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WORK HEALTH AND SAFETY ACT 2011 - As at 5 December 2023 - Act 10 of 2011

- As at 5 December 2023 - Act 10 of 2011

Table of Provisions

PART 1 - PRELIMINARY

Division 1 - Introduction

  • 1 Name of Act
  • 2 Commencement

Division 2 - Object

  • 3 Object

Division 3 - Interpretation

Subdivision 1 - Definitions
  • 4 Definitions
  • Subdivision 2 - Other important terms 4A. (Repealed)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

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

Division 2 - Primary duty of care

  • 19 Primary duty of care

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
  • 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures

Division 4 - Duty of officers, workers and other persons

  • 27 Duty of officers
  • 28 Duties of workers
  • 29 Duties of other persons at the workplace

Division 5 - Offences and penalties

Note
  • 30 Health and safety duty
  • 31 Gross negligence or reckless conduct--Category 1
  • 32 Failure to comply with health and safety duty--Category 2
  • 33 Failure to comply with health and safety duty--Category 3
  • 34 Exceptions
  • 34A Exception for police responding to particular active armed offender incidents

PART 3 - INCIDENT NOTIFICATION

  • 35 What is a "notifiable incident"
  • 36 What is a "serious injury or illness"
  • 37 What is a "dangerous incident"
  • 38 Duty to notify of notifiable incidents
  • 39 Duty to preserve incident sites

PART 4 - AUTHORISATIONS

  • 40 Meaning of "authorised"
  • 41 Requirements for authorisation of workplaces
  • 42 Requirements for authorisation of plant or substance
  • 43 Requirements for authorisation of work
  • 44 Requirements for prescribed qualifications or experience
  • 45 Requirement to comply with conditions of authorisation

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

Division 2 - Consultation with workers

  • 47 Duty to consult workers
  • 48 Nature of consultation
  • 49 When consultation is required

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
  • 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

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

Division 5 - Issue resolution

  • 80 Parties to an issue
  • 81 Resolution of health and safety issues
  • 82 Referral of issue to regulator for resolution by inspector

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

Division 8 - Part not to apply to prisoners

  • 103 Part does not apply to prisoners

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

Division 2 - Criminal proceedings in relation to discriminatory conduct

  • 110 Proof of discriminatory conduct
  • 111 Order for compensation or reinstatement

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
  • 113 Procedure for civil actions for discriminatory conduct

Division 4 - General

  • 114 General provisions relating to orders
  • 115 Prohibition of multiple actions

PART 7 - WORKPLACE ENTRY BY WHS ENTRY PERMIT HOLDERS

Note

Division 1 - Introductory

  • 116 Definitions

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

Division 3 - Entry to consult and advise workers

  • 121 Entry to consult and advise workers
  • 122 Notice of entry

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

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

Division 6 - Dealing with disputes

  • 141 Application for assistance of inspector to resolve dispute
  • 142 Authorising authority may deal with a dispute about a right of entry under this Act
  • 143 Contravening order made to deal with dispute

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

Division 8 - General

  • 149 Return of WHS entry permits
  • 150 Union to provide information to authorising authority
  • 151 Register of WHS entry permit holders

PART 8 - THE REGULATOR

Division 1 - Functions of regulator

  • 152 Functions of regulator
  • 153 Powers of regulator
  • 154 Delegation by regulator

Division 2 - Powers of regulator to obtain information

  • 155 Powers of regulator to obtain information
  • 155A Extraterritorial application
  • 155B Service of notices

PART 9 - SECURING COMPLIANCE

Division 1 - Appointment of inspectors

  • 156 Appointment of inspectors
  • 156A. (Repealed)
  • 157 Identity cards
  • 158 Accountability of inspectors
  • 159 Suspension and ending of appointment of inspectors

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. (Repealed)

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. (Repealed)
  • 166 Persons assisting inspectors
  • 166A. (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
  • 171A Giving of notices
  • 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

Division 4 - Damage and compensation

  • 182 Damage etc to be minimised
  • 183 Inspector to give notice of damage
  • 184 Compensation

Division 5 - Other matters

  • 185 Power to require name and address
  • 185A Recording of evidence
  • 186 Inspector may take affidavits
  • 187 Attendance of inspector at coronial inquests

Division 6 - Offences in relation to inspectors

  • 188 Offence to hinder or obstruct inspector
  • 189 Offence to impersonate inspector
  • 190 Offence to assault, threaten or intimidate inspector

PART 10 - ENFORCEMENT MEASURES

Division 1 - Improvement notices

  • 191 Issue of improvement notices
  • 192 Contents of improvement notices
  • 193 Compliance with improvement notice
  • 194 Extension of time for compliance with improvement notices

Division 2 - Prohibition notices

  • 195 Power to issue prohibition notice
  • 196 Contents of prohibition notice
  • 197 Compliance with prohibition notice

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

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

Division 5 - Remedial action

  • 211 When regulator may carry out action
  • 212 Power of the regulator to take other remedial action
  • 213 Costs of remedial or other action

Division 6 - Injunctions

  • 214 Application of Division
  • 215 Injunctions for noncompliance with notices

PART 11 - ENFORCEABLE UNDERTAKINGS

  • 216 Regulator may accept WHS undertakings
  • 217 Notice of decision and reasons for decision
  • 218 When a WHS undertaking is enforceable
  • 219 Compliance with WHS undertaking
  • 220 Contravention of WHS undertaking
  • 221 Withdrawal or variation of WHS undertaking
  • 222 Proceeding for alleged contravention

PART 12 - REVIEW OF DECISIONS

Division 1 - Reviewable decisions

  • 223 Which decisions are reviewable

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

Division 3 - External review

  • 229 Application for external review

PART 13 - LEGAL PROCEEDINGS

Division 1 - General matters

229A. (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
  • 233A Certificate evidence of certain matters

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

Division 2A - Penalty units

  • 242A Definitions
  • 242B Value of penalty unit
  • 242C Amount of penalties
  • 242D Notice of indexed penalties

Division 3 - Penalty notices

  • 243 Penalty notices

Division 4 - Offences by bodies corporate

  • 244 Definitions
  • 244A Imputing conduct to body corporate
  • 244B State of mind
  • 244C Mistake of fact
  • 244D Failure to take reasonable precautions

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

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

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

Division 8 - Civil liability not affected by this Act

  • 267 Civil liability not affected by this Act

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
  • 271B Provision of information from Health Secretary to regulator
  • 271C Dust Diseases Register
  • 271D SafeWork NSW must report to Minister
  • 271E SafeWork NSW to publish information on website
  • 271F National register of dust diseases
  • 272 No contracting out
  • 272A Prohibition on certain insurance or indemnity arrangements
  • 272B Liability of officers for offences by body corporate under section 272A
  • 273 Person not to levy workers

Division 1A - Silica worker registration

  • 273A Silica worker register
  • 273B Access to silica worker register

Division 2 - Codes of practice

  • 274 Approved codes of practice
  • 275 Use of codes of practice in proceedings

Division 3 - Regulation-making powers

  • 276 Regulation-making powers

Division 3A - Miscellaneous

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