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TASMANIA
__________
PETROLEUM (SUBMERGED LANDS)
AMENDMENT BILL 2004
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 8 substituted
8. Interpretation
6. Section 14A inserted
14A. Disapplication of State occupational health and
safety laws
7. Section 58 amended ("Unit development")
8. Section 63 amended (Application for pipeline licence)
9. Section 64 amended (Grant or refusal of pipeline licence)
10. Section 124A inserted
124A. Interfering with offshore petroleum installation
or operations
11. Part IIIA inserted
PART IIIA Occupational health and safety
Division 1 Preliminary
150A. Interpretation
150B. Occupational health and safety
150C. Listed OHS laws
[Bill 22]-I
150D. Regulations relating to occupational health and
safety
Division 2 Functions and powers of Safety Authority
150E. Safety Authority's functions
150F. Safety Authority's ordinary powers
150G. Judicial notice of seal
Division 3 Safety Authority Board
150H. Functions of Board
150I. Powers of Board
150J. Validity of decisions
Division 4 Chief Executive Officer and staff of Safety
Authority
150K. CEO acts for Safety Authority
150L. Working with Board
150M. Delegation
150N. Assistance to Safety Authority
Division 5 Other Safety Authority provisions
150O. Minister may require Safety Authority to
prepare reports or give information
150P. Directions to Safety Authority
150Q. Reviews of operations of Safety Authority
150R. Liability for acts and omissions
12. Section 151 amended (Regulations)
13. Section 152 amended (Transitional provisions)
14. Schedule 3 amended (Scheme For Transitional
Arrangements)
15. Schedule 5 inserted
Schedule 5 Occupational health and safety
2
PETROLEUM (SUBMERGED LANDS)
AMENDMENT BILL 2004
(Brought in by the Minister for Infrastructure, Energy and
Resources, the Honourable Bryan Alexander Green)
A BILL FOR
An Act to amend the Petroleum (Submerged Lands)
Act 1982
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Petroleum (Submerged
Lands) Amendment Act 2004.
Commencement
2. This Act commences on a day to be proclaimed.
Principal Act
3. In this Act, the Petroleum (Submerged Lands) Act
1982* is referred to as the Principal Act.
*No. 11 of 1982
[Bill 22] 3
s. 4 No. Petroleum (Submerged Lands) 2004
Amendment
Section 3 amended (Interpretation)
4. Section 3(1) of the Principal Act is amended as follows:
(a) by omitting the definition of "the
Commonwealth Act" and substituting the
following definitions:
"the Commonwealth Act" means the
Petroleum (Submerged Lands) Act
1967 of the Commonwealth;
"the Commonwealth Minister"
means the Minister of the Crown
in right of the Commonwealth for
the time being administering the
Commonwealth Act;
(b) by inserting the following definition after the
definition of "inspector":
"interstate Minister" means the
Minister of the Crown in right of a
State (other than Tasmania) or of
the Northern Territory who is for
the time being authorised under
the law of that State or Territory
to perform the functions of a
Designated Authority under the
Petroleum (Submerged Lands) Act
1967 of the Commonwealth;
(c) by inserting the following definition after the
definition of "licensee":
"listed OHS laws" has the meaning
given in section 150C;
(d) by inserting the following definition after the
definition of "natural resources":
4
2004 Petroleum (Submerged Lands) No. s. 5
Amendment
"OHS inspector" means an OHS
inspector appointed under the
Commonwealth Act;
(e) by inserting the following definition after the
definition of "royalty period":
"Safety Authority" means the
National Offshore Petroleum
Safety Authority established by
the Commonwealth Act;
Section 8 substituted
5. Section 8 of the Principal Act is repealed and the
following section is substituted:
Interpretation
8. 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; or
(b) the Petroleum (Submerged Lands)
(Registration Fees) Act 1967 of the
Commonwealth; or
(c) the Petroleum (Submerged Lands)
Fees Act 1994 of the
Commonwealth;
"Commonwealth adjacent area" means
5
s. 6 No. Petroleum (Submerged Lands) 2004
Amendment
(a) if the Petroleum (Submerged
Lands) Act 1967 of the
Commonwealth is in force, the
adjacent area in respect of
Tasmania 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
Tasmania determined in
accordance with section 5A of the
repealed Act.
Section 14A inserted
6. After section 14 of the Principal Act, the following
section is inserted in Part II:
Disapplication of State occupational health
and safety laws
14A. (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
(c) a person near a facility, to the extent to
which the person is affected by
(i) a facility; or
6
2004 Petroleum (Submerged Lands) No. s. 7
Amendment
(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 Coastal and Other Waters
(Application of State Laws) Act 1982.
(3) In this section
"facility" has the same meaning as in
Schedule 5;
"prescribed occupational health 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 Coastal and Other Waters
(Application of State Laws) Act 1982.
Section 58 amended ("Unit development")
7. Section 58 of the Principal Act is amended as follows:
(a) by omitting from subsection (11)(b) "within the
meaning of the Commonwealth Act";
(b) by inserting the following subsection after
subsection (12):
7
s. 8 No. Petroleum (Submerged Lands) 2004
Amendment
(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
(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 a
State within the meaning of the
repealed Act.
Section 63 amended (Application for pipeline
licence)
8. Section 63(2)(b) of the Principal Act is amended by
inserting "of a production licence" after "area".
Section 64 amended (Grant or refusal of pipeline
licence)
9. Section 64(5) of the Principal Act is amended by
inserting "of a production licence" after "be, a licence
area".
8
2004 Petroleum (Submerged Lands) No. s. 10
Amendment
Section 124A inserted
10. After section 124 of the Principal Act, the following
section is inserted in Division 6:
Interfering with offshore petroleum
installation or operations
124A. (1) A person must not intentionally or
recklessly
(a) cause damage to, or interfere with, any
structure or vessel in the adjacent area
that is, or is to be, used in exploring for,
recovering, processing, storing,
preparing for transport, or transporting,
petroleum; or
(b) interfere with any operations or
activities being carried out, or any works
being executed, on, or by means of, or in
connection with, such a structure or
vessel.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 3 300 penalty units; or
(b) a natural person, a fine not
exceeding 660 penalty units or
imprisonment for a term not
exceeding 10 years, or both.
(2) In this section
"structure" means any fixed, moveable or floating
structure or installation and includes a
pipeline, pumping station, tank station or
valve station.
9
s. 11 No. Petroleum (Submerged Lands) 2004
Amendment
Part IIIA inserted
11. After section 150 of the Principal Act, the following
Part is inserted:
PART IIIA OCCUPATIONAL HEALTH AND
SAFETY
Division 1 Preliminary
Interpretation
150A. In this Part
"Board" means the National Offshore
Petroleum Safety Authority Board
established by the Commonwealth Act;
"CEO" means the Chief Executive Officer of
the Safety Authority;
"facility" has the same meaning as in
Schedule 5;
"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
10
2004 Petroleum (Submerged Lands) No. s. 11
Amendment
(c) if the operations are not diving
operations, take place at a facility.
Occupational health and safety
150B. Schedule 5 has effect.
Listed OHS laws
150C. The following provisions are the "listed OHS
laws" for the purposes of this Act:
(a) section 124A, to the extent to which that
section relates to
(i) damage to, or interference with, a
facility; or
(ii) interference with any operations
or activities being carried out, or
any works being executed, on, or
by means of, or in connection with,
a facility;
(b) Schedule 5;
(c) regulations made for the purposes of
Schedule 5;
(d) regulations made for the purposes of
section 150D;
(e) any other regulations relating to
occupational health and safety matters
that are prescribed for the purposes of
this paragraph.
11
s. 11 No. Petroleum (Submerged Lands) 2004
Amendment
Regulations relating to occupational health
and safety
150D. (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 Safety
Authority
Safety Authority's functions
150E. 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
12
2004 Petroleum (Submerged Lands) No. s. 11
Amendment
their occupational health and safety
obligations under this Act;
(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 cooperate 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.
13
s. 11 No. Petroleum (Submerged Lands) 2004
Amendment
Safety Authority's ordinary powers
150F. (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;
(c) the power to lease the whole or any part
of any land or building for the purposes
of the Safety Authority;
(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.
Judicial notice of seal
150G. All courts, judges and persons acting
judicially must
14
2004 Petroleum (Submerged Lands) No. s. 11
Amendment
(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
Functions of Board
150H. (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;
15
s. 11 No. Petroleum (Submerged Lands) 2004
Amendment
(vi) the performance by the Safety
Authority of its functions;
(c) any other functions specified in a
written notice given by the
Commonwealth Minister to the Chair of
the Board.
(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
(c) the body known as the Ministerial
Council on Mineral and Petroleum
Resources
the Board must give the Commonwealth Minister a
written copy of that advice or those
recommendations.
Powers of Board
150I. The Board has power to do all things
necessary or convenient to be done for or in
connection with the performance of its functions.
Validity of decisions
150J. 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.
16
2004 Petroleum (Submerged Lands) No. s. 11
Amendment
Division 4 Chief Executive Officer and staff of
Safety Authority
CEO acts for Safety Authority
150K. 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.
Working with Board
150L. (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.
Delegation
150M. (1) A State Service officer or a State Service
employee, or a person employed by a State
authority, within the meaning of the State Service
Act 2000, may perform any function and exercise
17
s. 11 No. Petroleum (Submerged Lands) 2004
Amendment
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.
Assistance to Safety Authority
150N. A State Service officer or a State Service
employee, or a person employed by a State
authority, within the meaning of the State Service
Act 2000, 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
Minister may require Safety Authority to
prepare reports or give information
150O. (1) The Minister may, by written notice
given to the Safety Authority, require the Safety
Authority
(a) to 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
18
2004 Petroleum (Submerged Lands) No. s. 11
Amendment
(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).
Directions to Safety Authority
150P. (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.
19
s. 11 No. Petroleum (Submerged Lands) 2004
Amendment
(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.
Reviews of operations of Safety Authority
150Q. (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
20
2004 Petroleum (Submerged Lands) No. s. 11
Amendment
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.
Liability for acts and omissions
150R. (1) This section applies to the following
persons:
(a) the Safety Authority;
(b) the CEO;
(c) an OHS inspector;
(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.
21
s. 12 No. Petroleum (Submerged Lands) 2004
Amendment
Section 151 amended (Regulations)
12. Section 151 of the Principal Act is amended by
inserting after subsection (3) the following subsection:
(3A) The regulations may differ according to
differences in time, place or circumstances.
Section 152 amended (Transitional provisions)
13. Section 152 of the Principal Act is amended by
inserting after subsection (3) the following subsection:
(3A) The regulations may make provision for
any transitional matters arising out of the
amendments made to this Act by the Petroleum
(Submerged Lands) Amendment Act 2004.
Schedule 3 amended (Scheme For Transitional
Arrangements)
14. Schedule 3 to the Principal Act is amended as follows:
(a) by inserting the following definition before the
definition of "altered arrangements" in clause
1(1):
"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
22
2004 Petroleum (Submerged Lands) No. s. 15
Amendment
(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.
(b) by omitting the definition of "Commonwealth
Act" from clause 1(1);
(c) by inserting in clause 3(4) "as in force before
7 March 2000" after "(6) of section 31 of the
Commonwealth Act".
Schedule 5 inserted
15. After Schedule 4 to the Principal Act, the following
Schedule is inserted:
SCHEDULE 5 OCCUPATIONAL HEALTH
AND SAFETY
Section 150B
PART 1 PRELIMINARY
Objects
1. The objects of this Schedule are, in relation to
facilities located in the adjacent area
23
s. 15 No. Petroleum (Submerged Lands) 2004
Amendment
(a) to secure the occupational health and
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.
Definitions
2. 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,
24
2004 Petroleum (Submerged Lands) No. s. 15
Amendment
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
(c) a vessel, or structure, that is
declared by the regulations not to
be an associated offshore place;
"contract" includes an arrangement or
understanding;
"contractor" has the meaning given by
clause 6;
"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 16 or 17; or
(b) that group as varied in accordance
with clause 18 or 19;
"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 within the meaning
of clause 3, and
25
s. 15 No. Petroleum (Submerged Lands) 2004
Amendment
(a) includes a facility (within the
meaning of clause 3) 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
(within the meaning of clause 3);
"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 58(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
26
2004 Petroleum (Submerged Lands) No. s. 15
Amendment
(b) as a contractor of the operator or
of another person;
"offshore petroleum operations" has the
same meaning as in Part IIIA;
"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 4;
"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);
(c) a part of a thing referred to in
paragraph (a) or (b);
"prohibition notice" means a prohibition
notice issued under clause 56(1);
"proposed facility" means a facility
proposed to be constructed, installed or
operated;
27
s. 15 No. Petroleum (Submerged Lands) 2004
Amendment
"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;
"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;
28
2004 Petroleum (Submerged Lands) No. s. 15
Amendment
"workplace", in relation to a facility, means
the whole facility or any part of the
facility;
"workplace 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.
Facilities
3. (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
29
s. 15 No. Petroleum (Submerged Lands) 2004
Amendment
(i) for the recovery of petroleum, for
the processing of petroleum, 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.
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(3) Subclause (1) has effect subject to
subclause (6) or (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
(c) any secondary line associated with the
vessel or structure.
(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
(c) a vessel or structure used for supplying
a facility or otherwise travelling between
a facility and the shore; or
(d) a vessel or structure used for any
purpose such that it is declared by the
regulations not to be a facility.
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(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.
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Operator must ensure presence of operator's
representative
4. (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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 275 penalty units; or
(b) an individual, a fine not exceeding
55 penalty units.
(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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 275 penalty units; or
(b) an individual, a fine not exceeding
55 penalty units.
(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.
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Health and safety of persons using an
accommodation facility
5. 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.
Contractor
6. 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
Duties of operator
7. (1) The operator of a facility must take all
reasonably practicable steps to ensure that
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(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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 5 500 penalty units; or
(b) an individual, a fine not exceeding
1 100 penalty units.
(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
(c) ensure that any plant, equipment,
materials and substances at the facility
are safe and without risk to health; 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
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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
cooperate 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).
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Amendment
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 5 500 penalty units; or
(b) an individual, a fine not exceeding
1 100 penalty units.
(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
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(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.
Duties of persons in control of parts of facility
or particular work
8. (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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 5 500 penalty units; or
(b) an individual, a fine not exceeding
1 100 penalty units.
(2) Without limiting the generality of
subclause (1), a person who is in control of any part
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2004 Petroleum (Submerged Lands) No. s. 15
Amendment
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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 5 500 penalty units; or
(b) an individual, a fine not exceeding
1 100 penalty units.
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Duties of employers
9. (1) An employer must take all reasonably
practicable steps to protect the health and safety of
employees at a facility.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 5 500 penalty units; or
(b) an individual, a fine not exceeding
1 100 penalty units.
(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
(c) implement and maintain systems of
work that 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.
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Penalty: In the case of
(a) a body corporate, a fine not
exceeding 5 500 penalty units; or
(b) an individual, a fine not exceeding
1 100 penalty units.
(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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 5 500 penalty units; or
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Amendment
(b) an individual, a fine not exceeding
1 100 penalty units.
Duties of manufacturers in relation to plant
and substances
10. (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
(c) to make available, in connection with
the use of the plant at a facility,
adequate written information about
(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.
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Amendment
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 100 penalty units; or
(b) an individual, a fine not exceeding
220 penalty units.
(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
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Amendment
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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 100 penalty units; or
(b) an individual, a fine not exceeding
220 penalty units.
(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.
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Amendment
Duties of suppliers of facilities, plant and
substances
11. (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
(c) to make available
(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
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Amendment
(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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 100 penalty units; or
(b) an individual, a fine not exceeding
220 penalty units.
(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
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2004 Petroleum (Submerged Lands) No. s. 15
Amendment
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.
Duties of persons erecting facilities or
installing plant
12. (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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 100 penalty units; or
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Amendment
(b) an individual, a fine not exceeding
220 penalty units.
(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.
Duties of persons in relation to occupational
health and safety
13. (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 cooperate
with the operator or that other person to
the extent necessary to enable the
operator or that other person to fulfil
that obligation; and
(c) to use equipment that is
(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
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2004 Petroleum (Submerged Lands) No. s. 15
Amendment
(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.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 275 penalty units; or
(b) an individual, a fine not exceeding
55 penalty units.
(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.
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Amendment
(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.
Reliance on information supplied or results of
research
14. (1) For the purpose of the application of
clause 7, 8 or 9 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 10 or 11 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,
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2004 Petroleum (Submerged Lands) No. s. 15
Amendment
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 12 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 7, 8, 9, 10, 11 or 12.
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Division 2 Regulations relating to
occupational health and safety
Regulations relating to occupational health
and safety
15. (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;
(c) prohibiting or restricting the carrying
out of all processes or a specified process
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 10(1)(c) or clause 11(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;
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2004 Petroleum (Submerged Lands) No. s. 15
Amendment
(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
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Amendment
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 Designated work groups
Subdivision 1 Establishment of designated
work groups
Establishment of designated work groups by
request
16. (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.
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(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.
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Amendment
Establishment of designated work groups at
initiative of operator
17. (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
(c) each employer (if any) of members of the
workforce.
(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 2 Variation of designated work
groups
Variation of designated work groups by
request
18. (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
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(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
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(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.
Variation of designated work groups at
initiative of operator
19. (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
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(b) if a member of a designated work group
affected by the proposed variation
requests that the operator enter into
consultations with the workforce
representative in relation to the group,
that workforce representative; and
(c) each work group employer (if any) in
relation to each designated work group
affected by the proposed variation.
(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
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.
Subdivision 3 General
Referral of disagreement to reviewing
authority
20. (1) If, in the course of consultation under
clause 16, 17, 18 or 19, 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
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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.
Manner of grouping members of the workforce
21. (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
(c) the number and grouping of those
members who perform the same or
similar types of work; and
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(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 shiftworking
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 2 Health and safety representatives
Subdivision 1 Selection of health and safety
representatives
Selection of health and safety representatives
22. (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
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(b) the person is elected as the health and
safety representative of the group in
accordance with clause 23.
Election of health and safety representatives
23. (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 22(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
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(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 29.
(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.
List of health and safety representatives
24. 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
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(ii) OHS inspectors.
Members of designated work group must be
notified of selection, &c., of health and safety
representative
25. 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 22(3)(a) or (b)) as health and
safety representative for the designated
work group within a reasonable time
after the selection is made.
Term of office
26. (1) A health and safety representative for a
designated work group holds office
(a) if, in consultations that took place under
clause 16, 17, 18 or 19, 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.
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(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.
Training of health and safety representatives
27. (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.
Resignation, &c., of health and safety
representatives
28. (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
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(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 22, to be the health and
safety representative for the designated
work group for a further term; or
(d) the person is disqualified under
clause 29.
(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.
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Disqualification of health and safety
representatives
29. (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 31(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
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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
(c) the effect (if any) on the public interest
of the action of the representative; and
(d) any other matters as the Safety
Authority thinks relevant.
Deputy health and safety representatives
30. (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.
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(2) A deputy health and safety representative
is to be selected in the same way as a health and
safety representative under clause 22.
(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
(c) the powers may be exercised by the
deputy health and safety representative
(if any) for the group; and
(d) this Schedule (other than this clause)
applies in relation to the deputy health
and safety representative accordingly.
Subdivision 2 Powers of health and safety
representatives
Powers of health and safety representatives
31. (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
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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;
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(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 35.
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(2) Subclause (1)(d)(ii) has effect subject to
clause 33.
Assistance by consultant
32. (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 about a group
member under clause 31(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
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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.
Information
33. (1) Neither
(a) a health and safety representative; nor
(b) a consultant assisting a health and
safety representative
is entitled, under clause 31(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 31(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
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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.
Obligations and liability of health and safety
representatives
34. 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.
Provisional improvement notices
35. (1) If
(a) a health and safety representative for a
designated work group believes, on
reasonable grounds, that a person
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(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
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(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
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(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
(c) if the supervisor is not a responsible
person, the supervisor; 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.
Effect of provisional improvement notice
36. (1) Within 7 days after a provisional
improvement notice is issued under clause 35
(a) the responsible person; or
(b) any other person, to whom a copy of the
notice has been given under
clause 35(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
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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 35(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
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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 62, if the OHS
inspector confirms or varies the notice, the OHS
inspector is taken to have decided, under clause 58,
to issue an improvement notice in those terms.
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Subdivision 3 Duties of operator and other
employers in relation to health and safety
representatives
Duties of operator and other employers in
relation to health and safety representatives
37. (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 31(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
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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 31(1)(c); and
(d) provide to the representative access to
any information to which the
representative is entitled to obtain
access under clause 31(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
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(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 3 Health and safety committees
Health and safety committees
38. (1) A health and safety committee must be
established in relation to the members of the
workforce at a facility if
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(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 employers (other
than the operator) of members of
the workforce.
(3) The agreement referred to in
subclause (2)(a) may
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(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.
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Functions of health and safety committees
39. (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 cooperation 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
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(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.
Duties of the operator and other employers in
relation to health and safety committees
40. (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).
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(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 4 Emergency procedures
Action by health and safety representatives
41. (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
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(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 ceases to perform
particular work
the representative must
(c) direct the group member or group
members to cease, in a safe manner, to
perform the work; and
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(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 31(1)(a)(iii) to request an OHS inspector or
the Safety Authority that an inspection be conducted
at the workplace.
Directions to perform other work
42. This clause applies if
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(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 41(1)(b) or
clause 41(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 41(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 5 Exemptions
Exemptions
43. (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).
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(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 Powers, functions and duties of
OHS inspectors
Powers, functions and duties of OHS
inspectors
44. (1) An OHS inspector has the powers, functions
and duties conferred or imposed by the listed OHS
laws.
(2) The Safety Authority may give written
directions specifying the manner in which, and the
conditions subject to which, powers conferred on
OHS inspectors by a listed OHS law are to be
exercised. If it does so, the powers of OHS
inspectors must be exercised in accordance with
those directions.
(3) The Safety Authority may, by notice in
writing, impose restrictions, not inconsistent with
any direction in force under subclause (2), on the
powers that are conferred on a particular OHS
inspector by a listed OHS law. If it does so, the
powers of the OHS inspector are taken to have been
restricted accordingly.
Division 2 Inspections
Inspections
45. (1) An OHS inspector may, at any time, conduct
an inspection
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(a) to ascertain whether the requirements
of, or any requirements properly made
under, a listed OHS law are being
complied with; or
(b) concerning a contravention or a possible
contravention of a listed OHS law; or
(c) concerning an accident or dangerous
occurrence that has happened at a
facility.
(2) The Safety Authority may direct an OHS
inspector to conduct an inspection
(a) to ascertain whether the requirements
of, or any requirements properly made
under, a listed OHS law are being
complied with; or
(b) concerning a contravention or a possible
contravention of a listed OHS law; or
(c) concerning an accident or dangerous
occurrence that has happened at a
facility
and the OHS inspector must, unless the Safety
Authority revokes the direction, conduct an
inspection accordingly.
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Division 3 Powers of OHS inspectors in
relation to conduct of inspections
Subdivision 1 General powers of entry and
search
Powers of entry and search facilities
46. (1) An OHS inspector may, for the purposes of
an inspection, at any reasonable time during the day
or night
(a) enter the facility to which the inspection
relates and do all or any of the following:
(i) search the facility;
(ii) inspect, examine, take
measurements of, or conduct tests
concerning, any workplace at the
facility or any plant, substance or
thing at the facility;
(iii) take photographs of, make video
recordings of, or make sketches of,
any workplace at the facility or
any plant, substance or thing at
the facility;
(iv) inspect, take extracts from, or
make copies of, any documents at
the facility that the OHS inspector
has reasonable grounds to believe
relate, or are likely to relate, to
the subject matter of the
inspection; and
(b) inspect the seabed and subsoil in the
vicinity of the facility to which the
inspection relates.
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(2) Immediately on entering a facility for the
purposes of an inspection, an OHS inspector must
take reasonable steps to notify the purpose of
entering the facility to
(a) the operator's representative at the
facility; and
(b) if there is a health and safety
representative for a designated work
group having a group member likely to
be affected by the matter the subject of
the inspection, that representative
and must, on being requested to do so by the person
referred to in paragraph (a) or (b), produce for
inspection by that person
(c) the OHS inspector's identity card; and
(d) a copy of the Safety Authority's written
direction (if any) to conduct the
inspection; and
(e) a copy of the restrictions (if any)
imposed on the powers of the OHS
inspector under clause 44(3).
(3) If there is a health and safety
representative for a designated work group having a
group member likely to be affected by the matter the
subject of the inspection, the OHS inspector must
afford the health and safety representative a
reasonable opportunity to consult on the matter the
subject of the inspection.
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Powers of entry and search regulated
business premises (other than facilities)
47. (1) An OHS inspector may, for the purposes of
an inspection
(a) at any reasonable time, enter any
regulated business premises (other than
a facility) if the OHS inspector has
reasonable grounds to believe that there
are likely to be at those premises
documents that relate to a facility that
is, or to facility operations that are, the
subject of the inspection; and
(b) search for, inspect, take extracts from,
or make copies of, any such documents
at those premises.
(2) Immediately on entering premises referred
to in subclause (1), an OHS inspector must take
reasonable steps to notify the purpose of the entry to
the occupier of those premises, and must, on being
requested to do so by the occupier, produce for
inspection by the occupier
(a) the OHS inspector's identity card; and
(b) a copy of the Safety Authority's written
direction (if any) to conduct the
inspection; and
(c) a copy of the restrictions (if any)
imposed on the powers of the OHS
inspector under clause 44(3).
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Powers of entry and search premises (other
than regulated business premises)
48. (1) An OHS inspector may, for the purposes of
an inspection
(a) enter any premises (other than
regulated business premises) if the OHS
inspector has reasonable grounds to
believe that there are likely to be at
those premises documents that relate to
a facility that is, or to facility operations
that are, the subject of the inspection;
and
(b) search for, inspect, take extracts from,
or make copies of, any such documents
at those premises.
(2) An OHS inspector may exercise the powers
referred to in subclause (1) to enter premises only
(a) if the premises are not a residence
(i) in accordance with a warrant
under clause 49; or
(ii) with the consent of the occupier of
the premises; or
(b) if the premises are a residence, with the
consent of the occupier of the premises.
(3) Immediately on entering premises referred
to in subclause (1), an OHS inspector must
(a) take reasonable steps to notify the
purpose of the entry to the occupier of
those premises; and
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(b) take reasonable steps to produce, for
inspection by the occupier, the OHS
inspector's identity card; and
(c) on being requested to do so by the
occupier, produce, for inspection by the
occupier
(i) a copy of the Safety Authority's
written direction (if any) to
conduct the inspection; and
(ii) a copy of the restrictions (if any)
imposed on the powers of the OHS
inspector under clause 44(3).
(4) If
(a) an OHS inspector enters premises in
accordance with a warrant under
clause 49; and
(b) the occupier of the premises is present
at the premises
the OHS inspector must make a copy of the warrant
available to the occupier.
(5) Before obtaining the consent of a person as
mentioned in subclause (2)(a) or (b), an OHS
inspector must inform the person that
(a) the person may refuse consent; and
(b) the consent may be withdrawn.
(6) The consent of a person is not effective for
the purposes of subclause (2) unless the consent is
voluntary.
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Warrant to enter premises (other than
regulated business premises)
49. (1) An OHS inspector may apply to a magistrate
for a warrant authorising the OHS inspector, with
any assistance as the OHS inspector thinks
necessary, to exercise the powers referred to in
clause 48(1) in relation to particular premises (other
than a residence).
(2) The application must be supported by
evidence on oath (whether oral or by affidavit) that
sets out the grounds on which the OHS inspector is
applying for the warrant.
(3) If the magistrate is satisfied that there are
reasonable grounds for issuing the warrant, the
magistrate may issue the warrant.
(4) A warrant issued under subclause (3) must
state
(a) the name of the OHS inspector; and
(b) whether the inspection may be carried
out at any time or only during specified
hours of the day; and
(c) the day on which the warrant ceases to
have effect; and
(d) the purposes for which the warrant is
issued.
(5) The day specified under subclause (4)(c) is
not to be more than 7 days after the day on which
the warrant is issued.
(6) The purposes specified under
subclause (4)(d) must include the identification of
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the premises in relation to which the warrant is
issued.
(7) The rules to be observed with respect to
search warrants under the Search Warrants Act
1997 extend and apply to warrants under this clause
except to the extent of any inconsistency with this
clause.
Obstructing or hindering OHS inspector
50. A person must not, without reasonable excuse,
obstruct or hinder an OHS inspector in the exercise
of an OHS inspector's powers under clause 46, 47 or
48.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 275 penalty units; or
(b) an individual, a fine not exceeding
55 penalty units.
Subdivision 2 Other powers
Power to require assistance and information
51. (1) An OHS inspector may, to the extent that it
is reasonably necessary to do so in connection with
the conduct of an inspection, require
(a) the operator of a facility; or
(b) the person in charge of operations at a
workplace in relation to a facility; or
(c) a member of the workforce at a facility;
or
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(d) any person representing a person
referred to in paragraph (a) or (b)
to provide the OHS inspector with reasonable
assistance and facilities
(e) that is or are reasonably connected with
the conduct of the inspection at or near
the facility; or
(f) for the effective exercise of the OHS
inspector's powers under this Schedule
in connection with the conduct of the
inspection at or near the facility.
(2) The reasonable assistance referred to in
subclause (1) includes, so far as the operator of the
facility is concerned
(a) appropriate transport to or from the
facility for the OHS inspector and for
any equipment required by the OHS
inspector, or any article of which the
OHS inspector has taken possession;
and
(b) reasonable accommodation and means of
subsistence while the OHS inspector is
at the facility.
(3) A person must not fail, without reasonable
excuse, to comply with a requirement under this
clause.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 165 penalty units; or
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(b) an individual, a fine not exceeding
33 penalty units or imprisonment
for a term not exceeding 6 months,
or both.
Power to require the answering of questions
and the production of documents or articles
52. (1) If
(a) an OHS inspector believes on reasonable
grounds that a person is capable of
answering a question that is reasonably
connected with the conduct of an
inspection; and
(b) the person is
(i) the operator of a facility; or
(ii) the person in charge of operations
at a workplace in relation to a
facility; or
(iii) a member of the workforce at a
facility; or
(iv) any person representing a person
referred to in subparagraph (i) or
(ii)
the OHS inspector may, to the extent that it is
reasonably necessary to do so in connection with the
conduct of the inspection, require the person to
answer the question put by the OHS inspector.
(2) If, at the time when a requirement under
subclause (1) is imposed on a person, the person is
not physically present on regulated business
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premises, the person is not obliged to comply with
the requirement unless the requirement
(a) is in writing; and
(b) specifies the day on or before which the
question is to be answered (being at
least 14 days after the day on which the
requirement is imposed); and
(c) is accompanied by a statement to the
effect that a failure to comply with the
requirement is an offence.
(3) If
(a) an OHS inspector believes on reasonable
grounds that a person is capable of
producing a document or article that is
reasonably connected with the conduct
of an inspection; and
(b) the person is
(i) the operator of a facility; or
(ii) the person in charge of operations
at a workplace in relation to a
facility; or
(iii) a member of the workforce at a
facility; or
(iv) any person representing a person
referred to in subparagraph (i) or
(ii)
the OHS inspector may, to the extent that it is
reasonably necessary to do so in connection with the
conduct of the inspection, require the person to
produce the document or article.
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(4) If, at the time when a requirement under
subclause (3) is imposed on a person, the person is
not physically present on regulated business
premises, the person is not obliged to comply with
the requirement unless the requirement
(a) is in writing; and
(b) specifies the day on or before which the
document or article is to be produced
(being at least 14 days after the day on
which the requirement is imposed); and
(c) is accompanied by a statement to the
effect that a failure to comply with the
requirement is an offence.
(5) A person must not
(a) fail, without reasonable excuse, to
comply with a requirement under this
clause; or
(b) in purported compliance with a
requirement under this clause, give
information that is false or misleading
in a material particular.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 165 penalty units; or
(b) an individual, a fine not exceeding
33 penalty units or imprisonment
for a term not exceeding 6 months,
or both.
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Privilege against self-incrimination
53. (1) A person is not excused from answering a
question or producing a document or article when
required to do so under clause 52 on the ground that
the answer to the question, or the production of the
document or article, may tend to incriminate the
person or make the person liable to a penalty.
(2) However
(a) the answer given or document or article
produced; or
(b) answering the question or producing the
document or article; or
(c) any information, document or thing
obtained as a direct or indirect
consequence of the answering of the
question or the production of the
document or article
is not admissible in evidence against the person
(d) in any civil proceedings; or
(e) in any criminal proceedings other than
proceedings for an offence against
clause 52.
Power to take possession of plant, take
samples of substances, &c.
54. (1) In conducting an inspection, an OHS
inspector may, to the extent that it is reasonably
necessary for the purposes of inspecting, examining,
taking measurements of or conducting tests
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concerning any plant, substance or thing at a facility
in connection with the inspection
(a) take possession of the plant, substance
or thing and remove it from the facility;
or
(b) take a sample of the substance or thing
and remove that sample from the
facility.
(2) On taking possession of plant, a substance
or a thing, or taking a sample of a substance or
thing, the OHS inspector must, by notice in writing,
inform
(a) the operator of the facility; and
(b) if the plant, substance or thing is used
for the performance of work by an
employer of a member or members of the
workforce at the facility other than the
operator of the facility, that employer;
and
(c) if the plant, substance or thing is owned
by a person other than a person
mentioned in paragraph (a) or (b), that
person; and
(d) if there is a health and safety
representative for a designated work
group that includes a member of the
workforce who is affected by the matter
to which the inspection relates, that
representative
of the taking of possession or the taking of the
sample, as the case may be, and the reasons for it.
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(3) If the OHS inspector gives the notice to the
operator of the facility to which the inspection
relates, the operator's representative at the facility
must cause the notice to be displayed in a prominent
place at the workplace from which the plant,
substance or thing was removed.
(4) If the OHS inspector takes possession of
plant, a substance or a thing at a workplace for the
purpose of inspecting, examining, taking
measurements of or conducting tests concerning the
plant, substance or thing, the OHS inspector must
(a) ensure that the inspection, examination,
measuring or testing is conducted as
soon as practicable; and
(b) return it to the workplace as soon as
practicable afterwards.
(5) As soon as practicable after completing any
such inspection, examination, measurement or
testing, the inspector must give a written statement
setting out the results to each person whom the
inspector is required to notify under subclause (2).
Power to direct that workplace, &c., not be
disturbed
55. (1) An OHS inspector may give a direction
under subclause (2) if, in conducting an inspection,
the OHS inspector has reasonable grounds to believe
that it is reasonably necessary to do so in order to
(a) remove an immediate threat to the
health or safety of any person; or
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(b) allow the inspection, examination or
taking of measurements of, or
conducting of tests concerning, a facility
or any plant, substance or thing at the
facility.
(2) If subclause (1) applies, the OHS inspector
may direct, by written notice given to the operator's
representative at the facility, that the operator must
ensure that
(a) a particular workplace; or
(b) particular plant, or a particular
substance or thing
not be disturbed for a period specified in the
direction.
(3) The period specified in the direction must
be a period that the OHS inspector has reasonable
grounds to believe is necessary in order to remove
the threat or to allow the inspection, examination,
measuring or testing to take place.
(4) The direction may be renewed by another
direction in the same terms.
(5) If an OHS inspector gives a notice to the
operator's representative under subclause (2), the
operator's representative must cause the notice to be
displayed in a prominent place at the workplace
(a) that is to be left undisturbed; or
(b) where the plant, substance or thing that
is to be left undisturbed is located.
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(6) As soon as practicable after giving the
direction, the OHS inspector must take reasonable
steps to notify
(a) if the workplace, plant, substance or
thing to which the direction relates is
owned by a person other than the
operator of the facility, that person; and
(b) if there is a health and safety
representative for a designated work
group that includes a group member
performing work
(i) at a workplace; or
(ii) involving the plant, substance or
thing
to which the direction relates, that
representative
of the direction and the reasons for giving it.
(7) The operator of a facility to which a
direction concerning a workplace, plant, substance
or a thing relates must ensure that the direction is
complied with.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 375 penalty units; or
(b) an individual, a fine not exceeding
275 penalty units.
(8) A direction under subclause (2) must be
accompanied by a statement setting out the reasons
for the direction.
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Power to issue prohibition notices
56. (1) If, having conducted an inspection, an OHS
inspector is satisfied on reasonable grounds that it is
reasonably necessary to issue a prohibition notice to
the operator of a facility in order to remove an
immediate threat to the health or safety of any
person, the OHS inspector may issue a prohibition
notice, in writing, to the operator.
(2) The notice must be issued to the operator
by giving it to the operator's representative at the
facility.
(3) The notice must
(a) specify the activity in respect of which,
in the OHS inspector's opinion, the
threat to health or safety has arisen,
and set out the reasons for that opinion;
and
(b) either
(i) direct the operator to ensure that
the activity is not engaged in; or
(ii) direct the operator to ensure that
the activity is not engaged in in a
specified manner.
(4) A specified manner may relate to any one
or more of the following:
(a) any workplace, or part of a workplace, at
which the activity is not to be engaged
in;
(b) any plant or substance that is not to be
used in connection with the activity;
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(c) any procedure that is not to be followed
in connection with the activity.
(5) The notice may specify action that may be
taken to satisfy an OHS inspector that adequate
action has been taken to remove the threat to health
and safety.
(6) The operator's representative at the
facility must
(a) give a copy of the notice to each health
and safety representative (if any) for any
designated work group having group
members performing work that is
affected by the notice; and
(b) cause a copy of the notice to be displayed
at a prominent place at or near each
workplace at which that work is
performed.
(7) If the notice relates to any workplace,
plant, substance or thing that is owned by a person
other than the operator, the OHS inspector must,
upon issuing the notice, give a copy of the notice to
that person.
Compliance with prohibition notice
57. (1) An operator must ensure that a prohibition
notice issued to the operator is complied with.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 375 penalty units; or
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(b) an individual, a fine not exceeding
275 penalty units.
(2) If an OHS inspector is satisfied that action
taken by the operator to remove the threat to health
and safety in respect of which the notice was issued
is not adequate, the OHS inspector must inform the
operator accordingly.
(3) A prohibition notice ceases to have effect
when an OHS inspector notifies the operator that
the OHS inspector is satisfied that the operator has
taken adequate action to remove the threat to health
or safety.
(4) In making a decision under subclause (2),
an OHS inspector may exercise any of the powers of
an OHS inspector conducting an inspection that the
OHS inspector considers necessary for the purposes
of making the decision.
Power to issue improvement notices
58. (1) If, in conducting an inspection, an OHS
inspector believes on reasonable grounds that a
person
(a) is contravening a provision of a listed
OHS law; or
(b) has contravened a provision of a listed
OHS law and is likely to contravene that
provision again
the OHS inspector may issue an improvement
notice, in writing, to the person (the "responsible
person").
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(2) If the 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.
(3) If the responsible person is an employer
(other than the operator) of members of the
workforce, but it is not practicable to give the notice
to that employer
(a) the improvement notice may be issued to
the employer by giving it to the
operator's representative at the facility;
and
(b) if the notice is so issued, the operator
must ensure that a copy of the notice is
given to the employer as soon as
practicable afterwards.
(4) The notice
(a) must specify the contravention that the
OHS inspector believes is occurring or is
likely to occur, and set out the reasons
for that belief; and
(b) must specify a reasonable period within
which the responsible person is to take
the action necessary to prevent any
further contravention or to prevent the
likely contravention, as the case may be;
and
(c) may specify action that the responsible
person is to take during the period
specified in the notice.
(5) If the OHS inspector believes on
reasonable grounds that it is appropriate to do so,
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the OHS inspector may, in writing and before the
end of the period, extend the period specified in the
notice.
(6) If an improvement notice is issued to an
employer (other than the operator) of members of
the workforce in circumstances other than the
circumstance referred to in subclause (3), the
employer must immediately ensure that a copy of
the notice is given to the operator's representative at
the facility.
(7) If a notice is issued to the operator or to an
employer (other than the operator) of members of
the workforce, the operator's representative at the
facility must
(a) give a copy of the notice to each health
and safety representative for a
designated work group having group
members performing work that is
affected by the notice; and
(b) cause a copy of the notice to be displayed
in a prominent place at or near each
workplace at which the work is being
performed.
(8) On issuing a notice, the OHS inspector
must give a copy of the notice to
(a) if the notice is
(i) given to a member of the
workforce who is an employee; and
(ii) in connection with work performed
by the employee
the employer of that employee; and
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(b) if the notice relates to any workplace,
plant, substance or thing that is owned
by a person other than
(i) a responsible person; or
(ii) a person who is an employer
referred to in paragraph (a)
that owner; and
(c) if the notice is issued to a person who
owns any workplace, plant, substance or
thing, because of which a contravention
of a listed OHS law has occurred or is
likely to occur
(i) the operator of the facility; and
(ii) if the employer of employees who
work in that workplace or who use
that plant, substance or thing is a
person other than the operator,
that employer.
Compliance with improvement notice
59. A person to whom an improvement notice is
issued must comply with it to the extent that the
notice relates to any matter over which the person
has control.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 550 penalty units; or
(b) an individual, a fine not exceeding
110 penalty units.
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Notices not to be tampered with or removed
60. (1) A person must not, without reasonable
excuse, tamper with any notice that has been
displayed under clause 54(3), clause 55(5),
clause 56(6) or clause 58(7) while that notice is so
displayed.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 550 penalty units; or
(b) an individual, a fine not exceeding
110 penalty units.
(2) If a notice has been displayed under
clause 54(3), a person must not, without reasonable
excuse, remove the notice until the plant or thing to
which the notice relates is returned to the workplace
from which it was removed.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 550 penalty units; or
(b) an individual, a fine not exceeding
110 penalty units.
(3) If a notice has been displayed under
clause 55(5), clause 56(6) or clause 58(7), a person
must not, without reasonable excuse, remove the
notice before it has ceased to have effect.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 550 penalty units; or
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(b) an individual, a fine not exceeding
110 penalty units.
Division 4 Reports on inspections
Reports on inspections
61. (1) If an OHS inspector has conducted an
inspection, the OHS inspector must, as soon as
practicable, prepare a written report relating to the
inspection and give the report to the Safety
Authority.
(2) The report must include
(a) the OHS inspector's conclusions from
conducting the inspection and the
reasons for those conclusions; and
(b) any recommendations that the OHS
inspector wishes to make arising from
the inspection; and
(c) any other prescribed matters.
(3) As soon as practicable after receiving the
report, the Safety Authority must give a copy of the
report, together with any written comments that it
wishes to make
(a) to the operator of the facility to which
the report relates; and
(b) if the report relates to activities
performed by an employee of another
person, that other person; and
(c) if the report relates to any plant,
substance or thing owned by another
person, that other person.
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(4) The Safety Authority may, in writing,
request the operator or any other person to whom
the report is given to provide to the Safety
Authority, within a reasonable period specified in
the request, details of
(a) any action proposed to be taken as a
result of the conclusions or
recommendations contained in the
report; and
(b) if a notice has been issued under
clause 56 or 58 in relation to work being
performed for the operator or that other
person, any action taken, or proposed to
be taken, in respect of that notice
and the operator or that other person must comply
with the request.
(5) As soon as practicable after receiving a
report, the operator of a facility must give a copy of
the report, together with any written comment made
by the Safety Authority on the report
(a) if there is at least one health and safety
committee in respect of some or all of the
members of the workforce, to each such
committee; and
(b) if there is no such committee in respect
of some or all of the members of the
workforce, but some or all of those
members (in respect of which there is no
such committee) are in at least one
designated work group for which there is
a health and safety representative, to
each such health and safety
representative.
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Division 5 Appeals
Appeals
62. (1) If an OHS inspector, in conducting an
inspection or having conducted an inspection
(a) decides, under clause 36, to confirm or
vary a provisional improvement notice;
or
(b) decides, under clause 54, to take
possession of plant, a substance or a
thing at a workplace; or
(c) decides, under clause 55, to direct that a
workplace, a part of a workplace, plant,
a substance or a thing not be disturbed;
or
(d) decides, under clause 56, to issue a
prohibition notice; or
(e) decides, under clause 57, that the
operator of a facility to whom a
prohibition notice has been issued has
not taken adequate action to remove the
threat to health and safety that caused
the notice to be issued; or
(f) decides, under clause 58, to issue an
improvement notice
a person referred to in subclause (2) may appeal to
the reviewing authority against the decision, by
giving notice in writing to the reviewing authority.
(2) The following persons may appeal, as
applicable:
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(a) the operator of the facility or any
employer (other than the operator) who
is affected by the decision;
(b) a person to whom a notice has been
issued under clause 35(2) or
clause 58(1);
(c) the health and safety representative for
a designated work group having a group
member affected by the decision;
(d) a workforce representative in relation to
the designated work group that includes
a group member who is affected by the
decision and who has requested the
workforce representative to make the
appeal;
(e) if there is no such designated work
group, and a member of the workforce
affected by the decision has requested a
workforce representative in relation to
the member to make the appeal, that
workforce representative;
(f) a person who owns any workplace,
plant, substance or thing to which the
decision referred to in subclause (1)(a),
(b), (c) or (f) relates.
(3) If an OHS inspector, having conducted an
inspection
(a) decides under clause 36 to cancel a
provisional improvement notice; or
(b) decides under clause 57 that the
operator of a facility to whom a
prohibition notice has been issued has
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Amendment
taken adequate action to remove the
threat to health and safety that caused
the notice to be issued
an appeal against a decision may be made, by notice
in writing, to the reviewing authority by
(c) the health and safety representative for
a designated work group having a group
member affected by the decision; or
(d) a workforce representative in relation to
the designated work group that includes
a group member who is affected by the
decision and who has requested the
workforce representative to make the
appeal; or
(e) if there is no such designated work
group, and a member of the workforce
affected by the decision has requested a
workforce representative in relation to
the member to make the appeal, that
workforce representative.
(4) Subject to this clause, giving notice of an
appeal does not affect the operation of the decision
appealed against or prevent the taking of action to
implement that decision, except to the extent that
the reviewing authority makes an order to the
contrary.
(5) If the decision appealed against is a
decision, under clause 58, to issue an improvement
notice, the operation of the decision is suspended
pending determination of the appeal, except to the
extent that the reviewing authority makes an order
to the contrary.
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(6) If the decision appealed against is a
decision of an OHS inspector, under clause 36, to
confirm or vary a provisional improvement notice
whose operation has been suspended pending the
inspection of the matter to which the notice relates,
the operation of the notice is further suspended
pending determination of the appeal, except to the
extent that the reviewing authority makes an order
to the contrary.
Powers of reviewing authority on appeal
63. (1) On an appeal, the reviewing authority may
(a) affirm or revoke the decision appealed
against; and
(b) if it revokes the decision, substitute any
other decision of the kind appealed
against that it thinks appropriate.
(2) If the decision is
(a) varied; or
(b) revoked; or
(c) revoked with the substitution of another
decision
the decision is taken to have effect, and always to
have had effect, accordingly.
(3) If
(a) the decision appealed against is a
decision, under clause 54, to take
possession of plant, substance or a thing
at a workplace; and
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Amendment
(b) the decision is not affirmed
the OHS inspector who made the decision must
ensure that, to the extent that the decision is not
affirmed, the plant, substance or thing is returned to
the workplace as soon as practicable.
PART 5 GENERAL
Notifying and reporting accidents and
dangerous occurrences
64. (1) If, at or near a facility, there is
(a) an accident that causes the death of, or
serious personal injury to, any person; or
(b) an accident that causes a member of the
workforce to be incapacitated from
performing work for a period prescribed
for the purposes of this paragraph; or
(c) a dangerous occurrence
the operator must, in accordance with the
regulations, give the Safety Authority notice of, and
a report about, the accident or dangerous
occurrence.
(2) Regulations made for the purposes of
subclause (1) (other than regulations made for the
purpose of subclause (1)(b)) may prescribe
(a) the time within which, and the manner
in which, notice of an accident or
dangerous occurrence is to be given, and
the form of the notice; and
(b) the time within which, and the manner
in which, a report of an accident or
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dangerous occurrence is to be given, and
the form of the report.
(3) Subclause (2) does not limit regulations
that may be made for the purposes of subclause (1).
Records of accidents and dangerous
occurrences to be kept
65. (1) The operator of a facility must maintain, in
accordance with the regulations, a record of each
accident or dangerous occurrence in respect of which
the operator is required by clause 64 to notify the
Safety Authority.
(2) Regulations made for the purposes of
subclause (1) may prescribe
(a) the nature of the contents of a record
maintained under this clause; and
(b) the period for which the record must be
retained.
(3) Subclause (2) does not limit regulations
that may be made for the purposes of subclause (1).
Code of practice
66. (1) The regulations may prescribe codes of
practice for the purpose of providing practical
guidance to operators of facilities and employers
(other than operators) of members of the workforce
at facilities.
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(2) A person is not liable to any civil or
criminal proceedings for contravening a code of
practice.
Use of codes of practice in proceedings
67. (1) This clause applies if, in any proceedings for
an offence against a listed OHS law, it is alleged
that a person contravened a provision of a listed
OHS law in relation to which a code of practice was
in effect at the time of the alleged contravention.
(2) The code of practice is admissible in
evidence in those proceedings.
(3) If the court is satisfied, in relation to any
matter which it is necessary for the prosecution to
prove in order to establish the alleged contravention,
that
(a) any provision of the code of practice is
relevant to that matter; and
(b) the person failed at any material time to
comply with that provision of the code of
practice
that matter is treated as proved unless the court is
satisfied that in respect of that matter the person
complied with that provision of a listed OHS law
otherwise than by complying with the code of
practice.
Interference, &c., with equipment, &c.
68. A person must not, without reasonable excuse,
do anything that results in the interference with, or
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the rendering ineffective of, any protective
equipment or safety device provided for the
occupational health and safety or welfare of
members of the workforce at a facility if the person
knew (or ought reasonably to have known) that the
equipment or device was protective equipment or a
safety device.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 165 penalty units; or
(b) a natural person, a fine not
exceeding 33 penalty units or
imprisonment for a term not
exceeding 6 months, or both.
Members of workforce not to be levied
69. The operator of a facility or an employer (other
than the operator) of members of the workforce at a
facility must not levy, or permit to be levied, on a
member of the workforce any charge in respect of
anything done or provided in accordance with a
listed OHS law in order to ensure the occupational
health and safety or welfare of persons at or near
the facility.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 375 penalty units; or
(b) an individual, a fine not exceeding
275 penalty units.
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Victimisation
70. (1) An employer (whether the operator or
another person) must not
(a) dismiss an employee; or
(b) perform an act that results in injury to
an employee in his or her employment;
or
(c) perform an act that prejudicially alters
the employee's position (whether by
deducting or withholding remuneration
or by any other means); or
(d) threaten to do any of those things
because the employee
(e) has complained or proposes to complain
about a matter concerning the health,
safety or welfare of employees at work;
or
(f) has assisted or proposes to assist, by
giving information or otherwise, the
conduct of an inspection; or
(g) has ceased, or proposes to cease, to
perform work, in accordance with a
direction by a health and safety
representative under clause 41(1)(b) or
clause 41(3)(c), and the cessation or
proposed cessation does not continue
after
(i) the health and safety
representative has agreed with a
person supervising the work that
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the cessation or proposed cessation
was not, or is no longer, necessary;
or
(ii) an OHS inspector has, under
clause 41(5), made a decision that
has the effect that the employee
should perform the work.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 1 375 penalty units; or
(b) an individual, a fine not exceeding
275 penalty units.
(2) In proceedings for an offence against
subclause (1), if all the relevant facts and
circumstances, other than the reason for an action
alleged in the charge, are proved, the defendant has
the onus of establishing that the action was not
taken for that reason.
Institution of prosecutions
71. (1) Proceedings for an offence against a listed
OHS law may be instituted by the Safety Authority
or by an OHS inspector.
(2) A health and safety representative for a
designated work group may request the Safety
Authority to institute proceedings for an offence
against a listed OHS law in relation to the
occurrence of an act or omission if
(a) a period of 6 months has elapsed since
the act or omission occurred; and
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(b) the health and safety representative
considers that the occurrence of the act
or omission constitutes an offence
against a listed OHS law; and
(c) proceedings in respect of the offence
have not been instituted.
(3) A workforce representative in relation to a
designated work group may request the Safety
Authority to institute proceedings for an offence
against a listed OHS law in relation to the
occurrence of an act or omission if
(a) a period of 6 months has elapsed since
the act or omission occurred; and
(b) the workforce representative considers
that the occurrence of the act or
omission constitutes an offence against a
listed OHS law; and
(c) proceedings in respect of the offence
have not been instituted; and
(d) a group member included in the group
requests the workforce representative to
request the Safety Authority to institute
the proceedings.
(4) A request under subclause (2) or (3) must
be in writing.
(5) The Safety Authority must, within 3
months after receiving the request, advise the
health and safety representative or the workforce
representative, as the case may be, whether
proceedings under subclause (1) have been or will be
instituted, and, if not, give reasons why not.
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Role of Commonwealth DPP
72. The Commonwealth Director of Public
Prosecutions has the same functions and powers in
respect of an offence against a listed OHS law as he
or she would have if that offence were an offence
against a law of the Commonwealth, including the
power to institute and carry on an appeal arising out
of a prosecution for that offence.
Conduct of directors, employees and agents
73. (1) This clause has effect for the purposes of a
proceeding for an offence against a listed OHS law.
(2) If it is necessary to establish the state of
mind of a body corporate in relation to particular
conduct, it is sufficient to show
(a) that the conduct was engaged in by a
director, employee or agent of the body
corporate within the scope of actual or
apparent authority; and
(b) that the director, employee or agent had
the state of mind.
(3) Any conduct engaged in on behalf of a body
corporate by a director, employee or agent of the
body corporate within the scope of actual or
apparent authority is taken to have been engaged in
also by the body corporate unless it establishes that
it took reasonable precautions and exercised due
diligence to avoid the conduct.
(4) If it is necessary to establish the state of
mind of a natural person in relation to particular
conduct, it is sufficient to show
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(a) that the conduct was engaged in by an
employee or agent of the natural person
within the scope of actual or apparent
authority; and
(b) that the employee or agent had the state
of mind.
(5) Any conduct engaged in on behalf of a
natural person by an employee or agent of the
natural person within the scope of actual or
apparent authority is taken to have been engaged in
also by the natural person unless the natural person
establishes that he or she took reasonable
precautions and exercised due diligence to avoid the
conduct.
(6) If
(a) a natural person is convicted of an
offence; and
(b) he or she would not have been convicted
of the offence if subclauses (4) and (5)
had not been enacted
he or she is not liable to be punished by
imprisonment for that offence.
(7) A reference in subclause (2) or (4) to the
state of mind of a person includes a reference to
(a) the person's knowledge, intention,
opinion, belief or purpose; and
(b) the person's reasons for the intention,
opinion, belief or purpose.
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Act not to give rise to other liabilities, &c.
74. This Schedule does not
(a) confer a right of action in any civil
proceeding in respect of any
contravention of a provision of a listed
OHS law; or
(b) confer a defence to an action in any civil
proceeding or otherwise affect a right of
action in any civil proceeding.
Circumstances preventing compliance may be
defence to prosecution
75. It is a defence to a prosecution for refusing or
failing to do anything required by a listed OHS law
if the defendant proves that it was not practicable to
do it because of an emergency prevailing at the
relevant time.
Regulations general
76. (1) The regulations may prescribe
(a) procedures for the selection of persons,
under clause 38, as members of health
and safety committees, to represent the
interests of members of the workforce at
a facility; and
(b) procedures to be followed at meetings of
health and safety committees; and
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Amendment
(c) the manner in which notices are to be
served under this Schedule or the
regulations; and
(d) forms for the purposes of this Schedule
or the regulations.
(2) If the Minister is satisfied that
(a) a power, function or duty is conferred or
imposed on a person under a law of this
State or the Commonwealth; and
(b) the proper exercise of the power or
performance of the function or duty is or
would be prevented by this Schedule or
a provision of this Schedule
regulations made for the purposes of this subclause
may declare that this Schedule, or the provision, as
the case may be, does not apply to that person, or
does not apply to that person in the circumstances
specified in the regulations.
(3) Regulations made for the purposes of
subclause (2) do not remain in force for longer than 5
years after they commence, but this subclause does
not prevent the making of further regulations of the
same substance.
(4) In subclause (2)
"this Schedule" includes regulations made
for the purposes of this Schedule.
132 Government Printer, Tasmania