring asbestos at the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Example. A control measure is revised under clause 38.
Training in relation to naturally occurring asbestos A person conducting a business or undertaking must ensure that the training required under clause 445 includes training in the hazards and risks associated with naturally occurring asbestos for workers who carry out work where naturally occurring asbestos is likely to be found. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 434
Part 8.5 – Asbestos at the workplace DIVISION 1 – HEALTH MONITORING 435
Duty to provide health monitoring
(1) A person conducting a business or undertaking must ensure that health monitoring is provided, in accordance with clause 436, to a worker carrying out work for the business or undertaking if the worker is: (a) carrying out licensed asbestos removal work at a workplace and is at risk of exposure to asbestos when carrying out the work, or (b) is carrying out other ongoing asbestos removal work or asbestosrelated work and is at risk of exposure to asbestos when carrying out the work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) For the purposes of subclause (1)(a), the person must ensure that the health monitoring of the worker commences before the worker carries out licensed asbestos removal work. (3) The person must ensure that the worker is informed of any health monitoring requirements before the worker carries out any work that may expose the worker to asbestos. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Duty to ensure that appropriate health monitoring is provided A person conducting a business or undertaking must ensure that the health monitoring of a worker referred to in clause 435 includes: (a) consideration of: (i) the worker’s demographic, medical and occupational history, and 436
458
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.5 – Asbestos at the workplace
cl 439
(ii) records of the worker’s personal exposure, and (b) a physical examination of the worker, unless another type of health monitoring is recommended by a registered medical practitioner. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Duty to ensure health monitoring is supervised by registered medical practitioner with relevant experience 437
(1) A person conducting a business or undertaking must ensure that the health monitoring of a worker referred to in clause 435 is carried out by or under the supervision of a registered medical practitioner with experience in health monitoring. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must consult the worker in relation to the selection of the registered medical practitioner. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 438
Duty to pay costs of health monitoring
(1) A person conducting a business or undertaking must pay all expenses relating to health monitoring referred to in clause 435. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) If 2 or more persons conducting businesses or undertakings have a duty to provide health monitoring for a worker and have arranged for one of them to commission the health monitoring, the costs of the health monitoring for which any of those persons is liable must be apportioned equally between each of those persons unless they agree otherwise. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Information that must be provided to registered medical practitioner 439
A person conducting a business or undertaking who commissions health monitoring for a worker must provide the following information to the registered medical practitioner carrying out or supervising the health monitoring: (a) the name and address of the person conducting the business or undertaking, (b) the name and date of birth of the worker, © 2017 THOMSON REUTERS
459
cl 439
Chapter 8 – Asbestos
(c) (d) Maximum (a) (b) 440
the work that the worker is, or will be, carrying out that has triggered the requirement for health monitoring, if the worker has started that work, how long the worker has been carrying out that work. penalty: in the case of an individual—$3,600, or in the case of a body corporate—$18,000.
Duty to obtain health monitoring report
(1) A person conducting a business or undertaking who commissioned health monitoring referred to in clause 435 must take all reasonable steps to obtain a health monitoring report from the registered medical practitioner who carried out or supervised the monitoring as soon as practicable after the monitoring is carried out in relation to a worker. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The health monitoring report must include the following: (a) the name and date of birth of the worker, (b) the name and registration number of the registered medical practitioner, (c) the name and address of the person conducting the business or undertaking who commissioned the health monitoring, (d) the date of health monitoring, (e) any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work that triggered the requirement for health monitoring, (f) any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the type of work that triggered the requirement for health monitoring, (g) whether medical counselling is required for the worker in relation to the work that triggered the requirement for health monitoring. Duty to give health monitoring report to worker A person conducting a business or undertaking who commissioned health monitoring for a worker must give a copy of the health monitoring report to the worker as soon as practicable after the person obtains the report. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 441
Duty to give health monitoring report to regulator A person conducting a business or undertaking for which a worker is carrying out work for which health monitoring is required must give a copy of the health monitoring report relating to a worker to the regulator as soon as practicable after obtaining the report if the report contains: 442
460
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.5 – Asbestos at the workplace
(a)
(b)
Maximum (a) (b)
cl 445
any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work that triggered the requirement for health monitoring, or any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the work referred to in clause 435. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
Duty to give health monitoring report to relevant persons conducting businesses or undertakings A person conducting a business or undertaking who commissioned health monitoring for a worker must give a copy of the health monitoring report to all other persons conducting businesses or undertakings who have a duty to provide health monitoring for the worker as soon as practicable after obtaining the report. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 443
444
Health monitoring records
(1) A person conducting a business or undertaking must ensure that health monitoring reports in relation to a worker carrying out work for the business or undertaking are kept as a confidential record: (a) identified as a record in relation to the worker, and (b) for at least 40 years after the record is made. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) The person must ensure that the health monitoring report and results of a worker are not disclosed to another person without the worker’s written consent. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (3) Subclause (2) does not apply if the record is disclosed under clause 442 or 443 or to a person who must keep the record confidential under a duty of professional confidentiality. DIVISION 2 – TRAINING 445
Duty to train workers about asbestos
(1) In addition to the training required by Division 1 of Part 3.2, a person conducting a business or undertaking must ensure that workers engaged by the person, whom the person reasonably believes may be involved in asbestos removal work or in the carrying out of asbestos-related work, are trained in the identification and safe handling of, and suitable control measures for, asbestos and ACM. Maximum penalty: © 2017 THOMSON REUTERS
461
cl 445
Chapter 8 – Asbestos
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) This clause does not apply in relation to a worker referred to in clause 460. (3) The person must ensure that a record is kept of the training undertaken by the worker: (a) while the worker is carrying out the work, and (b) for 5 years after the day the worker ceases working for the person. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (4) The person must keep the record available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. DIVISION 3 – CONTROL ON USE OF CERTAIN EQUIPMENT 446
Duty to limit use of equipment
(1) A person conducting a business or undertaking must not use, or direct or allow a worker to use, either of the following on asbestos or ACM: (a) high-pressure water spray, (b) compressed air. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) Subclause (1)(a) does not apply to the use of a high pressure water spray for fire fighting or fire protection purposes. (3) A person conducting a business or undertaking must not use, or direct or allow a worker to use, any of the following equipment on asbestos or ACM unless the use of the equipment is controlled: (a) power tools, (b) brooms, (c) any other implements that cause the release of airborne asbestos into the atmosphere. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) In subclause (3), the use of equipment is controlled if: (a) the equipment is enclosed during its use, or (b) the equipment is designed to capture or suppress airborne asbestos and is used in accordance with its design, or (c) the equipment is used in a way that is designed to capture or suppress airborne asbestos safely, or 462
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.6 – Demolition and refurbishment
(d)
cl 451
any combination of paragraphs (a), (b) and (c) applies.
PART 8.6 – DEMOLITION AND REFURBISHMENT 447
Application—Part 8.6
(1) This Part applies to the demolition or refurbishment of a structure or plant constructed or installed before 31 December 2003. (2) In this clause, demolition or refurbishment does not include minor or routine maintenance work, or other minor work. 448
Review of asbestos register
The person with management or control of a workplace must ensure that, before demolition or refurbishment is carried out at the workplace, the asbestos register for the workplace is: (a) reviewed, and (b) if the register is inadequate having regard to the proposed demolition or refurbishment—revised. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. Example. The register identifies an inaccessible area that is likely to contain asbestos and the area is likely to be accessible because of demolition.
Duty to give asbestos register to person conducting business or undertaking of demolition or refurbishment The person with management or control of a workplace must ensure that the person conducting a business or undertaking who carries out the demolition or refurbishment is given a copy of the asbestos register before the demolition or refurbishment is commenced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 449
Duty to obtain asbestos register A person conducting a business or undertaking who carries out demolition or refurbishment at a workplace must obtain a copy of the asbestos register from the person with management or control of the workplace, before the person commences the demolition or refurbishment. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 450
451
Determining presence of asbestos or ACM
(1) This clause applies if: (a) demolition or refurbishment is to be carried out at a workplace, and (b) there is no asbestos register for the structure or plant to be demolished or refurbished at the workplace. (2) The person conducting a business or undertaking who is to carry out the demolition or refurbishment must not carry out the demolition or refurbishment © 2017 THOMSON REUTERS
463
cl 451
Chapter 8 – Asbestos
until the structure or plant has been inspected to determine whether asbestos or ACM is fixed to or installed in the structure or plant. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person conducting a business or undertaking who is to carry out the demolition or refurbishment must ensure that the determination is undertaken by a competent person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The person conducting a business or undertaking who is to carry out the demolition or refurbishment must assume that asbestos or ACM is fixed to or installed in the structure or plant if: (a) the competent person is, on reasonable grounds, uncertain whether or not asbestos is fixed to or installed in the structure or plant, or (b) part of the structure or plant is inaccessible and likely to be disturbed. (5) If asbestos or ACM is determined or assumed to be fixed to or installed in the structure or plant, the person conducting a business or undertaking who is to carry out the demolition or refurbishment must inform: (a) if the workplace is residential premises: (i) the occupier of the premises, and (ii) the owner of the premises, and (b) in any other case—the person with management or control of the workplace. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 452
Identification and removal of asbestos before demolition
(1) This clause applies if a structure or plant at a workplace is to be demolished. (2) This clause does not apply: (a) in an emergency to which clause 454 applies, or (b) to residential premises. (3) The person with management or control of the workplace, or of the structure or plant, must ensure: (a) that all asbestos that is likely to be disturbed by the demolition is identified, and (b) so far as is reasonably practicable, that the asbestos is removed before the demolition is commenced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 464
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.6 – Demolition and refurbishment
cl 454
(4) Subclause (3)(b) does not apply if the purpose of the demolition is to gain access to the asbestos. Identification and removal of asbestos before demolition of residential premises 453
(1) A person conducting a business or undertaking that is to carry out the demolition of residential premises must ensure: (a) that all asbestos that is likely to be disturbed by the demolition is identified, and (b) so far as is reasonably practicable, that the asbestos is removed before the demolition is commenced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) This clause does not apply in an emergency to which clause 455 applies. (3) Subclause (1)(b) does not apply if the purpose of the demolition is to gain access to the asbestos. 454
Emergency procedure
(1) This clause applies if: (a) an emergency occurs at a workplace other than residential premises, and (b) a structure or plant at the workplace must be demolished, and (c) asbestos is fixed to or installed in the structure or plant before the emergency occurs. (2) The person with management or control of the workplace must ensure, so far as is reasonably practicable, that: (a) before the demolition is commenced, a procedure is developed that will, so far as is reasonably practicable, reduce the risk of exposure of workers and persons in the vicinity of the demolition site to asbestos to below the exposure standard, and (b) the asbestos register for the workplace is considered in the development of the procedure. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The person must ensure that the regulator is given written notice about the emergency: (a) immediately after the person becomes aware of the emergency, and (b) before the demolition is commenced. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) For the purposes of this clause, an emergency occurs if: (a) a structure or plant is structurally unsound, or © 2017 THOMSON REUTERS
465
cl 454
Chapter 8 – Asbestos
(b) 455
collapse of the structure or plant is imminent.
Emergency procedure—residential premises
(1) This clause applies if: (a) an emergency occurs at residential premises, and (b) a structure or plant at the premises must be demolished, and (c) asbestos is fixed to or installed in the structure or plant before the emergency occurs. (2) A person conducting a business or undertaking who is to carry out the demolition of the residential premises must ensure so far as is reasonably practicable, that, before the demolition is commenced, a procedure is developed that will, so far as is reasonably practicable, reduce the risk of exposure of workers and persons in the vicinity of the demolition site to asbestos to below the exposure standard. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The person must ensure that the regulator is given written notice about the emergency: (a) immediately after the person becomes aware of the emergency, and (b) before the demolition is commenced. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) For the purposes of this clause, an emergency occurs if: (a) a structure or plant is structurally unsound, or (b) collapse of the structure or plant is imminent. 456
Identification and removal of asbestos before refurbishment
(1) This clause applies if a structure or plant at a workplace is to be refurbished. (2) This clause does not apply to residential premises. (3) The person with management or control of the workplace, or of the structure or plant, must ensure: (a) that all asbestos that is likely to be disturbed by the refurbishment is identified, and (b) so far as is reasonably practicable, that the asbestos is removed before the refurbishment is commenced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Refurbishment of residential premises A person conducting a business or undertaking who is to carry out refurbishment of residential premises must ensure: 457
466
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.7 – Asbestos removal work
cl 459
(a)
that all asbestos that is likely to be disturbed by the refurbishment is identified, and (b) so far as is reasonably practicable, that the asbestos is removed before the refurbishment is commenced. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000.
Part 8.7 – Asbestos removal work Note. In this Part some duties are placed on licensed asbestos removalists and some on asbestos removalists generally.
458
Duty to ensure asbestos removalist is licensed
(1) A person conducting a business or undertaking that commissions the removal of asbestos must ensure that the asbestos removal work is carried out by a licensed asbestos removalist who is licensed to carry out the work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) Subclause (1) does not apply if the asbestos to be removed is: (a) 10 square metres or less of non-friable asbestos or ACD associated with the removal of that amount of non-friable asbestos, or (b) ACD that is not associated with the removal of friable or non-friable asbestos and is only a minor contamination. (3) If subclause (2) applies, the person conducting the business or undertaking that commissions the asbestos removal work must ensure that the work is carried out by a competent person who has been trained in accordance with clause 445. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Asbestos removal supervisor must be present or readily available 459
A licensed asbestos removalist must ensure that the nominated asbestos removal supervisor for asbestos removal work is: (a) if the asbestos removal work requires a Class A licence—present at the asbestos removal area whenever the asbestos removal work is being carried out, and (b) if the asbestos removal work requires a Class B licence—readily available to a worker carrying out asbestos removal work whenever the work is being carried out. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. © 2017 THOMSON REUTERS
467
cl 460
460
Chapter 8 – Asbestos
Asbestos removal worker must be trained
(1) A licensed asbestos removalist must not direct or allow a worker to carry out licensed asbestos removal work unless the removalist is satisfied that the worker holds a certification in relation to the specified VET course for asbestos removal relevant to the class of licensed asbestos removal work to be carried out by the worker. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A licensed asbestos removalist must provide appropriate training to a worker carrying out licensed asbestos removal work at a workplace to ensure that the work is carried out in accordance with the asbestos removal control plan for the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) In this clause, appropriate training means training designed specifically for the workplace where the licensed asbestos removal work is carried out and the work to be carried out at the workplace. Note. Unless this clause applies, the obligation to provide training to workers carrying out unlicensed asbestos removal work is set out in clause 445.
461
Licensed asbestos removalist must keep training records
(1) A licensed asbestos removalist must keep a record of the training undertaken by a worker carrying out licensed asbestos removal work: (a) while the worker is carrying out licensed asbestos removal work, and (b) for 5 years after the day the worker stopped carrying out licensed asbestos removal work for the removalist. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) The licensed asbestos removalist must ensure that the training record is readily accessible at the asbestos removal area and available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. Duty to give information about health risks of licensed asbestos removal work 462
A licensed asbestos removalist must give the following information to a person likely to be engaged to carry out licensed asbestos removal work before the person is engaged to carry out the work: (a) the health risks and health effects associated with exposure to asbestos, 468
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.7 – Asbestos removal work
(b)
cl 465
the need for, and details of, health monitoring of a worker carrying out licensed asbestos removal work.
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 463
Asbestos removalist must obtain register
(1) A licensed asbestos removalist must obtain a copy of the asbestos register for a workplace before the removalist carries out asbestos removal work at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) Subclause (1) does not apply if the asbestos removal work is to be carried out at residential premises. 464
Asbestos removal control plan
(1) A licensed asbestos removalist must prepare an asbestos removal control plan for any licensed asbestos removal work the removalist is commissioned to undertake. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) An asbestos removal control plan must include: (a) details of how the asbestos removal will be carried out, including the method to be used and the tools, equipment and personal protective equipment to be used, and (b) details of the asbestos to be removed, including the location, type and condition of the asbestos. (3) The licensed asbestos removalist must give a copy of the asbestos removal control plan to the person who commissioned the licensed asbestos removal work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 465
Asbestos removal control plan to be kept and available
(1) Subject to subclause (2), a licensed asbestos removalist must ensure that a copy of the asbestos removal control plan prepared under clause 464 is kept until the asbestos removal work to which it relates is completed. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) If a notifiable incident occurs in connection with the asbestos removal work to which the asbestos removal control plan relates, the licensed asbestos removalist must keep the asbestos removal control plan for at least 2 years after © 2017 THOMSON REUTERS
469
cl 465
Chapter 8 – Asbestos
the incident occurs. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The licensed asbestos removalist must ensure that, for the period for which the asbestos removal control plan must be kept under this clause, a copy is: (a) readily accessible to: (i) a person conducting a business or undertaking at the workplace, and (ii) the person’s workers at the workplace, or a health and safety representative who represents the workers, and (iii) if the asbestos removal work is to be carried out in residential premises—the occupants of the premises, and (b) available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 466
Regulator must be notified of asbestos removal
(1) A licensed asbestos removalist must give written notice to the regulator at least 5 days before the removalist commences licensed asbestos removal work. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) Despite subclause (1), licensed asbestos removal work may be commenced immediately if there is: (a) a sudden and unexpected event, including a failure of equipment, that may cause persons to be exposed to respirable asbestos fibres, or (b) an unexpected breakdown of an essential service that requires immediate rectification to enable the service to continue. (3) If the asbestos must be removed immediately, the licensed asbestos removalist must give notice to the regulator: (a) immediately by telephone, and (b) in writing within 24 hours after notice is given under paragraph (a). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (4) A notice under subclause (1) or (3) must include the following: (a) the following in relation to the licensed asbestos removalist: (i) name, (ii) registered business name, (iii) Australian Business Number, (iv) licence number, (v) business contact details, 470
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.7 – Asbestos removal work
(b) (c)
(d) (e)
(f) (g) (h) (i) (j) (k) (l)
cl 467
the name and business contact details of the supervisor of the licensed asbestos removal work, the name of the competent person or licensed asbestos assessor engaged to carry out a clearance inspection and issue a clearance certificate for the work, the name and contact details of the person for whom the work is to be carried out, the following in relation to the workplace where the asbestos is to be removed: (i) the name, including the registered business or company name, of the person with management or control of the workplace, (ii) the address and, if the workplace is large, the specific location of the asbestos removal, (iii) the kind of workplace, the date of the notice, the date when the asbestos removal work is to commence and the estimated duration of the work, whether the asbestos to be removed is friable or non-friable, if the asbestos to be removed is friable—the way the area of removal will be enclosed, the estimated quantity of asbestos to be removed, the number of workers who are to carry out the asbestos removal work, for each worker who is to carry out asbestos removal work—details of the worker’s competency to carry out asbestos removal work.
Licensed asbestos removalist must inform certain persons about intended asbestos removal work 467
(1) This clause applies if a licensed asbestos removalist is to carry out licensed asbestos removal work at a workplace. (2) The licensed asbestos removalist must, before commencing the licensed asbestos removal work, inform the person with management or control of the workplace: (a) that licensed asbestos removal work is to be carried out at the workplace, and (b) when the work is to commence. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) If the workplace is residential premises, the licensed asbestos removalist must, so far as is reasonably practicable, before commencing the licensed asbestos removal work, inform the following persons that asbestos removal work is to be carried out at the workplace, and when the work is to commence: (a) the person who commissioned the asbestos removal work, (b) a person conducting a business or undertaking at the workplace, (c) the occupier of the residential premises, (d) the owner of the residential premises, © 2017 THOMSON REUTERS
471
cl 467
Chapter 8 – Asbestos
(e)
anyone occupying premises in the immediate vicinity of the workplace.
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Person with management or control of workplace must inform persons about asbestos removal work 468
(1) This clause applies if the person with management or control of a workplace is informed that asbestos removal work is to be carried out at the workplace. (2) The person must ensure that the following persons are informed that asbestos removal work is to be carried out at the workplace and when the work is to commence, before the work commences: (a) the person’s workers and any other persons at the workplace, (b) the person who commissioned the asbestos removal work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person must take all reasonable steps to ensure that the following persons are informed that asbestos removal work is to be carried out at the workplace and when the work is to commence, before the work commences: (a) anyone conducting a business or undertaking at, or in the immediate vicinity of, the workplace, (b) anyone occupying premises in the immediate vicinity of the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Signage and barricades for asbestos removal work An asbestos removalist must ensure that: (a) signs alerting persons to the presence of asbestos are placed to indicate where the asbestos removal work is being carried out, and (b) barricades are erected to delineate the asbestos removal area.
469
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 470
Limiting access to asbestos removal area
(1) This clause applies to: (a) a person conducting a business or undertaking at a workplace who commissions a person to carry out licensed asbestos removal work at the workplace, and (b) a person with management or control of a workplace who is aware that licensed asbestos removal work is being carried out at the workplace. 472
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.7 – Asbestos removal work
cl 471
(2) Subject to subclause (4), the person must ensure, so far as is reasonably practicable, that no one other than the following has access to an asbestos removal area: (a) workers engaged in the asbestos removal work, (b) other persons associated with the asbestos removal work, (c) anyone allowed under this Regulation or another law to be in the asbestos removal area. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person may refuse to allow access to an asbestos removal area at the workplace to anyone who does not comply with: (a) a control measure implemented for the workplace in relation to asbestos, or (b) a direction of the licensed asbestos removalist. (4) A person referred to in subclause (2)(a), (b) or (c) has access to an asbestos removal area subject to any direction of the licensed asbestos removalist. (5) If a person referred to in subclause (2)(a), (b) or (c) has access to an asbestos removal area, the person must comply with any direction of the licensed asbestos removalist. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 471
Decontamination facilities
(1) An asbestos removalist must ensure that facilities are available to decontaminate the following: (a) the asbestos removal area, (b) any plant used in the asbestos removal area, (c) workers carrying out asbestos removal work, (d) other persons who have access to the asbestos removal area under clause 470(2)(b). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) An asbestos removalist must ensure that nothing that is likely to be contaminated with asbestos is removed from the asbestos removal area unless the thing: (a) is decontaminated before being removed, or (b) is sealed in a container, and the exterior of the container is, before being removed: (i) decontaminated, and (ii) labelled in accordance with the GHS to indicate the presence of asbestos. Maximum penalty: © 2017 THOMSON REUTERS
473
cl 471
Chapter 8 – Asbestos
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Disposing of asbestos waste and contaminated personal protective equipment 472
(1) Subject to subclauses (2) and (3), an asbestos removalist must ensure that asbestos waste: (a) is contained and labelled in accordance with the GHS before the waste is removed from an asbestos removal area, and (b) is disposed of as soon as practicable at a site authorised to accept asbestos waste. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) An asbestos removalist must ensure that personal protective equipment used in asbestos removal work and contaminated with asbestos: (a) is sealed in a container before being removed from an asbestos waste area, and (b) so far as is reasonably practicable, is disposed of on the completion of the asbestos removal work at a site authorised to accept asbestos waste, and (c) if it is not reasonably practicable to dispose of the personal protective equipment that is clothing: (i) is laundered at a laundry equipped to launder asbestoscontaminated clothing, or (ii) if it is not practicable to launder the clothing—is kept in the sealed container until it is re-used for asbestos removal purposes, and (d) if it is not reasonably practicable to dispose of the personal protective equipment that is not clothing: (i) is decontaminated before it is removed from the asbestos removal area, or (ii) if it is not practicable to decontaminate the equipment in the asbestos removal area—is kept in the sealed container until it is re-used for asbestos removal purposes. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Example. Work boots.
(3) An asbestos removalist must ensure that a sealed container referred to in subclause (2) is decontaminated and labelled in accordance with the GHS to indicate the presence of asbestos before being removed from the asbestos removal area. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 474
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.7 – Asbestos removal work
473
cl 474
Clearance inspection
(1) This clause applies if a person commissions licensed asbestos removal work at a workplace. (2) The person or, if the workplace is residential premises, the licensed asbestos removalist must ensure that, when the licensed asbestos removal work is completed, a clearance inspection of the asbestos removal area at the workplace is carried out by: (a) if the asbestos removal work must be carried out by the holder of a Class A asbestos removal licence—an independent licensed asbestos assessor, or (b) in any other case—an independent competent person. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) In this clause, a clearance inspection is an inspection of an asbestos removal area after asbestos removal work has been completed to verify that the area is safe for normal use, that: (a) includes a visual inspection, and (b) may include air monitoring. Note. If it is not reasonably practicable for the licensed asbestos assessor or competent person to be independent, the person or licensed asbestos removalist may apply to the regulator for an exemption under Part 11.2 from the requirement that the assessor or competent person be independent.
474
Clearance certificates
(1) This clause applies if a clearance inspection has been made in accordance with clause 473. (2) The licensed asbestos assessor or competent person who carried out the clearance inspection must issue a clearance certificate, in accordance with this clause, before the asbestos removal area at the workplace is re-occupied. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The licensed asbestos assessor or competent person must ensure that the asbestos removal area does not pose a risk to health and safety from exposure to asbestos. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The licensed asbestos assessor or competent person must not issue a clearance certificate unless satisfied that: (a) the asbestos removal area, and the area immediately surrounding it, are free from visible asbestos contamination, and © 2017 THOMSON REUTERS
475
cl 474
Chapter 8 – Asbestos
(b)
if the assessor or competent person undertook air monitoring as part of the clearance inspection—the monitoring shows asbestos below 0.01 fibres/ml. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) The clearance certificate must be in writing and must state that: (a) the assessor or competent person found no visible asbestos residue from asbestos removal work in the area, or in the vicinity of the area, where the work was carried out, and (b) if air monitoring was carried out by the assessor or competent person as part of the clearance inspection—the airborne asbestos fibre level was less than 0.01 asbestos fibres/mL.
Part 8.8 – Asbestos removal requiring Class A licence 475
Air monitoring—asbestos removal requiring Class A licence
(1) A person conducting a business or undertaking who commissions asbestos removal work requiring a Class A asbestos removal licence at a workplace must ensure that an independent licensed asbestos assessor undertakes air monitoring of the asbestos removal area at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If the workplace is residential premises, the licensed removalist carrying out asbestos removal work requiring a Class A asbestos removal licence at the premises must ensure that an independent licensed asbestos assessor undertakes air monitoring of the asbestos removal area at the premises. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The air monitoring must be carried out: (a) immediately before the licensed asbestos removal work commences, unless glove bags are to be used for the removal, and (b) while the licensed asbestos removal work is carried out. (4) The person who commissions the licensed asbestos removal work must ensure that the results of the air monitoring are given to the following: (a) workers at the workplace, (b) health and safety representatives for workers at the workplace, (c) a person conducting a business or undertaking at the workplace, (d) other persons at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 476
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.8 – Asbestos removal requiring Class A licence
cl 476
(5) If the workplace is residential premises, the licensed asbestos removalist carrying out the licensed asbestos removal work at the premises must ensure that the results of the air monitoring are given to the following: (a) the person who commissioned the asbestos removal work, (b) workers at the workplace, (c) health and safety representatives for workers at the workplace, (d) a person conducting a business or undertaking at the workplace, (e) the occupier of the residential premises, (f) the owner of the residential premises, (g) other persons at the workplace. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (6) An independent licensed asbestos assessor, who undertakes air monitoring for the purposes of this clause, must use the membrane filter method for the air monitoring. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 476
Action if respirable asbestos fibre level too high
(1) The licensed removalist carrying out asbestos removal work requiring a Class A asbestos removal licence at a workplace must: (a) if respirable asbestos fibre levels are recorded at the asbestos removal area at 0.01 fibres/ml or more, but not more than 0.02 fibres/ ml—immediately: (i) investigate the cause of the respirable asbestos fibre level, and (ii) implement controls to prevent exposure of anyone to asbestos, and (iii) prevent the further release of respirable asbestos fibres, and (b) if respirable asbestos fibre levels are recorded at the asbestos removal area at more than 0.02 fibres/ml—immediately: (i) order the asbestos removal work to stop, and (ii) notify the regulator, and (iii) investigate the cause of the respirable asbestos fibre level, and (iv) implement controls to prevent exposure of anyone to asbestos, and (v) prevent the further release of respirable asbestos fibre. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If the licensed removalist stops asbestos removal work requiring a Class A asbestos removal licence because the recorded respirable asbestos fibre level exceeds 0.02 fibres/ml, the removalist must ensure that the asbestos removal work does not resume until air monitoring shows that the recorded respirable © 2017 THOMSON REUTERS
477
cl 476
Chapter 8 – Asbestos
asbestos fibre level is below 0.01 fibres/ml. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 477
Removing friable asbestos
(1) A licensed asbestos removalist removing friable asbestos must ensure, so far as is reasonably practicable, the following: (a) the asbestos removal area is enclosed to prevent the release of respirable asbestos fibres, (b) subject to subclause (3), negative pressure is used, (c) the wet method of asbestos removal is used, (d) subject to subclause (3), the asbestos removal work does not commence until the air monitoring is commenced by a licensed asbestos assessor, (e) air monitoring is undertaken during the asbestos removal work, at times decided by the independent licensed asbestos assessor undertaking the monitoring, (f) any glove bag used to enclose the asbestos removal area is dismantled and disposed of safely. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) A licensed asbestos removalist must ensure that any enclosure used in removing friable asbestos is tested for leaks. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) Subclauses (1)(b) and (1)(d) do not apply if glove bags are used in the Class A asbestos removal work. (4) The licensed removalist must not dismantle an enclosure for a friable asbestos removal area until the removalist receives results of air monitoring, showing that the recorded respirable asbestos fibre level within the enclosure is below 0.01 fibres/ml, from: (a) if the friable asbestos is removed from residential premises—the licensed asbestos assessor who undertook the air monitoring, or (b) in any other case—the person who commissioned the Class A asbestos removal work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) The licensed removalist must ensure that an enclosure for a friable asbestos removal area is dismantled in a way that, so far as is reasonably practicable, eliminates the release of respirable asbestos fibre. Maximum penalty: 478
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.9 – Asbestos-related work
cl 481
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (6) The person who commissioned the removal of the friable asbestos must obtain a clearance certificate from a licensed asbestos assessor after the enclosure for the friable asbestos removal area has been dismantled. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000.
Part 8.9 – Asbestos-related work 478
Application of Part 8.9
This Part applies in relation to asbestos-related work. 479 Uncertainty as to presence of asbestos (1) If there is uncertainty (based on reasonable grounds) as to whether work to be carried out for a business or undertaking is asbestos-related work, the person conducting the business or undertaking must ensure that analysis of a sample is undertaken to determine if asbestos or ACM is present. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) For the purposes of subclause (1), the person must ensure that the sample is analysed only by: (a) a NATA-accredited laboratory accredited for the relevant test method, or (b) a laboratory approved by the regulator in accordance with guidelines published by Safe Work Australia, or (c) a laboratory operated by the regulator. (3) Subclause (1) does not apply if the person assumes that asbestos is present. 480 Duty to give information about health risks of asbestos-related work A person conducting a business or undertaking must give the following information to a person likely to be engaged to carry out asbestos-related work for the business or undertaking before the person is engaged to carry out the work: (a) the health risks and health effects associated with exposure to asbestos, (b) the need for, and details of, health monitoring of a worker carrying out asbestos-related work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 481 Asbestos-related work to be in separate area A person conducting a business or undertaking that involves the carrying out of asbestos-related work must ensure that: © 2017 THOMSON REUTERS
479
cl 481
Chapter 8 – Asbestos
(a) (b) (c) Maximum (a) (b) 482
the asbestos-related work area is separated from other work areas at the workplace, and signs alerting persons to the presence of asbestos are placed to indicate where the asbestos-related work is being carried out, and barricades are erected to delineate the asbestos-related work area. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
Air monitoring
(1) A person conducting a business or undertaking at a workplace must ensure that a competent person carries out air monitoring of the work area where asbestos-related work is being carried out if there is uncertainty as to whether the exposure standard is likely to be exceeded. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) If the competent person determines that the exposure standard has been exceeded at any time in a work area, the person conducting the business or undertaking must, so far as is reasonably practicable: (a) determine the workers and other persons who were in the work area during that time: and (b) warn those workers about possible exposure to respirable asbestos fibres, and (c) so far as is reasonably practicable, warn the other persons about possible exposure to respirable asbestos fibres. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person conducting the business or undertaking must ensure that information about exposure to respirable asbestos fibres, including the determination made by the competent person and the results of the air monitoring, is readily accessible to the workers and other persons referred to in subclause (2). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 483
Decontamination facilities
(1) A person conducting a business or undertaking for which asbestos-related work is carried out must ensure that facilities are available to decontaminate the following: (a) the asbestos-related work area, (b) any plant used in the asbestos-related work area, (c) workers carrying out the asbestos-related work. Maximum penalty: 480
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.9 – Asbestos-related work
cl 484
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that nothing that is likely to be contaminated with asbestos is removed from the asbestos-related work area unless the thing: (a) is decontaminated before being removed, or (b) is sealed in a container, and the exterior of the container is: (i) decontaminated, and (ii) labelled in accordance with the GHS to indicate the presence of asbestos, before being removed. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Disposing of asbestos waste and contaminated personal protective equipment 484
(1) Subject to subclause (2), a person conducting a business or undertaking for which asbestos-related work is carried out must ensure that asbestos waste: (a) is contained and labelled in accordance with the GHS before the waste is removed from an asbestos-related work area, and (b) is disposed of as soon as practicable at a site authorised to accept asbestos waste. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The person must ensure that personal protective equipment used in asbestos-related work and contaminated with asbestos: (a) is sealed in a container, and that the exterior of the container is decontaminated and labelled in accordance with the GHS to indicate the presence of asbestos before being removed, and (b) so far as is reasonably practicable, is disposed of on the completion of the asbestos-related work at a site authorised to accept asbestos waste, and (c) if it is not reasonably practicable to dispose of the personal protective equipment that is clothing: (i) is laundered at a laundry equipped to launder asbestoscontaminated clothing, or (ii) if it is not practicable to launder the clothing, is kept in the sealed container until it is re-used for the purposes of asbestos-related work, and (d) if it is not reasonably practicable to dispose of the personal protective equipment that is not clothing: (i) is decontaminated before it is removed from the asbestos removal area, or © 2017 THOMSON REUTERS
481
cl 484
Chapter 8 – Asbestos
(ii)
if it is not practicable to decontaminate the equipment in the asbestos removal area, is kept in the sealed container until it is re-used for the purposes of asbestos-related work. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Example. Work boots.
(3) The person must ensure that a sealed container referred to in subclause (2) is decontaminated and labelled in accordance with the GHS to indicate the presence of asbestos before being removed from the asbestos-related work area. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000.
Part 8.10 – Licensing of asbestos removalists and asbestos assessors DIVISION 1 – ASBESTOS REMOVALISTS—REQUIREMENT TO BE LICENSED 485
Requirement to hold Class A asbestos removal licence
(1) A person must not carry out the removal of the following at a workplace unless the person, or the person on whose behalf the work is carried out, holds a Class A asbestos removal licence: (a) friable asbestos, (b) except as provided in clause 486, ACD. Note. See section 43(1) of the Act.
(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out the removal of the following unless the person holds a Class A asbestos removal licence: (a) friable asbestos, (b) except as provided in clause 486, ACD. Note. See section 43(2) of the Act.
Exception to requirement to hold Class A asbestos removal licence A Class A asbestos removal licence is not required for the removal of ACD that: (a) is associated with the removal of non-friable asbestos, or (b) is not associated with the removal of friable or non-friable asbestos and is only a minor contamination. 486
487
Requirement to hold Class B asbestos removal licence
(1) A person must not carry out the removal of the following at a workplace unless the person, or the person on whose behalf the work is carried out, holds a Class B asbestos removal licence or a Class A asbestos removal licence: (a) more than 10 square metres of non-friable asbestos or ACM, 482
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
(b)
cl 491
ACD associated with the removal of more than 10 square metres of non-friable asbestos or ACM.
Note. See section 43(1) of the Act.
(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out the removal of the following unless the person holds a Class B asbestos removal licence or a Class A asbestos removal licence: (a) more than 10 square metres of non-friable asbestos or ACM, (b) ACD associated with the removal of more than 10 square metres of non-friable asbestos or ACM. Note. See section 43(2) of the Act.
488
Recognition of asbestos removal licences in other jurisdictions
(1) In this Division, a reference to an asbestos removal licence includes a reference to an equivalent licence: (a) granted under a corresponding WHS law, and (b) that is being used in accordance with the terms and conditions under which it was granted. (2) Subclause (1) does not apply to a licence that is suspended or cancelled or has expired in the corresponding jurisdiction. DIVISION 2 – ASBESTOS ASSESSORS—REQUIREMENT TO BE LICENSED Requirement to hold asbestos assessor licence A person must not carry out the following at a workplace unless the person holds an asbestos assessor licence: (a) air monitoring during Class A asbestos removal work, (b) clearance inspections for Class A asbestos removal work, (c) issuing clearance certificates in relation to Class A asbestos removal work. 489
Note. See section 43(1) of the Act.
Recognition of asbestos assessor licences in other jurisdictions 490
(1) In this Division, a reference to an asbestos assessor licence includes a reference to an equivalent licence: (a) granted under a corresponding WHS law, and (b) that is being used in accordance with the terms and conditions under which it was granted. (2) Subclause (1) does not apply to a licence that is suspended or cancelled or has expired in the corresponding jurisdiction. DIVISION 3 – LICENSING PROCESS 491
Who may apply for a licence
(1) Only a person who conducts, or proposes to conduct, a business or undertaking may apply for an asbestos removal licence. © 2017 THOMSON REUTERS
483
cl 491
Chapter 8 – Asbestos
(2) Only an individual who holds the qualifications set out in clause 495 may apply for an asbestos assessor licence. [Subcl (2) am Reg 61 of 2015, Sch 1[65]] [Cl 491 am Reg 61 of 2015]
Application for asbestos removal licence or asbestos assessor licence 492
(1) An application for an asbestos removal licence or asbestos assessor licence must be made in the manner and form required by the regulator. (2) The application must include the following information: (a) the name and address of the applicant, (ab) if required by the regulator of an applicant who is an individual, a photograph of the applicant in the form required by the regulator, (b) any other evidence of the applicant’s identity required by the regulator, (c) the class of licence to which the application relates, (d) if, in the case of an asbestos removal licence, the applicant conducts the business or undertaking under a business name—that business name and a certificate or other written evidence of the registration of the business name, (e) a declaration that the applicant does not hold an equivalent licence under a corresponding WHS law, (f) if the applicant is an individual: (i) a declaration as to whether or not the applicant has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law, and (ii) details of any conviction or finding of guilt declared under subparagraph (i), and (iii) a declaration as to whether or not the applicant has been convicted or found guilty of any offence in relation to the unlawful disposal of hazardous waste under the Protection of the Environment Operations Act 1997, and (iv) details of any conviction or finding of guilt declared under subparagraph (iii), and (v) a declaration as to whether or not the applicant has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law, and (vi) details of any enforceable undertaking declared under subparagraph (v), and (vii) if the applicant has previously been refused an equivalent licence under a corresponding WHS law, a declaration giving details of that refusal, and (viii) if the applicant has previously held an equivalent licence under a corresponding WHS law, a declaration: (A) describing any condition imposed on that licence, and (B) stating whether or not that licence had been suspended or cancelled and, if so, whether or not the applicant had been disqualified from applying for any licence, and 484
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
cl 494
(C)
giving details of any suspension, cancellation or disqualification, (g) if the applicant is a body corporate, the information referred to in paragraph (f) in relation to: (i) the body corporate, and (ii) each officer of the body corporate, (h) in the case of an application for an asbestos removal licence—the additional information referred to in clause 493 or 494, as applicable, (i) in the case of an asbestos assessor licence—the additional information referred to in clause 495. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation. [Subcl (2) am Reg 61 of 2015, Sch 1[66]]
(3) The application must be accompanied by the relevant fee. [Cl 492 am Reg 61 of 2015]
493
Content of application—Class A asbestos removal licence
(1) For the purposes of clause 492(2)(h), an application for a Class A asbestos removal licence must include the following: (a) the names of 1 or more competent persons who have been engaged by the applicant to supervise the asbestos removal work to be authorised by the licence, (b) evidence, as required by the regulator, that each named supervisor is at least 18 years of age, (c) a copy of a certification issued to each named supervisor for the specified VET course for the supervision of asbestos removal work, (d) evidence that each named supervisor has at least 3 years of relevant industry experience, (e) evidence that the applicant has a certified safety management system in place. (2) If the applicant is an individual who proposes to supervise the carrying out of the Class A asbestos removal work, the statement and information referred to in subclause (1)(b), (c) and (d) must relate to the applicant. 494
Content of application—Class B asbestos removal licence
(1) For the purposes of clause 492(2)(h), an application for a Class B asbestos removal licence must include the following: (a) the name of 1 or more competent persons who have been engaged by the applicant to supervise the asbestos removal work to be authorised by the licence, (b) evidence, as required by the regulator, that each named supervisor is at least 18 years of age, (c) a copy of a certification issued to each named supervisor for the specified VET course for the supervision of asbestos removal work, (d) evidence that each named supervisor has at least 1 year of relevant industry experience. © 2017 THOMSON REUTERS
485
cl 494
Chapter 8 – Asbestos
(2) If the applicant is an individual who proposes to supervise the carrying out of the Class B asbestos removal work, the statement and information referred to in subclause (1)(b), (c) and (d) must relate to the applicant. Content of application—asbestos assessor licence For the purposes of clause 492(2)(i), an application for an asbestos assessor licence must include: (a) evidence that the applicant has acquired through training or experience the knowledge and skills of relevant asbestos removal industry practice, and (b) either: (i) a copy of a certification held by the applicant in relation to the specified VET course for asbestos assessor work, or (ii) evidence that the applicant holds a tertiary qualification in occupational health and safety, industrial hygiene, science, building construction or environmental health. 495
496
Additional information
(1) If an application for a licence does not contain sufficient information to enable the regulator to make a decision whether or not to grant the licence, the regulator may ask the applicant to provide additional information. (2) A request for additional information must: (a) specify the date (not being less than 28 days after the request) by which the additional information is to be given, and (b) be confirmed in writing. (3) If an applicant does not provide the additional information by the date specified, the application is to be taken to have been withdrawn. (4) The regulator may make more than 1 request for additional information. 497
Decision on application
(1) Subject to subclause (3), the regulator must grant an asbestos removal licence or asbestos assessor licence if satisfied about: (a) the matters referred to in subclause (2), and (b) the additional matters referred to in clause 498 or 499, as applicable. (2) The regulator must be satisfied about the following: (a) the application has been made in accordance with this Regulation, (b) the applicant does not hold an equivalent licence under a corresponding WHS law unless that licence is due for renewal, (c) if the applicant is an individual, the applicant: (i) resides in this jurisdiction, or (ii) resides outside this jurisdiction and circumstances exist that justify the grant of the licence, (d) if the applicant is a body corporate, the applicant’s registered office: (i) is located in this jurisdiction, or (ii) is located outside this jurisdiction and circumstances exist that justify the grant of the licence, 486
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
cl 499
(e)
the applicant is able to ensure that the work or other activities to which the licence relates are carried out safely and competently, (f) the applicant is able to ensure compliance with any conditions that will apply to the licence.
(3) The regulator must refuse to grant a licence if satisfied that: (a) the applicant is disqualified under a corresponding WHS law from holding an equivalent licence, or (b) the applicant, in making the application, has: (i) given information that is false or misleading in a material particular, or (ii) failed to give any material information that should have been given. (4) If the regulator decides to grant the licence, it must notify the applicant within 14 days after making the decision. (5) If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 496, the regulator is taken to have refused to grant the licence applied for. Note. A refusal to grant a licence (including under subclause (5)) is a reviewable decision (see clause 676).
Class A asbestos removal licence—regulator to be satisfied about additional matters For the purposes of clause 497(1)(b), in relation to a Class A asbestos removal licence, the regulator must be satisfied that: (a) each supervisor named by the applicant: (i) is at least 18 years of age, and (ii) holds a certification for: (A) the specified VET course for the supervision of asbestos removal work, and (B) the specified VET course for the Class A asbestos removal work, and (iii) has at least 3 years of relevant industry experience, and 498
[Para (a) am Reg 61 of 2015, Sch 1[67]]
(b)
the applicant has a certified safety management system in place.
[Cl 498 am Reg 61 of 2015]
Class B asbestos removal licence—regulator to be satisfied about additional matters For the purposes of clause 497(1)(b), in relation to a Class B asbestos removal licence the regulator must be satisfied that each supervisor named by the applicant: (a) is at least 18 years of age, and (b) holds a certification for: (i) the specified VET course for the supervision of asbestos removal work, and (ii) the specified VET course for the Class B asbestos removal work, and 499
© 2017 THOMSON REUTERS
487
cl 499
Chapter 8 – Asbestos
(c) 500
has at least 1 year of relevant industry experience.
Matters to be taken into account
(1) For the purposes of clause 497(2)(e) and (f), the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty, (b) any offence in relation to the unlawful disposal of hazardous waste under the Protection of the Environment Operations Act 1997 of which the applicant has been convicted or found guilty, (c) any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law, (d) in relation to any equivalent licence applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the licence, and (ii) any condition imposed on the licence, if granted, and (iii) any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence, (e) the record of the applicant in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law. (2) For the purposes of clause 497(2)(e) and (f), if the applicant is a body corporate, the regulator must have regard to all relevant matters, including the matters referred to in subclause (1), in relation to: (i) the body corporate, and (ii) each officer of the body corporate. 501
Refusal to grant licence—process
(1) If the regulator proposes to refuse to grant a licence, the regulator must give the applicant a written notice: (a) informing the applicant of the reasons for the proposed refusal, and (b) advising the applicant that the applicant may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal. (2) After the date specified in a notice under subclause (1), the regulator must: (a) if the applicant has made a submission in relation to the proposed refusal to grant the licence—consider that submission, and (b) whether or not the applicant has made a submission—decide whether to grant or refuse to grant the licence, and (c) within 14 days after making the decision, give the applicant written notice of the decision, including the reasons for the decision. Note. A refusal to grant a licence is a reviewable decision (see clause 676).
502
Conditions of licence
(1) The regulator may impose any conditions it considers appropriate on an asbestos removal licence or asbestos assessor licence. (2) Without limiting subclause (1), the regulator may impose conditions in relation to 1 or more of the following: 488
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
(a) (b) (c)
(d) (e) (f)
cl 505
control measures which must be implemented in relation to the carrying out of work or activities under the licence, the recording or keeping of information, requiring the licence holder, or a nominated supervisor of the licence holder, to undergo retraining or reassessment during the term of the licence, the provision of information to the regulator, the nature of work or activities authorised by the licence, the circumstances in which work or activities authorised by the licence may be carried out.
Notes: 1
A person must comply with the conditions of a licence (see section 45 of the Act).
2
A decision to impose a condition on a licence is a reviewable decision (see clause 676).
503
Duration of licence
Subject to this Part, an asbestos removal licence or asbestos assessor licence takes effect on the day it is granted and, unless cancelled earlier, expires 5 years after that day. 504
Licence document
(1) If the regulator grants an asbestos removal licence or asbestos assessor licence, the regulator must issue to the applicant a licence document in the form determined by the regulator. (2) The licence document must include the following: (a) the name of the licence holder, (b) if the licence holder conducts the business or undertaking under a business name—that business name, (c) in the case of an asbestos removal licence—the class of asbestos removal licence and a description of the work within the scope of the licence, (d) any conditions imposed on the licence by the regulator, (e) the date on which the licence was granted, (f) the expiry date of the licence. 505
Licence document to be available
(1) A licence holder must keep the licence document available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) does not apply if the licence document is not in the licence holder’s possession because: (a) it has been returned to the regulator under clause 512, and (b) the licence holder has applied for, but has not received, a replacement licence document under clause 513. © 2017 THOMSON REUTERS
489
cl 506
Chapter 8 – Asbestos
DIVISION 4 – AMENDMENT OF LICENCE AND LICENCE DOCUMENT 506
Changes to information
(1) The licence holder of an asbestos removal licence or asbestos assessor licence must give the regulator written notice of any change to any material particular in any information given at any time by the licence holder to the regulator in relation to the licence within 14 days after the licence holder becomes aware of the change. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) applies whether the information was given in the application for grant or renewal of the licence or in any other circumstance. 507
Change to nominated supervisor
(1) If there is a change in relation to a supervisor named to the regulator by the holder of an asbestos removal licence (other than a licence holder who is an individual), the licence holder must: (a) if the change is to remove a supervisor—within 14 days after the change, ask the regulator to amend the licence under clause 509 to make that change, and (b) if the change is to add a supervisor—give the regulator the information about the supervisor referred to in clause 498 or 499. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If the change referred to in subclause (1) is to add a supervisor, that supervisor is not a nominated supervisor for the purposes of this Regulation until the regulator has approved the nomination. 508
Amendment imposed by regulator
(1) The regulator may, on its own initiative, amend an asbestos removal licence or asbestos assessor licence, including by amending the licence to: (a) vary or delete a condition of the licence, or (b) impose a new condition on the licence. (2) If the regulator proposes to amend a licence, the regulator must give the licence holder written notice: (a) setting out the proposed amendment and the reasons for it, and (b) advising the licence holder that the licence holder may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed amendment. (3) After the date specified in a notice under subclause (2), the regulator must: (a) if the licence holder has made a submission in relation to the proposed amendment—consider that submission, and (b) whether or not the licence holder has made a submission—decide: (i) to make the proposed amendment, or 490
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
cl 509
(ii) not to make any amendment, or (iii) to make a different amendment that results from consideration of any submission made by the licence holder, and (c) within 14 days after making that decision, give the licence holder written notice that: (i) sets out the amendment, if any, or states that no amendment is to be made, and (ii) if a submission was made in relation to the proposed amendment—sets out the regulator’s reasons for making the amendment, and (iii) specifies the date (being not less than the 28 days after the licence holder is given the notice) on which the amendment, if any, takes effect. Note. A decision to amend a licence is a reviewable decision (see clause 676).
509
Amendment on application by licence holder
(1) The regulator, on application by the licence holder, may amend an asbestos removal licence or asbestos assessor licence, including by amending the licence to vary or delete a condition of the licence. (2) If the regulator proposes to refuse to amend the licence, the regulator must give the licence holder a written notice: (a) informing the licence holder of the proposed refusal to amend the licence and the reasons for the proposed refusal, and (b) advising the licence holder that the licence holder may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal. (3) After the date specified in a notice under subclause (2), the regulator must: (a) if the licence holder has made a submission in relation to the proposed refusal—consider that submission, and (b) whether or not the licence holder has made a submission—decide: (i) to make the amendment applied for, or (ii) not to make any amendment, or (iii) to make a different amendment that results from consideration of any submission made by the licence holder, and (c) within 14 days after making that decision, give the licence holder written notice of the decision in accordance with this clause. (4) If the regulator makes the amendment applied for, the notice under subclause (3)(c) must specify the date (being not less than 28 days after the licence holder is given the notice) on which the amendment takes effect. (5) If the regulator refuses to make the amendment applied for or makes a different amendment, the notice under subclause (3)(c) must: (a) if a submission was made in relation to the proposed refusal of the amendment applied for—set out the reasons for the regulator’s decision, and (b) if the regulator makes a different amendment: (i) set out the amendment, and © 2017 THOMSON REUTERS
491
cl 509
Chapter 8 – Asbestos
(ii)
specify the date (being not less than 28 days after the licence holder is given the notice) on which the amendment takes effect.
Note. A refusal to make the amendment applied for, or a decision to make a different amendment, is a reviewable decision (see clause 676).
Minor corrections to licence The regulator may make minor amendments to a licence, including an amendment: (a) to correct an obvious error, or (b) to change an address, or (c) that does not impose a significant burden on the licence holder. 510
Regulator to give amended licence to the holder If the regulator amends an asbestos removal licence or asbestos assessor licence and considers that the licence document requires amendment, the regulator must give the licence holder an amended licence document within 14 days after making the decision to amend the licence.
511
512
Licence holder to return licence
The holder of an asbestos removal licence or asbestos assessor licence that has been amended must return the licence document to the regulator for amendment at the written request of the regulator and within the time specified in the request. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 513
Replacement licence document
(1) A licence holder of an asbestos removal licence or an asbestos assessor licence must give written notice to the regulator as soon as practicable if the licence document is lost, stolen or destroyed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If a licence document is lost, stolen or destroyed, the licence holder may apply to the regulator for a replacement document. Note. A licence holder is required to keep the licence document available for inspection (see clause 505).
(3) An application for a replacement licence document must be made in the manner and form required by the regulator. (4) The application must: (a) include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)
be accompanied by the relevant fee.
(5) The regulator must issue a replacement licence document if satisfied that the original document was lost, stolen or destroyed. 492
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
cl 517
(6) If the regulator refuses to issue a replacement licence document, it must give the licence holder written notice of this decision, including the reasons for the decision, within 14 days after making the decision. Note. A refusal to issue a replacement licence document is a reviewable decision (see clause 676).
514
Voluntary surrender of licence
(1) A licence holder may voluntarily surrender the licence document to the regulator. (2) The licence expires on the surrender of the licence document. DIVISION 5 – RENEWAL OF LICENCE 515
Regulator may renew licence
The regulator may renew an asbestos removal licence or asbestos assessor licence on application by the licence holder. 516
Application for renewal
(1) An application for renewal of an asbestos removal licence or asbestos assessor licence must be made in the manner and form required by the regulator. (2) The application must include the following information: (a) the name and address of the applicant, (b) if required by the regulator of an applicant who is an individual, a photograph of the applicant in the form required by the regulator, (c) any other evidence of the applicant’s identity required by the regulator, (d) written evidence that the applicant has obtained any retraining or reassessment or taken any other action required under clause 502, (e) a declaration by the applicant that the applicant or a supervisor named by the applicant, as applicable, has maintained the competency required to carry out the work covered by the licence. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation. [Subcl (2) am Reg 61 of 2015, Sch 1[68]]
(3) The application must be accompanied by the relevant fee. (4) The application must be made before the expiry of the licence. [Cl 516 am Reg 61 of 2015]
517
Provisions relating to renewal of licence
(1) For the purposes of this Division: (a) clause 496 applies as if a reference in that clause to an application for a licence were a reference to an application to renew a licence, and (b) clauses 497 (except subclause (5)), 500, 502 and 503 apply as if a reference in those clauses to the grant of a licence were a reference to the renewal of a licence, and (c) clause 501 applies as if a reference in that clause to a refusal to grant a licence were a reference to a refusal to renew a licence. (2) The regulator must not renew an asbestos removal licence unless the regulator is satisfied about the matters referred to in clause 518. © 2017 THOMSON REUTERS
493
cl 517
Chapter 8 – Asbestos
(3) The regulator must not renew an asbestos removal licence or asbestos assessor licence granted to a person under a corresponding WHS law if that licence is renewed under that law. [Subcl (3) am Reg 61 of 2015, Sch 1[69]]
(4) If a licence holder applies under clause 516 for the renewal of an asbestos removal licence or asbestos assessor licence, the licence is taken to continue in force from the day it would, apart from this subclause, have expired until the licence holder is given notice of the decision on the application. Note. A refusal to renew a licence is a reviewable decision (see clause 676). [Cl 517 am Reg 61 of 2015]
Renewal of asbestos removal licence—regulator to be satisfied about certain matters For the purposes of clause 517, the regulator must not renew an asbestos removal licence unless satisfied that: (a) each supervisor named by the applicant: (i) holds a certification for the specified VET course for supervision of the asbestos removal work to be authorised by the licence, and (ii) has appropriate experience in the asbestos removal work to be authorised by the licence, and (b) asbestos removal work of the type authorised by the licence has been carried out on behalf of the applicant during the term of the licence. 518
519
Status of licence during review
(1) This clause applies if the regulator gives a licence holder written notice of its decision to refuse to renew the licence. (2) If the licence holder does not apply for internal review of the decision, the licence continues to have effect until the last of the following events: (a) the expiry of the licence, (b) the end of the time for applying for an internal review. (3) If the licence holder applies for an internal review of the decision, the licence continues to have effect until the earlier of the following events: (a) the licence holder withdraws the application for review, (b) the regulator makes a decision on the review. (4) If the licence holder does not apply for an external review, the licence continues to have effect until the end of the time for applying for an external review. (5) If the licence holder applies for an external review, the licence continues to have effect until the earlier of the following events: (a) the licence holder withdraws the application for review, (b) the Civil and Administrative Tribunal makes a decision on the review. [Subcl (5) am Act 95 of 2013, Sch 2.155[3]]
(6) The licence continues to have effect under this clause even if its expiry date passes. [Cl 519 am Act 95 of 2013]
494
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
cl 521
DIVISION 6 – SUSPENSION AND CANCELLATION OF LICENCE 520
Suspension or cancellation of licence
(1) The regulator may suspend or cancel an asbestos removal licence or asbestos assessor licence if satisfied about 1 or more of the following: (a) the licence holder has failed to ensure that the work or other activities authorised by the licence are carried out safely and competently, (b) the licence holder has failed to ensure compliance with a condition of the licence, including a condition requiring the licence holder, or a nominated supervisor of the licence holder, to undergo retraining or reassessment during the term of the licence, (c) the licence holder, in the application for the grant or renewal of the licence or on request by the regulator for additional information: (i) gave information that was false or misleading in a material particular, or (ii) failed to give any material information that should have been given in that application or on that request, (d) in relation to an asbestos removal licence—the licence was granted or renewed on the basis of a certification that was obtained on the basis of the giving of false or misleading information by any person or body, (e) in relation to a Class A asbestos removal licence—the licence holder has failed to have a certified safety management system in place. (2) It is a ground for the suspension or cancellation of an asbestos removal licence if the licence holder does not have a qualified nominated asbestos removal supervisor. Note. Clause 507 provides for a licence holder to notify the regulator of any change in a nominated supervisor.
(3) For the purposes of subclause (1)(b), a licence holder complies with a condition on the licence that requires the licence holder or a nominated supervisor of the licence holder to undergo retraining or reassessment during the term of the licence if the licence holder provides a certification in relation to that retraining or reassessment. (4) If the regulator suspends or cancels a licence, the regulator may disqualify the licence holder from applying for: (a) a further licence of the same type, or (b) another licence under this Regulation to carry out work which requires skills that are the same as or similar to those required for the work authorised by the licence that has been suspended or cancelled. Note. A decision to suspend a licence, to cancel a licence or to disqualify the licence holder from applying for a further licence is a reviewable decision (see clause 676).
521
Matters taken into account
(1) In making a decision under clause 520, the regulator must have regard to: (a) any submissions made by the licence holder under clause 522, and (b) any advice received from a corresponding regulator. © 2017 THOMSON REUTERS
495
cl 521
Chapter 8 – Asbestos
(2) For the purposes of clause 520(1)(a) and (b), if the licence holder is an individual, the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law, of which the licence holder has been convicted or found guilty, (b) any enforceable undertaking the licence holder has entered into under this Act or a corresponding WHS law, (c) in relation to any equivalent licence applied for or held by the licence holder under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the licence, and (ii) any condition imposed on the licence, if granted, and (iii) any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence, (d) the record of the licence holder in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law. (3) For the purposes of clause 520(1)(a) and (b), if the licence holder is a body corporate, the regulator must have regard to all relevant matters, including the matters referred to in subclause (2), in relation to: (i) the body corporate, and (ii) each officer of the body corporate. Notice to and submissions by licence holder Before suspending or cancelling an asbestos removal licence or asbestos assessor licence, the regulator must give the licence holder a written notice of the proposed suspension or cancellation and any proposed disqualification: (a) outlining all relevant allegations, facts and circumstances known to the regulator, and (b) advising the licence holder that the licence holder may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation and any proposed disqualification. 522
523
Notice of decision
(1) The regulator must give the licence holder written notice of a decision under clause 520 to suspend or cancel an asbestos removal licence or asbestos assessor licence within 14 days after making the decision. (2) The notice must: (a) state that the licence is to be suspended or cancelled, and (b) if the licence is to be suspended, state: (i) when the suspension begins and ends, and (ii) the reasons for the suspension, and (iii) whether the licence holder is required to undergo retraining or reassessment or take any other action before the suspension ends, and (iv) whether or not the licence holder is disqualified from applying for a further licence during the suspension, and 496
Tooma’s Annotated Work Health and Safety Act 2011
Part 8.10 – Licensing of asbestos removalists and asbestos assessors
cl 525
(c)
if the licence is to be cancelled, state: (i) when the cancellation takes effect, and (ii) the reasons for the cancellation, and (iii) whether or not the licence holder is disqualified from applying for a further licence, and (d) if the licence holder is disqualified from applying for a further licence, state: (i) when the disqualification begins and ends, and (ii) the reasons for the disqualification, and (iii) whether or not the licence holder is required to undergo retraining or reassessment or take any other action before the disqualification ends, and (iv) any other class of licence under this Regulation that the licence holder is disqualified from applying for, and (e) state when the licence document must be returned to the regulator. 524
Immediate suspension
(1) The regulator may suspend an asbestos removal licence or asbestos assessor licence on a ground referred to in clause 520 without giving notice under clause 522, if satisfied that: (a) work carried out under the licence should cease because the work may involve an imminent serious risk to the health or safety of any person, or (b) a corresponding regulator has suspended an equivalent licence held by the licence holder under this clause as applying in the corresponding jurisdiction. (2) If the regulator decides to suspend a licence under this clause: (a) the regulator must give the licence holder written notice of the suspension and the reasons for the suspension, and (b) the suspension of the licence takes effect on the giving of the notice. (3) The regulator must then: (a) give notice under clause 522 within 14 days after giving the notice under subclause (2), and (b) make its decision under clause 520. (4) If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period. (5) If the regulator gives notice under subclause (3), the licence remains suspended until the decision is made under clause 520. Licence holder to return licence document A licence holder, on receiving a notice under clause 523, must return the licence document to the regulator in accordance with the notice. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 525
© 2017 THOMSON REUTERS
497
cl 526
Chapter 8 – Asbestos
Regulator to return licence document after suspension The regulator must return the licence document to the licence holder within 14 days after the licence suspension ends. 526
DIVISION 7 – GENERAL Asbestos removal licence register The regulator must keep a register of: (a) each person holding an asbestos removal licence, and (b) each supervisor named to the regulator in relation to an asbestos removal licence.
527
Asbestos assessors register The regulator must keep a publicly available register of each person holding an asbestos assessor licence. 528
Work must be supervised by named supervisor A person who holds an asbestos removal licence must ensure that asbestos removal work authorised by the licence is supervised by a supervisor named to the regulator by the licence holder. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 529
498
Tooma’s Annotated Work Health and Safety Act 2011
CHAPTER 9 – MAJOR HAZARD FACILITIES Part 9.1 – Preliminary DIVISION 1 – APPLICATION AND INTERPRETATION 530
This Chapter does not apply to certain facilities
(1) This Chapter does not apply in relation to a facility that is regulated by the National Offshore Petroleum Safety and Environmental Management Authority under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth. (2) This Chapter does not apply in relation to: (a) a port operational area under the control of a port authority, or (b) a pipeline to which the Gas Supply Act 1996 or the Pipelines Act 1967 applies, or (d) [Repealed] (e) a mine or a petroleum site. [Subcl (2) am Reg 49 of 2016, Sch 2[2]; Reg 799 of 2014, Sch 13[2]]
(3) In this clause: port authority means a body established under Part 2 or 4 of the Ports and Maritime Administration Act 1995. port operational area means the land and sea, including the fixed facilities and vessels, located in any area defined in Schedule 1 to the Ports and Maritime Administration Regulation 2007 and includes any berths adjacent to such an area, but does not include any long-term storage areas where dangerous goods are usually kept for more than 5 days. [Cl 530 am Reg 49 of 2016; Reg 799 of 2014]
531
Meaning of “major incident”
(1) In this Chapter, a major incident at a major hazard facility is an occurrence that: (a) results from an uncontrolled event at the major hazard facility involving, or potentially involving, Schedule 15 chemicals, and (b) exposes a person to a serious risk to health or safety emanating from an immediate or imminent exposure to the occurrence. (2) Without limiting subclause (1), an occurrence includes any of the following: (a) escape, spillage or leakage, (b) implosion, explosion or fire.
© 2017 THOMSON REUTERS
499
cl 532
Chapter 9 – Major hazard facilities
Meaning of hazardous chemicals that are “present or likely to be present” 532
(1) A reference in this Regulation to hazardous chemicals, including Schedule 15 chemicals, being present or likely to be present at a facility is a reference to the quantity of hazardous chemicals that would, if present, meet the maximum capacity of the facility, including: (a) the maximum capacity of process vessels and interconnecting pipe systems that contain the hazardous chemicals, and (b) the maximum capacity of storage tanks and vessels used for the hazardous chemicals, and (c) the maximum capacity of other storage areas at the facility that could contain the hazardous chemicals, and (d) the maximum capacity of pipe work outside process areas to contain the hazardous chemicals, and (e) the maximum quantity of hazardous chemicals that would, in the event of failure, escape into the facility from pipe work that is situated off the premises but is connected to the facility, and (f) the maximum quantity of hazardous chemicals loaded into or onto, or unloaded from, vehicles, trailers, rolling stock and ships that are from time to time present at the facility in the course of the facility’s operations. (2) Subclause (1) applies with any necessary changes to hazardous chemicals that are likely to be present at a proposed facility. (3) Schedule 15 chemicals present or likely to be present in the tailings dam of a mine are not to be considered in determining whether a mine is a facility or a major hazard facility. 533
Meaning of “operator” of a facility or proposed facility
(1) In this Chapter, the operator of a facility is the person conducting the business or undertaking of operating the facility who has: (a) management or control of the facility, and (b) the power to direct that the whole facility be shut down. (2) In this Chapter, operator of a proposed facility means: (a) the operator of a proposed facility that is an existing workplace, or (b) the person who is to be the operator of a proposed facility that is being designed or constructed. (3) If more than 1 person is an operator of the facility within the meaning of subclause (1): (a) 1 of those persons must be selected as the operator of the facility for the purposes of this Chapter, and (b) that person’s details must be given to the regulator. (4) The person selected: (a) must notify the regulator of the nomination, and (b) may do so by including it in a notification under clause 536. (5) The person selected under subclause (3) is the operator of the facility for the purposes of this Chapter. 500
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.1 – Preliminary
cl 535
(6) If a selection is not made, each of the following persons is taken to be an operator of the facility for the purposes of this Chapter: (a) each operator within the meaning of subclause (1) who is an individual, (b) for each operator within the meaning of subclause (1) that is a body corporate—each officer of the body corporate. 534
Meaning of “modification” of a facility
(1) In this Regulation, a reference to a modification of a major hazard facility is a reference to a change or proposed change at the major hazard facility that has or would have the effect of: (a) creating a major incident hazard that has not previously been identified, or (b) significantly increasing the likelihood of a major incident occurring, or (c) in relation to a major incident that may occur—significantly increasing: (i) its magnitude, or (ii) the severity of its health and safety consequences. (2) For the purposes of subclause (1), a change or proposed change at a major hazard facility means a change or proposed change of any kind, including any of the following: (a) a change to any plant, structure, process or chemical or other substance used in a process, including the introduction of new plant, a new structure, a new process or a new chemical, (b) a change to the quantity of Schedule 15 chemicals present or likely to be present at the major hazard facility, (c) a change to the operation, or the nature of the operation, of the major hazard facility, (d) a change in the workers’ safety role, (e) a change to the major hazard facility’s safety management system, (f) an organisational change at the major hazard facility, including a change in its senior management. DIVISION 2 – REQUIREMENT TO BE LICENSED 535
A major hazard facility must be licensed
(1) A facility at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds their threshold quantity must be licensed under Part 9.7. Note. See section 41 of the Act.
(2) A facility that is determined to be a major hazard facility under clause 541 must be licensed under Part 9.7. Note. See section 41 of the Act.
(3) Despite subclause (1) or (2), a determined major hazard facility is exempt from the requirement to be licensed during the exemption period if the operator of the major hazard facility is taken to be a suitable person to operate the facility for the purposes of Part 9.2. © 2017 THOMSON REUTERS
501
cl 535
Chapter 9 – Major hazard facilities
(4) The operator of a licensed major hazard facility must hold the licence for the major hazard facility. (5) In this clause, exemption period, in relation to a determined major hazard facility, means the period beginning on the determination of the facility and ending on the first of the following to occur: (a) the revocation of the determination of the facility under clause 546, (b) the end of the period for applying for a licence given under clause 549, unless an application for a licence for the facility is made within that period, (c) the grant of a licence for the facility under Part 9.7, (d) if the regulator decides to refuse to grant a licence for the facility: (i) the end of the period for applying for an external review of that decision, unless an application for external review is made within that period, or (ii) the making of the decision on the external review. Notes: 1 The licensing process is provided for in Part 9.7. 2 Under Part 9.2, an operator of a determined major hazard facility is taken to be a suitable operator if no determination is made under clause 543. 3 Under Part 9.3 the operator of a determined major hazard facility is given a limited time to prepare the major hazard facility to be licensed, including by preparing a safety case. 4 Part 9.2 provides for the notification and determination of facilities and operators of facilities. The purpose of notification is to enable the regulator to determine whether: (a) a facility or proposed facility is a major hazard facility, and (b) the operator of a determined major hazard facility is a suitable person to: (ii)
(i) operate the facility while the determination under paragraph (a) is in force, and apply for a licence for the facility.
Part 9.2 – Determinations about major hazard facilities 536
Operators of certain facilities must notify regulator
(1) The operator of a facility at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds 10% of their threshold quantity must notify the regulator of this circumstance in accordance with this Part. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) Notification must be given: (a) as soon as practicable (but not more than 3 months) after the operator becomes aware, or ought reasonably to have become aware, of the circumstance giving rise to the requirement to notify, or (b) within any longer period that the regulator determines if satisfied on application by the operator that there is a reasonable excuse for the delayed notification. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
502
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.2 – Determinations about major hazard facilities
537
cl 538
Notification—proposed facilities
(1) The operator of a proposed facility at which Schedule 15 chemicals are likely to be present in a quantity that exceeds 10% of their threshold quantity may notify the regulator of this circumstance. Notes: 1 See definition of proposed facility in clause 5(1). 2 For the meaning of likely to be present, see clause 532.
(2) Any notification under this clause must include the information required by clause 538 (with any necessary changes). 538
Content of notification
(1) A notification under clause 536 must be made in the manner and form required by the regulator. (2) The notification must include the following: (a) information about the facility, including the nature of its operations, (b) information about the operator, including the matters specified in subclause (3), (c) information about the Schedule 15 chemicals present or likely to be present at the facility, (d) the nomination of a contact person with whom the regulator can communicate for the purposes of: (i) this Part, and (ii) the licensing process, (e) any additional information required by the regulator. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3) The (a) (b) (c)
information given under subclause (2)(b) must include the following: the operator’s name, whether or not the operator is a body corporate, any other evidence of the operator’s identity required by the regulator, (d) if the operator is an individual: (i) a declaration as to whether or not the operator has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law, and (ii) details of any conviction or finding of guilt declared under subparagraph (i), and (iii) a declaration as to whether or not the operator has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law, and (iv) details of any enforceable undertaking declared under subparagraph (iii), and (v) if the operator has previously been refused a major hazard facility licence under a corresponding WHS law, a declaration giving details of that refusal, and (vi) if the operator has previously held a major hazard facility licence under a corresponding WHS law, a declaration:
© 2017 THOMSON REUTERS
503
cl 538
Chapter 9 – Major hazard facilities
(A) describing any condition imposed on that licence, and (B) stating whether or not that licence had been suspended or cancelled and, if so, whether or not the operator had been disqualified from applying for a major hazard facility licence, and (C) giving details of any suspension, cancellation or disqualification, (e) if the operator is a body corporate, the information specified in paragraph (d) in relation to: (i) the operator, and (ii) each officer of the operator. (4) The notification must be accompanied by the relevant fee. When regulator may conduct inquiry The regulator may conduct an inquiry under this Division if a notification under clause 536 or 537 discloses, or if for some other reason the regulator reasonably suspects, that: (a) the quantity of Schedule 15 chemicals present or likely to be present at a facility (or proposed facility) exceeds 10% of their threshold quantity but does not exceed their threshold quantity, or (b) the operator of the facility (or proposed facility) may not be a suitable person to operate the facility (or proposed facility). 539
540
Inquiry procedure
(1) This clause sets out the procedure for an inquiry. (2) The regulator must give a written notice to the person referred to in subclause (3): (a) informing the person of the reasons for the inquiry, and (b) advising the person that the person may, by a specified date (being not less than 28 days after the notice is given), make a submission to the regulator in relation to the inquiry. (3) Notice under subclause (2) must be given: (a) for an inquiry about a facility in relation to which a notification has been given under clause 536 or 537—to the contact person identified in the notification, and (b) in any other case—to the operator of the facility. (4) The regulator must: (a) if the recipient of the notice has made a submission in relation to the inquiry—consider that submission, and (b) consult with interested persons including: (i) health and safety representatives at the facility, and (ii) the emergency service organisations that have responsibility for the area in which the facility is located, and (iii) any government department or agency with a regulatory role in relation to major hazard facilities, and (c) decide whether or not to make a determination under clause 541 or 542, and 504
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.2 – Determinations about major hazard facilities
(d)
541
cl 543
if it decides to make a determination under clause 541 or 542—decide whether or not to make a determination in relation to the operator under clause 543.
Determination in relation to facility, on inquiry
(1) This clause applies if an inquiry discloses that the quantity of Schedule 15 chemicals present or likely to be present at a facility or proposed facility exceeds 10% of their threshold quantity, but does not exceed their threshold quantity. (2) The regulator may determine the facility or proposed facility to be a major hazard facility if the regulator considers that there is a potential for a major incident to occur at the facility or proposed facility having regard to all relevant matters, including: (a) the quantity and combination of Schedule 15 chemicals present or likely to be present at the facility, and (b) the type of activity at the facility that involves the Schedule 15 chemicals, and (c) land use and other activities in the surrounding area. Notes: 1 If an inquiry discloses that the quantity of Schedule 15 chemicals present or likely to be present at a facility exceeds their threshold quantity, the facility is a major hazard facility. See definition of major hazard facility in clause 5(1). 2 A determination that a facility is a major hazard facility, or that a proposed facility is not a major hazard facility, is a reviewable decision (see clause 676).
542
Determination in relation to over-threshold facility
(1) This clause applies if a notification under clause 536 or 537 discloses that the quantity of Schedule 15 chemicals present or likely to be present at a facility (or proposed facility) exceeds their threshold quantity. (2) The regulator must make a determination confirming the facility (or proposed facility) to be a major hazard facility. Note. A determination that a facility is a major hazard facility is a reviewable decision (see clause 676).
543
Suitability of facility operator
(1) This clause applies if the regulator determines a facility or a proposed facility to be a major hazard facility under clause 541 or 542. (2) The regulator may determine that the operator of the major hazard facility or proposed major hazard facility is not a suitable person to operate the major hazard facility if the regulator: (a) has conducted an inquiry under clause 540 into the suitability of the operator, and (b) is satisfied on reasonable grounds that the operator is not a suitable person to operate the major hazard facility or proposed major hazard facility. (3) If no determination is made under this clause, the operator of the major hazard facility or proposed major hazard facility is taken to be a suitable person to operate the major hazard facility and to apply for a major hazard facility licence. © 2017 THOMSON REUTERS
505
cl 543
Chapter 9 – Major hazard facilities
Note. A determination that a person is not a suitable operator is a reviewable decision (see clause 676).
544
Conditions on determination of major hazard facility
(1) The regulator may impose any conditions it considers appropriate on a determination made under clause 541 or 542. (2) Without limiting subclause (1), the regulator may impose conditions in relation to 1 or more of the following: (a) additional control measures that must be implemented in relation to the carrying out of work or activities at the determined major hazard facility, (b) the recording or keeping of additional information, (c) the provision of additional information, training and instruction or the provision of specified information, training and instruction to additional persons or classes of persons, (d) the provision of additional information to the regulator, (e) if the operator is a person conducting a business or undertaking, the additional class of persons who may carry out work or activities on the operator’s behalf. (3) The operator of a determined major hazard facility, in relation to which conditions are imposed under this clause, must ensure that the conditions are complied with. Note. A decision to impose a condition on a determination is a reviewable decision (see clause 676).
Conditions on determination—payment of relevant fee It is a condition on a determination made under clause 541 or 542 that the operator of the determined major hazard facility must pay the relevant fee within 28 days after receiving notice of the fee from the regulator.
544A
545
Notice and effect of determinations
(1) If the regulator makes a determination under this Part, the regulator must give the operator of the determined major hazard facility a written notice of the determination, stating: (a) the reasons for the determination, and (b) the date on which the determination takes effect, which must be at least 28 days after the date of the notice, and (c) any conditions imposed on the determination under clause 544. (2) The notice must be given within 14 days of the making of the determination. (3) The effect of a determination under clause 543 is that: (a) the operator is not taken to be a suitable person to operate the determined major hazard facility, and (b) the exemption provided by clause 535(3) does not apply to the determined major hazard facility. Note. For the effect of a determination under clause 541 or 542, see definition of determined major hazard facility in clause 5(1).
(4) A determination takes effect on the date specified in the notice. 506
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.2 – Determinations about major hazard facilities
cl 548
(5) A determination is of unlimited duration unless it is revoked. When regulator may revoke a determination The regulator may revoke a determination under this Part if, after consultation with the major hazard facility’s contact person or operator (as applicable), the regulator is satisfied that the reasons for the determination no longer apply. 546
547
Re-notification if quantity of Schedule 15 chemicals increases
(1) This clause applies to a facility or proposed facility: (a) at which the quantity of Schedule 15 chemicals present or likely to be present exceeds 10% of their threshold quantity but does not exceed their threshold quantity, and (b) in relation to which notification was given under clause 536 or 537, and (c) in relation to which the regulator: (i) has not conducted an inquiry under this Division, or (ii) on conducting an inquiry, has not determined the facility or proposed facility to be a major hazard facility under clause 541. [Subcl (1) am Reg 61 of 2015, Sch 1[70]]
(2) The operator of the facility or proposed facility must re-notify the regulator in accordance with this Part if the quantity of Schedule 15 chemicals present or likely to be present at the facility or proposed facility increases, or is likely to increase, to a level that exceeds the level previously notified to the regulator. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The provisions of this Part apply, to the extent that they relate to a re-notification under this clause, as if the re-notification were a notification under clause 536. [Cl 547 am Reg 61 of 2015]
548
Notification by new operator
(1) This clause applies: (a) in relation to a determined major hazard facility that is proposed to be operated by a new operator, (b) whether or not a determination under clause 543 was made in relation to the current operator. (2) A proposed new operator of the determined major hazard facility must give the regulator a notification that contains the information specified in clause 538(2) in relation to the proposed new operator. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) The provisions of this Part apply, to the extent that they relate to the suitability of an operator, as if the notification under subclause (2) were a notification under clause 536. © 2017 THOMSON REUTERS
507
cl 549
549
Chapter 9 – Major hazard facilities
Time in which major hazard facility licence must be applied for
(1) Subject to this clause, the operator of a determined major hazard facility must apply for a major hazard facility licence within 24 months after the determination of the facility. (2) The regulator may extend the time in which the operator of a determined major hazard facility must apply for a licence if satisfied, on application by the operator, that there has not been sufficient time to comply with Part 9.3. Note. The exemption from the requirement to be licensed is conditional on an application for a licence being made within the time specified by this clause (see clause 535(3) and (5)).
Part 9.3 – Duties of operators of determined major hazard facilities Notes: 1 The operator of a determined major hazard facility is required to comply with this Part for a specified period and to prepare a safety case in order to apply for a major hazard facility licence. 2 The Act and Chapter 7 of this Regulation (Hazardous Chemicals) continue to apply to a determined major hazard facility.
DIVISION 1 – APPLICATION OF PART 9.3 Application of Part 9.3 This Part ceases to apply to a determined major hazard facility at the end of the exemption period applying to that facility under clause 535. 550
DIVISION 2 – SAFETY CASE OUTLINE Safety case outline must be provided The operator of a determined major hazard facility must provide the regulator with a safety case outline for the major hazard facility within 3 months after the facility is determined to be a major hazard facility. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 551
552
Content
A safety case outline provided under clause 551 must include the following: (a) a written plan for the preparation of the safety case, including key steps and timelines, with reference being made to each element of the safety case, (b) a description of the methods to be used in preparing the safety case, including methods for ensuring that all the information contained in the safety case is accurate and up to date when the safety case is provided to the regulator, (c) details of the resources that will be applied to the preparation of the safety case, including the number of persons involved, their relevant knowledge and experience and sources of technical information, (d) a description of the consultation with workers that: (i) occurred in the preparation of the safety case outline, and 508
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.3 – Duties of operators of determined major hazard facilities
cl 554
(ii) will occur in the preparation of the safety case, a draft of the emergency plan prepared or to be prepared under clause 557, (f) a summary of any arrangements that are to be made in relation to the security of the major hazard facility.
(e)
Example. Arrangements for preventing unauthorised access to the major hazard facility.
553
Alteration
(1) If the regulator is not satisfied that a safety case outline provided by the operator of a determined major hazard facility will lead to the development of a safety case that complies with clause 561, the regulator may require the operator to alter the outline. (2) If the regulator proposes to require an operator to alter a safety case outline, the regulator must give the operator a written notice: (a) informing the operator of the proposed requirement and the reasons for it, and (b) advising the operator that the operator may make a submission to the regulator in relation to the proposed requirement, and (c) specifying the date (being not less than 28 days) by which the submission must be made. (3) The regulator must: (a) if the operator has made a submission in relation to the proposed requirement to alter a safety case outline—consider that submission, and (b) whether or not the operator has made a submission—decide whether or not to require the operator to alter the outline, and (c) within 14 days after deciding, give the operator written notice of the decision, including details of the alteration required and the reasons why it is required. (4) The operator must alter the outline as required. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (5) The operator must give the regulator a copy of a safety case outline that has been altered: (a) under this clause, or (b) by the operator on the operator’s initiative. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (6) The safety case outline as altered becomes the safety case outline for the major hazard facility. DIVISION 3 – MANAGEMENT OF RISK 554 Identification of major incidents and major incident hazards (1) The operator of a determined major hazard facility must identify: © 2017 THOMSON REUTERS
509
cl 554
Chapter 9 – Major hazard facilities
(a) (b)
Maximum (a) (b)
all major incidents that could occur in the course of the operation of the major hazard facility, and all major incident hazards for the major hazard facility, including major incident hazards relating to the security of the major hazard facility. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
(2) In complying with subclause (1), the operator must have regard to any advice and recommendations given by: (a) the emergency service organisations with responsibility for the area in which the major hazard facility is located, and (b) any government department or agency with a regulatory role in relation to major hazard facilities. (3) The operator must document: (a) all identified major incidents and major incident hazards, and (b) the criteria and methods used in identifying the major incidents and major incident hazards, and (c) any external conditions under which the major incident hazards, including those relating to the security of the major hazard facility, might give rise to the major incidents. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 555
Safety assessment
(1) The operator of a determined major hazard facility must conduct a safety assessment in relation to the operation of the major hazard facility. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In order to provide the operator with a detailed understanding of all aspects of risks to health and safety associated with major incidents, a safety assessment must involve a comprehensive and systematic investigation and analysis of all aspects of risks to health and safety associated with all major incidents that could occur in the course of the operation of the major hazard facility, including the following: (a) the nature of each major incident and major incident hazard, (b) the likelihood of each major incident hazard causing a major incident, (c) in the event of a major incident occurring, its potential magnitude and the severity of its potential health and safety consequences, (d) the range of control measures considered, (e) the control measures the operator decides to implement. (3) In conducting a safety assessment, the operator must: (a) consider major incidents and major incident hazards cumulatively as well as individually, and 510
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.3 – Duties of operators of determined major hazard facilities
(b)
cl 557
use assessment methods (whether quantitative or qualitative, or both), that are suitable for the major incidents and major incident hazards being considered.
(4) The operator must document all aspects of the safety assessment, including: (a) the methods used in the investigation and analysis, and (b) the reasons for deciding which control measures to implement. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) The operator must keep a copy of the safety assessment at the major hazard facility. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 556
Control of risk
(1) The operator of a determined major hazard facility must implement control measures that: (a) eliminate, so far as is reasonably practicable, the risk of a major incident occurring, or (b) if it is not reasonably practicable to eliminate that risk—minimise that risk so far as is reasonably practicable. Note. WHS Act—section 20 (see clause 9).
(2) The operator of a determined major hazard facility must implement risk control measures designed to minimise, in the event of a major incident occurring, its magnitude and the severity of its consequences to persons both on-site and off-site. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 557
Emergency plan
(1) The operator of a determined major hazard facility must prepare an emergency plan for the major hazard facility that: (a) addresses all health and safety consequences of a major incident occurring, and (b) includes all matters specified in Schedule 16, and (c) provides for testing of emergency procedures, including the frequency of testing. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In preparing an emergency plan, the operator must consult with: (a) the following bodies: © 2017 THOMSON REUTERS
511
cl 557
Chapter 9 – Major hazard facilities
(i) Fire and Rescue NSW, and (ii) if the facility is within a rural fire district within the meaning of the Rural Fires Act 1997—the NSW Rural Fire Service, and (b) in relation to the off-site health and safety consequences of a major incident occurring—the local authority. (3) The operator must ensure that the emergency plan addresses any recommendation made by the emergency service organisations consulted under subclause (2) in relation to: (a) the testing of the emergency plan, including the manner in which it will be tested, the frequency of testing and whether or not the emergency service organisations will participate in the testing, and (b) what incidents or events at the major hazard facility should be notified to the emergency service organisations. (4) The operator must have regard to any other recommendation or advice given by a person consulted under subclause (2). (5) The operator must: (a) keep a copy of the plan at the major hazard facility, and (b) give a copy of the plan to: (i) the emergency service organisations consulted subclause (2), and (ii) any other relevant emergency service organisations. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000.
under
(6) The operator must test the emergency plan in accordance with the recommendations made by the emergency service organisations consulted under subclause (2) before applying for a licence for the major hazard facility. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (7) The operator must immediately implement the emergency plan if: (a) a major incident occurs in the course of the operation of the major hazard facility, or (b) an event occurs that could reasonably be expected to lead to a major incident. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (8) The operator must notify the emergency service organisations consulted under subclause (2) of the occurrence of an incident or event referred to in subclause (3)(b). Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 512
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.3 – Duties of operators of determined major hazard facilities
cl 559
Note. This clause applies in addition to clause 43.
558
Safety management system
(1) The operator of a determined major hazard facility must establish a safety management system for the operation of the major hazard facility, in accordance with this clause. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The operator of a determined major hazard facility must implement the safety management system for the major hazard facility, so far as is reasonably practicable. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The safety management system must: (a) provide a comprehensive and integrated system for the management of all aspects of risk control in relation to the occurrence and potential occurrence of major incidents at the major hazard facility, and (b) be designed to be used by the operator as the primary means of ensuring the safe operation of the major hazard facility. (4) The safety management system must: (a) be documented, and (b) state the operator’s safety policy, including the operator’s broad aims in relation to the safe operation of the major hazard facility, and (c) state the operator’s specific safety objectives and describe the systems and procedures that will be used to achieve those objectives, and (d) include the matters specified in Schedule 17, and (e) be readily accessible to persons who use it. 558A
Security arrangements
(1) The operator of a determined major hazard facility must make arrangements for the security of the major hazard facility. (2) The operator of a determined major hazard facility, when preparing any such security arrangements, must ensure that: (a) details of those arrangements are provided to the Commissioner of Police, and (b) regard is taken of any written advice received from the Commissioner of Police. 559
Review of risk management
(1) The operator of a determined major hazard facility must review and as necessary revise the following, in accordance with this clause: (a) the safety assessment conducted under clause 555 in order to ensure the adequacy of the control measures to be implemented by the operator, © 2017 THOMSON REUTERS
513
cl 559
Chapter 9 – Major hazard facilities
(b) (c) Maximum (a) (b)
the major hazard facility’s emergency plan, the major hazard facility’s safety management system. penalty: in the case of an individual—$6,000, or in the case of a body corporate—$30,000.
(2) Without limiting subclause (1), the operator must conduct a review and revision in the following circumstances: (a) a modification to the major hazard facility is proposed, (b) a control measure implemented under clause 556 does not minimise the relevant risk so far as is reasonably practicable, Example. An effectiveness test indicates a deficiency in the control measure.
(c) a new major hazard risk is identified, (d) the results of consultation by the operator under Part 9.5 indicate that a review is necessary, (e) a health and safety representative requests a review under subclause (4), (f) the regulator requires the review. (3) In reviewing and revising the emergency plan, the operator must consult with the emergency service organisations referred to in clause 557(2). (4) A health and safety representative for workers at a major hazard facility may request a review if the representative reasonably believes that: (a) a circumstance referred to in subclause (2)(a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and (b) the operator has not adequately conducted a review in response to the circumstance. DIVISION 4 – SAFETY CASE 560
Safety case must be provided
The operator of a determined major hazard facility must provide the regulator with a completed safety case for the major hazard facility, that has been prepared in accordance with clause 561, within 24 months after the facility was determined to be a major hazard facility. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 561
Content
(1) The operator must prepare the safety case in accordance with the safety case outline prepared or altered under this Division. (2) A safety case must contain the following: (a) a summary of the identification conducted under clause 554, including a list of all major incidents identified, (b) a summary of the safety assessment conducted under clause 555, (c) a summary of the major hazard facility’s emergency plan, 514
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.3 – Duties of operators of determined major hazard facilities
cl 562
(d) a summary of the major hazard facility’s safety management system, (e) a description of any arrangements made in relation to the security of the major hazard facility, (f) a description of the consultation with workers that took place under clause 575 in the preparation of the safety case, (g) the additional matters specified in Schedule 18. (3) The safety case must include any further information that is necessary to ensure that all information contained in the safety case is accurate and up to date. (4) A safety case must demonstrate: (a) that the major hazard facility’s safety management system will, once implemented, control risks arising from major incidents and major incident hazards, and (b) the adequacy of the measures to be implemented by the operator to control risks associated with the occurrence and potential occurrence of major incidents. (5) The operator must include in the safety case a signed statement that: (a) the information provided under subclauses (1) and (2) is accurate and up to date, and (b) as a consequence of conducting the safety assessment, the operator has a detailed understanding of all aspects of risk to health and safety associated with major incidents that may occur, and (c) the control measures to be implemented by the operator: (i) will eliminate the risk of a major incident occurring, so far as is reasonably practicable, and (ii) if it is not reasonably practicable to eliminate the risk of a major incident occurring—will minimise the risk so far as is reasonably practicable, and (iii) in the event of a major incident occurring—will minimise its magnitude and the severity of its health and safety consequences so far as is reasonably practicable, and (d) all persons to be involved in the implementation of the safety management system have the knowledge and skills necessary to enable them to carry out their role safely and competently. (6) If the operator is a body corporate, the safety case must be signed by the most senior executive officer of the body corporate who resides in this jurisdiction. 562
Co-ordination for multiple facilities
(1) The regulator may require the operators of 2 or more major hazard facilities to co-ordinate the preparation of the safety cases for their major hazard facilities if the regulator is satisfied on reasonable grounds that such co-ordination is necessary in the interests of the safe operation and effective safety management of any or all of those major hazard facilities. (2) If the regulator requires the co-ordinated preparation of safety cases, each operator must provide the other operators with information concerning any circumstances at the operator’s facility that could constitute a major incident © 2017 THOMSON REUTERS
515
cl 562
Chapter 9 – Major hazard facilities
hazard in relation to any of the other major hazard facilities. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (3) In complying with this clause, the operator is not required to disclose information that may expose the major hazard facility to a major incident hazard in relation to the security of the major hazard facility. Review The operator of a determined major hazard facility must review and as necessary revise the major hazard facility’s safety case after any review is conducted under clause 559. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 563
Note. The operator of a licensed major hazard facility is required to notify the regulator of any change in relation to certain information about the licence (see clause 588).
Part 9.4 – Licensed major hazard facilities—risk management Note. This Part applies to a major hazard facility that is licensed under Part 9.7.
564
Identification of major incidents and major incident hazards
(1) The operator of a licensed major hazard facility must identify: (a) all major incidents that could occur in the course of the operation of the major hazard facility, and (b) all major incident hazards for the major hazard facility, including major incident hazards relating to the security of the major hazard facility. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) In complying with subclause (1), the operator must have regard to any advice and recommendations given by: (a) the emergency service organisations with responsibility for the area in which the major hazard facility is located, and (b) any government department or agency with a regulatory role in relation to major hazard facilities. (3) The operator must document: (a) all identified major incidents and major incident hazards, and (b) the criteria and methods used in identifying the major incidents and major incident hazards, and (c) any external conditions under which the major incident hazards, including those relating to the security of the major hazard facility, might give rise to the major incidents. Maximum penalty: 516
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.4 – Licensed major hazard facilities—risk management
cl 567
(a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) All major incidents and major incident hazards identified and documented under clause 554 in relation to the major hazard facility are taken to have been identified and documented under this clause. Safety assessment The operator of a licensed major hazard facility must keep a copy of the safety assessment documented under clause 555 as revised under Part 9.3 and this Part at the facility. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 565
566
Control of risk
(1) The operator of a licensed major hazard facility must implement risk control measures that: (a) eliminate, so far as is reasonably practicable, the risk of a major incident occurring, or (b) if it is not reasonably practicable to eliminate that risk—minimise that risk so far as is reasonably practicable. Note. WHS Act—section 20 (see clause 9).
(2) The operator of a licensed major hazard facility must implement risk control measures designed to minimise, in the event of a major incident occurring, its magnitude and the severity of its consequences to persons both on-site and off-site. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 567
Emergency plan
(1) The operator of a licensed major hazard facility must keep a copy of the major hazard facility’s emergency plan prepared under clause 557 as revised under Part 9.3 and this Part at the facility. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The operator must test the emergency plan in accordance with the recommendations made by the emergency service organisations referred to in clause 557(2). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The operator must immediately implement the emergency plan if: (a) a major incident occurs in the course of the operation of the major hazard facility, or © 2017 THOMSON REUTERS
517
cl 567
Chapter 9 – Major hazard facilities
(b)
an event occurs that could reasonably be expected to lead to a major incident.
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) The operator must notify the regulator and the emergency service organisations referred to in clause 557(2) of the occurrence of an incident or event referred to in clause 557(3) as soon as practicable after the incident or event occurs. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 568
Safety management system
(1) The operator of a licensed major hazard facility must implement the major hazard facility’s safety management system established under clause 558 as revised under Part 9.3 and this Part. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The operator must use the safety management system as the primary means of: (a) ensuring the health and safety of workers engaged or caused to be engaged by the operator and workers whose activities in carrying out work are influenced or directed by the operator while the workers are at work in the operation of the major hazard facility, and (b) ensuring that the health and safety of other persons is not put at risk from work carried out as part of the operation of the major hazard facility. Note. The operator of a licensed major hazard facility is required to notify the regulator of any change in relation to certain information about the licence (see clause 588).
569
Review of risk management
(1) The operator of a licensed major hazard facility must review and as necessary revise the following, in accordance with this clause: (a) the safety assessment for the facility in order to ensure the adequacy of the control measures to be implemented by the operator, (b) the major hazard facility’s emergency plan, (c) the major hazard facility’s safety management system. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) Without limiting subclause (1), the operator must conduct a review and revision in the following circumstances: (a) a modification to the major hazard facility is proposed, (b) a control measure implemented under clause 566 does not minimise the relevant risk so far as is reasonably practicable, 518
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.4 – Licensed major hazard facilities—risk management
cl 572
Example. An effectiveness test indicates a deficiency in the control measure.
(c) a new major hazard risk is identified, (d) the results of consultation by the operator under Part 9.5 indicate that a review is necessary, (e) a health and safety representative requests a review under subclause (5), (f) the regulator requires the review, (g) at least once every 5 years. (3) In reviewing and revising the safety assessment, the operator must comply with the requirements set out in clause 555(2), (3) and (4). (4) In reviewing and revising the emergency plan, the operator must consult with the emergency service organisations referred to in clause 557(2). (5) A health and safety representative for workers at a major hazard facility may request a review if the representative reasonably believes that: (a) a circumstance referred to in subclause (2)(a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and (b) the operator has not adequately conducted a review in response to the circumstance. Safety case—review The operator of a licensed major hazard facility must review and as necessary revise the safety case after any review is conducted under clause 569. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. 570
Note. The operator of a licensed major hazard facility is required to notify the regulator of any change in relation to certain information about the licence. See clause 588.
Information for visitors The operator of a licensed major hazard facility must ensure that a person other than a worker who enters the major hazard facility is as soon as practicable: (a) informed about hazards at the major hazard facility that may affect that person, and (b) instructed in safety precautions the person should take, and (c) instructed in the actions the person should take if the emergency plan is implemented while the person is on-site. 571
Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 572
Information for local community—general
(1) The operator of a licensed major hazard facility must ensure the provision of the following information to the local community and the local authority: (a) the name and location of the major hazard facility, (b) the name, position and contact details of a contact person from whom information may be obtained, © 2017 THOMSON REUTERS
519
cl 572
Chapter 9 – Major hazard facilities
(c) a general description of the major hazard facility’s operations, (d) the means by which the local community will be informed of a major incident occurring, (e) the actions, as specified in the major hazard facility’s emergency plan, that members of the local community should take if a major incident occurs, (f) a summary of the safety case for the major hazard facility. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The operator must ensure that the information provided under subclause (1) is: (a)
set out and expressed in a way that is readily accessible and understandable to persons who are not familiar with the major hazard facility and its operations, and (b) reviewed and as necessary revised if a modification is made to the major hazard facility, and (c) sent in writing to any community or public library serving the local community. (3) In complying with subclause (1), the operator is not required to disclose information that may expose the major hazard facility to a major incident hazard in relation to the security of the major hazard facility. (4) The operator of a licensed major hazard facility who receives a written request from a person who reasonably believes that the occurrence of a major incident at the major hazard facility may adversely affect his or her health or safety must give that person a copy of the information provided to the local community under this clause. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 573
Information for local community—major incident
(1) As soon as practicable after a major incident occurs, the operator of the major hazard facility must take all reasonable steps to provide the persons specified in subclause (2) with information about the major incident, including: (a) a general description of the major incident, and (b) a description of the actions the operator has taken and proposes to take to prevent any recurrence of the major incident or the occurrence of a similar major incident, and (c) recommended actions that the local authority and members of the local community should take to eliminate or minimise risks to health and safety. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 520
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.5 – Consultation and workers’ safety role
cl 575
(2) The persons to whom information about a major incident must be given are: (a) the local community, if a member of the local community was affected by the major incident, and (b) the local authority, and (c) any government department or agency with a regulatory role in relation to major hazard facilities.
Part 9.5 – Consultation and workers’ safety role 574
Safety role for workers
(1) The operator of a determined major hazard facility must, within the time specified in the safety case outline for the major hazard facility, implement a safety role for the workers at the major hazard facility that enables them to contribute to: (a) the identification of major incidents and major incident hazards under clause 554, and (b) the consideration of control measures in the conduct of the safety assessment under clause 555, and (c) the conduct of a review under clause 559. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (2) The operator of a licensed major hazard facility must implement a safety role for workers at the facility so as to enable them to contribute to the conduct of a review under clause 569. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. 575
Operator of major hazard facility must consult with workers
(1) For the purposes of section 49(f) of the Act, the operator of a determined major hazard facility must consult with workers at the major hazard facility in relation to the following: (a) the preparation of the safety case outline for the major hazard facility, (b) the preparation, testing and implementation of the major hazard facility’s emergency plan, (c) the establishment and implementation of the major hazard facility’s safety management system, (d) the conduct of a review under clause 559, (e) the implementation of the workers’ safety role under clause 574(1), (f) the preparation and review of the major hazard facility’s safety case. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. © 2017 THOMSON REUTERS
521
cl 575
Chapter 9 – Major hazard facilities
(2) For the purposes of section 49(f) of the Act, the operator of a licensed major hazard facility must consult with workers at the major hazard facility in relation to the following: (a) the testing and implementation of the major hazard facility’s emergency plan, (b) the implementation of the major hazard facility’s safety management system, (c) the conduct of a review under clause 569, (d) the implementation of the workers’ safety role under clause 574(2), (e) a review of the major hazard facility’s safety case. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. Note. See section 49 of the Act for other consultation duties of a person conducting a business or undertaking.
Part 9.6 – Duties of workers at licensed major hazard facilities 576
Duties
(1) While at work, a worker at a licensed major hazard facility must: (a) comply with any procedure imposed by the operator as a control measure in relation to major incidents, including the taking of corrective action under the procedure, and (b) comply with any procedure in the emergency plan, including the taking of corrective action under the plan, and (c) immediately inform the operator about any circumstance that the worker believes may cause a major incident, and (d) inform his or her supervisor about any corrective action taken by the worker. Maximum penalty: (a) in the case of an individual—$3,600, or (b) in the case of a body corporate—$18,000. (2) A worker is not required to comply with subclause (1) if to do so would risk the health or safety of the worker or of another worker or other person.
Part 9.7 – Licensing of major hazard facilities DIVISION 1 – LICENSING PROCESS Who may apply for a licence Only an operator of a determined major hazard facility who is taken to be a suitable operator under clause 543 may apply for a major hazard facility licence for that facility. 577
522
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.7 – Licensing of major hazard facilities
578
cl 578
Application for major hazard facility licence
(1) An application for a major hazard facility licence must be made in the manner and form required by the regulator. (2) The (a) (b) (c)
(d) (e) (f)
(g)
application must include the following information: the operator’s name, whether or not the operator is a body corporate, if the operator conducts the business or undertaking under a business name—that business name and a certificate or other written evidence of the registration of the business name, any other evidence of the operator’s identity required by the regulator, the safety case prepared under Division 4 of Part 9.3, if the operator is an individual: (i) a declaration as to whether or not the operator has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law, and (ii) details of any conviction or finding of guilt declared under subparagraph (i), and (iii) a declaration as to whether or not the operator has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law, and (iv) details of any enforceable undertaking declared under subparagraph (iii), and (v) if the operator has previously been refused a major hazard facility licence under a corresponding WHS law, a declaration giving details of that refusal, and (vi) if the operator has previously held a major hazard facility licence under the Act or this Regulation or under a corresponding WHS law, a declaration: (A) describing any condition imposed on that licence, and (B) stating whether or not that licence had been suspended or cancelled and, if so, whether or not the operator had been disqualified from applying for a major hazard facility licence, and (C) giving details of any suspension, cancellation or disqualification, if the operator is a body corporate, the information referred to in paragraph (f) in relation to: (i) the operator, and (ii) each officer of the operator.
Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3) The application must be accompanied by the relevant fee. © 2017 THOMSON REUTERS
523
cl 579
579
Chapter 9 – Major hazard facilities
Additional information
(1) If an application for a major hazard facility licence does not contain sufficient information to enable the regulator to make a decision whether or not to grant the licence, the regulator may ask the operator to provide additional information. (2) A request for additional information must: (a) specify the date (not being less than 28 days after the request) by which the additional information is to be given, and (b) be confirmed in writing. (3) If an operator does not provide the additional information by the date specified, the application is to be taken to have been withdrawn. (4) The regulator may make more than 1 request for additional information under this clause. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
580
Decision on application
(1) Subject to this clause, the regulator must grant a major hazard facility licence if satisfied about the matters referred to in subclause (2). (2) The regulator must be satisfied about the following: (a) the application has been made in accordance with this Regulation, (b) the safety case for the facility has been prepared in accordance with Division 4 of Part 9.3, (c) the operator is able to operate the major hazard facility safely and competently, (d) the operator is able to comply with any conditions that will apply to the licence. (3) The regulator may refuse to grant a major hazard facility licence if it becomes aware of circumstances that satisfy it that the following persons are not suitable persons to exercise management or control over the major hazard facility: (a) if the operator is an individual—the operator, (b) if the operator is a body corporate—any officer of the body corporate. (4) The regulator must refuse to grant a major hazard facility licence if satisfied that the operator, in making the application, has: (a) given information that is false or misleading in a material particular, or (b) failed to give any material information that should have been given. (5) If the regulator decides to grant the licence, it must notify the operator within 14 days after making the decision. (6) If the regulator does not make a decision within 6 months after receiving the application or the additional information requested under clause 579, the regulator is taken to have refused to grant the licence applied for. Note. A refusal to grant a major hazard facility licence (including under subclause (6)) is a reviewable decision (see clause 676).
524
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.7 – Licensing of major hazard facilities
581
cl 584
Matters to be taken into account
(1) For the purposes of clause 580(3), if the operator is an individual, the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law of which the operator has been convicted or found guilty, (b) any enforceable undertaking the operator has entered into under the Act or under a corresponding WHS law, (c) in relation to a major hazard facility licence applied for or held by the operator under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the licence, and (ii) any condition imposed on the licence, if granted, and the reason the condition was imposed, and (iii) any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence, (d) the operator’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law, (e) any advice or recommendations received from any agency of the Crown with responsibility in relation to national security. (2) For the purposes of clause 580(3), if the operator is a body corporate, the regulator must have regard to all relevant matters, including the matters referred to in subclause (1), in relation to: (a) the body corporate, and (b) each officer of the body corporate. When decision is to be made The regulator must make a decision in relation to an application for a major hazard facility licence within 6 months after receiving the application or the additional information requested under clause 579. 582
583
Refusal to grant major hazard facility licence—process
(1) If the regulator proposes to refuse to grant a major hazard facility licence, the regulator must give a written notice to the operator: (a) informing the operator of the reasons for the proposed refusal, and (b) advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal. (2) After the date specified in a notice under subclause (1), the regulator must: (a) if the operator has made a submission in relation to the proposed refusal to grant the licence—consider that submission, and (b) whether or not the operator has made a submission—decide whether to grant or refuse to grant the licence, and (c) within 14 days after making the decision, give the operator written notice of the decision, including the reasons for the decision. 584
Conditions of licence
(1) The regulator may impose any conditions it considers appropriate on a major hazard facility licence. © 2017 THOMSON REUTERS
525
cl 584
Chapter 9 – Major hazard facilities
(2) Without limiting subclause (1), the regulator may impose conditions in relation to 1 or more of the following: (a) additional control measures which must be implemented in relation to the carrying out of work or activities under the licence, (b) the recording or keeping of additional information, (c) the provision of additional information, training and instruction or the giving of specified information, training and instruction to additional persons or classes of persons, (d) the provision of additional information to the regulator, (e) if the operator is a person conducting a business or undertaking, the additional class of persons who may carry out work or activities on the operator’s behalf. Notes: 1 A person must comply with the conditions of a licence (see section 45 of the Act). 2 A decision to impose a condition on a licence is a reviewable decision (see clause 676).
Duration of licence Subject to this Part, a major hazard facility licence takes effect on the day it is granted and, unless cancelled earlier, expires on the day determined by the regulator, which must be not more than 5 years after the day the licence was granted. 585
Conditions of licence—payment of relevant fee It is a condition of the major hazard facility licence that the operator of the major hazard facility must pay the relevant fee within 28 days after receiving notice of the fee from the regulator.
585A
586
Licence document
(1) If the regulator grants a major hazard facility licence, the regulator must issue to the operator a licence document in the form determined by the regulator. (2) The licence document must include the following: (a) the name of the operator, (b) if the operator conducts the business or undertaking under a business name—that business name, (c) the location of the major hazard facility, (d) any conditions imposed on the licence by the regulator, (e) the date on which the licence was granted, (f) the expiry date of the licence. 587
Licence document to be available
(1) The operator of the major hazard facility must keep the licence document available for inspection under the Act. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) Subclause (1) does not apply if the licence document is not in the operator’s possession because: (a) it has been returned to the regulator under clause 593, and 526
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.7 – Licensing of major hazard facilities
(b)
cl 589
the operator has applied for, but has not received, a replacement licence under clause 594.
DIVISION 2 – AMENDMENT OF LICENCE AND LICENCE DOCUMENT 588
Changes to information
(1) The operator of a licensed major hazard facility must give the regulator written notice of any change to any material particular in any information given at any time by the operator to the regulator in relation to the licence within 14 days after the operator becomes aware of the change. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. Example. A change to the quantity of the hazardous chemicals present or likely to be present at the facility.
(2) Subclause (1) applies whether the information was given in the application for grant or renewal of the licence or in any other circumstance. 589
Amendment imposed by regulator
(1) The regulator may, on its own initiative, amend a major hazard facility licence, including by amending the licence to: (a) vary or delete a condition of the licence, or (b) impose a new condition on the licence. (2) If the regulator proposes to amend a licence, the regulator must give the operator a written notice: (a) setting out the proposed amendment and the reasons for it, and (b) advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed amendment. (3) After the date specified in a notice under subclause (2), the regulator must: (a) if the operator has made a submission in relation to the proposed amendment—consider that submission, and (b) whether or not the operator has made a submission—decide: (i) to make the proposed amendment, or (ii) not to make any amendment, or (iii) to make a different amendment that results from consideration of any submission made by the operator, and (c) within 14 days after making that decision, give the operator written notice that: (i) sets out the amendment if any, and (ii) if a submission was made in relation to the proposed amendment—sets out the regulator’s reasons for making the amendment, and (iii) specifies the date (being not less than 28 days after the operator is given the notice) on which the amendment, if any, takes effect. Note. A decision to amend a licence is a reviewable decision (see clause 676). © 2017 THOMSON REUTERS
527
cl 590
590
Chapter 9 – Major hazard facilities
Amendment on application by operator
(1) The regulator, on application by the operator of a licensed major hazard facility, may amend the major hazard facility licence, including by amending the licence to vary or delete a condition of the licence. (2) If the regulator proposes to refuse to amend the licence, the regulator must give the operator a written notice: (a) informing the operator of the proposed refusal to amend the licence and the reasons for the proposed refusal, and (b) advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal. (3) After the date specified in a notice under subclause (2), the regulator must: (a) if the operator has made a submission in relation to the proposed refusal—consider that submission, and (b) whether or not the operator has made a submission—decide: (i) to make the amendment applied for, or (ii) not to make any amendment, or (iii) to make a different amendment that results from consideration of any submission made by the operator, and (c) within 14 days after making that decision, give the operator written notice of the decision in accordance with this clause. (4) If the regulator makes the amendment applied for, the notice under subclause (3)(c) must specify the date (not being less than 28 days after the operator is given the decision notice) on which the amendment takes effect. (5) If the regulator refuses to make the amendment applied for or makes a different amendment, the notice under subclause (3)(c) must: (a) if a submission was made in relation to the proposed refusal of the amendment applied for—set out the reasons for the regulator’s decision, and (b) if the regulator makes a different amendment: (i) set out the amendment, and (ii) specify the date (being not less than 28 days after the operator is given the decision notice) on which the amendment takes effect. Note. A refusal to make the amendment applied for, or a decision to make a different amendment, is a reviewable decision (see clause 676).
591
Minor corrections to major hazard facility licence
The regulator may make minor amendments to a major hazard facility licence, including an amendment: (a) to correct an obvious error, or (b) to change an address, or (c) that does not impose a significant burden on the operator.
528
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.7 – Licensing of major hazard facilities
592
cl 595
Regulator to give amended licence document to operator
If the regulator amends a major hazard facility licence and considers that the licence document requires amendment, the regulator must give the operator an amended licence document within 14 days after making the decision to amend the licence. 593
Operator to return licence
If a major hazard facility licence is amended, the operator of the licensed major hazard facility must return the licence document to the regulator for amendment at the written request of the regulator and within the time specified in the request. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 594
Replacement licence document
(1) The operator of a licensed major hazard facility must give written notice to the regulator as soon as practicable if the licence document is lost, stolen or destroyed. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. (2) If a licence document for a licensed major hazard facility is lost, stolen or destroyed, the operator may apply to the regulator for a replacement document. Note. An operator is required to keep the licence document available for inspection (see clause 587).
(3) An application for a replacement licence document must be made in the manner and form required by the regulator. (4) The application must: (a) include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)
be accompanied by the relevant fee.
(5) The regulator must issue a replacement licence document if satisfied that the original document was lost, stolen or destroyed. (6) If the regulator refuses to issue a replacement licence document, it must give the operator written notice of this decision, including the reasons for the decision, within 14 days after making the decision. Note. A refusal to issue a replacement licence document is a reviewable decision (see clause 676).
DIVISION 3 – RENEWAL OF MAJOR HAZARD FACILITY LICENCE Regulator may renew licence The regulator may renew a major hazard facility licence on application by the operator. 595
© 2017 THOMSON REUTERS
529
cl 596
596
Chapter 9 – Major hazard facilities
Application for renewal
(1) An application for renewal of a major hazard facility licence must be made in the manner and form required by the regulator. (2) The application must include a copy of the safety case for the major hazard facility as revised under clause 570. Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3) The application must be accompanied by the relevant fee. (4) The application must be made not less than 6 months before the licence to be renewed expires. 597
Licence continues in force until application is decided
If the operator of a licensed major hazard facility applies under clause 596 for the renewal of a major hazard facility licence, the licence is taken to continue in force from the day it would, apart from this clause, have expired until the operator is given notice of the decision on the application. 598
Provisions relating to renewal of licence
For the purposes of this Division: (a) clause 579 applies as if a reference in that clause to an application for a licence were a reference to an application to renew a licence, and (b) clauses 580 (except subclause (6)), 581, 584 and 585 apply as if a reference in those clauses to the grant of a licence were a reference to the renewal of a licence, and [Para (b) am Reg 61 of 2015, Sch 1[71]]
(c)
clause 583 applies as if a reference in that clause to a refusal to grant a licence were a reference to a refusal to renew a licence.
Note. A refusal to renew a licence is a reviewable decision (see clause 676). [Cl 598 am Reg 61 of 2015]
599
Status of major hazard facility licence during review
(1) This clause applies if the regulator gives the operator written notice of its decision to refuse to renew the licence. (2) If the operator does not apply for an external review, the licence continues to have effect until the last of the following events: (a) the expiry of the licence, (b) the end of the period for applying for an external review. (3) If the operator applies for an external review, the licence continues to have effect until the earlier of the following events: (a) the operator withdraws the application for review, (b) the Civil and Administrative Tribunal makes a decision on the review. [Subcl (3) am Act 95 of 2013, Sch 2.155[4]]
(4) The licence continues to have effect under this clause even if its expiry date passes. [Cl 599 am Act 95 of 2013]
530
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.7 – Licensing of major hazard facilities
cl 601
DIVISION 4 – TRANSFER OF MAJOR HAZARD FACILITY LICENCE 600
Transfer of major hazard facility licence
(1) The regulator, on the application of the operator of a major hazard facility, may transfer a major hazard facility licence to another person who is to become the operator of the major hazard facility, if satisfied that the proposed operator will achieve a standard of health and safety in the operation of the facility that is at least equivalent to the standard that the current operator has achieved. (2) An application must be: (a) made in the manner and form required by the regulator, and (b) accompanied by the relevant fee. (3) The regulator may transfer the licence subject to any conditions that the regulator considers necessary and appropriate to ensure that the new operator will be able to achieve a standard of health and safety in the operation of the facility that is at least equivalent to the standard achieved by the existing operator. (4) On the completion of the transfer, the person to whom the licence is transferred becomes the operator of the major hazard facility for the purposes of this Chapter. (4A) A transfer of a major hazard facility licence under this clause does not take effect until the person to whom the licence is to be transferred pays the relevant fee. Notes: 1 A decision to refuse to transfer a major hazard facility licence is a reviewable decision (see clause 676). 2 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
DIVISION 5 – SUSPENSION AND CANCELLATION OF MAJOR HAZARD FACILITY LICENCE Cancellation of major hazard facility licence—on operator’s application 601
(1) The operator of a licensed major hazard facility may apply to the regulator to cancel the licence. (2) An application must be: (a) made in the manner and form required by the regulator, and (b) accompanied by the relevant fee. (3) The regulator must conduct an inquiry into the inventory and operations of the facility before deciding on an application to cancel a licence. (4) The regulator must cancel a major hazard facility licence if: (a) the quantity of Schedule 15 chemicals present or likely to be present at the facility does not exceed their threshold quantity, and (b) it is unlikely that a major incident will occur at the facility. (5) If the regulator, under this clause, cancels the licence of a facility that was determined to be a major hazard facility under Part 9.2, the regulator must revoke the determination. © 2017 THOMSON REUTERS
531
cl 601
Chapter 9 – Major hazard facilities
(5A) A cancellation of a major hazard facility licence under this clause does not take effect until the operator of the licensed major hazard facility pays the relevant fee. Notes: 1 A decision to refuse to cancel a licence is a reviewable decision (see clause 676). 2 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
602
Suspension or cancellation of licence—on regulator’s initiative
(1) The regulator, on its own initiative, may suspend or cancel a major hazard facility licence if satisfied about 1 or more of the following: (a) the operator has failed to ensure that the facility is operated safely and competently, (b) the operator has failed to ensure compliance with a condition of the licence, (c) the operator, in the application for the grant or renewal of the licence or on request by the regulator for additional information: (i) gave information that was false or misleading in a material particular, or (ii) failed to give any material information that should have been given in that application or on that request. (2) If the regulator suspends or cancels a major hazard facility licence, the regulator may disqualify the operator from applying for a further major hazard facility licence. Note. A decision to suspend a licence, to cancel a licence or to disqualify the operator from applying for a further licence is a reviewable decision (see clause 676).
603
Matters to be taken into account
(1) In making a decision under clause 602, the regulator must have regard to the following: (a) any submissions made by the operator under clause 604, (b) any advice received from a corresponding regulator, (c) any advice or recommendations received from any agency of the Crown with responsibility in relation to national security. (2) For the purposes of clause 602(1)(a) and (b), if the operator is an individual, the regulator must have regard to all relevant matters, including the following: (a) any offence under the Act or this Regulation or under a corresponding WHS law, of which the operator has been convicted or found guilty, (b) any enforceable undertaking the operator has entered into under this Act or a corresponding WHS law, (c) in relation to a major hazard facility licence applied for or held by the operator under the Act or this Regulation or under a corresponding WHS law: (i) any refusal to grant the licence, and (ii) any condition imposed on the licence, if granted, and the reason the condition was imposed, and 532
Tooma’s Annotated Work Health and Safety Act 2011
Part 9.7 – Licensing of major hazard facilities
cl 605
(iii)
any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence, (d) the operator’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law. (3) For the purposes of clause 602(1)(a) and (b), if the operator is a body corporate, the regulator must have regard to all relevant matters, including the matters referred to in subclause (2), in relation to: (a) the body corporate, and (b) each officer of the body corporate. Notice to and submissions by operator Before suspending or cancelling a major hazard licence, the regulator must give the operator a written notice of the proposed suspension or cancellation and any proposed disqualification: (a) outlining all relevant allegations, facts and circumstances known to the regulator, and (b) advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation and any proposed disqualification. 604
605
Notice of decision
(1) The regulator must give the operator of a major hazard facility written notice of a decision under clause 602 to suspend or cancel the major hazard facility licence within 14 days after making the decision. (2) The notice must: (a) state that the licence is to be suspended or cancelled, and (b) if the licence is to be suspended, state: (i) when the suspension begins and ends, and (ii) the reasons for the suspension, and (iii) whether or not the operator is required to take any action before the suspension ends, and (iv) whether or not the operator is disqualified from applying for a further major hazard facility licence during the suspension, and (c) if the licence is to be cancelled, state: (i) when the cancellation takes effect, and (ii) the reasons for the cancellation, and (iii) whether or not the operator is disqualified from applying for a further major hazard facility licence, and (d) if the operator is disqualified from applying for a further major hazard facility licence, state: (i) when the disqualification begins and ends, and (ii) the reasons for the disqualification, and (iii) whether or not the operator is required to take any action before the disqualification ends, and (e) state when the licence document must be returned to the regulator. © 2017 THOMSON REUTERS
533
cl 606
606
Chapter 9 – Major hazard facilities
Immediate suspension
(1) The regulator may suspend a major hazard facility licence on a ground referred to in clause 602 without giving notice under clause 604 if satisfied that: (a) a person may be exposed to an imminent serious risk to his or her health or safety if the work carried out under the major hazard facility licence were not suspended, or (b) a corresponding regulator has suspended a major hazard facility licence held by the operator under this clause as applying in the corresponding jurisdiction. (2) If the regulator decides to suspend a licence under this clause: (a) the regulator must give the operator of the major hazard facility written notice of the suspension and the reasons for the suspension, and (b) the suspension of the licence takes effect on the giving of the notice. (3) The regulator must then: (a) give notice under clause 604 within 14 days after giving the notice under subclause (2), and (b) make its decision under clause 602. (4) If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period. (5) If the regulator gives notice under subclause (3), the licence remains suspended until the decision is made under clause 602. Operator to return licence document An operator, on receiving a notice under clause 605, must return the licence document to the regulator in accordance with the notice. Maximum penalty: (a) in the case of an individual—$1,250, or (b) in the case of a body corporate—$6,000. 607
Regulator to return licence document after suspension The regulator must return the licence document to the operator within 14 days after the suspension ends. 608
534
Tooma’s Annotated Work Health and Safety Act 2011
CHAPTER 10 – MINES Note: Not adopted in NSW. See Work Health and Safety (Mines) Act 2013. [Ch 10 note subst Reg 799 of 2014, Sch 13[3]]
© 2017 THOMSON REUTERS
535
CHAPTER 11 – GENERAL Part 11.1 – Review of decisions under this Regulation DIVISION 1 – REVIEWABLE DECISIONS 676
Which decisions under this Regulation are reviewable
(1) The following table sets out: (a) decisions made under this Regulation that are reviewable under this Part (reviewable decisions), and (b) who is eligible to apply for review of a reviewable decision (the eligible person). Item
1 2 2A 2B 3 4 5 6 7
7A 8
9
10
Clause under which reviewable decision is made High risk work licences 89—Refusal to grant licence 91—Refusal to grant licence 91A—Imposition of a condition when granting licence 91A—Imposition of a condition when renewing licence 98—Refusal to issue replacement licence document 104—Refusal to renew licence 106—Suspension of licence 106—Cancellation of licence 106—Disqualification of licence holder from applying for another licence 106—Variation of licence conditions Accreditation of assessors 118—Refusal to grant accreditation
Eligible person in relation to reviewable decision Applicant Applicant Applicant Licence holder Licence holder Applicant Licence holder Licence holder Licence holder
Licence holder
Applicant An RTO that engages the applicant 120—Refusal to grant accreditation Applicant An RTO that engages the applicant 121—Imposition of a condition when Applicant granting accreditation An RTO that engages the applicant
© 2017 THOMSON REUTERS
537
cl 676
Item 11
12
13
14
15
16
17 18 19
20
21
22
23
24
538
Chapter 11 – General
Clause under which reviewable Eligible person in relation to decision is made reviewable decision 121—Imposition of a condition when Applicant renewing accreditation An RTO that engages the applicant 127—Refusal to issue replacement Accredited assessor accreditation document An RTO that engages the accredited assessor 132—Refusal to renew accreditation Applicant An RTO that engages the applicant 133—Suspension of accreditation Accredited assessor An RTO that engages the accredited assessor 133—Cancellation of accreditation Accredited assessor An RTO that engages the accredited assessor 133—Disqualification of assessor Accredited assessor from applying for a further accreditation An RTO that engages the accredited assessor Registration of plant designs 256—Refusal to register plant design Applicant 257—Refusal to register plant design Applicant 258—Imposition of a condition when Applicant granting registration of plant design Registration of plant 269—Refusal to register item of Applicant plant The person with management or control of the item of plant 270—Refusal to register item of Applicant plant The person with management or control of the item of plant 271—Imposition of a condition when Applicant granting registration of item of plant The person with management or control of the item of plant 271—Imposition of a condition when Registration holder renewing registration of item of plant The person with management or control of the item of plant 279—Refusal to renew registration of Registration holder item of plant
Tooma’s Annotated Work Health and Safety Act 2011
Part 11.1 – Review of decisions under this Regulation
Item
Clause under which reviewable decision is made
25
283—Amendment of registration, on regulator’s initiative
26
27
27A
284—Refusal to amend registration on application (or a decision to make a different amendment)
288—Refusal to issue replacement registration document
288B—Decision to cancel registration
cl 676
Eligible person in relation to reviewable decision The person with management or control of the item of plant Registration holder The person with management or control of the item of plant Registration holder
The person with management or control of the item of plant Registration holder The person with management or control of the item of plant Registration holder The person with management or control of the item of plant
28 29
30
31
32
33
34
General construction induction training 322—Refusal to issue general construction induction training card 322—Refusal to issue replacement general construction induction training card 323—Cancellation of general construction induction training card Hazardous chemicals and lead 384—Refusal to grant authorisation to use, handle or store a prohibited or restricted carcinogen 386—Cancellation of authorisation to use, handle or store a prohibited or restricted carcinogen 393—Deciding a process to be a lead process
407—Determining a different frequency for biological monitoring of workers at a workplace, or a class of workers, carrying out lead risk work
Applicant Card holder
Card holder
Applicant
Authorisation holder
A person conducting a business or undertaking that carries out the lead process A worker whose interests are affected by the decision A person conducting a business or undertaking that carries out lead risk work
A worker whose interests are affected by the decision
© 2017 THOMSON REUTERS
539
cl 676
Item
35 36 37 38 39 40
41 42 43 44 45
46
47
48 49 50
51 52 53 54
540
Chapter 11 – General
Clause under which reviewable decision is made Asbestos removal licences and asbestos assessor licences 497—Refusal to grant licence 501—Refusal to grant licence 502—Imposition of a condition when granting licence 502—Imposition of a condition when renewing licence 508—Amendment of licence, on regulator’s initiative 509—Refusal to amend licence on application (or a decision to make a different amendment) 513—Refusal to issue replacement licence document 517—Refusal to renew licence 520—Suspension of licence 520—Cancellation of licence 520—Disqualification of licence holder from applying for another licence Major hazard facilities Determination of facility to be major hazard facility 541—Determination of facility to be a major hazard facility, on making inquiry 541—Decision not to determine proposed facility to be a major hazard facility 542—Determination of major hazard facility 543—Determination of suitability of operator 544—Imposition of a condition on a determination of a major hazard facility Licensing of major hazard facility 580—Refusal to grant licence 584—Imposition of a condition when granting licence 584—Imposition of a condition when renewing licence 589—Amendment of licence, on regulator’s initiative
Eligible person in relation to reviewable decision
Applicant Applicant Applicant Applicant Licence holder Licence holder
Licence holder Applicant Licence holder Licence holder Licence holder
Operator of facility
Operator of facility
Operator of facility Operator of facility Operator of facility
Operator of facility Operator of facility Operator of facility Operator of facility
Tooma’s Annotated Work Health and Safety Act 2011
Part 11.1 – Review of decisions under this Regulation
Item 55
56 57 58
59 60 61 62
63
64
65
66
67 68
69
Clause under which reviewable decision is made 590—Refusal to amend licence, on application (or a decision to make a different amendment) 594—Refusal to issue replacement licence document 598—Refusal to renew licence 600—Refusal to transfer licence, on application 601—Refusal to cancel licence, on application 602—Suspension of licence 602—Cancellation of licence 602—Disqualification of licence holder from applying for another licence Exemptions 684—Refusal to exempt person (or a class of persons) from compliance with any of this Regulation 686—Refusal to exempt person from requirement to hold a high risk work licence 688—Refusal to exempt operator of major hazard facility from compliance with any of this Regulation, on application 691—Imposing condition on an exemption granted on application under Part 11.2 696—Refusal to grant exemption 697—Amendment of an exemption granted on application under Part 11.2 697—Cancellation of an exemption granted on application under Part 11.2
cl 676
Eligible person in relation to reviewable decision Operator of facility
Operator of facility Operator of facility Operator of facility Proposed operator of facility Operator of facility Operator of facility Operator of facility Operator of facility
Applicant
Applicant
Operator of facility
Applicant
Applicant Applicant
Applicant
[Subcl (1) am Reg 61 of 2015, Sch 1[72]]
(2) Unless the contrary intention appears, a reference in this Part to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order, determination or decision, or (b) giving, suspending, revoking or refusing to give a direction, approval, consent or permission, or (c) granting, issuing, amending, renewing, suspending, cancelling, revoking or refusing to grant, issue, amend or renew an authorisation, or © 2017 THOMSON REUTERS
541
cl 676
Chapter 11 – General
(d) (e) (f) (g) (h)
imposing or varying a condition, or making a declaration, demand or requirement, or retaining, or refusing to deliver up, a thing, or doing or refusing to do any other act or thing, or being taken to refuse or do any act or thing.
[Cl 676 am Reg 61 of 2015]
DIVISION 2 – INTERNAL REVIEW Application This Division apples to all reviewable decisions made under this Regulation.
677
678
Application for internal review
(1) Subject to subclause (2), an eligible person in relation to a reviewable decision may apply to the regulator for review (an internal review) of the decision within: (a) 28 days after the day on which the decision first came to the eligible person’s notice, or (b) any longer time the regulator allows. (2) An eligible person in relation to a reviewable decision under clause 89(5), 118(5), 256(5), 269(5) or 497(5) may apply to the regulator for review (an internal review) of the decision within: (a) 28 days after the day on which the 120 day period referred to in that provision, or (b) any longer time the regulator allows. (3) The application must be made in the manner and form required by the regulator. 679
Internal reviewer
(1) The regulator may appoint a person or body to review decisions on applications under this Division. (2) The person who made the reviewable decision cannot be an internal reviewer in relation to that decision. 680
Decision of internal reviewer
(1) The internal reviewer must review the reviewable decision and make a decision as soon as practicable and within 21 days after the application for internal review, or the additional information requested under subclause (3), is received. [Subcl (1) am Reg 544 of 2012, Sch 1[3]]
(2) The decision may be: (a) to confirm or vary the reviewable decision, or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. (3) The internal reviewer may ask the applicant to provide additional information in support of the application for review. 542
Tooma’s Annotated Work Health and Safety Act 2011
Part 11.2 – Exemptions
cl 684
(4) The applicant must provide the additional information within the time (being not less than 7 days) specified by the internal reviewer in the request for information. (5) If the applicant does not provide the additional information within the required time, the reviewable decision is taken to have been confirmed by the internal reviewer at the end of that time. (6) If the reviewable decision is not varied or set aside within the 21 day period referred to in subclause (1), the reviewable decision is taken to have been confirmed by the internal reviewer. [Subcl (6) am Reg 544 of 2012, Sch 1[4]] [Cl 680 am Reg 544 of 2012]
Decision on internal review Within 21 days after the application for internal review, or the additional information requested under clause 680(3), is received, the internal reviewer must give the applicant written notice of: (a) the decision on the internal review, and (b) the reasons for the decision. 681
[Cl 681 am Reg 544 of 2012, Sch 1[5]]
682
Internal review—reviewable decision continues
Subject to any provision to the contrary in relation to a particular decision, an application for an internal review does not affect the operation of the reviewable decision or prevent the taking of any lawful action to implement or enforce the decision. DIVISION 3 – EXTERNAL REVIEW 683
Application for external review
(1) An eligible person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (an external review) of a decision made, or taken to have been made, on an internal review. [Subcl (1) am Act 95 of 2013, Sch 2.155[5]]
(2) The application must be made within: (a) 28 days after the day on which the decision first came to the eligible person’s notice, or (b) any longer time the Civil and Administrative Tribunal allows. [Subcl (2) am Act 95 of 2013, Sch 2.155[6]] [Cl 683 am Act 95 of 2013]
Part 11.2 – Exemptions DIVISION 1 – GENERAL 684
General power to grant exemptions
(1) The regulator may exempt a person or class of persons from compliance with any of this Regulation. © 2017 THOMSON REUTERS
543
cl 684
Chapter 11 – General
(2) The exemption may be granted on the regulator’s own initiative or on the written application of 1 or more persons. (3) This clause is subject to the limitations set out in this Part. (4) This clause does not apply to an exemption from: (a) a provision requiring a person to hold a high risk work licence, or (b) a provision of Chapter 9 relating to a major hazard facility or proposed major hazard facility. Note. A decision to refuse to grant an exemption is a reviewable decision (see clause 676).
Matters to be considered in granting exemptions In deciding whether or not to grant an exemption under clause 684 the regulator must have regard to all relevant matters, including the following: (a) whether the granting of the exemption will result in a standard of health and safety at the relevant workplace, or in relation to the relevant undertaking, that is at least equivalent to the standard that would be achieved by compliance with the relevant provision or provisions, (b) whether the requirements of paragraph (a) will be met if the regulator imposes certain conditions in granting the exemption and those conditions are complied with, (c) whether exceptional circumstances justify the grant of the exemption, (d) if the proposed exemption relates to a particular thing—whether the regulator is satisfied that the risk associated with the thing is not significant if the exemption is granted, (e) whether the applicant has carried out consultation in relation to the proposed exemption in accordance with Divisions 1 and 2 of Part 5 of the Act. 685
DIVISION 2 – HIGH RISK WORK LICENCES 686
High risk work licence—exemption
(1) The regulator may exempt a person or class of persons from compliance with a provision of this Regulation requiring the person or class of persons to hold a high risk work licence. (2) The exemption may be granted on the written application of any person concerned. Note. A decision to refuse to grant an exemption is a reviewable decision (see clause 676).
High risk work licence—regulator to be satisfied about certain matters 687
(1) The regulator must not grant an exemption under clause 686 unless satisfied that granting the exemption will result in a standard of health and safety that is at least equivalent to the standard that would have been achieved without that exemption. (2) For the purposes of subclause (1), the regulator must have regard to all relevant matters, including whether or not: (a) the obtaining of the high risk work licence would be impractical, and 544
Tooma’s Annotated Work Health and Safety Act 2011
Part 11.2 – Exemptions
cl 690
(b)
the competencies of the person to be exempted exceed those required for a high risk work licence, and (c) any plant used by the person can be modified in a way that reduces the risk associated with using that plant.
DIVISION 3 – MAJOR HAZARD FACILITIES 688
Major hazard facility—exemption
(1) The regulator may exempt the operator of a major hazard facility or proposed major hazard facility from compliance with any provision of this Regulation relating to that facility. (2) The exemption may be granted on the written application of the operator of the major hazard facility or proposed major hazard facility. Note. A decision to refuse to grant an exemption is a reviewable decision (see clause 676).
Major hazard facility—regulator to be satisfied about certain matters 689
(1) The regulator must not grant an exemption under clause 688 unless satisfied that: (a) 1 or more Schedule 15 chemicals are present or likely to be present at the facility, and (b) the quantity of the Schedule 15 chemicals exceeds the threshold quantity of the Schedule 15 chemicals periodically because they are solely the subject of intermediate temporary storage, and (c) the Schedule 15 chemicals are in 1 or more containers with the capacity of each container being not more than a total of 500 kilograms, and (d) granting the exemption will result in a standard of health and safety in relation to the operation of the facility that is at least equivalent to the standard that would be achieved by compliance with the relevant provision or provisions. (2) For the purposes of subclause (1)(d), the regulator must have regard to all relevant matters, including whether or not: (a) the applicant is complying with the Act and this Regulation, and (b) the applicant has processes and procedures in place which will keep the quantity of the Schedule 15 chemical or chemicals present or likely to be present at or below the threshold quantity for the Schedule 15 chemical or chemicals as often as practicable, and (c) the applicant has implemented adequate control measures to minimise the risk of a major incident occurring. [Subcl (2) am Reg 61 of 2015, Sch 1[73]] [Cl 689 am Reg 61 of 2015]
DIVISION 4 – EXEMPTION PROCESS Application for exemption An application for an exemption must be made in the manner and form required by the regulator. 690
Notes: © 2017 THOMSON REUTERS
545
cl 690 1 2 3
Chapter 11 – General
The application must be in writing (see clause 684(2)). The regulator may grant an exemption on its own initiative (see clause 684(2)). See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
691
Conditions of exemption
(1) The regulator may impose any conditions it considers appropriate on an exemption granted under this Part. (2) Without limiting subclause (1), conditions may require the applicant to do 1 or more of the following: (a) monitor risks, (b) monitor the health of persons at the workplace who may be affected by the exemption, (c) keep certain records, (d) use a stated system of work, (e) report certain matters to the regulator, (f) give notice of the exemption to persons who may be affected by the exemption. Note. A decision to impose a condition is a reviewable decision (see clause 676).
Form of exemption document The regulator must prepare an exemption document that states the following: (a) the name of the applicant for the exemption (if any), (b) the person or class of persons to whom the exemption will apply, (c) the work or thing to which the exemption relates, if applicable, (d) the circumstances in which the exemption will apply, (e) the provisions of this Regulation to which the exemption applies, (f) any conditions on the exemption, (g) the date on which the exemption takes effect, (h) the duration of the exemption.
692
Compliance with conditions of exemption A person to whom the exemption is granted must: (a) comply with the conditions of the exemption, and (b) ensure that any person under the management or control of that person complies with the conditions of the exemption.
693
694
Notice of decision in relation to exemption
The regulator must give a copy of the exemption document referred to in clause 692, within 14 days after making the decision to grant the exemption, to: (a) if a person applied for the exemption—the applicant, or (b) if the regulator granted the exemption on its own initiative—each person (other than persons to whom clause 695 applies) to whom the exemption will apply. 695
Publication of notice of exemption
(1) This clause applies to an exemption that relates to a class of persons. (2) The regulator must publish a copy of the exemption in the Gazette. 546
Tooma’s Annotated Work Health and Safety Act 2011
Part 11.3 – Miscellaneous
696
cl 699
Notice of refusal of exemption
(1) If the regulator refuses to grant an exemption, the regulator must give the applicant for the exemption written notice of the refusal within 14 days after making that decision. (2) The notice must state the regulator’s reasons for the refusal. Note. A refusal to grant an exemption is a reviewable decision (see clause 676).
Amendment or cancellation of exemption The regulator may at any time amend or cancel an exemption.
697
Note. A decision to amend or cancel an exemption is a reviewable decision (see clause 676).
698
Notice of amendment or cancellation
(1) The regulator must give written notice of the amendment or cancellation of an exemption, within 14 days after making the decision to amend or cancel the exemption, to: (a) if a person applied for the exemption—the applicant, or (b) if the regulator granted the exemption on its own initiative—each person (other than persons to subclause (2) applies) to whom the exemption applies. (2) If the exemption affects a class of persons, the regulator must publish notice of the amendment or cancellation of the exemption in the Gazette. (3) The notice must state the regulator’s reasons for the amendment or cancellation. (4) The amendment or cancellation takes effect: (a) on the publication of the notice in the Gazette, or on a later date specified in the notice, or (b) if the notice is not required to be published in the Gazette, on the giving of the notice to the applicant under subclause (1) or on a later date specified in the notice.
Part 11.3 – Miscellaneous 699
Incident notification—prescribed serious illnesses
For the purposes of section 36 of the Act, each of the following conditions is a serious illness: (a) any infection to which the carrying out of work is a significant contributing factor, including any infection that is reliably attributable to carrying out work: (i) with micro-organisms, or (ii) that involves providing treatment or care to a person, or (iii) that involves contact with human blood or body substances, or (iv) that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products, Note. The Public Health Act 2010 also imposes obligations relating to the notification of certain medical conditions.
(b)
the following occupational zoonoses contracted in the course of work involving handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products:
© 2017 THOMSON REUTERS
547
cl 699
Chapter 11 – General
(i) (ii) (iii) (iv) (v) (vi) (vii)
Q fever, Anthrax, Leptospirosis, Brucellosis, Hendra Virus, Avian Influenza, Psittacosis.
Inspectors’ identity cards For the purposes of section 157(1) of the Act, an identity card given by the regulator to an inspector must include the following: (a) a recent photograph of the inspector in the form specified by the regulator, 700
[Para (a) am Reg 61 of 2015, Sch 1[74]]
(b) the inspector’s signature, (c) the date (if any) on which the inspector’s appointment ends, (d) any conditions to which the inspector’s appointment is subject, including the kinds of workplaces in relation to which the inspector may exercise his or her compliance powers. [Cl 700 am Reg 61 of 2015]
701
Review of decisions under the Act—stay of decision
For the purposes of section 228(6)(a) of the Act, the prescribed period is the relevant period within which an application for an external review must be made under section 229(2) of the Act. 702 Confidentiality of information—exception relating to administration or enforcement of other laws The following Acts are prescribed for the purposes of section 271(3)(c)(ii) of the Act: (a) a corresponding WHS law, (a1) Coroners Act 2009, [Para (a1) insrt Reg 61 of 2015, Sch 1[75]]
(b) (c) (d) (d1)
Crimes Act 1900, Crimes (Administration of Sentences) Act 1999, Criminal Procedure Act 1986, Dams Safety Act 2015,
[Para (d1) insrt Reg 49 of 2016, Sch 2[3]]
(e) (f) (g) (h) (h1)
Dust Diseases Tribunal Act 1989, Environmental Planning and Assessment Act 1979, Explosives Act 2003, Fire Brigades Act 1989, Law Enforcement (Powers and Responsibilities) Act 2002,
[Para (h1) insrt Reg 49 of 2016, Sch 2[4]]
(i) Local Government Act 1993, (j) Mine Subsidence Compensation Act 1961, [Para (j) subst Reg 49 of 2016, Sch 2[5]]
(k) Mining Act 1992, [Para (k) reinsrt Reg 49 of 2016, Sch 2[5]; rep Reg 353 of 2013, Sch 1[1]]
548
Tooma’s Annotated Work Health and Safety Act 2011
Part 11.3 – Miscellaneous
cl 702A
(k1) National Vocational Education and Training Regulator Act 2011 of the Commonwealth, [Para (k1) insrt Reg 49 of 2016, Sch 2[5]]
(l) Occupational Health and Safety Act 2004 of Victoria, (m) Occupational Safety and Health Act 1984 of Western Australia, (m1) Petroleum (Onshore) Act 1991, [Para (m1) insrt Reg 49 of 2016, Sch 2[6]]
(n) Protection of the Environment Operations Act 1997, (o) Public Health Act 2010, (o1) Radiation Control Act 1990, [Para (o1) insrt Reg 61 of 2015, Sch 1[76]]
(p) Rural Fires Act 1997, (p1) State Emergency and Rescue Management Act 1989, [Para (p1) insrt Reg 49 of 2016, Sch 2[7]]
(p2) Surveying and Spatial Information Act 2002, [Para (p2) insrt Reg 49 of 2016, Sch 2[7]]
(p3) Water Act 1912, [Para (p3) insrt Reg 49 of 2016, Sch 2[7]]
(q) Water Management Act 2000, (r) Workers Compensation Act 1987, [Para (r) reinsrt Reg 644 of 2015, cl 3; rep Reg 353 of 2013, Sch 1[1]]
(s)
Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987,
[Para (s) insrt Reg 644 of 2015, cl 3]
(t) Workers’ Compensation (Dust Diseases) Act 1942, [Para (t) am Act 27 of 2016, Sch 2.62; insrt Reg 644 of 2015, cl 3]
(u) Workplace Injury Management and Workers Compensation Act 1998. [Para (u) insrt Reg 644 of 2015, cl 3] [Cl 702 am Reg 49 of 2016; Act 27 of 2016; Reg 644 of 2015; Reg 61 of 2015; Reg 353 of 2013; subst Reg 544 of 2012, Sch 1[6]]
702A
Penalty notice offences and penalties
(1) For the purposes of section 243 of the Act: (a) each offence created by a provision specified in Column 1 of Schedule 18A is an offence for which a penalty notice may be served, and (b) the penalty prescribed for each such offence is: (i) in the case of a penalty payable by an individual—the amount specified in relation to the offence in Column 2 of that Schedule, and (ii) in the case of a penalty payable by a corporation—the amount specified in relation to the offence in Column 3 of that Schedule. (2) If the reference to a provision in Column 1 of Schedule 18A is qualified by words that restrict its operation to specified kinds of offences, an offence created by the provision is a prescribed offence only if it is an offence of a kind so specified or committed in the circumstances so specified. © 2017 THOMSON REUTERS
549
cl 703
Chapter 11 – General
Regulatory action where either SafeWork NSW or mines regulator is the regulator [Repealed] 703
[Cl 703 rep Reg 49 of 2016, Sch 2[8]; am Act 19 of 2015, Sch 15.23; insrt Act 71 of 2014, Sch 2.6]
550
Tooma’s Annotated Work Health and Safety Act 2011
SCHEDULES SCHEDULE 1 – REPEALS (Clause 4) Work Health and Safety (Savings and Transitional) Regulation 2011
SCHEDULE 2 – FEES ITEM TYPE OF FEE 1 APPLICATION FOR HIGH RISK WORK LICENCE (CLAUSE 87(3)) 2 Application for replacement licence document (clause 98(4)(b)) 3 Application for renewal of high risk work licence (clause 101(3)) 4 Application for accreditation as assessor (clause 116(3)): (a) initial application in relation to a class or number of classes of high risk work (b) subsequent application in relation to an additional class or number of classes of high risk work to initial application 5 Application for replacement accreditation document (clause 127(4)(b)) 6 Application for renewal of accreditation as assessor in relation to a class or number of classes of high risk work (clause 130(2)(b))
FEE $70.50 per class of licence $32.50 $65.00
$1,616.00 $525.50
Nil $1,077.00
Note: The fee payable in respect of a subsequent application in relation to an additional class or number of classes of high risk work is the fee set out in item 4(b).
7 8
Application for registration of design of plant $271.00 per design (clause 250(4)) Application for registration of item of plant $68.50 for first item (clause 266(3)) and $2.00 for each additional item at the same address and owned by the same applicant
© 2017 THOMSON REUTERS
551
Schedule 2
Schedules
ITEM TYPE OF FEE FEE 9 APPLICATION FOR RENEWAL OF REGIS- $68.50 for first item TRATION OF ITEM OF PLANT and $2.00 for each (CLAUSE 277(3)) additional item at the same address and owned by the same applicant 10 Application for replacement registration docu- $32.50 ment (clause 288(4)(b)) 11 Issue of general construction induction training $22.00 card (clause 319(4)) 12 Application for replacement general construc- $32.50 tion induction training card (clause 321(3)(b)) 13 Administration fee for notice in relation to $227.50 manifest quantities of Schedule 11 hazardous chemicals (clause 348) 14 Application for asbestos removal licence or $5,384.50 for Class A asbestos assessor licence (clause 492(3)) asbestos removal licence $977.00 for Class B asbestos removal licence $525.50 for asbestos assessor licence 15 Application for replacement licence document $32.50 (clause 513(4)(b)) 16 Application for renewal of asbestos removal $5,384.50 for Class A licences and asbestos assessor licences asbestos removal (clause 516(3)) licence $539.00 for Class B asbestos removal licence $525.50 for asbestos assessor licence 17 Notification fee to be paid by operators of Nil facilities at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds 10% of their threshold quantity (clause 538(4)) 18 Administration fee for determined major haz- $41,400.00 plus ard facilities (clause 544A) $101.00 per hour of the regulator’s time in connection with the administration of Chapter 9 in relation to the facility Or such lesser fee determined by the regulator 19 Application for major hazard facility licence Nil (clause 578(3))
552
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 2 – Fees Schedule 2
ITEM TYPE OF FEE FEE 20 ADMINISTRATION FEE FOR LICENSED $41,400.00 plus MAJOR HAZARD FACILITIES $101.00 per hour of (CLAUSE 585A) the regulator’s time administering the licence Or such lesser fee determined by the regulator 21 Application for replacement licence document Nil (clause 594(4)(b)) 22 Application for renewal of major hazard facil- Nil ity licence (clause 596(3)) 23 Application for transfer of major hazard facility Nil licence (clause 600(2)(b)) 24 Administration fee in relation to transfer of $101.00 per hour of major hazard facility licence (clause 600(4A)) the regulator’s time administering the licence Or such lesser fee determined by the regulator 25 Application for cancellation of major hazard Nil facility licence (clause 601(2)(b)) 26 Administration fee in relation to cancellation of $101.00 per hour of major hazard facility licence on operator’s the regulator’s time application (clause 601(5A)) administering the licence Or such lesser fee determined by the regulator [Sch 2 subst Reg 418 of 2016, Sch 1[1]; Reg 61 of 2015, Sch 1[77]; Reg 353 of 2013, Sch 1[2]]
© 2017 THOMSON REUTERS
553
Schedule 3
Schedules
SCHEDULE 3 – HIGH RISK WORK LICENCES AND CLASSES OF HIGH RISK WORK (clause 81)
Table 3.1 Item High risk work licence Description of class of high risk work Scaffolding work 1 Basic scaffolding Scaffolding work involving any of the following: (a) modular or pre-fabricated scaffolds, (b) cantilevered materials hoists with a maximum working load of 500 kilograms, (c) ropes, (d) gin wheels, (e) safety nets and static lines, (f) bracket scaffolds (tank and formwork), but excluding scaffolding work involving equipment, loads or tasks listed in item 2 (2) (a) to (g) and item 3 (2) (a) to (c) 2 Intermediate (1) Scaffolding work included in the scaffolding class of Basic scaffolding, and (2) Scaffolding work involving any of the following: (a) cantilevered crane loading platforms, (b) cantilevered scaffolds, (c) spur scaffolds, (d) barrow ramps and sloping platforms, (e) scaffolding associated with perimeter safety screens and shutters, (f) mast climbing work platforms, (g) tube and coupler scaffolds (including tube and coupler covered ways and gantries), but excluding scaffolding work involving equipment, loads or tasks listed in item 3 (2) (a) to (c) 3 Advanced scaffolding (1) Scaffolding work included in the class of Intermediate scaffolding, and (2) Scaffolding work involving any of the following: (a) cantilevered hoists,
554
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 3 – High risk work licences and classes of high risk work Schedule 3
Item
High risk work licence Description of class of high risk work (b) hung scaffolds, including scaffolds hung from tubes, wire ropes or chains, (c) suspended scaffolds Dogging and rigging work 4 Dogging Dogging work 5 Basic rigging (1) Dogging work (2) Rigging work involving any of the following: (a) structural steel erection, (b) hoists, (c) pre-cast concrete members of a structure, (d) safety nets and static lines, (e) mast climbing work platforms, (f) perimeter safety screens and shutters, (g) cantilevered crane loading platforms, but excluding rigging work involving equipment, loads or tasks listed in item 6 (b) to (f) and item 7 (b) to (e) 6 Intermediate rigging Rigging work involving any of the following: (a) rigging work in the class Basic Rigging, (b) hoists with jibs and self climbing hoists, (c) cranes, conveyors, dredges and excavators, (d) tilt slabs, (e) demolition of structures or plant, (f) dual lifts, but excluding rigging work involving equipment listed in item 7 (b) to (e) 7 Advanced rigging Rigging work involving any of the following: (a) rigging work in the class Intermediate Rigging, (b) gin poles and shear legs, (c) flying foxes and cable ways, (d) guyed derricks and structures, (e) suspended scaffolds and fabricated hung scaffolds Crane and hoist operation 8 Tower crane Use of a tower crane 9 Self-erecting tower Use of a self-erecting tower crane crane © 2017 THOMSON REUTERS
555
Schedule 3
Item 10 11 12
13
14 15
16
17
556
Schedules
High risk work licence Description of class of high risk work Derrick crane Use of a derrick crane Portal boom crane Use of a portal boom crane Bridge and gantry Use of a bridge crane or gantry crane that is: crane (a) controlled from a permanent cabin or control station on the crane, or (b) remotely controlled and having more than 3 powered operations, including the application of load estimation and slinging techniques to move a load Vehicle loading crane Use of a vehicle loading crane with a capacity of 10 metre tonnes or more, including the application of load estimation and slinging techniques to move a load Non-slewing mobile Use of a non-slewing mobile crane with a crane capacity exceeding 3 tonnes Slewing mobile Use of a slewing mobile crane with a capacity crane—with a of 20 tonnes or less capacity up to 20 tonnes Use of a vehicle loading crane with a capacity of 10 metre tonnes or more, excluding the application of load estimation and slinging techniques to move a load Use of a non-slewing mobile crane with a capacity exceeding 3 tonnes Use of a reach stacker Use of a slewing mobile crane with a capacity Slewing mobile of 60 tonnes or less crane—with a capacity up to 60 tonnes Use of a vehicle loading crane with a capacity of 10 metre tonnes or more, excluding the application of load estimation and slinging techniques to move a load Use of a non-slewing mobile crane with a capacity exceeding 3 tonnes Use of a reach stacker Slewing mobile Use of a slewing mobile crane with a capacity crane—with a of 100 tonnes or less capacity up to 100 tonnes Use of a vehicle loading crane with a capacity of 10 metre tonnes or more, excluding the application of load estimation and slinging techniques to move a load Use of a non-slewing mobile crane with a capacity exceeding 3 tonnes Use of a reach stacker Tooma’s Annotated Work Health and Safety Act 2011
Schedule 3 – High risk work licences and classes of high risk work Schedule 3
Item 18
High risk work licence Description of class of high risk work Slewing mobile Use of a slewing mobile crane with a capacity crane—with a exceeding 100 tonnes capacity over 100 tonnes Use of a vehicle loading crane with a capacity of 10 metre tonnes or more, excluding the application of load estimation and slinging techniques to move a load Use of a non-slewing mobile crane with a capacity exceeding 3 tonnes Use of a reach stacker 19 Materials hoist Use of a materials hoist 20 Personnel and Use of a personnel and materials hoist materials hoist 21 Boom-type elevating Use of a boom-type elevating work platform work platform where the length of the boom is 11 metres or more 22 Concrete placing Use of a concrete placing boom boom Reach stackers 23 Reach stacker Operation of a reach stacker of greater than 3 tonnes capacity that incorporates an attachment for lifting, moving and travelling with a shipping container, but does not include a portainer crane Forklift operation 24 Forklift truck Use of a forklift truck other than an order-picking forklift truck 25 Order-picking forklift Use of an order-picking forklift truck truck Pressure equipment operation 26 Standard boiler Operation of a boiler with a single fuel source operation that does not have a pre-heater, superheater or economiser attached 27 Advanced boiler Operation of a boiler, including a standard operation boiler, which may have one or more of the following: (a) multiple fuel sources, (b) pre-heater, (c) superheater, (d) economiser 28 Turbine operation Operation of a turbine that has an output of 500 kilowatts or more and: (a) is multi wheeled, or (b) is capable of a speed greater than 3600 revolutions per minute, or (c) has attached condensers, or
© 2017 THOMSON REUTERS
557
cl 1
Item
29
Schedules
High risk work licence Description of class of high risk work (d) has a multi staged heat exchange extraction process Reciprocating steam Operation of a reciprocating steam engine engine where the diameter of any piston exceeds 250 millimetres
Boom-type elevating work platform For the purposes of table 3.1 item 21, the length of a boom is the greater of the following: (a) the vertical distance from the surface supporting the boom-type elevating work platform to the floor of the platform, with the platform extended to its maximum height, (b) the horizontal distance from the centre point of the boom’s rotation to the outer edge of the platform, with the platform extended to its maximum distance. 1
[Sch 3 am Reg 61 of 2015, Sch 1[78]]
558
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 4 – High risk work licences—competency requirements cl 1
SCHEDULE 4 – HIGH RISK WORK LICENCES—COMPETENCY REQUIREMENTS (clause 81) 1
Purpose of this Schedule This Schedule sets out the qualifications for high risk work licences. Table 4.1
Item 1
Licence Class Basic scaffolding
2
Intermediate scaffolding
3
Advanced scaffolding
4 5
Dogging Basic rigging
6
Intermediate rigging
7
Advanced rigging
8 9
Tower crane Self-erecting tower crane
10 11
Derrick crane Portal boom crane
12
Bridge and gantry crane
13
Vehicle loading crane
© 2017 THOMSON REUTERS
VET course Licence to erect, alter and dismantle scaffolding basic level Licence to erect, alter and dismantle scaffolding basic level, and Licence to erect, alter and dismantle scaffolding intermediate level Licence to erect, alter and dismantle scaffolding basic level, and Licence to erect, alter and dismantle scaffolding intermediate level, and Licence to erect, alter and dismantle scaffolding advanced level Licence to perform dogging Licence to perform dogging, and Licence to perform rigging basic level Licence to perform dogging, and Licence to perform rigging basic level, and Licence to perform rigging intermediate level Licence to perform dogging, and Licence to perform rigging basic level, and Licence to perform rigging intermediate level, and Licence to perform rigging advanced level Licence to operate a tower crane Licence to operate a self-erecting tower crane Licence to operate a derrick crane Licence to operate a portal boom crane Licence to operate a bridge and gantry crane Licence to operate a vehicle loading crane (capacity 10 metre tonnes and above) 559
cl 1
Schedules
Item 14
Licence Class Non-slewing mobile crane
15
Slewing mobile crane—with a capacity up to 20 tonnes Slewing mobile crane—with a capacity up to 60 tonnes Slewing mobile crane—with a capacity up to 100 tonnes Slewing mobile crane—with a capacity over 100 tonnes Materials hoist Personnel and materials hoist
16 17 18 19 20 21
Boom-type elevating work platform
22
Concrete placing boom
23
Reach stacker
24 25
Forklift truck Order-picking forklift truck
26 27
Standard boiler operation Advanced boiler operation
28 29
Turbine operation Reciprocating steam engine operation
560
VET course Licence to operate a non-slewing mobile crane (greater than 3 tonnes capacity) Licence to operate a slewing mobile crane (up to 20 tonnes) Licence to operate a slewing mobile crane (up to 60 tonnes) Licence to operate a slewing mobile crane (up to 100 tonnes) Licence to operate a slewing mobile crane (over 100 tonnes) Licence to operate a materials hoist Licence to operate a personnel and materials hoist Licence to operate a boom-type elevating work platform (boom length 11 metres or more) Licence to conduct concrete boom delivery operations Licence to operate a reach stacker of greater than 3 tonnes capacity Licence to operate a forklift truck Licence to operate an order picking forklift truck Licence to operate a standard boiler Licence to operate a standard boiler, and Licence to operate an advanced boiler Licence to operate a turbine Licence to operate a reciprocating steam engine
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 5 – Registration of plant and plant designs cl 2
SCHEDULE 5 – REGISTRATION OF PLANT AND PLANT DESIGNS (Clauses 243 and 246)
Part 1 – Plant requiring registration of design 1
Items of plant requiring registration of design
1.1 Pressure equipment, other than pressure piping, and categorised as hazard level A, B, C or D according to the criteria in Section 2.1 of AS 4343:2005 (Pressure equipment—hazard levels). 1.2 Gas cylinders covered by Section 1.1 of AS 2030.1:2009 (Gas cylinders—General Requirements). 1.3 Tower cranes including self-erecting tower cranes. 1.4 Lifts, including escalators and moving walkways. 1.5 Building maintenance units. 1.6 Hoists with a platform movement exceeding 2.4 metres, designed to lift people. 1.7 Work boxes designed to be suspended from cranes. 1.8 Amusement devices covered by Section 2.1 of AS 3533.1:2009 (Amusement rides and devices—Design and construction), except devices specified in clause 2(2). 1.8A Passenger ropeways. 1.9 Concrete placing booms. 1.10 Prefabricated scaffolding. 1.11 Boom-type elevating work platforms. 1.12 Gantry cranes with a safe working load greater than 5 tonnes or bridge cranes with a safe working load of greater than 10 tonnes, and any gantry crane or bridge crane which is designed to handle molten metal or Schedule 11 hazardous chemicals. 1.13 Vehicle hoists. 1.14 Mast climbing work platforms. 1.15 Mobile cranes with a rated capacity of greater than 10 tonnes. [Cl 1 am Reg 61 of 2015, Sch 1[79]]
2
Exceptions (1) The items of plant listed in clause 1 do not include: (a) a heritage boiler, or (ab) any pressure equipment (other than a gas cylinder) excluded from the scope of AS/NZS 1200:2000 (Pressure equipment), or Note: See section A1 of Appendix A to AS/NZS 1200:2000 (Pressure equipment).
(b) a crane or hoist that is manually powered, or (ba) a reach stacker, or © 2017 THOMSON REUTERS
561
cl 2
Schedules
(c)
an elevating work platform that is a scissor lift or a vertically moving platform, or (d) a tow truck. (2) The (a) (b) (c)
following devices are excluded from clause 1.8: class 1 devices, playground devices, water slides where water facilitates patrons to slide easily, predominantly under gravity, along a static structure, (d) wave generators where patrons do not come into contact with the parts of machinery used for generating water waves, (e) inflatable devices, other than inflatable devices (continuously blown) with a platform height of 3 metres or more. (f) [Repealed]
[Cl 2 am Reg 61 of 2015, Sch 1[80]–[82]]
Part 2 – Items of plant requiring registration 3
Items of plant requiring registration
3.1 Boilers categorised as hazard level A, B or C according to criteria in Section 2.1 of AS 4343:2005 (Pressure equipment—Hazard levels). 3.2 Pressure vessels categorised as hazard level A, B or C according to the criteria in Section 2.1 of AS 4343:2005 (Pressure equipment—Hazard levels), except: (a) gas cylinders, and (b) LP Gas fuel vessels for automotive use, and (c) serially produced vessels. 3.3 Tower cranes including self-erecting tower cranes. 3.4 Lifts, including escalators and moving walkways. 3.5 Building maintenance units. 3.6 Amusement devices covered by Section 2.1 of AS 3533.1:2009 (Amusement rides and devices—Design and construction), except devices specified in clause 4(2). 3.7 Concrete placing booms. 3.8 Mobile cranes with a rated capacity of greater than 10 tonnes. [Cl 3 am Reg 338 of 2015, cl 3(1); Reg 61 of 2015, Sch 1[83]]
4
Exceptions (1) The items of plant listed in clause 3 do not include: (a) any pressure equipment (other than a gas cylinder) excluded from the scope of AS/NZS 1200:2000 (Pressure equipment), or Note: See section A1 of Appendix A to AS/NZS 1200:2000 (Pressure equipment).
(b) a crane or hoist that is manually powered, or (c) a reach stacker. (2) The following devices are excluded from clause 3.6: (a) class 1 devices, 562
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 5 – Registration of plant and plant designs cl 4
(b) playground devices, (c) water slides where water facilitates patrons to slide easily, predominantly under gravity, along a static structure, (d) wave generators where patrons do not come into contact with the parts of machinery used for generating water waves, (e) inflatable devices, other than inflatable devices (continuously blown) with a platform height of 3 metres or more. (f) [Repealed] [Cl 4 am Reg 61 of 2015, Sch 1[84] and [85]] [Sch 5 am Reg 338 of 2015; Reg 61 of 2015]
© 2017 THOMSON REUTERS
563
Schedule 6
Schedules
SCHEDULE 6 – CLASSIFICATION OF MIXTURES 1
Purpose of this Schedule The tables in this Schedule replace some of the tables in the GHS.
Note. See the definition of GHS in clause 5(1).
Table 6.1 Classification of mixtures containing respiratory or skin sensitisers Cut-off values/concentration limits of ingredients of a mixture classified as either a respiratory sensitiser or a skin sensitiser that would trigger classification of the mixture. Item Ingredient Mixture classification classification Skin Respiratory sensitiser sensitiser Category 1 Category 1 All physical Solid/liquid Gas states 1 Skin sensitiser ≥ 1.0% Category 1 2 Skin sensitiser ≥ 0.1% Sub-category 1A 3 Skin sensitiser ≥ 1.0% Sub-category 1B 4 Respiratory ≥ 1.0% ≥ 0.2% sensitiser Category 1 5 Respiratory ≥ 0.1% ≥ 0.1% sensitiser Sub-category 1A 6 Respiratory ≥ 1.0% ≥ 0.2% sensitiser Sub-category 1B Note. Table 6.1 replaces table 3.4.5 in the GHS, p 151.
Table 6.2 Classification of mixtures containing carcinogens Cut-off values/concentration limits of ingredients of a mixture classified as a carcinogen that would trigger classification of the mixture. Item Ingre- Mixture classification dient classification
564
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 6 – Classification of mixtures cl 1
1
2
Category 1 carcinogen Category 2 carcinogen
Category 1 carcinogen ≥ 0.1%
Category 2 carcinogen
≥ 1.0%
Notes: 1 The concentration limits in table 6.2 apply to solids and liquids (w/w units) and gases (v/v units). 2 Table 6.2 replaces table 3.6.1 in the GHS, p 166.
Table 6.3 Classification of mixtures containing reproductive toxicants Cut-off values/concentration limits of ingredients of a mixture classified as a reproductive toxicant or for effects on or via lactation that would trigger classification of the mixture. Item Ingredient Mixture classification classification Category 1 Category 2 Additional reproductive reproductive category for toxicant toxicant effects on or via lactation 1 Category 1 ≥ 0.3% reproductive toxicant 2 Category 2 ≥ 3.0% reproductive toxicant 3 Additional ≥ 0.3% category for effects on or via lactation Notes: 1 The concentration limits in table 6.3 apply to solids and liquids (w/w units) and gases (v/v units). 2 Table 6.3 replaces table 3.7.1 in the GHS, p 180.
Table 6.4 Classification of mixtures containing specific target organ toxicants (single exposure) Cut-off values/concentration limits of ingredients of a mixture classified as a specific target organ toxicant that would trigger classification of the mixture.
© 2017 THOMSON REUTERS
565
cl 1
Item
1
2
Schedules
Ingredient Mixture classification classification CateCategory 2 gory 1 Category 1 Concen- ≥ 1.0% concentration < 10% specific tration ≥ target 10% organ toxicant Category 2 Concentration ≥ 10% specific target organ toxicant Concentration
Notes: 1 The concentration limits in table 6.4 apply to solids and liquids (w/w units) and gases (v/v units). 2 Table 6.4 replaces table 3.8.2 in the GHS, p 192.
Table 6.5 Classification of mixtures containing specific target organ toxicants (repeated exposure) Cut-off values/concentration limits of ingredients of a mixture classified as a specific target organ toxicant that would trigger classification of the mixture. Item Ingre- Mixture classification dient classification Cate- Category 2 gory 1 1 Cate- Con≤ 1.0% concentration < 10% gory 1 centraspecific tion ≥ target 10% organ toxicant 2 CateConcentration ≥ 10% gory 2 specific target organ toxicant
566
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 6 – Classification of mixtures cl 1 Notes: 1 The concentration limits in table 6.5 apply to solids and liquids (w/w units) and gases (v/v units). 2 Table 6.5 replaces table 3.9.3 in the GHS, p 203. [Sch 6 am Reg 61 of 2015, Sch 1[86]]
© 2017 THOMSON REUTERS
567
Schedule 7
Schedules
SCHEDULE 7 – SAFETY DATA SHEETS (Clauses 330 and 331) 1
Safety data sheets—content (1) A safety data sheet for a hazardous chemical must: (a) contain unit measures expressed in Australian legal units of measurement under the National Measurement Act 1960 of the Commonwealth, and (b) state the date it was last reviewed or, if it has not been reviewed, the date it was prepared, and (c) state the name, and the Australian address and business telephone number of: (i) the manufacturer, or (ii) the importer, and (d) state an Australian business telephone number from which information about the chemical can be obtained in an emergency, and (e) be in English.
(2) A safety data sheet for a hazardous chemical must state the following information about the chemical: (a) Section 1: Identification: Product identifier and chemical identity, (b) Section 2: Hazard(s) identification, (c) Section 3: Composition and information on ingredients, in accordance with Schedule 8, (d) Section 4: First aid measures, (e) Section 5: Firefighting measures, (f) Section 6: Accidental release measures, (g) Section 7: Handling and storage, including how the chemical may be safely used, (h) Section 8: Exposure controls and personal protection, (i) Section 9: Physical and chemical properties, (j) Section 10: Stability and reactivity, (k) Section 11: Toxicological information, (l) Section 12: Ecological information, (m) Section 13: Disposal considerations, (n) Section 14: Transport information, (o) Section 15: Regulatory information, (p) Section 16: Any other relevant information. (3) The safety data sheet must use the headings and be set out in the order set out in subclause (2). (4) The safety data sheet must be in English. Note. Clauses 330 and 331 provide that clause 2 will apply instead of clause 1 in certain cases.
Safety data sheets—research chemical, waste product or sample for analysis For the purposes of clause 331, a safety data sheet for a hazardous chemical that is a research chemical, waste product or sample for analysis must: 2
568
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 7 – Safety data sheets cl 2
(a) be in English, and (b) state the name, Australian address and business telephone number of: (i) the manufacturer, or (ii) the importer, and (c) state that full identification or hazard information is not available for the chemical, and in the absence of full identification or hazard information, a precautionary approach must be taken by a person using, handling or storing the chemical, and (d) state the chemical identity or structure of the chemical or chemical composition, as far as is reasonably practicable, and (e) state any known or suspected hazards, and (f) state any precautions that a person using, handling or storing the chemical must take to the extent that the precautions have been identified.
© 2017 THOMSON REUTERS
569
Schedule 8
Schedules
SCHEDULE 8 – DISCLOSURE OF INGREDIENTS IN SAFETY DATA SHEET 1
Purpose of this Schedule
This Schedule sets out the way in which the ingredients of a hazardous chemical must be disclosed in Section 3 of a safety data sheet prepared under this Regulation. Note. See clause 1(2)(c) of Schedule 7.
2
Identity of ingredients to be disclosed
(1) This clause applies if an ingredient in a hazardous chemical causes the correct classification of the chemical to include a hazard class and hazard category referred to in table 8.1. (2) The identity of the ingredient must be disclosed in English on the label and safety data sheet of the hazardous chemical. Table 8.1 Column Column 2 1 Item GHS hazard class 1 Acute toxicity—oral
Column 3
2
Acute toxicity—dermal
3
Acute toxicity— inhalation
4 5 6
Respiratory sensitiser Skin sensitiser Mutagenicity
7
Carcinogenicity
8
Toxic to reproduction
570
GHS hazard category Category 1 Category 2 Category 3 Category 4 Category 1 Category 2 Category 3 Category 4 Category 1 Category 2 Category 3 Category 4 Category 1 Category 1 Category 1A Category 1B Category 2 Category 1A Category 1B Category 2 Category 1A Category 1B Category 2 Additional category for effects on or via lactation
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 8 – Disclosure of ingredients in safety data sheet cl 4
Column Column 2 1 Item GHS hazard class 9 Target organ toxicity— single exposure 10
Target organ toxicity— repeat exposure
11 12
Aspiration hazards Skin corrosion or irritation
13
Serious eye damage or eye irritation
3
Column 3 GHS hazard category Category 1 Category 2 Category 3 Category 1 Category 2 Category 1 Category 1A Category 1B Category 1C Category 2 Category 1 Category 2A
Generic names used to disclose identity of ingredients
(1) This clause applies if an ingredient of a hazardous chemical must be disclosed under clause 2. (2) The ingredient: (a) may be disclosed by its generic name if: (i) the ingredient causes the correct classification of the hazardous chemical to include a hazard class and hazard category referred to in table 8.2, and (ii) the ingredient does not cause the correct classification of the hazardous chemical to include any other hazard class and hazard category in table 8.1, and (iii) the identity of the ingredient is commercially confidential, and (iv) an exposure standard for the ingredient has not been established, or (b) in any other case—must be disclosed by its chemical identity. Table 8.2 Column 1 Item 1 2 3 4 5 4
Column 2 Hazard class and hazard category Acute toxicity (category 4) Aspiration hazard (category 1) Serious eye damage or eye irritation (category 2A) Skin corrosion or irritation (category 2) Specific target organ toxicity (single exposure) (category 3)
Disclosing proportions of ingredients
(1) This clause applies if an ingredient of a hazardous chemical must be disclosed under clause 2. (2) The proportion of the ingredient to the hazardous chemical must be disclosed: © 2017 THOMSON REUTERS
571
cl 4
Schedules
(a)
if the exact proportion of the ingredient is not commercially confidential—as the exact proportion of the chemical, expressed as a percentage by weight or volume, or (b) if the exact proportion of the ingredient is commercially confidential—as 1 of the following ranges within which the exact proportion fits, expressed as a percentage by weight or volume: (i) 60%, (v) a range that is narrower than the range set out in subparagraph (i), (ii), (iii) or (iv).
572
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 9 – Classification, packaging and labelling requirements cl 2
SCHEDULE 9 – CLASSIFICATION, PACKAGING AND LABELLING REQUIREMENTS (Clauses 329, 334 and 335)
Part 1 – Correct classification 1
Correct classification of a substance, mixture or article
(1) A substance or mixture (other than a research chemical, sample for analysis or waste product) is correctly classified if a determination is made about whether the substance or mixture can be classified into a hazard class under the GHS including a mixture classification referred to in Schedule 6. Note. The Schedule 6 tables replace some tables in the GHS.
(2) A substance or mixture that is a research chemical, sample for analysis or waste product is correctly classified if, so far as is reasonably practicable having regard to the known or suspected properties of the substance or mixture: (a) a determination is made about the identity of the substance or mixture, and (b) a determination is made about whether the substance or mixture can be classified into a hazard class under the GHS. (3) An article that contains a substance or mixture that may be released during the use, handling or storage of the article is correctly classified if the substance or mixture is correctly classified.
Part 2 – Correct packing 2
Correctly packing hazardous chemicals
(1) A hazardous chemical is correctly packed if the chemical is packed in a container that: (a) is in sound condition, and (b) will safely contain the chemical for the time the chemical is likely to be packed, and (c) is made of material that is compatible with, and will not be adversely affected by, the chemical, and (d) does not usually contain food or beverages and cannot be mistakenly identified as containing food or beverages. (2) Despite subclause (1), a hazardous chemical supplied by a retailer to a person, in a container provided by the person, is only correctly packed if: (a) for a hazardous chemical with a classification that includes flammable gases or gases under pressure—the container: (i) has a capacity less than the capacity stated for a hazardous chemical stored in bulk, and (ii) complies with the ADG Code, and (b) in any other case—the container: (i) has a capacity that does not exceed the capacity stated for a hazardous chemical stored in bulk, and (ii) is clearly marked with the product identifier or chemical identity, and (iii) complies with paragraphs (a) to (d) of subclause (1).
© 2017 THOMSON REUTERS
573
cl 2
Schedules
Part 3 – Correct labelling Note. More than 1 clause of this Part may apply to a hazardous chemical depending on the nature of the hazardous chemical, its container and other matters.
3
Labelling hazardous chemicals—general
(1) A hazardous chemical is correctly labelled if the chemical is packed in a container that has a label in English including the following: (a) the product identifier, (b) the name, and the Australian address and business telephone number of: (i) the manufacturer, or (ii) the importer, (c) for each ingredient of the chemical—the identity and proportion disclosed in accordance with Schedule 8, (d) any hazard pictogram consistent with the correct classification of the chemical, (e) any hazard statement, signal word and precautionary statement consistent with the correct classification of the chemical, (f) any information about the hazards, first aid and emergency procedures relevant to the chemical, not otherwise included in the hazard statement or precautionary statement referred to in paragraph (e), (g) if the chemical has an expiry date—the expiry date. (2) The label may include any other information that does not contradict or cast doubt on the matters referred to in subclause (1). (3) This clause is subject to clauses 4 to 10 of this Schedule. 4
Labelling hazardous chemicals—small container
(1) This clause applies if a hazardous chemical is packed in a container that is too small for a label attached to it to include all the information referred to in clause 3(1). (2) The hazardous chemical is correctly labelled if the chemical is packed in a container that has a label in English including the following: (a) the product identifier, (b) the name, and the Australian address and business telephone number of: (i) the manufacturer, or (ii) the importer, (c) a hazard pictogram or hazard statement consistent with the correct classification of the chemical, (d) any other information referred to in clause 3(1) that it is reasonably practicable to include. Labelling hazardous chemicals—research chemicals or samples for analysis 5
(1) This clause applies to a hazardous chemical that is a research chemical or sample for analysis. (2) The hazardous chemical is correctly labelled if the chemical is packed in a container that has a label in English including the following: 574
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 9 – Classification, packaging and labelling requirements cl 9
(a) the product identifier, (b) a hazard pictogram or hazard statement consistent with the correct classification of the chemical. Labelling hazardous chemicals—decanted or transferred chemicals 6
(1) This clause applies if: (a) a hazardous chemical is decanted or transferred from the container in which it is packed, and (b) either: (i) will not be used immediately, or (ii) is supplied to someone else. (2) The hazardous chemical is correctly labelled if the chemical is packed in a container that has a label in English including the following: (a) the product identifier, (b) a hazard pictogram or hazard statement consistent with the correct classification of the chemical. 7
Labelling hazardous chemicals—known hazards (1) This clause applies to a hazardous chemical if: (a) the chemical is not being supplied to another workplace, and (b) the hazards relating to the chemical are known to the workers involved in using, handling or storing the chemical.
(2) The hazardous chemical is correctly labelled if the chemical is packed in a container that has a label in English including the following: (a) the product identifier, (b) a hazard pictogram or hazard statement consistent with the correct classification of the chemical. 8
Labelling hazardous chemicals—waste products
(1) This clause applies to a waste product if it is reasonably likely that the waste product is a hazardous chemical. (2) The waste product is correctly labelled if it is packed in a container that has a label in English including the following for the hazardous chemical: (a) the product identifier, (b) the name, and the Australian address and business telephone number of: (i) the manufacturer, or (ii) the importer, (c) a hazard pictogram and hazard statement consistent with the correct classification of the chemical. 9
Labelling hazardous chemicals—explosives
(1) This clause applies to a hazardous chemical that may be classified in the explosives hazard class. (2) The hazardous chemical is correctly labelled if the chemical is packed in a container that has a label in English that: © 2017 THOMSON REUTERS
575
cl 9
Schedules
(a)
complies with the Australian Code for the Transport of Explosives by Road and Rail, and (b) includes the following: (i) the proper shipping name and UN number, (ii) any hazard pictogram consistent with the correct classification of the chemical in relation to health hazards, (iii) any hazard statement consistent with the correct classification of the chemical in relation to health hazards, (iv) any precautionary statement consistent with the correct classification of the chemical in relation to health hazards. Labelling hazardous chemicals—agricultural and veterinary chemicals 10
(1) A hazardous chemical that is an agricultural or veterinary chemical is correctly labelled if: (a) the chemical is labelled in accordance with the requirements of the Australian Pesticides and Veterinary Medicines Authority, and (b) the label is in English and includes the following: (i) any hazard statement consistent with the correct classification of the chemical, (ii) any precautionary statement consistent with the correct classification of the chemical. (2) In this clause, agricultural or veterinary chemical means an agricultural chemical product or veterinary chemical product under the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth.
576
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 10 – Prohibited carcinogens, restricted carcinogens and restricted hazardous chemicals Schedule 10
SCHEDULE 10 – PROHIBITED CARCINOGENS, RESTRICTED CARCINOGENS AND RESTRICTED HAZARDOUS CHEMICALS (Clauses 340 and 380 – 384) Note. The prohibition of the use of carcinogens listed in table 10.1, column 2 and the restriction of the use of carcinogens listed in table 10.2, column 2 apply to the pure substance and where the substance is present in a mixture at a concentration greater than 0.1%, unless otherwise specified.
Table 10.1 Prohibited carcinogens Column 1 Item 1 2 3 4
Column 2 Prohibited carcinogen [CAS number] 2-Acetylaminofluorene [53-96-3] Aflatoxins 4-Aminodiphenyl [92-67-1] Benzidine [92-87-5] and its salts (including benzidine dihydrochloride [531-85-1]) bis(Chloromethyl) ether [542-88-1] Chloromethyl methyl ether [107-30-2] (technical grade which contains bis(chloromethyl) ether) 4-Dimethylaminoazobenzene [60-11-7] (Dimethyl Yellow) 2-Naphthylamine [91-59-8] and its salts 4-Nitrodiphenyl [92-93-3]
5 6 7 8 9
Table 10.2 Restricted carcinogens Column 1 Item 1 2
3
4
5
Column 2 Restricted carcinogen [CAS Number] Acrylonitrile [107-13-1] Benzene [71-43-2]
Column 3 Restricted use All
All uses involving benzene as a feedstock containing more than 50% of benzene by volume Genuine research or analysis Cyclophosphamide When used in preparation for [50-18-0] therapeutic use in hospitals and oncological treatment facilities, and in manufacturing operations Genuine research or analysis 3,3’-Dichlorobenzidine All [91-94-1] and its salts (including 3,3’Dichlorobenzidine dihydrochloride [612-83-9]) Diethyl sulfate All [64-67-5]
© 2017 THOMSON REUTERS
577
Schedule 10
Column 1 Item 6 7
8
9
10
11
Schedules
Column 2 Restricted carcinogen [CAS Number] Dimethyl sulfate [77-78-1] Ethylene dibromide [106-93-4] 4,4’-Methylene bis(2-chloroaniline) [101-14-4] MOCA 3-Propiolactone [57-57-8] (Betapropiolactone) o-Toluidine [95-53-4] and o-Toluidine hydrochloride [636-21-5] Vinyl chloride monomer [75-01-4]
Column 3 Restricted use All When used as a fumigant Genuine research or analysis All
All
All
All
Table 10.3 Restricted hazardous chemicals Column 1 Item 1 2
3
4
5 6 7 8
9
578
Column 2 Restricted hazardous chemical Antimony and its compounds Arsenic and its compounds
Column 3 Restricted use For abrasive blasting at a concentration of greater than 0.1% as antimony For abrasive blasting at a concentration of greater than 0.1% as arsenic For spray painting For spray painting
Benzene (benzol), if the substance contains more than 1% by volume Beryllium and its For abrasive blasting at a concentracompounds tion of greater than 0.1% as beryllium Cadmium and its For abrasive blasting at a concentracompounds tion of greater than 0.1% as cadmium Carbon disulphide For spray painting (carbon bisulphide) Chromate For wet abrasive blasting Chromium and its For abrasive blasting at a concentracompounds tion of greater than 0.5% (except as specified for wet blasting) as chromium Cobalt and its For abrasive blasting at a concentracompounds tion of greater than 0.1% as cobalt
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 10 – Prohibited carcinogens, restricted carcinogens and restricted hazardous chemicals Schedule 10
Column 1 Item 10 11
12 13
Column 2 Restricted hazardous chemical Free silica (crystalline silicon dioxide) Lead and compounds
20
Lead carbonate Methanol (methyl alcohol), if the substance contains more than 1% by volume Nickel and its compounds Nitrates Nitrites Radioactive substance of any kind where the level of radiation exceeds 1 Bq/g Tetrachloroethane Tetrachloromethane (carbon tetrachloride) Tin and its compounds
21
Tributyl tin
14 15 16 17
18 19
Column 3 Restricted use For abrasive blasting at a concentration of greater than 1% For abrasive blasting at a concentration of greater than 0.1% as lead or which would expose the operator to levels in excess of those set in the regulations covering lead For spray painting For spray painting
For abrasive blasting at a concentration of greater than 0.1% as nickel For wet abrasive blasting For wet abrasive blasting For abrasive blasting, so far as is reasonably practicable
For spray painting For spray painting For abrasive blasting at a concentration of greater than 0.1% as tin For spray painting
Note. Clause 382 deals with polychlorinated biphenyls (PCBs). [Sch 10 am Reg 61 of 2015, Sch 1[87]; Reg 544 of 2012, Sch 1[7]]
© 2017 THOMSON REUTERS
579
Schedule 11
Schedules
SCHEDULE 11 – PLACARD AND MANIFEST QUANTITIES (Clauses 347 – 350, 361, 390 and 391)
Table 11.1 Column 1 Item
Column 4 Placard quantity 200L
Column 5 Manifest quantity 5000L
50L
500L
50L
500L
5000L 1000L
10,000L 10,000L
50L
500L
Category 2 Category 3 Any combination of chemicals from Items 6 to 8 where none of the items exceeds the quantities in columns 4 or 5 on their own Category 4 Type A
250L 1000L 1000L
2500L 10,000L 10,000L
10,000L 5kg or 5L
100,000L 50kg or 50L
12
Type B
50kg or 50L
13
Type C to F Category 1
250kg or 250L 250kg
500kg or 500L 2500kg or 2500L 2500kg
Category 2
1000kg
10,000kg
1 2
Column 2 Description of chemical Flammable gases Gases under pressure
3
4 5
6
Flammable liquids
7 8 9
10 11
14 15
580
Self-reactive substances
Flammable solids
Column 3 hazardous Category 1 With acute toxicity, categories 1, 2, 3 or 4 With skin corrosion categories 1A, 1B or 1C Aerosols Not specified elsewhere in this Table Category 1
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 11 – Placard and manifest quantities Schedule 11
Column 1 Item 16
17
18
19
Column 2 Column 3 Description of hazardous chemical Any combination of chemicals from Items 12 to 15 where none of the items exceeds the quantities in columns 4 or 5 on their own Pyrophoric Category 1 liquids and pyrophoric solids Self-heating Category 1 substances and mixtures Category 2
20
21
Substances which in contact with water emit flammable gas
Column 5 Manifest quantity 10,000kg or 10 000L
50kg or 50L
500kg or 500L
250kg or 250L
2500kg or 2500L
1000kg or 1000L 1000kg or 1000L
10,000kg or 10 000L 10,000kg or 10 000L
Any combination of chemicals from Items 17 to 19 where none of the items exceeds the quantities in columns 4 or 5 on their own Category 1 50kg or 50L
22
Category 2
23
Category 3
© 2017 THOMSON REUTERS
Column 4 Placard quantity 1000kg or 1000L
250kg or 250L 1000kg or 1000L
500kg or 500L
2500kg or 2500L 10,000kg or 10 000L
581
Schedule 11
Column 1 Item 24
25
26
Schedules
Column 2 Column 3 Description of hazardous chemical Any combination of chemicals from Items 21 to 23 where none of the items exceeds the quantities in columns 4 or 5 on their own Oxidising Category 1 liquids and oxidising solids Category 2
Column 4 Placard quantity 1000kg or 1000L
Column 5 Manifest quantity 10,000kg or 10 000L
50kg or 50L
500kg or 500L
250kg or 250L 1000kg or 1000L 1000kg or 1000L
2500kg or 2500L 10,000kg or 10 000L 10,000kg or 10 000L
27
Category 3
28
Any combination of chemicals from Items 25 to 27 where none of the items exceeds the quantities in columns 4 or 5 on their own Type A 5kg or 5L
29
Organic peroxides
30
Type B
50kg or 50L
31
Type C to F
32
Any combination of chemicals from Items 30 and 31 where none of the items exceeds the quantities in columns 4 or 5 on their own
250kg or 250L 250kg or 250L
582
50kg or 50L 500kg or 500L 2500kg or 2500L 2 500kg or 2 500L
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 11 – Placard and manifest quantities Schedule 11
Column 1 Item 33
Column 2 Column 3 Description of hazardous chemical Acute toxicity Category 1
34
Category 2
35
Category 3
36
Column 4 Placard quantity 50kg or 50L 250kg or 250L 1000kg or 1000L 1000kg or 1000L
Column 5 Manifest quantity 500kg or 500L 2500kg or 2500L 10,000kg or 10 000L 10,000kg or 10 000L
250kg or 250L 1000kg or 1000L 1000kg or 1000L 1000kg or 1000L
500kg or 500L 2500kg or 2500L 10,000kg or 10 000L 10,000kg or 10 000L 10,000kg or 10 000L
5kg or 5L
50kg or 50L
37
Any combination of chemicals from Items 33 to 35 where none of the items exceeds the quantities in columns 4 or 5 on their own Skin corrosion Category 1A 50kg or 50L
38
Category 1B
39
Category 1C
40
Corrosive to metals
41
42
Category 1 Any combination of chemicals from Items 37 to 40 where none of the items exceeds the quantities in columns 4 or 5 on their own
Unstable explosives
© 2017 THOMSON REUTERS
583
cl 1
Schedules
Column 1 Item 43
Column 2 Column 3 Description of hazardous chemical Unstable Any chemicals combination of chemicals from items 11, 29 and 42 where none of the items exceeds the quantities in columns 4 or 5 on their own
Column 4 Placard quantity 5kg or 5L
Column 5 Manifest quantity 50kg or 50L
Notes: 1 In item 2, Gases under pressure with acute toxicity, category 4 only applies up to a LC50 of 5000 ppmV. This is equivalent to dangerous goods of Division 2.3. 2 Item 4 includes flammable aerosols.
1
Determination of classification of flammable liquids
For the purposes of this table, if a flammable liquid category 4 is used, handled or stored in the same spill compound as one or more flammable liquids of categories 1, 2 or 3, the total quantity of flammable liquids categories 1, 2 or 3 must be determined as if the flammable liquid category 4 had the same classification as the flammable liquid in the spill compound with the lowest flash point. Example. For placarding and manifest purposes, a spill compound containing 1000L of flammable liquid category 1 and 1000L of flammable liquid category 4 is considered to contain 2000L of flammable liquid category 1. [Sch 11 am Reg 730 of 2013, cl 3(1)]
584
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 12 – Manifest requirements cl 3
SCHEDULE 12 – MANIFEST REQUIREMENTS (clause 347(2)) 1
Manifest—general information The manifest of hazardous chemicals must include: (a) the name of the person conducting the business or undertaking, and (b) the address of the workplace, and (c) the date the manifest was last amended or, if it has not been amended, the date it was prepared, and (d) business hours and after hours telephone numbers for at least 2 persons who may be contacted if there is a notifiable incident at the workplace.
2
Manifest—bulk storage and containers
(1) This clause applies if a hazardous chemical is stored at a workplace in bulk or in a container. (2) For each hazardous chemical stored in bulk other than in a container, the manifest of hazardous chemicals must include: (a) the name of the chemical, and (b) the quantity of the chemical stored. (3) For each container storing the hazardous chemical, the manifest of hazardous chemicals must include: (a) the identification number or code of the container, and (b) the type and capacity of the container, and (c) for a fixed vertical tank used to store fire risk hazardous chemicals—the diameter of the tank. 3
Manifest—identification of hazardous chemical The manifest of hazardous chemicals must include: (a) for a hazardous chemical, other than a flammable liquid category 4, unstable explosive, organic peroxide type A or self-reactive substance type A: (i) the proper shipping name as stated in Table 3.2.3 of the ADG Code for the chemical, and (ii) the UN number as stated in Table 3.2.3 of the ADG Code for the hazardous chemical, and (iii) the class and division of the hazardous chemical as stated in Table 3.2.3 of the ADG Code, and (b) for a flammable liquid category 4: (i) the product identifier, and (ii) the words “combustible liquid”, and (c) for an unstable explosive, organic peroxide type A or self-reactive substance type A: (i) the name of the hazardous chemical stated in the ADG Code, Appendix A, and (ii) the words “goods too dangerous to be transported”.
© 2017 THOMSON REUTERS
585
cl 4
4
Schedules
Manifest—storage area for packaged hazardous chemicals (1) This clause applies if: (a) a storage area: (i) contains, or is likely to contain, a packaged hazardous chemical, or a hazardous chemical in an IBC, and (ii) is required under this Regulation to have a placard, and (b) the hazardous chemicals are dangerous goods under the ADG Code. (2) The manifest of hazardous chemicals must include: (a) the identification number or code for the storage area, and (b) for hazardous chemicals with an assigned class specified in Table 3.2.3 of the ADG Code—the largest quantity of each class of hazardous chemicals likely to be kept in the storage area, and (c) for the specified hazardous chemicals that are likely to be kept in the storage area: (i) the proper shipping name of the hazardous chemical as specified in Table 3.2.3 of the ADG Code, and (ii) the class to which the hazardous chemical is assigned as specified in Table 3.2.3 of the ADG Code, and (iii) the largest quantity of the hazardous chemical likely to be kept in the storage area, and (d) for an unstable explosive, organic peroxide type A or self-reactive substance type A that is likely to be kept in the storage area: (i) the name of the hazardous chemical, and (ii) the words “goods too dangerous to be transported”, and (iii) the largest quantity of the hazardous chemical likely to be kept in the storage area, and (e) for hazardous chemicals with an assigned class specified in Table 3.2.3 of the ADG Code—the class to which the hazardous chemical is assigned, and (f) for flammable liquids category 4—the words “combustible liquid”. (3) In this clause, specified hazardous chemicals means any of the following: (a) flammable liquid category 1, (b) self-reactive substances type B, (c) substances which in contact with water emit flammable gas category 1, (d) pyrophoric liquids category 1, (e) pyrophoric solids category 1, (f) organic peroxides type B, (g) acute toxicity category 1, (h) oxidising solids category 1, (i) oxidising liquids category 1, (j) skin corrosion category 1A, (k) gases under pressure with acute toxicity categories 1, 2 or 3 or skin corrosion categories 1A, 1B or 1C.
586
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 12 – Manifest requirements cl 7
Manifest—hazardous chemicals being manufactured For each area in which hazardous chemicals are manufactured, the manifest must include: (a) the identification number or code of the area, and (b) a description of the hazardous chemicals manufactured in the area, and (c) the average and largest quantity of each hazardous chemical likely to be manufactured in the area. 5
6
Manifest—hazardous chemicals in transit
(1) This clause applies to hazardous chemicals at a workplace if the hazardous chemicals are: (a) dangerous goods under the ADG Code in transit at the workplace, and (b) accompanied by dangerous goods transport documents (the transport documents) in relation to the hazardous chemicals that comply with the ADG Code. (2) The person conducting a business or undertaking at the workplace is taken to comply with clauses 4 and 5 in relation to the hazardous chemicals if the manifest includes a compilation of the transport documents. Manifest—plan of workplace The manifest of hazardous chemicals at a workplace must include a scale plan of the workplace that: (a) shows the location of: (i) containers and other storage of hazardous chemicals in bulk, and (ii) storage areas for packaged hazardous chemicals and IBCs, and (iii) each area where hazardous chemicals are manufactured or generated, and (b) includes a description in words of the location of: (i) the things referred to in paragraph (a), and (ii) hazardous chemicals in transit, and (c) provides the identification number or code, and a legend for the identification numbers and codes, for the things referred to in paragraph (a), and (d) shows the location of: (i) the main entrance and other places of entry to and exit from the workplace, and (ii) essential site services, including fire services and isolation points for fuel and power, and (iii) all drains on the site, and (iv) the manifest, and (e) includes the direction of true north, and (f) describes the nature of the occupancy of adjoining sites or premises. 7
© 2017 THOMSON REUTERS
587
Schedule 13
Schedules
SCHEDULE 13 – PLACARD REQUIREMENTS (Clauses 349(2) and 350(2)) 1
Displaying placards
(1) This clause applies if a person conducting a business or undertaking at a workplace must display a placard at the workplace in relation to a hazardous chemical. (2) The person must ensure that the placard is: (a) clearly legible by persons approaching the placard, and (b) separate from any other sign or writing that contradicts, qualifies or distracts attention from the placard, and (c) if a placard quantity of the hazardous chemical is contained in a building: (i) located as close as is reasonably practicable to the main entrance of the building, and (ii) located at the entrance to each room or walled section of the building in which the hazardous chemical is used, handled or stored, and (d) if the hazardous chemical is contained in a container or outside storage area—located next to the container or outside storage area, and (e) for a placard to which clause 3 applies—located at each entrance to the workplace where an emergency service organisation may enter the workplace, and (f) for a placard to which clause 4 applies—located on or next to each container or storage area in which the hazardous chemicals are stored, and (g) for a placard to which clause 6 applies—located at each entrance to a storage area in which the hazardous chemicals are stored. [Cl 1 am Reg 61 of 2015, Sch 1[88]]
2
3
Maintaining placards A person who is required to display a placard must: (a) amend the placard as soon as practicable if: (i) the type or quantity of hazardous chemical used, handled or stored at the workplace changes, and (ii) the change requires the information displayed on the placard to be amended, and (b) ensure that the placard is: (i) kept clean, and (ii) maintained in good repair, and (iii) not covered or obscured. Outer warning placards—requirements
(1) This clause applies if a person conducting a business or undertaking at a workplace must display an outer warning placard at the workplace in relation to a hazardous chemical. 588
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 13 – Placard requirements cl 4 Note. Clause 349 sets out when an outer warning placard is required, and states that it is not required for retail fuel outlets.
(2) The outer warning placard must: (a) comply with the form shown in figure 13.1, and (b) display the word “HAZCHEM” in red letters on a white or silver background.
(3) In this clause, red means the colour “signal red” in accordance with AS 2007S-1996 (R13) (Colour standards for general purposes—signal red). 4
Placards for particular hazardous chemicals stored in bulk
(1) This clause applies if a person conducting a business or undertaking at a workplace must display a placard at the workplace in relation to the storage in bulk of any of the following hazardous chemicals: (a) gases under pressure, including flammable gases and flammable aerosols, (b) flammable liquids category 1, 2 or 3, (c) flammable solids category 1 or 2, self-reactive substances types B to F, self-heating substances category 1 or 2 or substances that, in contact with water, emit flammable gases, (d) organic peroxides types B to F, oxidising solids and oxidising liquids category 1, 2 or 3, (e) acute toxicity category 1, 2 or 3, (f) skin corrosion category 1A, 1B or 1C and corrosive to metals category 1. (2) The placard must: (a) comply with the template in figure 13.2, and (b) subject to subclause (4)(b) and (c), have dimensions not less than those shown in figure 13.2. (3) The placard must include the following in figure 13.2 for the hazardous chemical: (a) in space (p)—the proper shipping name for the hazardous chemical as specified in Table 3.2.3 of the ADG Code, (b) in space (q)—the UN Number for the hazardous chemical as specified in Table 3.2.3 of the ADG Code, (c) in space (r)—the Hazchem Code for the hazardous chemical as specified in Table 3.2.3 of the ADG Code, © 2017 THOMSON REUTERS
589
cl 4
Schedules
(d)
in space (s)—the class label and subsidiary risk label for the hazardous chemical as specified in Table 3.2.3 of the ADG Code.
(4) For subclause (3)(a) to (c), the numerals and letters used for showing the proper shipping name, UN number and Hazchem Code must be: (a) black on a white background, unless a letter of the Hazchem Code is white on a black background, and (b) if the proper shipping name requires a single line only—at least 100mm high, and (c) if the proper shipping name requires 2 lines—at least 50mm high. (5) For subclause (3)(d): (a) the class label and subsidiary risk label (if any) must have the form and colouring stated in the ADG Code for the hazardous chemical, and (b) the class label must have: (i) if there is a subsidiary risk label—sides not less than 200mm, or (ii) in any other case—sides of not less than 250mm, and (c) if there is a subsidiary risk label—the subsidiary risk label must have sides of not less than 150mm, and (d) if there are 2 or more subsidiary risk labels—the width of the right hand part of the placard may be extended.
590
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 13 – Placard requirements cl 5
Placards for unstable explosives, organic peroxides type A or self-reactive substances type A stored in bulk 5
(1) This clause applies if a person conducting a business or undertaking at a workplace must display a placard at the workplace in relation to unstable explosives, organic peroxides type A or self-reactive substances type A that are stored in bulk. (2) The placard must: (a) comply with the form in figure 13.2, and (b) have dimensions not less than those shown in figure 13.2. (3) The placard must include the following, as indicated in figure 13.2, for the hazardous chemical: (a) in space (p)—the name stated in the ADG Code for the hazardous chemical, (b) in space (q)—the space left blank, (c) in space (r)—the space left blank, (d) in space (s)—the label in figure 13.3.
(4) For (a) (b) (c)
subclause (3)(a), the letters used for showing the name must be: black on a white background, and if the name requires a single line only—at least 100mm high, and if the name requires 2 lines—at least 50mm high.
(5) For subclause (3)(d), the label must have sides of not less than 250mm. © 2017 THOMSON REUTERS
591
cl 6
Schedules
Placards for packaged Schedule 11 hazardous chemicals (other than flammable liquids category 4) and IBCs 6
(1) This clause applies if a person conducting a business or undertaking at a workplace must display a placard at the workplace in relation to the storage of: (a) packaged Schedule 11 hazardous chemicals (other than flammable liquids category 4), or (b) a Schedule 11 hazardous chemical in an IBC. (2) The placard must: (a) be in the form shown in figure 13.4, and (b) be of sufficient size to accommodate the labels to be included on the placard, and (c) have a white or silver background, and (d) include each required class label: (i) in the form and colouring stated in the ADG Code for the hazardous chemical, and (ii) with sides not less than 100mm. (3) The placard must include the following: (a) for a Schedule 11 hazardous chemical (other than unstable explosive, organic peroxide type A, self-reactive substance type A) present in a storage area at the workplace—the class label as stated in the ADG Code for each category of hazardous chemicals present in at least the placard quantity, or (b) for a flammable liquid category 4 stored with flammable liquids in a storage area at the workplace—a class 3 class label as stated in the ADG Code, or (c) for an unstable explosive, organic peroxide type A or self-reactive substance type A—the label in figure 13.3.
(4) If hazardous chemicals in an IBC at the workplace are Schedule 11 hazardous chemicals intended for transport, and not intended for use at the workplace: (a) the IBC must display a placard in accordance with the ADG Code, and 592
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 13 – Placard requirements cl 7
(b) 7
the storage area at the workplace must display a placard in accordance with this clause.
Placards for flammable liquids category 4 packaged or in bulk
(1) This clause applies if a person conducting a business or undertaking at a workplace must display a placard at the workplace in relation to the storage of: (a) a packaged flammable liquid category 4, or (b) a flammable liquid category 4 in bulk. (2) The (a) (b) (c)
placard must: be in the form shown in figure 13.5, and have dimensions not less than those shown in figure 13.5, and have black letters on a white or silver background.
[Sch 13 am Reg 61 of 2015]
© 2017 THOMSON REUTERS
593
Schedule 14
Schedules
SCHEDULE 14 – REQUIREMENTS FOR HEALTH MONITORING (Clauses 368, 370 and 406)
Table 14.1 Hazardous chemicals (other than lead) requiring health monitoring ColColumn 2 umn 1 Item Hazardous chemical 1 Acrylonitrile
2
3
4
5
6
594
Column 3
Type of health monitoring Demographic, medical and occupational history Records of personal exposure Physical examination Arsenic (inorganic) Demographic, medical and occupational history Records of personal exposure Physical examination with emphasis on the peripheral nervous system and skin Urinary inorganic arsenic Benzene Demographic, medical and occupational history Records of personal exposure Physical examination Baseline blood sample for haematological profile Cadmium Demographic, medical and occupational history Records of personal exposure Physical examination with emphasis on the respiratory system Standard respiratory questionnaire to be completed Standardised respiratory function tests including for example, FEV1, FVC and FEV1/FVC Urinary cadmium and β2-microglobulin Health advice, including counselling on the effect of smoking on cadmium exposure Chromium (inorganic) Demographic, medical and occupational history Physical examination with emphasis on the respiratory system and skin Weekly skin inspection of hands and forearms by a competent person Creosote Demographic, medical and occupational history Health advice, including recognition of photosensitivity and skin changes Tooma’s Annotated Work Health and Safety Act 2011
Schedule 14 – Requirements for health monitoring Schedule 14
ColColumn 2 umn 1 Item Hazardous chemical
7
8
9
10
11
Column 3
Type of health monitoring Physical examination with emphasis on the neurological system and skin, noting any abnormal lesions and evidence of skin sensitisation Records of personal exposure, including photosensitivity Crystalline silica Demographic, medical and occupational history Records of personal exposure Standardised respiratory questionnaire to be completed Standardised respiratory function test, for example, FEV1, FVC and FEV1/FVC Chest X-ray full size PA view Isocyanates Demographic, medical and occupational history Completion of a standardised respiratory questionnaire Physical examination of the respiratory system and skin Standardised respiratory function tests, for example, FEV1, FVC and FEV1/FVC Mercury (inorganic) Demographic, medical and occupational history Physical examination with emphasis on dermatological, gastrointestinal, neurological and renal systems Urinary inorganic mercury 4,4’-Methylene bis Demographic, medical and occupational his(2-chloroaniline) tory (MOCA) Physical examination Urinary total MOCA Dipstick analysis of urine for haematuria Urine cytology Organophosphate pes- Demographic, medical and occupational histicides tory including pattern of use Physical examination Baseline estimation of red cell and plasma cholinesterase activity levels by the Ellman or equivalent method Estimation of red cell and plasma cholinesterase activity towards the end of the working day on which organophosphate pesticides have been used
© 2017 THOMSON REUTERS
595
Schedule 14
Schedules
ColColumn 2 umn 1 Item Hazardous chemical 12 Pentachlorophenol (PCP)
13
14
15
Column 3
Type of health monitoring Demographic, medical and occupational history Records of personal exposure Physical examination with emphasis on the skin, noting any abnormal lesions or effects of irritancy Urinary total pentachlorophenol Dipstick urinalysis for haematuria and proteinuria Polycyclic aromatic Demographic, medical and occupational hishydrocarbons (PAH) tory Physical examination Records of personal exposure, including photosensitivity Health advice, including recognition of photosensitivity and skin changes Thallium Demographic, medical and occupational history Physical examination Urinary thallium Vinyl chloride Demographic, medical and occupational history Physical examination Records of personal exposure
Table 14.2 Lead requiring health monitoring ColColumn 2 umn 1 Item Lead 1 Lead (inorganic)
596
Column 3 Type of health monitoring Demographic, medical and occupational history Physical examination Biological monitoring
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 15 – Hazardous chemicals at major hazard facilities (and their threshold quantity) cl 4
SCHEDULE 15 – HAZARDOUS CHEMICALS AT MAJOR HAZARD FACILITIES (AND THEIR THRESHOLD QUANTITY) (Chapter 9) 1
Definitions In this Schedule: Class has the same meaning as in the ADG Code. Division has the same meaning as in the ADG Code. LD50 (median lethal dose) for acute oral toxicity [Repealed]
[Def rep Reg 61 of 2015, Sch 1[89]]
LD50 for acute dermal toxicity [Repealed] [Def rep Reg 61 of 2015, Sch 1[89]]
LC50 for acute toxicity on inhalation [Repealed] [Def rep Reg 61 of 2015, Sch 1[89]]
Packing Group has the same meaning as in the ADG Code. subsidiary risk has the same meaning as in the ADG Code. Relevant hazardous chemicals The hazardous chemicals that characterise a workplace as a facility for the purposes of this Regulation are the chemicals specifically referred to in table 15.1 and chemicals that belong to the types, classes and categories referred to in table 15.2. 2
3
Threshold quantity of one hazardous chemical
(1) In relation to each hazardous chemical referred to in clause 2, column 3 of Tables 15.1 and 15.2 provides a quantity that is described as the “threshold quantity” of that chemical. (2) If a hazardous chemical is referred to in table 15.1, the threshold quantity of the chemical is that described in table 15.1, whether or not the chemical also belongs to a type, class or category referred to in table 15.2. (3) If a hazardous chemical is not referred to in table 15.1, and the chemical belongs to a type, class or category referred to in table 15.2, the threshold quantity of that chemical is that of the type, class or category to which it belongs. (4) If a hazardous chemical is not referred to in table 15.1, and the chemical appears to belong to more than 1 of the types, classes or categories referred to in table 15.2, the threshold quantity of that chemical is that of the relevant type, class or category which has the lower or lowest threshold quantity. 4 Threshold quantity of more than 1 hazardous chemical If there is more than 1 hazardous chemical, a threshold quantity of chemicals exists where, if a number of chemicals are present, the result of the following aggregation formula exceeds 1: qx + qy + [....] + qn Qx Qy Qn Where— © 2017 THOMSON REUTERS
597
cl 4
Schedules
(a)
x, y, [....] and n are the hazardous chemicals present or likely to be present, (b) qx, qy, [....] and qn is the total quantity of hazardous chemicals x, y, [....] and n present or likely to be present, other than: (i) a hazardous chemical that is present or likely to be present in an isolated quantity less than 2% of its threshold quantity, (ii) hazardous chemicals that are solely the subject of intermediate temporary storage, while in transit by road or rail (unless it is reasonably foreseeable that, despite the transitory nature of the storage, hazardous chemicals are or are likely to be present frequently or in significant quantities), (c) Qx, Qy, [....] and Qn is the individual threshold quantity for each hazardous chemical x, y, [....] and n, (d) a hazardous chemical is present or likely to be present in an isolated quantity, for the purposes of paragraph (b)(i), if its location at the facility is such that it cannot, on its own, act as an initiator of a major incident. How table 15.1 must be used
5
(1) The UN number listed in table 15.1 against the named hazardous chemical does not restrict the meaning of the name, which also applies to hazardous chemicals that fall outside the UN number. Examples. 1
The hazardous chemicals are too dangerous to be transported.
2
The hazardous chemicals are part of mixtures covered by a different UN number.
(2) Any hazardous chemicals that are covered by the listed UN numbers must be included in the quantity of the chemical named. [Cl 5 am Reg 61 of 2015, Sch 1[90]]
6
How table 15.2 must be used
(1) The quantities specified for explosives in table 15.2 relate to the weight of explosive exclusive of packagings, casings and other non-explosive components. (2) If explosives of different hazard divisions are present in the same area or storage, all of the explosives must, before table 15.2 is applied, be classified in accordance with the following table: Div. 1.1 1.2 1.3 1.4 1.5 1.6
598
1.1 1.1 1.1 1.1 1.1 1.1 1.1
1.2 1.1 1.2 1.1 1.2 1.1 1.2
1.3 1.1 1.1 1.3 1.3 1.1 1.3
1.4 1.1 1.2 1.3 1.4 1.5 1.6
1.5 1.1 1.1 1.1 1.5 1.5 1.5
1.6 1.1 1.2 1.3 1.6 1.5 1.6
Tooma’s Annotated Work Health and Safety Act 2011
Schedule 15 – Hazardous chemicals at major hazard facilities (and their threshold quantity) cl 6
Table 15.1 Item
1 2 3 4 5 6 7
8
9
10
11
12 13 14 15 16
Column 1 Hazardous chemical
Column 2 Column 3 UN Nos included Threshold under name quantity (tonnes) ACETONE CYANO- 1541 20 HYDRIN ACETYLENE 1001 50 ACROLEIN 1092 200 ACRYLONITRILE 1093 200 ALLYL ALCOHOL 1098 20 ALLYLAMINE 2334 200 AMMONIA, ANHY- 1005 200 DROUS, LIQUEFIED or AMMONIA SOLUTIONS, relative density less than 0.880 at 15 degrees C in water, with more than 50% ammonia AMMONIUM 2067 5000 NITRATE FERTILISERS 2068 2069 2070 AMMONIUM 1942 2500 NITRATE, with not more than 0.2% combustible substances, including any organic substance calculated as carbon, to the exclusion of any other added substance ARSENIC PENTOX- 1559 10 IDE, Arsenic (V) Acid and other salts ARSENIC TRIOX- 1561 0.1 IDE, Arsenious (III) Acid and other salts ARSINE 2188 1.0 BROMINE or BRO- 1744 100 MINE SOLUTIONS CARBON DISUL- 1131 200 FIDE CHLORINE 1017 25 DIOXINS — 0.1
© 2017 THOMSON REUTERS
599
cl 6
Item
17 18 19 20 21 22 23
24 25
26
27 28 29
30
31 32 33
600
Schedules
Column 1 Hazardous chemical
Column 2 Column 3 UN Nos included Threshold under name quantity (tonnes) ETHYL NITRATE — 50 ETHYLENE DIBRO- 1605 50 MIDE ETHYLENE OXIDE 1040 50 ETHYLENEIMINE 1185 50 FLUORINE 1045 25 FORMALDEHYDE — 50 (greater than 90%) HYDROFLUORIC 1790 50 ACID SOLUTION (greater than 50%) HYDROGEN 1049 50 HYDROGEN CHLORIDE —Anhydrous 1050 250 —Refrigerated Liquid 2186 250 HYDROGEN CYA- 1051 20 NIDE 1614 HYDROGEN FLUO- 1052 50 RIDE HYDROGEN SUL- 1053 50 FIDE LP GASES 1011 200 1012 1075 1077 1978 METHANE or NATU- 1971 200 RAL GAS 1972 METHYL BROMIDE 1062 200 METHYL ISOCYA- 2480 0.15 NATE OXIDES OF NITRO- 1067 50 GEN, including nitrous oxide, nitrogen dioxide and nitrogen trioxide 1070 1660 1975 2201 2421 Tooma’s Annotated Work Health and Safety Act 2011
Schedule 15 – Hazardous chemicals at major hazard facilities (and their threshold quantity) cl 6
Item
34 35 36 37 38 39 40 41
42 43
Column 1 Hazardous chemical
Column 2 Column 3 UN Nos included Threshold under name quantity (tonnes) OXYGEN 1072 2000 1073 PHOSGENE 1076 0.75 PROPYLENE OXIDE 1280 50 PROPYLENEIMINE 1921 200 SODIUM CHLO- 1495 200 RATE, solid SULFUR DICHLO- 1828 1 RIDE SULFUR DIOXIDE, 1079 200 LIQUEFIED SULFURIC ANHY- 1829 75 DRIDE (Alt. SULFUR TRIOXIDE) TITANIUM TETRA- 1838 500 CHLORIDE TOLUENE DIISOCY- 2078 200 ANATE Table 15.2
Item
Column 1 Hazardous chemical
1
Explosive materials
2
Column 2 Description
Column 3 Threshold quantity (tonnes) of 10
Explosive Division 1.1A All other explosives of Division 1.1 Explosive of Division 1.2 Explosive of Division 1.3 Compressed and lique- Compressed or liquefied gases fied gases of Division 2.1 or Subsidiary Risk 2.1 Liquefied gases of Subsidiary Risk 5 Compressed or liquefied gases that meet the criteria for Very Toxic in table 15.3
© 2017 THOMSON REUTERS
50 200 200 200
200 20
601
cl 6
Schedules
Item
Column 1 Hazardous chemical
3
Flammable materials
602
Column 2 Description
Column 3 Threshold quantity (tonnes) Compressed or lique- 200 fied gases that meet the criteria for Toxic in table 15.3 Liquids that meet the 200 criteria for Class 3 Packing Group I Materials (except for crude oil in remote locations) Crude oil in remote 2,000 locations that meets the criteria for Class 3 Packing Group I Liquids that meet the 50,000 criteria for Class 3 Packing Group II or III Liquids with flash 200 points