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TASMANIA
__________
WORKPLACE HEALTH AND SAFETY
AMENDMENT BILL 2009
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Part 3A inserted
PART 3A Rights of entry for OHS access card holders
Division 1 Issue of OHS access cards
22A. Object of Part
22B. Operation of certain other laws not affected
22C. Application for OHS access card
22D. Criteria for issue of OHS access cards
22E. Issue of OHS access cards
22F. Conditions of issue of OHS access cards
Division 2 Rights and responsibilities in relation to OHS
access card holders
22G. Rights of entry of OHS access card holders
22H. Rights of OHS access card holder after entry of
workplace
22I. Offences by OHS access card holders
22J. Offences by persons in relation to OHS access card
holders
22K. Referral of disputes to inspectors
Division 3 Expiry, cancellation and disqualification from
holding OHS access cards
22L. When person ceases to be OHS access card holder
22M. Disqualification &c. of OHS access card holders
[Bill 67]-XI
6. Section 27 amended (Composition of health and safety
committee)
7. Section 41 amended (Right of appeal)
8. Schedule 1 amended (Regulations)
9. Repeal
2
WORKPLACE HEALTH AND SAFETY
AMENDMENT BILL 2009
(Brought in by the Minister for Workplace Relations, the
Honourable Lisa Maria Singh)
A BILL FOR
An Act to amend the Workplace Health and Safety Act 1995
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:
1. Short title
This Act may be cited as the Workplace Health
and Safety Amendment Act 2009.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
3. Principal Act
In this Act, the Workplace Health and Safety Act
1995* is referred to as the Principal Act.
*No. 13 of 1995
[Bill 67] 3
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4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "Board":
"chief official", in relation to an
employee organisation, means the
person who has primary
responsibility for the day-to-day
running of the organisation in
Tasmania;
(b) by inserting "and includes an individual
engaged under a labour hire
arrangement" after "reward" in the
definition of "contractor";
(c) by inserting the following definition after
the definition of "employee":
"employee organisation" means
(a) an employee organization
registered under the
Industrial Relations Act
1984; or
(b) an "organisation", within
the meaning of the Fair
Work Act 2009 of the
Commonwealth, that is an
"employee organisation"
within the meaning of that
Act;
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Workplace Health and Safety Amendment Act 2009
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(d) by inserting the following definitions
after the definition of "mine":
"officer", in relation to an employee
organisation, means a person who
is
(a) an employee of the
organisation; or
(b) the holder of an office of
president, vice-president,
secretary or assistant
secretary of the
organisation or a branch
or division of the
organisation; or
(c) the holder of an office
that is prescribed by the
regulations;
"OHS access card" means a card
issued under section 22E;
"OHS access card holder" means a
person to whom an OHS access
card that is in force has been
issued under section 22E;
(e) by inserting "and includes a person who
engages an individual to perform work
for the person under a labour hire
arrangement" after "reward" in the
definition of "principal";
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(f) by inserting the following definition after
the definition of "regulations":
"relevant duty holder", in relation to
a workplace, means a person on
whom a duty is imposed under
section 9 or 11 in relation to a
worker at the workplace;
(g) by inserting the following definition after
the definition of "temporary public
stand":
"worker" means an individual who
carries out work at a workplace
and who is an employee or a
contractor;
(h) by inserting ", and includes a part of a
workplace" after "industry" in the
definition of "workplace".
5. Part 3A inserted
After section 22 of the Principal Act, the
following Part is inserted:
PART 3A RIGHTS OF ENTRY FOR OHS ACCESS
CARD HOLDERS
Division 1 Issue of OHS access cards
22A. Object of Part
The object of this Part is to establish a
framework
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(a) to assist in securing the health
and safety of workers by enabling
employee organisations to
(i) represent their members,
or persons eligible to be
their members, in matters
concerning health and
safety; and
(ii) discuss, with workers at
workplaces, matters
relating to health and
safety; and
(iii) identify, and make
enquiries in respect of,
health and safety issues at
workplaces; and
(iv) consult with relevant duty
holders and persons in
charge of workplaces so
as to make the resolution
of health and safety issues
at workplaces easier; and
(b) that balances the securing of the
health and safety of workers in
accordance with paragraph (a)
with the right of relevant duty
holders and persons in charge of
workplaces to go about their
business without undue
intervention or hindrance.
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22B. Operation of certain other laws not affected
(1) Nothing in this Part is to be taken to
affect the operation of the Industrial
Relations Act 1984.
(2) An OHS access card holder is not
authorised under this Part to enter or
remain at a workplace if to do so would
contravene a requirement of, or imposed
under, a law of this State or the
Commonwealth, which requirement
(a) excludes persons from places or
prohibits persons from remaining
on places; and
(b) is for the purposes of enabling an
offence to be investigated, law
and order to be maintained, or an
emergency to be dealt with.
22C. Application for OHS access card
(1) The chief official of an employee
organisation may apply to the Director,
on a form approved by the Director, for
the issue of an OHS access card to a
person nominated in the application.
(2) A person may only be nominated in an
application under subsection (1) by a
chief official of an employee
organisation if the person is
(a) the chief official; or
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(b) an officer of the employee
organisation.
22D. Criteria for issue of OHS access cards
(1) Subject to subsection (2), the Director
may only issue an OHS access card to a
person under section 22E if the Director
is satisfied that the person
(a) is an officer of an employee
organisation; and
(b) holds an entry permit issued
under the Fair Work Act 2009 of
the Commonwealth; and
(c) has the knowledge, the
qualifications, the experience, or
the training, that is appropriate
for a person who may exercise
the powers under this Part of an
OHS access card holder.
(2) The Director may exempt a person from
the application of subsection (1)(b) if
(a) the person is nominated under
section 22C(1) by a chief official
who has given to the Director a
declaration in accordance with
subsection (3); and
(b) the Director is satisfied that the
person is a fit and proper person
to be an OHS access card holder.
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(3) A chief official of an employee
organisation registered under the
Industrial Relations Act 1984 that
(a) is not an "organisation", within
the meaning of the Fair Work Act
2009 of the Commonwealth; and
(b) does not provide services to
persons who are "national system
employees" within the meaning
of that Act
may give to the Director a declaration in
writing to that effect.
(4) The Director must, in considering for the
purposes of subsection (2)(b) whether a
person is a fit and proper person to be an
OHS access card holder, take into
account whether
(a) the person has ever been
convicted of an offence against a
law of this State, another State, a
Territory, or the Commonwealth,
relating to industrial relations; or
(b) the person has ever been
convicted of an offence against a
law of this State, another State, a
Territory, the Commonwealth or
a foreign country, involving
(i) entry onto premises; or
(ii) fraud or dishonesty; or
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(iii) intentional use of violence
against another person or
intentional damage or
destruction of property; or
(c) the person, or any other person,
has ever been ordered to pay a
penalty under any other law of
this State, another State, a
Territory, or the Commonwealth,
relating to industrial relations, in
relation to action taken by the
first-mentioned person; or
(d) the person has been disqualified
under section 22M(4)(c) from
holding an OHS access card, or a
condition has been imposed under
section 22M(4)(d) on an OHS
access card issued to the person;
or
(e) a court, or other person or body,
has, under a law of this State,
another State, a Territory, or the
Commonwealth, relating to
industrial relations
(i) cancelled or suspended, or
imposed conditions on, a
right that the person has
under that law to enter a
place for industrial or
health and safety
purposes; or
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(ii) disqualified the person
from exercising, or
applying for the right to
exercise, a power under
that law to enter a place
for industrial or health
and safety purposes.
(5) The Director may publish guidelines as
to either or both of the following:
(a) the qualifications, the experience,
or the training, that is appropriate
for a person who may exercise
the powers under this Part of an
OHS access card holder;
(b) how the Director intends to assess
whether a person has such
knowledge, qualifications,
experience or training.
(6) Guidelines made for the purposes of
subsection (5) may apply to all industries
or to a particular industry specified in the
guidelines.
22E. Issue of OHS access cards
(1) The Director may, after receiving an
application under section 22C(1), issue,
or refuse to issue, an OHS access card to
the person nominated in the application
as the person to whom the card is to be
issued.
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(2) The Director must notify a chief official
who has made an application under
section 22C of the Director's decision
under subsection (1) in relation to the
application.
(3) The issue of an OHS access card under
this section on the application of the
chief official of an employee
organisation does not prevent the issue
under this section of further OHS access
cards to persons on the application of the
chief official.
(4) An OHS access card may be issued to a
person whether or not the person is
resident in this State.
(5) An OHS access card issued to a person is
to contain
(a) a statement that the person is
authorised to enter certain
workplaces under this Act subject
to the Act and the conditions, if
any, imposed on the card; and
(b) the name and a photograph of the
person; and
(c) the name of the employee
organisation of which the person
is an officer.
(6) The Director may specify on an OHS
access card any other information the
Director thinks fit.
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(7) An OHS access card remains in force for
3 years from the date on which it is
issued, unless the person to whom it is
issued ceases earlier under section 22L to
be an OHS access card holder.
22F. Conditions of issue of OHS access cards
(1) The Director may, at the same time as the
Director issues under section 22E an
OHS access card to a person, impose a
condition on the card by instrument in
writing to the person.
(2) A condition may only be imposed by the
Director under subsection (1) if it is
relevant to the objects of this Part.
(3) The Director is to notify the chief official
who applied for the issue of an OHS
access card to a person of any conditions
that the Director has imposed on the card
under subsection (1).
(4) An OHS access card holder must comply
with any conditions imposed on the card
under subsection (1) or under
section 22M(4).
Penalty: Fine not exceeding 50 penalty
units.
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Division 2 Rights and responsibilities in relation to OHS
access card holders
22G. Rights of entry of OHS access card holders
(1) An OHS access card holder may, in
accordance with this section, enter a
workplace at which one or more workers
who are eligible to be members of the
employee organisation specified on the
card perform work, whether or not they
are in fact members of the employee
organisation.
(2) An OHS access card holder may only
enter a workplace under this section
during the hours at which workers
perform work at the workplace.
(3) An OHS access card holder may only
enter a workplace under this section for
the purpose of
(a) discussing with the workers,
during a meal break or other
break in work, health or safety
issues relevant to the workplace;
or
(b) enquiring into, or facilitating the
resolution of, a health or safety
matter that has arisen at the
workplace.
(4) An OHS access card holder may only
enter under this section premises that are
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used mainly for residential purposes if
the occupier of the premises consents to
the entry.
22H. Rights of OHS access card holder after entry
of workplace
(1) An OHS access card holder who enters a
workplace under section 22G may, while
at the workplace, exercise one or more of
the following powers:
(a) with the consent of a worker at
the workplace, consult with,
discuss with, or make enquiries of
or with, workers at the workplace
at times
(i) that are convenient to a
relevant duty holder at the
workplace or the person
in charge of the
workplace; or
(ii) that are appropriate;
(b) consult with a relevant duty
holder at the workplace about
health or safety matters;
(c) observe or review work, the
workplace, processes, plant,
equipment or the use of materials
and substances at the workplace,
and, if relevant, take photographs
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of the thing observed or
reviewed;
(d) review documents or parts of
documents relating to, or directly
relevant to, health or safety at the
workplace;
(e) consult with inspectors at the
workplace.
(2) An OHS access card holder may not
exercise a power under subsection (1)(d)
if to do so would contravene a law of this
State or the Commonwealth.
(3) An OHS access card holder who enters a
workplace under section 22G may
request a relevant duty holder to remove
information from, or obscure information
in, a document at the workplace, so as to
ensure that a law of this State or the
Commonwealth would not be
contravened by the exercise of the card
holder of a power under
subsection (1)(d).
(4) A relevant duty holder to whom a lawful
request is made by an OHS access card
holder under subsection (3) must, so far
as reasonably practicable, comply with
the request.
Penalty: Fine not exceeding 20 penalty
units.
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22I. Offences by OHS access card holders
(1) An OHS access card holder must not,
after purporting to be authorised to do so
under section 22G(1), enter a workplace
under section 22G if he or she knows, or
ought reasonably to be expected to know,
that he or she is not authorised under
section 22G(1) to do so.
Penalty: Fine not exceeding 50 penalty
units.
(2) An OHS access card holder must not
(a) enter a workplace, purportedly
under section 22G, for a purpose
other than a purpose specified in
section 22G(3); or
(b) enter a workplace under
section 22G and perform an
action at the workplace for a
purpose other than a purpose
specified in section 22G(3).
Penalty: Fine not exceeding 50 penalty
units.
(3) An OHS access card holder must, as
soon as reasonably practicable after
entering a workplace under section 22G,
or if requested to do so by the person in
charge of the workplace, produce his or
her OHS access card to the person in
charge of the workplace.
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Penalty: Fine not exceeding 10 penalty
units.
(4) An OHS access card holder must not,
without the consent of the occupier of the
premises, purport to enter under
section 22G premises that the card holder
knows to be premises used mainly for
residential purposes.
Penalty: Fine not exceeding 50 penalty
units.
(5) An OHS access card holder must not
exercise a power under this Part in
relation to a workplace unless he or she
complies with any reasonable request, by
the person in charge of the workplace, to
comply with a health or safety
requirement that applies at the
workplace.
Penalty: Fine not exceeding 50 penalty
units.
(6) An OHS access card holder exercising,
seeking to exercise, or purporting to
exercise, a power in accordance with this
Part must not intentionally hinder or
obstruct any person.
Penalty: Fine not exceeding 50 penalty
units.
(7) A person to whom an OHS access card
has been issued must return the card to
the Director within 14 days after
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(a) the card expires; or
(b) the person ceases under
section 22L to be an OHS access
card holder.
Penalty: Fine not exceeding 5 penalty
units.
22J. Offences by persons in relation to OHS
access card holders
(1) A person must not intentionally hinder or
obstruct an OHS access card holder
exercising a power in accordance with
this Part.
Penalty: Fine not exceeding 50 penalty
units.
(2) Without limiting subsection (1), that
subsection extends to hindering or
obstructing that occurs after an entry
notice is given but before an OHS access
card holder enters premises.
(3) A person must not refuse or delay entry
onto a workplace by an OHS access card
holder who is authorised to enter the
workplace under section 22G.
Penalty: Fine not exceeding 50 penalty
units.
(4) A person must not take action
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(a) with the intention of giving the
impression; or
(b) reckless as to whether the
impression is given
that the doing of a thing is authorised by
this Part if it is not so authorised.
Penalty: Fine not exceeding 50 penalty
units.
(5) A person must not, for a purpose other
than a purpose specified in
section 22G(3), use or disclose
information obtained under section 22H,
unless
(a) the person reasonably believes
that the use or disclosure is
necessary to lessen or prevent
(i) a serious and imminent
threat to an individual's
life, health or safety; or
(ii) a serious threat to public
health or public safety; or
(b) the person has reason to suspect
that unlawful activity has been, is
being, or may be, engaged in, and
the person uses or discloses the
information as a necessary part of
investigating the matter or in
reporting concerns to relevant
persons or authorities; or
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(c) the use or disclosure is required
or authorised under the laws of
this State or the Commonwealth;
or
(d) the person reasonably believes
that the use or disclosure is
reasonably necessary for one or
more of the following by, or on
behalf of, an enforcement agency
within the meaning of the Privacy
Act 1988 of the Commonwealth:
(i) the prevention, detection,
investigation, prosecution
or punishment of criminal
offences, breaches of a
law imposing a penalty or
sanction or breaches of a
law prescribed by the
regulations;
(ii) the enforcement of laws
relating to the
confiscation of the
proceeds of crime;
(iii) the protection of the
public revenue;
(iv) the prevention, detection,
investigation, prosecution
or remedying of seriously
improper conduct or
conduct that is prescribed
by the regulations;
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(v) the preparation for, or
conduct of, proceedings
before any court or
tribunal, or
implementation of the
orders of a court or
tribunal; or
(e) the information is personal
information within the meaning
of the Privacy Act 1988 of the
Commonwealth and the use or
disclosure is made with the
consent of the individual to
whom the information relates.
Penalty: Fine not exceeding 50 penalty
units.
22K. Referral of disputes to inspectors
(1) An OHS access card holder, a relevant
duty holder in relation to a workplace or
a person in charge of a workplace may
refer to an inspector any question, issue
or dispute relating to
(a) the power of the card holder to
enter a workplace under
section 22G; or
(b) the exercise by the OHS access
card holder, after he or she has
entered a workplace, of a power
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conferred on him or her under
this Part; or
(c) a health or safety issue in relation
to the workplace.
(2) If a question, issue or dispute is referred
to an inspector under subsection (1), the
inspector must attempt to resolve the
matter by agreement between
(a) the OHS access card holder; and
(b) the relevant duty holder or
holders in relation to the
workplace; and
(c) the person in charge of the
workplace.
(3) If an inspector is unable to resolve by
agreement a question, issue or dispute
relating to the power of an OHS access
card holder to enter a workplace under
section 22G, the inspector may
(a) if he or she is of the opinion that
the requirements for entry to the
workplace under that section have
been satisfied, order that all
relevant duty holders and the
person in charge of the workplace
must allow the OHS access card
holder to enter the workplace; or
(b) if he or she is of the opinion that
the requirements for entry to the
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workplace under that section have
not been satisfied, order that the
OHS access card holder must not
enter the workplace until the
requirements are satisfied; or
(c) take any action that is prescribed
by the regulations for the
purposes of this section or that
the inspector could otherwise take
under this Act.
(4) If an inspector has made an order under
subsection (3)(b) in respect of an OHS
access card holder, the inspector must
determine whether action ought to be
taken under this Act by an inspector in
relation to the health or safety issue for
the purpose of which the OHS access
card holder sought entry to the
workplace.
(5) If an inspector is unable to resolve by
agreement a question, issue or dispute
relating to the exercise or performance
by an OHS access card holder, after he or
she has entered a workplace, of a power
conferred on the card holder under this
Part, the inspector may
(a) if he or she is of the opinion that
the exercise by the OHS access
card holder of the power is
authorised under this Part, order
that each relevant duty holder in
relation to the workplace and the
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person in charge of the workplace
must allow the OHS access card
holder to exercise the power; or
(b) if he or she is of the opinion that
the exercise by the OHS access
card holder of the power is not
authorised under this Part, order
that the OHS access card holder
must not exercise the power.
(6) If an inspector is unable to resolve by
agreement a question, issue or dispute
relating to a health or safety issue
referred to the inspector under
subsection (1), the inspector must
determine whether action in relation to
the health or safety issue ought to be
taken under this Act by an inspector.
(7) An order under this section directed at a
person in relation to a question, issue or
dispute
(a) may be given by notice in writing
to the person; or
(b) may be given orally to the person.
(8) If an order is given orally by an inspector
to a person under subsection (7)(b), the
inspector, within 48 hours after giving
the order, must give to the person notice
in writing setting out the order.
(9) A person must not, without reasonable
excuse, fail to comply with an order
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made under this section given to the
person.
Penalty: Fine not exceeding 50 penalty
units.
(10) An inspector who gives an order to a
person under this section is, within 48
hours after giving written notice under
subsection (7) or (8), to give notice in
writing to the other persons referred to in
subsection (1) with whom the inspector
attempted to resolve the question, issue
or dispute in relation to which the order
was given.
Division 3 Expiry, cancellation and disqualification from
holding OHS access cards
22L. When person ceases to be OHS access card
holder
(1) A person to whom an OHS access card
has been issued ceases to be an OHS
access card holder if
(a) the person ceases to be an officer
of the employee organisation
specified on the card; or
(b) the person ceases to hold an entry
permit issued under the Fair
Work Act 2009 of the
Commonwealth and is not a
person who was exempted under
section 22D(2) from the
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application of section 22D(1)(b);
or
(c) the card is cancelled under
subsection (4); or
(d) the person is disqualified under
section 22M from holding an
OHS access card.
(2) An OHS access card holder may, by
notice in writing to the Director, request
the Director to cancel the card from a
date, specified in the notice, that is later
than the date on which the notice is
given.
(3) The chief official of an employee
organisation specified on an OHS access
card issued to an officer of the employee
organisation may, by notice in writing to
the Director, request the Director to
cancel the card from a date, specified in
the notice, that is later than the date on
which the notice is given.
(4) If a notice is given to the Director under
subsection (2) or (3) in relation to a
person to whom an OHS card has been
issued, the Director may, from the date
requested in the notice, cancel the card.
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22M. Disqualification &c. of OHS access card
holders
(1) A relevant person in relation to an OHS
access card holder may apply to the
Director for the Director to disqualify an
OHS access card holder from holding an
OHS access card.
(2) For the purposes of subsection (1), a
relevant person in relation to an OHS
access card holder is
(a) a worker at a workplace at which
the card holder has exercised a
power under this Part; or
(b) a person in charge of a workplace
at which the card holder has
exercised a power under this Part;
or
(c) a relevant duty holder in respect
of a workplace at which the card
holder has exercised a power
under this Part.
(3) An application under subsection (1) in
relation to an OHS access card holder is
to
(a) specify the grounds under this
section on which the application
is made; and
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(b) specify the circumstances that the
person believes give rise to the
grounds.
(4) The Director may
(a) after receiving an application
under subsection (1); or
(b) of his or her own motion
by notice in writing to an OHS access
card holder
(c) disqualify the person from
holding such a card permanently,
or for a period, as specified in the
notice; or
(d) impose conditions on the OHS
access card.
(5) The Director may only disqualify a
person from holding an OHS access card,
or impose conditions on the OHS access
card issued to an OHS access card
holder, on grounds prescribed in the
regulations or on the grounds that
(a) the Director is satisfied, on
reasonable grounds, that the
person has
(i) used the OHS access card
for purposes other than
the purposes, specified in
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Workplace Health and Safety Amendment Act 2009
Act No. of
s. 5
section 22G(3), for which
the card was issued; or
(ii) used or disclosed, for
purposes that are not
authorised under this Part,
information obtained in
the exercise of powers of
the OHS access card
holder under this Part; or
(iii) taken, without authority,
documents obtained at a
workplace that the person
has entered under this
Part; or
(b) the Director is satisfied, on
reasonable grounds, that the
person has contravened a
condition imposed on the OHS
access card issued to the person;
or
(c) the Director is satisfied, on
reasonable grounds, that the
person has, in exercising, seeking
to exercise, or purporting to
exercise, a power in accordance
with this Part, intentionally
hindered or obstructed another
person; or
(d) the person has committed an
offence against this Part.
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Act No. of
s. 6
(6) The Director may only disqualify a
person from holding an OHS access card,
or impose a condition on the OHS access
card issued to a person, if
(a) the Director has, at least 14 days
before, invited the person to show
cause why the person should not
be disqualified under this section
or the condition should not be
imposed on the OHS access card
issued to the person; and
(b) the person has, within the period
referred to in paragraph (a), been
given a reasonable opportunity to
show cause to the Director why
the person should not be
disqualified under this section or
the condition should not be
imposed on the OHS access card
issued to the person; and
(c) the Director issues to the person
reasons in writing for the
disqualification or the imposition
of the condition on the OHS
access card issued to the person.
6. Section 27 amended (Composition of health and
safety committee)
Section 27 of the Principal Act is amended as
follows:
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Workplace Health and Safety Amendment Act 2009
Act No. of
s. 7
(a) by omitting from subsection (4) "a
union" and substituting "an employee
organisation";
(b) by omitting subsection (7).
7. Section 41 amended (Right of appeal)
Section 41 of the Principal Act is amended as
follows:
(a) by inserting the following paragraph after
paragraph (a) in subsection (1):
(ab) an order of an inspector of which
notice in writing has been given
to the person under
section 22K(7) or (8); or
(b) by inserting in subsection (4) "notice
given to a person under section 22K(7)
or (8), or a" after "against a".
8. Schedule 1 amended (Regulations)
Clause 21 of Schedule 1 to the Principal Act is
amended by inserting "and matters to which
Part 3A relates" after "committees".
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Act No. of
s. 9
9. Repeal
This Act is repealed on the ninetieth date from
the day on which all of the provisions of this Act
commence.
34 Government Printer, Tasmania