Northern Territory Explanatory Statements

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WORKPLACE HEALTH AND SAFETY BILL 2007

Clause 1. Short title

The Act when passed will be cited as the Workplace Health and Safety Act.

Clause 2. Commencement

This Act commences on the date fixed by the Administrator by Gazette Notice.

Clause 3. Objects of Act

An object clause spells out what the Act aspires to achieve. It provides guidance to decision makers when interpreting the statue particularly for the Courts.

The Act defines what its objects are:

The objects of this Act include to achieve for the Northern Territory the highest possible standards of occupational health and safety; and to achieve a consistent, properly co-ordinated, and coherent approach to occupational health and safety by promoting community knowledge, awareness and understanding of the nature and importance of issues affecting occupational health and safety.

Clause 4. Definitions

Defines terms used in the Act, and, in particular, defines key terms such as worker, employer, officer, serious risk and significant injury.

For example the definition of worker is expanded to encompass all modern work place arrangements including precarious workers, and volunteers.

Clause 5. Meaning of reasonably practicable

Defines the meaning of reasonably practicable in regard to risk management and general duties.

Each employer has a duty to make the workplace safe so far as is practicable. Yet the factors which determine what is and what is not practicable were ill defined and poorly understood. The relevant factors are the:
· severity of the risk;
· state of knowledge about the risk;
· means of eliminating it;
· cost of doing so; and
· likelihood of the event occurring.

Clarifying the test of practicability and providing guidance on each of the factors will mean greater certainty for workplace parties and for the authority. The test will be what is reasonably practicable in the circumstances. This change will bring the Territory into line with existing practice and position of most other jurisdictions.

Clause 6. Act to bind the Territory and other jurisdictions

Provides that the Act binds the Territory and, to the extent that the legislative power of the Parliament permits, including the Territory and its instrumentalities and agencies; and all other jurisdictions and their instrumentalities and agencies for the purposes of the Act and regulations.

Allows for the continuation of the Work Health Authority.

Clause 8. Constitution of Authority

Sets out how the Authority is constituted and provides the capacity to acquire or incur, in its corporate name, any rights or obligations that may properly attach to a body corporate.

Clause 9. Functions and powers of Authority

Sets out the functions of the Work Health Authority under the Act.

Sub Clause (1) outlines the functions of the Authority in order to monitor standards of occupational health and safety in the Territory.

Sub Clause (2) gives the Authority all the powers that are reasonably necessary for effectively carrying out its functions under the Act or regulations.

Clause 10. Ministerial control

Provides for the Minister to control and direct the Authority.

Provides the power for the Authority to inquire into a work-related accident or any other matter relevant to the administration of this Act; or any other Act administered by the Authority.

Clause 12. Authority's powers of inquiry

Gives the power to the Authority for the purpose of an inquiry, to require a person to provide written answers to specified questions, or other specified written information within a time stated in the notice, and to produce at an inquiry any material in the witness's possession or control relating to the subject of the examination.

Clause 13. Conduct of examination

Sets out the method by which the Authority conducts an examination including the ability to require a witness to take an oath or affirmation, to answer all questions truthfully and to produce at the examination any relevant material in the witness's possession or control.

This clause also allows for the Authority to reimburse reasonable travelling expenses actually incurred by a witness who attends for examination before the Authority.

Sub Clause 4 gives the Authority the power to make a written transcript or audio recording (or both) made of oral evidence.

Clause 14. Non-compliance with notice or requirement

Makes it an offence for a person without reasonable excuse, to refuse or fail to comply with a notice or requirement under this Division.

Provides for the Authority to appoint workplace safety officers.

Sub Clause (2) provides that the appointment may be made on terms and conditions specified in the instrument of appointment.

Sub Clause (3) provides for the Executive Director to be a workplace safety officer.

Clause 16. Identity cards for workplace safety officers

Provides for the issue of identity cards to workplace safety officers. This provision adds transparency and accountability for officers carrying out their functions

Sub Clause (1) requires the Authority to issue an identity card to each officer containing a photograph of the officer and his or her signature.

Sub Clause (2) requires an officer to produce his or her identity card for inspection if asked to do so when performing a function or exercising a power under the Act or regulations.

Clause 17. Functions of workplace safety officer

Provides that the function of an officer is to carry out authorised investigations and give advice to employers and workers about how best to comply with their obligations under the Act.

The provision recognises stakeholder’s requests for increased advice. This section clarifies the role for workplace health and safety officers to undertake a greater advisory role and encouraging, facilitating and rewarding compliance or more importantly best practice in OHS. It is not, however, a consultation service.

Sub Clause (2) defines an authorised investigation and its purpose for example to monitor compliance with this Act, to investigate a work-related accident or a situation that could lead to a work-related accident; to audit records, to gather information or evidence relevant to this Act.

Places restrictions on the disclosure of information acquired in the course of employment or engagement except as reasonably required for the administration of this Act or the related Act.

Sub Clause (2) allows for disclosure when the disclosure is required by a court or an administrative authority with power to compel disclosure of information, the disclosure is made to a law enforcement agency or the information is already in the public domain.

Clause 19. Authority's power to disclose

Sets out the circumstances in which confidential information may be disclosed in the public interest.

Provides immunity from liability to the Authority, an officer, or other person engaged in the administration of this Act for an act or omission, in good faith, and in the exercise or purported exercise of powers or functions under this Act.

Sub Clause (2) provides that a civil liability that would, but for Sub Clause (1) attach to the Authority, an officer or other person, to be attached instead to the Territory.

Establishes the Workplace Health and Safety Advisory Council.

Clause 22. Functions of the Council

Sets out the functions of the Council such as to keep the operation of this Act under review; to make recommendations to the Minister on possible improvements to the administration of this Act, or standards of occupational health and safety in the Territory, to carry out investigations at the request of the Minister, into matters relevant to occupational health and safety and to report to the Minister on the results of the investigations.

Clause 23. Membership of Council

Establishes the membership of the new Workplace Health and Safety Advisory Council to consist of ten members representing employers, workers and the Executive Director (the Authority) in a tripartite advisory body reporting to the Minister on matters relating to OHS.

Sub Clause (2) provides that the membership of the Council must: include members with a wide range of experience extending as far as possible across all major industry sectors in the Territory and include representatives of organisations representing employers and representatives of organisations representing employees in equal or approximately equal numbers.

Sub Clause (3) sets out how the Minister must invite recommendations for appointment to the Council from interested organisations and persons and consider all recommendations made in response to the notice.

Clause 24. Terms and conditions of appointment

Sets out the term of appointment for a member of the Council as not exceeding two years with the member being eligible for re-appointment.

Sub Clauses (3) and (4) outline the condition under which a member ceases to be appointed or may be removed by the Minister.

Clause 25. Chair and Deputy Chair

Provides for the Minister to appoint a member of the Council to be the Chair and another member of the Council to be the Deputy Chair.

Clause 26. Meetings of Council

Sets out the processes for convening meetings, frequency of meetings and voting procedures.

Sub Clause (5) provides for the Council to keep records of its proceedings.

Clause 27. Council sub-committees

Provides for the Council to establish sub-committees as the Council considers necessary to assist in carrying out its functions under this Act. This section could, for example, allow for a mining industry specific advisory group to further the regulations under the National Mine Safety Framework in the Northern Territory context.

Sub Clause (2) provides that a sub-committee may consist entirely of Council members, partly of Council members and partly of members drawn from outside the Council or entirely of members drawn from outside the Council.

Sub Clause (3) provides for the Minister to determine the terms and conditions of appointment of a member of a sub-committee are to be determined by the Minister.

Sub Clause (4) sets out that the function of a sub-committee is to keep the operation of this Act in the relevant industry sector.

Clause 28. Annual report of Council

Provides for the Council to submit a report to the Minister covering the work of the Council, its sub-committees and the operation of the Act during the relevant financial year.

Sub Clauses (3) and (4) set out the conditions under which the Minister must table the report in the Legislative Assembly.

There is universal agreement that worker participation is a necessary condition of the effective regulation of workplace safety. This means that everyone who works at a workplace, not just the employees of the employer, but all workers at the worksite, must be able to participate in and be consulted about health and safety matters.

Clause 30. Duty to consult

The section sets out an employer's duty to consult with workers and requires that when doing certain things relating to health and safety, an employer must so far as is reasonably practicable consult with workers who are or are likely to be directly affected by the employer doing those things.

For example this clause requires an employer to consult certain workers when identifying or assessing hazards or risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer; and making decisions about the measures to be taken to control risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer.

The Authority will develop regulations to provide assistance to industry and workers relating to this division. Regulations will include how consultation could take place, the purpose of consultation and what consultation means.

Clause 31. When and how consultation is to take place

Sets out how and when to consult, including on risk identification and control, when changes to procedures, plant or materials might impact on OHS and when deciding on the adequacy of facilities for OHS of workers.

Sub Clause (1) requires the employer to involve workers when decisions are about to be made on issues related to occupational health and safety; share with workers, information available to the employer and be open to suggestions from workers; and in making decisions on such issues, take those suggestions into account.

Sub Clause (2) allows for workers to be assisted or represented in any such consultations by a health and safety representative or any other arrangements agreed between employers and workers.

Under Sub Clause (3) the employer however must not delay implementing risk management measures because of the duty to consult.

Clause 32. Worker’s reciprocal duty in regard to consultation

Sets out a worker’s reciprocal duties with regard to their participation in the consultation process.

Provides for the establishment of work groups of workers, which in effect serves as both an electorate for an HSR and a jurisdiction in which the HSR is to perform their functions. Either employers or workers can initiate the formation of a work group.

Sub Clause (1) defines a work group as 10 or more workers.

Sub Clause (2) allows for all the workers of a particular employer; or all the workers of a particular employer at a particular workplace; by agreement between themselves constitute themselves as a work group:

It also allows for a particular class of workers of a particular employer; or a particular class of workers of a particular employer who work at a particular workplace to constitute themselves.

Sub Clause (3) means that a worker can only belong to one workgroup at a time.

Sub Clause (4) establishes that small business with less than ten workers cannot form workgroups unless the employer agrees or wishes to initiate such a process.

Clause 34. Formation of workgroup

Sets out the process by which a workgroup is to be formed and how agreement will be achieved. In the event that agreement cannot be achieved, the Authority is able to assist and take any actions it considers appropriate.

The formation of workgroups and processes for agreement and dispute resolution will be in the regulations.

Clause 35. Sharing of costs where there are multiple employers for a single work group

Sets out that if a single work group consists of workers of two or more employers, any costs and expenses of a health and safety representative that are to be borne by an employer under this Part are to be apportioned between the employers as agreed between them or, in default of agreement, equally.

Provides for the election of health and safety representatives.

Sub Clause (1) provides for health and safety representatives to be elected by members of the work group.

Sub Clause (2) provides that a person is:

· only eligible for election as a health and safety representative for a work group if he or she is a member of that group; and
· not eligible for election if he or she is disqualified from acting as a health and safety representative.

Clause 37. Term of office etc. of health and safety representative

Provides for the term of office of health and safety representatives.

Sub Clause (1) provides that a health and safety representative, or a deputy health and safety representative, is elected for a term of two years by the members of the group.

Sub Clause (2) sets out when a person ceases to be a health and safety representative, including when the person's term of office comes to an end and the person is not re-elected, the person ceases to be a member of the relevant work group, the Authority disqualifies the person from office as a health and safety representative, the person resigns by notice given to the employer or the members of the relevant work group agree to terminate the person's term of office.

Sub Clause (3) allows that the Authority may, on application by an employer, disqualify a person from office as a health and safety representative if satisfied that the person has misused powers as a health and safety representative. This is a reviewable decision under s81.

Sets out the range of functions of health and safety representatives which includes the ability to issue notices of safety hazards and to direct work to cease in the case of immediate and serious risk to a worker.

Sub Clause (2) provides that a health and safety representative may only exercise the powers in regard to health and safety issues affecting members of the relevant work group.

Clause 39. Gathering of information by health and safety representative

Sets out the obligations of an employer in regard to health and safety representative gathering information. This includes informing HSRs of any reportable incidents in a timely manner.

Sub Clause (1) provides that an employer must, at the request of a health and safety representative make available to the representative, information in the employer's possession, or reasonably accessible by the employer, on health and safety issues affecting the members of the relevant work group.

Sub Clause (2) makes it an offence for an employer to disclose confidential information about the state of health of a particular worker unless the worker consents.

Sub Clause (3) ensure that an employer must inform a HSR of any reportable incidents that occur at the workplace.

Clause 40. Issue of notice of safety hazard

Provides for a health and safety representative to issue a notice of safety hazard if the health and safety representative believes on reasonable grounds that a hazardous situation exists at a workplace; and in consequence an offence has been, or is about to be committed against this Act;

Sub Clauses (2) and (3) outline how a notice may be issued to the employer or a worker or other person who is responsible for the hazardous situation.

Sub Clauses (4) (5) and (6) sets out the process to report the matter to the Authority and the requirement for the Authority to investigate the matter and to take any action that appears necessary to eliminate or mitigate the hazard.

Clause 41. Issue of stop work direction

Sets out the power under which a health and safety representative is able to direct a worker to stop here is an immediate threat to the health and safety of a person.

Sub Clauses (2), (3) and (4) detail the reporting requirement of the HSR to the employer and to the authority in the event of a branch of the cease work direction and the actions the Authority will undertake.

The Authority will develop guidelines outlining the role and functions relating for HSRs including the consultation process that needs to occur with the employer and the requirement to notify the Authority if a direction to cease work is given.

It is generally accepted that training is critical for HSRs to be able to enter into meaningful dialogue on health and safety issues with the employer.
This section sets out the obligations of an employer in regard to a health and safety representative.

Sub Clause (1) requires an employer on request by a health and safety representative to allow a health and safety representative to attend an appropriate approved course of training for health and safety representatives, allow the representative the necessary time off work to attend the course on full pay and pay reasonable costs associated with the representative's attendance at the course.

Sub Clause (2) sets out that an employer is not obliged to comply with such a request from the same representative more than once in each year.

Sub Clause (3) provide for the course of training to be a conducted or approved by the Authority and agreed as appropriate by the employer and the representative, or in default of agreement, determined to be appropriate by the Authority.

Sub Clause (4) makes it an offence for an employer to fail to comply with the employer's obligations under this section.

The Authority will develop guidelines to provide funding assistance or reimbursement for reasonable costs associated with accredited training.

Clause 43. Other obligations

Sets out the obligations of an employer to a health and safety representative,

Sub Clause (1) requires an employer to facilitate the reasonable and effective exercise by a health and safety representative of the representative's functions in the following ways:
· the employer must allow the representative access to any part of a workplace in which a member of the relevant work group works;
· the employer must, at the representative's request, make available to the representative information in the employer's possession, or reasonably accessible by the employer, on health and safety issues affecting the members of the relevant work group;
· if a worker wants the representative to be present at, and to participate in, an interview on a health and safety issue between the worker and the employer, a representative of management, or an officer, the employer must permit the representative's presence at, and participation in, the interview;
· the employer must treat time reasonably spent in carrying out functions as a health and safety representative during ordinary hours of work as time spent at work attracting remuneration at the representative's ordinary rate of pay;
· the employer must provide any other assistance or facilities required by the regulations.

Sub Clause (2) prohibits an employer from providing information about the health of an individual worker under Sub Clause (1) without the worker's consent.

Sub Clause (3) makes it an offence if an employer fails to comply with this provision.

Clause 44. List of representatives to be kept

Provides for an employer to keep a record of all health and safety representatives and deputy health and safety representatives.

Sub Clause (2) sets out the requirement for an employer to display a current list of health and safety representatives and their deputies at every workplace under the employer's control.

Sub Clause (3) makes it an offence if an employer fails to comply with this provision.

Provides for the establishment of health and safety committees. The broadening of the definition of worker means the committee has a greater coverage of the workers.

Sub Clause (1) requires an employer with a workforce of at least 20 to establish a health and safety committee if a majority of the workers ask the employer to do so or if a health and safety representative asks the employer to do so.

Sub Clause (2) sets out the membership of a health and safety committee.

Sub Clause (3) requires that a health and safety committee must consist of representatives of management and the workers in approximately equal numbers (but all health and safety representatives must be included among the worker representatives).

Sub Clause (4) requires an occupational health and safety committee to meet at least quarterly and whenever at least half the membership calls a meeting.

Sub Clause (5) provides that a committee may determine its own procedures subject to the Act and regulations.

Clause 46. Functions of health and safety committee

Sets out the functions of a health and safety committee as follows:
· to facilitate consultation and co-operation between the employer and workers in initiating, developing and implementing measures designed to ensure the health and safety of the workers at the workplace;
· to keep itself informed about standards of health and safety generally recommended for, or prevailing at, workplaces of a comparable nature, and to review and make recommendations to the employer on rules and procedures at the workplace affecting the health and safety of the workers;
· to recommend to the employer the establishment, maintenance and monitoring of programs, measures and procedures at the workplace relating to the health and safety of the workers;
· to keep, in an accessible place and form, information about the hazards to workers that exist or may arise at the workplace;
· to consider and make recommendations about changes to be made at the workplace that may affect the health and safety of the workers;
· to consider and make recommendations about training and education in, and promotion of, health and safety at the workplace;
· to consider, and make recommendations about changes to be made at the workplace following an accident or reportable incident;
· to perform other functions assigned to the committee under the regulations or (with the committee's consent) by the employer.

Clause 47. Duties of employer to health and safety committee

Sets out the duties of an employer in regard to a health and safety committee for a workplace.

These duties are to:
· permit the committee or a member of the committee nominated by the committee for the purpose to inspect any part of the workplace at any reasonable time;
· make available to the committee information reasonably available to the employer about hazards that exist or may arise at the workplace an the health and safety of workers at the workplace;
· consult with the health and safety committee on proposed changes at the workplace that may affect the health or safety of workers at the workplace;
· where an accident or reportable incident occurs at the workplace ensure the committee is notified as soon as possible;
· provide the committee with reasonable facilities and assistance for carrying out its functions under this Act;
· permit members of the committee to carry out their functions and to participate in relevant courses of training in occupational health and safety.

Clause 48. Exemption from requirement to have health and safety committee of Division

Allows the Authority to exempt an employer, wholly or in part, from compliance with this Division if it is satisfied that an employer has implemented a health and safety management policy that gives effect to the objectives of this Division.

This section explains the purpose of consultation between employee organisations representing members and employers. It establishes a framework that balances employee and employer rights and interests.

Clause 50. Appointment of authorised union OH&S representatives

Provides for the appointment of an officer, or employee as an authorised union OH&S representative on application by an employee organisation to the Authority.

Sub Clause (2) prevents the Authority from appointing a person as an authorised union OH&S representative unless satisfied that the person has qualifications and experience appropriate to a person holding such an appointment, and is a fit and proper person to do so.

Sub Clause (3) sets out that the term of appointment should not exceed two years and the conditions of appointment.

Sub Clause (4). details the range of conditions of the appointment including with complying with any relevant obligations imposed under Commonwealth law and a prohibition against hindering or obstructing an employer or a worker.

Sub Clause (5) makes in an offence if an authorised union OH&S representative breaches the conditions of appointment.

Sub Clause (6) makes it an offence to impede entry to an authorised union OH&S representative who is entitled to enter a workplace.

Clause 51. Identity cards for authorised union OH&S representatives

Provides for the issue of identity cards to authorised union OH&S representatives.

Sub Clause (1) requires the Authority to issue an authorised union OH&S representative with an identity card containing the person's name and a photograph of the person, stating the name of the employee organisation represented by the person and stating that the person is an authorised union OH&S representative.

Sub clause (2) requires the authorised union OH&S representative to produce the representative's identity card for inspection at the reasonable request of a person.

Sub Clause (3) provides that a person must, on ceasing to be an authorised union OH&S representative, return the identity card to the Authority.

Clause 52. Duration of appointment

Sets out the duration of appointment for an authorised union OH&S representative, these being if the person:
· comes to the end of a term of appointment and is not re-appointed;
· ceases to be an officer or employee of the employee organisation by which the person was nominated for appointment;
· resigns by notice of resignation given to the Authority;
· is removed from office by the Authority on the ground of a breach of a condition of appointment;
· is disqualified by the Authority from holding office as an authorised union OH&S representative.

Sub Clause (2) provides for the removal of an authorised union OH&S representative should they contravene the condition of their appointment.

Sub Clause (3) provides for the disqualification of an authorised union OH&S representative should they misuse power. The Authority may, on application of an employer or other person affected by the misuse of power, disqualify the person from holding office as an authorised union OH&S representative.

Clause 53. Powers of authorised union OH&S representative

Sets out the powers of an authorised union OH&S representative including the power to enter a workplace to discuss health and safety issues with members or workers who are eligible to become members of the relevant employee organisation, to observe work practices at the workplace or to investigate a suspected contravention of the Act involving a member of the employee organisation.

Sub Clauses (2) details the conditions of entry particularly that the representative must comply with the relevant obligations imposed under the Commonwealth Workplace Relations Act

Sub Clauses (3) details an authorised purpose. For example to discuss OH&S issues during a meal break with workers who are , or are eligible to become members of the relevant employee organisations.

Sub Clauses (4) sets out the actions that are allowable by the authorised OH&S representative in carrying out an investigation.

Sub Clause (5) prohibits the representative from entering the premises if the workplace is a residential premises currently used as a place of residence unless the occupier consents.

Sub Clause (6) provides the Authority with the capacity to assist to resolve a dispute about the exercise of powers under this section if requested to do so by an employer or authorised OH&S representative.

Clause 54. Compensation for improper interference

This clause details the mechanisms for compensation in the event that the authorised union OH&S representative misuses or abuses the powers under this division, and a person suffers loss or expense as a result.

Sets out duties of employers in regard to their general statutory duty of care.

Sub Clause (1) requires an employer to ensure, as far as reasonably practicable, that workers and others are not exposed to risks to health or safety arising from the conduct of the employer's business.

Sub Clause (2) defines that if the employer is a natural person working in the employer's own business, the employer is to be regarded as a worker to whom the general statutory duty of care is owed by the employer him/herself.

Sub Clause (3) outlines how an employer carries out the general statutory duty of care by proceeding in a systematic way to:
· identify hazards and assess the seriousness of risks resulting from the hazards;
· determine appropriate risk management measures;
· to eliminate, as far as reasonably practicable, avoidable risks and to minimise, as far as reasonably practicable, unavoidable risks;
· carry the risk management measures into effect; and monitor and review the effectiveness of the measures.

Sub Clause (4) provides that an employer who fails to comply with the employer's general statutory duty of care is guilty of an offence.

Clause 56. Duties in regard to workplace

Sets out duties of employers in regard to the workplace.

Sub Clause (1) requires an employer to take all reasonably practicable measures to ensure that the workplace and the means of entering and leaving it are safe.

Sub Clause (2) sets out that the duty extends, to the extent that may be appropriate in the circumstances to:
· an occupier of the workplace;
· a person, who designs, constructs, manufactures, imports, installs or supplies a workplace or any part or component of a workplace.

Sub Clause (3) provides that an employer who fails to carry out a duty under this section is guilty of a breach of the employer's general duty of care.

Sub Clause (4) provides that a person (other than an employer) who fails to carry out a duty under this clause is guilty of an offence.

Clause 57. Duties in regard to workplace infrastructure, equipment and materials

Sets out duties of employers in regard to workplace infrastructure, equipment and materials.

Sub Clause (1) provides that an employer has a duty to take all reasonably practicable measures to ensure that workplace infrastructure or equipment, and workplace materials, are safe; and workers are, where necessary, properly instructed in the use, warned about risks involved in the use of workplace infrastructure or equipment, and workplace materials and if workplace materials are poisonous – adequate toxicological information is available.

Sub Clause (2) extends the duty to the extent that may be appropriate in the circumstances, to a person who designs, constructs, manufactures, imports, installs or supplies a workplace infrastructure or equipment or any component of workplace infrastructure or equipment or designs, manufactures, imports or supplies workplace materials.

Sub Clause (3) provides that an employer or person who fails to carry out a duty under this section is guilty of a breach of the employer's general duty of care.

Sets out the requirement for an employer who proposes to undertake a hazardous activity to prepare a risk management plan and have it certified as an adequate risk management plan by a person with qualifications or credentials acceptable to the Authority. The risk management plan must comply with any requirements imposed by the regulations.

Sub Clause (3) requires an employer lodge a copy of the relevant risk management plan with the Authority before commencing a hazardous activity,

Sub Clause (4) requires that an employer must not, without reasonable excuse fail to comply with a certified risk management plan.

Sets out the duties of workers.

Sub Clause (1) requires a worker who has a duty:
· to take reasonable care for the worker's own health and safety, and for the health and safety of others, while at work;
· to follow reasonable directions given by or on behalf of the employer on issues related to health or safety;
· to use relevant safety equipment provided for the worker's use;
· to report a workplace accident to the employer as soon as practicable after it occurs.

Sub Clause (2) provides that a worker must not intentionally or recklessly interfere with or misuse safety equipment provided by the worker's employer intentionally create a risk to the health or safety of another at the worker's workplace.

Sets out the employer’s duty if so required by the regulations to monitor the health of the employer's workers or a particular class of workers, and monitor conditions relevant to the health and safety of workers at a workplace under the employer's control and keep an appropriate record of the results of the monitoring.

Sub Clause (2) provides that the records are to be kept in two parts:
· one (the confidential records) consisting of information relevant to the health of the individual workers; and
· the other (the general records) consisting of all other information.

Sub Clause (3) requires an employer at the request of a worker make the general records available for inspection by the worker or an agent of the worker; and provide information from the confidential records relevant to the worker's own health and safety.

Defines the purpose of a code as providing practical guidance on how to comply with a duty or duties under this Act.

Sub Clause (2) provides that a code of practice may relate to workplaces generally, a particular class of workplaces or a particular workplace.

Sub Clause (3) sets out that a code takes effect when approved by the Minister if it relates to workplaces generally or a particular industry; and if it relates to a particular workplace it takes effect when approved by the Authority.

Sub Clauses (4) and (5) provides that an approval is to be effective for a period stated in the instrument of approval and for the Minister or the Authority (as the case requires) to extend the period of approval from time to time.

Sub Clause (6) requires that an approved code of practice is to be accessible on the Authority's website.

Sub Clause (7) requires the employer make available an approved code of practice for inspection by workers at reasonable times.

Clause 62. Compliance with code of practice to be defence

Provides that where an employer or other person is prosecuted for non-compliance with a particular statutory duty, and a code of practice governing compliance with the relevant duty was in force at the time of the alleged non-work compliance, it is a defence to the charge to establish that the defendant complied with the code of practice in relevant respects.

Sets out that this Part does not create or affect a civil liability.

Defines a reportable incident as:
· a work-related accident; or
· an incident at a workplace creating a risk of a work-related accident and consisting of:
o a major structural failure or collapse; or
o an explosion, implosion or fire; or
o the escape, spillage or leakage of a toxic substance; or
o the fall of an object from a height; or
o the failure of a system on which the health or safety of
o workers is dependent (such as a ventilation system in a
o mine); or
· an incident classified by the regulations as a reportable incident.

Clause 65. Authority to be notified of reportable incidents

Sets out the requirement for an employer to notify the Authority as soon as practicable of its occurrence; and give the Authority a written report on the incident, in an approved form, within 48 hours after its occurrence.

Sub Clause (2) requires the employer to keep a copy of the report given to the Authority under Sub Clause (1)(b) for at least 5 years after the date of the incident.

Sub Clause (3) requires the employer on request to make a copy of the report available for inspection by:
· an authorised person; or
· a person, or a representative of a person, who was injured in the incident, or who was exposed to risk of significant injury by the incident; or
· a representative of a person killed in the incident; or
· a health and safety representative; or
· a health and safety committee established by the employer.

Sub Clause (4) provides that an employer who fails to comply with a provision of this clause is guilty of an offence.

Clause 66. Power of authorised person to require site to be left undisturbed in certain cases

Sets out the power of the Authority in the case of a reportable incident that results in a death or serious injury to direct the employer to ensure that the site of the incident is not disturbed until an officer has investigated the incident.

Sub Clause (2) requires the Authority to ensure that an officer investigates the incident as soon as possible.

Sub Clause (3) provides that such a direction cannot prevent action necessary to aid injured persons or avert any further threat to health or safety.

Sub Clause (4) makes it an offence for an employer not to comply with such a direction.

Sets out the power of an officer to enter a workplace and remain there for as long as may be necessary or desirable to carry out an authorised investigation. The power may be exercised after giving the employer reasonable notice of the officer's intention to enter the workplace and the purpose of the authorised investigation or on the authority of a warrant.

Sub Clause (3) provides that the powers of an officer in relation to entering a place are not exercisable in respect of any part of a place that is used only for residential purposes except with the permission of the occupier or under the authority conferred by a search warrant

Sub Clause (4) allows the Authority to authorise an officer to enter a workplace if the Authority believes, on reasonable grounds, that it is urgently necessary for an officer to do so:
· to investigate a dangerous, or potentially dangerous, situation; or
· to preserve evidence of a contravention of this Act.

Clause 68. Workplace safety officer may take assistants

Provides that an officer may be accompanied by assistants when entering a workplace or carrying out an authorised investigation. For example, to help overcome any physical barriers to the entry or investigation or to take an interpreter to a workplace where the officer is likely to encounter workers who are not fluent in English.

Clause 69. Warrants

Makes provision for an officer to obtain a warrant authorising the officer to enter a workplace to carry out an authorised investigation if a Justice is satisfied by evidence on oath that the warrant is reasonably necessary for the purposes of an authorised investigation.

Sub Clause (3) provides that an officer may enter and remain on the premises specified in the warrant for the purposes of an authorised investigation and to use such force as may be reasonably necessary for the purpose.

Sub Clause (4) outlines that the period (not exceeding 14 days) that the warrant remains in force is specified in the warrant.

Sub Clause (5) requires an officer to produce the warrant for examination.

Clause 70. Powers of officers while at a workplace

Gives an officer who enters a place various powers while at the workplace including the power to:
· observe how work is carried out at the workplace;
· make a visual or audiovisual record of any process or thing at the workplace;
· operate equipment or facilities at the workplace;
· examine any records or other documentary materials relevant to the safety of the workplace or of work carried on at the workplace;
· take samples of workplace materials;
· measure temperatures, noise levels, levels of atmospheric pollution, contamination or radiation, or any other factors that could affect the health or safety of workers;
· take possession of any object or material (including records or documentary material) that may be evidence of a contravention of this Act;
· ask any person on the premises to do any of the following:
o to state the person's full name, date of birth and address;
o to answer questions relevant to the investigation asked by the officer;
o to produce specified records or documentary material relevant to the investigation;
o to operate equipment or facilities on the premises;
o to give other assistance the officer reasonably requires.

Sub Clause (2) requires a person to whom a request is addressed to comply with the request to the best of the person's ability and, if asked to answer a question, must do so to the best of the person's knowledge, information and belief.

Sub Clause (3) requires an officer who takes anything from the workplace to issue a receipt in the approved form and if the occupier or a person apparently responsible to the occupier is present, give it to him or her or otherwise, leave it on the premises in an envelope addressed to the occupier.

Sub Clause (4) outlines the process for taking samples including the requirement to divide the sample into three approximately equal portions and to give one to the employer, submit another for analysis and retain the third for future comparison.

Clause 71. Use of force

Provides for an officer to use reasonable force to enter a workplace or to carry out an authorised investigation.

Clause 72. Power of formal interrogation etc

Gives an officer the power by notice for the purposes of an authorised investigation to require a person to provide written answers to specified questions or to provide other specified written information or to produce records or other documentary materials relevant to the work carried out by workers, or the safety of a workplace or workplace infrastructure or equipment, or workplace materials.

Sub Clause (2) requires a person given a notice under this section, to provide written answers to questions or other written information must, if the notice requires, verify the answers or information by statutory declaration.

Sub Clause (3) requires a person to comply with a notice within the time allowed in the notice, to the best of the person's ability and, if asked to answer a question, must do so to the best of the person's knowledge, information and belief.

Clause 73. Obstructing etc. officer

Provides that a person must not obstruct or hinder an officer who is exercising a function under this Part or a person who is assisting an officer in the exercise of such a function.

Clause 74. General defence

Outlines that it is a defence to a charge involving a failure to comply with a requirement or request made by an officer (including a requirement or request to answer a question or provide information) for the defendant to prove:
· that the officer did not, before making the requirement or request identify him/herself to the defendant as an officer by producing the officer's identity card or in some other way; or
· that the officer did not warn the defendant that failure to comply with the requirement or request would constitute an offence.

Gives an officer the power to issue an improvement notice.

An improvement notice is a notice requiring specified action to remedy a contravention of this Act or to prevent the occurrence of an apprehended contravention of this Act. An officer may issue an improvement notice against a person if there are reasonable grounds to believe that the person has contravened, is contravening, or is about to contravene, this Act.

Sub Clause (3) describes the form a notice must take.

Sub Clause (4) allows for an improvement notice to specify alternative ways of complying with the notice.

Sub Clause (5) makes a person against whom an improvement notice is issued guilty of an offence if they fail to comply with the notice within the time allowed in the notice.

Gives an officer the power to issue a prohibition notice.

If an officer believes on reasonable grounds that workers are exposed to serious and immediate risk to their health or safety, the officer may issue a notice (a prohibition notice) to the employer requiring the employer to stop a particular activity exposing workers to the risk, or to stop workers from working in a particular situation or activity in which they are exposed to the risk. A prohibition notice operates until an officer is satisfied that the risk has been eliminated or reduced to an acceptable level and withdraws the notice.

Sub Clause (3) describes the form a notice must take.

Sub Clause (4) makes an employer who fails to comply with a prohibition notice guilty of an offence.

Provides that a worker may discontinue work if the work involves a serious and immediate risk to a worker's health or safety until the risk has been eliminated or mitigated.

Sub Clause (2) allows a work health officer to issue a stop work notice requiring the worker to stop work in a situation in which the worker is exposed to a serious and immediate risk to the worker's health or safety.

Sub Clause (3) provides that an employer may assign the worker to some other work not involving a serious risk.

Sub Clause (4) makes it an offence for a worker to fail to comply with a stop work notice.

Sub Clause (5) allows for the Authority to intervene in a dispute over whether a serious and immediate risk exists.

Sets out the processes for the issuing of enforcement notices.

Sub Clause (2) outlines that a stop work notice may be given orally but, in that event, the notice must be reduced to an approved written form as soon as practicable.

Sub Clause (3) requires that wherever practicable an enforcement notice must be given personally to the person against whom the notice is addressed.

Sub Clause (4) provides that if it is not practicable to give the notice personally, it may be given by fax email or in any other appropriate way.

Sub Clause (5) requires that where an enforcement notice is addressed to a person other than the employer a copy of the notice must be given, as soon as practicable, to the employer and for the purposes of review of, and appeal against the notice, both the person against whom the notice is issued and the employer will be regarded as respondents to the notice.

Sub Clause (6) provides that an enforcement notice (or a copy of an enforcement notice) may be given to an employer by giving it to the person apparently in charge of work at the workplace to which the notice relates.

Makes provision for the Authority to apply to the Court for an order to require a person to or refrain from taking specified action in order to comply with a duty under this Act.

Sub Clause (2) makes it an offence if a person fails, without reasonable excuse, to comply with an order under this section. This is in addition to any penalty for contempt of court.

Provides that a charge of an offence against this Act cannot be laid without the Authority's approval.

Sub Clause (2) sets out those proceedings for an offence against this Act must be commenced within 3 years after the date of the alleged commission of the offence.

Sub Clause (3) allows the Authority to enter into an agreement with an alleged offender whereby the alleged offender agrees to take specified action to remedy the contravention or guard against future contravention. Such agreements could include remedial measure order or a training order as outlined in s83.

Sub Clause (4) provides for a penalty to be imposed on an alleged offender who fails to comply with an agreement under subsection (3) above.

Clause 81. Regulatory offences

An offence against this Act, is a regulatory offence unless listed in sub-section (2). (Section 14, 18 39(3), 58(4), 59(2), 70, 72, 73 or 93).

Clause 82. Aggravated offences

Allows for the courts to impose two levels of additional penalties.

A maximum penalty of up to 12,500 penalty units for a body corporate (and maximum of up to 2,500 penalty units for an individual) where there is an intentional breach of duty by a duty holder, who ought to have know that the offence may result in death and which in fact did cause death.

A second lower level maximum penalty of up to 7,000 penalty units for a body corporate for aggravated offences if the defendant was recklessly indifferent or has repeatedly disregarded obligations under the Act

Clause 83. Court's power to make orders of various kinds on conviction of offender for offence against this Act

Provides that if a court convicts a person of an offence against this Act, the court may in addition to any other penalty imposed by the court, make any one or more of the following orders:
· an adverse publicity order;
· a remedial measures order;
· a training order.

An adverse publicity order is an order requiring the defendant to publicise in a manner and to an extent specified by the court the fact of the conviction and, if the court so requires, the amount of the penalty; and any of the circumstances surrounding the case that the court requires to be publicised.

A remedial measures order is an order requiring the defendant to take specified measures for improving standards of occupational health and safety at a particular workplace.

A remedial measures order might require the defendant to:
· engage a consultant, approved by the Authority, to advise on and assist with occupational safety;
· develop and implement a systematic approach to managing risks to health or safety that may arise in the conduct of the defendant's business;
· arrange for the carrying out of an independent audit of the health and safety measures for the defendant's business by a person approved by the Authority.

A training order is an order requiring the defendant to undertake a specified course of training.

Sub Clause (5) allows for incidental provisions such as a requirement to provide the Authority with specified evidence of compliance to be included.

Sub Clause (6) makes it a further offence if a defendant fails to comply with an adverse publicity order, a remedial measures order or a training order.

Clause 84. Court's power on releasing defendant on recognisance

Provides that if a court finds a person guilty of an offence against this Act, but releases the defendant on a bond under section 11 of the Sentencing Act, the conditions of the bond may include one or both a remedial measures condition or a training condition.

Sub Clause (4) provides that a condition under this section may include incidental provisions such as a requirement to provide the Authority with specified evidence of compliance.

Clause 85. Vicarious liability of companies

Provides for vicarious liability of bodies corporate.

Sub Clause (1) provides that in determining the criminal liability of a company for an offence against this Act, the conduct of an officer, agent or employee acting within the actual or apparent scope of his or her authority or employment will be imputed to the company.

Sub Clause (2) provides that if the officer, agent or employee acted intentionally, recklessly or negligently, the intention, recklessness or negligence will also be imputed to the company.

Clause 86. Offences by officers of companies

Provides for the liability of officers of companies when a company commits an offence (the ‘principal offence’) against this Act if:

· the principal offence is attributable to the act or omission of the officer;
· or the officer could have prevented the commission of the principal offence by exercising reasonable care.

Sub Clause (2) provides for a person who commits a secondary offence to be liable to the penalty for commission of the principal offence by a natural person.

Sub Clause (3) provides that a person may be prosecuted for, and convicted of, a secondary offence even though the company has not been prosecuted for, or convicted of, the principal offence.

Sets out decisions made under the Act that are reviewable decisions and the eligible persons who are able to apply for a review.

The following decisions are reviewable decisions:

· a decision by the Authority to disclose confidential information;
· a decision by the Authority to disqualify a person from holding office as an health and safety representative;
· a decision by the Authority to remove or disqualify an authorised union OH&S representative from office for breach of a condition of appointment;
· a decision by the Authority determining a dispute about the powers of an authorised union OH&S representative;
· a decision by an officer to take possession of an object or material;
· a decision by an officer or a health and safety representative to issue an enforcement notice;
· a refusal by an officer to withdraw a prohibition notice;
· a decision by a health and safety representative to issue a stop work order;
· a decision by the Authority determining a dispute about whether a serious and immediate risk to the health and safety of a worker exists.

Clause 88. Application for internal review

Provides that a person affected by a reviewable decision may, within 14 days after the date of the decision, apply to the Authority for a review of the decision.

Sub Clause (2) outlines the process to apply for a review.

Sub Clause (3) allows the Authority to extend the time for applying for review in a particular case if satisfied that there is good reason to do so.

Sub Clause (4) allows the Authority to summarily reject an application for review if it considers the application frivolous, vexatious or lacking in substance.

Clause 89. Reference of application to review committee

Requires the Authority on receiving an application for review to (unless it summarily rejects the application) refer it for consideration by a review committee.

Sub Clause (2) requires the Authority to appoint such review committees as it considers necessary for the purpose of conducting reviews.

Sub Clause (3) outlines that a review committee may consist of one or more persons.

Clause 90. Review

Sets out the processes under which a review is conducted such as allowing the applicant and other persons directly affected by the decision under review an opportunity to make representations orally or in writing to the committee.

Sub Clause (2) gives the committee the power to confirm or revoke the decision under review and give appropriate consequential directions.

Sub Clause (3) requires a review committee to give written reasons for its decision on a review.

Provides that a person who is dissatisfied with the decision on review may, within 21 days after the date of the decision, appeal to the Court against the decision by lodging a notice of appeal with the Court. The notice of appeal must set out, in detail, the grounds of the appeal.

Sub Clause (3) outlines the power of the Court to extend the time for an appeal in a particular case if satisfied that there is good reason to do so.

Sub Clause (4) allows the Court to summarily reject an appeal if it considers the appeal frivolous, vexatious or lacking in substance.

Clause 92. Powers of the Court on an appeal

Allows that on an appeal, the Court may confirm or set aside the decision on appeal. If the Court sets aside a decision on appeal, it may make any decision that should, in its opinion, have been made in the first instance and give directions it considers necessary or desirable to give effect to that decision.

Outlines the obligations of an employer to not discriminate against a worker or a prospective worker on the ground that the worker or prospective worker:
· is or has been a health and safety representative or a member of a health and safety committee;
· exercises or has exercised power as a health and safety representative or a member of a health and safety committee;
· assists or has assisted, or gives or has given any information to, an officer, a health and safety representative or a member of a health and safety committee;
· raises, or has raised, an issue of concern about health or safety with the employer, a worker, an officer, a health and safety representative or a member of a health and safety committee.

Sub Clause (2) sets out that an employer discriminates against a worker or prospective worker on a particular ground if the ground was the predominant reason for the discrimination.

Sub Clause (3) makes it an offence for an employer to discriminate against a worker or prospective worker contrary to this section and provides for a penalty.

Sub Clause (4) if, in proceedings for an offence against this section, the employer is found to have discriminated against a worker or prospective worker, it will be presumed that the employer did so on the ground alleged in the instrument of charge unless the employer establishes the contrary on the balance of probabilities.

Sub Clause (5) gives the court the power to order an employer who is convicted of an offence against this section to compensate the worker or prospective worker or to take other action specified by the court to remedy the contravention.

Clause 94. Abrogation of privilege against self-incrimination.

Indicates that it is not an excuse to refuse or fail to answer a question under this Act.

Clause 95. Review of Act

Outlines the requirement for the Act to be reviewed at intervals of 5 years from commencement.

Sub Clause (3) outlines the subjects to be reviewed:
· the administration of the Act and other Acts relevant to occupational health and safety;
· the effectiveness of that administration and any changes that may be necessary or desirable to improve its effectiveness;
· the extent to which occupational health and safety has improved (or deteriorated) in the period subject to the review;
· any other subjects nominated by the Minister.

Sub Clause (4) requires the Minister to table the review findings in the Legislative Assembly.

Clause 96. Regulations

Provides that the Administrator may make regulations under this Act.

Sub Clause (2) allows for the regulations to apply generally or be limited in their application to a particular industry sector. For example, regulations might be made with specific application to the mining industry.

Sub Clause (3) allows for the adoption under regulations the provisions of a standard, code or rule, as in force at a particular time, or as in force from time to time.

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