OCCUPATIONAL HEALTH AND SAFETY AMENDMENT BILL 2007

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OCCUPATIONAL HEALTH AND SAFETY AMENDMENT BILL 2007

New South Wales Occupational Health and Safety Amendment Bill 2007 Contents Page 1 Name of Act 2 2 Commencement 2 3 Amendment of Occupational Health and Safety Act 2000 No 40 2 4 Amendment of Workplace Injury Management and Workers Compensation Act 1998 No 86 2 5 Amendment of Industrial Relations Act 1996 No 17 2 6 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92 2 7 Amendment of Fines Act 1996 No 99 2 8 Amendment of mine safety legislation 2 9 Amendment of Occupational Health and Safety Regulation 2001 2 10 Repeal of Act 3 Schedule 1 Amendment of Occupational Health and Safety Act 2000 4 b2007-146-33.d04

Occupational Health and Safety Amendment Bill 2007 Contents Page Schedule 2 Amendment of Workplace Injury Management and Workers Compensation Act 1998 26 Schedule 3 Amendment of Industrial Relations Act 1996 27 Schedule 4 Amendment of Crimes (Sentencing Procedure) Act 1999 28 Schedule 5 Amendment of Fines Act 1996 29 Schedule 6 Amendment of mine safety legislation 30 Schedule 7 Amendment of Occupational Health and Safety Regulation 2001 31 Contents page 2

New South Wales Occupational Health and Safety Amendment Bill 2007 No , 2007 A Bill for An Act to amend the Occupational Health and Safety Act 2000, and related Acts, following the 5-year statutory review of that Act.

Clause 1 Occupational Health and Safety Amendment Bill 2007 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Occupational Health and Safety Amendment Act 2007. 3 2 Commencement 4 (1) This Act commences on the date of assent, except as provided by 5 subsection (2). 6 (2) The following provisions of this Act commence on a day or days to be 7 appointed by proclamation: 8 (a) Schedule 1 [4]茉8], [10]茉23], [32], [34]茉39], [42], [44] and [46] 9 and [49], 10 (b) Schedule 7 [1] and [2]. 11 3 Amendment of Occupational Health and Safety Act 2000 No 40 12 The Occupational Health and Safety Act 2000 is amended as set out in 13 Schedule 1. 14 4 Amendment of Workplace Injury Management and Workers 15 Compensation Act 1998 No 86 16 The Workplace Injury Management and Workers Compensation Act 17 1998 is amended as set out in Schedule 2. 18 5 Amendment of Industrial Relations Act 1996 No 17 19 The Industrial Relations Act 1996 is amended as set out in Schedule 3. 20 6 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92 21 The Crimes (Sentencing Procedure) Act 1999 is amended as set out in 22 Schedule 4. 23 7 Amendment of Fines Act 1996 No 99 24 The Fines Act 1996 is amended as set out in Schedule 5. 25 8 Amendment of mine safety legislation 26 The Acts specified in Schedule 6 are amended as set out in that 27 Schedule. 28 9 Amendment of Occupational Health and Safety Regulation 2001 29 The Occupational Health and Safety Regulation 2001 is amended as set 30 out in Schedule 7. 31 Page 2

Occupational Health and Safety Amendment Bill 2007 Clause 10 10 Repeal of Act 1 (1) This Act is repealed on the day following the day on which all of the 2 provisions of this Act have commenced. 3 (2) The repeal of this Act does not, because of the operation of section 30 4 of the Interpretation Act 1987, affect any amendment made by this Act. 5 Page 3

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 Schedule 1 Amendment of Occupational Health and 1 Safety Act 2000 2 (Section 3) 3 [1] Section 3 Objects 4 Insert after section 3 (b): 5 (b1) to encourage employers, employees and others with 6 occupational health and safety duties to take an active role 7 to protect themselves and other people at a place of work 8 against risks to health or safety at the place of work, 9 [2] Section 3 (e) 10 Omit section 3 (e). Insert instead: 11 (e) to ensure that risks to health and safety at a place of work 12 are identified, assessed and: 13 (i) eliminated, or 14 (ii) if that is not reasonably practicable, reduced to the 15 lowest level that is reasonably practicable, 16 [3] Section 3, Note 17 Insert at the end of the section: 18 Note. See sections 22 and 23 of the Workplace Injury Management and 19 Workers Compensation Act 1998 for the role and functions of 20 WorkCover in securing the objectives of this Act. 21 [4] Section 7A 22 Insert before section 8: 23 7A The concept of ensuring health and safety 24 (1) A duty imposed on a person by this Division (or by any other 25 provision of or made under this Act) to ensure, so far as is 26 reasonably practicable, health and safety requires the person: 27 (a) to eliminate risks to health and safety so far as is 28 reasonably practicable, and 29 (b) if it is not reasonably practicable to eliminate risks to 30 health and safety, to reduce the risks to the lowest level 31 reasonably practicable. 32 Page 4

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 (2) For the purposes of this Division (or of any such other provision), 1 regard must be had to the following matters in determining what 2 is (or was at a particular time) reasonably practicable in relation 3 to ensuring health and safety: 4 (a) what the person concerned knows, or ought reasonably to 5 know, about the hazards giving rise to the risk concerned, 6 (b) the likelihood of the risk eventuating, 7 (c) the degree of harm that would result if the risk eventuated, 8 (d) what the person concerned knows, or ought reasonably to 9 know, about any ways of eliminating or reducing the risk, 10 (e) the availability and suitability of ways to eliminate or 11 reduce the risk, 12 (f) the cost of eliminating or reducing the risk. 13 (3) This section is enacted for the avoidance of doubt. 14 [5] Section 8 Duties of employers 15 Insert ", so far as is reasonably practicable," after "must" wherever occurring 16 in section 8 (1) and (2). 17 [6] Section 8, note 18 Omit the note. Insert instead: 19 Note. See section 12 for the penalty for an offence against this section 20 and other provisions of this Division. Division 4 makes ancillary provision 21 with respect to those offences, including section 26 (liability of officers of 22 corporations). See also Division 2 for duty of employer to consult 23 employees. 24 [7] Section 9 Duties of self-employed persons 25 Insert ", so far as is reasonably practicable," after "must". 26 [8] Section 10 Duties of controllers of work premises, plant or substances 27 Insert ", so far as is reasonably practicable," after "must" wherever occurring 28 in section 10 (1) and (2). 29 [9] Section 10 (3) (b) 30 Insert "or dwellings (including common property that no resident has an 31 exclusive right to occupy)" after "private dwelling". 32 [10] Section 11 Duties of designers, manufacturers and suppliers of plant 33 and substances for use at work 34 Insert ", so far as is reasonably practicable" after "must" in section 11 (1). 35 Page 5

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 [11] Section 15 When consultation required 1 Insert at the end of the section: 2 (2) This Division requires consultation in a particular case only so far 3 as it is reasonably practicable in the circumstances of that case. 4 [12] Section 17A 5 Insert after section 17: 6 17A Determination by inspector of unresolved matters concerning 7 consultation arrangements 8 (1) This section applies to negotiations between employers and 9 employees (or persons acting on their behalf) with respect to 10 consultation arrangements under sections 16 and 17. 11 (2) Any of the parties to the negotiations may, if agreement is not 12 reached within a reasonable time, ask Workcover to arrange for 13 an inspector to determine any matter concerning consultation 14 arrangements that is unresolved. 15 (3) An inspector who determines an unresolved matter must give 16 written notice of the determination to the parties and the parties 17 must give effect to the determination. 18 (4) The negotiations to which this section applies and any 19 determinations of unresolved matters by an inspector are to have 20 regard to the diversity of the employees and their work (including 21 any particular matters prescribed by the regulations) so as to 22 ensure that the consultation arrangements provide effective 23 representation for relevant workgroups. 24 This subsection does not require the establishment of separate 25 workgroups for different categories of employees, places of work 26 or other matters referred to in the regulations. 27 Note. See clause 23 of the Occupational Health and Safety Regulation 28 2001 for particulars required to be taken into account under this 29 subsection. 30 (5) A determination of an inspector under this section is subject to 31 review by WorkCover and appeal to an Industrial Magistrate, and 32 for that purpose sections 96 and 97 apply in respect of any such 33 determination as if it were the issue of a notice under Part 6. 34 [13] Section 18 Functions of OHS committees and OHS representatives 35 Insert "See Part 6A for issue of safety recommendation notices by approved 36 OHS representatives." at the beginning of the Note to that section. 37 Page 6

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 [14] Section 20 Duties of employees 1 Insert after section 20 (2) (and before the penalty provision for the section): 2 (3) An employee must, while at work, take reasonable care for his or 3 her own health and safety. 4 (4) In determining, for the purposes of this section, whether an 5 employee failed to take reasonable care, regard must be had to 6 what the employee knew about the relevant circumstances. 7 [15] Section 20 (2) 8 Insert "reasonably" before "necessary". 9 [16] Section 21 Person not to interfere with or misuse things provided for 10 health, safety and welfare 11 Insert "and without reasonable excuse" after "recklessly". 12 [17] Section 23 Unlawful dismissal or other victimisation of employee 13 Insert "section 23A of this Act and" after "See" in the Note to the section. 14 [18] Section 23 (1) (c) 15 Insert "or Part 6A" after "Division 2". 16 [19] Section 23A 17 Insert after section 23: 18 23A Application for reinstatement of employee unlawfully dismissed 19 under section 23 20 (1) In this section: 21 reinstatement includes re-employment. 22 unlawful dismissal means the dismissal of an employee in 23 contravention of section 23. 24 (2) An employee who has been unlawfully dismissed may, within 21 25 days after the dismissal, apply to the Industrial Court of NSW for 26 reinstatement. The Court may accept an application that is made 27 out of time if it considers that there is a sufficient reason to do so. 28 (3) An industrial organisation of employees may make such an 29 application on behalf of the employee. 30 (4) The Industrial Court of NSW may, on such an application, order 31 the employer to reinstate the employee in accordance with the 32 terms of the order. 33 Page 7

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 (5) If the Industrial Court of NSW is satisfied that the applicant was 1 unlawfully dismissed: 2 (a) the Court is to order the employee to be reinstated in his or 3 her former employment or in any other employment that is 4 no less advantageous to the employee, except as provided 5 by paragraph (b), or 6 (b) if the employer satisfies the Court that it would be 7 impracticable to reinstate the employee--the Court may 8 order the employer to pay to the employee an amount of 9 compensation determined by the Court to be appropriate in 10 the circumstances (but not exceeding the amount of 11 remuneration the employee would have received but for 12 the dismissal in the period of 6 months following the 13 dismissal). 14 (6) If the Industrial Court of NSW orders reinstatement under this 15 section, it may order that the period of employment of the 16 applicant with the employer is taken not to have been broken by 17 the dismissal. 18 (7) An application under this section may be made regardless of 19 whether the employer has been convicted of an offence against 20 section 23. 21 (8) The Industrial Court of NSW must not make an order on an 22 application under this section if: 23 (a) another Act or a statutory instrument provides for redress 24 to the employee in relation to the dismissal, and 25 (b) the employee has commenced proceedings under the other 26 Act or instrument or has not lodged a written undertaking 27 not to proceed under the other Act or instrument. 28 (9) In any proceedings under this section, if an employee establishes 29 that a matter referred to in section 23 (1) (a), (b) or (c) occurred 30 or existed before the employee's dismissal, it is presumed that the 31 employee was dismissed because of that matter. That 32 presumption is rebutted if the employer satisfies the Industrial 33 Court of NSW that the matter was not a substantial and operative 34 cause of the dismissal. 35 Note. Appeals against a decision of the Industrial Court of NSW under 36 this section are dealt with under Part 7 of Chapter 4 of the Industrial 37 Relations Act 1996. 38 Page 8

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 [20] Section 26 1 Omit the section. Insert instead: 2 26 Liability of officers of corporations 3 (1) If: 4 (a) a corporation contravenes a provision of this Act or the 5 regulations, and 6 (b) a contravention of the provision is an offence, and 7 (c) the contravention by the corporation is attributable to an 8 officer of the corporation failing to take reasonable care, 9 the officer is guilty of an offence. 10 Maximum penalty: the same maximum penalty that is applicable 11 to contraventions of the provision by individuals. 12 (2) In determining whether a contravention by a corporation is 13 attributable to an officer of the corporation failing to take 14 reasonable care, regard must be had to the following: 15 (a) what the officer knew about the matter concerned, 16 (b) the extent of the officer's ability to make, or participate in 17 the making of, decisions that affect the corporation in 18 relation to the matter concerned, 19 (c) whether the contravention by the corporation is also 20 attributable to an act or omission of any other person, 21 (d) any other relevant matter. 22 (3) An officer of a corporation who is a volunteer is not liable to be 23 prosecuted under this section for anything done or omitted to be 24 done by the officer as a volunteer. 25 (4) An officer of a corporation may be proceeded against and 26 convicted of an offence under subsection (1) whether or not the 27 corporation has been proceeded against or has been convicted of 28 an offence in relation to the contravention. 29 (5) Nothing in this section affects any liability imposed on a 30 corporation for a contravention of the provision concerned. 31 (6) In this section: 32 contravene means contravene by act or omission. 33 corporation means any body corporate (including a body 34 corporate representing the Crown). 35 officer of a corporation has the same meaning as it has in section 36 9 of the Corporations Act 2001 of the Commonwealth. For that 37 Page 9

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 purpose, section 9 applies as if a reference to a corporation were 1 a reference to a corporation within the meaning of this section. 2 volunteer means a person who is acting on a voluntary basis, 3 regardless of whether the person receives out-of-pocket 4 expenses. 5 [21] Section 27A 6 Insert after section 27: 7 27A Clothing outworkers--applied duties 8 (1) This section applies for the purposes of: 9 (a) section 8 (Duties of employers), and 10 (b) Part 2, Division 2 (Duty to consult), and 11 (c) section 20 (Duties of employees) and section 23 (Unlawful 12 dismissal or other victimisation of employee), and 13 (d) any other provision of this Act prescribed by the 14 regulations. 15 (2) If the regulations so require: 16 (a) a reference to an employee includes a reference to a 17 clothing outworker engaged by an employer and any 18 employees of the outworker, and 19 (b) the duties of an employer extend to a clothing outworker 20 engaged by the employer, and any employees of the 21 outworker, but only in relation to matters over which the 22 employer has control or would have control if not for any 23 agreement purporting to limit or remove that control. 24 (3) A provision of this Act that applies in relation to a clothing 25 outworker or employer because of this section applies with such 26 modifications as are prescribed by the regulations. 27 (4) In this section: 28 clothing outworker means a person described in clause 1 (f) of 29 Schedule 1 to the Industrial Relations Act 1996 as an employee. 30 employer means a person described in clause 1 (f) of Schedule 1 31 to the Industrial Relations Act 1996 as an employer. 32 [22] Section 28 Defence 33 Omit the section. 34 Page 10

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 [23] Section 32A Reckless conduct causing death at workplace by person 1 with OHS duties 2 Omit section 32A (6). Insert instead: 3 (6) Section 26 does not apply to an offence against this section. 4 However, this does not prevent an officer of a corporation from 5 being prosecuted under this section for an offence committed by 6 the officer. 7 [24] Section 32B Prosecution for offences under this Part 8 Omit "by an inspector" from section 32B (2). Insert instead "by WorkCover". 9 [25] Section 32B (4) 10 Omit the subsection. 11 [26] Part 4, heading 12 Omit the heading. Insert instead: 13 Part 4 Industry codes of practice, guidelines and 14 compliance advice 15 Division 1 Industry codes of practice 16 [27] Section 40 Purpose of industry codes of practice 17 Insert "in particular industries" after "employers and others". 18 [28] Section 45 Amendment or revocation of codes 19 Omit "Part". Insert instead "Division". 20 [29] Part 4, Divisions 2 and 3 21 Insert after section 46: 22 Division 2 Guidelines 23 46A Purpose of guidelines 24 The purpose of a guideline is to provide practical guidance to 25 employers and others who have duties under this Act or the 26 regulations about complying with those duties. 27 Page 11

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 46B Guidelines 1 (1) WorkCover may, in accordance with this Division, make 2 guidelines on the way in which: 3 (a) a provision of this Act or the regulations would, in 4 WorkCover's opinion, apply to a class of persons or to a 5 set of circumstances, or 6 (b) a discretion of WorkCover under a provision of this Act or 7 the regulations would be exercised. 8 (2) If WorkCover proposes to make guidelines, it must: 9 (a) publish notice of the proposed guidelines in the Gazette 10 and on WorkCover's internet website, and 11 (b) include in the notice a statement that written submissions 12 or comments on the proposed guidelines may be made to 13 WorkCover by a specified date, and 14 (c) provide a copy of the notice to the Workers Compensation 15 and Workplace Occupational Health and Safety Council 16 (or the Mine Safety Advisory Council if in connection with 17 the application of this section to a mine), and 18 (d) give a copy of the proposed guidelines to each person who 19 requests it before that specified date. 20 (3) After considering any submissions and comments received by 21 WorkCover by the specified date, WorkCover may make the 22 guidelines (with or without modifications) by causing them to be 23 published in the Gazette as guidelines under this Division. 24 46C Amendment or revocation of guidelines 25 Guidelines made under this Division may be amended or revoked 26 by publishing notice of the amendment or revocation, providing 27 copies of the notice and considering any comments or 28 submissions with respect to the notice in accordance with the 29 procedures in section 46B for the making guidelines. 30 46D Use of guidelines and liability 31 (1) Guidelines made by Workcover are not admissible in evidence in 32 any proceedings for an offence against this Act or the regulations. 33 (2) Guidelines made by Workcover do not give rise to: 34 (a) any liability of, or other claim against, WorkCover, or 35 Page 12

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 (b) any right, expectation, duty or obligation that would not 1 otherwise be conferred or imposed on a person, or 2 (c) any defence that would not otherwise be available to that 3 person. 4 Division 3 Compliance advice 5 46E Purpose of compliance advice 6 The purpose of compliance advice is to provide practical 7 guidance to specific employers and others who have duties under 8 this Act or the regulations about complying with those duties. 9 46F Compliance advice 10 (1) WorkCover may give advice to a person who has a duty under 11 this Act or the regulations about complying with that duty. 12 (2) WorkCover's power under this section to give compliance advice 13 may also be exercised by an inspector or, if WorkCover 14 authorises any other person to exercise the power, that other 15 person. 16 (3) If compliance advice is given to a person under this section in 17 written form, a copy of the advice must also be given to an OHS 18 committee or OHS representative representing employees 19 affected by the advice. 20 46G Use of compliance advice and liability 21 (1) Compliance advice given by Workcover is not admissible in 22 evidence in any proceedings for an offence against this Act or the 23 regulations. 24 (2) Compliance advice given by Workcover does not give rise to: 25 (a) any liability of, or other claim against, WorkCover, or 26 (b) any right, expectation, duty or obligation that would not 27 otherwise be conferred or imposed on a person, or 28 (c) any defence that would not otherwise be available to that 29 person. 30 (3) An inspector, or any other person exercising WorkCover's power 31 to give compliance advice, is not liable for any thing done or 32 omitted to be done in good faith. 33 Page 13

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 [30] Section 62 Power of inspectors to obtain information, documents and 1 evidence 2 Insert "(by answering questions or otherwise furnishing information)" after 3 "evidence" in section 62 (1) (c). 4 [31] Section 62 (2A) 5 Insert after section 62 (2): 6 (2A) An inspector may record oral evidence given by a person under 7 this section (by means of an audio, video or other recording). The 8 consent of the person to the recording is not required if the person 9 is informed beforehand that the evidence will be recorded. 10 [32] Section 71 Powers supporting taking of things 11 Insert ", without reasonable excuse," after "must not" in section 71 (3). 12 [33] Section 75A 13 Insert after section 75: 14 75A Service of notices 15 Section 101 applies to the service of notices under this Division. 16 [34] Part 5, Division 3 17 Omit the heading to the Division. Insert instead: 18 Division 3 Entry and inspection powers of authorised 19 employees' representatives--suspected 20 breach 21 [35] Section 77 Powers of entry of places of work 22 Insert at the end of the section: 23 (2) Any dispute about the entitlement of an authorised representative 24 to enter any premises under this section may, if WorkCover is 25 unable to resolve the dispute, be referred to the Industrial 26 Relations Commission by any party to the dispute. The 27 Commission may make such order as it considers appropriate for 28 the resolution of the dispute in accordance the rights and 29 obligations of the parties under this section. 30 Note. See section 136 for offence if person obstructs, hinders or 31 impedes lawful entry. 32 Page 14

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 [36] Section 83A 1 Insert after section 83: 2 83A Misuse of powers by authorised representative 3 (1) An authorised representative who enters premises under this 4 Division must not deliberately hinder or obstruct the occupier of 5 the premises or the persons at the premises during their working 6 time. 7 Maximum penalty: 100 penalty units. 8 (2) The power of the Industrial Registrar under section 299 (4) of the 9 Industrial Relations Act 1996 to revoke an authority extends to 10 any contravention of subsection (1) by the authorised 11 representative or to any other improper action of the authorised 12 representative in exercising a power under this Division. 13 [37] Part 5, Division 3A 14 Insert after section 85: 15 Division 3A Entry powers of authorised employees' 16 representatives--health and safety 17 discussions 18 85A Definition 19 In this Division: 20 authorised representative of an industrial organisation of 21 employees, means an officer of that organisation (including any 22 person who is concerned in, or takes part in, the management of 23 that organisation) who is authorised under Part 7 of Chapter 5 of 24 the Industrial Relations Act 1996. 25 85B Powers of entry of places of work for discussing occupational 26 health and safety 27 (1) An authorised representative of an industrial organisation of 28 employees may enter any premises the representative has reason 29 to believe is a place of work where members of that organisation 30 (or persons who are eligible to be members of that organisation) 31 work for the purpose of discussing matters relating to 32 occupational health and safety. 33 (2) After entering the place of work, the authorised representative 34 may discuss matters relating to occupational health and safety at 35 that place with any such member (or person) who wishes to take 36 part in such a discussion. 37 Page 15

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 (3) Any such discussion may take place only when the member or 1 person is on a work break (including a meal break). 2 85C Notice of entry 3 An authorised representative authorised to enter premises under 4 this Division must give the occupier of the place of work written 5 notice of the entry and the reasons for the entry at least 24 hours 6 before entering the premises. 7 85D Application of other provisions concerning entry powers 8 Sections 79, 80, 82, 83, 83A and 85 apply in respect of an entry 9 to premises under this Division in the same way that those 10 sections apply in respect of an entry to premises under Division 3. 11 Note. See section 136 for offence if person obstructs, hinders or 12 impedes lawful entry. 13 [38] Section 86 Notification of incidents 14 Insert "(unless the occupier has a reasonable excuse for not doing so)" after 15 "following incidents" in section 86 (1). 16 [39] Section 90 Offence: failure to comply with investigation notice 17 Insert "(unless the occupier has a reasonable excuse for not doing so)" after 18 "must". 19 [40] Section 91 Issue of improvement notices 20 Insert after section 91 (4): 21 (5) An inspector who issues an improvement notice is to give a copy 22 of the notice to the chairperson of an OHS committee or (if there 23 is no committee) to an OHS representative representing 24 employees affected by the notice. The notice may also be given 25 to any other person representing the employees as the inspector 26 considers appropriate. 27 [41] Section 93 Issue of prohibition notices 28 Insert after section 93 (2): 29 (3) An inspector who issues a prohibition notice is to give a copy of 30 the notice to the chairperson of an OHS committee or (if there is 31 no committee) to an OHS representative representing employees 32 affected by the notice. The notice may also be given to any other 33 person representing the employees as the inspector considers 34 appropriate. 35 Page 16

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 [42] Section 102 Exhibition of notices 1 Insert ", without reasonable excuse," after "must not" in section 102 (2). 2 [43] Part 6, Division 5 3 Insert after section 103: 4 Division 5 Undertakings 5 103A WorkCover may accept undertakings 6 (1) WorkCover may accept a written undertaking given by a person 7 to remedy a contravention or alleged contravention of this Act 8 (except section 32A) or the regulations by the person or to take 9 action to prevent any such further contravention by the person. 10 (2) WorkCover may accept the undertaking by giving the person 11 notice in writing of its acceptance of the undertaking. 12 Note. Proceedings against the person for the contravention concerned 13 is stayed if an undertaking given by the person is accepted - see section 14 103C. 15 (3) The person who has given an undertaking may, at any time, vary 16 the undertaking with the written acceptance of WorkCover. 17 (4) WorkCover must lodge an undertaking (or variation) that it has 18 accepted with the Registry of the Industrial Court of NSW within 19 7 days of that acceptance. 20 (5) Information relating to undertakings that have been accepted by 21 WorkCover is to be publicly accessible on WorkCover's website. 22 103B Withdrawal of undertaking 23 (1) The person who has given an undertaking may, at any time, 24 withdraw the undertaking with the written consent of 25 WorkCover. 26 (2) If WorkCover is satisfied that a person has contravened an 27 undertaking given by the person, WorkCover may withdraw the 28 undertaking by notice in writing to the person. 29 Note. The withdrawal of the undertaking enables proceedings to be 30 taken against the person for the offence concerned. An alternative to 31 withdrawal of the undertaking, is proceedings in the Industrial Court to 32 enforce the undertaking under section 103D (1) and (2). Whether or not 33 the undertaking is withdrawn, action may be taken in the Industrial Court 34 to penalise the breach of the undertaking - section 103D (3). 35 Page 17

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 103C No proceedings for offence where undertaking in force 1 (1) Proceedings for an offence against this Act or the regulations 2 cannot be instituted or continued against a person in respect of the 3 contravention or alleged contravention to which an undertaking 4 that has been accepted under section 103A relates, unless the 5 undertaking has been duly withdrawn under section 103B. 6 (2) A court before which any such proceedings are taken may, for the 7 purposes of those proceedings, determine whether an 8 undertaking relates to the proceedings and whether any such 9 undertaking had been contravened and duly withdrawn by 10 WorkCover. 11 (3) The period within which any such proceedings may be taken 12 following the withdrawal of an undertaking is extended by the 13 period during with the undertaking remained in force. 14 103D Enforcement of undertakings 15 (1) If an undertaking has been lodged with the Registry of the 16 Industrial Court of NSW, Workcover may enforce the 17 undertaking as if it were an order of that Court. 18 (2) If the Industrial Court of NSW is satisfied that the person who 19 gave the undertaking has contravened the undertaking, the Court 20 may make any one or more of the following orders: 21 (a) an order that the person must comply with the undertaking 22 or take specified action to comply with the undertaking, 23 (b) any other order the Court considers appropriate to remedy 24 the contravention of the undertaking. 25 (3) In addition, WorkCover may take proceedings in the Industrial 26 Court of NSW for the contravention of the undertaking as if it 27 were an order of that Court. Any such proceedings may be taken 28 whether or not the undertaking has been withdrawn. 29 103E Admissibility of evidence relating to undertakings 30 (1) Except as provided by this section, evidence concerning an 31 undertaking under this Division (including negotiations relating 32 to an undertaking, whether or not an undertaking is entered into) 33 is not admissible in any criminal or civil proceedings before any 34 court or tribunal. 35 (2) Any such evidence is admissible in connection with the 36 following: 37 (a) proceedings for a contravention of the undertaking, 38 (b) proceedings to enforce the undertaking, 39 Page 18

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 (c) proceedings relating to the entering into of the 1 undertaking. 2 (3) To avoid doubt, any such evidence is not admissible in 3 proceedings for the offence to which the undertaking (or 4 negotiations) relate in the event that the undertaking is withdrawn 5 or not finally entered into. 6 [44] Part 6A 7 Insert after Part 6: 8 Part 6A Safety recommendation notices 9 103F Employee safety representatives 10 (1) For the purposes of this Part, an employee safety representative 11 is a person authorised under this section to issue safety 12 recommendation notices. 13 (2) The following persons are authorised to issue safety 14 recommendation notices: 15 (a) the chairperson of an OHS committee for the purposes of 16 protecting employees represented by the committee, 17 (b) an OHS representative for the purposes of protecting 18 employees represented by that OHS representative (being 19 employees not represented by an OHS committee). 20 (3) A person is not authorised to issue safety recommendation 21 notices unless the person has undertaken a course of training 22 approved by WorkCover for the purposes of this Part. 23 (4) A person is not authorised to issue safety recommendation 24 notices if the person's authority is withdrawn under section 103J. 25 103G Issue of safety recommendation notices 26 (1) If an employee safety representative believes on reasonable 27 grounds that an employer: 28 (a) is contravening a provision of this Act or the regulations; 29 or 30 (b) has contravened such a provision in circumstances that 31 make it likely that the contravention will continue or be 32 repeated, 33 the employee safety representative may issue to the employer a 34 safety recommendation notice that makes recommendations to 35 the employer about remedying the contravention or the matters 36 Page 19

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 occasioning it within the period specified in the notice (being a 1 period of at least 8 days after the issue of the notice). 2 (2) A safety recommendation notice may only be issued in respect of 3 the contravention of a provision that directly affects the health or 4 safety of the employees for whose protection the employee safety 5 representative is authorised to issue the notice. 6 Note. Section 103F (2) describes the relevant employees for whose 7 protection the representative is authorised to issue notices. 8 (3) A safety recommendation notice may not be issued until the 9 employee safety representative has consulted the employer (or a 10 representative of the employer), in accordance with applicable 11 consultation arrangements established at the place of work, about 12 remedying the contravention or the matters occasioning it and has 13 given the employer a reasonable opportunity to remedy the 14 contravention or matters. 15 (4) A safety recommendation notice must: 16 (a) state the employee safety representative's belief on which 17 the issue of the notice is based, and 18 (b) state the grounds for that belief, and 19 (c) specify the provision of this Act or the regulations in 20 respect of which that belief is held, and 21 (d) include information about the employer's right to seek a 22 review of the notice by an inspector, and 23 (e) be in a form approved by WorkCover. 24 (5) A safety recommendation notice may include recommendations 25 as to the measures to be taken to remedy the contravention or 26 matters occasioning it. A recommendation may: 27 (a) adopt by reference, the requirements of any industry or 28 other code of practice or standard, and 29 (b) suggest to the employer a choice of ways in which to 30 remedy the contravention or matter. 31 103H Request for attendance of inspector at place of work to determine 32 whether safety recommendation notice should be confirmed 33 (1) An employer to whom a safety recommendation notice has been 34 issued may, within 7 days after the issue of the notice, request 35 WorkCover to arrange for an inspector to attend at the place of 36 work to inquire into the matter if the employer does not accept the 37 recommendations of the notice. 38 Page 20

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 (2) If the employer does not make such a request within that period, 1 the employee safety representative who issued the notice may 2 request WorkCover to arrange for an inspector to attend at the 3 place of work to inquire into the matter if the representative 4 believes on reasonable grounds that the employer has not 5 remedied the contravention or matter to which the notice relates. 6 (3) WorkCover must ensure that an inspector attends the place of 7 work as soon as possible after a request is made under this section 8 (but in any case within 14 days after the request is made). 9 (4) The inspector must, as soon as possible: 10 (a) inquire into the contravention or matter to which the safety 11 recommendation notice relates, and 12 (b) determine whether or not to confirm the notice. 13 (5) If the inspector determines to confirm the notice, the inspector 14 must issue an improvement or prohibition notice under Part 6 that 15 requires the employer to comply with the recommendations of 16 the notice (with or without variation). The requirements of the 17 improvement or prohibition notice replace the recommendations 18 of the safety recommendation notice. 19 Note. For failure to comply with a notice see sections 92 and 94 and for 20 rights of review and appeal see sections 96 and 97. 21 (6) If the inspector determines not to confirm the notice, the 22 inspector must withdraw the notice and notify the employee 23 safety representative and the employer in writing of the 24 withdrawal of the notice. The notification must set out the 25 reasons for the inspector's determination. 26 Note. An inspector attending a place of work may also provide 27 compliance advice under Division 3 of Part 4. 28 (7) A further safety recommendation notice cannot be issued to 29 remedy the same contravention or the same matters occasioning 30 it. 31 103I Review and appeal against decision of inspector to withdraw 32 safety recommendation notice 33 (1) An employee safety representative may apply in writing to 34 WorkCover for a review of the determination of the inspector to 35 withdraw a safety recommendation notice issued by that 36 representative. 37 (2) An application must be made within 7 days after the notice is 38 withdrawn or, if the regulations prescribe a different period, 39 within the period so prescribed. An application for review may be 40 made only once in respect of any particular notice. 41 Page 21

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 (3) WorkCover is to review the determination of the inspector that is 1 the subject of a duly made application for review and may: 2 (a) confirm the determination of the inspector, or 3 (b) revoke the withdrawal of the safety recommendation 4 notice and exercise the powers of the inspector to issue an 5 improvement notice or prohibition notice in respect of the 6 contravention or matter. 7 (4) An applicant for review who is not satisfied with a decision of 8 WorkCover to confirm the determination of the inspector to 9 withdraw the safety recommendation notice may appeal against 10 the determination of the inspector to a Local Court constituted by 11 an Industrial Magistrate sitting alone. 12 (5) The Local Court may, on the appeal: 13 (a) confirm the determination of the inspector, or 14 (b) revoke the withdrawal of the safety recommendation 15 notice and refer the matter back to WorkCover to 16 determine under subsection (3) having regard to the 17 matters raised in the appeal. 18 (6) An improvement notice or prohibition notice issued by 19 WorkCover in accordance with this section is taken to be a such 20 a notice issued by an inspector under this Act, except that an 21 application to WorkCover by the employer for review of the 22 notice under section 96 is not available. 23 103J Misuse of powers of employee safety representative 24 (1) An employee safety representative must not misuse the powers 25 conferred by this Part. 26 Maximum penalty: 27 (a) in the case of a previous offender--45 penalty units, or 28 (b) in any other case--30 penalty units. 29 (2) WorkCover may, by notice in writing to a person, withdraw the 30 authority conferred on the person by section 103F to issue safety 31 recommendation notices if it is satisfied the person has misused 32 the powers conferred by this Part. WorkCover may, by a similar 33 notice, restore that authority. 34 (3) For the purposes of this section, a person misuses the powers 35 conferred by this Part if the person's use of those powers is not a 36 genuine use of those powers for the protection of the health and 37 safety of the employees concerned or if the person's use of those 38 Page 22

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 powers is excessive or otherwise unreasonable in the 1 circumstances. 2 103K Provisions relating to safety recommendation notices 3 (1) A safety recommendation notice may be withdrawn at any time 4 by the employee safety representative who issued it. The 5 withdrawal has effect when notification of the withdrawal is 6 given in writing to the employer concerned. 7 (2) A safety recommendation notice (including notification of the 8 withdrawal of such a notice) may be issued or given to an 9 employer by delivering it personally to the employer or to a 10 representative of the employer at the place of work concerned. 11 (3) The issue or withdrawal of a safety recommendation notice does 12 not affect any proceedings for an offence against this Act or the 13 regulations in connection with any matter in respect of which the 14 notice was issued. 15 103L Regulations 16 The regulations may make further provision with respect to 17 safety recommendation notices under this Part and, in particular, 18 for or with respect to: 19 (a) the training of employee safety representatives, and 20 (b) the exhibition or service of a safety recommendation 21 notice. 22 [45] Section 106 Authority to prosecute 23 Omit section 106 (c). Insert instead: 24 (c) by WorkCover, or 25 [46] Section 133 Application of Act to mines: references to WorkCover 26 Omit "Part 4 (Industry codes of practice), and section 114 (Orders regarding 27 costs and expenses of investigation)." from the note. 28 Insert instead "Part 4 (Industry codes of practice, guidelines and compliance 29 advice), Division 5 (Undertakings) of Part 6, section 106 (c) (Authority to 30 prosecute), section 114 (Orders regarding costs and expenses of investigation) 31 and section 136B (Disclosure of information by WorkCover)." 32 [47] Section 135 Plant affecting public safety--extension of Act 33 Omit "Part 4 (Industry codes of practice)" from section 135 (2) (b). 34 Insert instead "Part 4 (Industry codes of practice, guidelines and compliance 35 advice)". 36 Page 23

Occupational Health and Safety Amendment Bill 2007 Schedule 1 Amendment of Occupational Health and Safety Act 2000 [48] Section 135A Dangerous goods - extension of Act 1 Omit "Part 4 (Industry codes of practice)" from section 135A (3) (b). 2 Insert instead "Part 4 (Industry codes of practice, guidelines and compliance 3 advice)". 4 [49] Section 136 Offence of obstructing or intimidating inspectors and others 5 exercising functions under Act 6 Insert ", without reasonable excuse," after "must not" in section 136 (1). 7 [50] Sections 136A�136B 8 Insert after section 136: 9 136A Fraud and false claims relating to occupational health and safety 10 (1) A person who, by deception, obtains, or attempts to obtain, for 11 himself or herself (or for another person) any financial advantage 12 in connection with any authority conferred by or under this Act 13 on the person (or other person) is guilty of an offence if the 14 person knows or has reason to believe that the person (or other 15 person) did not have that authority. 16 Maximum penalty: 500 penalty units or imprisonment for 2 17 years, or both. 18 (2) A person who holds himself or herself out as having an 19 accreditation, licence or other authorisation conferred by or under 20 this Act is guilty of an offence if the person does not have, and is 21 aware that he or she does not have, that authorisation. 22 Maximum penalty: 70 penalty units. 23 (3) In this section: 24 deception means any deception, by words or conduct, as to fact 25 or law, including the making of a statement or the production of 26 a document that is false or misleading. 27 136B Disclosure of information by WorkCover 28 (1) WorkCover may communicate any matter which comes to its 29 knowledge in the exercise of its functions under this Act: 30 (a) to an officer or authority engaged in administering or 31 executing a law of New South Wales, of the 32 Commonwealth or of another State or a Territory relating 33 to occupational health and safety, and 34 Page 24

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Act 2000 Schedule 1 (b) to any other public officer or authority (of this or any other 1 jurisdiction) prescribed by the regulations. 2 (2) In this section: 3 this Act includes the Occupational Health and Safety Act 1983. 4 [51] Schedule 3 Savings, transitional and other provisions 5 Insert at the end of clause 1 (1): 6 Occupational Health and Safety Amendment Act 2007 7 Page 25

Occupational Health and Safety Amendment Bill 2007 Schedule 2 Amendment of Workplace Injury Management and Workers Compensation Act 1998 Schedule 2 Amendment of Workplace Injury 1 Management and Workers 2 Compensation Act 1998 3 (Section 4) 4 [1] Section 22 General functions of the Authority 5 Insert after section 22 (1) (d1): 6 (d2) to provide advice and information to employers, workers 7 and others about the occupational health and safety 8 legislation and the workers compensation legislation, 9 [2] Section 23 Specific functions 10 Insert after section 23 (1) (n): 11 (n1) to ensure that as part of its advisory services, the 12 Authority: 13 (i) disseminates information about the duties, 14 obligations and rights of persons under the 15 occupational health and safety legislation and 16 provides guidance for the purpose of assisting 17 persons to comply with their duties and obligations, 18 and 19 (ii) initiates or promotes events such as conferences and 20 forums, and the publication of information, relating 21 to occupational health, safety and welfare, and 22 (iii) engages in, promotes and co-ordinates the sharing 23 of information to achieve the objects of the 24 occupational health and safety legislation, and 25 (iv) promotes public awareness and discussion of 26 occupational health, safety and welfare issues and 27 an understanding and acceptance of the principles of 28 health and safety protection, and 29 (v) develops and implements programs to provide 30 incentives for employers to implement measures to 31 eliminate or reduce risks to health or safety; and to 32 otherwise improve occupational health, safety and 33 welfare. 34 Page 26

Occupational Health and Safety Amendment Bill 2007 Amendment of Industrial Relations Act 1996 Schedule 3 Schedule 3 Amendment of Industrial Relations Act 1 1996 2 (Section 5) 3 [1] Section 196 Appeals from and references by members of Commission in 4 criminal proceedings 5 Insert after section 196 (2): 6 (2A) In addition, section 5F of the Criminal Appeal Act 1912 applies 7 to any such appeal against an interlocutory judgment or order in 8 the same way as it applies to an appeal to the Court of Criminal 9 Appeal in respect of proceedings for the prosecution of offenders 10 on indictment in the Supreme Court. 11 [2] Section 196 (3) 12 Insert "or (2A)" after "subsection (2)". 13 [3] Section 197A Appeals against acquittals in proceedings for offences 14 against occupational health and safety legislation 15 Omit the section. 16 Page 27

Occupational Health and Safety Amendment Bill 2007 Schedule 4 Amendment of Crimes (Sentencing Procedure) Act 1999 Schedule 4 Amendment of Crimes (Sentencing 1 Procedure) Act 1999 2 (Section 6) 3 Section 27 Application of Division 4 Insert ", or against Part 2A," after "Part 2" in section 27 (2A) (a). 5 Page 28

Occupational Health and Safety Amendment Bill 2007 Amendment of Fines Act 1996 Schedule 5 Schedule 5 Amendment of Fines Act 1996 1 (Section 7) 2 [1] Section 117A Disclosure of information by State Debt Recovery Office 3 Insert at the end of section 117A (1) (c): 4 , or 5 (d) to WorkCover for the purposes of subsection (3A). 6 [2] Section 117A (3A) 7 Insert after section 117A (3): 8 (3A) If a fine has been imposed for an offence under the Occupational 9 Health and Safety Act 2000 and a person died as a result of the 10 commission of the offence: 11 (a) information may be disclosed to WorkCover about 12 whether the fine has been paid or is outstanding (in whole 13 or in part), and 14 (b) WorkCover may disclose that information, on request, to 15 the next of kin of the deceased. 16 Page 29

Occupational Health and Safety Amendment Bill 2007 Schedule 6 Amendment of mine safety legislation Schedule 6 Amendment of mine safety legislation 1 (Section 8) 2 6.1 Coal Mine Health and Safety Act 2002 No 129 3 [1] Section 3 Definitions 4 Omit "Mineral Resources" from the definition of Department. 5 Insert instead "Primary Industries". 6 [2] Section 150 Bringing concerns regarding health, safety or welfare to the 7 attention of operators 8 Omit the section. 9 6.2 Mine Health and Safety Act 2004 No 74 10 [1] Section 3 Definitions 11 Omit "Mineral Resources" from the definition of Department in section 3 (1). 12 Insert instead "Primary Industries". 13 [2] Section 131 Bringing concerns regarding health, safety or welfare to the 14 attention of operators 15 Omit the section. 16 Page 30

Occupational Health and Safety Amendment Bill 2007 Amendment of Occupational Health and Safety Regulation 2001 Schedule 7 Schedule 7 Amendment of Occupational Health and 1 Safety Regulation 2001 2 (Section 9) 3 [1] Clause 6 Application of provisions providing for alternative duties if 4 primary duty not reasonably practicable 5 Omit the note to the clause. Insert instead: 6 Note. Clause 6A provides that the alternative duty applies only so far as 7 is reasonably practicable. 8 [2] Clause 6A 9 Insert after clause 6: 10 6A Duties to apply so far as is reasonably practicable 11 (1) If a provision of this Regulation imposes a duty to take or refrain 12 from taking any action for the protection of health or safety, the 13 duty applies only so far as is reasonably practicable to take or 14 refrain from taking that action. 15 (2) Subclause (1) extends to provisions of this Regulation made 16 under section 135 or 135A for the protection of public health or 17 safety. 18 [3] Clauses 357 and 358 and clauses 10 and 12 of Schedule 4 19 Omit "Department of Mineral Resources" wherever occurring. 20 Insert instead "Department of Primary Industries". 21 [4] Clause 358 Application of Act to mines: references to WorkCover 22 Omit clause 358 (1) (a1)�(b). Insert instead: 23 (a) section 17A (Determination by inspector of unresolved 24 matters concerning consultation arrangements), 25 (b) section 32B (3) (Reasons for non-prosecution of offence), 26 (c) Part 4 (Industry codes of practice, guidelines and 27 compliance advice), 28 (d) section 106 (c) (Authority to prosecute), 29 (e) Division 5 (Undertakings) of Part 6, 30 (f) Part 6A (Safety recommendation notices), 31 Page 31

Occupational Health and Safety Amendment Bill 2007 Schedule 7 Amendment of Occupational Health and Safety Regulation 2001 (g) section 114 (Orders regarding costs and expenses of 1 investigation), 2 (h) section 136B (Disclosure of information by WorkCover), 3 (i) section 77 (2). 4 Page 32

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