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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Mines Safety and Inspection Amendment
Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 3
Part 2 -- Amendments relating to
general occupational safety and
health duties
4. Section 3 amended 4
5. Part 2 Division 2 heading inserted 4
6. Section 9 amended 4
7. Section 11A inserted 4
8. Section 12 amended 5
9. Sections 12B and 12C inserted 6
10. Part 2 Divisions 3 and 4 inserted 7
11. Section 20A inserted 16
12. Section 21 amended 16
13. Section 104 amended 16
Part 3 -- Amendments relating to
offences and penalties
14. Section 4 amended 17
15. Sections 4A and 4B inserted 17
16. Section 15 repealed 20
17. Part 2 Division 1 inserted 20
18. Section 9 amended 21
19. Section 9A inserted 21
330--3 page i
Mines Safety and Inspection Amendment Bill 2004
Contents
20. Section 10 amended 22
21. Section 10A inserted 22
22. Section 12 amended 23
23. Section 12A inserted 23
24. Section 13 amended 24
25. Section 13A inserted 25
26. Section 14 amended 26
27. Section 15 inserted 26
28. Part 9 Division 1 heading inserted 27
29. Section 94 replaced 27
30. Section 95 amended 27
31. Section 97 replaced and transitional provision 28
32. Section 98 amended 28
33. Section 99 amended 30
34. Section 99A inserted 30
35. Section 100 amended 31
36. Section 100A inserted 32
37. Section 101A inserted 33
38. Part 9 Division 2 inserted 33
39. Section 104 amended 40
Part 4 -- Amendments relating to mine
management
40. Section 32 amended 42
41. Section 32A inserted 43
42. Section 33A inserted 44
43. Section 34 amended 45
44. Section 36 amended 46
45. Section 38 amended 47
46. Section 38A inserted 47
47. Section 39 amended 49
48. Section 40 amended 49
Part 5 -- Amendments relating to
safety and health representatives
and committees
49. Section 4 amended 50
50. Section 21 amended 50
51. Section 25 amended 50
52. Section 53 amended 51
page ii
Mines Safety and Inspection Amendment Bill 2004
Contents
53. Section 54 amended 51
54. Section 55 amended 51
55. Sections 55A, 55B and 55C inserted 52
56. Section 56 amended 55
57. Saving provision for existing safety and health
representatives 58
58. Section 57 amended 58
59. Section 59 amended 58
60. Section 60 amended 59
61. Section 62 amended 60
62. Section 62A inserted 61
63. Section 63 amended 62
64. Sections 64, 65, 66 and 67 replaced by sections 64 to
67F 63
65. Savings and transitional provisions for existing safety
and health committees 71
66. Section 68 replaced 72
67. Sections 68A, 68B, 68C and 68D inserted 72
68. Section 69 amended 75
69. Section 70 amended 76
70. Section 72 amended 77
71. Section 77 amended 77
72. Section 104 amended 78
Part 6 -- Amendments to provide for
improvement notices, prohibition
notices and provisional
improvement notices
73. Section 4 amended 79
74. Section 22 repealed 79
75. Section 23 amended 79
76. Sections 30 and 31 replaced by Divisions 3 and 4 79
77. Transitional provision for directions given before
commencement 107
78. Section 71 amended 107
79. Section 89 amended 107
page iii
Mines Safety and Inspection Amendment Bill 2004
Contents
Part 7 -- Amendments to provide for
the Occupational Safety and
Health Tribunal to determine
certain matters
Division 1 -- Amendments to the Mines Safety and
Inspection Act 1994
80. Section 4 amended 108
81. Section 96A amended 108
82. Part 9 Division 3 heading inserted 108
83. Section 102 replaced and transitional provisions 109
84. Various references to a safety and health magistrate
amended 111
85. Section 52 amended and transitional provision 111
85A. Section 76 amended 112
86. Section 86 amended and transitional provision 112
Division 2 -- Amendments to the Industrial
Relations Act 1979
87. The Industrial Relations Act 1979 amended 112
Part 8 -- Miscellaneous amendments
88. Section 4 amended 114
89. Section 6A inserted 116
90. Section 21 amended 118
91. Section 102A inserted 119
92. Section 104 amended 121
93. Section 110 amended 121
94. Occupational Safety and Health Act 1984 amended 122
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Mines Safety and Inspection Amendment
Bill 2004
A Bill for
An Act to amend the Mines Safety and Inspection Act 1994 and to
make consequential amendments to the Industrial Relations Act 1979
and the Occupational Safety and Health Act 1984.
The Parliament of Western Australia enacts as follows:
page 1
Mines Safety and Inspection Amendment Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Mines Safety and Inspection
Amendment Act 2004.
5 2. Commencement
(1) This Act, other than --
(a) Part 7 Division 2; and
(b) section 88(4),
comes into operation on a day fixed by proclamation.
10 (2) Different days may be fixed under subsection (1) for different
provisions.
(3) Part 7 Division 2 comes into operation --
(a) on the day on which section 70 of the Occupational
Safety and Health Legislation Amendment and Repeal
15 Act 2004 comes into operation and immediately after
that coming into operation; or
(b) if on that day Part 7 Division 1 of this Act has not yet
come into operation, on the day on which that Division
comes into operation.
20 (4) Section 88(4) comes into operation --
(a) on the day on which section 115 of the Occupational
Safety and Health Legislation Amendment and Repeal
Act 2004 comes into operation; or
(b) if on that day section 88(1) of this Act has not yet come
25 into operation, on the day on which that subsection
comes into operation.
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Mines Safety and Inspection Amendment Bill 2004
Preliminary Part 1
s. 3
3. The Act amended
The amendments in this Act, except those in sections 87 and 94,
are to the Mines Safety and Inspection Act 1994*.
[* Reprinted as at 17 March 2000.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 250.]
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Mines Safety and Inspection Amendment Bill 2004
Part 2 Amendments relating to general occupational safety and
health duties
s.
Part 2 -- Amendments relating to general occupational
safety and health duties
4. Section 3 amended
(1) Section 3 is amended by inserting before "The objects" the
5 subsection designation "(1)".
(2) At the end of section 3 the following subsection is inserted --
"
(2) In subsection (1) --
"employer" and "employee" include a person taken to
10 be an employer and an employee respectively by
operation of section 15A, 15B or 15C.
".
5. Part 2 Division 2 heading inserted
After section 8B the following heading is inserted --
15 "
Division 2 -- General duties
".
6. Section 9 amended
Section 9(3) and (4) are repealed.
20 7. Section 11A inserted
After section 11 the following section is inserted --
"
11A. Duty of manager to inform person who makes a
report under section 11
25 (1) Where a report is made under section 11(1)(a) or (b) or
(3) in relation to a mine, the manager of the mine must,
within a reasonable time after the report is received by
him or her --
(a) investigate the occurrence, situation, injury or
30 harm that was reported;
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s. 8
(b) determine the action, if any, that the manager
intends to take in respect of the matter; and
(c) notify the person who made the report of the
determination so made.
5 (2) A manager who contravenes subsection (1) commits an
offence.
".
8. Section 12 amended
Section 12(1) is repealed and the following subsections are
10 inserted instead --
"
(1) A self-employed person working at a mine must take
reasonable care to ensure his or her own safety and
health at work.
15 (2) An employer or self-employed person at a mine must,
so far as is practicable, ensure that the safety or health
of a person, not being (in the case of an employer) an
employee of the employer, is not adversely affected
wholly or in part as a result of --
20 (a) work that has been or is being undertaken by --
(i) the employer or any employee of the
employer; or
(ii) the self-employed person;
or
25 (b) any hazard that arises from or is increased
by --
(i) the work referred to in paragraph (a); or
(ii) the system of work that has been or is
being operated by the employer or the
30 self-employed person.
".
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s.
9. Sections 12B and 12C inserted
After section 12A the following sections are inserted --
"
12B. Duties placed on corporation to which section 15A,
5 15B or 15C applies
(1) If section 15A, 15B or 15C makes any other provision
of this Act apply to a corporation as if it were the
employer of a particular person, this section and
section 12C apply to the corporation at such times as
10 the other provision is made to apply.
(2) A corporation to which this section applies that carries
on operations at a mine must, so far as is practicable,
ensure that the safety or health of a person is not
adversely affected wholly or in part as a result of --
15 (a) work that has been or is being undertaken by --
(i) the corporation; or
(ii) a person carrying out work under the
direction of the corporation;
or
20 (b) any hazard that arises from or is increased
by --
(i) the work referred to in paragraph (a); or
(ii) the system of work that has been or is
being operated by the corporation.
25 12C. Breaches of section 12B
(1) If a corporation contravenes section 12B(2) in
circumstances of gross negligence, the corporation
commits an offence and is liable to a level 4 penalty.
(2) If --
30 (a) a corporation --
(i) contravenes section 12B(2); and
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s. 10
(ii) by the contravention causes the death
of, or serious harm to, a person;
and
(b) subsection (1) does not apply,
5 the corporation commits an offence and is liable to a
level 3 penalty.
(3) If --
(a) a corporation contravenes section 12B(2); and
(b) neither subsection (1) nor subsection (2)
10 applies,
the corporation commits an offence and is liable to a
level 2 penalty.
(4) A corporation charged with an offence under --
(a) subsection (1) may, instead of being convicted
15 of that offence, be convicted of an offence
under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (3).
20 ".
10. Part 2 Divisions 3 and 4 inserted
After section 15 the following Divisions are inserted in
Part 2 --
"
25 Division 3 -- Certain workplace situations to be treated
as employment
15A. Contract work arrangements
(1) This section applies where a person (the "principal")
in the course of mining operations engages a contractor
30 (the "contractor") to carry out work for the principal.
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s.
(2) Where this section applies, section 9 has effect --
(a) as if the principal were the employer of --
(i) the contractor; and
(ii) any person employed or engaged by the
5 contractor to carry out or assist in
carrying out the work concerned,
in relation to matters over which the principal
has the capacity to exercise control; and
(b) as if --
10 (i) the contractor; and
(ii) any person referred to in
paragraph (a)(ii),
were employees of the principal in relation to
matters over which the principal has the
15 capacity to exercise control.
(3) Where this section applies, the further duties referred to
in subsection (4) apply --
(a) as if the principal were the employer of --
(i) the contractor; and
20 (ii) any person employed or engaged by the
contractor to carry out or assist in
carrying out the work concerned;
and
(b) as if --
25 (i) the contractor; and
(ii) any person referred to in
paragraph (a)(ii),
were employees of the principal.
(4) The further duties mentioned in subsection (3) are --
30 (a) the duties of an employee under section 10; and
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s. 10
(b) the duties of an employer under section 15D(2).
(5) An agreement or arrangement is void for the purposes
of this section if it purports to give control to --
(a) a contractor; or
5 (b) a person referred to in subsection (2)(a)(ii),
of any matter that --
(c) comes within section 9 or 15D(2); and
(d) is a matter over which the principal has the
capacity to exercise control,
10 but this subsection does not prevent the making of a
written agreement as mentioned in section 15D(3).
(6) A purported waiver by a contractor of a right that arises
directly or indirectly under this section is void.
(7) Nothing in this section derogates from --
15 (a) the duties of the principal to the contractor; or
(b) the duties of the contractor to any person
employed or engaged by the contractor.
15B. Labour arrangements in general
(1) This section applies where --
20 (a) a person (the "worker") for remuneration
carries out work for another person (the
"person mentioned in subsection (1)(a)") in
the course of mining operations;
(b) that person has the power of direction and
25 control in respect of the work in a similar
manner to the power of an employer under a
contract of employment;
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Mines Safety and Inspection Amendment Bill 2004
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s.
(c) there is no contract of employment between the
worker and that person; and
(d) neither section 15A nor section 15C applies.
(2) Where this section applies, section 9 has effect as if --
5 (a) the person mentioned in subsection (1)(a) were
the employer of the worker; and
(b) the worker were the employee of that person,
in relation to any matter that --
(c) comes within section 9; and
10 (d) is a matter over which that person has the
capacity to exercise control.
(3) Where this section applies, section 10 has effect as
if --
(a) the person mentioned in subsection (1)(a) were
15 the employer of the worker; and
(b) the worker were the employee of that person.
(4) An agreement or arrangement is void for the purposes
of this section to the extent that it purports to give
control to the worker of any matter that --
20 (a) comes within section 9; and
(b) is a matter over which the person mentioned in
subsection (1)(a) has the capacity to exercise
control.
(5) This section applies despite anything to the contrary in,
25 or any inconsistent provision of, an agreement, whether
made orally or in writing.
(6) A purported waiver by a worker of a right that arises
directly or indirectly under this section is void.
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s. 10
15C. Labour hire arrangements
(1) In this section --
"agent" --
(a) means a person who carries on a business of
5 providing workers to carry out work for
clients of the person; and
(b) includes a group training organisation as
defined in section 7(1) of the Industrial
Relations Act 1979;
10 "worker" includes an employee or a contractor.
(2) This section applies where, under a labour hire
arrangement, work is carried out for remuneration by a
worker for a client of an agent (the "client") in the
course of mining operations carried on by the client.
15 (3) A labour hire arrangement exists where --
(a) an agent has for remuneration agreed with the
client to provide a worker to carry out work for
the client;
(b) there is no contract of employment between the
20 worker and the client in relation to the work;
(c) there is an agreement (which may be a contract
of employment) between the worker and the
agent as to the carrying out of work including
in respect of remuneration and other
25 entitlements; and
(d) that agreement applies to the carrying out of the
work by the worker for the client.
(4) Where this section applies, section 9 has effect as if --
(a) each of the agent and the client were the
30 employer of the worker; and
(b) the worker were an employee of each of the
agent and the client,
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s.
in relation to any matter that --
(c) comes within section 9; and
(d) as regards --
(i) the agent, is a matter over which the
5 agent has the capacity to exercise
control; or
(ii) the client, is a matter over which the
client has the capacity to exercise
control.
10 (5) Where this section applies, section 10 has effect as
if --
(a) each of the agent and the client were the
employer of the worker; and
(b) the worker were an employee of each of the
15 agent and the client.
(6) This section applies despite anything to the contrary in,
or any inconsistent provision of, an agreement, whether
made orally or in writing.
(7) A purported waiver by a worker of a right that arises
20 directly or indirectly under this section is void.
Division 4 -- Other duties
15D. Duty of employer in respect of certain residential
accommodation
(1) In this section --
25 "residential premises" --
(a) means residential premises that are situated
outside --
(i) a townsite within the meaning in
section 26(1) of the Land
30 Administration Act 1997; and
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Amendments relating to general occupational safety and Part 2
health duties
s. 10
(ii) the metropolitan region as defined in
section 6 of the Metropolitan Region
Town Planning Scheme Act 1959;
and
5 (b) includes land and outbuildings that are
intended to be used in connection with the
occupation of the premises; but
(c) does not include any premises that come
within paragraph (k) of the definition of
10 "mining operations" in section 4(1).
(2) Where --
(a) an employee who is employed in mining
operations occupies residential premises that
are owned by or under the control of the
15 employee's employer; and
(b) the occupancy is necessary for the purposes of
the employment because other accommodation
is not reasonably available in the area
concerned,
20 the employer must, so far as is practicable, maintain the
premises so that the employee occupying the premises
is not exposed to hazards at the premises.
(3) Subsection (2) does not apply if the occupancy is
pursuant to a written agreement containing terms that
25 might reasonably be expected to apply to a letting of
the residential premises to a tenant.
15E. Breaches of section 15D
(1) If an employer contravenes section 15D(2) in
circumstances of gross negligence, the employer
30 commits an offence and is liable to a level 4 penalty.
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health duties
s.
(2) If --
(a) an employer --
(i) contravenes section 15D(2); and
(ii) by the contravention causes the death
5 of, or serious harm to, an employee
occupying premises as mentioned in
that section;
and
(b) subsection (1) does not apply,
10 the employer commits an offence and is liable to a
level 3 penalty.
(3) If --
(a) an employer contravenes section 15D(2); and
(b) neither subsection (1) nor subsection (2)
15 applies,
the employer commits an offence and is liable to a
level 2 penalty.
(4) In proceedings against a person for an offence under
subsection (1) or (2) it is a defence if the person proves
20 that the death or serious harm, as the case may be,
would not have occurred if the employee had taken
reasonable care to ensure the employee's own safety
and health at the premises concerned.
(5) An employer charged with an offence under --
25 (a) subsection (1) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted
of that offence, be convicted of an offence
30 under subsection (3).
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s. 10
15F. Notification of hazard to the principal employer and
manager
(1) In this section --
"mine" includes the means of access to and egress
5 from a mine.
(2) If --
(a) the employer of any employee; or
(b) a self-employed person carrying out work,
at a mine becomes of the opinion that --
10 (c) a situation exists at the mine that could
constitute a hazard to any person;
(d) the hazard is one that the principal employer at,
and the manager of, the mine have a duty to
remedy under section 13; and
15 (e) the situation has not come to the attention of
either of those persons,
the employer or self-employed person must, so far as it
is reasonably practicable to do so, give notice of the
situation to either the principal employer or the
20 manager.
(3) A notice under subsection (2) must be given as soon as
is reasonably practicable after the employer or
self-employed person becomes of the opinion
mentioned in that subsection.
25 (4) An employer or self-employed person who fails to
comply with subsection (2) commits an offence.
".
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health duties
s.
11. Section 20A inserted
After the heading to Part 3 Division 2 the following section is
inserted --
"
5 20A. Extended meaning of "employer" and "employee"
In this Division --
"employer" and "employee" include a person taken to
be an employer and an employee respectively by
operation of section 15A, 15B or 15C.
10 ".
12. Section 21 amended
Section 21(6) is repealed and the following subsection is
inserted instead --
"
15 (6) For the purposes of this section a mine is to be taken to
include --
(a) a workplace that relates to but is not a mine or
part of a mine; and
(b) in relation to a particular mine, residential
20 premises that an employer at the mine is or was
under a duty to maintain by virtue of
section 15D(2).
".
13. Section 104 amended
25 After section 104(1) the following subsection is inserted --
"
(1a) In subsection (1)(c), (z), (zc) and (zk) --
"employer" and "employee" include a person taken to
be an employer and an employee respectively by
30 operation of section 15A, 15B or 15C, and
"employed" has a corresponding meaning.
".
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Mines Safety and Inspection Amendment Bill 2004
Amendments relating to offences and penalties Part 3
s. 14
Part 3 -- Amendments relating to offences
and penalties
14. Section 4 amended
Section 4(4) is amended by deleting "9(8), 10(5), 12(3), 13(3)
5 and 14(6)" and inserting instead --
"
8B(2), 9A(2), 10A(2), 12A(2), 12C(2), 13A(2), 15(2),
15E(2), 99A(2)(a)(iv) and 100A(2)(a)(iii)
".
10 15. Sections 4A and 4B inserted
After section 4 the following sections are inserted --
"
4A. Penalty levels defined
(1) Where a person is liable to a level one penalty for an
15 offence against this Act the person is liable --
(a) if the offence was committed by the person as
an employee --
(i) for a first offence, to a fine of $5 000;
and
20 (ii) for a subsequent offence, to a fine of
$6 250;
(b) if paragraph (a) does not apply --
(i) in the case of an individual --
(I) for a first offence, to a fine of
25 $25 000; and
(II) for a subsequent offence, to a
fine of $31 250;
or
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Part 3 Amendments relating to offences and penalties
s.
(ii) in the case of a corporation --
(I) for a first offence, to a fine of
$50 000; and
(II) for a subsequent offence, to a
5 fine of $62 500.
(2) Where a person is liable to a level 2 penalty for an
offence against this Act the person is liable --
(a) in the case of an individual --
(i) for a first offence, to a fine of $100 000;
10 and
(ii) for a subsequent offence, to a fine of
$125 000;
or
(b) in the case of a corporation --
15 (i) for a first offence, to a fine of $200 000;
and
(ii) for a subsequent offence, to a fine of
$250 000.
(3) Where a person is liable to a level 3 penalty for an
20 offence against this Act the person is liable --
(a) in the case of an individual --
(i) for a first offence, to a fine of $200 000;
and
(ii) for a subsequent offence, to a fine of
25 $250 000;
or
(b) in the case of a corporation --
(i) for a first offence, to a fine of $400 000;
and
30 (ii) for a subsequent offence, to a fine of
$500 000.
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Amendments relating to offences and penalties Part 3
s. 15
(4) Where a person is liable to a level 4 penalty for an
offence against this Act the person is liable --
(a) in the case of an individual --
(i) for a first offence, to a fine of $250 000
5 and imprisonment for 2 years; and
(ii) for a subsequent offence, to a fine of
$312 500 and imprisonment for 2 years;
or
(b) in the case of a corporation --
10 (i) for a first offence, to a fine of $500 000;
and
(ii) for a subsequent offence, to a fine of
$625 000.
4B. Meaning of "first offence" and "subsequent
15 offence"
(1) In this section --
"relevant day" means the day on which section 15 of
the Mines Safety and Inspection Amendment
Act 2004 comes into operation.
20 (2) For the purposes of this Act --
(a) an offence is a first offence committed by a
person if, at the time when the offence is
committed, the person has not previously been
convicted of any offence against this Act
25 committed on or after the relevant day; and
(b) an offence is a subsequent offence committed by
a person if, at the time when the offence is
committed, the person has previously been
convicted of one or more offences against this
30 Act committed on or after the relevant day.
".
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Part 3 Amendments relating to offences and penalties
s.
16. Section 15 repealed
Section 15 is repealed.
17. Part 2 Division 1 inserted
After the heading to Part 2 the following Division is inserted --
5 "
Division 1 -- Preliminary
8A. General and particular duties
(1) A duty imposed on a person under this Part --
(a) does not affect the application of any other
10 more specific duty imposed on that person
under this Act; and
(b) applies despite any other more specific duty
imposed on that person under this Act.
(2) Subsection (1) has effect subject to section 101A.
15 8B. Meaning of gross negligence in relation to certain
breaches of this Part
(1) This section applies to a contravention of section 9(1),
10(1) or (3), 12(1) or (2), 12B(2), 13, 14(1), (2), (3) or
(4) or 15D(2).
20 (2) For the purposes of this Part, a contravention of a
provision mentioned in subsection (1) is committed in
circumstances of gross negligence if --
(a) the offender --
(i) knew that the contravention would be
25 likely to cause the death of, or serious
harm to, a person to whom a duty is
owed under that provision; but
(ii) acted or failed to act in disregard of that
likelihood;
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Amendments relating to offences and penalties Part 3
s. 18
and
(b) the contravention did in fact cause the death of,
or serious harm to, such a person.
".
5 18. Section 9 amended
Section 9(7), (8) and (9) are repealed.
19. Section 9A inserted
After section 9 the following section is inserted --
"
10 9A. Breaches of section 9(1)
(1) If an employer contravenes section 9(1) in
circumstances of gross negligence, the employer
commits an offence and is liable to a level 4 penalty.
(2) If --
15 (a) an employer --
(i) contravenes section 9(1); and
(ii) by the contravention causes the death
of, or serious harm to, an employee;
and
20 (b) subsection (1) does not apply,
the employer commits an offence and is liable to a
level 3 penalty.
(3) If --
(a) an employer contravenes section 9(1); and
25 (b) neither subsection (1) nor subsection (2)
applies,
the employer commits an offence and is liable to a
level 2 penalty.
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(4) An employer charged with an offence under --
(a) subsection (1) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (2) or (3); or
5 (b) subsection (2) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (3).
".
20. Section 10 amended
10 Section 10(4), (5) and (6) are repealed.
21. Section 10A inserted
After section 10 the following section is inserted --
"
10A. Breaches of section 10(1) or (3)
15 (1) If an employee contravenes section 10(1) or (3) in
circumstances of gross negligence, the employee
commits an offence and is liable --
(a) for a first offence, to a fine of $25 000; and
(b) for a subsequent offence, to a fine of $31 250.
20 (2) If --
(a) an employee --
(i) contravenes section 10(1) or (3); and
(ii) by the contravention causes the death
of, or serious harm to, a person;
25 and
(b) subsection (1) does not apply,
the employee commits an offence and is liable --
(c) for a first offence, to a fine of $20 000; and
(d) for a subsequent offence, to a fine of $25 000.
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(3) If --
(a) an employee contravenes section 10(1) or (3);
and
(b) neither subsection (1) nor subsection (2)
5 applies,
the employee commits an offence and is liable --
(c) for a first offence, to a fine of $10 000; and
(d) for a subsequent offence, to a fine of $12 500.
(4) An employee charged with an offence under --
10 (a) subsection (1) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted
of that offence, be convicted of an offence
15 under subsection (3).
".
22. Section 12 amended
Section 12(2), (3) and (4) are repealed.
23. Section 12A inserted
20 After section 12 the following section is inserted --
"
12A. Breaches of section 12
(1) If an employer or a self-employed person contravenes
section 12(1) or (2) in circumstances of gross
25 negligence, the employer or the self-employed person
commits an offence and is liable to a level 4 penalty.
(2) If --
(a) an employer or self-employed person --
(i) contravenes section 12(1) or (2); and
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(ii) by the contravention causes the death
of, or serious harm to, a person;
and
(b) subsection (1) does not apply,
5 the employer or self-employed person commits an
offence and is liable to a level 3 penalty.
(3) If --
(a) an employer or self-employed person
contravenes section 12(1) or (2); and
10 (b) neither subsection (1) nor subsection (2)
applies,
the employer or self-employed person commits an
offence and is liable to a level 2 penalty.
(4) An employer or self-employed person charged with an
15 offence under --
(a) subsection (1) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted
20 of that offence, be convicted of an offence
under subsection (3).
".
24. Section 13 amended
Section 13 is amended as follows:
25 (a) in subsection (1) by deleting the subsection designation;
(b) by repealing subsections (2), (3) and (4).
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25. Section 13A inserted
After section 13 the following section is inserted --
"
13A. Breaches of section 13
5 (1) If a person contravenes section 13 in circumstances of
gross negligence, the person commits an offence and is
liable to a level 4 penalty.
(2) If --
(a) a person --
10 (i) contravenes section 13; and
(ii) by the contravention causes the death
of, or serious harm to, a person --
(I) who is at; or
(II) who is using the means of
15 access to or egress from,
the workplace;
and
(b) subsection (1) does not apply,
the person commits an offence and is liable to a level 3
20 penalty.
(3) If --
(a) a person contravenes section 13; and
(b) neither subsection (1) nor subsection (2)
applies,
25 the person commits an offence and is liable to a level 2
penalty.
(4) A person charged with an offence under --
(a) subsection (1) may, instead of being convicted
of that offence, be convicted of an offence
30 under subsection (2) or (3); or
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(b) subsection (2) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (3).
".
5 26. Section 14 amended
Section 14(5), (6) and (7) are repealed.
27. Section 15 inserted
After section 14 the following section is inserted --
"
10 15. Breaches of section 14
(1) If a person contravenes section 14(1), (2), (3) or (4) in
circumstances of gross negligence, the person commits
an offence and is liable to a level 4 penalty.
(2) If --
15 (a) a person --
(i) contravenes section 14(1), (2), (3)
or (4); and
(ii) by the contravention causes the death
of, or serious harm to, a person to whom
20 a duty is owed under that subsection;
and
(b) subsection (1) does not apply,
the person commits an offence and is liable to a level 3
penalty.
25 (3) If --
(a) a person contravenes section 14(1), (2), (3)
or (4); and
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(b) neither subsection (1) nor subsection (2)
applies,
the person commits an offence and is liable to a level 2
penalty.
5 (4) A person charged with an offence under --
(a) subsection (1) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted
10 of that offence, be convicted of an offence
under subsection (3).
".
28. Part 9 Division 1 heading inserted
After the heading to Part 9 the following heading is inserted --
15 "
Division 1 -- General provisions
".
29. Section 94 replaced
Section 94 is repealed and the following section is inserted
20 instead --
"
94. General penalty
If a person commits an offence against this Act for
which a penalty is not otherwise provided, the person is
25 liable to a level one penalty.
".
30. Section 95 amended
Section 95(2) is amended by deleting "and is liable to a fine not
exceeding $1 000 in the case of a corporation and $200 in the
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case of an individual for every day on which the offence is so
continued." and inserting instead --
"
and is liable to a fine not exceeding --
5 (a) $200, where the offence is committed by a
person as an employee;
(b) $1 000, where the offence is committed by an
individual and paragraph (a) does not apply;
and
10 (c) $2 000, where the offence is committed by a
corporation,
for every day on which the offence is so continued.
".
31. Section 97 replaced and transitional provision
15 (1) Section 97 is repealed and the following section is inserted
instead --
"
97. Time limit for prosecutions
Proceedings for an offence against this Act must be
20 commenced within 3 years after the offence was
committed.
".
(2) Section 97 of the Mines Safety and Inspection Act 1994 as in
force immediately before the commencement of subsection (1)
25 applies to an offence against that Act committed before that
commencement as if subsection (1) had not been enacted.
32. Section 98 amended
(1) Section 98(1)(b) is amended by deleting "of persons".
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(2) After section 98(1)(b) the following paragraphs are inserted --
"
(ba) a particular person was an employer of a
particular person or particular persons at a
5 mine;
(bb) a particular person was a principal or a
contractor, within the meaning given by
section 15A(1), at a mine;
(bc) a particular person was, at a mine, a principal,
10 within the meaning given by section 15A(1), in
relation to a particular contractor or particular
contractors within the meaning so given;
".
(3) Section 98(2)(b) is amended by inserting after "the authority
15 of " --
" an inspector or ".
(4) After section 98(3) the following subsection is inserted --
"
(4) In proceedings for an offence against this Act,
20 production of a copy of --
(a) a code of practice;
(b) an Australian Standard; or
(c) an Australian/New Zealand Standard,
purporting to be certified by the State mining engineer
25 to be a true copy as at any date or during any period is,
without proof of the signature of the State mining
engineer, sufficient evidence of the contents of the
code of practice or Standard as at that date or during
that period.
30 ".
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33. Section 99 amended
Section 99(1) is amended by inserting after "under this Act" --
" , other than an offence to which section 99A applies, ".
34. Section 99A inserted
5 After section 99 the following section is inserted --
"
99A. Vicarious responsibility for offences involving gross
negligence
(1) In this section --
10 "manager" has the meaning given by section 99(2);
"superior officer", except as otherwise provided,
means an employer, manager or supervisor or a
person purporting to act in that capacity.
(2) Where a person commits an offence under
15 section 9A(1), 10A(1), 12A(1) or 15(1), the following
provisions apply --
(a) a superior officer in relation to the person also
commits that offence if it is proved that --
(i) the superior officer, being an employer
20 or manager or a person purporting to act
in that capacity, knowingly permitted or
employed the person to commit the
offence;
(ii) the offence was attributable to any
25 neglect on the part of the superior
officer; or
(iii) the superior officer consented to or
connived in the acts or omissions to
which section 8B(2)(a)(ii) applied that
30 were proved against the person,
in circumstances where the superior officer --
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(iv) knew that the contravention would be
likely to cause the death of, or serious
harm to, a person to whom a duty was
owed; but
5 (v) acted or failed to act as mentioned in
subparagraph (i), (ii) or (iii) in disregard
of that likelihood;
(b) if paragraph (a) does not apply, a superior
officer in relation to the person commits an
10 offence under section 9A(2), 10A(2), 12A(2) or
15(2), as the case may require, if it is proved
that --
(i) the superior officer, being an employer
or manager or a person purporting to act
15 in that capacity, knowingly permitted or
employed the person to commit the
offence; or
(ii) the offence of the person --
(I) occurred with the consent or
20 connivance of the superior
officer; or
(II) was attributable to any neglect
on the part of the superior
officer.
25 ".
35. Section 100 amended
(1) Section 100(1) is amended by inserting after "under this Act" --
" , other than an offence to which section 100A applies, ".
(2) Section 100(2) is amended by deleting "subsection (1) applies"
30 and inserting instead --
" subsection (1) and section 100A apply ".
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(3) After section 100(2) the following subsection is inserted --
"
(3) A person convicted of an offence by virtue of this
section is liable to the penalty to which an individual
5 who is convicted of that offence is liable.
".
36. Section 100A inserted
After section 100 the following section is inserted --
"
10 100A. Responsibility of officers of corporation for offences
involving gross negligence
(1) In this section --
"officer" means a director, manager, secretary or other
officer of a corporation or a person purporting to
15 act in that capacity.
(2) Where a corporation commits an offence under
section 9A(1), 12A(1), 12C(1), 13A(1) or 15E(1) the
following provisions apply --
(a) an officer also commits that offence if it is
20 proved that --
(i) the offence was attributable to any
neglect on the part of the officer; or
(ii) the officer consented to or connived in
the acts or omissions to which
25 section 8B(2)(a)(ii) applied that were
proved against the corporation,
in circumstances where the officer --
(iii) knew that the contravention would be
likely to cause the death of, or serious
30 harm to, a person to whom a duty was
owed; but
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(iv) acted or failed to act as mentioned in
subparagraph (i) or (ii) in disregard of
that likelihood;
(b) if paragraph (a) does not apply, an officer
5 commits an offence under section 9A(2),
12A(2), 12C(2), 13A(2) or 15E(2), as the case
may require, if it is proved that the offence of
the corporation --
(i) occurred with the consent or connivance
10 of the officer; or
(ii) was attributable to any neglect on the
part of the officer.
(3) A person convicted of an offence by virtue of this
section is liable to the penalty to which an individual
15 who is convicted of that offence is liable.
".
37. Section 101A inserted
After section 101 the following section is inserted --
"
20 101A. No double jeopardy
A person is not liable to be punished twice under this
Act in respect of any act or omission.
".
38. Part 9 Division 2 inserted
25 After section 101A the following Division is inserted --
"
Division 2 -- Undertaking by offender in lieu of
payment of fine
101B. Terms used in this Division
30 In this Division --
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"convicted" means found guilty of an offence, whether
after a plea of guilty or otherwise;
"court" means a safety and health magistrate
exercising jurisdiction under section 96A;
5 "relevant offence" means an offence against --
(a) section 21(5), 29(4), 55(7), 60(8), 61(2),
65(2), 66(3) or 70(4);
(b) any provision of Part 3 Division 3; or
(c) the regulations.
10 101C. Court may allow offender to make election
(1) Where --
(a) a person (the "offender") is convicted of one
or more relevant offences; and
(b) the court has fined the offender,
15 the court may, subject to subsection (2), make an order
allowing the offender to elect either --
(c) to pay the fine or fines; or
(d) as an alternative, to enter into an undertaking
with the State mining engineer under
20 section 101G not later than a day specified by
the court.
(2) A court is not to make an order under this section
unless the court is satisfied that --
(a) the breach of the relevant offence did not result
25 in physical harm to any person;
(b) the offender wishes an order to be made and the
prosecutor does not oppose that being done;
(c) the offender and the State mining engineer are
likely to reach agreement on the provisions of
30 the proposed undertaking within the time that
the court proposes to specify under
subsection (1)(d); and
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(d) the cost to the offender of complying with the
proposed undertaking will be substantially
equivalent to the amount of the fine or fines
imposed.
5 (3) After the court has fined the offender, the court may
adjourn the proceedings to allow --
(a) the offender time to consider whether the
offender wishes an order to be made; and
(b) the prosecutor time to consider whether to
10 oppose that being done,
as mentioned in subsection (2)(b).
(4) Nothing in this Division limits the powers of a court
under the Sentencing Act 1995.
101D. Making of election
15 (1) An election is made, pursuant to an order under
section 101C(1), by the offender --
(a) lodging an election in writing with the court in
which the order was made; and
(b) serving a copy of the election on the State
20 mining engineer,
not later than 28 days after the day on which the order
was made.
(2) If --
(a) an order is made under section 101C(1); but
25 (b) the offender fails to make an election in
accordance with subsection (1),
the offender is taken, at the expiry of the period
mentioned in subsection (1), to have elected to pay the
fine or fines.
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101E. Failure to enter into undertaking
An election under section 101D to enter into an
undertaking lapses if the undertaking is for any reason
not entered into before the time allowed under
5 section 101C(1)(d).
101F. Time for payment of fines
(1) The liability of the offender to pay the fine or fines in
connection with which an order is made under
section 101C(1) is suspended by the making of the
10 order.
(2) If the offender elects to pay the fine or fines, for the
purposes of section 32 of the Fines, Penalties and
Infringement Notices Enforcement Act 1994 the fine
or fines are taken to have been imposed on the day on
15 which the election is made.
(3) If the offender is taken by section 101D(2) to have
elected to pay the fine or fines, for the purposes of the
section referred to in subsection (2) the fine or fines are
taken to have been imposed at the time mentioned in
20 section 101D(2).
(4) If --
(a) the offender elects to enter into an undertaking;
but
(b) the election lapses under section 101E,
25 for the purposes of the section referred to in
subsection (2) the fine or fines are taken to have been
imposed on the day specified under section 101C(1)(d).
101G. Nature and terms of undertaking
(1) An undertaking for the purposes of this Division is a
30 document by which the offender gives undertakings to
the State mining engineer that the offender will --
(a) take the action specified in the undertaking;
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(b) bear the costs and expenses of doing so; and
(c) complete all of the required action before a day
specified in the document.
(2) The action required to be taken by the offender is to
5 come within the provisions described in
section 101H(2) or (3).
(3) The provisions of the undertaking are to be such as are
agreed between the State mining engineer and the
offender.
10 (4) The State mining engineer is to furnish a copy of an
undertaking, and of any amendment made under
section 101K, to the court concerned.
101H. What may be included in undertaking
(1) In this section --
15 "specified" means specified in the undertaking;
"specified mine" includes a specified class of mine.
(2) An undertaking is to provide for the offender to do one
or more of the following --
(a) to take specified steps for the improvement of
20 occupational safety and health --
(i) at or in respect of --
(I) any specified mine; or
(II) any specified part or parts of
any specified mine;
25 or
(ii) in connection with the business or
operations of the offender;
(b) to take specified steps to publicise details of --
(i) any specified offence;
30 (ii) its consequences;
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(iii) the amount of the fine or fines imposed
and the fact that the undertaking has
been entered into under this Division; or
(iv) any other related matter;
5 (c) to remedy any consequence of a specified
offence, so far as it is practicable to do so, but
not in a way that is excluded by subsection (4);
(d) to carry out a specified project or activity for
the improvement of occupational safety and
10 health --
(i) in the community;
(ii) in a particular section of the community;
or
(iii) in connection with a particular kind of
15 activity in the State.
(3) The State mining engineer may require that an
undertaking contain any incidental or supplementary
provision that the State mining engineer considers
necessary or expedient to achieve its purpose,
20 including provision for --
(a) the reporting of matters; and
(b) providing proof of compliance,
to the State mining engineer.
(4) An undertaking cannot provide for the offender to take
25 any action --
(a) that the offender has a duty to take in order to
comply with any provision of this Act; or
(b) for the taking of which an improvement notice
or a prohibition notice could be issued under
30 Part 3 Division 3.
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101I. Effect of undertaking
The liability of the offender to pay the fine or fines in
connection with which the undertaking is given --
(a) is suspended by the giving of the undertaking;
5 and
(b) is cancelled by the full discharge of the
offender's obligations under the undertaking.
101J. Failure to comply with undertaking
(1) An offender commits an offence if the offender fails to
10 fully discharge the obligations under an undertaking
before the day specified in the undertaking in
accordance with section 101G(1)(c).
(2) A court that convicts an offender of an offence against
subsection (1) must order that the fine or fines to which
15 the undertaking relates be paid in addition to any
penalty imposed for the offence against subsection (1).
(3) For the purposes of section 32 of the Fines, Penalties
and Infringement Notices Enforcement Act 1994, the
fine or fines to which an order under subsection (2)
20 applies are taken to be imposed on the day on which
that order is made.
101K. Amendment of undertaking
An undertaking may be amended by an instrument in
writing signed by the offender and the State mining
25 engineer.
101L. Undertaking may be published
The State mining engineer may cause an undertaking to
be published in any manner the State mining engineer
thinks fit including --
30 (a) by publication in a newspaper; or
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s.
(b) by posting a copy of the undertaking on an
internet website maintained by the department.
".
39. Section 104 amended
5 Section 104(4) is repealed and the following subsections are
inserted instead --
"
(4) Regulations made under this Act may provide that
contravention of a regulation constitutes an offence and
10 provide for penalties not exceeding --
(a) in the case of an offence committed by a person
as an employee --
(i) for a first offence, a fine of $5 000; and
(ii) for a subsequent offence, a fine of
15 $6 250;
(b) in the case of an offence committed by an
individual where paragraph (a) does not
apply --
(i) for a first offence, a fine of $25 000; and
20 (ii) for a subsequent offence, a fine of
$31 250;
or
(c) in the case of an offence committed by a
corporation --
25 (i) for a first offence, a fine of $50 000; and
(ii) for a subsequent offence, a fine of
$62 500,
and if the offence is a continuing one a further penalty
not exceeding --
30 (d) $200, in the case of an offence committed by a
person as an employee;
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(e) $1 000, in the case of an offence committed by
an individual where paragraph (d) does not
apply; and
(f) $2 000, in the case of an offence committed by
5 a corporation,
for each day or part of a day during which the offence
continues after notice of the offence has been given by
or on behalf of an inspector to the offender.
(4a) In subsection (4)(a) and (d) --
10 "employee" includes a person who is taken to be an
employee by operation of section 15A, 15B or 15C
to the extent that a regulation applies to such a
person.
".
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Part 4 Amendments relating to mine management
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Part 4 -- Amendments relating to mine management
40. Section 32 amended
(1) After section 32(1) the following subsections are inserted --
"
5 (1a) If mining operations begin at a mine and subsection (1)
has not been complied with, an offence against
subsection (1) is committed by the person who the
State mining engineer determines to have been the
principal employer at the mine when the mining
10 operations began.
(1b) In proceedings against a person under subsection (1a) it
is a defence if the person proves that there were no
reasonable grounds for the State mining engineer's
determination that the person was the principal
15 employer at the mine when the mining operations
began.
".
(2) Section 32(4) is amended as follows:
(a) by inserting after "mining operations are" --
20 " to be ";
(b) by inserting after "provided in writing" --
" , before mining operations begin, ".
(3) After section 32(4) the following subsections are inserted --
"
25 (5) If mining operations begin at a mine and subsection (4)
has not been complied with, each person who is a
member of the syndicate or other association of
persons concerned commits an offence.
(6) Where a duty arises under subsection (1) or (4) to
30 provide to the district inspector the name and address
of a partnership, syndicate or other association of
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s. 41
persons (an "association") there is also a duty to
provide the name and address of each member of the
association.
".
5 41. Section 32A inserted
After section 32 the following section is inserted --
"
32A. Change of principal employer or of particulars
provided
10 (1) If there is a change in the identity of the principal
employer at a mine, the new principal employer must,
not later than 7 days after the change occurs, provide to
the district inspector for the region where the mine is
situated particulars of --
15 (a) the name and address of --
(i) the new principal employer; or
(ii) each person who is a member of the
partnership, syndicate or other
association of persons that comprises
20 the new principal employer,
as the case may be; and
(b) the day on which the change occurred.
(2) If there is a change to the name or address of a
principal employer at a mine, the principal employer
25 must, not later than 7 days after the change occurs,
provide particulars of the change to the district
inspector for the region where the mine is situated.
(3) If --
(a) the principal employer at a mine, or the person
30 who under section 32(4) has assumed the duties
of the principal employer at a mine, is a
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partnership, syndicate or other association of
persons (the "association"); and
(b) there is a change --
(i) in the membership of the association; or
5 (ii) to the name or address of any member
of the association,
the principal employer must, not later than 7 days after
the change occurs, provide particulars of the change to
the district inspector for the region where the mine is
10 situated.
(4) A principal employer who contravenes subsection (1),
(2) or (3) commits an offence.
".
42. Section 33A inserted
15 After section 33 the following section is inserted --
"
33A. Registered manager may make appointments on
behalf of principal employer
(1) It is sufficient compliance with a provision of
20 section 34(1) or (2), 35(1), 36(1) or (2), 37(1), 38(1),
(2) or (3) or 39(2) (a "relevant provision") that
requires the principal employer in relation to a mine --
(a) to make a particular managerial appointment
for the mine; or
25 (b) to inform the district inspector for the region in
which the mine is situated concerning the
appointment,
if the appointment is made, or the information is given,
on behalf of the principal employer by the registered
30 manager in accordance with authority given by the
principal employer to do so.
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(2) It is open to the registered manager of a mine in
exercising a power to appoint --
(a) an underground manager; or
(b) a quarry manager,
5 for the mine under section 35 or 37, to appoint himself
or herself to that position.
(3) If the registered manager --
(a) makes an appointment; or
(b) gives information to a district inspector,
10 for the purposes of a relevant provision the registered
manager is conclusively presumed to do so under and
in accordance with authority given by the principal
employer.
(4) Nothing in this section affects the obligation of the
15 principal employer to comply with a relevant
provision.
".
43. Section 34 amended
(1) Section 34(3) is amended as follows:
20 (a) by inserting after "If the registered manager" --
" or an alternate registered manager ";
(b) by inserting after ", the registered manager" --
" or the alternate registered manager ";
(c) by deleting "registered manager's deputy" and inserting
25 instead --
"
deputy of the registered manager or the alternate
registered manager
".
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(2) Section 34(4), (5) and (6) are repealed and the following
subsections are inserted instead --
"
(4) Each --
5 (a) alternate registered manager; and
(b) deputy appointed under subsection (3),
is deemed to be the registered manager, and has the
powers, functions and duties of a registered manager
under this Act, during any period of duty of the
10 alternate or deputy.
(5) The appointment of --
(a) a deputy or alternate of a registered manager; or
(b) a deputy of an alternate registered manager,
does not relieve the registered manager, or the alternate
15 registered manager, from responsibility for the exercise
and performance of powers, functions and duties under
this Act except during a period of duty mentioned in
subsection (4).
".
20 44. Section 36 amended
(1) Section 36(4) is repealed.
(2) Section 36(5) is amended by deleting ", (3) or (4)" and inserting
instead --
" or (3) ".
25 (3) Section 36(7) is repealed.
(4) Section 36(8) is amended as follows:
(a) by deleting "to be subject to the duties imposed on
underground managers" and inserting instead --
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"
has the powers, functions and duties of an underground
manager
";
5 (b) by deleting "of powers" and inserting instead --
" and performance of powers, functions ".
45. Section 38 amended
(1) Section 38(4) is repealed.
(2) Section 38(5) is amended by deleting ", (3) or (4)" and inserting
10 instead --
" or (3) ".
(3) Section 38(7) is repealed.
(4) Section 38(8) is amended as follows:
(a) by deleting "to be subject to the duties imposed on
15 quarry managers by" and inserting instead --
"
has the powers, functions and duties of a quarry
manager under
";
20 (b) by deleting "of powers" and inserting instead --
" and performance of powers, functions ".
46. Section 38A inserted
After section 38 the following section is inserted --
"
25 38A. Periods of duty and related matters to be shown in
record book
(1) The registered manager for a mine and any alternate
registered manager for a mine must each maintain a log
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in the record book of his or her periods of duty as
registered manager for the mine.
Penalty: $5 000.
(2) Without limiting subsection (1), the log maintained by
5 the registered manager and the log maintained by any
alternate registered manager must include, in
accordance with the regulations, particulars of --
(a) each period during which a person appointed
under section 34(3) acted as deputy of the
10 registered manager or the alternate registered
manager, as the case may be; and
(b) the name of the person who so acted during the
period.
(3) The underground manager and any alternate
15 underground manager must each maintain a log in the
record book of his or her periods of duty as
underground manager for the mine.
Penalty: $5 000.
(4) Without limiting subsection (3), the log maintained by
20 the underground manager and the log maintained by
any alternate underground manager must include, in
accordance with the regulations, particulars of --
(a) each period during which a person appointed
under section 36(3) acted as deputy of the
25 underground manager or the alternate
underground manager, as the case may be; and
(b) the name of the person who so acted during the
period.
(5) The quarry manager and any alternate quarry manager
30 must each maintain a log in the record book of his or
her periods of duty as quarry manager for the mine.
Penalty: $5 000.
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(6) Without limiting subsection (5), the log maintained by
the quarry manager and the log maintained by any
alternate quarry manager must include, in accordance
with the regulations, particulars of --
5 (a) each period during which a person appointed
under section 38(3) acted as deputy of the
quarry manager or the alternate quarry
manager, as the case may be; and
(b) the name of the person who so acted during the
10 period.
".
47. Section 39 amended
After section 39(1) the following subsection is inserted --
"
15 (1a) A notice is sufficiently given to the principal employer
at a mine for the purposes of subsection (1) if it is
given to the registered manager of the mine.
".
48. Section 40 amended
20 Section 40(4) is amended by deleting "a log attached to the
record book and kept at the mine." and inserting instead --
" the record book in accordance with section 38A. ".
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Part 5 -- Amendments relating to safety and health
representatives and committees
49. Section 4 amended
Section 4(1) is amended in the definition of "safety and health
5 committee" by inserting after "section 65" --
" or 67A ".
50. Section 21 amended
After section 21(5) the following subsection is inserted --
"
10 (5a) In subsection (5) --
"the safety and health representative of that mine"
includes a safety and health representative elected
for a group of employees pursuant to a scheme
under section 55A if any member of the group
15 works at the mine.
".
51. Section 25 amended
After section 25(1) the following subsection is inserted --
"
20 (1a) In subsection (1) --
"the safety and health representative" --
(a) if there is more than one safety and health
representative for the mine, means any such
representative who has functions relevant to
25 the matters concerned; and
(b) includes a safety and health representative
elected for a group of employees pursuant to
a scheme under section 55A if any member
of the group works at the mine.
30 ".
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52. Section 53 amended
After section 53(3) the following subsection is inserted --
"
(4) If a scheme has been established under section 55A,
5 the references in this section to "the mine" and "a
mine" include --
(a) if the scheme applies to more than one mine,
each mine to which the scheme applies; and
(b) if under the scheme a safety and health
10 representative is elected for a group of
employees, each mine or part of a mine at
which any member of the group works.
".
53. Section 54 amended
15 (1) Section 54 is amended by inserting before "An employee" the
subsection designation "(1)".
(2) At the end of section 54 the following subsection is inserted --
"
(2) The fact that a notice under subsection (1) requires an
20 election for the mine at which the employee works
does not prevent --
(a) the establishment of a scheme under
section 55A that extends beyond that mine; or
(b) the making of a determination under
25 section 55(4a) for that purpose.
".
54. Section 55 amended
(1) Section 55(4) is amended after paragraph (b) by deleting "and"
and inserting --
30 "
(ba) the matters, areas or kinds of work in respect of
which each safety and health representative is
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to perform functions, so far as those things are
not to be dealt with by provision of a kind
mentioned in section 55B(2) or (3);
(bb) how a vacancy in an office of safety and health
5 representative that occurs in the circumstances
mentioned in section 57(2)(b), (ba), (c) or (d) is
to be dealt with; and
".
(2) After section 55(4) the following subsection is inserted --
10 "
(4a) The employer and the delegate or delegates consulting
under subsection (3a) may determine that provision of
a kind mentioned in section 55B(2) or (3) should be
made.
15 ".
(3) Section 55(5) is repealed and the following subsection is
inserted instead --
"
(5) For the purposes of subsection (4)(c), but without
20 limiting the generality of that provision, the employer
and the delegate or delegates consulting under
subsection (3a) may determine that --
(a) the Electoral Commissioner; or
(b) an organisation registered under Part II
25 Division 4 of the Industrial Relations Act 1979,
is to be requested to conduct an election.
".
55. Sections 55A, 55B and 55C inserted
After section 55 the following sections are inserted --
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"
55A. Election scheme may be established
(1) In this section --
"consulting parties" means the employer and the
5 delegate or delegates consulting under
section 55(3a), and includes any delegate or
delegates appointed under section 55C.
(2) If the consulting parties in respect of a mine have made
a determination referred to in section 55(4a), a written
10 agreement may be made between the consulting parties
establishing a scheme under this section.
(3) If the consulting parties cannot reach agreement on any
matter for the purposes of subsection (2) they may refer
the matter to the State mining engineer, who is to
15 attempt to resolve it to the satisfaction of the consulting
parties.
(4) If the State mining engineer is unable to resolve the
matter, he or she is to refer it to the Tribunal for
determination.
20 (5) If subsection (4) applies, references in this Division to
a scheme under this section are references to a scheme
consisting of the provisions of --
(a) an agreement under subsection (2); and
(b) the determination of the Tribunal under
25 subsection (4).
55B. What may be included in a scheme
(1) In this section --
"contractor" and "principal" have the meanings
given to those terms in section 15A(1).
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(2) A scheme under section 55A (a "scheme") may
include provision for the election of one or more safety
and health representatives for --
(a) one or more mines in addition to the mine
5 referred to in section 55A(2); or
(b) any group of employees of the employer
concerned that constitutes a distinct unit of the
employer's workforce,
or may make provision for both of those matters, as the
10 case may require.
(3) A scheme may despite any provision of this Part --
(a) provide for --
(i) a contractor; and
(ii) any person employed by a contractor,
15 to be treated, for the purposes of this Part, as
employees of the principal who engages the
contractor; and
(b) provide for the principal who engages a
contractor to be treated, for the purposes of this
20 Part, as the employer of --
(i) the contractor; and
(ii) any person employed by the contractor.
(4) A scheme may make provision for --
(a) the scheme to apply to any subsequent election
25 of one or more safety and health
representatives; and
(b) the manner in which an amendment may be
made to the scheme after it has been
determined.
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55C. Appointment of further delegates may be required
(1) In this section --
"additional employees" means employees who have
not been invited to appoint a delegate or delegates
5 under section 55(1) or (2) because that subsection
has not become applicable to the mine at which
they work.
(2) A scheme under section 55A cannot make provision of
the kind mentioned in section 55B(2) that will affect
10 additional employees unless subsection (3) of this
section is complied with.
(3) If it is proposed that such provision be made the
employer must invite any additional employees at a
mine to appoint a delegate or delegates in accordance
15 with subsection (4).
(4) Additional employees who work at a mine may, upon
being invited under subsection (3) to do so, appoint a
delegate or delegates from amongst their number to
represent them for the purposes of making an
20 agreement under section 55A(2).
".
56. Section 56 amended
(1) Section 56(1) is repealed and the following subsection is
inserted instead --
25 "
(1) In this section --
"election" means an election required for the purpose
of electing one or more safety and health
representatives following --
30 (a) the giving of a notice under section 54 in
relation to a mine; or
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(b) a decision of an employer under
section 55(2);
"relevant employee", in relation to an election,
means --
5 (a) an employee who works at the mine to which
the election relates; or
(b) if a scheme has been established under
section 55A for the election, an employee
who --
10 (i) works at a mine; or
(ii) is a member of a group of employees,
to which the scheme applies.
".
(2) Section 56(6), (7) and (8) are repealed and the following
15 subsections are inserted instead --
"
(6) Subject to this section, an election is to be conducted
and safety and health representatives are to be elected
in accordance with --
20 (a) any determination under section 55; and
(b) if applicable, a scheme established under
section 55A.
(7) If there is any inconsistency between a determination
under section 55 and a scheme established under
25 section 55A, the latter prevails.
(8) An election is to be by secret ballot.
(8a) Every relevant employee is entitled to vote at an
election.
(8b) A person is not eligible to be elected as a safety and
30 health representative for a mine unless the person --
(a) is a relevant employee; and
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(b) where the representative to be elected will be
required to perform his or her functions in
relation to underground mining operations, has
had a total of a least 12 months' experience as a
5 person engaged in underground mining
operations.
".
(3) Section 56(9) is amended by inserting after "If " --
"
10 , after the relevant steps provided for by or under this
Division have been taken,
".
(4) Section 56(10), (10a) and (10b) are repealed and the following
subsections are inserted instead --
15 "
(10) The person conducting an election must --
(a) give notice of the result to --
(i) a person elected as a safety and health
representative; and
20 (ii) the employer concerned;
and
(b) give notice of the result to the State mining
engineer in the prescribed form and provide
such further particulars as are prescribed in that
25 form.
(10a) A notice under subsection (10)(a) must be in writing
and must --
(a) specify the day on which the election was
completed; and
30 (b) be given not later than the 7th day after that day.
".
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57. Saving provision for existing safety and health
representatives
The amendments made by section 56 do not affect the
continuation in office of any safety and health representative
5 who held office under Part 5 Division 1 of the Mines Safety and
Inspection Act 1994 immediately before the commencement of
that section.
58. Section 57 amended
(1) Section 57(1) is amended by inserting after "2 years" --
10 "
commencing on the 10th day after the day specified for
the purposes of section 56(10a)(a) in respect of that
person
".
15 (2) Section 57(2) is amended by deleting paragraph (b) and "or"
after it and inserting instead --
"
(b) the person ceases to be an employee who works
at a mine for which the person was elected; or
20 (ba) if the person was elected for a group of
employees pursuant to a scheme under
section 55A, the person ceases to be an
employee who belongs to that group of
employees; or
25 ".
59. Section 59 amended
(1) Section 59(2) is amended by deleting paragraph (b) and "or"
after it and inserting instead --
"
30 (b) a relevant employee; or
".
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(2) After section 59(4) the following subsection is inserted --
"
(5) In subsection (2)(b) --
"relevant employee" means --
5 (a) an employee who works at the mine
concerned;
(b) if the safety and health representative was
elected for more than one mine pursuant to a
scheme established under section 55A, an
10 employee who works at any such mine; or
(c) if under a scheme referred to in
paragraph (b) the safety and health
representative was elected for a group of
employees, an employee who is a member of
15 the group.
".
60. Section 60 amended
(1) After section 60(1) the following subsection is inserted --
"
20 (1a) This section also applies in relation to a mine or a part
of a mine if --
(a) pursuant to a scheme under section 55A, a
safety and health representative has been
elected for a group of employees; and
25 (b) any member of the group works at that mine or
at that part of a mine.
".
(2) Section 60(5) is repealed and the following subsection is
inserted instead --
30 "
(5) The employer of a safety and health representative
must ensure that the safety and health representative
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receives any entitlement that becomes due to him or
her under subsection (7a) or section 62.
".
(3) After section 60(7) the following subsection is inserted --
5 "
(7a) Where a safety and health representative attends a
course of training --
(a) for which, under section 62, the representative
is entitled to take time off work; and
10 (b) that is prescribed for the purposes of this
paragraph,
the employer is liable to pay, to the extent that is
prescribed --
(c) the tuition fee for the course; and
15 (d) other costs incurred by the representative in
connection with attendance at the course.
".
61. Section 62 amended
(1) Section 62 is amended by inserting before "The regulations" the
20 subsection designation "(1)".
(2) Section 62 is amended as follows:
(a) by deleting "time that a safety and health representative
is to be permitted to take off work, with pay and other
benefits," where it first occurs and inserting instead --
25 "
entitlements of a safety and health representative
";
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(b) by deleting "time that a safety and health representative
is to be permitted to take off work, with pay and other
benefits," in the second place where it occurs and
inserting instead --
5 " entitlements ".
(3) At the end of section 62 the following subsection is inserted --
"
(2) In subsection (1) --
"entitlements" means --
10 (a) the time that a safety and health
representative is to be permitted to take off
work with pay and other benefits; and
(b) payments to which a safety and health
representative is entitled for attendance at a
15 course of training in his or her own time.
".
62. Section 62A inserted
After the heading to Part 5 Division 2 the following section is
inserted --
20 "
62A. Interpretation
(1) In this Division --
"allowed period" means --
(a) 3 months; or
25 (b) such longer period as the State mining
engineer may allow on application by a
consultation party;
"consultation party" means a person who comes
within section 67B(2)(a), (b) or (c);
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"prescribed requirements" means --
(a) the provisions of --
(i) an agreement under section 67B(2);
and
5 (ii) section 67B(3);
(b) the terms of a determination of --
(i) the State mining engineer, under
section 67C; or
(ii) the Tribunal, under section 67F,
10 in respect of the mine concerned or, if any
agreement under section 67D applies, any
mine concerned; and
(c) any requirement of the regulations.
(2) In this Division references to a "safety and health
15 representative for the mine" or a "safety and health
representative for a mine" include a safety and health
representative elected for a group of employees
pursuant to a scheme under section 55A if any member
of the group works at the mine concerned.
20 ".
63. Section 63 amended
(1) At the beginning of section 63 the following subsection is
inserted --
"
25 (1) In this section --
"mine", where an agreement under section 67B(2)
applies to the establishment of a safety and health
committee, means any mine in relation to which
the committee may perform functions.
30 ".
(2) Section 63 is amended by inserting before "The functions" the
subsection designation "(2)".
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64. Sections 64, 65, 66 and 67 replaced by sections 64 to 67F
Sections 64, 65, 66 and 67 are repealed and the following
sections are inserted instead --
"
5 64. Employees to appoint representatives
Whenever required for the purpose of making an
agreement under section 67B(2) or 67D(1) in respect of
a mine, the employees who work at the mine are to
appoint, from amongst their number, one or more
10 employees --
(a) to represent them for that purpose; or
(b) as may be required, to replace any employee
previously appointed under this section.
65. Obligation of employer to establish a safety and
15 health committee
(1) An employer must, in accordance with the prescribed
requirements, establish a safety and health committee
for a mine within the allowed period after --
(a) the coming into operation of a regulation
20 requiring the employer to do so;
(b) service on the employer of a notice by the State
mining engineer requiring the employer to do
so; or
(c) being requested under section 66(1) to do so,
25 unless, in the case mentioned in paragraph (c), the State
mining engineer has decided under section 67 that a
safety and health committee is not required to be
established for the mine concerned.
(2) If an employer contravenes subsection (1), the employer
30 commits an offence.
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66. Request for establishment of safety and health
committee
(1) An employee who works at a mine may request an
employer at the mine to establish a safety and health
5 committee for the mine.
(2) If a request is made under subsection (1), the employer
must within 21 days after the request is received
either --
(a) notify --
10 (i) the employee who made the request;
and
(ii) any safety and health representative for
the mine,
that the employer agrees to the request; or
15 (b) under section 67, refer to the State mining
engineer the question whether a safety and
health committee should be established for the
mine.
(3) If an employer contravenes subsection (2), the employer
20 commits an offence.
67. Referral of question to State mining engineer
(1) If --
(a) a request has been made to an employer under
section 66(1) in respect of a mine; and
25 (b) the employer considers that the circumstances
of the case are such that the employer should
not be required to establish a safety and health
committee for the mine,
the employer may refer to the State mining engineer
30 the question of whether a safety and health committee
should be so established.
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(2) The employer must give notice of a referral under this
section to --
(a) the employee concerned; and
(b) any safety and health representative for the
5 mine.
(3) The State mining engineer is to --
(a) decide a question referred to the State mining
engineer under subsection (1); and
(b) notify the employer and the employee
10 concerned of the decision.
67A. Employer may establish a safety and health
committee
An employer at a mine may, on the employer's own
initiative and in accordance with the prescribed
15 requirements, establish a safety and health committee
for the mine if --
(a) a regulation referred to in section 65(1)(a) has
not come into operation;
(b) a notice referred to in section 65(1)(b) has not
20 been served on the employer; or
(c) a request has not been made under
section 66(1),
in respect of the mine.
67B. How safety and health committee to be constituted
25 (1) In this section --
"mine", where an agreement under section 67D
applies, includes 2 or more mines.
(2) Subject to subsection (3), the composition, and the
manner in which persons become members, of a safety
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and health committee for a mine are to be determined
by agreement in writing between --
(a) the employer or employers at the mine;
(b) any safety and health representative for the
5 mine; and
(c) the employees appointed under section 64 in
respect of the mine.
(3) At least one half of the members of a safety and health
committee for a mine must be persons each of whom
10 is --
(a) a safety and health representative for the mine;
or
(b) an employee who works at the mine and holds
office as a member representing other
15 employees.
67C. State mining engineer may make determination in
certain cases
(1) This section applies if --
(a) a consultation party considers that discussions
20 for the purpose of making an agreement under
section 67B --
(i) cannot commence or continue because
there are no employees appointed under
section 64 in respect of the mine
25 concerned;
(ii) have not been commenced or continued
in good faith by any party;
(iii) are being unreasonably delayed; or
(iv) have broken down;
30 or
(b) the employer concerned considers that for some
other reason it is unlikely that the employer will
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be able to comply with section 65 within the
allowed period under that section.
(2) The employer or other consultation party may refer to
the State mining engineer for determination --
5 (a) the matters that are required to be settled by
agreement under section 67B; or
(b) any particular matter mentioned in
paragraph (a) on which the parties cannot
agree.
10 (3) On such a referral, the State mining engineer is to --
(a) make any necessary determination; and
(b) notify the employer or other party concerned of
the determination.
67D. Functions of committee may cover more than
15 one mine
(1) If --
(a) an employer --
(i) is under an obligation by operation of
section 65(1); or
20 (ii) wishes to take action for the purposes of
section 67A,
in respect of more than one mine; and
(b) a safety and health committee has not been
established for one or more of those mines,
25 the parties concerned may agree in writing that one
safety and health committee is to be established to
perform functions in relation to each of the mines to
which paragraph (b) applies.
(2) For the purposes of subsection (1) the parties
30 concerned are --
(a) the employer or employers at;
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(b) any safety and health representative for; and
(c) the employees appointed under section 64 in
respect of,
any mine to which subsection (1)(b) applies.
5 (3) An agreement under subsection (1) may provide --
(a) for the establishment of a safety and health
committee to perform functions in relation to
more than one mine; and
(b) for that committee to have subcommittees for
10 each mine --
(i) to advise the committee on the
performance of its functions in relation
to that mine; and
(ii) to perform some or all of those
15 functions as the delegate of the
committee in accordance with the terms
of a delegation to it.
(4) The composition of any subcommittee referred to in
subsection (3) is to be determined by the parties
20 referred to in subsection (2).
67E. Amendment of agreement and abolition of
committee
(1) In this section --
"relevant parties", in respect of a mine, means --
25 (a) the employer or employers at the mine; and
(b) each member for the time being of the safety
and health committee for the mine.
(2) Where --
(a) an agreement has been made under
30 section 67B(2); or
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(b) the matters referred to in section 67B(2) are
governed by provisions consisting --
(i) wholly of a determination made under
section 67C, whether or not it has been
5 varied or confirmed under section 67F;
or
(ii) partly of an agreement under
section 67B(2) and partly of a
determination made under section 67C,
10 whether or not it has been varied or
confirmed under section 67F,
the relevant parties may by agreement in writing made
between them --
(c) vary --
15 (i) the agreement or provisions; or
(ii) if applicable, the agreement or
provisions as previously varied under
this subsection;
and
20 (d) make any transitional provision that is
necessary or expedient in respect of the
variation.
(3) Where a safety and health committee has been
established for a mine, the relevant parties may by
25 agreement in writing --
(a) abolish the committee; and
(b) make any transitional provision that is
necessary or expedient in respect of the
abolition.
30 (4) If the relevant parties cannot agree on the exercise of a
power referred to in subsection (2) or (3), any such
party may refer to the State mining engineer for
determination any question --
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(a) whether the agreement or provisions concerned
should be varied;
(b) as to the manner in which the agreement or
provisions should be varied; or
5 (c) whether a safety and health committee should
be abolished,
or as to transitional provisions that should be made in
respect of such a matter.
(5) On such a referral, the State mining engineer is to --
10 (a) make any necessary determination; and
(b) notify the relevant parties of the determination.
67F. Review of State mining engineer's decision
(1) Where the State mining engineer has made a decision
under section 67(3) in respect of a mine --
15 (a) an employer at the mine;
(b) a safety and health representative for the mine;
or
(c) an employee who works at the mine,
may refer the decision to the Tribunal for review.
20 (2) Where the State mining engineer has made a
determination under section 67C(3) in respect of one or
more mines --
(a) an employer at;
(b) a safety and health representative for; or
25 (c) an employee appointed under section 64 in
respect of,
a mine concerned, may refer the determination to the
Tribunal for review.
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(3) Where the State mining engineer has made a
determination under section 67E(5) in respect of --
(a) an agreement; or
(b) a safety and health committee,
5 a relevant party, within the meaning in that section, in
relation to the mine concerned may refer the
determination to the Tribunal for review.
(4) The Tribunal may confirm, vary or revoke a decision
or determination of the State mining engineer referred
10 to it under this section.
".
65. Savings and transitional provisions for existing safety and
health committees
(1) The repeal of sections 65 and 66 of the Mines Safety and
15 Inspection Act 1994 (the "MSI Act") by section 64 does not
affect the status of a safety and health committee that is in
existence under the MSI Act immediately before that repeal.
(2) Any such committee is to be taken, after the commencement of
section 64, to have been established under section 65 or 67A of
20 the MSI Act inserted by section 64, as the case may require.
(3) If before the commencement of section 64 --
(a) a request was made in respect of a mine under
section 64(1) of the MSI Act repealed by section 64; but
(b) a safety and health committee had not been established
25 for the mine under section 65 of the MSI Act so
repealed,
the duty of the employer under section 65 of the MSI Act to
establish a safety and health committee for the mine lapses on
that commencement.
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66. Section 68 replaced
Section 68 is repealed and the following section is inserted
instead --
"
5 68. Procedure of safety and health committees
Except as provided in the regulations, a safety and
health committee may determine its own procedure.
".
67. Sections 68A, 68B, 68C and 68D inserted
10 After the heading to Part 5 Division 3 the following sections are
inserted --
"
68A. Discrimination against safety and health
representative in relation to employment
15 (1) An employer or a prospective employer at a mine must
not cause disadvantage to a person for the dominant or
substantial reason that the person --
(a) is or was a safety and health representative; or
(b) is performing or has performed any function as
20 a safety and health representative.
(2) For the purposes of subsection (1) an employer causes
disadvantage to a person if the employer --
(a) dismisses the person from employment;
(b) demotes the person or fails to give the person a
25 promotion that the person could reasonably
have expected;
(c) detrimentally alters the person's employment
position; or
(d) detrimentally alters the person's pay or other
30 terms and conditions of employment.
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(3) For the purposes of subsection (1) a prospective
employer causes disadvantage to a person if the
prospective employer refuses to employ the person.
(4) An employer or prospective employer who contravenes
5 subsection (1) commits an offence.
68B. Discrimination against safety and health
representative in relation to contract for services
(1) In this section --
"contractor" and "principal" have the meanings
10 given to those terms in section 15A(1).
(2) Where a scheme under section 55A makes provision of
the kind described in section 55B(3), a principal must
not --
(a) terminate the engagement of a contractor; or
15 (b) subject a contractor to any other detriment,
for the dominant or substantial reason that the
contractor or a person employed by the contractor --
(c) is or was a safety and health representative; or
(d) is performing or has performed any function as
20 a safety and health representative.
(3) A principal who contravenes subsection (2) commits an
offence.
68C. Claim may be referred to the Tribunal
(1) A person may --
25 (a) refer to the Tribunal --
(i) a claim that the person's employer or a
prospective employer has caused
disadvantage to the person in
contravention of section 68A; or
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(ii) in the case of a contractor referred to in
section 68B, a claim that the principal
has contravened that section;
and
5 (b) request the Tribunal to make one or more of the
orders provided for by section 68D.
(2) Subsection (1) applies whether or not --
(a) the employer or prospective employer has been
convicted of an offence under section 68A(4);
10 or
(b) the principal has been convicted of an offence
under section 68B(3).
(3) A referral under subsection (1) may also be made on a
person's behalf by an agent or legal practitioner
15 referred to in section 31 of the Industrial Relations
Act 1979.
68D. Remedies that may be granted
(1) If, on the hearing of a claim under section 68C(1)(a)(i),
the Tribunal is satisfied that an employer or a
20 prospective employer has contravened section 68A, the
Tribunal may --
(a) in the case of an employer, order the
employer --
(i) to reinstate the claimant if the claimant
25 was dismissed from employment;
(ii) to pay to the claimant such sum of
money as the Tribunal considers
adequate as compensation for loss of
employment or loss of earnings; or
30 (iii) both to reinstate the claimant and to pay
the claimant the sum of money referred
to in subparagraph (ii),
as the Tribunal thinks fit; or
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(b) in the case of a prospective employer, order that
person to pay the claimant such sum of money
as the Tribunal thinks fit.
(2) If, on the hearing of a claim under
5 section 68C(1)(a)(ii), the Tribunal is satisfied that a
principal has contravened section 68B, the Tribunal
may order the principal to pay the claimant such sum
of money as the Tribunal thinks fit.
(3) In determining a claim under section 68C(1)(a)(i) the
10 Tribunal may make any order of the kind mentioned in
section 23A(3), (4) and (5)(a) of the Industrial
Relations Act 1979 as if the claim were a claim to
which section 23A of that Act applies.
(4) In the determination of the amount of compensation for
15 any loss of employment, loss of earnings or
detriment --
(a) the Tribunal is to have regard to any redress the
claimant has obtained under another enactment;
and
20 (b) the claimant is not entitled to compensation
both under this section and otherwise for the
same loss of employment, loss of earnings or
detriment.
".
25 68. Section 69 amended
Section 69 is amended as follows:
(a) in subsection (1) by deleting "because the" and inserting
instead --
" for the dominant or substantial reason that the ";
30 (b) in subsection (1)(a) and (b) by deleting "a safety and
health representative or" in both places where it occurs;
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(c) in subsection (2) by deleting "because" and inserting
instead --
" for the dominant or substantial reason ".
69. Section 70 amended
5 (1) Section 70(2) and (3) are repealed and the following subsections
are inserted instead --
"
(2) In subsection (1) --
"the relevant procedure" means --
10 (a) the procedure agreed between the manager
of the mine and the employers and
employees at the mine as applying in respect
of the mine concerned; or
(b) if no procedure is so agreed, the procedure
15 prescribed for that purpose in the
regulations;
"the safety and health representative" --
(a) if there is more than one safety and health
representative for a mine, means any such
20 representative provided for in the relevant
procedure; and
(b) may, in respect of a mine, include a safety
and health representative elected for a group
of employees pursuant to a scheme under
25 section 55A if any member of the group
works at the mine.
(3) Where attempts to resolve an issue as mentioned in
subsection (1) do not succeed and --
(a) one or more safety and health representatives
30 are provided for in the relevant procedure under
subsection (1); and
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(b) there is a safety and health committee,
in respect of the mine concerned, the safety and health
representative or representatives must refer the issue to
the safety and health committee for it to attempt to
5 resolve the issue.
".
70. Section 72 amended
After section 72(2) the following subsection is inserted --
"
10 (2aa) In subsection (2) --
"safety and health representative" --
(a) if there is more than one safety and health
representative for the mine, means any such
representative whose functions are relevant
15 to the issues involved; and
(b) includes a safety and health representative
elected for a group of employees pursuant to
a scheme under section 55A if the employee
is a member of the group.
20 ".
71. Section 77 amended
After section 77(2) the following subsection is inserted --
"
(3) In subsection (2) --
25 "safety and health representative for the mine"
includes a safety and health representative elected
for a group of employees pursuant to a scheme
under section 55A if any member of the group
works at the mine.
30 ".
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72. Section 104 amended
After section 104(1)(ba) the following paragraph is inserted --
"
(bb) dealing with the establishment of safety and
5 health committees by employers;
".
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Part 6 -- Amendments to provide for improvement
notices, prohibition notices and provisional
improvement notices
73. Section 4 amended
5 Section 4(1) is amended by inserting the following definitions in
their appropriate alphabetical positions --
"
"improvement notice" means an improvement notice
issued under Part 3 Division 3;
10 "prohibition notice" means a prohibition notice issued
under Part 3 Division 3;
"provisional improvement notice" means a
provisional improvement notice issued under
Part 3 Division 4;
15 ".
74. Section 22 repealed
Section 22 is repealed.
75. Section 23 amended
Section 23(1)(a) is amended as follows:
20 (a) after subparagraph (iii) by deleting "and";
(b) by deleting subparagraph (iv).
76. Sections 30 and 31 replaced by Divisions 3 and 4
Sections 30 and 31 are repealed and the following Divisions are
inserted instead --
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"
Division 3 -- Improvement notices and
prohibition notices
Subdivision 1 -- Improvement notices
5 30. Issue of improvement notice
(1) Subsection (2) applies where an inspector or an
assistant inspector is of the opinion that a person --
(a) is contravening any provision of this Act; or
(b) has contravened any provision of this Act in
10 circumstances that make it likely that the
contravention will continue or be repeated.
(2) The inspector or assistant inspector may issue to the
person an improvement notice requiring the person to
remedy --
15 (a) the contravention or likely contravention; or
(b) the matters or activities occasioning the
contravention or likely contravention.
(3) The issue of an improvement notice in respect of a
contravention at a mine is to be notified as follows --
20 (a) if the manager of the mine is not the person to
whom the notice is issued, the inspector or
assistant inspector who issues the notice must,
as soon as is practicable, give a copy of the
notice to the manager;
25 (b) the manager must then give a copy of the notice
to the principal employer at the mine, if the
principal employer is not the person to whom it
is issued;
(c) the manager of a mine must give to the
30 principal employer at the mine a copy of any
improvement notice issued to the manager.
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(4) A manager who fails to comply with subsection (3)(b)
or (c) commits an offence.
31. Contents of improvement notice
An improvement notice must --
5 (a) state the opinion of the inspector or assistant
inspector in terms of section 30(1)(a) or (b), as
the case may be;
(b) state reasonable grounds for that opinion;
(c) specify the provision of this Act in respect of
10 which that opinion is held;
(d) state the time before which the person is
required to remedy --
(i) the contravention or likely
contravention; or
15 (ii) the matters or activities occasioning the
contravention or likely contravention;
and
(e) contain a brief summary of the right to have the
notice reviewed under Subdivision 7.
20 31A. Failure to comply with improvement notice
(1) If a person --
(a) is issued with an improvement notice; and
(b) does not comply with the notice within the time
specified in it,
25 the person commits an offence.
(2) Subsection (1) has effect subject to --
(a) the provisions in sections 31B and 31BC for the
suspension of notices; and
(b) the exercise of the power conferred by
30 section 31BE.
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(3) No person is precluded by a contract from doing such
acts and things as are necessary to comply with an
improvement notice or is liable under any contract to
any penalty for doing such acts and things.
5 31AA. Notification of compliance
(1) As soon as is practicable after the requirements of an
improvement notice in relation to a mine have been
complied with, the manager of the mine must give
written notice of the compliance --
10 (a) to the inspector or assistant inspector who
issued the notice; or
(b) if that officer is not reasonably available at the
relevant time, to the district inspector for the
region in which the mine is situated.
15 (2) A manager who fails to comply with subsection (1)
commits an offence.
Subdivision 2 -- Prohibition notices in respect of mines
31AB. Grounds for prohibition notice
This Subdivision applies where an inspector or an
20 assistant inspector is of the opinion that --
(a) a contravention of any provision of this Act --
(i) is occurring at a mine; or
(ii) has occurred at a mine in circumstances
that make it likely that the contravention
25 will continue or be repeated,
and any matter or activity occasioning the
contravention constitutes or is likely to
constitute a hazard to any person; or
(b) a mine, or any plant, mining practice or
30 hazardous substance at or related to a mine --
(i) is dangerous; or
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(ii) is likely to become dangerous,
so as to constitute a hazard to any person.
31AC. Issue of prohibition notice for hazard arising from
breach of Act
5 (1) Where section 31AB(a) applies, the inspector or
assistant inspector may issue a prohibition notice --
(a) to the person who --
(i) is carrying on the activity or is in
control of the matter or activity; or
10 (ii) has or may be reasonably presumed to
have control over the matter or activity,
(which may be the principal employer or the
manager); and
(b) in every case to the principal employer or the
15 manager.
(2) The notice is to --
(a) require the person referred to in
subsection (1)(a) to remedy the matter or
activity; and
20 (b) in accordance with section 31AE, impose
requirements to be complied with by the
principal employer or the manager until an
inspector or assistant inspector is satisfied that
the relevant matters and activities have been
25 remedied.
31AD. Issue of prohibition notice for other hazards
(1) Where section 31AB(b) applies, the inspector or
assistant inspector may issue a prohibition notice --
(a) to the person who has, or may be reasonably
30 presumed to have, control over the plant,
mining practice or hazardous substance
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concerned (which may be the principal
employer or the manager); and
(b) in every case to the principal employer or the
manager.
5 (2) The notice is to --
(a) require the person referred to in
subsection (1)(a) to remove the hazard or likely
hazard; and
(b) in accordance with section 31AE, impose
10 requirements to be complied with by the
principal employer or the manager until an
inspector or assistant inspector is satisfied that
the hazard or likely hazard has been removed.
31AE. Prohibition of mining operations
15 In exercise of the powers conferred by
sections 31AC(2)(b) and 31AD(2)(b) an inspector or
assistant inspector may require the principal employer
or the manager --
(a) to stop work at the mine or any specified part of
20 the mine;
(b) to refrain from doing any specified thing at or
in relation to the mine;
(c) to remove all persons from the mine or any
specified part of the mine; or
25 (d) to take any combination of steps under
paragraphs (a), (b) and (c),
except to the extent that provision is made in the
prohibition notice either with or without conditions or
restrictions for --
30 (e) any specified work, practice or activity to be
carried out or any specified thing to be done at
the mine; or
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(f) any person to be at the mine or the part
concerned.
31AF. Contents of prohibition notice under this
Subdivision
5 A prohibition notice under this Subdivision must --
(a) state the opinion of the inspector or assistant
inspector in terms of section 31AB(a) or (b), as
the case may require;
(b) state reasonable grounds for that opinion;
10 (c) specify --
(i) where section 31AB(a) applies, the
provision of this Act; or
(ii) where section 31AB(b) applies, the
mine, or the plant, mining practice or
15 hazardous substance,
in respect of which that opinion is held; and
(d) contain a brief summary of the right to have the
notice reviewed under Subdivision 7.
31AG. Failure to comply with prohibition notice
20 (1) A person issued with a prohibition notice under this
Subdivision commits an offence if the person does not
comply with --
(a) the notice; or
(b) such of the provisions of the notice as are
25 applicable to the person,
as the case may require.
(2) Subsection (1) has effect subject to --
(a) the provisions in sections 31B and 31BC for the
suspension of notices; and
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(b) the exercise of the power conferred by
section 31BE.
(3) No person is precluded by a contract from doing such
acts and things as are necessary to comply with a
5 prohibition notice under this Subdivision or is liable
under any contract to any penalty for doing such acts
and things.
Subdivision 3 -- Prohibition notices in relation to
occupation of residential premises by employee
10 31AH. Issue of prohibition notice
(1) Subsection (2) applies where an inspector or an
assistant inspector is of the opinion that --
(a) an employee is, or is likely to be, in occupation
of residential premises as mentioned in
15 section 15D(2); and
(b) the employer concerned is contravening, or is
likely to contravene, that section in relation to
such occupation.
(2) The inspector or assistant inspector may issue to the
20 employer, and any employee, concerned a prohibition
notice prohibiting the occupation of the premises by an
employee of the employer until an inspector or
assistant inspector is satisfied that an employee
occupying the premises is not, or will not be, exposed
25 to any hazard at the premises.
(3) An inspector or assistant inspector who issues a
prohibition notice under subsection (2) must, as soon as
is practicable, give a copy of the notice to the manager
of the mine at which the employee concerned is
30 employed.
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31AI. Contents of prohibition notice under this
Subdivision
A prohibition notice under this Subdivision must --
(a) state the opinion of the inspector or assistant
5 inspector in terms of section 31AH(1);
(b) state reasonable grounds for that opinion;
(c) specify the premises and any hazard in respect
of which that opinion is held; and
(d) contain a brief summary of the right to have the
10 notice reviewed under Subdivision 7.
31AJ. Failure to comply with prohibition notice
(1) If an employee occupies residential premises in
contravention of a prohibition notice under
section 31AH --
15 (a) the employer issued with the notice commits an
offence unless the employer shows that all
reasonably practicable steps were taken by the
employer to prevent the occupation; and
(b) the employee who occupies the premises
20 commits an offence unless the employee shows
that there was reasonable excuse for that
occupation.
(2) Subsection (1) has effect subject to --
(a) the provisions in sections 31B and 31BC for the
25 suspension of notices; and
(b) the exercise of the power conferred by
section 31BE.
(3) No person is precluded by a contract from doing such
acts and things as are necessary to comply with a
30 prohibition notice under this Subdivision or is liable
under any contract to any penalty for doing such acts
and things.
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Subdivision 4 -- Display of improvement notices and
prohibition notices
31AK. Improvement notices
The manager of a mine who --
5 (a) is issued with an improvement notice; or
(b) is given a copy of an improvement notice under
section 30(3),
must, as soon as is practicable, cause the notice, or a
copy of it, to be displayed in accordance with the
10 prescribed requirements.
31AL. Prohibition notices in respect of mines
The manager of a mine who is issued with a
prohibition notice under Subdivision 2 must, as soon as
is practicable, cause the notice, or a copy of it, to be
15 displayed in accordance with the prescribed
requirements.
31AM. Prohibition notices in respect of residential
premises
An employer who is issued with a prohibition notice
20 under Subdivision 3 must, as soon as is practicable,
cause the notice, or a copy of it, to be displayed at the
residential premises concerned.
31AN. Offence to remove displayed notice
(1) A person must not remove an improvement notice or a
25 prohibition notice displayed under this Subdivision
before the requirements of the notice have been
satisfied, taking into account any modification made
under section 31AZ or 31BB.
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(2) Subsection (1) does not apply in respect of a notice
that --
(a) is suspended under section 31B or 31BC; or
(b) has ceased to have effect.
5 31AO. Modifications of notice to be displayed
(1) This section applies where an improvement notice or a
prohibition notice is modified under section 31AZ
or 31BB.
(2) The manager of the mine concerned, or the employer
10 concerned, must cause a copy of the decision of the
State mining engineer or the Tribunal to be displayed
with, and in the same manner as is required for, the
improvement notice or prohibition notice.
31AP. Failure to comply with provision of this Subdivision
15 A person who fails to comply with a duty imposed on
the person by this Subdivision commits an offence.
Subdivision 5 -- General duty of principal employer and
manager in respect of notices
31AQ. General duty, improvement notices
20 (1) Subsection (2) applies where --
(a) an improvement notice is issued in relation to a
mine; and
(b) the person issued with the notice is not the
principal employer at, or the manager of, the
25 mine.
(2) The principal employer and the manager must take all
reasonably practicable steps to ensure that the person
issued with the notice complies with it.
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(3) A principal employer or manager who fails to comply
with subsection (2) commits an offence.
31AR. General duty, prohibition notices
(1) In subsection (2) --
5 "other responsible person" means a person who --
(a) is required to comply with any provision of a
prohibition notice issued in respect of a
mine; but
(b) is not the principal employer at, or the
10 manager of, the mine.
(2) The principal employer at, and the manager of, a mine
in relation to which a prohibition notice is issued must
take all reasonably practicable steps to ensure that any
other responsible person complies with such of the
15 provisions of the notice as are applicable to the person.
(3) A principal employer or manager who fails to comply
with subsection (2) commits an offence.
31AS. Other provisions relating to general duty
(1) The duties imposed by this Subdivision --
20 (a) have effect subject to --
(i) the provisions in sections 31B and
31BC for the suspension of notices; and
(ii) the exercise of the power conferred by
section 31BE;
25 and
(b) are in addition to any duty that a principal
employer or a manager has under section 32(2)
or 43(2)(c).
(2) A principal employer or manager is not precluded by a
30 contract from doing such acts and things as are
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necessary to comply with a duty imposed by this
Subdivision and is not liable under any contract to any
penalty for doing such acts and things.
Subdivision 6 -- Entry of notices and related matters in
5 mine record book
31AT. Improvement and prohibition notices
The manager of a mine who --
(a) is issued with --
(i) an improvement notice; or
10 (ii) a prohibition notice under
Subdivision 2;
or
(b) is given a copy of --
(i) an improvement notice under
15 section 30(3); or
(ii) a prohibition notice under
section 31AH(3),
must securely affix a copy of the notice to a page in the
record book for the mine.
20 31AU. Referrals for review
The manager of a mine who --
(a) under section 31AY(1) or 31BA(1) refers an
improvement notice or a prohibition notice for
review; or
25 (b) is given a copy of a duly completed prescribed
form under section 31AY(4) or 31BA(3),
must securely affix a copy of the duly completed
prescribed form to a page in the record book for the
mine.
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31AV. Decisions on review
The manager of a mine who is given a notice under
section 31AZ(3) or 31BB(3) of a decision and reasons
must securely affix a copy of the notice to a page in the
5 record book for the mine.
31AW. Permissions for continuation of work
The manager of a mine who, under section 31B(3) or
31BC(3), is given a copy of a permission referred to in
that section must securely affix the copy to a page in
10 the record book for the mine.
31AX. Failure to comply with provision of this Subdivision
A manager who fails to comply with a duty imposed on
the manager by this Subdivision commits an offence.
Subdivision 7 -- Review of improvement notices and
15 prohibition notices
31AY. Notice may be referred for review
(1) An improvement notice or prohibition notice issued in
relation to a mine may, in accordance with
subsection (3), be referred to the State mining engineer
20 for review.
(2) A referral may be made by --
(a) a person issued with the notice; or
(b) the principal employer at, or the manager of,
the mine.
25 (3) A reference under subsection (1) may be made only in
the prescribed form duly completed and --
(a) in the case of an improvement notice, must be
made within the time specified in the notice as
the time before which the notice is required to
30 be complied with; or
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(b) in the case of a prohibition notice must be
made --
(i) not later than 7 days after the day on
which the notice was issued; or
5 (ii) within such further period as the State
mining engineer may allow.
(4) A person, other than the manager of a mine concerned,
that refers a notice for review must, as soon as is
practicable, give a copy of the duly completed
10 prescribed form to such manager.
(5) If a person fails to comply with subsection (4), the
person commits an offence.
31AZ. Review by State mining engineer
(1) On a reference under section 31AY, the State mining
15 engineer is to inquire into the circumstances relating to
the improvement notice or prohibition notice, and
may --
(a) affirm the notice;
(b) affirm the notice with such modifications as the
20 State mining engineer considers appropriate; or
(c) cancel the notice,
and, subject to section 31BB and the exercise of the
power conferred by section 31BE, the notice has effect
or, as the case may be, ceases to have effect
25 accordingly.
(2) In dealing with a reference for the review of a
prohibition notice the State mining engineer may --
(a) refer to an expert chosen by the State mining
engineer such matters as appear to him or her to
30 be appropriate; and
(b) accept the advice of that expert.
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(3) The State mining engineer is to give notice in writing
of --
(a) the decision on the reference; and
(b) the reasons for the decision,
5 to --
(c) the person who referred the notice for review;
and
(d) if that person is not the manager of a mine
concerned, to such manager.
10 31B. Effect of notice pending review by State mining
engineer
(1) Pending the decision of the State mining engineer on a
reference under section 31AY --
(a) the operation of an improvement notice is
15 suspended; and
(b) the operation of a prohibition notice continues,
except to the extent that the State mining
engineer --
(i) permits any work, practice or activity to
20 be carried out or any thing to be done;
(ii) permits any person to be at the mine
concerned or at a part of the mine; or
(iii) in the case of a prohibition notice under
Subdivision 3, permits any occupation
25 of the premises concerned.
(2) A permission given by the State mining engineer under
subsection (1)(b) --
(a) is to be in writing;
(b) may be subject to such restrictions and
30 conditions as the State mining engineer thinks
fit to impose for the safety of --
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(i) employees and other persons at a mine;
or
(ii) in the case of a prohibition notice under
Subdivision 3, any employee occupying
5 the premises concerned;
and
(c) is to be taken to be of no effect during any
period when any such condition or restriction is
not being observed according to its tenor.
10 (3) The State mining engineer is to give a copy of any
permission given under subsection (1)(b) to the
manager of a mine concerned.
31BA. Decision may be referred to Tribunal
(1) If a person given notice of a decision under
15 section 31AZ(3) is not satisfied with the State mining
engineer's decision under that section, the person may
refer the matter to the Tribunal for further review.
(2) A reference under subsection (1) --
(a) may only be made in the prescribed form duly
20 completed; and
(b) must be made --
(i) not later than 7 days after the day on
which the person received notice of the
decision; or
25 (ii) within such further period as the
Tribunal may allow.
(3) A person, other than the manager of a mine concerned,
who refers a matter for review under this section must,
as soon as is practicable, give a copy of the duly
30 completed prescribed form to such manager.
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(4) If a person fails to comply with subsection (3), the
person commits an offence.
31BB. Determination by Tribunal
(1) On a reference under section 31BA, the Tribunal is to
5 inquire into the circumstances relating to the
improvement notice or prohibition notice, and may --
(a) affirm the decision of the State mining
engineer;
(b) affirm the decision of the State mining engineer
10 with such modifications as the Tribunal
considers appropriate; or
(c) revoke the decision of the State mining
engineer and make such other decision with
respect to the notice as the Tribunal thinks fit,
15 and the notice has effect or, as the case may be, ceases
to have effect accordingly.
(2) A review under this section --
(a) is to be in the nature of a rehearing; and
(b) is to be completed by the Tribunal as quickly as
20 is practicable.
(3) The Tribunal is to give notice in writing of --
(a) its decision on the reference; and
(b) the reasons for the decision,
to --
25 (c) the person who referred the matter for review;
and
(d) if that person is not the manager of a mine
concerned, to such manager.
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31BC. Effect of notice pending review by Tribunal
(1) Pending the decision on a reference under
section 31BA, irrespective of the decision of the State
mining engineer under section 31AZ --
5 (a) the operation of an improvement notice is
suspended; and
(b) the operation of a prohibition notice continues,
except to the extent that the Tribunal --
(i) permits any work, practice or activity to
10 be carried out or any thing to be done;
(ii) permits any person to be at the mine
concerned or at a part of the mine; or
(iii) in the case of a prohibition notice under
Subdivision 3, permits any occupation
15 of the premises concerned.
(2) A permission given by the Tribunal under
subsection (1)(b) --
(a) is to be in writing;
(b) may be subject to such restrictions and
20 conditions as the Tribunal thinks fit to impose
for the safety of --
(i) employees and other persons at a mine;
or
(ii) in the case of a prohibition notice under
25 Subdivision 3, any employee occupying
the premises concerned;
and
(c) is to be taken to be of no effect during any
period when any such condition or restriction is
30 not being observed according to its tenor.
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(3) The Tribunal is to give a copy of any permission given
under subsection (1)(b) to the manager of a mine
concerned.
Subdivision 8 -- General
5 31BD. Notices may include directions
(1) An inspector or assistant inspector who issues an
improvement notice or a prohibition notice may
include in the notice directions as to the measures to be
taken to remedy any contravention, likely
10 contravention, hazard, matters or activities to which the
notice relates.
(2) A direction under subsection (1) may --
(a) refer to any code of practice; and
(b) offer the person issued with the notice a choice
15 of ways in which to remedy the contravention,
likely contravention, hazard, matters or
activities to which the notice relates.
31BE. Further power of State mining engineer to cancel
notice
20 (1) The State mining engineer may, on his or her own
initiative, cancel an improvement notice or a
prohibition notice in respect of a mine by giving notice
in writing of --
(a) the cancellation; and
25 (b) the reasons for the cancellation,
to --
(c) the person who was issued with the notice;
(d) the principal employer at a mine if the principal
employer is not the person referred to in
30 paragraph (c); and
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(e) the manager of the mine if the manager is not
the person referred to in paragraph (c).
(2) The State mining engineer may, on his or her own
initiative, cancel a prohibition notice issued under
5 section 31AH by giving notice in writing of --
(a) the cancellation; and
(b) the reasons for the cancellation,
to the employer and the employee concerned.
(3) The power conferred by subsection (1) or (2) is not to
10 be exercised in respect of a notice --
(a) during a period when a referral of the notice is
awaiting a determination of the State mining
engineer under section 31AZ; or
(b) after a decision in respect of the notice has been
15 referred to the Tribunal under section 31BA,
but otherwise may be exercised at any time and
whether or not the notice concerned has been affirmed
under section 31AZ(1).
Division 4 -- Issue of provisional improvement notices
20 by safety and health representative
31BF. Definition
In this Division --
"qualified representative" means a safety and health
representative who has completed a course of
25 training prescribed for the purposes of this
definition.
31BG. Issue of provisional improvement notices
(1) Subsection (2) applies where a qualified
representative --
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(a) is of the opinion that a person --
(i) is contravening any provision of this
Act; or
(ii) has contravened any provision of this
5 Act in circumstances that make it likely
that the contravention will continue or
be repeated;
and
(b) has undertaken the consultations required by
10 section 31BH.
(2) The qualified representative may issue to the person a
provisional improvement notice requiring the person to
remedy --
(a) the contravention or likely contravention; or
15 (b) the matters or activities occasioning the
contravention or likely contravention.
(3) A qualified representative may exercise the power
conferred by subsection (2) only --
(a) in respect of a mine for which the qualified
20 representative was elected; or
(b) if, pursuant to a scheme under section 55A, the
qualified representative was elected for a group
of employees, in respect of a mine at which any
member of the group works.
25 (4) The issue of a provisional improvement notice in
respect of a contravention at a mine is to be notified as
follows --
(a) if the manager of the mine is not the person to
whom the notice is issued, the qualified
30 representative who issues the notice must, as
soon as is practicable, give a copy of the notice
to the manager;
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(b) the manager must then give a copy of the notice
to the principal employer at the mine, if the
principal employer is not the person to whom it
is issued;
5 (c) the manager of a mine must give to the
principal employer at the mine a copy of any
provisional improvement notice issued to the
manager.
(5) A manager who fails to comply with subsection (4)(b)
10 or (c) commits an offence.
31BH. Consultation required before issue
(1) In this section --
"consult" means consult about the matters or activities
to which an intended notice will relate.
15 (2) Before issuing a provisional improvement notice a
qualified representative must --
(a) consult with the person who is to be issued with
the notice; and
(b) if there is any other safety and health
20 representative for the mine concerned, consult
with another representative for that mine so far
as it is reasonably practicable to do so.
(3) The reference in subsection (2) to a safety and health
representative includes a safety and health
25 representative elected for a group of employees
pursuant to a scheme under section 55A if any member
of the group works at the mine concerned.
(4) The regulations may make provision requiring a
qualified representative, in specified circumstances, to
30 consult with a person who holds a prescribed office in
the department before issuing a provisional
improvement notice.
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31BI. Contents of notice
(1) A provisional improvement notice must --
(a) state the opinion of the qualified representative
in terms of section 31BG(1)(a)(i) or (ii), as the
5 case may be;
(b) state reasonable grounds for that opinion;
(c) specify the provision of this Act in respect of
which the opinion is held;
(d) state the day before which the person is
10 required to remedy --
(i) the contravention or likely
contravention; or
(ii) the matters or activities occasioning the
contravention or likely contravention;
15 and
(e) contain a brief summary of the right to have the
notice reviewed by an inspector under
section 31BN.
(2) The day specified for the purposes of subsection (1)(d)
20 must be more than 7 days after the day on which the
notice is issued.
31BJ. Provisional improvement notices may include
directions
(1) A qualified representative may include in a provisional
25 improvement notice directions as to the measures to be
taken to remedy --
(a) any contravention or likely contravention; or
(b) matters or activities,
to which the notice relates.
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(2) Any direction under subsection (1) may --
(a) refer to any code of practice; and
(b) offer the person issued with the notice a choice
of ways in which to effect the remedy.
5 31BK. Display of provisional improvement notices
(1) The manager of a mine who --
(a) is issued with a provisional improvement
notice; or
(b) is given a copy of a provisional improvement
10 notice under section 31BG(4),
must, as soon as is practicable, cause the notice, or a
copy of it, to be displayed in accordance with the
prescribed requirements.
(2) A person commits an offence if the person removes a
15 provisional improvement notice displayed under
subsection (1) before the requirements of the
improvement notice have been satisfied, taking into
account any modification made under section 31BN(4).
(3) Subsection (2) does not apply in respect of a
20 provisional improvement notice that has ceased to have
effect.
(4) If a provisional improvement notice is modified by an
inspector under section 31BN(4), the manager must
cause a copy of the inspector's decision to be displayed
25 with, and in the same manner as is required for, the
provisional improvement notice.
(5) A manager who fails to comply with subsection (1) or
(4) commits an offence.
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31BL. Failure to comply with notice
(1) If a person --
(a) is issued with a provisional improvement
notice; and
5 (b) does not comply with the notice within the time
specified in it,
the person commits an offence.
(2) Subsection (1) does not apply if the right conferred by
section 31BN(1) is exercised.
10 31BM. General duty of principal employer and manager in
respect of provisional improvement notice
(1) Subsection (2) applies where --
(a) a provisional improvement notice is issued in
relation to a mine; and
15 (b) the person issued with the notice is not the
principal employer at, or the manager of, the
mine.
(2) The principal employer and the manager must take all
reasonably practicable steps to ensure that the person
20 issued with the notice complies with it.
(3) Subsection (2) does not apply if the right conferred by
section 31BN(1) is exercised.
(4) The duty imposed by subsection (2) is in addition to
any duty that the principal employer or the manager
25 may have under section 32(2) or 43(2)(c).
(5) A principal employer or manager who fails to comply
with subsection (2) commits an offence.
(6) A principal employer or manager is not precluded by a
contract from doing such acts and things as are
30 necessary to comply with subsection (2) and is not
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liable under any contract to any penalty for doing such
acts and things.
31BN. Review of notice by an inspector
(1) A person issued with a provisional improvement notice
5 in relation to a mine, or the principal employer at, or
manager of, the mine may, in writing delivered or sent
to the department (a "review notice"), require that an
inspector review the notice.
(2) A review notice --
10 (a) may be sent --
(i) by letter addressed to, and posted to a
place of business of, the department;
(ii) by transmission to a facsimile number
used by the department; or
15 (iii) by electronic data transmission to an
email address used by the department;
and
(b) must be received by the department not later
than the day specified in the provisional
20 improvement notice for the purposes of
section 31BI(1)(d).
(3) The operation of the provisional improvement notice is
suspended by the receipt by the department of a review
notice in accordance with this section.
25 (4) Where a review notice is received by the department in
accordance with this section, an inspector must as soon
as is practicable --
(a) attend at the mine; and
(b) inquire into the circumstances relating to the
30 notice,
and having done so may --
(c) affirm the notice;
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(d) affirm the notice with modifications; or
(e) cancel the notice.
(5) If an inspector affirms a provisional improvement
notice, with or without modifications, the notice as so
5 affirmed has effect as if it had been issued by the
inspector under section 30.
(6) Where an inspector reviews a provisional improvement
notice he or she is to give notice in writing --
(a) of the result of the review; and
10 (b) of any modifications to the notice,
to --
(c) the person who required an inspector to review
the notice; and
(d) if that person is not the manager of the mine
15 concerned, to such manager.
31BO. Entries in mines record book
(1) The manager of a mine who --
(a) is issued with a provisional improvement notice
under section 31BG(2); or
20 (b) is given a copy of a provisional improvement
notice under section 31BG(4),
must securely affix a copy of the notice to a page in the
record book for the mine.
(2) The manager of a mine who is given notice under
25 section 31BN(6) of the result of a review must securely
affix a copy of the notice to a page in the record book
for the mine.
(3) A manager of a mine who fails to comply with
subsection (1) or (2) commits an offence.
30 ".
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77. Transitional provision for directions given before
commencement
Sections 22, 23(1)(a)(iv), 30 and 31 of the Mines Safety and
Inspection Act 1994 continue to have effect for the purposes of a
5 direction under section 22 of that Act given before the
commencement of this Part as if sections 74, 75 and 76 had not
been enacted.
78. Section 71 amended
Section 71(2)(a) is amended by deleting "section 22" and
10 inserting instead --
" Part 3 Division 3 ".
79. Section 89 amended
After section 89(1) the following subsection is inserted --
"
15 (1a) Subsection (1)(b) has effect subject to the provisions
of --
(a) Part 3 Division 3 Subdivision 6; and
(b) section 31BO.
".
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Division 1 Amendments to the Mines Safety and Inspection Act 1994
s.
Part 7 -- Amendments to provide for the Occupational
Safety and Health Tribunal to determine
certain matters
Division 1 -- Amendments to the Mines Safety and Inspection
5 Act 1994
80. Section 4 amended
Section 4(1) is amended by inserting after the definition of
"trainee" the following definition --
"
10 "Tribunal" has the meaning given by section 51G(2)
of the Occupational Safety and Health Act 1984;
".
81. Section 96A amended
(1) Section 96A is amended by inserting before "Every proceeding"
15 the subsection designation "(1)".
(2) At the end of section 96A the following subsection is
inserted --
"
(2) When exercising jurisdiction under subsection (1) a
20 safety and health magistrate constitutes a court of
summary jurisdiction.
".
82. Part 9 Division 3 heading inserted
After section 101L the following heading is inserted --
25 "
Division 3 -- Jurisdiction of Occupational Safety and
Health Tribunal
".
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Amendments to the Mines Safety and Inspection Act 1994 Division 1
s. 83
83. Section 102 replaced and transitional provisions
(1) Section 102 is repealed and the following section is inserted
instead --
"
5 102. Determination of certain matters and appeals by
Tribunal
(1) This section applies where --
(a) under section 31BA, 55(6), 55A(4), 56(11),
59(1), 62(1), 67F(1), (2) or (3) or 74(2) a matter
10 is referred to the Tribunal;
(b) under section 68C a claim is referred to the
Tribunal; or
(c) under section 52 or 86 a person appeals to the
Tribunal.
15 (2) Where this section applies --
(a) the matter, claim or appeal may be heard and
determined; and
(b) a determination made by the Tribunal on the
matter, claim or appeal has effect, and may
20 be --
(i) appealed against; and
(ii) enforced,
as if it were --
(c) a matter in respect of which jurisdiction is
25 conferred on the Tribunal by Part VIB of the
Occupational Safety and Health Act 1984
("Part VIB"); or
(d) a determination made for the purposes of
Part VIB.
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Division 1 Amendments to the Mines Safety and Inspection Act 1994
s.
(3) The provisions of --
(a) Part VIB; and
(b) the Industrial Relations Act 1979 applied by
that Part,
5 have effect for the purposes of this section with all
necessary changes.
(4) In the operation of subsection (3), section 51J(1) of the
of the Occupational Safety and Health Act 1984 has
effect as if it were expressed to apply where a matter
10 has been referred to the Tribunal for determination
under section 55(6), 55A(4), 56(11), 62(1), 67F or
74(2) of this Act.
".
(2) A matter referred to a safety and health magistrate under the
15 Mines Safety and Inspection Act 1994 and not finally
determined before the commencement of subsection (1) --
(a) may continue to be dealt with; and
(b) any order made in such a proceeding may be appealed
against and enforced,
20 as if subsection (1) had not been enacted.
(3) A determination or decision of a safety and health magistrate
made before the commencement of subsection (1) may be the
subject of --
(a) an application for leave to appeal; and
25 (b) an appeal for which leave is granted,
under section 54B(2) of the Occupational Safety and Health
Act 1984, as applied by the section repealed by subsection (1),
as if subsection (1) had not been enacted.
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Amendments to the Mines Safety and Inspection Act 1994 Division 1
s. 84
84. Various references to a safety and health magistrate
amended
(1) Each provision specified in the Table to this subsection is
amended by deleting "a safety and health magistrate" and
5 inserting instead --
" the Tribunal ".
Table
s. 55(6) s. 59(4)
s. 56(11) s. 62
s. 59(1) s. 74(2)
s. 59(3)
(2) Each provision specified in the Table to this subsection is
amended by deleting "the safety and health magistrate" and
10 inserting instead --
" the Tribunal ".
Table
s. 59(3) s. 62
s. 59(4)
85. Section 52 amended and transitional provision
(1) Section 52 is amended by deleting "Minister" in each place
15 where it occurs and inserting instead --
" Tribunal ".
(2) An appeal brought under section 52 of the Mines Safety and
Inspection Act 1994 but not finally determined before the
commencement of subsection (1), may be dealt with and
20 determined under that section as if subsection (1) had not been
enacted.
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Division 2 Amendments to the Industrial Relations Act 1979
s. 85A
85A. Section 76 amended
Section 76 is amended by deleting all words in subsection (1)
before paragraph (a) and inserting instead --
"
5 Where a person suffers injury in an accident at a mine
and is disabled by that accident from performing his or
her duties of employment as they were being
performed at the time the accident occurred, the
manager must cause notice of the accident to be
10 given --
".
86. Section 86 amended and transitional provision
(1) Section 86 is amended by deleting "Minister" in each place
where it occurs and inserting instead --
15 " Tribunal ".
(2) An appeal brought under section 86 of the Mines Safety and
Inspection Act 1994 but not finally determined before the
commencement of subsection (1), may be dealt with and
determined under that section as if subsection (1) had not been
20 enacted.
Division 2 -- Amendments to the Industrial Relations Act 1979
87. The Industrial Relations Act 1979 amended
(1) The amendments in this section are to the Industrial Relations
Act 1979*.
25 [* Reprint 9 as at 18 June 2004.]
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Amendments to the Industrial Relations Act 1979 Division 2
s. 87
(2) Section 7(3) is repealed and the following subsection is inserted
instead --
"
(3) A matter or claim that has been referred, or appeal that
5 has been brought, to the Tribunal provided for by
section 51G of the Occupational Safety and Health
Act 1984 under a provision mentioned in --
(a) subsection (1) of that section; or
(b) section 102(1) of the Mines Safety and
10 Inspection Act 1994,
is not an industrial matter.
".
(3) Section 8(2a)(b) is amended by inserting after "that Act" --
" and the Mines Safety and Inspection Act 1994 ".
15 (4) Section 113(1)(d)(ii) is deleted and the following subparagraph
is inserted instead --
"
(ii) the referral, bringing, hearing and
determination of matters, claims and
20 appeals under --
(I) the Occupational Safety and
Health Act 1984; and
(II) the Mines Safety and
Inspection Act 1994;
25 ".
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Mines Safety and Inspection Amendment Bill 2004
Part 8 Miscellaneous amendments
s.
Part 8 -- Miscellaneous amendments
88. Section 4 amended
(1) Section 4(1) is amended by inserting in the appropriate
alphabetical positions --
5 "
"apprentice" --
(a) means an apprentice under the Industrial
Training Act 1975; or
(b) if Part 7 of the Vocational Education and
10 Training Act 1996 comes into operation,
means a person who, as an employee, has
entered into an apprenticeship within the
meaning of that term in section 58 of that
Act;
15 "Australian Standard" means a document having that
title published by Standards Australia;
"Australian/New Zealand Standard" means a
document having that title published jointly by --
(a) Standards Australia; and
20 (b) the Standards Council of New Zealand;
"import" means to bring into the State, whether from
outside Australia or otherwise;
"trainee" means a person belonging to a class of
persons defined by the regulations as trainees for
25 the purposes of this Act;
".
(2) Section 4(1) is amended by deleting the definition of
"employee" and inserting instead --
"
30 "employee" means --
(a) a person by whom work is done at a mine
under a contract of employment; and
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Mines Safety and Inspection Amendment Bill 2004
Miscellaneous amendments Part 8
s. 88
(b) an apprentice or trainee who works at a
mine;
".
(3) Section 4(1) is amended by deleting the definition of
5 "employer" and inserting instead --
"
"employer" means --
(a) a person who employs an employee at a
mine under a contract of employment; and
10 (b) in relation to an apprentice or trainee, a
person who employs the apprentice or
trainee at a mine under an apprenticeship or
traineeship scheme under the Industrial
Training Act 1975;
15 ".
(4) Section 4(1) is amended by inserting the following definition in
the appropriate alphabetical position --
"
"Mining Industry Advisory Committee" means the
20 committee referred to in section 14A(2) of the
Occupational Safety and Health Act 1984;
".
(5) Section 4(1) is amended in the definition of "mining operations"
by inserting after paragraph (e) the following paragraph --
25 "
(ea) the transport of ore or other mining product
that takes place on a road that is not a road as
defined in the Road Traffic Act 1974; and
".
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Mines Safety and Inspection Amendment Bill 2004
Part 8 Miscellaneous amendments
s.
(6) Section 4(1) is amended by deleting the definition of
"self-employed person" and inserting instead --
"
"self-employed person" means an individual who
5 works for gain or reward otherwise than --
(a) under a contract of employment; or
(b) as an apprentice or trainee,
whether or not the individual is an employer;
".
10 (7) Section 4(1) is amended by deleting the definition of "supply"
and inserting instead --
"
"supply", in relation to any plant or substance,
includes supply and re-supply by way of --
15 (a) sale (including by auction), exchange, lease,
hire, or hire-purchase, whether as principal
or agent;
(b) the disposal in a manner referred to in
paragraph (a) of assets of a business that
20 include any plant or substance; and
(c) the disposal of all of the shares in a company
that owns any plant or substance;
".
89. Section 6A inserted
25 After section 6 the following section is inserted --
"
6A. Application of this Act to a workplace under the
Occupational Safety and Health Act 1984
(1) In this section --
30 "specified" means specified in an instrument under
this section;
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Mines Safety and Inspection Amendment Bill 2004
Miscellaneous amendments Part 8
s. 89
"workplace" has the meaning given by the
Occupational Safety and Health Act 1984.
(2) The Minister and the Minister for the time being
administering the Occupational Safety and Health
5 Act 1984 may, by instrument in writing, jointly declare
that for a specified period --
(a) this Act; or
(b) any specified provision of this Act,
applies, to the exclusion of any inconsistent provision
10 of the Occupational Safety and Health Act 1984, to or
in relation to --
(c) a specified workplace, or a specified part of a
workplace, as if it were a mine or a part of a
mine;
15 (d) a specified activity as if it were a mining
operation; and
(e) a specified act, matter or thing as if it were an
act, matter or thing to which this Act applies.
(3) The reference in subsection (2) to any inconsistent
20 provision of the Occupational Safety and Health
Act 1984 does not include any provision of Part II of
that Act.
(4) An instrument under this section may contain
provisions of a savings or transitional nature in relation
25 to the application of this Act or the Occupational
Safety and Health Act 1984 to any person, activity,
matter or thing.
(5) An instrument under this section is subsidiary
legislation for the purposes of the Interpretation
30 Act 1984.
".
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Mines Safety and Inspection Amendment Bill 2004
Part 8 Miscellaneous amendments
s.
90. Section 21 amended
(1) After section 21(1)(c) the following paragraph is inserted --
"
(ca) provide information to any person for the
5 purpose of facilitating compliance with this
Act;
".
(2) Section 21(1)(i) is deleted and the following paragraphs are
inserted instead --
10 "
(i) in accordance with subsections (1a) and (1b),
interview any person who the district inspector
or special inspector (the "inspector") has
reasonable grounds to believe --
15 (i) is, or was at any time during the
preceding 3 years --
(I) an employee working at a
mine; or
(II) an employee occupying
20 residential premises mentioned
in section 15D(2),
in relation to which the inspector is
inquiring;
(ii) was at such a mine or such residential
25 premises at a time that is relevant to a
matter about which the inspector is
inquiring; or
(iii) may otherwise be able to provide
information relevant to a matter about
30 which the inspector is inquiring;
(ia) require the attendance of any person for an
interview under paragraph (i);
".
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Mines Safety and Inspection Amendment Bill 2004
Miscellaneous amendments Part 8
s. 91
(3) After section 21(1) the following subsections are inserted --
"
(1a) An interview referred to in subsection (1)(i) is to be
conducted in private if --
5 (a) the inspector considers that to be appropriate;
or
(b) the person to be interviewed so requests,
but this subsection does not limit the operation of
subsection (3).
10 (1b) Subsection (1a) may be invoked during an interview
by --
(a) the inspector; or
(b) the person being interviewed,
in which case that subsection applies to the remainder
15 of the interview.
".
91. Section 102A inserted
After the heading to Part 10 the following section is inserted --
"
20 102A. Visitors to comply with directions
(1) In this section --
"authorised person", in relation to a mine, means --
(a) a managerial officer at the mine;
(b) an employer of any employee at the mine,
25 including a person who is an employer by
operation of section 15A, 15B or 15C; and
(c) any self-employed person carrying out work
at the mine;
"conduct" includes a failure to do a particular act or
30 thing;
page 119
Mines Safety and Inspection Amendment Bill 2004
Part 8 Miscellaneous amendments
s.
"employee" includes a person who is an employee by
operation of section 15A, 15B or 15C;
"managerial officer", in relation to a mine, means --
(a) the principal employer at the mine;
5 (b) the registered manager and any underground
manager or quarry manager at the mine; and
(c) a person appointed as an alternate or deputy
of an officer referred to in paragraph (b).
(2) Subsection (3) applies if --
10 (a) a person (a "visitor") is at a mine otherwise
than in the capacity of --
(i) a managerial officer;
(ii) an employer;
(iii) an employee; or
15 (iv) a self-employed person;
and
(b) an authorised person believes on reasonable
grounds that --
(i) any conduct of the visitor at the mine; or
20 (ii) the presence of the visitor at the mine or
a particular part of the mine,
constitutes a hazard to any person.
(3) The authorised person may direct the visitor --
(a) to immediately cease engaging in the conduct
25 concerned; or
(b) to immediately leave the mine and not to return
as a visitor to the mine until permitted by the
authorised person to do so.
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Mines Safety and Inspection Amendment Bill 2004
Miscellaneous amendments Part 8
s. 92
(4) A person who, without reasonable excuse, fails to
comply with a direction given to the person under
subsection (3) commits an offence.
".
5 92. Section 104 amended
After section 104(1)(c) the following paragraph is inserted --
"
(ca) without limiting paragraph (c), imposing duties
on persons in relation to --
10 (i) the identification of hazards at mines;
(ii) the assessment of risks resulting from
such hazards; and
(iii) the taking of remedial or other action;
".
15 93. Section 110 amended
Section 110 is amended as follows:
(a) in subsection (1) by deleting "the expiration of 5 years
from its commencement, and in the course of that" and
inserting instead --
20 "
1 December 2009 and every fifth anniversary of that
day, and in the course of such a
";
(b) in subsection (2) by deleting "the review" and inserting
25 instead --
" such a review ".
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Mines Safety and Inspection Amendment Bill 2004
Part 8 Miscellaneous amendments
s.
94. Occupational Safety and Health Act 1984 amended
(1) The amendment in this section is to the Occupational Safety and
Health Act 1984*.
[* Reprinted as at 22 March 1999.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 267.]
(2) After section 4(1a) the following subsection is inserted --
"
(1b) This Act has effect subject to any instrument for the
10 time being in force under section 6A of the Mines
Safety and Inspection Act 1994.
".
page 122
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