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PETROLEUM (SUBMERGED LANDS) (OCCUPATIONAL HEALTH AND SAFETY) REGULATIONS 1993 NO. 282

PETROLEUM (SUBMERGED LANDS) (OCCUPATIONAL HEALTH AND SAFETY) REGULATIONS 1993 NO. 282

EXPLANATORY STATEMENT

STATUTORY RULES 1993 No. 282

Issued by the authority of the Minister of State for Resources.

Petroleum (Submerged Lands) Act 1967

Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations

The Petroleum (Submerged Lands) Amendment Act 1992, (the Amendment Act) amongst other things, inserts new section 140H and new Schedule 7 into the Petroleum (Submerged Lands) Act 1967 (the Act).

Section 140H applies occupational health and safety (OH&S) provisions to offshore petroleum operations by means of Schedule 7 (the Schedule) except in those adjacent areas where subsection 140H(2) enables State or Northern Territory OH&S legislation to apply.

Section 157 of the Act provides that the Governor-General may make regulations for the purposes of the Act. Clause 53 of the Schedule provides that the Governor-General may make regulations (the OH&S regulations) for the purposes of the Schedule.

The Schedule provides for the protection of the health and safety of offshore petroleum industry employees at work. The Schedule provides a framework within which employers and employees may co-operate to address health and safety issues in the workplace. The proposed regulations (the OH&S regulations) prescribe various matters which are necessary for the effective operation of the scheme established by the Schedule.

Details of the proposed OH&S regulations are attached.

The Amendment Act commenced on 25 June 1993.

These regulations will commence on Gazettal.

ATTACHMENT

PART 1 - PRELIMINARY

Regulation 1: Citation

This gives the short title of the Regulations.

Regulation 2: Interpretation

Regulation 2 defines a number of terms used in the Regulations.

Regulation 3: Forms. notices and reports

Regulation 3 provides general requirements in relation to completion by employers of forms, notices and reports.

Regulation 4: What is a dangerous occurrence?

Clause 2 of Schedule 7 of the Act defines "dangerous occurrence" as an occurrence at a workplace that is declared by the OH&S regulations to be a dangerous occurrence.

The definition of "dangerous occurrence" is relevant to the application of clauses 11, 16, 41 and 42 of Schedule 7 of the Act and is incorporated by reference into all these provisions.

Regulation 4 defines "dangerous occurrence" as an occurrence that resulted from an operation that arose from an undertaking conducted by an employer and could have caused the death of, or serious personal injury to, any person, or the incapacity of an employee for a duration of 5 or more successive working days or shifts, but which did not result in death, serious personal injury or incapacity.

The regulation also sets out circumstances which will be taken to constitute a dangerous occurrence. The matters specified in detail relate to malfunctioning breathing apparatus; damage to particular equipment; uncontrolled explosion, fire or release of dangerous substances; electrical short-circuit; collapse of an excavation or other parts of a workplace.

PART 2 - ELECTIONS CONDUCTED BY UNIONS

Clause 13 of Schedule 7 of the Act provides for the selection of a health and safety representative for each designated work group. Subclause 13(4) provides for the election of health and safety representatives. Paragraph 53(1)(a) provides that regulations may be made prescribing procedures for the election of persons under Clause 13, as health and safety representatives.

Paragraph 13(4)(a) of Schedule 7 of the Act provides for the election of a health and safety representative to be conducted by the involved union where there is only one involved union in relation to the designated work group. Paragraph 13(4)(b) provides for conduct of election by a specified union where there is more than one involved union and the unions agree that the election should be conducted by a specified union.

Regulation 5 - Involved union to authorise returning office

Subregulation 5(1) provides for the appointment by an involved union of a person to conduct an election for the union.

Subregulation 5(2) provides that a person appointed under subregulation 5(1) must conduct the election in accordance with that union's rules, provided those rules are consistent with clause 13 of Schedule 7 of the Act.

PART 3 - ELECTIONS CONDUCTED BY RETURNING OFFICERS

Paragraph 13(4)(c) of Schedule 7 of the Act provides that if there is no involved union in relation to the group an election may be conducted by a person authorised by the Designated Authority to conduct elections under this Clause.

The OH&S Regulations set, minimum requirements for the conduct of an election held by a person authorised by the Designated Authority.

Division 1 - Preliminary matters

Regulation 6 - Dates to be fixed for elections

Regulation 6 contains provisions dealing with the notice to be given of an election in the case where there is no involved union. The provisions are designed to ensure that all employees of the designated work group may nominate for election, are given reasonable notice of the ballot, a reasonable opportunity to vote and may request that the election be conducted by secret ballot.

Division 2 - Nominations

Regulation 7 - Manner of nomination

Regulation 7 contains requirements in relation to' the nomination of candidates. These relate to required details in the nomination and requirements placed on the returning officer.

Regulation 8 - Correction of defective nominations

Regulation 8 sets out procedures to be followed by the returning officer in relation to correcting defective nominations and nominations from persons who appear to be ineligible. The procedures are intended to ensure that a prospective nominee receives notification of possible deficiencies in his or her nomination and has the opportunity to rectify any deficiencies.

Regulation 9 - Withdrawal of nomination

Regulation 9 provides for a candidate to withdraw his or her nomination.

Regulation 10 - Declaration of nominations

Subregulation 10(1) requires the returning officer to display nominations in the relevant workplace or, if there is only one candidate, to declare that candidate elected.

Subregulation 10(2) requires the returning officer to notify the candidate as soon as practicable after the nomination date that the candidate is taken to have been elected, if there is only one candidate.

Subregulation 10(3) requires the returning officer to conduct a poll of employees in the designated work group if there is more than one candidate.

Subregulation 10(4) clarifies that an election has failed where no candidate is nominated.

Division 3 - The poll

Regulation 11 - Number of votes

Regulation 11 provides that each person eligible to vote is entitled to one vote only.

Regulation 12 - Right to secret ballot

Regulation 12 provides for a member of the designated work group to request a secret ballot. This provision, in conjunction with proposed regulation 13, ensures that the election system is flexible and fair.

Regulation 13 - Conduct of poll by secret ballot

Regulation 13 requires the returning officer to issue ballot papers if a secret ballot is requested and to conduct the election in accordance with Divisions 4 and 5.

Regulation 14 - Conduct of poll if no request made for secret ballot

Regulation 14 provides that if there is no request for a secret ballot the returning officer may conduct a poll in a manner determined by him or her to produce a fair result.

Regulation 15 - If no candidate is elected

Regulation 15 provides that if no candidate is elected the election is taken to have failed.

Division 4 - Polling by secret ballot

Regulation 16 - Ballot-papers

Regulation 16 sets out the matters to be contained in a ballot-paper.

Regulation 17 - Distribution of ballot-papers

Regulation 17 specifies the manner in which the returning officer is to distribute the ballotpapers.

Regulation 18 - Manner of voting by secret ballot

Subregulation 18(1) provides for a "first past the post" system of voting.

Subregulation 18(2) makes provision for lodging ballot-papers either in a ballot box or, if provision has been made for a postal ballot under subregulation 17(2), by mail.

Subregulation 18(3) makes provision for dealing with spoilt ballot-papers.

Division 5 - The count

Regulation 19 - Envelopes given to returning officer

Regulation 19 requires the returning officer to keep votes secure until the count and not to admit votes received after the poll.

Regulation 20 - Scrutineers

Regulation 20 provides for scrutineers to be appointed.

Regulation 21 - Returning officer to be advised of scrutineers

Regulation 21 -provides for notification of scrutineers to the returning officer.

Regulation 22 - Persons present at the count

Regulation 22 provides for a procedure by which a scrutineer may inform a returning officer of an alleged election irregularity. The regulation further provides that a returning officer may direct a person, not entitled to be present at an election count or interrupts a count, to leave the count. Non-compliance with this direction is to be an offence and liable to a fine.

Regulation 23 - Conduct of the count

Regulation 23 sets out the procedures to be followed by the returning officer in conducting the count.

Regulation 24 - Prescribed manner of drawing of lots

Regulation 24 sets out the procedures to be followed by the returning officer in the drawing of lots where two candidates receive the same number of votes in a count conducted under regulation 23.

Regulation 25 - Informal ballot-papers

Regulation 25 sets out the circumstances in which a ballot-paper is informal.

Regulation 26 - Completion of the count

Regulation 26 requires the returning officer to prepare, date and sign a statement setting out the number of valid votes given to each candidate and the number of informal votes.

Regulation 27 - Destruction of election material

Regulation 27 allows the returning officer to destroy specified election material after six months.

Division 6 - Result of election

Regulation 28 - Request for recount

Regulation 28 allows the returning officer to conduct a recount on his or her own motion and requires a recount on request by a candidate.

Regulation 29 - Irregularities at election

Regulation 29 makes provision for election irregularities. The returning officer may declare an election void if the returning officer has reasonable grounds to believe there has been an irregularity in the conduct of an election.

Regulation 30 - Result of poll

Subregulation 30(1) requires the returning officer to, notify the employer and the relevant Designated Authority of the failure of an election.

Subregulation 30(2) requires the returning officer to notify the candidate as soon as practicable after a successful poll.

PART 4 - ADVICE, INVESTIGATIONS AND INQUIRIES

Regulation 31 - Inspectors - certificates

Subregulation 31(1) specifies the information which must be -contained in a certificate of appointment to an inspector to undertake the powers, functions and duties of an investigator for the purposes of Schedule 7 of the Act, including any directions given by the Designated Authority under subclause 29(2) of Schedule 7 of the Act.

Subregulation 31(2) requires the Designated Authority to cancel and issue another certificate of appointment to a person if a direction is given under subclause 29(2) of Schedule 7 of the Act to the person after the issue of the original certificate.

Regulation 32 - Taking samples for testing etc.

Subclause 33(1) of Schedule 7 of the Act empowers an investigator, in the course of conducting an investigation, to remove plant or equipment from the workplace or take a sample of substances or things for inspection or testing.

Subregulation 33(1) provides that, where it is practicable to do so, an investigator is required when taking a sample to divide the sample into three parts, where the sample is divisible. The regulation requires the investigator to:

•       give one part to the employer from whom the sample was taken;

•       forward another part for the carrying out of inspections, examination or testing under Schedule 7 of the Act; and.

•       retain the remaining part as an extra test sample if necessary.

Subregulation 33(2) specifies that where the sample is not divisible, the investigator must provide the whole sample for the carrying out of inspections, examination or testing.

Subregulation 33(3) requires the investigator to take all reasonable steps to ensure that the plant is not damaged or the sample contaminated while it is away from the workplace.

Regulation 33 - Form of certain notices

Regulation 33 provides that written notices provided by an investigator to employers for the purposes of subclause 17(2), subclause 33(2), subclause 34(1), subclause 35(1) and subclause 36(1) are to be in a form which is prescribed.

Schedule 7 of the Act provides for written notice to be given in a variety of circumstances.

Subclause 17(2) of Schedule 7 of the Act empowers a health and safety representative to issue a provisional improvement notice to a person who is contravening, or has contravened and is likely to contravene again, a clause of Schedule 7 of the Act or a regulation.

Subclause 33(2) of Schedule 7 of the Act requires an investigator who removes plant or a sample of a substance or thing from the workplace to notify specified persons in writing and to provide reasons for the action.

Subclause 34(1) of Schedule 7 of the Act empowers an investigator to issue a notice to a person directing that person to ensure that a particular workplace, or a specified part of a workplace, or a particular plant, substance or thing not be disturbed for a specified period.

Under subclause 35(1) of Schedule 7 of the Act, an investigator may issue a notice to an employer directing the employer to ensure that a specified activity ceases or ceases to be engaged in a specified manner.

Subclause 36(1) of Schedule 7 of the Act empowers an investigator to issue an improvement notice to a person whom he or she believes is contravening or has contravened and is likely to contravene again a provision of Schedule 7 of the Act or regulations.

Paragraph 53(1)(e) of Schedule 7 of the Act provides for regulations prescribing forms for the purposes of Schedule 7 of the Act or regulations.

Regulation 34 - Site of accident or dangerous occurrence not to be disturbed

Regulation 34 provides that a site of an accident or a dangerous occurrence is not to be disturbed. A fine (currently $1,000) for non-compliance with the provision is included. The regulation further provides for instances which may constitute a reasonable excuse for not complying with the regulation. Defences against prosecution for non-compliance with the regulation are also prescribed.

PART 5 - MISCELLANEOUS

Proposed Regulation 35 - Service of notices

Paragraph 53(1)(d) of Schedule 7 of the Act provides that regulations may be made prescribing the manner in which notices are to be served under Schedule 7 of the Act or the OH&S regulations.

Regulation 35 prescribes the manner in which notices are to be served under Schedule 7 of the Act and OH&S regulations. It provides procedures whereby notices may be transmitted by electronic facsmile or computer and advises to whom notices and reports to the Designated Authority should be sent.

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