PETROLEUM (SUBMERGED LANDS) (MISCELLANEOUS) AMENDMENT BILL 2004

Part 2—Amendment of Petroleum (Submerged Lands) Act 1982

Section 3—delete the section

(1) Section 4(1)—after the definition of block insert:

Commonwealth Act means, as the context requires:

(a) the Petroleum (Submerged Lands) Act 1967 of the Commonwealth as amended from time to time; or

(b) if the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been repealed and re‑enacted (with or without modifications)—the re‑enacted Act of the Commonwealth as amended from time to time;

Commonwealth Minister means the Minister of the Crown in right of the Commonwealth for the time being administering the Commonwealth Act;

(2) Section 4(1)—after the definition of licensee insert:

listed OHS laws has the meaning given by section 150C;

(3) Section 4(1)—after the definition of natural resources insert:

OHS inspector means an OHS inspector appointed under the Commonwealth Act;

(4) Section 4(1)—after the definition of royalty period insert:

Safety Authority means the National Offshore Petroleum Safety Authority under the Commonwealth Act;

(5) Section 4(1), definition of the Commonwealth Act—delete the definition

6—Substitution of section 8

Section 8—delete the section and substitute:

8—Definitions

In this Division, unless the contrary intention appears—

Commonwealth Act means, as the context requires—

(a) the Petroleum (Submerged Lands) Act 1967 of the Commonwealth as amended from time to time; or

(d) if the Petroleum (Submerged Lands) Registration Fees Act 1967 has been repealed and re‑enacted (with or without modifications)—the re‑enacted Act of the Commonwealth as amended from time to time; or

(e) the Petroleum (Submerged Lands) Fees Act 1994 of the Commonwealth as amended from time to time; or

(f) if the Petroleum (Submerged Lands) Fees Act 1994 has been repealed and re‑enacted (with or without modifications)—the re‑enacted Act of the Commonwealth as amended from time to time;

Commonwealth adjacent area means—

(a) if the Petroleum (Submerged Lands) Act 1967 of the Commonwealth is in force—the adjacent area in respect of South Australia determined in accordance with section 5A of that Act; or

(b) if the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been repealed and been re‑enacted (with or without modifications)—the area that, under the re‑enacted Act of the Commonwealth, corresponds to the adjacent area in respect of South Australia determined in accordance with section 5A of the repealed Act.

7—Insertion of section 14A

After section 14 insert:

14A—Disapplication of State occupational health and safety laws

(1) The prescribed occupational health and safety laws do not apply in relation to—

(a) a facility; or

(b) a person at a facility; or

(i) a facility; or

(ii) activities that take place at a facility; or

(d) activities that take place at a facility.

(2) A reference in subsection (1) to the prescribed occupational health and safety laws is a reference to such of the provisions of those laws that, but for subsection (1), would apply in the adjacent area by virtue of the Off-shore Waters (Application of Laws) Act 1976 or the cooperative scheme within the meaning of the Crimes at Sea Act 1998.

(3) In this section—

facility has the same meaning as in Schedule 7;

prescribed occupational heath and safety laws mean any laws of the State relating to occupational health and safety (whether or not they also relate to other matters) that are prescribed by the regulations for the purposes of this section.

(4) This section applies despite anything to the contrary in the Off-shore Waters (Application of Laws) Act 1976 or the Crimes at Sea Act 1998.

8—Amendment of section 29—Application for renewal of permit

Section 29(1)—delete "section 30" and substitute:

sections 30 and 30A

9—Insertion of section 30A

After section 30 insert:

30A—Certain permits cannot be renewed more than twice

(1) This section applies to an application for the renewal of a permit where—

(a) the original permit was granted under section 21—

(i) on or after 1 January 2005; and

(ii) as a result of an application made in response to an invitation in an instrument that was published under section 19(1) on or after 1 January 2005; or

(b) the original permit was granted under section 26 on or after 1 January 2005.

(2) A permittee must not make the application if it could result in the original permit being renewed more than twice.

10—Amendment of section 37H—Conditions of lease

Section 37H(4)—delete "2 notices" and substitute:

a notice

11—Amendment of section 58—Unit development

(1) Section 58(11)(b)—delete "within the meaning of the Commonwealth Act"

(2) Section 58—after subsection (12) insert:

(13) For the purposes of subsection (11)(b), the adjacent area in respect of a State is—

(a) if the Petroleum (Submerged Lands) Act 1967 of the Commonwealth is in force—the adjacent area in respect of a State within the meaning of that Act; or

12—Amendment of section 63—Application for pipeline licence

Section 63(2)(b)—after "licence area" insert:

of a production licence

13—Amendment of section 64—Grant or refusal of pipeline licence

Section 64(5)—delete "licence area under the Commonwealth Act" and substitute:

licence area of a production licence under the Commonwealth Act

14—Insertion of Part 3A

After Part 3 insert:

Part 3A—Occupational health and safety

Division 1—Introduction

150A—Definitions

In this Part—

Board means the National Offshore Petroleum Safety Authority Board under the Commonwealth Act;

CEO means the Chief Executive Officer of the Safety Authority;

facility has the same meaning as in Schedule 7;

offshore petroleum operations means any operations (including diving operations) that—

(a) relate to—

(i) the exploration for petroleum; or

(ii) the recovery, processing, storage, offloading or piped conveyance of petroleum; and

(b) if the operations are diving operations—take place in the adjacent area; and

150B—Occupational health and safety

Schedule 7 has effect.

150C—Listed OHS laws

The following provisions are the listed OHS laws for the purposes of this Act—

(a) Schedule 7;

(b) regulations made for the purposes of Schedule 7;

(d) any other regulations relating to occupational health and safety matters that are prescribed for the purposes of this paragraph.

150D—Regulations relating to occupational health and safety

(1) The regulations may make provision in relation to the occupational health and safety of persons at or near a facility who are under the control of a person who is carrying on an operation.

(2) Without limiting subsection (1), regulations for the purpose of that subsection may—

(a) require a person who is carrying on an operation to establish and maintain a system of management to secure the occupational health and safety of persons referred to in that subsection; and

(b) specify requirements with which the system must comply.

Division 2—Functions and powers of the Safety Authority

150E—Safety Authority's functions

The Safety Authority has the following functions:

(a) the functions conferred on it by or under this Act in relation to offshore petroleum operations;

(b) to promote the occupational health and safety of persons engaged in offshore petroleum operations;

(c) to develop and implement effective monitoring and enforcement strategies to secure compliance by persons with their occupational health and safety obligations under this Act and the regulations;

(d) to—

(i) investigate accidents, occurrences and circumstances that affect, or have the potential to affect, the occupational health and safety of persons engaged in offshore petroleum operations; and

(ii) to report, as appropriate, to the Minister and the Commonwealth Minister on those investigations;

(e) to advise persons, either on its own initiative or on request, on occupational health and safety matters relating to offshore petroleum operations;

(f) to make reports, including recommendations, to—

(i) the Minister; and

(ii) the Commonwealth Minister,

on issues relating to the occupational health and safety of persons engaged in offshore petroleum operations;

(g) to co-operate with—

(i) the Minister and State agencies having functions relating to offshore petroleum operations; and

(ii) other Commonwealth agencies having functions relating to offshore petroleum operations.

150F—Safety Authority's ordinary powers

(1) The Safety Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) The Safety Authority's powers include, but are not limited to, the following powers:

(a) the power to acquire, hold and dispose of real and personal property;

(b) the power to enter into contracts;

(d) the power to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of the Safety Authority;

(e) the power to conduct research and development projects and to cooperate with others in such projects;

(f) the power to apply for and hold patents and exploit patents;

(g) the power to do anything incidental to any of its functions.

150G—Judicial notice of seal

All courts, judges and persons acting judicially must—

(a) take judicial notice of the imprint of the seal of the Safety Authority appearing on a document; and

(b) presume that the document was duly sealed.

Division 3—Safety Authority Board

150H—Functions of the Board

(1) The Board has the following functions:

(a) to give advice, and make recommendations, to the CEO about the operational policies and strategies to be followed by the Safety Authority in the performance of its functions;

(b) to give advice, and make recommendations, to—

(i) the Minister; and

(ii) the Commonwealth Minister; and

(iii) interstate Ministers; and

(iv) the body known as the Ministerial Council on Mineral and Petroleum Resources,

about either or both of the following:

(v) policy or strategic matters relating to the occupational health and safety of persons engaged in offshore petroleum operations;

(vi) the performance by the Safety Authority of its functions;

(2) As soon as practicable after the Board gives advice, or makes recommendations, under subsection (1)(b) to—

(a) the Minister; or

(b) an interstate Minister; or

the Board must give the Commonwealth Minister a written copy of that advice or those recommendations.

150I—Powers of the Board

The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

150J—Validity of decisions

The performance of the functions, or the exercise of the powers, of the Board is not affected only because of there being a vacancy or vacancies in the membership of the Board.

Division 4—CEO and staff of the Safety Authority

150K—CEO acts for Safety Authority

Anything done by the CEO in the name of the Safety Authority or on the Safety Authority's behalf is taken to have been done by the Safety Authority.

150L—Working with the Board

(1) The CEO must request the Board's advice on strategic matters relating to the performance of the Safety Authority's functions.

(2) The CEO must have regard to the advice given to him or her by the Board (whether or not the advice was given in response to a request).

(3) The CEO must—

(a) keep the Board informed of the Safety Authority's operations; and

(b) give the Board any reports, documents and information in relation to those operations that the Chair of the Board requires.

150M—Delegation

(1) An officer or employee of this State, or of a public authority of this State, may perform any function and exercise any power delegated to him or her by the CEO under the Commonwealth Act.

(2) In performing a function or exercising a power under the delegation, the delegate must comply with any directions of the CEO.

150N—Secondments to the Safety Authority

An officer or employee of this State, or of a public authority of this State, may assist the Safety Authority in connection with the performance of any of its functions or the exercise of any of its powers under this Act, the Commonwealth Act or a corresponding law.

Division 5—Other Safety Authority provisions

150O—Minister may require the Safety Authority to prepare reports or give information

(1) The Minister may, by written notice given to the Safety Authority, require the Safety Authority to—

(a) prepare a report about one or more specified matters relating to the performance of the Safety Authority's functions or the exercise of the Safety Authority's powers; and

(b) give a copy of the report to—

(i) the Minister; and

(ii) each interstate Minister; and

(iii) the Commonwealth Minister,

within the period specified in the notice.

(2) The Minister may, by written notice given to the Safety Authority, require the Safety Authority to—

(a) prepare a document setting out specified information relating to the performance of the Safety Authority's functions or the exercise of the Safety Authority's powers; and

(b) give a copy of the report to—

(i) the Minister; and

(ii) each interstate Minister; and

(iii) the Commonwealth Minister,

within the period specified in the notice.

(3) The Safety Authority must comply with a requirement under subsection (1) or (2).

150P—Directions to the Safety Authority

(1) The Minister may request the Commonwealth Minister to give a direction to the Safety Authority that relates wholly or principally to the Safety Authority's operations in the adjacent area.

(2) The Commonwealth Minister must use his or her best endeavours to make a decision on the request within 30 days after receiving the request.

(3) If the Commonwealth Minister refuses the request, the Commonwealth Minister must give the Minister a written statement setting out the reasons for the refusal.

(4) The Safety Authority must comply with any direction given by the Commonwealth Minister under this section.

150Q—Reviews of operations of Safety Authority

(1) The Minister must cause reviews to be conducted of the operations of the Safety Authority in relation to the adjacent area.

(2) The Minister must cause to be prepared a report of a review under subsection (1).

(3) The first review is to relate to the 3 year period beginning on 1 January 2005, and is to be completed within 6 months, or the longer period that the Minister allows, after the end of that 3 year period.

(4) Subsequent reviews are to relate to successive 3 year periods, and must be completed within 6 months, or the longer period that the Minister allows, after the end of the 3 year period to which the review relates.

(5) A review under this section may be conducted in conjunction with a review under the Commonwealth Act or a corresponding law (or both).

(6) Without limiting the matters to be covered by a review under subsection (1), the review must include an assessment of the effectiveness of the Safety Authority in bringing about improvements in the occupational health and safety of persons engaged in offshore petroleum operations.

(7) The Minister must cause a copy of the report of a review under subsection (1) to be tabled in each House of Parliament within 15 sitting days of that House after the report of the review is completed.

(8) For the purposes of this section, a review is completed when the report of the review is made available to the Minister.

150R—Liability for acts and omissions

(1) This section applies to the following persons:

(a) the Safety Authority;

(b) the CEO;

(d) a person acting under the direction or authority of the Safety Authority or the CEO.

(2) A person to whom this section applies is not personally liable for anything done or omitted to be done in good faith—

(a) in the performance of a function under a listed OHS law; or

(b) in the reasonable belief that the act or omission was in the performance of a function under a listed OHS law.

15—Amendment of section 151—Regulations

Section 151(2a)—delete subsection (2a) and substitute:

(2a) The regulations may apply, wholly or partially and with or without modification, regulations in force under an Act of another State, a Territory or the Commonwealth (as in force from time to time or as in force at a particular time) as regulations applying under this Act (and, in so applying such regulations, may provide for their citation for the purposes of the law of this State).

(2aa) The regulations may apply or adopt, wholly or partially and with or without modification, a code, standard, rule or other document prepared or published by a body referred to in the regulation (as in force from time to time or as in force at a particular time).

(2ab) Any regulations applying or adopting a regulation, code, standard, rule or other document may contain such incidental, supplementary or transitional provisions as appear to the Governor to be necessary.

(2ac) The regulations, or a regulation, code, standard, rule or other document applied or adopted by the regulations, may—

(a) refer to or incorporate, wholly or partially and with or without modification, a code, standard, rule or other document prepared or published by a particular body (as in force from time to time or as in force at a particular time); and

(b) be of general or limited application; and

(d) provide that any matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister or any other prescribed person or authority.

(2ad) If—

(a) a regulation, code, standard, rule or other document is applied or adopted by the regulations; or

(b) the regulations, or a regulation, code, standard, rule or other document applied or adopted by the regulations, refers to a code, standard, rule or other document prepared or published by a particular body,

then—

(c) a copy of the regulation, code, standard, rule or other document must be kept available for inspection by members of the public, without charge and during normal office hours, at an office or offices specified by notice in the Gazette; and

(d) in any legal proceedings, evidence of the contents of the regulation, code, standard, rule or other document may be given by production of a document purporting to be certified by or on behalf of the Minister as a true copy of the regulation, code, standard, rule or other document.

16—Repeal of Schedule 1

Schedule 1—delete the Schedule

17—Variation of Schedule 4

(1) Schedule 4, clause 1(1)—before the definition of altered arrangements insert:

adjacent area under the Commonwealth Act means—

(a) if the Petroleum (Submerged Lands) Act 1967 of the Commonwealth is in force—an adjacent area in respect of a State determined in accordance with section 5A of that Act; or

(b) if the Petroleum (Submerged Lands) Act 1967 of the Commonwealth has been repealed and been re‑enacted (with or without modifications)—an area that, under the re‑enacted Act of the Commonwealth, corresponds to an adjacent area in respect of a State determined in accordance with section 5A of the repealed Act.

(2) Schedule 4, clause 1(1), definition of Commonwealth Act—delete the definition

(3) Schedule 4, clause 3(4)—after the Commonwealth Act insert:

as in force before 7 March 2000

18—Repeal of Schedule 5

Schedule 5—delete the Schedule

19—Insertion of Schedule 7

After Schedule 6 insert:

Schedule 7—Occupational health and safety

Part 1—Introduction

1—Objects

The objects of this Schedule are, in relation to facilities located in the adjacent area:

(a) to secure the occupational health, safety and welfare of persons at or near those facilities; and

(b) to protect persons at or near those facilities from risks to occupational health and safety arising out of activities being conducted at those facilities; and

(c) to ensure that expert advice is available on occupational health and safety matters in relation to those facilities; and

(d) to promote an occupational environment for members of the workforce at those facilities that is adapted to their needs relating to health and safety; and

(e) to foster a consultative relationship between all relevant persons concerning the health, safety and welfare of members of the workforce at those facilities.

2—Simplified outline

(1) The following is a simplified outline of this Schedule.

(2) This Schedule sets up a scheme to regulate occupational health and safety matters at or near facilities.

(3) Occupational health and safety duties are imposed on the following:

(a) the operator of a facility;

(b) a person in control of a part of a facility, or of any work carried out at a facility;

(d) a manufacturer of plant, or a substance, for use at a facility;

(e) a supplier of a facility, or of any plant or substance for use at a facility;

(f) a person who erects or installs a facility, or any plant at a facility;

(g) a person at a facility.

(4) A group of members of the workforce at a facility may be established as a designated work group.

(5) The members of a designated work group may select a health and safety representative for that designated work group.

(6) The health and safety representative may exercise certain powers for the purpose of promoting or ensuring the occupational health and safety of group members.

(7) An OHS inspector may conduct an inspection—

(a) to ascertain whether a listed OHS law is being complied with; or

(b) concerning a contravention or a possible contravention of a listed OHS law; or

(8) The operator of a facility must report accidents and dangerous occurrences to the Safety Authority.

3—Definitions

In this Schedule—

accident includes the contraction of a disease;

associated offshore place, in relation to a facility, means any offshore place near the facility where activities (including diving activities) relating to the construction, installation, operation, maintenance or decommissioning of the facility take place, but does not include—

(a) another facility; or

(b) a supply vessel, offtake tanker, anchor handler or tugboat; or

contract includes an arrangement or understanding;

contractor has the meaning given by clause 7;

dangerous occurrence means an occurrence declared by the regulations to be a dangerous occurrence for the purposes of this definition;

designated work group means—

(a) a group of members of the workforce at a facility that is established as a designated work group under clause 18 or 19; or

(b) that group as varied in accordance with clause 20 or 21;

employee, in relation to an employer, means an employee of that employer;

employer means an employer who carries on an activity at a facility;

facility means a facility as defined by clause 4 and—

(a) includes a facility (as defined by clause 4) that is being constructed or installed; and

(b) except in the definition of associated offshore place, includes an associated offshore place in relation to a facility (as defined by clause 4);

group member, in relation to a designated work group at a facility, means a person who is—

(a) a member of the workforce at that facility; and

(b) included in that designated work group;

improvement notice means an improvement notice issued under clause 61(1);

inspection means an inspection conducted under Part 4 of this Schedule and includes an investigation or inquiry;

master, in relation to a vessel, means the person having command or charge of the vessel;

member of the workforce, in relation to a facility, means a natural person who does work at the facility, whether—

(a) as an employee of the operator of the facility or of another person; or

(b) as a contractor of the operator or of another person;

offshore petroleum operations has the same meaning as in Part 3A;

operator, in relation to a facility or proposed facility, means the person who, under the regulations, is taken to be the operator of that facility or proposed facility;

operator's representative at a facility means a person present at the facility in compliance with the obligations imposed on the operator by clause 5;

own includes own jointly and own in part;

plant includes any machinery, equipment or tool, or any component;

premises includes the following:

(a) a structure or building;

(b) a place (whether or not enclosed or built on);

prohibition notice means a prohibition notice issued under clause 59(1);

proposed facility means a facility proposed to be constructed, installed or operated;

recovery, in relation to petroleum, includes all processes directly or indirectly associated with its recovery;

registered organisation means an organisation within the meaning of the Workplace Relations Act 1996 of the Commonwealth;

regulated business premises means—

(a) a facility; or

(b) premises that are—

(i) occupied by a person who is the operator of a facility; and

(ii) used, or proposed to be used, wholly or principally in connection with offshore petroleum operations;

regulations means regulations made for the purposes of this Schedule;

reviewing authority means the Australian Industrial Relations Commission;

work means work offshore that is directly or indirectly related to the construction, installation, operation, maintenance or decommissioning of a facility;

workforce representative means—

(a) in relation to a person who is a member of the workforce at a facility—a registered organisation of which that person is a member, if the person is qualified to be a member of that organisation because of the work the person performs at the facility; or

(b) in relation to a designated work group or a proposed designated work group—a registered organisation of which a person who is, or who is likely to be, in the work group is a member, if the person is qualified to be a member of that organisation because of the work the person performs, or will perform, at a facility as a member of the group;

work group employer, in relation to a designated work group at a facility, means an employer of one or more group members, but does not include the operator of the facility;

workplace, in relation to a facility, means the whole facility or any part of the facility.

4—Facilities

(1) A vessel or structure is taken to be a facility for the purposes of this Schedule while that vessel or structure—

(a) is located at a site in the adjacent area; and

(b) is being used, or prepared for use, at that site—

(i) for the recovery of petroleum, for the processing of petroleum, or for the storage and offloading of petroleum, or for any combination of those activities; or

(ii) for the provision of accommodation for persons working on another facility, whether connected by a walkway to that other facility or not; or

(iii) for drilling or servicing a well for petroleum or doing work associated with the drilling or servicing process; or

(iv) for laying pipes for petroleum, including any manufacturing of such pipes, or for doing work on an existing pipe; or

(v) for the erection, dismantling or decommissioning of a vessel or structure referred to in a previous subparagraph of this paragraph; or

(vi) for any other purpose related to offshore petroleum operations that is prescribed for the purposes of this subparagraph.

(2) Subclause (1) applies to a vessel or structure—

(a) whether it is floating or fixed; and

(b) whether or not it is capable of independent navigation.

(3) Subclause (1) has effect subject to subclauses (6) and (7).

(4) A vessel or structure used for a purpose referred to in subclause (1)(b)(i) includes—

(a) any wells and associated plant and equipment by means of which petroleum processed or stored at the vessel or structure is recovered; and

(b) any pipe or system of pipes through which petroleum is conveyed from a well to the vessel or structure; and

(5) For the purposes of subclause (1), a vessel or structure that is located offshore for the purpose of laying pipes as described in subclause (1)(b)(iv) is taken to be located at a site, despite the fact that the vessel or structure moves as the pipe laying process proceeds.

(6) Despite subclause (1), a vessel or structure is taken not to be a facility for the purposes of this Schedule if the vessel or structure is—

(a) an offtake tanker; or

(b) a tug or an anchor handler; or

(d) a vessel or structure used for any purpose such that it is declared by the regulations not to be a facility.

(7) In determining when a vessel or structure that has the potential to be used for one or more of the purposes referred to in subclause (1)(b) is in fact being so used, the vessel or structure is taken—

(a) to commence to be so used only at the time when it arrives at the site where it is to be so used and any activities necessary to make it operational at that site are begun; and

(b) to cease to be so used when operations cease, and the vessel or structure has been returned either to a navigable form or to a form in which it can be towed to another place.

(8) Each of the following is taken to be a facility for the purposes of this Schedule:

(a) a pipeline subject to a pipeline licence;

(b) if a pipeline subject to a pipeline licence conveys petroleum recovered from a well without the petroleum having passed through another facility—that pipeline, together with—

(i) that well and associated plant and equipment; and

(ii) any pipe or system of pipes through which petroleum is conveyed from that well to that pipeline.

(9) In subclause (8)(b)—

facility does not include a pipeline.

5—Operator must ensure presence of operator's representative

(1) The operator of a facility must ensure that, at all times when one or more natural persons are present at a facility, there is also present a natural person (the operator's representative at the facility) who has day-to-day management and control of operations at the facility.

Maximum penalty:

(a) $5 500, in the case of a natural person;

(b) $27 500, in the case of a body corporate

(2) The operator of a facility must ensure that the name of the operator's representative at the facility is displayed in a prominent place at the facility.

Maximum penalty:

(a) $5 500, in the case of a natural person;

(b) $27 500, in the case of a body corporate

(3) Subclause (1) does not imply that, if the operator is a natural person, the operator's representative at the facility may not be, from time to time, the operator.

6—Health and safety of persons using an accommodation facility

For the avoidance of doubt, a reference in this Schedule to the occupational health and safety of a person includes a reference to the health and safety of a person using an accommodation facility provided for the accommodation of persons working on another facility.

7—Contractor

For the purposes of this Schedule, a natural person is taken to be a contractor of another person (the relevant person) if the natural person does work at a facility under a contract for services between—

(a) the relevant person; and

(b) either—

(i) the natural person; or

(ii) the employer of the natural person.

Part 2—Occupational health and safety

Division 1—Duties relating to occupational health and safety

8—Duties of operator

(1) The operator of a facility must take all reasonably practicable steps to ensure that—

(a) the facility is safe and without risk to the health of any person at or near the facility; and

(b) all work and other activities carried out on the facility are carried out in a manner that is safe and without risk to the health of any person at or near the facility.

Maximum penalty:

(a) $110 000, in the case of a natural person;

(b) $550 000, in the case of a body corporate.

(2) Without limiting the generality of subclause (1), the operator of a facility must—

(a) provide and maintain a physical environment at the facility that is safe and without risk to health; and

(b) provide and maintain adequate facilities for the welfare of all members of the workforce at the facility; and

(d) implement and maintain systems of work at the facility that are safe and without risk to health; and

(e) implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies at the facility; and

(f) provide all members of the workforce, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their activities in a manner that does not adversely affect the occupational health and safety of persons at the facility; and

(g) monitor the occupational health and safety of all members of the workforce and keep records of that monitoring; and

(h) provide appropriate medical and first aid services at the facility; and

(i) develop, in consultation with members of the workforce and workforce representatives, a policy relating to occupational health and safety that—

(i) will enable the operator and the members of the workforce to co-operate effectively in promoting and developing measures to ensure the occupational health and safety of persons at the facility; and

(ii) will provide adequate mechanisms for reviewing the effectiveness of the measures; and

(iii) provides for the making of an agreement that complies with subclauses (4) and (5).

Maximum penalty:

(a) $110 000, in the case of a natural person;

(b) $550 000, in the case of a body corporate.

(3) Subclause (2)(i) does not require the operator of a facility to engage in consultations with a workforce representative unless a member of the workforce at the facility has requested the workforce representative to be involved in those consultations.

(4) The agreement referred to in subclause (2)(i)(iii) must be between—

(a) on the one hand—the operator; and

(b) on the other hand—

(i) the members of the workforce; and

(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be a party to that agreement—that workforce representative.

(5) The agreement referred to in subclause (2)(i)(iii) must provide appropriate mechanisms for continuing consultation between—

(a) on the one hand—the operator; and

(b) on the other hand—

(i) the members of the workforce; and

(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be involved in consultations on a particular occasion—that workforce representative.

(6) The agreement may provide for any other matters agreed between the parties to it.

9—Duties of persons in control of parts of facility or particular work

(1) A person who is in control of any part of a facility, or of any particular work carried out at a facility, must take all reasonably practicable steps to ensure that—

(a) that part of the facility, or the place where that work is carried out, is safe and without risk to health; and

(b) if the person is in control of particular work—the work is carried out in a manner that is safe and without risk to health.

Maximum penalty:

(a) $110 000, in the case of a natural person;

(b) $550 000, in the case of a body corporate.

(2) Without limiting the generality of subclause (1), a person who is in control of any part of a facility, or of any particular work carried out at a facility, must—

(a) ensure that the physical environment at that part of the facility, or at the place where the work is carried out, is safe and without risk to health; and

(b) ensure that any plant, equipment, materials and substances at or near that part of the facility or that place, or used in that work, are safe and without risk to health; and

(c) implement and maintain systems of work at that part of the facility, or in carrying out work at that place, that are safe and without risk to health; and

(d) ensure a means of access to, and egress from, that part of the facility or that place that is safe and without risk to health; and

(e) provide all members of the workforce located at that part of the facility or engaged on that work, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.

Maximum penalty:

(a) $110 000, in the case of a natural person;

(b) $550 000, in the case of a body corporate.

10—Duties of employers

(1) An employer must take all reasonably practicable steps to protect the health and safety of employees at a facility.

Maximum penalty:

(a) $110 000, in the case of a natural person;

(b) $550 000, in the case of a body corporate.

(2) Without limiting the generality of subclause (1), an employer must—

(a) provide and maintain a working environment that is safe for employees and without risk to their health; and

(b) ensure that any plant, equipment, materials and substances used in connection with the employees' work are safe and without risk to health; and

(d) provide a means of access to, and egress from, the employees' work location that is safe and without risk to health; and

(e) provide the employees, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.

Maximum penalty:

(a) $110 000, in the case of a natural person;

(b) $550 000, in the case of a body corporate.

(3) A person has, in respect of a contractor of that person, the same obligations that an employer has under subclauses (1) and (2) in respect of an employee of that employer, but only in relation to—

(a) matters over which the first mentioned person has control; or

(b) matters over which—

(i) the first mentioned person would have had control apart from express provision to the contrary in a contract; and

(ii) the first mentioned person would, in the circumstances, usually be expected to have had control.

(4) An employer must take all reasonable steps to—

(a) monitor the health and safety of employees; and

(b) keep records of that monitoring.

Maximum penalty:

(a) $110 000, in the case of a natural person;

(b) $550 000, in the case of a body corporate.

11—Duties of manufacturers in relation to plant and substances

(1) A manufacturer of any plant that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonably practicable steps—

(a) to ensure that the plant is so designed and constructed as to be, when properly used, safe and without risk to health; and

(b) to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the plant; and

(i) the use for which it is designed and has been tested; and

(ii) details of its design and construction; and

(iii) any conditions necessary to ensure that, when put to the use for which it was designed and tested, it will be safe and without risk to health.

Maximum penalty:

(a) $22 000, in the case of a natural person;

(b) $110 000, in the case of a body corporate.

(2) A manufacturer of any substance that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonably practicable steps—

(a) to ensure that the substance is so manufactured as to be, when properly used, safe and without risk to health; and

(b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the substance; and

(c) to make available, in connection with the use of the substance at a facility, adequate written information concerning—

(i) the use for which it is manufactured and has been tested; and

(ii) details of its composition; and

(iii) any conditions necessary to ensure that, when put to the use for which it was manufactured and tested, it will be safe and without risk to health; and

(iv) the first aid and medical procedures that should be followed if the substance causes injury.

Maximum penalty:

(a) $22 000, in the case of a natural person;

(b) $110 000, in the case of a body corporate.

(3) If—

(a) plant or a substance is imported into Australia by a person who is not its manufacturer; and

(b) at the time of the importation, the manufacturer of the plant or substance does not have a place of business in Australia,

the first mentioned person is taken, for the purposes of this clause, to be the manufacturer of the plant or substance.

(4) This clause does not affect the operation of any other law of this State that imposes an obligation on a manufacturer in respect of defective goods or in respect of information to be supplied in relation to goods.

12—Duties of suppliers of facilities, plant and substances

(1) A supplier of a facility, or of any plant or substance that the supplier ought reasonably to expect will be used by members of the workforce at a facility, must take all reasonably practicable steps—

(a) to ensure that, at the time of supply, the facility, or the plant or substance, is in such condition as to be, when properly used, safe and without risk to health; and

(b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health or safety that may arise from the condition of the facility, plant or substance; and

(i) in the case of a facility—to the operator of a facility; and

(ii) in the case of plant or substance—to the person to whom the plant or substance is supplied,

adequate written information, in connection with the use of the facility, plant or substance (as the case requires) about—

(iii) the condition of the facility, plant or substance at the time of supply; and

(iv) any risk to the health and safety of members of the workforce at the facility to which the condition of the facility, plant or substance may give rise unless it is properly used; and

(v) the steps that need to be taken in order to eliminate that risk; and

(vi) in the case of a substance—the first aid and medical procedures that should be followed if the condition of the substance causes injury to a member of the workforce at the facility.

Maximum penalty:

(a) $22 000, in the case of a natural person;

(b) $110 000, in the case of a body corporate.

(2) For the purposes of subclause (1), if a person (the ostensible supplier) supplies to a person either a facility, or any plant or substance that is to be used by members of the workforce at a facility, and the ostensible supplier—

(a) carries on the business of financing the acquisition or the use of goods by other persons; and

(b) has, in the course of that business, acquired an interest in the facility, or in the plant or substance, from another person (the actual supplier), solely for the purpose of financing its acquisition by, or its provision to, the person to whom it is finally supplied; and

(c) has not taken possession of the facility, plant or substance, or has taken possession of the facility, plant or substance solely for the purpose of passing possession of the facility, plant or substance to the person to whom it is finally supplied,

a reference in subclause (1) to a supplier is, in relation to the facility, plant or substance referred to in this subclause, to be read as a reference to the actual supplier and not as a reference to the ostensible supplier.

(3) This clause does not affect the operation of any other law of this State that imposes an obligation in respect of the sale or supply of goods or in respect of the information to be supplied in relation to goods.

13—Duties of persons erecting facilities or installing plant

(1) A person who erects or installs a facility, or erects or installs any plant at a facility, must take all reasonably practicable steps to ensure that the facility or plant is not erected or installed in such a way that it is unsafe or constitutes a risk to health.

Maximum penalty:

(a) $22 000, in the case of a natural person;

(b) $110 000, in the case of a body corporate.

(2) This clause does not affect the operation of any other law of this State that imposes an obligation in respect of the erection or installation of structures or goods or the supply of services.

14—Duties of persons in relation to occupational health and safety

(1) A person at a facility must, at all times, take all reasonably practicable steps—

(a) to ensure that the person does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the occupational health and safety of that person or of any other person at or near the facility; and

(b) in respect of any obligation imposed on the operator or on any other person by or under a listed OHS law—to co‑operate with the operator or that other person to the extent necessary to enable the operator or that other person to fulfil that obligation; and

(i) supplied to the person by the operator, an employer of the person or any other person having control of work at a facility (the equipment supplier); and

(ii) necessary to protect the occupational health and safety of the person, or of any other person at or near the facility,

in accordance with any instructions given by the equipment supplier, consistent with the safe and proper use of the equipment.

Maximum penalty:

(a) $5 500, in the case of a natural person;

(b) $27 500, in the case of a body corporate.

(2) Despite subclause (1), the choice or manner of use, or choice and manner of use, of equipment of the kind referred to in subclause‑(1)(c)(ii) is a matter that may be, consistently with each listed OHS law—

(a) agreed on between the equipment supplier and any relevant health and safety representative; or

(b) agreed on by a health and safety committee.

(3) If an agreement of the kind referred to in subclause (2)(a) or (b) provides a process for choosing equipment of a particular kind that is to be provided by the equipment supplier, action must not be taken against a person for failure to use equipment of that kind that is so provided unless the equipment has been chosen in accordance with that process.

(4) If an agreement of the kind referred to in subclause (2)(a) or (b) provides a process for determining the manner of use of equipment of a particular kind, action must not be taken against a person for failure to use, in the manner required by the equipment supplier, equipment of that kind that is so provided unless the manner has been determined in accordance with that process.

15—Reliance on information supplied or results of research

(1) For the purpose of the application of clause 8, 9 or 10 to the use of plant or a substance, a person on whom an obligation is imposed under any of those clauses is regarded as having taken reasonably practicable steps as required by the relevant clause, in relation to the use of the plant or substance, to the extent that—

(a) the person ensured, so far as practicable, that its use was in accordance with the information supplied by the manufacturer or the supplier of the plant or substance relating to occupational health and safety in its use; and

(b) it was reasonable for the person to rely on that information.

(2) For the purpose of the application of clause 11 or 12 to carrying out research, testing and examining a facility, or any plant or substance, a person on whom an obligation is imposed under either of those clauses is regarded as having taken reasonably practicable steps as required by the relevant clause, in relation to carrying out research, testing and examining the facility, plant or substance, to the extent that—

(a) the research, testing or examination has already been carried out by or on behalf of someone else; and

(b) it was reasonable for the person to rely on that research, testing or examination.

(3) For the purpose of the application of clause 13 to the erection of a facility or the erection or installation of plant at a facility, a person on whom an obligation is imposed under that clause is regarded as having taken reasonably practicable steps as required by that clause to the extent that—

(a) the person ensured, so far as is reasonably practicable, that the erection of the facility, or the erection or installation of the plant, was—

(i) in accordance with information supplied by the manufacturer or supplier of the facility or plant relating to its erection or its installation; and

(ii) consistent with the occupational health and safety of persons at the facility; and

(b) it was reasonable for the person to rely on that information.

(4) Nothing in this clause limits the generality of what constitutes reasonably practicable steps as required by clause 8, 9, 10, 11, 12 or 13.

Division 2—Regulations relating to occupational health and safety

16—Regulations relating to occupational health and safety

(1) The regulations may make provision relating to any matter affecting, or likely to affect, the occupational health and safety of persons at a facility.

(2) Regulations made for the purposes of subclause (1) may make provision for any or all of the following—

(a) prohibiting or restricting the performance of all work or specified work at a facility;

(b) prohibiting or restricting the use of all plant or specified plant at a facility;

(d) prohibiting or restricting the storage or use of all substances or specified substances at a facility;

(e) specifying the form in which information required to be made available under clause 11(1)(c) or 12(1)(c) is to be so made available;

(f) prohibiting, except in accordance with licences granted under the regulations, the use of specified plant or specified substances at a facility;

(g) providing for—

(i) the issue, variation, renewal, transfer, suspension and cancellation of those licences; and

(ii) the conditions to which the licences may be subject;

(h) regulating the maintenance and testing of plant used at a facility;

(i) regulating the labelling or marking of substances used at a facility;

(j) regulating the transport of specified plant or specified substances for use at a facility;

(k) prohibiting the performance, at a facility, of specified activities or work except—

(i) by persons who satisfy requirements of the regulations as to qualifications, training or experience; or

(ii) under the supervision specified in the regulations;

(l) requiring specified action to avoid accidents or dangerous occurrences;

(m) providing for, or prohibiting, specified action in the event of accidents or dangerous occurrences;

(n) providing for the employment at a facility of persons to perform specified duties relating to the maintenance of occupational health and safety at the facility;

(o) regulating the provision and use, at a facility, of protective clothing and equipment, safety equipment and rescue equipment;

(p) providing for monitoring the health of members of the workforce at a facility and the conditions at the facility;

(q) requiring employers to keep records of matters related to the occupational health and safety of employees;

(r) providing for the provision of first aid equipment and facilities at facilities.

Part 3—Workplace arrangements

Division 1—Introduction

17—Simplified outline

The following is a simplified outline of this Part:

(a) a group of members of the workforce at a facility may be established as a designated work group; and

(b) the members of a designated work group may select a health and safety representative for that designated work group; and

(c) the health and safety representative may exercise certain powers for the purpose of promoting or ensuring the occupational health and safety of group members; and

(d) a health and safety committee may be established in relation to the members of the workforce at a facility; and

(e) the main function of a health and safety committee is to assist the operator in relation to occupational health and safety matters.

Division 2—Designated work groups

Subdivision A—Establishment of designated work groups

18—Establishment of designated work groups by request

(1) A request to the operator of a facility to enter into consultations to establish designated work groups in relation to the members of the workforce at the facility may be made by—

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator—that workforce representative.

(2) The operator of a facility must, within 14 days after receiving a request under subclause (1), enter into consultations with—

(a) if any member of the workforce made a request to establish designated work groups—

(i) that member of the workforce; and

(ii) if that member requests that the operator enter into consultations with a workforce representative in relation to the member—that workforce representative; and

(iii) each employer (if any) of members of the workforce; and

(b) if a workforce representative made a request to establish designated work groups—

(i) if a member of the workforce requests that the operator enter into consultations with that workforce representative—that workforce representative; and

(ii) each employer of members of the workforce.

(3) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

19—Establishment of designated work groups at initiative of operator

(1) If, at any time, the operator of a facility considers that designated work groups should be established, the operator must enter into consultations with—

(a) all members of the workforce; and

(b) if a member of the workforce requests that the operator enter into consultations with a workforce representative in relation to the member—that workforce representative; and

(2) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

Subdivision B—Variation of Designated Work Groups

20—Variation of designated work groups by request

(1) A request to the operator of a facility to enter into consultations to vary designated work groups that have already been established in relation to the members of the workforce at the facility may be made by—

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator—that workforce representative.

(2) The operator of a facility must, within 14 days after receiving a request under subclause (1), enter into consultations with—

(a) if any member of the workforce made a request to vary designated work groups—

(i) that member of the workforce; and

(ii) the health and safety representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation; and

(b) if a workforce representative made a request to vary designated work groups—

(i) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with that workforce representative in relation to the group—that workforce representative; and

(ii) the health and safety representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation.

(3) If—

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified,

then, within 14 days after the completion of the consultations, the operator must, by notifying the members of the workforce who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations.

21—Variation of designated work groups at initiative of operator

(1) If the operator of a facility believes the designated work groups should be varied, the operator may, at any time, enter into consultations about the variations with—

(a) the health and safety representative of each of the designated work groups affected by the proposed variation; and

(b) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with that workforce representative in relation to the group—that workforce representative; and

(2) If—

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified,

Subdivision C—General

22—Referral of disagreement to reviewing authority

(1) If, in the course of consultations under clause 18, 19, 20 or 21, there is a disagreement between any of the parties to the consultation about the manner of establishing or varying a designated work group, any party may, for the purpose of facilitating that consultation, refer the matter of disagreement to the reviewing authority.

(2) If the matter of a disagreement is referred to the reviewing authority, the parties to the disagreement must complete the consultation in accordance with the resolution of that matter by the reviewing authority.

23—Manner of grouping members of the workforce

(1) Consultations about the establishment or variation of a designated work group must be directed principally at the determination of the manner of grouping members of the workforce—

(a) that best and most conveniently enables their interests relating to occupational health and safety to be represented and safeguarded; and

(b) that best takes account of the need for any health and safety representative selected for that designated work group to be accessible to each group member.

(2) The parties to the consultations must have regard, in particular, to—

(a) the number of members of the workforce at the facility to which the consultation relates; and

(b) the nature of each type of work performed by those members; and

(d) the workplaces where each type of work is performed; and

(e) the nature of any risks to health and safety at each of those workplaces; and

(f) any overtime or shift working arrangement at the facility.

(3) The designated work groups must be established or varied in such a way that, so far as practicable, each of the members of the workforce at a facility is in a designated work group.

(4) All the members of the workforce at a facility may be in one designated work group.

Division 3—Health and safety representatives

Subdivision A—Selection of health and safety representatives

24—Selection of health and safety representatives

(1) One health and safety representative may be selected for each designated work group.

(2) A person is not eligible for selection as the health and safety representative for a designated work group unless the person is a member of the workforce included in the group.

(3) A person is taken to have been selected as the health and safety representative for a designated work group if—

(a) all the members of the workforce in the group unanimously agree to the selection; or

(b) the person is elected as the health and safety representative of the group in accordance with clause 25.

25—Election of health and safety representatives

(1) If—

(a) there is a vacancy in the office of health and safety representative for a designated work group; and

(b) within a reasonable time after the vacancy occurs, a person has not been selected under clause 24(3)(a),

the operator of the facility must invite nominations from all group members for election as the health and safety representative of the group.

(2) If the office of health and safety representative is vacant and the operator has not invited nominations within a further reasonable time that is no later than 6 months after the vacancy occurred, the Safety Authority may direct the operator to do so.

(3) If there is more than one candidate for election at the close of the nomination period, the operator must conduct, or arrange for the conduct of, an election at the operator's expense.

(4) An election conducted or arranged to be conducted under subclause (3) must be conducted in accordance with regulations made for the purposes of this subclause if this is requested by the lesser of—

(a) 100 members of the workforce normally in the designated work group; or

(b) a majority of the members of the workforce normally in the designated work group.

(5) If there is only one candidate for election at the close of the nomination period, that person is taken to have been elected.

(6) A person cannot be a candidate in the election if he or she is disqualified under clause 31.

(7) All the members of the workforce in the designated work group are entitled to vote in the election.

(8) An operator conducting or arranging for the conduct of an election under this clause must comply with any relevant directions issued by the Safety Authority.

26—List of health and safety representatives

The operator of a facility must—

(a) prepare and keep up to date a list of all the health and safety representatives of designated work groups comprising members of the workforce performing work at the facility; and

(b) ensure that the list is available for inspection, at all reasonable times, by—

(i) the members of the workforce at the facility; and

(ii) OHS inspectors.

27—Members of designated work group must be notified of selection etc. of health and safety representative

The operator of a facility must—

(a) notify members of a designated work group in relation to the facility of a vacancy in the office of health and safety representative for the designated work group within a reasonable time after the vacancy arises; and

(b) notify those members of the name of any person selected (whether under clause 24(3)(a) or (b)) as health and safety representative for the designated work group within a reasonable time after the selection is made.

28—Term of office

(1) A health and safety representative for a designated work group holds office—

(a) if, in consultations that took place under clause 18, 19, 20 or 21, the parties to the consultations agreed to the period for which the health and safety representative for the group was to hold office—for that period; or

(b) if paragraph (a) does not apply—for 2 years.

(2) The term of office of a health and safety representative begins at the start of the day on which he or she was selected.

(3) Nothing in this clause prevents a health and safety representative from being selected for further terms of office.

29—Training of health and safety representatives

(1) A health and safety representative for a designated work group must undertake a course of training relating to occupational health and safety that is accredited by the Safety Authority for the purposes of this clause.

(2) The operator of the facility concerned must permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

(3) If a person other than the operator is the employer of the representative, that person must permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

30—Resignation etc of health and safety representatives

(1) A person ceases to be the health and safety representative for the designated work group if—

(a) the person resigns as the health and safety representative; or

(b) the person ceases to be a group member of that designated work group; or

(c) the person's term of office expires without the person having been selected, under clause 24, to be the health and safety representative for the designated work group for a further term; or

(d) the person is disqualified under clause 31.

(2) A person may resign as the health and safety representative for a designated work group by notice in writing delivered to the operator and to each work group employer.

(3) If a person resigns as the health and safety representative for a designated work group, the person must notify the resignation to the group members.

(4) If a person has ceased to be the health and safety representative for a designated work group because of subclause (1)(b), the person must notify in writing—

(a) the group members; and

(b) the operator and each work group employer,

that the person has ceased to be the health and safety representative for that designated work group.

31—Disqualification of health and safety representatives

(1) An application for the disqualification of a health and safety representative for a designated work group may be made to the Safety Authority by—

(a) the operator; or

(b) a work group employer; or

(c) at the request of a group member of the designated work group—a workforce representative in relation to the designated work group.

(2) An application under subclause (1) may be made on either or both of the following grounds—

(a) that action taken by the representative in the exercise or purported exercise of a power under clause 33(1) or any other provision of this Schedule was taken—

(i) with the intention of causing harm to the operator or work group employer or to an undertaking of the operator or work group employer; or

(ii) unreasonably, capriciously or not for the purpose for which the power was conferred on the representative;

(b) that the representative has intentionally used, or disclosed to another person, for a purpose that is not connected with the exercise of a power of a health and safety representative, information acquired from the operator or work group employer.

(3) On an application under subclause (1), the Safety Authority may disqualify the representative, for a specified period not exceeding 5 years, from being a health and safety representative for any designated work group, if the Safety Authority is satisfied that the representative has acted in a manner referred to in subclause (2).

(4) In making a decision under subclause (3), the Safety Authority must have regard to—

(a) the harm (if any) that was caused to the operator or work group employer or to an undertaking of the operator or work group employer as a result of the action of the representative; and

(b) the past record of the representative in exercising the powers of a health and safety representative; and

(d) any other matters the Safety Authority thinks relevant.

32—Deputy health and safety representatives

(1) One deputy health and safety representative may be selected for each designated work group for which a health and safety representative has been selected.

(2) A deputy health and safety representative is to be selected in the same way as a health and safety representative under clause 24.

(3) If the health and safety representative for a designated work group—

(a) ceases to be the health and safety representative; or

(b) is unable (because of absence or for any other reason) to exercise the powers of a health and safety representative,

then—

(d) this Schedule (other than this clause) applies in relation to the deputy health and safety representative accordingly.

Subdivision B—Powers of health and safety representatives

33—Powers of health and safety representatives

(1) A health and safety representative for a designated work group may, for the purpose of promoting or ensuring the health and safety at a workplace of the group members—

(a) do all or any of the following—

(i) inspect the whole or any part of the workplace if there has, in the immediate past, been an accident or a dangerous occurrence at the workplace, or if there is an immediate threat of such an accident or dangerous occurrence;

(ii) inspect the whole or any part of the workplace if the health and safety representative has given reasonable notice of the inspection to the operator's representative at the facility and to any other person having immediate control of the workplace;

(iii) make a request to an OHS inspector or to the Safety Authority that an inspection be conducted at the workplace;

(iv) accompany an OHS inspector during any inspection at the workplace by the OHS inspector (whether or not the inspection is being conducted as a result of a request made by the health and safety representative);

(v) if there is no health and safety committee in respect of the members of the workforce at the facility—represent group members in consultations with the operator and any work group employer about the development, implementation and review of measures to ensure the health and safety of those members at the workplace;

(vi) if a health and safety committee has been established in respect of the members of the workforce at the facility—examine any of the records of that committee; and

(b) investigate complaints made by any group member to the health and safety representative about the health and safety of any of the members of the workforce (whether in the group or not); and

(c) with the consent of a group member, be present at any interview about health and safety at work between that member and—

(i) an OHS inspector; or

(ii) the operator or a person representing the operator; or

(iii) a work group employer or a person representing that employer; and

(d) obtain access to any information under the control of the operator or any work group employer—

(i) relating to risks to the health and safety of any group member; and

(ii) relating to the health and safety of any group member; and

(e) issue provisional improvement notices in accordance with clause 37.

(2) Subclause (1)(d)(ii) has effect subject to clause 35.

34—Assistance by consultant

(1) A health and safety representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant.

(2) A health and safety representative for a designated work group may—

(a) be assisted by a consultant at a workplace at which work is performed; or

(b) provide to a consultant information that has been provided to the health and safety representative by a group member under clause 33(1)(d),

only if the operator or the Safety Authority has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be.

(3) Neither the operator nor any workplace employer becomes, because of the agreement under subclause (2) to the provision of assistance by a consultant, liable for any remuneration or other expenses incurred in connection with the consultant's activities.

(4) If a health and safety representative for a designated work group is being assisted by a consultant, the consultant is entitled to be present with the representative at any interview, about health and safety at work, between a group member and—

(a) an OHS inspector; or

(b) the operator or any work group employer or a person representing the operator or that employer,

if, and only if, the group member consents to the presence of the consultant.

35—Information

(1) Neither—

(a) a health and safety representative; nor

(b) a consultant assisting a health and safety representative,

is entitled, under clause 33(1)(d)(ii), to have access to information in respect of which a group member is entitled to claim, and does claim, legal professional privilege.

(2) Neither—

(a) a health and safety representative; nor

(b) a consultant assisting a health and safety representative,

is entitled, under clause 33(1)(d)(ii), to have access to information of a confidential medical nature relating to a person who is or was a group member unless—

(c) the person has delivered to the operator or any work group employer a written authority permitting the health and safety representative, or the health and safety representative and the consultant, as the case requires, to have access to the information; or

(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

36—Obligations and liabilities of health and safety representatives

This Schedule does not—

(a) impose an obligation on a person to exercise any power conferred on the person because the person is a health and safety representative; or

(b) render a person liable in civil proceedings because of—

(i) a failure to exercise such a power; or

(ii) the way such a power was exercised.

37—Provisional improvement notices

(1) If—

(a) a health and safety representative for a designated work group believes, on reasonable grounds, that a person—

(i) is contravening a provision of a listed OHS law; or

(ii) has contravened a provision of a listed OHS law and is likely to contravene that provision again; and

(b) the contravention affects or may affect one or more group members,

the representative must consult with the person supervising the relevant activity in an attempt to reach agreement on rectifying the contravention or preventing the likely contravention.

(2) If, in the health and safety representative's opinion, agreement is not reached within a reasonable time, the health and safety representative may issue a provisional improvement notice to any or all of the persons (each of whom is in this clause called a responsible person) responsible for the contravention.

(3) If a responsible person is the operator, the improvement notice may be issued to the operator by giving it to the operator's representative at the facility.

(4) If it is not practicable to issue the notice to a responsible person (other than the operator or the supervisor) by giving it to that responsible person—

(a) the notice may be issued to that responsible person by giving it to the person who for the time being is, or may reasonably be presumed to be, on behalf of the responsible person, in charge of the activity to which the notice relates; and

(b) if the notice is so issued, a copy of the notice must be given to the responsible person as soon as practicable afterwards.

(5) The notice must—

(a) specify the contravention that, in the health and safety representative's opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and

(b) specify a period that—

(i) is not less than 7 days beginning on the day after the notice is issued; and

(ii) is, in the representative's opinion, reasonable,

within which the responsible person is to take action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be.

(6) The notice may specify action that the responsible person is to take during the period specified in the notice.

(7) If, in the health and safety representative's opinion, it is appropriate to do so, the representative may, in writing and before the end of the period, extend the period specified in the notice.

(8) On issuing the notice, the health and safety representative must give a copy of the notice to—

(a) if the operator is not a responsible person—the operator; and

(b) each work group employer other than a work group employer who is a responsible person; and

(d) if the notice relates to any plant, substance or thing that is owned by a person other than a responsible person or a person to whom a copy of the notice is given under paragraph (a), (b) or (c)—that owner.

38—Effect of provisional improvement notice

(1) Within 7 days after a notice is issued under clause 37—

(a) the responsible person; or

(b) any other person, to whom a copy of the notice has been given under clause 37(8),

may request the Safety Authority or an OHS inspector for an inspection of the matter to be conducted.

(2) On the request being made, the operation of the notice is suspended pending the determination of the matter by an OHS inspector.

(3) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the disagreement, and the OHS inspector conducting the inspection must—

(a) confirm, vary or cancel the notice and notify the responsible person and any person to whom a copy of the notice has been given under clause 37(8) accordingly; and

(b) make decisions, and exercise powers, under Part 4, as the OHS inspector considers necessary in relation to the work.

(4) If the OHS inspector varies a notice, the notice as so varied has effect—

(a) so far as the notice concerns obligations imposed on the responsible person that are unaffected by the variation—as if the notice as so varied resumed effect on the day of the variation; and

(b) so far as the notice concerns new obligations imposed by virtue of the variation—as if the notice as so varied were a new notice issued on the day of the variation.

(5) If the notice is issued to a responsible person, the responsible person must—

(a) notify each group member who is affected by the notice of the fact of the issue of the notice; and

(b) until the notice ceases to have effect, cause a copy of the notice to be displayed at or near each workplace at which the work that is the subject of the notice is being performed.

(6) The notice ceases to have effect if—

(a) it is cancelled by an OHS inspector or by the health and safety representative; or

(b) the responsible person—

(i) takes the action, if any, specified in the notice; or

(ii) if no action is so specified—takes the action necessary to prevent the further contravention, or likely contravention, concerned.

(7) The responsible person—

(a) must ensure that, to the extent that the notice relates to any matter over which the person has control, the notice is complied with; and

(b) must take reasonable steps to inform the health and safety representative who issued the notice of the action taken to comply with the notice.

(8) For the purposes of clause 65, if the OHS inspector confirms or varies the notice, the OHS inspector is taken to have decided, under clause 61, to issue an improvement notice in those terms.

Subdivision C—Duties of the operator and other employers in relation to health and safety representatives

39—Duties of the operator and other employers in relation to health and safety representatives

(1) The operator of a facility, in relation to which a designated work group having a health and safety representative has been established, must—

(a) on being requested to do so by the representative, consult with the representative on the implementation of changes at any workplace at which some or all of the group members perform work, being changes that may affect their health and safety; and

(b) in relation to a workplace at which some or all of the group members perform work—

(i) permit the representative to make any inspection of the workplace that the representative is entitled to make in accordance with clause 33(1)(a)(i) and to accompany an OHS inspector during an inspection at the workplace by the OHS inspector; and

(ii) if there is no health and safety committee in respect of the members of the workforce—on being requested to do so by the representative, consult with the representative about the development, implementation and review of measures to ensure the health and safety of group members; and

(c) permit the representative to be present at any interview at which the representative is entitled to be present under clause 33(1)(c); and

(d) provide to the representative access to any information to which the representative is entitled to obtain access under clause 33(1)(d)(i) or (ii) and to which access has been requested; and

(e) permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to exercise the powers of a health and safety representative; and

(f) provide the representative with access to any facilities that are—

(i) prescribed for the purposes of this paragraph; or

(ii) necessary for the purposes of exercising the powers of a health and safety representative.

(2) Subclause (1)(d) has effect subject to subclauses (3) and (4).

(3) The operator must not permit a health and safety representative in relation to a designated work group to have access to information that—

(a) is of a confidential medical nature under the control of the operator; and

(b) relates to a person who is or was a group member,

unless—

(c) the person has delivered to the employer a written authority permitting the representative to have access to the information; or

(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

(4) The operator is not required to give a health and safety representative access to any information in respect of which the operator is entitled to claim, and does claim, legal professional privilege.

(5) The duties imposed by this clause on the operator in respect of the health and safety representative for a designated work group apply equally, to the extent that the matters to which the duties relate are within the control of a work group employer or of a supervisor of particular work, to that employer and to that supervisor.

Division 4—Health and safety committees

40—Health and safety committees

(1) A health and safety committee must be established in relation to the members of the workforce at a facility if—

(a) the number of those members normally present at the facility is not less than 50 (whether or not those members are all at work at the facility at the same time); and

(b) the members of the workforce are included in one or more designated work groups; and

(c) the operator is requested to establish the committee by the health and safety representative for the designated work group or for one of the designated work groups.

(2) The health and safety committee consists of—

(a) the number of members specified in an agreement reached between the operator and the members of the workforce; or

(b) if there is no such agreement—an equal number of—

(i) members, chosen by the members of the workforce, to represent the interests of members of the workforce; and

(ii) members, chosen by the operator, to represent the interests of the operator and the employer (other than the operator) of members of the workforce.

(3) The agreement referred to in subclause (2)(a) may—

(a) specify the persons who are to be members to represent the interests of the operator and employers (other than the operator) of members of the workforce; and

(b) provide for the way in which persons who are to be members to represent the interests of members of the workforce are to be chosen.

(4) If regulations made for the purposes of this clause specify procedures for the selection of persons as members of health and safety committees to represent the interests of members of the workforce, an agreement referred to in subclause (2)(a) must not provide for members to be chosen in a way inconsistent with the regulations.

(5) A health and safety committee must hold a meeting at least once every 3 months.

(6) The procedure at meetings of a health and safety committee must, except to the extent provided for by the regulations, be the procedure agreed upon by the committee.

(7) A health and safety committee must cause minutes of its meetings to be kept, and must retain those minutes for a period of not less than 3 years.

(8) This clause does not prevent an operator from establishing, in consultation with registered unions or any other persons, committees concerned with occupational health and safety in relation to undertakings carried on by the operator.

41—Functions of health and safety committees

(1) A health and safety committee has the following functions—

(a) to assist the operator of the facility concerned—

(i) to develop and implement measures designed to protect; and

(ii) to review and update measures used to protect,

the health and safety at work of members of the workforce;

(b) to facilitate co-operation between the operator of the facility, employers (other than the operator) of members of the workforce, and members of the workforce, in relation to occupational health and safety matters;

(c) to assist the operator to disseminate among members of the workforce, in appropriate languages, information relating to health and safety at work;

(d) any prescribed functions;

(e) any other functions that are agreed between the operator and the health and safety committee.

(2) A health and safety committee has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

(3) This Schedule does not—

(a) impose an obligation on a person to do any act, because the person is a member of a health and safety committee, in connection with the performance of a function conferred on the committee; or

(b) render such a person liable in civil proceedings because of—

(i) a failure to do such an act; or

(ii) the manner in which such an act was done.

42—Duties of the operator and other employers in relation to health and safety committees

(1) If there is a health and safety committee, the operator and any employer (other than the operator) of a member of the workforce must—

(a) make available to the committee any information possessed by the operator or that employer relating to risks to health and safety to members of the workforce; and

(b) permit any member of the committee who is a member of the workforce to take time off work, without loss of remuneration or other entitlements, as is necessary for the member adequately to participate in the performance by the committee of its functions.

(2) Subclause (1)(a) has effect subject to subclauses (3) and (4).

(3) The operator or any employer (other than the operator) of a member of the workforce must not make available to a health and safety committee information of a confidential nature relating to a person who is or was a member of the workforce, unless—

(a) the person has authorised the information to be made available to the committee; or

(b) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

(4) The operator or any employer (other than the operator) of a member of the workforce is not required to make available to a health and safety committee any information in respect of which the operator or employer is entitled to claim, and does claim, legal professional privilege.

Division 5—Emergency procedures

43—Action by health and safety representatives

(1) If a health and safety representative for a designated work group has reasonable cause to believe that there is an imminent and serious danger to the health or safety of any person at or near the facility unless a group member or group members cease to perform particular work, the representative must—

(a) inform a person (a supervisor) supervising the group member or group members in the performance of the work of the danger; or

(b) if no supervisor can be contacted immediately—

(i) direct the group member or group members to cease, in a safe manner, to perform the work; and

(ii) as soon as practicable, inform a supervisor that the direction has been given.

(2) If a supervisor is informed under subclause (1)(a) of a danger to the health or safety of any person at or near the facility, the supervisor must take the action he or she thinks appropriate to remove that danger, which may include directing a group member or group members to cease, in a safe manner, to perform the work.

(3) If—

(a) a health and safety representative has informed a supervisor under subclause (1)(a) of a danger; and

(b) the representative has reasonable cause to believe that, despite any action taken by the supervisor in accordance with subclause (2), there continues to be an imminent and serious danger to the health or safety of any person at or near the facility unless the group member or group members cease to perform particular work,

the representative must—

(d) as soon as practicable, inform the supervisor that the direction has been given.

(4) If—

(a) a health and safety representative gives a direction under subclause (1)(b), but is unable to agree with a supervisor whom the representative has informed under that subclause that there is a need for a direction under that subclause; or

(b) a health and safety representative gives a direction under subclause (3)(c),

the representative or the supervisor may request the Safety Authority or an OHS inspector that an inspection be conducted of the work that is the subject of the direction.

(5) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the direction, and the OHS inspector conducting the inspection must make decisions, and exercise powers, under Part 4 as the OHS inspector considers necessary in relation to the work.

(6) This clause does not limit the power of a health and safety representative under clause 33(1)(a)(iii) to request an OHS inspector or the Safety Authority that an inspection be conducted at the workplace.

44—Directions to perform other work

If—

(a) a group member who is an employee has ceased to perform work, in accordance with the direction of a health and safety representative under clause 43(1)(b) or (3)(c); and

(b) the cessation of work does not continue after—

(i) the health and safety representative has agreed with a person supervising work at the workplace where the work was being performed that the cessation of work was not, or is no longer, necessary; or

(ii) an OHS inspector has, under clause 43(5), made a decision to the effect that the employee should perform the work,

the employer may direct the employee to perform suitable alternative work, and the employee is to be taken, for all purposes, to be required to perform that other work under the terms and conditions of the employee's employment.

Division 6—Exemptions

45—Exemptions

(1) The Safety Authority may, in accordance with the regulations, make a written order exempting a specified person or class of person from any or all of the provisions of this Part (other than this clause).

(2) The Safety Authority must not make an order under subclause (1) unless it is satisfied on reasonable grounds that it is impracticable for the person to comply with the provision or provisions.

Part 4—Inspections

Division 1—Introduction

46—Simplified outline

The following is a simplified outline of this Part:

South Australian Bills

PETROLEUM (SUBMERGED LANDS) (MISCELLANEOUS) AMENDMENT BILL 2004