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Western Australia
Occupational Safety and Health Legislation
Amendment and Repeal Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Amendments relating to
general workplace duties
4. Part III Division 2 heading inserted 3
5. Section 19 amended 3
6. Section 21 amended 3
7. Sections 21B and 21C inserted 4
8. Part III Divisions 3, 4 and 5 and heading for
Division 6 inserted 6
9. Section 41A inserted 17
10. Section 43 amended 18
11. Section 47A inserted 18
12. Section 49 amended 18
13. Schedule amended 19
Part 3 -- Amendments relating to
offences and penalties
14. Section 3 amended 20
15. Sections 3A and 3B inserted 20
16. Part III Division 1 inserted 23
17. Section 19 amended 23
18. Section 19A inserted 24
19. Section 20 amended 25
20. Section 20A inserted 25
282--2 page i
Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Contents
21. Section 21 amended 26
22. Section 21A inserted 26
23. Section 22 amended 27
24. Section 22A inserted 27
25. Section 23 amended 28
26. Section 23AA inserted 29
27. Section 23A amended 30
28. Section 23B inserted 30
29. Section 23B repealed 31
30. Part VII Division 1 heading inserted 31
31. Section 54 replaced 31
32. Section 54AA repealed 31
33. Section 54A amended 32
34. Section 55 amended 32
35. Section 55A inserted 33
36. Part VII Divisions 2 and 3 inserted 34
37. Section 60 amended 44
Part 4 -- Amendments relating to
safety and health representatives
and committees
38. Section 3 amended 46
39. Part IV Division 1 heading inserted 46
40. Section 29 amended 46
41. Section 30 amended 47
42. Sections 30A, 30B and 30C inserted 48
43. Section 31 amended 51
44. Saving provision for existing safety and health
representatives 52
45. Section 32 amended 53
46. Section 33 amended 53
47. Section 34 amended 54
48. Section 35 amended 54
49. Sections 35A, 35B, 35C and 35D inserted 56
50. Sections 36, 37, 38 and 39 repealed and replaced by a
Division heading and sections 36 to 39G 60
51. Savings and transitional provisions for existing safety
and health committees 70
52. Section 40 amended 71
53. Section 41 amended 71
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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Contents
54. Part VI Division 1 heading inserted 71
55. Part VI Division 2 inserted 72
56. Section 56 amended 77
57. Schedule amended 77
Part 5 -- Amendments relating to
inspectors
58. Section 42 replaced by sections 42, 42A, 42B and 42C 78
59. Section 43 amended 80
60. Section 45 amended 81
61. Section 47 amended 83
Part 6 -- Amendments relating to the
establishment of a tribunal
Division 1 -- Amendments to the Occupational
Safety and Health Act 1984
62. Long title amended 85
63. Section 3 amended 85
64. Section 51A amended 85
65. Section 51C amended 85
66. Section 51D repealed 85
67. Part VIB inserted 86
68. Section 54B amended 91
69. Various references to a safety and health magistrate
amended 91
Division 2 -- Amendments to the Industrial
Relations Act 1979
70. The Industrial Relations Act 1979 amended 92
Division 3 -- Transitional provisions
71. Existing referrals to safety and health magistrate 93
72. Appeal proceedings in progress 94
Part 7 -- Amendments to make
expressions in the Act gender
neutral
73. Section 3 amended 95
74. Section 4 amended 95
75. Section 8 amended 96
76. Section 9 amended 96
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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Contents
77. Section 10 replaced 97
78. Section 19 amended 98
79. Section 20 amended 98
80. Section 22 amended 99
81. Section 23 amended 99
82. Section 24 amended 99
83. Section 27 amended 99
84. Section 28 amended 100
85. Section 30 amended 100
86. Section 32 amended 100
87. Section 33 amended 100
88. Section 34 amended 101
89. Section 35 amended 101
90. Section 40 amended 102
91. Section 43 amended 102
92. Section 45 amended 102
93. Section 47 amended 102
94. Section 48 amended 102
95. Section 49 amended 103
96. Section 50 amended 104
97. Section 51 amended 104
98. Section 51A amended 104
99. Section 56 amended 104
100. Section 57 amended 105
101. Schedule amended 105
102. Feminine pronoun inserted in various provisions 105
103. Relative pronoun replaced 106
Part 8 -- Miscellaneous amendments
104. Section 3 amended 108
105. Section 6 amended 110
106. Section 14A inserted 112
107. Section 48 amended 114
108. Section 49 amended 114
109. Section 50A inserted 115
110. Section 51AA inserted 116
111. Section 53 amended 117
112. Section 56 amended 118
113. Section 57A inserted 119
114. Schedule amended 120
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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Contents
115. Mines Safety and Inspection Act 1994 amended and
saving provision 121
Part 9 -- Repeal of Shearers'
Accommodation Act 1912
116. Shearers' Accommodation Act 1912 repealed 122
page v
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail and upon reconsideration)
Occupational Safety and Health Legislation
Amendment and Repeal Bill 2004
A Bill for
An Act to amend --
· the Occupational Safety and Health Act 1984;
· the Industrial Relations Act 1979; and
· the Mines Safety and Inspection Act 1994,
and to repeal the Shearers' Accommodation Act 1912.
The Parliament of Western Australia enacts as follows:
page 1
Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Occupational Safety and Health
Legislation Amendment and Repeal Act 2004.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. The Act amended
10 The amendments in Parts 2 to 8, except those in sections 70
and 115, are to the Occupational Safety and Health Act 1984*.
[* Reprinted as at 22 March 1999.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 267.]
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Repeal Bill 2004
Amendments relating to general workplace duties Part 2
s. 4
Part 2 -- Amendments relating to general
workplace duties
4. Part III Division 2 heading inserted
After section 18A the following heading is inserted --
5 "
Division 2 -- General workplace duties
".
5. Section 19 amended
Section 19(3), (4) and (5) are repealed.
10 6. Section 21 amended
Section 21(1) is repealed and the following subsections are
inserted instead --
"
(1) A self-employed person shall take reasonable care to
15 ensure his or her own safety and health at work.
(2) An employer or self-employed person shall, 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
20 part as a result of --
(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;
25 or
(b) any hazard that arises from or is increased
by --
(i) the work referred to in paragraph (a); or
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Part 2 Amendments relating to general workplace duties
s. 7
(ii) the system of work that has been or is
being operated by the employer or the
self-employed person.
".
5 7. Sections 21B and 21C inserted
After section 21A the following sections are inserted --
"
21B. Duty placed on body corporate to which section
23D, 23E or 23F applies
10 (1) If section 23D, 23E or 23F makes any other provision
of this Act apply to a body corporate as if it were the
employer of a particular person, this section and
section 21C apply to the body corporate at such times
as the other provision is made to apply.
15 (2) A body corporate to which this section applies shall, 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 --
(a) work that has been or is being undertaken by --
20 (i) the body corporate; or
(ii) a person carrying out work under the
direction of the body corporate;
or
(b) any hazard that arises from or is increased
25 by --
(i) the work referred to in paragraph (a); or
(ii) the system of work that has been or is
being operated by the body corporate.
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Amendments relating to general workplace duties Part 2
s. 7
21C. Breaches of section 21B
(1) If a body corporate contravenes section 21B(2) in
circumstances of gross negligence, the body corporate
commits an offence and is liable to a level 4 penalty.
5 (2) If --
(a) a body corporate --
(i) contravenes section 21B(2); and
(ii) by the contravention causes the death
of, or serious harm to, a person;
10 and
(b) subsection (1) does not apply,
the body corporate commits an offence and is liable to
a level 3 penalty.
(3) If --
15 (a) a body corporate contravenes section 21B(2);
and
(b) neither subsection (1) nor subsection (2)
applies,
the body corporate commits an offence and is liable to
20 a level 2 penalty.
(4) A body corporate 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
25 (b) subsection (2) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (3).
".
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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Part 2 Amendments relating to general workplace duties
s. 8
8. Part III Divisions 3, 4 and 5 and heading for Division 6
inserted
After section 23B the following Divisions and Division heading
are inserted --
5 "
Division 3 -- Certain workplace situations to be treated
as employment
23C. Terms used in this Division
In this Division --
10 "business" includes the operations of a public
authority;
"public authority" means --
(a) a Minister of the Crown acting in the
Minister's official capacity;
15 (b) a State Government department, State
trading concern, State instrumentality or
State agency; or
(c) any other body or person, whether corporate
or not and including a local government, that
20 under a written law administers or carries on
a social service or public utility for the
benefit of the State or a part of the State.
23D. Contract work arrangements
(1) This section applies where a person (the "principal")
25 in the course of trade or business engages a contractor
(the "contractor") to carry out work for the principal.
(2) Where this section applies, section 19 has effect --
(a) as if the principal were the employer of --
(i) the contractor; and
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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Amendments relating to general workplace duties Part 2
s. 8
(ii) any person employed or engaged by the
contractor to carry out or assist in
carrying out the work concerned,
in relation to matters over which the principal
5 has the capacity to exercise control; and
(b) as if --
(i) the contractor; and
(ii) any person referred to in
paragraph (a)(ii),
10 were employees of the principal in relation to
matters over which the principal has the
capacity to exercise control.
(3) Where this section applies, the further duties referred to
in subsection (4) apply --
15 (a) as if the principal were the employer of --
(i) the contractor; and
(ii) any person employed or engaged by the
contractor to carry out or assist in
carrying out the work concerned;
20 and
(b) as if --
(i) the contractor; and
(ii) any person referred to in
paragraph (a)(ii),
25 were employees of the principal.
(4) The further duties mentioned in subsection (3) are --
(a) the duties of an employee under section 20; and
(b) the duties of an employer under
sections 23G(2) and 23I(3).
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Part 2 Amendments relating to general workplace duties
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(5) An agreement or arrangement is void for the purposes
of this section if it purports to give control to --
(a) a contractor; or
(b) a person referred to in subsection (2)(a)(ii),
5 of any matter that --
(c) comes within section 19 or 23G(2); and
(d) is a matter over which the principal has the
capacity to exercise control,
but this subsection does not prevent the making of a
10 written agreement as mentioned in section 23G(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 --
(a) the duties of the principal to the contractor; or
15 (b) the duties of the contractor to any person
employed or engaged by the contractor.
23E. Labour arrangements in general
(1) This section applies where --
(a) a person (the "worker") for remuneration
20 carries out work for another person (the
"person mentioned in subsection (1)(a)") in
the course of trade or business;
(b) that person has the power of direction and
control in respect of the work in a similar
25 manner to the power of an employer under a
contract of employment;
(c) there is no contract of employment between the
worker and that person; and
(d) neither section 23D nor section 23F applies.
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Occupational Safety and Health Legislation Amendment and
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Amendments relating to general workplace duties Part 2
s. 8
(2) Where this section applies, section 19 has effect as
if --
(a) the person mentioned in subsection (1)(a) were
the employer of the worker; and
5 (b) the worker were the employee of that person,
in relation to any matter that --
(c) comes within section 19; and
(d) is a matter over which that person has the
capacity to exercise control.
10 (3) Where this section applies, the further duties referred to
in subsection (4) apply as if --
(a) the person mentioned in subsection (1)(a) were
the employer of the worker; and
(b) the worker were the employee of that person.
15 (4) The further duties mentioned in subsection (3) are --
(a) the duties of an employee under section 20; and
(b) the duties of an employer under section 23I(3).
(5) An agreement or arrangement is void for the purposes
of this section to the extent that it purports to give
20 control to the worker of any matter that --
(a) comes within section 19; and
(b) is a matter over which the person mentioned in
subsection (1)(a) has the capacity to exercise
control.
25 (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
directly or indirectly under this section is void.
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Occupational Safety and Health Legislation Amendment and
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23F. Labour hire arrangements
(1) In this section --
"agent" --
(a) means a person that 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 the client's trade or business.
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 19 has effect as
if --
30 (a) each of the agent and the client were the
employer of the worker; and
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Occupational Safety and Health Legislation Amendment and
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Amendments relating to general workplace duties Part 2
s. 8
(b) the worker were an employee of each of the
agent and the client,
in relation to any matter that --
(c) comes within section 19; and
5 (d) as regards --
(i) the agent, is a matter over which the
agent has the capacity to exercise
control; or
(ii) the client, is a matter over which the
10 client has the capacity to exercise
control.
(5) Where this section applies, the further duties referred to
in subsection (6) apply as if --
(a) each of the agent and the client were the
15 employer of the worker; and
(b) the worker were an employee of each of the
agent and the client.
(6) The further duties mentioned in subsection (5) are --
(a) the duties of an employee under section 20; and
20 (b) the duties of an employer under section 23I(3).
(7) This section applies despite anything to the contrary in,
or any inconsistent provision of, an agreement, whether
made orally or in writing.
(8) A purported waiver by a worker of a right that arises
25 directly or indirectly under this section is void.
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Occupational Safety and Health Legislation Amendment and
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Part 2 Amendments relating to general workplace duties
s. 8
Division 4 -- Duty relating to certain
employment accommodation
23G. Duty of employer to maintain safe premises
(1) In this section --
5 "residential premises" --
(a) means residential premises that are situated
outside --
(i) a townsite within the meaning in
section 26(1) of the Land
10 Administration Act 1997; and
(ii) the metropolitan region as defined in
section 6 of the Metropolitan Region
Town Planning Scheme Act 1959;
and
15 (b) includes land and outbuildings that are
intended to be used in connection with the
occupation of the premises.
(2) Where --
(a) an employee occupies residential premises that
20 are owned by or under the control of the
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
25 concerned,
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
30 pursuant to a written agreement containing terms that
might reasonably be expected to apply to a letting of
the residential premises to a tenant.
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s. 8
(4) This section does not apply to the occupation of
residential premises by an employee who is employed
at a workplace referred to in section 4(2).
23H. Breaches of section 23G
5 (1) If an employer contravenes section 23G(2) in
circumstances of gross negligence, the employer
commits an offence and is liable to a level 4 penalty.
(2) If --
(a) an employer --
10 (i) contravenes section 23G(2); and
(ii) by the contravention causes the death
of, or serious harm to, an employee
occupying premises as mentioned in
that section;
15 and
(b) subsection (1) does not apply,
the employer commits an offence and is liable to a
level 3 penalty.
(3) If --
20 (a) an employer contravenes section 23G(2); and
(b) neither subsection (1) nor subsection (2)
applies,
the employer commits an offence and is liable to a
level 2 penalty.
25 (4) In proceedings against a person for an offence under
subsection (1) or (2) it is a defence if the person proves
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
30 and health at the premises concerned.
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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Part 2 Amendments relating to general workplace duties
s. 8
(5) 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).
Division 5 -- Other duties
23I. Notification of deaths, injuries and diseases
10 (1) In this section --
"business of an employer" means --
(a) the conduct of the undertaking or operations
of an employer; and
(b) work undertaken by an employer or any
15 employee of an employer;
"business of a self-employed person" means --
(a) the conduct of the undertaking or operations
of a self-employed person; and
(b) work undertaken by that person.
20 (2) This section applies where --
(a) at a workplace, or at residential premises to
which section 23G(2) applies, an employee
incurs an injury, or is affected by a disease,
that --
25 (i) results in the death of the employee; or
(ii) is of a kind that is prescribed;
or
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Amendments relating to general workplace duties Part 2
s. 8
(b) at a workplace, a person who is not an
employee incurs an injury in prescribed
circumstances that --
(i) results in the death of the person; or
5 (ii) is of a kind that is prescribed,
in connection with --
(iii) the business of an employer; or
(iv) the business of a self-employed person.
(3) The relevant person must --
10 (a) forthwith; or
(b) as otherwise provided by the regulations,
notify the Commissioner in the prescribed form of the
injury or disease giving such particulars as may be
prescribed.
15 (4) The relevant person is the employer concerned
where --
(a) subsection (2)(a) applies; or
(b) the person incurs the injury in connection with
the business of an employer.
20 (5) The relevant person is the self-employed person
concerned where the person incurs the injury in
connection with the business of a self-employed
person.
23J. Breaches of section 23I
25 (1) If an employer or self-employed person contravenes
section 23I(3), the employer or self-employed person
commits an offence.
(2) In proceedings for an offence under subsection (1)
against a person who is taken by section 23D(2) to be
30 an employer it is a defence if the person proves that
subsection (4) applies.
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Part 2 Amendments relating to general workplace duties
s. 8
(3) In proceedings against a person for an offence under
subsection (1) that relates to an injury mentioned in
section 23I(2)(b) it is a defence if the person proves
that subsection (4) applies.
5 (4) This subsection applies if the person did not know, and
could not reasonably be expected to have known, of the
injury or disease concerned.
23K. Duty to inform employee who reports a hazard or
injury
10 (1) This section applies where an employer receives from
an employee a report of a kind described in
section 20(2)(d).
(2) The employer must, within a reasonable time after
receiving the report --
15 (a) investigate the matter that has been reported
and determine the action, if any, that the
employer intends to take in respect of the
matter; and
(b) notify the employee of the determination so
20 made.
(3) If an employer contravenes subsection (2), the
employer commits an offence.
23L. Notification of hazard to person having control
of workplace
25 (1) In this section --
"workplace" includes the means of access to and
egress from the workplace.
(2) If --
(a) the employer of any employee; or
30 (b) a self-employed person carrying out work,
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Amendments relating to general workplace duties Part 2
s. 9
at a workplace becomes of the opinion that --
(c) a situation exists at the workplace that could
constitute a hazard to any person;
(d) the hazard is one that a person having control of
5 the relevant part of the workplace (the
"responsible person") has a duty to remedy
under section 22; and
(e) the situation has not come to the attention of
that person,
10 the employer or self-employed person must, so far as it
is reasonably practicable to do so, give notice of the
situation to the responsible person.
(3) A notice under subsection (2) must be given as soon as
is reasonably practicable after the employer or
15 self-employed person becomes of the opinion
mentioned in that subsection.
(4) An employer or self-employed person that fails to
comply with subsection (2) commits an offence.
Division 6 -- Resolution of workplace issues, and
20 refusal to work on grounds of risk
".
9. Section 41A inserted
After the heading to Part V the following section is inserted --
"
25 41A. Extended meaning of "employer" and "employee"
In this Part --
"employer" and "employee" include a person taken to
be an employer and an employee respectively by
operation of section 23D, 23E or 23F.
30 ".
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Part 2 Amendments relating to general workplace duties
s. 10
10. Section 43 amended
After section 43(1) the following subsection is inserted --
"
(1a) In subsection (1) --
5 "workplace" includes residential premises that an
employer is or was under a duty to maintain by
virtue of section 23G(2).
".
11. Section 47A inserted
10 After the heading to Part VI the following section is inserted --
"
47A. Extended meaning of "employer" and "employee"
In this Part --
"employer" and "employee" include a person taken to
15 be an employer and an employee respectively by
operation of section 23D, 23E or 23F.
".
12. Section 49 amended
(1) Section 49(2) is amended by inserting after "prohibition
20 notice" --
"
, other than in respect of an activity as defined in
subsection (7),
".
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Amendments relating to general workplace duties Part 2
s. 13
(2) After section 49(6) the following subsection is inserted --
"
(7) The application of this section extends to residential
premises that are being or may be occupied by an
5 employee as mentioned in section 23G(2), and for that
purpose --
(a) in this section --
(i) "workplace" includes such premises;
and
10 (ii) references to imminent and serious
injury to, or imminent and serious harm
to the health of, a person are to be read
as applying only to an employee;
and
15 (b) in this section and section 50 "activity"
includes the occupation of such premises.
".
13. Schedule amended
The Schedule is amended in item 24A by deleting "19(3)" and
20 inserting instead --
" 23I ".
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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Part 3 Amendments relating to offences and penalties
s. 14
Part 3 -- Amendments relating to offences
and penalties
14. Section 3 amended
Section 3(3) is amended by deleting "19(7), 20(5), 21(3), 22(5),
5 23(5) and 23A(3)" and inserting instead --
"
18A, 19A(2), 20A(2), 21A(2), 21C(2), 22A(2), 23AA(2),
23B(2) and 23H(2)
".
10 15. Sections 3A and 3B inserted
After section 3 the following sections are inserted --
"
3A. 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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Amendments relating to offences and penalties Part 3
s. 15
(ii) in the case of a body corporate --
(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 body corporate --
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 body corporate --
(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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(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 body corporate --
10 (i) for a first offence, to a fine of $500 000;
and
(ii) for a subsequent offence, to a fine of
$625 000.
3B. Meaning of "first offence" and "subsequent
15 offence"
(1) In this section --
"relevant day" means the day on which section 15 of
the Occupational Safety and Health Legislation
Amendment and Repeal Act 2004 comes into
20 operation.
(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
25 convicted of any offence against this Act
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
30 convicted of one or more offences against this
Act committed on or after the relevant day.
".
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16. Part III Division 1 inserted
After the heading to Part III the following Division is
inserted --
"
5 Division 1 -- Preliminary
18A. Meaning of gross negligence in relation to certain
breaches of this Part
(1) This section applies to a contravention of section 19(1),
20(1) or (3), 21(1) or (2), 21B(2), 22(1), 23(1), (2), (3)
10 or (3a), 23A or 23G(2).
(2) A contravention of a provision mentioned in
subsection (1) is committed in circumstances of
gross negligence if --
(a) the offender --
15 (i) knew that the contravention would be
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
20 likelihood;
and
(b) the contravention did in fact cause the death of,
or serious harm to, such a person.
".
25 17. Section 19 amended
Section 19(6), (7), (8) and (9) are repealed.
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s. 18
18. Section 19A inserted
After section 19 the following section is inserted --
"
19A. Breaches of section 19(1)
5 (1) If an employer contravenes section 19(1) in
circumstances of gross negligence, the employer
commits an offence and is liable to a level 4 penalty.
(2) If --
(a) an employer --
10 (i) contravenes section 19(1); and
(ii) by the contravention causes the death
of, or serious harm to, an employee;
and
(b) subsection (1) does not apply,
15 the employer commits an offence and is liable to a
level 3 penalty.
(3) If --
(a) an employer contravenes section 19(1); and
(b) neither subsection (1) nor subsection (2)
20 applies,
the employer commits an offence and is liable to a
level 2 penalty.
(4) An employer charged with an offence under --
(a) subsection (1) may, instead of being convicted
25 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).
30 ".
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19. Section 20 amended
Section 20(4), (5) and (6) are repealed.
20. Section 20A inserted
After section 20 the following section is inserted --
5 "
20A. Breaches of section 20(1) or (3)
(1) If an employee contravenes section 20(1) or (3) in
circumstances of gross negligence, the employee
commits an offence and is liable --
10 (a) for a first offence, to a fine of $25 000; and
(b) for a subsequent offence, to a fine of $31 250.
(2) If --
(a) an employee --
(i) contravenes section 20(1) or (3); and
15 (ii) by the contravention causes the death
of, or serious harm to, a person;
and
(b) subsection (1) does not apply,
the employee commits an offence and is liable --
20 (c) for a first offence, to a fine of $20 000; and
(d) for a subsequent offence, to a fine of $25 000.
(3) If --
(a) an employee contravenes section 20(1) or (3);
and
25 (b) neither subsection (1) nor subsection (2)
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.
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(4) An employee 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).
".
21. Section 21 amended
10 Section 21(2), (3) and (4) are repealed.
22. Section 21A inserted
After section 21 the following section is inserted --
"
21A. Breaches of section 21
15 (1) If an employer or a self-employed person contravenes
section 21(1) or (2) in circumstances of gross
negligence, the employer or a self-employed person
commits an offence and is liable to a level 4 penalty.
(2) If --
20 (a) an employer or self-employed person --
(i) contravenes section 21(1) or (2); and
(ii) by the contravention causes the death
of, or serious harm to, a person;
and
25 (b) subsection (1) does not apply,
the employer or self-employed person commits an
offence and is liable to a level 3 penalty.
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(3) If --
(a) an employer or self-employed person
contravenes section 21(1) or (2); and
(b) neither subsection (1) nor subsection (2)
5 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
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).
".
23. Section 22 amended
Section 22(4), (5) and (6) are repealed.
24. Section 22A inserted
20 After section 22 the following section is inserted --
"
22A. Breaches of section 22(1)
(1) If a person contravenes section 22(1) in circumstances
of gross negligence, the person commits an offence and
25 is liable to a level 4 penalty.
(2) If --
(a) a person --
(i) contravenes section 22(1); and
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(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
5 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
10 penalty.
(3) If --
(a) a person contravenes section 22(1); and
(b) neither subsection (1) nor subsection (2)
applies,
15 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
20 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).
".
25 25. Section 23 amended
Section 23(4), (5) and (6) are repealed.
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Amendments relating to offences and penalties Part 3
s. 26
26. Section 23AA inserted
After section 23 the following section is inserted --
"
23AA. Breaches of section 23
5 (1) If a person contravenes section 23(1), (2), (3) or (3a) 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 23(1), (2), (3)
or (3a); and
(ii) by the contravention causes the death
of, or serious harm to, a person to whom
a duty is owed under that subsection;
15 and
(b) subsection (1) does not apply,
the person commits an offence and is liable to a level 3
penalty.
(3) If --
20 (a) a person contravenes section 23(1), (2), (3)
or (3a); and
(b) neither subsection (1) nor subsection (2)
applies,
the person commits an offence and is liable to a level 2
25 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
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 27. Section 23A amended
Section 23A(2), (3) and (4) are repealed.
28. Section 23B inserted
After section 23A the following section is inserted --
"
10 23B. Breaches of section 23A
(1) If a person contravenes section 23A 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 23A; and
(ii) by the contravention causes the death
of, or serious harm to, a person;
and
20 (b) subsection (1) does not apply,
the person commits an offence and is liable to a level 3
penalty.
(3) If --
(a) a person contravenes section 23A; and
25 (b) neither subsection (1) nor subsection (2)
applies,
the person commits an offence and is liable to a level 2
penalty.
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(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
5 (b) subsection (2) may, instead of being convicted
of that offence, be convicted of an offence
under subsection (3).
".
29. Section 23B repealed
10 Section 23B is repealed.
30. Part VII Division 1 heading inserted
After the heading to Part VII the following heading is
inserted --
"
15 Division 1 -- General provisions
".
31. Section 54 replaced
Section 54 is repealed and the following section is inserted
instead --
20 "
54. General penalty
If a person commits an offence against this Act for
which a penalty is not otherwise provided, the person is
liable to a level one penalty.
25 ".
32. Section 54AA repealed
Section 54AA is repealed.
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33. Section 54A amended
Section 54A(2) is amended by deleting "and is liable to a fine
not exceeding $200 where the offence is committed by a person
as an employee and $1 000 in any other case for every day on
5 which the offence is so continued" and inserting instead --
"
and is liable to a fine not exceeding --
(a) $200, where the offence is committed by a
person as an employee;
10 (b) $1 000, where the offence is committed by an
individual and paragraph (a) does not apply;
and
(c) $2 000, where the offence is committed by a
body corporate,
15 for every day on which the offence is so continued
".
34. Section 55 amended
(1) After section 55(1) the following subsections are inserted --
"
20 (1a) Despite subsection (1), if a body corporate is guilty of
an offence under section 19A(1), 21A(1), 21C(1),
22A(1), 23AA(1), 23B(1) or 23H(1) the following
provisions apply --
(a) a person referred to in subsection (1) is guilty
25 of that offence if it is proved that --
(i) the offence was attributable to any
neglect on the part of the person; or
(ii) the person consented to or connived in
the acts or omissions to which
30 section 18A(2)(a)(ii) applied that were
proved against the body corporate,
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s. 35
in circumstances where the person --
(iii) knew that the contravention would be
likely to cause the death of, or serious
harm to, a person to whom a duty was
5 owed; but
(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, a person
10 referred to in subsection (1) is guilty of an
offence under section 19A(2), 21A(2), 21C(2),
22A(2), 23AA(2), 23B(2) or 23H(2), as the
case may require, if it is proved that the offence
of the body corporate --
15 (i) occurred with the consent or connivance
of the person; or
(ii) was attributable to any neglect on the
part of the person.
(1b) A person convicted of an offence by virtue of
20 subsection (1) or (1a) is liable to the penalty to which
an individual who is convicted of that offence is liable.
".
(2) Section 55(2) is amended by deleting "subsection (1)" and
inserting instead --
25 " subsections (1) and (1a) ".
35. Section 55A inserted
After section 55 the following section is inserted --
"
55A. No double jeopardy
30 A person is not liable to be punished twice under this
Act in respect of any act or omission.
".
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36. Part VII Divisions 2 and 3 inserted
After section 55A the following Divisions are inserted --
"
Division 2 -- Criminal proceedings against the Crown
5 55B. Crown may be prosecuted
The Crown in any capacity may, in accordance with
this Division, be prosecuted for an offence against this
Act.
55C. Prosecution against body corporate
10 (1) Where the act or omission constituting the offence is
alleged against a body corporate that is an agent of the
Crown, the prosecution proceedings are to be taken
against the body corporate.
(2) Subsection (1) includes a case where --
15 (a) a body corporate is the successor in law, as
defined in section 55F(1), of an agency or
department; or
(b) a body corporate is determined under
section 55F(3).
20 55D. Prosecution in other cases
(1) Where --
(a) the act or omission constituting the offence is
alleged against an agency or department that is
an agent of the Crown (the "responsible
25 agency"); and
(b) section 55C does not apply,
the prosecution proceedings are to be taken against the
Crown.
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(2) For the purposes of subsection (1) the WA Police is to
be treated as an agency of the Crown.
(3) Proceedings referred to in subsection (1) may be
brought against the Crown under the title "State of
5 Western Australia".
55E. Provisions applicable to responsible agency
(1) In this section --
"chief executive" means the person who is for the time
being responsible for the day to day administration
10 of a responsible agency;
"prosecution proceedings" means proceedings
referred to in section 55D(1).
(2) For the purposes of prosecution proceedings --
(a) the responsible agency --
15 (i) is to be specified in the charge for the
offence;
(ii) is entitled to act for the Crown in the
proceedings; and
(iii) subject to any rules of court, has the
20 procedural rights and obligations of the
Crown as the defendant in the
proceedings;
and
(b) the complainant may during the proceedings,
25 with the leave of the court, substitute another
responsible agency for the agency in the
proceedings.
(3) In prosecution proceedings a person authorised by the
chief executive of the responsible agency concerned
30 may act on behalf of the agency, and it is not necessary
for proof to be given of the authority of the person to
do so.
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(4) It is sufficient service of a document required to be
served on a responsible agency for the purposes of
prosecution proceedings if the document --
(a) is delivered to a person who is or appears to be
5 the chief executive of the responsible agency,
or a person acting as such, at a place of
business of the responsible agency; or
(b) is sent by pre-paid letter addressed and posted
to the responsible agency at its principal place
10 of business in the State.
55F. Proceedings where agency has ceased to exist
(1) In this section --
"successor in law", in relation to an agency or
department, means --
15 (a) the sole successor; or
(b) if there is more than one successor, the one
that has the relevant functions formerly
vested in the agency or department.
(2) If an agency or department referred to in
20 section 55D(1)(a) --
(a) has ceased to exist; but
(b) has a successor in law to which section 55C(2)
does not apply,
the successor in law is the responsible agency for the
25 purposes of section 55D(1).
(3) If an agency or department referred to in
section 55D(1)(a) --
(a) has ceased to exist; and
(b) either --
30 (i) it has no apparent successor in law; or
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s. 36
(ii) there is doubt as to which agency or
department has the relevant functions,
the responsible agency for the purposes of that section
is such agency of the Crown as the Minister
5 determines.
55G. Penalties in proceedings against the Crown
(1) In subsection (3)(b) --
"successor in law", in relation to an agency or
department, means --
10 (a) the successor in law as defined in
section 55F(1); or
(b) the agency of the Crown determined under
section 55F(3).
(2) The penalty that may be imposed on the Crown if it is
15 convicted of an offence against this Act in proceedings
referred to in section 55D(1) is the penalty applicable
to a body corporate.
(3) In proceedings referred to in section 55D(1), a higher
penalty may be imposed for an offence involving a
20 responsible agency on the ground that it is a subsequent
offence, only if the acts or omissions constituting the
previous offence or offences were those of --
(a) the same responsible agency; or
(b) a responsible agency of which it is the
25 successor in law.
(4) A penalty imposed in proceedings referred to in
section 55D(1) cannot be enforced under the Fines,
Penalties and Infringement Notices Enforcement
Act 1994.
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Division 3 -- Undertaking by offender in lieu of
payment of fine
55H. Terms used in this Division
In this Division --
5 "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 51C(1)(b);
"relevant offence" means an offence against --
10 (a) section 24(4), 30(7), 35(4), 38(2), 39(3),
45(5), 47(1), 48(4), (5) or (6) or 49(5) or (6);
or
(b) the regulations.
55I. Court may allow offender to make election
15 (1) Where --
(a) a person (the "offender") is convicted of one
or more relevant offences; and
(b) the court has fined the offender,
the court may, subject to subsection (2), make an order
20 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 Commissioner under section 55M not
later than a day specified by the court.
25 (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
in physical harm to any person;
(b) the offender wishes an order to be made and the
30 complainant does not oppose that being done;
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(c) the offender and the Commissioner are likely to
reach agreement on the provisions of the
proposed undertaking within the time that the
court proposes to specify under
5 subsection (1)(d); and
(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.
10 (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 complainant time to consider whether to
15 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.
55J. Making of election
20 (1) An election is made, pursuant to an order under
section 55I(1), by the offender --
(a) lodging an election in writing with the clerk of
the court in which the order was made; and
(b) serving a copy of the election on the
25 Commissioner,
not later than 28 days after the day on which the order
was made.
(2) If --
(a) an order is made under section 55I(1); but
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Part 3 Amendments relating to offences and penalties
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(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
5 fine or fines.
55K. Failure to enter into undertaking
An election under section 55J to enter into an
undertaking lapses if the undertaking is for any reason
not entered into before the time allowed under
10 section 55I(1)(d).
55L. 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 55I(1) is suspended by the making of the order.
15 (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
which the election is made.
20 (3) If the offender is taken by section 55J(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
section 55J(2).
25 (4) If --
(a) the offender elects to enter into an undertaking;
but
(b) the election lapses under section 55K,
for the purposes of the section referred to in
30 subsection (2) the fine or fines are taken to have been
imposed on the day specified under section 55I(1)(d).
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55M. Nature and terms of undertaking
(1) An undertaking for the purposes of this Division is a
document by which the offender gives undertakings to
the Commissioner that the offender will --
5 (a) take the action specified in the undertaking;
(b) bear the costs and expenses of doing so; and
(c) complete all of the required action not later
than a day specified in the document.
(2) The action required to be taken by the offender is to
10 come within the provisions described in section 55N(2)
or (3).
(3) The provisions of the undertaking are to be such as are
agreed between the Commissioner and the offender.
(4) The Commissioner is to furnish a copy of an
15 undertaking, and of any amendment made under
section 55Q, to the court concerned.
55N. What may be included in undertaking
(1) In this section --
"specified" means specified in the undertaking.
20 (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
occupational safety and health --
(i) at a specified workplace; or
25 (ii) in connection with the business or
operations of the offender;
(b) to take specified steps to publicise details of --
(i) any specified offence;
(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 Commissioner may require that an undertaking
contain any incidental or supplementary provision that
the Commissioner considers necessary or expedient to
achieve its purpose, including provision for --
20 (a) the reporting of matters; and
(b) providing proof of compliance,
to the Commissioner.
(4) An undertaking cannot provide for the offender to take
any action --
25 (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.
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55O. 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.
55P. 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 55M(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.
55Q. Amendment of undertaking
An undertaking may be amended by an instrument in
writing signed by the offender and the Commissioner.
25 55R. Undertaking may be published
The Commissioner may cause an undertaking to be
published in any manner the Commissioner thinks fit
including --
(a) by publication in a newspaper; or
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(b) by posting a copy of the undertaking on an
internet website maintained by the
Commissioner.
".
5 37. Section 60 amended
Section 60(6) is repealed and the following subsection is
inserted instead --
"
(6) Regulations made under this Act may provide that
10 contravention of a regulation constitutes an offence and
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
15 (ii) for a subsequent offence, a fine of
$6 250;
(b) in the case of an offence committed by an
individual where paragraph (a) does not
apply --
20 (i) for a first offence, a fine of $25 000; and
(ii) for a subsequent offence, a fine of
$31 250;
or
(c) in the case of an offence committed by a body
25 corporate --
(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
30 not exceeding --
(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 body corporate,
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.
".
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Part 4 -- Amendments relating to safety and health
representatives and committees
38. Section 3 amended
Section 3(1) is amended as follows:
5 (a) by inserting after the definition of "prohibition
notice" --
"
"provisional improvement notice" means a
provisional improvement notice issued under
10 Part VI Division 2;
";
(b) in the definition of "safety and health committee" by
inserting after "Part IV" --
" Division 2 ";
15 (c) in the definition of "safety and health representative" by
inserting after "Part IV" --
" Division 1 ".
39. Part IV Division 1 heading inserted
After the heading to Part IV the following heading is inserted --
20 "
Division 1 -- Safety and health representatives
".
40. Section 29 amended
(1) Section 29 is amended by inserting before "An employee" the
25 subsection designation "(1)".
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(2) At the end of section 29 the following subsection is inserted --
"
(2) The fact that a notice under subsection (1) requires an
election for the workplace at which the employee
5 works does not prevent --
(a) the establishment of a scheme under
section 30A that extends beyond that
workplace; or
(b) the making of a determination under
10 section 30(4a) for that purpose.
".
41. Section 30 amended
(1) Section 30(4) is amended by deleting paragraphs (aa) and (b)
and "and" after them and inserting instead --
15 "
(b) the matters, areas or kinds of work in respect of
which each safety and health representative is
to exercise functions, so far as those things are
not to be dealt with by provision of a kind
20 mentioned in section 30B(2) or (3);
(ba) how a vacancy in an office of safety and health
representative that occurs in the circumstances
mentioned in section 32(2)(b), (ba), (c) or (d) is
to be dealt with; and
25 ".
(2) After section 30(4) the following subsection is inserted --
"
(4a) The employer and the delegate or delegates consulting
under subsection (3a) may determine that provision of
30 a kind mentioned in section 30B(2) or (3) should be
made.
".
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(3) Section 30(5) is repealed and the following subsection is
inserted instead --
"
(5) For the purposes of subsection (4)(c), but without
5 limiting the generality of that provision, the employer
and the delegate or delegates consulting under
subsection (3a) may determine that --
(a) the Electoral Commissioner appointed under
the Electoral Act 1907; or
10 (b) an organisation registered under Part II
Division 4 of the Industrial Relations Act 1979,
is to be requested to conduct an election.
".
42. Sections 30A, 30B and 30C inserted
15 After section 30 the following sections are inserted --
"
30A. Election scheme may be established
(1) In this section --
"consulting parties" means the employer and the
20 delegate or delegates consulting under
section 30(3a) on matters relating to the election of
a safety and health representative for a workplace,
and includes any delegates or delegates appointed
under section 30C.
25 (2) If the consulting parties in respect of a workplace have
made a determination referred to in section 30(4a), a
written agreement may be made between the consulting
parties establishing a scheme under this section.
(3) If the consulting parties cannot reach agreement on any
30 matter for the purposes of subsection (2) they may refer
the matter to the Commissioner, who is to attempt to
resolve it to the satisfaction of the consulting parties.
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(4) If the Commissioner is unable to resolve the matter, the
Commissioner is to refer it to the Tribunal for
determination.
(5) If subsection (4) applies, references in this Division to
5 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
subsection (4).
10 30B. What may be included in a scheme
(1) In this section --
"contractor" and "principal" have the meanings
given to those terms in section 23D(1).
(2) A scheme under section 30A (a "scheme") may
15 include provision for the election of one or more safety
and health representatives for --
(a) one or more workplaces in addition to the
workplace referred to in section 30A(2); or
(b) any group of employees of the employer
20 concerned that constitutes a distinct unit of the
employer's workforce,
or may make provision for both of those matters, as the
case may require.
(3) A scheme may despite any provision of this Part --
25 (a) provide for --
(i) a contractor; and
(ii) any person employed by a contractor,
to be treated, for the purposes of this Part, as
employees of the principal that engages the
30 contractor; and
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(b) provide for the principal that engages a
contractor to be treated, for the purposes of this
Part, as the employer of --
(i) the contractor; and
5 (ii) any person employed by the contractor.
(4) A scheme may make provision for --
(a) the scheme to apply to any subsequent election
of a safety and health representative; and
(b) the manner in which an amendment may be
10 made to the scheme after it has been
determined.
30C. Appointment of further delegates may be required
(1) In this section --
"additional employees" means employees who have
15 not been invited to appoint a delegate or delegates
under section 30(1) or (2) because that subsection
has not become applicable to the workplace at
which they work.
(2) A scheme under section 30A cannot make provision of
20 the kind mentioned in section 30B(2) that will affect
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
25 workplace to appoint a delegate or delegates in
accordance with subsection (4).
(4) Additional employees who work at a workplace may,
upon being invited under subsection (3) to do so,
appoint a delegate or delegates from amongst their
30 number to represent them for the purposes of making
an agreement under section 30A(2).
".
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43. Section 31 amended
(1) Section 31(1) is repealed and the following subsection is
inserted instead --
"
5 (1) In this section --
"election" means an election required for the purpose
of electing a safety and health representative
following --
(a) the giving of a notice under section 29 in
10 relation to a workplace; or
(b) a decision of an employer under
section 30(2);
"relevant employee", in relation to an election,
means --
15 (a) an employee who works at the workplace to
which the election relates; or
(b) if a scheme has been established under
section 30A for the election, an employee
who --
20 (i) works at a workplace; or
(ii) is a member of a group of employees,
to which the scheme applies.
".
(2) Section 31(6) is repealed and the following subsections are
25 inserted instead --
"
(6) Subject to this section, an election shall be conducted
and safety and health representatives shall be elected in
accordance with --
30 (a) any determination under section 30; and
(b) if applicable, a scheme established under
section 30A.
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(6a) If there is any inconsistency between a determination
under section 30 and a scheme established under
section 30A, the latter prevails.
".
5 (3) Section 31(7) and (8) are repealed and the following subsections
are inserted instead --
"
(7) An election shall be by secret ballot.
(8) Every relevant employee is entitled to vote at an
10 election.
(8a) Only a relevant employee is eligible to be elected as a
safety and health representative at an election.
".
(4) Section 31(9) is amended by inserting after "If " --
15 "
, after the relevant steps provided for by or under this
Division have been taken,
".
(5) Section 31(10) is amended by inserting after "notify the" --
20 " Commissioner and the ".
(6) Section 31(10a) and (10b) are repealed.
44. Saving provision for existing safety and health
representatives
The amendments made by section 43 do not affect the
25 continuation in office of any safety and health representative
who held office under Part IV of the Occupational Safety and
Health Act 1984 immediately before the commencement of that
section.
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45. Section 32 amended
Section 32(2)(b) is deleted and the following paragraphs are
inserted instead --
"
5 (b) the person ceases to be an employee who works
at a workplace for which the person was
elected;
(ba) if the person was elected for a group of
employees pursuant to a scheme under
10 section 30A, the person ceases to be an
employee who belongs to that group of
employees;
".
46. Section 33 amended
15 After section 33(3) the following subsection is inserted --
"
(4) If a scheme has been established under section 30A,
the references in this section to "the workplace",
"that workplace" and "a workplace" include --
20 (a) if the scheme applies to more than one
workplace, each workplace to which the
scheme applies; and
(b) if under the scheme a safety and health
representative is elected for a group of
25 employees, each workplace or part of a
workplace at which any member of the group
works.
".
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47. Section 34 amended
(1) Section 34(2) is amended by deleting paragraph (b) and "or"
after it and inserting instead --
"
5 (b) a relevant employee; or
".
(2) After section 34(4) the following subsection is inserted --
"
(5) In subsection (2)(b) --
10 "relevant employee" means --
(a) an employee who works at the workplace
concerned;
(b) if the safety and health representative was
elected for more than one workplace
15 pursuant to a scheme established under
section 30A, an employee who works at any
such workplace; or
(c) if under a scheme referred to in
paragraph (b) the safety and health
20 representative was elected for a group of
employees, an employee who is a member of
the group.
".
48. Section 35 amended
25 (1) Section 35(1)(d) and (e) are deleted and the following paragraph
is inserted instead --
"
(d) ensure that a safety and health representative
receives any entitlement that becomes due to
30 him or her under subsection (1b) or (3);
".
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(2) Section 35(1)(f) is amended by deleting "part of the".
(3) After section 35(1) the following subsections are inserted --
"
(1a) If, pursuant to a scheme under section 30A, a safety
5 and health representative has been elected for a group
of employees, the references in subsection (1) to "a
workplace" and "the workplace" include any
workplace at which any member of the group works.
(1b) Where a safety and health representative attends a
10 course of training --
(a) for which, under subsection (3), the
representative is entitled to take time off work;
and
(b) that is prescribed for the purposes of this
15 paragraph,
the employer is liable to pay, to the extent that is
prescribed --
(c) the tuition fee for the course; and
(d) other costs incurred by the representative in
20 connection with attendance at the course.
".
(4) Section 35(3) 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
25 inserting instead --
"
entitlements of a safety and health representative
";
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(b) by deleting "time a safety and health representative is to
be permitted to take off work, with pay," and inserting
instead --
" entitlements ".
5 (5) After section 35(3) the following subsection is inserted --
"
(3a) In subsection (3) --
"entitlements" means --
(a) the time that a safety and health
10 representative is to be permitted to take off
work with pay; and
(b) payments to which a safety and health
representative is entitled for attendance at a
course of training in his or her own time.
15 ".
49. Sections 35A, 35B, 35C and 35D inserted
After section 35 the following sections are inserted --
"
35A. Discrimination against safety and health
20 representative in relation to employment
(1) An employer or a prospective employer 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
25 (b) is performing or has performed any function as
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;
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(b) demotes the person or fails to give the person a
promotion that the person could reasonably
have expected;
(c) detrimentally alters the person's employment
5 position; or
(d) detrimentally alters the person's pay or other
terms and conditions of employment.
(3) For the purposes of subsection (1) a prospective
employer causes disadvantage to a person if the
10 prospective employer refuses to employ the person.
(4) An employer or prospective employer that contravenes
subsection (1) commits an offence.
35B. Discrimination against safety and health
representative in relation to contract for services
15 (1) In this section --
"contractor" and "principal" have the meanings
given to those terms in section 23D(1).
(2) Where a scheme under section 30A makes provision of
the kind described in section 30B(3), a principal must
20 not --
(a) terminate the engagement of a contractor; or
(b) subject a contractor to any other detriment,
for the dominant or substantial reason that the
contractor or a person employed by the contractor --
25 (c) is or was a safety and health representative; or
(d) is performing or has performed any function as
a safety and health representative.
(3) A principal that contravenes subsection (2) commits an
offence.
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35C. Claim may be referred to the Tribunal
(1) A person may --
(a) refer to the Tribunal --
(i) a claim that the person's employer or a
5 prospective employer has caused
disadvantage to the person in
contravention of section 35A; or
(ii) in the case of a contractor referred to in
section 35B, a claim that the principal
10 has contravened that section;
and
(b) request the Tribunal to make one or more of the
orders provided for by section 35D.
(2) Subsection (1) applies whether or not --
15 (a) the employer or prospective employer has been
convicted of an offence under section 35A(4);
or
(b) the principal has been convicted of an offence
under section 35B(3).
20 (3) A referral under subsection (1) may also be made on a
person's behalf by an agent or legal practitioner
referred to in section 31 of the Industrial Relations
Act 1979.
(4) Section 80E(1) of the Industrial Relations Act 1979
25 does not apply to a claim under subsection (1) by a
Government officer within the meaning of that section.
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35D. Remedies that may be granted
(1) If, on the hearing of a claim under section 35C(1)(a)(i),
the Tribunal is satisfied that an employer or a
prospective employer has contravened section 35A, the
5 Tribunal may --
(a) in the case of an employer, order the
employer --
(i) to reinstate the claimant if the claimant
was dismissed from employment;
10 (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
(iii) both to reinstate the claimant and to pay
15 the claimant the sum of money referred
to in subparagraph (ii),
as the Tribunal thinks fit; or
(b) in the case of a prospective employer, order that
person to pay the claimant such sum of money
20 as the Tribunal thinks fit.
(2) If, on the hearing of a claim under
section 35C(1)(a)(ii), the Tribunal is satisfied that a
principal has contravened section 35B, the Tribunal
may order the principal to pay the claimant such sum
25 of money as the Tribunal thinks fit.
(3) In determining a claim under section 35C(1)(a)(i) the
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
30 which section 23A of that Act applies.
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(4) In the determination of the amount of compensation for
any loss of employment, loss of earnings or
detriment --
(a) the Tribunal is to have regard to any redress the
5 claimant has obtained under another enactment;
and
(b) the claimant is not entitled to compensation
both under this section and otherwise for the
same loss of employment, loss of earnings or
10 detriment.
".
50. Sections 36, 37, 38 and 39 repealed and replaced by a
Division heading and sections 36 to 39G
Sections 36, 37, 38 and 39 are repealed and the following
15 heading and sections are inserted instead --
"
Division 2 -- Safety and health committees
36. Interpretation
(1) In this Division --
20 "allowed period" means --
(a) 3 months; or
(b) such longer period as the Commissioner may
allow on application by a consultation party;
"consultation party" means a person that comes
25 within section 39C(2)(a), (b) or (c);
"prescribed requirements" means --
(a) the provisions of --
(i) an agreement under section 39C(2);
and
30 (ii) section 39C(3);
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(b) the terms of a determination of --
(i) the Commissioner, under
section 39D; or
(ii) the Tribunal, under section 39G,
5 in respect of the workplace concerned or, if
any agreement under section 39E applies,
any workplace concerned; and
(c) any requirement of the regulations.
(2) In this Division references to a "safety and health
10 representative for the workplace" or a "safety and
health representative for a workplace" include a
safety and health representative elected for a group of
employees pursuant to a scheme under section 30A if
any member of the group works at the workplace
15 concerned.
37. Employees to appoint representatives
Whenever required for the purpose of making an
agreement under section 39C(2) or 39E(1) in respect of
a workplace, the employees who work at the workplace
20 are to appoint, from amongst their number, one or more
employees --
(a) to represent them for that purpose; or
(b) as may be required, to replace any employee
previously appointed under this section.
25 38. Obligation of employer to establish a safety and
health committee
(1) An employer must, in accordance with the prescribed
requirements, establish a safety and health committee
for a workplace within the allowed period after --
30 (a) the coming into operation of a regulation
requiring the employer to do so;
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(b) service on the employer of a notice by the
Commissioner requiring the employer to do so;
or
(c) being requested under section 39(1) to do so,
5 unless, in the case mentioned in paragraph (c), the
Commissioner has decided under section 39A that a
safety and health committee is not required to be
established for the workplace concerned.
(2) If an employer contravenes subsection (1), the employer
10 commits an offence.
39. Request for establishment of safety and health
committee
(1) An employee who works at a workplace may request
the employer to establish a safety and health committee
15 for the workplace.
(2) If a request is made under subsection (1), the employer
must within 21 days after the request is received
either --
(a) notify --
20 (i) the employee who made the request;
and
(ii) any safety and health representative for
the workplace,
that the employer agrees to the request; or
25 (b) under section 39A, refer to the Commissioner
the question whether a safety and health
committee should be established for the
workplace.
(3) If an employer contravenes subsection (2), the employer
30 commits an offence.
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39A. Referral of question to Commissioner
(1) If --
(a) a request has been made to an employer under
section 39(1) in respect of a workplace; and
5 (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 workplace,
the employer may refer to the Commissioner the
10 question of whether a safety and health committee
should be so established.
(2) The employer must give notice of a referral under this
section to --
(a) the employee concerned; and
15 (b) any safety and health representative for the
workplace.
(3) The Commissioner is to --
(a) decide a question referred to the Commissioner
under subsection (1); and
20 (b) notify the employer and the employee
concerned of the decision.
39B. Employer may establish a safety and health
committee
An employer may, on the employer's own initiative
25 and in accordance with the prescribed requirements,
establish a safety and health committee for a workplace
if --
(a) a regulation referred to in section 38(1)(a) has
not come into operation;
30 (b) a notice referred to in section 38(1)(b) has not
been served on the employer; or
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(c) a request has not been made under
section 39(1),
in respect of the workplace.
39C. How safety and health committee to be constituted
5 (1) In this section --
"workplace", where an agreement under section 39E
applies, includes 2 or more workplaces.
(2) Subject to subsection (3), the composition, and the
manner in which persons become members, of a safety
10 and health committee for a workplace are to be
determined by agreement in writing between --
(a) the employer;
(b) any safety and health representative for the
workplace; and
15 (c) the employees appointed under section 37 in
respect of the workplace.
(3) At least one half of the members of a safety and health
committee for a workplace must be persons each of
whom is --
20 (a) a safety and health representative for the
workplace; or
(b) an employee who works at the workplace and
holds office as a member representing other
employees.
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39D. Commissioner may make determination in certain
cases
(1) This section applies if --
(a) a consultation party considers that discussions
5 for the purpose of making an agreement under
section 39C --
(i) cannot commence or continue because
there are no employees appointed under
section 37 in respect of the workplace
10 concerned;
(ii) have not been commenced or continued
in good faith by any party;
(iii) are being unreasonably delayed; or
(iv) have broken down;
15 or
(b) the employer concerned considers that for some
other reason it is unlikely that the employer will
be able to comply with section 38(1) within the
allowed period under that section.
20 (2) The employer or other consultation party may refer to
the Commissioner for determination --
(a) the matters that are required to be settled by
agreement under section 39C; or
(b) any particular matter mentioned in
25 paragraph (a) on which the parties cannot
agree.
(3) On such a referral, the Commissioner is to --
(a) make any necessary determination; and
(b) notify the employer or other party concerned of
30 the determination.
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39E. Functions of committee may cover more than one
workplace
(1) If --
(a) an employer --
5 (i) is under an obligation by operation of
section 38(1); or
(ii) wishes to take action for the purposes of
section 39B,
in respect of more than one workplace of the
10 employer; and
(b) a safety and health committee has not been
established for one or more of those
workplaces,
the parties concerned may agree in writing that one
15 safety and health committee is to be established to
exercise functions in relation to each of the workplaces
to which paragraph (b) applies.
(2) For the purposes of subsection (1) the parties
concerned are --
20 (a) the employer;
(b) any safety and health representative for a
workplace to which subsection (1)(b) applies;
and
(c) the employees appointed under section 37 in
25 respect of that workplace.
(3) An agreement under subsection (1) may provide --
(a) for the establishment of a safety and health
committee to exercise functions in relation to
more than one workplace; and
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(b) for that committee to have subcommittees for
each workplace --
(i) to advise the committee on the exercise
of its functions in relation to that
5 workplace; and
(ii) to exercise some or all of those
functions as the delegate of the
committee in accordance with the terms
of a delegation to it.
10 (4) The composition of any subcommittee referred to in
subsection (3) is to be determined by the parties
referred to in subsection (2).
39F. Amendment of agreement and abolition of
committee
15 (1) In this section --
"relevant parties", in respect of a workplace,
means --
(a) the employer; and
(b) each member for the time being of the safety
20 and health committee for the workplace.
(2) Where --
(a) an agreement has been made under section
39C(2); or
(b) the matters referred to in section 39C(2) are
25 governed by provisions consisting --
(i) wholly of a determination made under
section 39D, whether or not it has been
varied or confirmed under section 39G;
or
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(ii) partly of an agreement under section
39C(2) and partly of a determination
made under section 39D, whether or not
it has been varied or confirmed under
5 section 39G,
the relevant parties may by agreement in writing made
between them --
(c) vary --
(i) the agreement or provisions; or
10 (ii) if applicable, the agreement or
provisions as previously varied under
this subsection; and
(d) make any transitional provision that is
necessary or expedient in respect of the
15 variation.
(3) Where a safety and health committee has been
established for a workplace, the relevant parties may by
agreement in writing --
(a) abolish the committee; and
20 (b) make any transitional provision that is
necessary or expedient in respect of the
abolition.
(4) If the relevant parties cannot agree on the exercise of a
power referred to in subsection (2) or (3), any such
25 party may refer to the Commissioner for determination
any question --
(a) whether the agreement or provisions concerned
should be varied;
(b) as to the manner in which the agreement or
30 provisions should be varied; or
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(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 (5) On such a referral, the Commissioner is to --
(a) make any necessary determination; and
(b) notify the relevant parties of the determination.
39G. Review of Commissioner's decision
(1) Where the Commissioner has made a decision under
10 section 39A(3) in respect of a workplace --
(a) the employer;
(b) a safety and health representative for the
workplace; or
(c) an employee who works at the workplace,
15 may refer the decision to the Tribunal for review.
(2) Where the Commissioner has made a determination
under section 39D(3) in respect of one or more
workplaces --
(a) the employer;
20 (b) any safety and health representative for a
workplace concerned; or
(c) an employee appointed under section 37 in
respect of a workplace concerned,
may refer the determination to the Tribunal for review.
25 (3) Where the Commissioner has made a determination
under section 39F(5) in respect of --
(a) an agreement; or
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(b) a safety and health committee,
a relevant party, within the meaning in that section, in
relation to the workplace concerned may refer the
determination to the Tribunal for review.
5 (4) The Tribunal may confirm, vary or revoke a decision
or determination of the Commissioner referred to it
under this section.
".
51. Savings and transitional provisions for existing safety and
10 health committees
(1) The repeal of section 37 of the Occupational Safety and Health
Act 1984 (the "OSH Act") by section 50 does not affect the
status of a safety and health committee that is in existence under
the OSH Act immediately before that repeal.
15 (2) Any such committee is to be taken, after the commencement of
section 50, to have been established under section 38 or 39B of
the OSH Act inserted by section 50, as the case may be.
(3) If before the commencement of section 50 --
(a) a request was made in respect of a workplace under
20 section 36(1) of the OSH Act repealed by section 50; but
(b) a safety and health committee had not been established
for the workplace under section 37 of the OSH Act so
repealed,
the duty of the employer under section 37 of the OSH Act to
25 establish a safety and health committee for the workplace lapses
on that commencement.
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52. Section 40 amended
(1) At the beginning of section 40 the following subsection is
inserted --
"
5 (1) In this section --
"workplace", where an agreement under section 39E
applies to the establishment of a safety and health
committee, means any workplace in relation to
which the committee may exercise functions.
10 ".
(2) Section 40 is amended by inserting before "The functions" the
subsection designation "(2)".
53. Section 41 amended
(1) Section 41(1) is amended by deleting "subsection (2) and to".
15 (2) Section 41(2) is repealed.
54. Part VI Division 1 heading inserted
After the heading to Part VI the following heading is inserted --
"
Division 1 -- Issue of notices by inspector
20 ".
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55. Part VI Division 2 inserted
After section 51A the following Division is inserted --
"
Division 2 -- Issue of provisional improvement notices
5 by safety and health representative
51AB. Definition
In this Division --
"qualified representative" means a safety and health
representative who has completed a course of
10 training prescribed for the purposes of this
definition.
51AC. Issue of provisional improvement notices
(1) Subsection (2) applies where a qualified
representative --
15 (a) is of the opinion that a person --
(i) is contravening a provision of this Act;
or
(ii) has contravened a provision of this Act
in circumstances that make it likely that
20 the contravention will continue or be
repeated;
and
(b) has undertaken the consultations required by
section 51AD.
25 (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
(b) the matters or activities occasioning the
30 contravention or likely contravention.
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(3) A qualified representative may exercise the power
conferred by subsection (2) only --
(a) in respect of a workplace for which the
qualified representative was elected; or
5 (b) if, pursuant to a scheme under section 30A, the
qualified representative was elected for a group
of employees, in respect of any workplace at
which any member of the group works.
(4) If a provisional improvement notice is issued to an
10 employee, the employee must, as soon as is practicable,
give a copy of the notice to the employee's employer.
51AD. Consultation required before issue
(1) In this section --
"consult" means consult about the matters or activities
15 to which an intended notice will relate.
(2) Before issuing a provisional improvement notice a
qualified representative must --
(a) consult with the person that is to be issued with
the notice; and
20 (b) if there is any other safety and health
representative for the workplace concerned,
consult with another representative for that
workplace so far as it is reasonably practicable
to do so.
25 (3) The reference in subsection (2) to a safety and health
representative includes a safety and health
representative elected for a group of employees
pursuant to a scheme under section 30A if any member
of the group works at the workplace concerned.
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(4) The regulations may make provision requiring a
qualified representative, in specified circumstances, to
consult with a person who holds a prescribed office in
the department before issuing a provisional
5 improvement notice.
51AE. Contents of notice
(1) A provisional improvement notice must --
(a) state that the qualified representative is of the
opinion that the person --
10 (i) is contravening a provision of this Act;
or
(ii) has contravened a provision of this Act
in circumstances that make it likely that
the contravention will continue or be
15 repeated;
(b) state reasonable grounds for the representative
being of that opinion;
(c) specify the provision of this Act in respect of
which the opinion is held;
20 (d) specify the day before which the person is
required to remedy --
(i) the contravention or likely
contravention; or
(ii) the matters or activities occasioning the
25 contravention or likely contravention;
and
(e) contain a brief summary of the right to have the
notice reviewed by an inspector under
section 51AH.
30 (2) The day specified for the purposes of subsection (1)(d)
must be more than 7 days after the day on which the
notice is issued.
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51AF. Provisional notices may include directions
(1) A qualified representative may include in a provisional
improvement notice directions as to the measures to be
taken to remedy --
5 (a) any contravention or likely contravention; or
(b) matters or activities,
to which the notice relates.
(2) Any direction under subsection (1) may --
(a) refer to any code of practice; and
10 (b) offer the person issued with the notice a choice
of ways in which to effect the remedy.
51AG. Failure to comply with notice
(1) A person commits an offence if the person fails to
comply with a provisional improvement notice issued
15 to the person.
(2) Subsection (1) does not apply if the right conferred by
section 51AH(2) is exercised.
51AH. Review of notice by an inspector
(1) In this section --
20 "affected person" means --
(a) the person issued with a provisional
improvement notice; or
(b) in the case of a notice issued to an
employee --
25 (i) the employee; and
(ii) the employer of the employee.
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(2) An affected person may, in writing delivered or sent to
the department (a "review notice"), require that an
inspector review a provisional improvement notice.
(3) A review notice --
5 (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
10 (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
15 improvement notice for the purposes of
section 51AE(1)(d).
(4) The operation of the provisional improvement notice is
suspended by the receipt by the department of a review
notice in accordance with this section.
20 (5) 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 workplace; and
(b) inquire into the circumstances relating to the
25 notice,
and having done so may --
(c) affirm the notice;
(d) affirm the notice with modifications; or
(e) cancel the notice.
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(6) If an inspector affirms a provisional improvement
notice, with or without modifications, the notice as so
affirmed has effect as if it had been issued by the
inspector under section 48.
5 ".
56. Section 56 amended
Section 56(1)(a) and (b) are each amended by deleting "a safety
and health representative or".
57. Schedule amended
10 The Schedule is amended by inserting after item 26C the
following item --
"
26D. The establishment of safety and health committees by
employers.
15 ".
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Part 5 -- Amendments relating to inspectors
58. Section 42 replaced by sections 42, 42A, 42B and 42C
Section 42 is repealed and the following sections are inserted
instead --
5 "
42. Appointment of inspectors
The Commissioner, by instrument in writing, is to
appoint such officers of the department as the
Commissioner considers necessary to be inspectors for
10 the purposes of this Act.
42A. Appointment of restricted inspectors
(1) The Commissioner may, by instrument in writing,
appoint any person employed in the Public Service
under Part 3 of the Public Sector Management
15 Act 1994 to be a restricted inspector for --
(a) the State; or
(b) any specified area of the State,
during the period specified in the instrument.
(2) A person ceases to be a restricted inspector --
20 (a) when the period of the person's appointment
expires; or
(b) if the person's appointment is revoked by the
Commissioner.
(3) A person who ceases to be a restricted inspector must,
25 as soon as practicable, return the certificate provided to
the person under section 42C to the Commissioner or
to any other person authorised by the Commissioner to
receive it.
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42B. Powers of restricted inspector
(1) A restricted inspector has, in respect of --
(a) the State; or
(b) the area of the State for which the restricted
5 inspector is appointed,
such of the functions of an inspector under this Act as
are specified in the instrument of appointment.
(2) The performance of a function by a restricted inspector
may be made subject to any condition or limitation.
10 (3) To the extent provided by the instrument of
appointment, and subject to that instrument, a restricted
inspector is taken to be an inspector appointed under
section 42.
42C. Certificate of appointment
15 (1) Every inspector and restricted inspector is to be
provided with a certificate of appointment signed by
the Commissioner or an officer of the department
authorised in that behalf by the Commissioner.
(2) An inspector or a restricted inspector must produce the
20 certificate to a person if --
(a) the inspector has performed, or is about to
perform, any functions under this Act in
relation to a person; and
(b) the person requests that the certificate be
25 produced.
(3) A certificate purporting to have been provided under
subsection (1) is, without proof of the signature of the
person purporting to have signed it or of the person's
authority to have signed it, evidence in a court --
30 (a) of the appointment to which the certificate
purports to relate; and
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(b) of any other matter specified in the certificate.
".
59. Section 43 amended
(1) After section 43(1)(e) the following paragraph is inserted --
5 "
(ea) provide information to any person for the
purpose of facilitating compliance with this
Act;
".
10 (2) Section 43(1)(k) is deleted and the following paragraph is
inserted instead --
"
(k) in accordance with subsections (1b) and (1c),
interview any person who the inspector has
15 reasonable grounds to believe --
(i) is, or was at any time during the
preceding 3 years --
(I) an employee working at a
workplace; or
20 (II) an employee occupying
residential premises mentioned
in section 39G(2),
in relation to which the inspector is
inquiring;
25 (ii) was at such a workplace or such
residential premises at a time that is
relevant to a matter about which the
inspector is inquiring; or
(iii) may otherwise be able to provide
30 information relevant to a matter about
which the inspector is inquiring;
".
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(3) After subsection (1a) the following subsections are inserted --
"
(1b) An interview referred to in subsection (1)(k) 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 (2) or section 44.
10 (1c) Subsection (1b) 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.
".
60. Section 45 amended
(1) Section 45(1) and (2) are repealed and the following subsections
are inserted instead --
20 "
(1) In this section --
"relevant" --
(a) in relation to an employer, means an
employer whose employees --
25 (i) carry out, in a workplace, work of a
kind; or
(ii) carry out work, or are likely to be, in
an area of a workplace,
that is relevant to any purpose for which an
30 inspector has entered the workplace; and
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(b) in relation to --
(i) a safety and health representative; or
(ii) a safety and health committee,
means a representative or committee that has
5 functions that are relevant to any purpose
referred to in paragraph (a).
(2) On entering a workplace an inspector shall, as soon as
is practicable, take all reasonable steps to notify any
relevant employer of the inspector's presence.
10 (2a) An employer, upon being notified of the presence of an
inspector at a workplace shall, as soon as is practicable,
notify any relevant safety and health representative of
the presence.
".
15 (2) Section 45(3) is amended by deleting "the employer, and any
safety and health representative or safety and health committee
concerned," and inserting instead --
"
any relevant employer and any relevant safety and health
20 representative or safety and health committee
".
(3) Section 45(4) is amended by deleting "the employer and any
safety and health representative concerned" and inserting
instead --
25 "
any relevant employer and any relevant safety and health
representative
".
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61. Section 47 amended
Section 47(2) is repealed and the following subsections are
inserted instead --
"
5 (2) A person is not excused from complying with a
requirement under this Act to --
(a) answer a question;
(b) provide information; or
(c) produce a document,
10 on the ground that to do so might tend to incriminate
the person or make the person liable to a penalty.
(3) However --
(a) an answer given or information provided by a
person when so required; or
15 (b) the fact that a document produced by the person
to comply with the requirement was produced,
is not admissible in evidence against the person in any
civil or criminal proceedings other than proceedings for
perjury or for an offence under this Act arising out of
20 the false or misleading nature of the answer,
information or document.
(4) Subsection (3) does not apply --
(a) to --
(i) information in a document produced in
25 compliance with a requirement under
section 43(1)(i); or
(ii) the fact that such a document was
produced;
or
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(b) to --
(i) an answer given or information
provided; or
(ii) the fact that a document was produced,
5 by or on behalf of a body corporate.
".
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Amendments to the Occupational Safety and Health Act 1984 Division 1
s. 62
Part 6 -- Amendments relating to the establishment of
a tribunal
Division 1 -- Amendments to the Occupational Safety and
Health Act 1984
5 62. Long title amended
The long title is amended by inserting after "Safety and
Health," --
"
to provide for a tribunal for the determination of certain
10 matters and claims,
".
63. Section 3 amended
Section 3(1) is amended by inserting after the definition of
"transferred law" the following definition --
15 "
"Tribunal" has the meaning given to that term in
section 51G(2);
".
64. Section 51A amended
20 Section 51A(6) is repealed.
65. Section 51C amended
(1) Section 51C(1) is amended by deleting paragraph (a) and "and"
after that paragraph.
(2) Section 51C(2), (3) and (4) are repealed.
25 66. Section 51D repealed
Section 51D is repealed.
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67. Part VIB inserted
After section 51E the following Part is inserted --
"
Part VIB -- Occupational Safety and
5 Health Tribunal
51F. Interpretation
In this Part --
"Commission" and "Chief Commissioner" have the
meanings given to those terms in section 7(1) of
10 the Industrial Relations Act 1979;
"matter" includes a claim under section 35C.
51G. Industrial Relations Commission sitting as the
Occupational Safety and Health Tribunal
(1) By this subsection the Commission has jurisdiction to
15 hear and determine matters that may be referred for
determination under sections 28(2), 30(6), 30A(4),
31(11), 34(1), 35(3), 35C, 39G(1), (2) and (3) and
51A(1).
(2) When sitting in exercise of the jurisdiction conferred
20 by subsection (1) the Commission is to be known as
the Occupational Safety and Health Tribunal (the
"Tribunal").
(3) A determination of the Tribunal on a matter mentioned
in subsection (1) has effect according to its substance
25 and an order containing the determination is an
instrument to which section 83 of the Industrial
Relations Act 1979 applies.
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51H. Jurisdiction to be exercised by Commissioner with
requisite qualifications
(1) The jurisdiction conferred by section 51G in respect of
any matter is to be exercised --
5 (a) by the Commissioner appointed for the
purposes of section 8(2a) of the Industrial
Relations Act 1979; or
(b) if that Commissioner is unable to act by reason
of sickness, absence or other cause --
10 (i) by another Commissioner; or
(ii) an Acting Commissioner appointed
under section 17 of the Industrial
Relations Act 1979,
to whom the Chief Commissioner may allocate
15 the matter under section 16 of that Act.
(2) In allocating a matter for the purposes of
subsection (1)(b) the Chief Commissioner is to have
regard to the desirability of the Commissioner
concerned having relevant knowledge in the field of
20 occupational safety and health.
(3) A Commissioner to whom a matter has been allocated
under subsection (1)(b) may continue and complete the
hearing and determination of part-heard proceedings
after the Commissioner referred to in subsection (1)(a)
25 has resumed his or her duties.
51I. Practice, procedure and appeals
(1) The provisions of sections 22B, 26(1), (2) and (3), 27,
28, 31(1), (2), (3), (5) and (6), 33, 34(1), (3) and (4), 36
and 49 of the Industrial Relations Act 1979 that apply
30 to and in relation to the exercise of the jurisdiction of
the Commission constituted by a Commissioner apply
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to the exercise of the jurisdiction conferred by
section 51G --
(a) with such modifications as are prescribed under
section 113 of that Act; and
5 (b) with such other modifications as may be
necessary or appropriate.
(2) For the purposes of subsection (1), section 31(1) of the
Industrial Relations Act 1979 applies as if
paragraph (c) were deleted and the following paragraph
10 were inserted instead --
" (c) by a legal practitioner. ".
51J. Conciliation
(1) This section applies where a matter has been referred to
the Tribunal for determination under section 28(2),
15 30(6), 30A(4), 31(11), 35(3) or 39G.
(2) If the Tribunal considers that the issues involved may
be resolved by conciliation --
(a) the Tribunal may endeavour to assist the parties
to reach an agreement on those issues; and
20 (b) for that purpose the Tribunal may --
(i) arrange conferences of the parties or
their representatives presided over by
the Tribunal;
(ii) arrange for the parties or their
25 representatives to confer among
themselves at a conference at which the
Tribunal is not present; and
(iii) otherwise encourage the parties to
exchange or divulge attitudes or
30 information that in the opinion of the
Tribunal would assist in the resolution
of the issues.
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(3) The Tribunal may give any direction or make any order
or declaration that the Tribunal thinks expedient for the
purposes of this section, and any such direction, order
or declaration is enforceable as if it were given or made
5 under section 32 of the Industrial Relations Act 1979.
(4) If the Tribunal gives or makes a direction, order or
declaration under subsection (3) the Tribunal must --
(a) if it is given or made orally, reduce the
direction, order or declaration to writing as
10 soon as is practicable; and
(b) make the text of the direction, order or
declaration available to the parties as soon as is
practicable after it is given or made.
(5) If the Tribunal --
15 (a) takes action under subsection (2)(a); and
(b) is satisfied that the parties have reached
agreement on all of the issues involved,
the Tribunal may, with the consent of the parties, make
a determination for the purposes of section 51G in
20 terms of that agreement.
(6) If the Tribunal --
(a) takes action under subsection (2)(a); and
(b) subsection (5)(b) does not apply,
the Tribunal is to determine the matter for the purposes
25 of section 51G.
(7) In making a determination mentioned in subsection (6)
the Tribunal is to endeavour to ensure that the matter is
resolved --
(a) taking into account any agreement reached by
30 the parties on any particular issue; and
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(b) subject to paragraph (a), on terms that could
reasonably have been agreed between the
parties in the first instance or by conciliation.
51K. Certain matters to be heard together
5 (1) The section applies if --
(a) under the Industrial Relations Act 1979, an
employee has referred to the Commission a
claim that the employee has been harshly,
oppressively or unfairly dismissed from
10 employment; and
(b) a matter --
(i) involving the same employer and
employee; and
(ii) arising out of the same circumstances,
15 has been referred for determination under the
jurisdiction conferred by section 51G.
(2) An employee referred to in subsection (1) may in
writing request that a matter referred to in
subsection (1)(a) be heard and determined by the
20 Commissioner who is hearing and determining the
matter referred to in subsection (1)(b).
(3) If such a request is made, the Chief Commissioner, in
exercising the powers conferred by section 16 of the
Industrial Relations Act 1979, is to allocate the hearing
25 and determination of the matter accordingly.
(4) If --
(a) an employee has referred to the Commission
a claim of the kind described in
section 29(1)(b)(ii) of the Industrial Relations
30 Act 1979; and
(b) the claim involves the same employer and
arises out of the same circumstances as a matter
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that has been referred for determination under
the jurisdiction conferred by section 51G,
nothing in this section prevents the Chief
Commissioner exercising the powers conferred by
5 section 16 of that Act so that the claim is heard and
determined by the Commissioner who is hearing and
determining the matter referred to in paragraph (b).
".
68. Section 54B amended
10 Section 54B(2), (3) and (4) are repealed.
69. 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
15 inserting instead --
" the Tribunal ".
Table
s. 28(2) s. 34(3)
s. 30(6) s. 34(4)
s. 31(11) s. 35(3)
s. 34(1) s. 51A(1)
(2) Each provision specified in the Table to this subsection is
amended by deleting "the safety and health magistrate" and
20 inserting instead --
" the Tribunal ".
Table
s. 34(3) and (4) s. 51A(5)
s. 35(3) s. 51A(7)
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Occupational Safety and Health Legislation Amendment and
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Part 6 Amendments relating to the establishment of a tribunal
Division 2 Amendments to the Industrial Relations Act 1979
s. 70
(3) Section 51A(4) is amended by deleting "A safety and health
magistrate" and inserting instead --
" The Tribunal ".
(4) The Schedule is amended by deleting item 26B.
5 Division 2 -- Amendments to the Industrial Relations Act 1979
70. The Industrial Relations Act 1979 amended
(1) The amendments in this section are to the Industrial Relations
Act 1979*.
[* Reprinted as at 8 November 2002.
10 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 187.]
(2) Section 7(3) is repealed and the following subsection is inserted
instead --
"
15 (3) A matter that has been referred under a provision of the
Occupational Safety and Health Act 1984 to the
Tribunal provided for by section 51G of that Act is not
an industrial matter.
".
20 (3) After section 8(2) the following subsection is inserted --
"
(2a) For the purposes of section 51H of the Occupational
Safety and Health Act 1984, one Commissioner
appointed under subsection (2)(d) is to be a person
25 who, in addition to the other attributes required for
appointment, has --
(a) knowledge of or experience in the field of
occupational safety and health; and
(b) knowledge of that Act,
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Occupational Safety and Health Legislation Amendment and
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Amendments relating to the establishment of a tribunal Part 6
Transitional provisions Division 3
s. 71
but the function given by section 51H(1) of that Act to
the Commissioner so appointed does not preclude that
Commissioner from otherwise performing the
functions of a Commissioner under this Act.
5 ".
(4) Section 113(1)(d) is deleted and the following paragraph is
inserted instead --
"
(d) without limiting paragraph (c), regulating the
10 practice and procedure to be followed in
relation to --
(i) appeals under section 33P of the Police
Act 1892; and
(ii) the referral, hearing and determination
15 of matters under the Occupational
Safety and Health Act 1984;
".
Division 3 -- Transitional provisions
71. Existing referrals to safety and health magistrate
20 (1) A matter referred to a safety and health magistrate under the
Occupational Safety and Health Act 1984 and not finally
determined before the commencement of section 65 --
(a) may continue to be dealt with; and
(b) any order made in such a proceeding may be appealed
25 against or enforced,
as if that section and section 68 had not been enacted.
page 93
Occupational Safety and Health Legislation Amendment and
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Part 6 Amendments relating to the establishment of a tribunal
Division 3 Transitional provisions
s. 72
(2) A determination or decision of a safety and health magistrate
made before the commencement of section 65 may be the
subject of --
(a) an application for leave to appeal under section 54B(2)
5 of the Occupational Safety and Health Act 1984
repealed by section 68; and
(b) an appeal for which leave is granted under
section 54B(2),
as if section 68 had not been enacted.
10 72. Appeal proceedings in progress
(1) An application for leave to appeal made under section 54B(2) of
the Occupational Safety and Health Act 1984 but not finally
determined before the commencement of section 68, and an
appeal for which leave is granted on such an application, may
15 be dealt with and determined as if that section had not been
enacted.
(2) An appeal brought under section 54B(2) of the Occupational
Safety and Health Act 1984 but not finally determined before
the commencement of section 68, may be dealt with and
20 determined as if that section had not been enacted.
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Occupational Safety and Health Legislation Amendment and
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Amendments to make expressions in the Act gender neutral Part 7
s. 73
Part 7 -- Amendments to make expressions in the Act
gender neutral
73. Section 3 amended
Section 3 is amended in the definition of "employer" as follows:
5 (a) in paragraph (a), by deleting "by whom an employee is
employed" and inserting instead --
" that employs an employee ";
(b) in paragraph (b), by deleting "by whom the apprentice
or industrial trainee is employed" and inserting
10 instead --
" that employs the apprentice or trainee ".
74. Section 4 amended
(1) Section 4(4) is amended by deleting "on whom a duty under this
Act would devolve" and inserting instead --
15 " that would be subject to a duty under this Act ".
(2) Section 4(5) is amended as follows:
(a) by deleting "on whom a copy of the relevant instrument
was served under subsection (4), in relation to whom a
provision of or under this Act applies by reason of
20 subsection (4)" and inserting instead --
"
served with the instrument under subsection (4), that is
subject to a provision of or under this Act by reason of
that subsection
25 ";
(b) by deleting "he proves that he" and inserting instead --
" the person proves that the person ";
page 95
Occupational Safety and Health Legislation Amendment and
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Part 7 Amendments to make expressions in the Act gender neutral
s. 75
(c) by deleting "of the application in relation to him of the
provision" and inserting instead --
" that the provision so applied ".
75. Section 8 amended
5 Section 8(1) is amended by deleting "his".
76. Section 9 amended
(1) Section 9(2) is amended by deleting "his appointment and on
the expiration of his" and inserting instead --
" appointment and on the expiration of the ".
10 (2) Section 9(4) is amended by deleting "he shall notwithstanding
that appointment retain his existing and accruing rights on his"
and inserting instead --
"
the person shall despite that appointment retain all existing
15 and accruing rights on
".
(3) Section 9(5) is amended as follows:
(a) by deleting "he is entitled upon resigning his" and
inserting instead --
20 " the person is entitled upon resigning his or her ";
(b) by deleting "he so occupied immediately before his" and
inserting instead --
" the person so occupied immediately before ".
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Occupational Safety and Health Legislation Amendment and
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Amendments to make expressions in the Act gender neutral Part 7
s. 77
77. Section 10 replaced
Section 10 is repealed and the following section is inserted
instead --
"
5 10. Vacation of office
A person's office as Commissioner or as an appointed
member becomes vacant if --
(a) the person's term of office expires; or
(b) the person --
10 (i) dies;
(ii) becomes permanently incapable of
performing the duties of the office;
(iii) resigns from office by written notice
addressed to the Minister;
15 (iv) is an undischarged bankrupt or a person
whose property is subject to an order or
arrangement under the laws relating to
bankruptcy;
(v) is removed from office by the Governor
20 on the grounds of neglect of duty,
incompetence or the person's behaviour;
or
(vi) is absent without leave of the Minister
from 3 consecutive meetings of the
25 Commission;
or
(c) being a member appointed under
section 6(2)(d)(i), (ii) or (iv), the person's
nomination is revoked.
30 ".
page 97
Occupational Safety and Health Legislation Amendment and
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Part 7 Amendments to make expressions in the Act gender neutral
s. 78
78. Section 19 amended
Section 19(1) is amended as follows:
(a) by deleting "his employees" in the first place where it
occurs and inserting instead --
5 " the employees of the employer (the "employees") ";
(b) by deleting "his" in each place where it occurs and
inserting instead --
" the ".
79. Section 20 amended
10 (1) Section 20(2) is amended as follows:
(a) by deleting "if he" and inserting instead --
" if the employee ";
(b) by deleting paragraph (a) and inserting instead --
"
15 (a) fails to comply, so far as the employee is
reasonably able, with instructions given by the
employee's employer for the safety or health of
the employee or for the safety or health of other
persons;
20 ";
(c) in paragraph (d), by deleting "his employer" and
inserting instead --
" the employee's employer ";
(d) by deleting subparagraph (d)(i) and "or" after it and
25 inserting instead --
"
(i) any situation at the workplace that the
employee has reason to believe could
constitute a hazard to any person that
30 the employee cannot correct; or
".
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Occupational Safety and Health Legislation Amendment and
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Amendments to make expressions in the Act gender neutral Part 7
s. 80
(2) Section 20(3) is repealed and the following subsection is
inserted instead --
"
(3) An employee shall cooperate with the employee's
5 employer in the carrying out by the employer of the
obligations imposed on the employer under this Act.
".
80. Section 22 amended
Section 22(1) is amended by deleting "who" in the first place
10 where it occurs and inserting instead --
" that ".
81. Section 23 amended
Section 23(1), (2) and (3a) are each amended by deleting "who"
in the first place where it occurs and inserting instead --
15 " that ".
82. Section 24 amended
Section 24(4) is repealed and the following subsection is
inserted instead --
"
20 (4) If a person contravenes subsection (1) or (3), the
person commits an offence.
".
83. Section 27 amended
Section 27 is amended by deleting "until he" and inserting
25 instead --
" until the employee ".
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Occupational Safety and Health Legislation Amendment and
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Part 7 Amendments to make expressions in the Act gender neutral
s. 84
84. Section 28 amended
Section 28(1) is amended by deleting "if he" and inserting
instead --
" if the employee ".
5 85. Section 30 amended
Section 30(7) is repealed and the following subsection is
inserted instead --
"
(7) If an employer contravenes subsection (1) or (3a), the
10 employer commits an offence.
".
86. Section 32 amended
Section 32(2) is amended as follows:
(a) by deleting paragraph (a) and inserting instead --
15 "
(a) the person's term of office expires and the
person is not re-elected;
";
(b) by deleting paragraph (c) and inserting instead --
20 "
(c) the person resigns from office by notice given
to the employer;
".
87. Section 33 amended
25 Section 33(1)(c) is amended by inserting after "himself " --
" or herself ".
page 100
Occupational Safety and Health Legislation Amendment and
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Amendments to make expressions in the Act gender neutral Part 7
s. 88
88. Section 34 amended
(1) Section 34(1)(a) is amended by deleting "his employer or a
commercial or business undertaking of his employer" and
inserting instead --
5 "
the representative's employer or a commercial
or business undertaking of the employer
".
(2) Section 34(1)(b) is amended as follows:
10 (a) by deleting "his employer" in the first place where it
occurs and inserting instead --
" the representative's employer ";
(b) by deleting "his employer" in the second and third
places where it occurs and inserting instead --
15 " the employer ".
89. Section 35 amended
Section 35 is amended as follows:
(a) in subsection (1)(b) by deleting "his" and inserting
instead --
20 " the employer's ";
(b) in subsection (2)(a)(i) by deleting "him" and inserting
instead --
" the employer ";
(c) by repealing subsection (4) and inserting instead --
25 "
(4) If an employer contravenes subsection (1) or
(2), the employer commits an offence.
".
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Occupational Safety and Health Legislation Amendment and
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Part 7 Amendments to make expressions in the Act gender neutral
s. 90
90. Section 40 amended
Section 40(a) is amended by deleting "his employees" and
inserting instead --
" the employees of the employer ".
5 91. Section 43 amended
Section 43(1)(l) is amended by deleting "he interviews" and
inserting instead --
" the inspector interviews ".
92. Section 45 amended
10 Section 45(5) is repealed and the following subsection is
inserted instead --
"
(5) If an employer contravenes subsection (2a), the
employer commits an offence.
15 ".
93. Section 47 amended
Section 47(1) is amended as follows:
(a) by deleting "A person who" and inserting instead --
" If a person ";
20 (b) by inserting immediately before "commits an
offence" --
" the person ".
94. Section 48 amended
(1) Section 48(3) is amended by deleting "to whom an
25 improvement notice is issued" and inserting instead --
" issued with an improvement notice ".
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Occupational Safety and Health Legislation Amendment and
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Amendments to make expressions in the Act gender neutral Part 7
s. 95
(2) Section 48(4) is repealed and the following subsection is
inserted instead --
"
(4) Subject to sections 51 and 51A, if a person --
5 (a) is issued with an improvement notice; and
(b) does not comply with the notice within the time
specified in it,
the person commits an offence.
".
10 (3) Section 48(5) is amended by deleting "to whom an
improvement notice is issued" and inserting instead --
" issued with an improvement notice ".
(4) Section 48(6) is repealed and the following subsection is
inserted instead --
15 "
(6) If a person contravenes subsection (3), (3a), (3c) or
(3d), the person commits an offence.
".
95. Section 49 amended
20 (1) Section 49(1) is amended by deleting "who" in both places
where it appears and inserting instead --
" that ".
(2) Section 49(5) and (6) are repealed and the following subsections
are inserted instead --
25 "
(5) Subject to sections 51 and 51A, if a person issued with
a prohibition notice does not comply with the notice,
the person commits an offence.
(6) If a person contravenes subsection (4), (4a), (4b) or
30 (4c), the person commits an offence.
".
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Occupational Safety and Health Legislation Amendment and
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Part 7 Amendments to make expressions in the Act gender neutral
s. 96
96. Section 50 amended
Section 50(2)(b) is amended by deleting "to whom it is issued"
and inserting instead --
" issued with the notice ".
5 97. Section 51 amended
Section 51(1)(a) and (b) are deleted and the following
paragraphs are inserted instead --
"
(a) the person issued with the notice; or
10 (b) the employer (if any) of the person issued with
the notice.
".
98. Section 51A amended
Section 51A(1) is amended by deleting "to whom notice of a
15 decision is issued" and inserting instead --
" issued with notice of a decision ".
99. Section 56 amended
Section 56(1) is amended as follows:
(a) by deleting "An employer or prospective employer who
20 in any way treats an employee or prospective employee
less favourably than he otherwise would" and inserting
instead --
"
If an employer or prospective employer in any way
25 treats an employee or prospective employee less
favourably than would otherwise be the case
";
(b) by inserting immediately before "commits" --
" the employer or prospective employer ".
page 104
Occupational Safety and Health Legislation Amendment and
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Amendments to make expressions in the Act gender neutral Part 7
s. 100
100. Section 57 amended
(1) Section 57(1) is amended by deleting "on whom a duty is
imposed" and inserting instead --
" that are subject to a duty ".
5 (2) Section 57(7) is amended by deleting "he" and inserting
instead --
" the person ".
101. Schedule amended
The Schedule is amended as follows:
10 (a) in item 9(a) by deleting "his employees" and inserting
instead --
" the employees of the employer, ";
(b) in item 9(b) by deleting "his" and inserting instead --
" the employer, ";
15 (c) in items 16 and 25 by deleting "his employees" and
inserting instead --
" the employees of the employer ".
102. Feminine pronoun inserted in various provisions
(1) Each provision specified in the Table to this subsection is
20 amended by inserting after "he" --
" or she ".
Table
s. 12 s. 33(1)(e)
s. 13(3) s. 34(1)(a), (b) and (c)
s. 20(2)(b) and (d)(ii) s. 43(1)(c) and (d)
s. 25(2)(a) s. 44
s. 26(1) s. 45(3) (2 places)
s. 28(1) s. 45(4) and (4)(a)
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Occupational Safety and Health Legislation Amendment and
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Part 7 Amendments to make expressions in the Act gender neutral
s. 103
s. 31(11) s. 46(1) (2 places)
s. 32(2)(d) s. 55(1) and (2)
s. 33(1) s. 56(2)
s. 33(1)(a)(ii)
(2) Each provision specified in the Table to this subsection is
amended by inserting after "his" --
" or her ".
Table
s. 9(6) s. 34(2)(a)
s. 18(4) s. 34(4)(b)
s. 20(1), (2)(b) and (d)(ii) s. 35(3)(a) and (b)
s. 26(1) and (2) s. 43(1)(b), (m), (n) and (o)
s. 27 s. 43(2) (2 places)
s. 28(1) s. 44
s. 33(1)(c), (d) and (f) s. 47(1)(b) (2 places)
s. 33(3) (2 places) s. 55(2)
nd rd
s. 34(1)(b) (2 and 3 places) s. 61(2)
and (c)
5 (3) Each provision specified in the Table to this subsection is
amended by inserting after "him" --
" or her ".
Table
s. 16(2) s. 34(3)
s. 18(4) s. 43(1)(c), (l) and (o)
s. 26(1) s. 61(1)(e)
103. Relative pronoun replaced
10 Each provision specified in the Table to this section is amended
by deleting "who" and inserting instead --
" that ".
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Amendments to make expressions in the Act gender neutral Part 7
s. 103
Table
s. 6(6) s. 28A(3)
s. 22(2) s. 51(6) (2 places)
s. 23(3) s. 54A(2)
page 107
Occupational Safety and Health Legislation Amendment and
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Part 8 Miscellaneous amendments
s. 104
Part 8 -- Miscellaneous amendments
104. Section 3 amended
(1) Section 3(1) is amended by inserting in the appropriate
alphabetical positions --
5 "
"Australian Standard" means a document having that
title published by Standards Australia International
Limited (ACN 087 326 690);
"Australian/New Zealand Standard" means a
10 document having that title published jointly by --
(a) Standards Australia International Limited
(ACN 087 326 690); and
(b) the Standards Council of New Zealand;
"import" means to bring into the State, whether from
15 outside Australia or otherwise;
"trainee" means a person belonging to a class of
persons defined by the regulations as trainees for
the purposes of this Act;
".
20 (2) Section 3(1) is amended by deleting the definition of
"apprentice" and inserting instead --
"
"apprentice" --
(a) means an apprentice under the Industrial
25 Training Act 1975; or
(b) if Part 7 of the Vocational Education and
Training Act 1996 comes into operation,
means a person who, as an employee, has
entered into an apprenticeship within the
30 meaning of that term in section 58 of that
Act;
".
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Occupational Safety and Health Legislation Amendment and
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Miscellaneous amendments Part 8
s. 104
(3) Section 3(1) is amended in the definition of "employee", in
paragraph (b), by deleting "industrial".
(4) Section 3(1) is amended in the definition of "employer", in
paragraph (b) as follows:
5 (a) by deleting ", or industrial trainee" and inserting
instead --
" or trainee ";
(b) by deleting "industrial training agreement" and inserting
instead --
10 "
traineeship scheme under the Industrial
Training Act 1975
".
(5) Section 3(1) is amended by deleting the definition of "industrial
15 trainee".
(6) Section 3(1) is amended in the definition of "inspector" by
deleting "Part V" and inserting instead --
"
section 42, and subject to section 42B(3), includes
20 a restricted inspector appointed under section 42A
".
(7) Section 3(1) is amended by deleting the definition of
"self-employed person" and inserting instead --
"
25 "self-employed person" means an individual who
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;
30 ".
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Occupational Safety and Health Legislation Amendment and
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Part 8 Miscellaneous amendments
s. 105
(8) Section 3(1) is amended by deleting the definition of "supply"
and inserting instead --
"
"supply", in relation to any plant or substance,
5 includes supply and re-supply by way of --
(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
10 paragraph (a) of assets of a business that
include any plant or substance; and
(c) the disposal of all of the shares in a company
that owns any plant or substance;
".
15 105. Section 6 amended
(1) Section 6 is amended by deleting subsection (2)(c) and "and"
after it and inserting instead --
"
(c) 2 persons employed in the Public Service under
20 Part 3 of the Public Sector Management
Act 1994, of whom --
(i) one shall be nominated by the Minister;
and
(ii) the other shall be an officer of the
25 department, as defined in section 4(1) of
the Mines Safety and Inspection
Act 1994, nominated by the Minister to
whom the administration of that Act is
committed;
30 and
".
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Occupational Safety and Health Legislation Amendment and
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Miscellaneous amendments Part 8
s. 105
(2) Section 6(2)(d) is amended as follows:
(a) in subparagraph (i) by deleting "3" and inserting
instead --
" 2 ";
5 (b) in subparagraph (ii) by inserting after "persons" --
"
, of whom one shall be a person who has
knowledge of and experience in the
mining industry in the State,
10 ";
(c) by deleting "and" after subparagraph (ii);
(d) in subparagraph (iii) by deleting the full stop and
inserting instead --
" ; and ";
15 (e) by inserting after subparagraph (iii) the following
subparagraph --
"
(iv) one shall be a person nominated by the
Chamber of Minerals and Energy of
20 Western Australia Inc.
".
(3) Section 6(3) is amended as follows:
(a) by deleting "or (ii)" in both places where it occurs and
inserting instead --
25 " , (ii) or (iv) ";
(b) by deleting "considered suitable" and inserting
instead --
" who is suitably qualified, ".
page 111
Occupational Safety and Health Legislation Amendment and
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Part 8 Miscellaneous amendments
s. 106
106. Section 14A inserted
After section 14 the following section is inserted --
"
14A. Mining Industry Advisory Committee
5 (1) In this section --
"committee" means the committee referred to in
subsection (2);
"mining industry" means the mining industry in the
State;
10 "Ministers" means --
(a) the Minister to whom the administration of
this Act is committed; and
(b) the Minister to whom the administration of
the Mines Safety and Inspection Act 1994 is
15 committed (the "Minister for Mines"),
acting jointly.
(2) There is to be an advisory committee called the Mining
Industry Advisory Committee.
(3) The functions of the committee are --
20 (a) to advise and make recommendations to the
Ministers and the Commission on occupational
safety and health matters concerning the mining
industry; and
(b) to liaise with the Commission to coordinate
25 activities on related functions and to maintain
parallel standards,
and in particular, but without limiting the generality of
paragraphs (a) and (b) --
(c) to inquire into and report to the Ministers
30 regarding any matter referred to it by the
Ministers relating to occupational safety and
health in the mining industry;
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Miscellaneous amendments Part 8
s. 106
(d) to make recommendations to the Minister for
Mines regarding the formulation, amendment,
or repeal of laws relating to occupational safety
and health for which that Minister is
5 responsible;
(e) to prepare or recommend the adoption of codes
of practice, guidelines, standards, specifications
or other forms of guidance for the purpose of
assisting employers, self-employed persons,
10 employees, manufacturers or other persons to
maintain appropriate standards of occupational
safety and health in the mining industry; and
(f) to provide advice on --
(i) education and publications; and
15 (ii) training and training courses,
with respect to occupational safety and health
in the mining industry.
(4) The chairperson of the committee is to be the member
of the Commission nominated under section 6(2)(c)(ii).
20 (5) Subject to subsection (4), the Ministers --
(a) are to appoint the members of; and
(b) may alter or reconstitute,
the committee.
(6) The members of the committee are entitled to be paid
25 such remuneration and travelling and other allowances
as may be determined by the Ministers on the
recommendation of the Minister for Public Sector
Management.
(7) Subject to any direction given to it by the Commission,
30 the committee is to determine its own procedures.
".
page 113
Occupational Safety and Health Legislation Amendment and
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Part 8 Miscellaneous amendments
s. 107
107. Section 48 amended
(1) Section 48(3c) is repealed and the following subsection is
inserted instead --
"
5 (3c) If an improvement notice is issued --
(a) to a self-employed person in respect of a
contravention of section 21; or
(b) to a body corporate to which section 21B
applies in respect of a contravention of that
10 section,
the person or body shall comply with subsection (3)
and (3d) as if the person or body were an employer.
".
(2) After section 48(3c) the following subsection is inserted --
15 "
(3d) If an improvement notice is modified by the
Commissioner under section 51(5)(b), the employer
shall cause a copy of the Commissioner's decision to
be displayed with the improvement notice, or a copy of
20 it, as required by subsection (3).
".
108. Section 49 amended
(1) Section 49(4b) is repealed and the following subsection is
inserted instead --
25 "
(4b) If a prohibition notice is issued --
(a) to a self-employed person in respect of a
contravention of section 21; or
(b) to a body corporate to which section 21B
30 applies in respect of a contravention of that
section,
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Occupational Safety and Health Legislation Amendment and
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Miscellaneous amendments Part 8
s. 109
the person or body shall comply with subsection (4)
and (4c) as if the person or body were an employer.
".
(2) After section 49(4b) the following subsection is inserted --
5 "
(4c) If a prohibition notice is modified by the
Commissioner under section 51(5)(b), the employer
shall cause a copy of the Commissioner's decision to
be displayed with the prohibition notice, or a copy of it,
10 as required by subsection (4).
".
109. Section 50A inserted
After section 50 the following section is inserted --
"
15 50A. Notices may be issued to the Crown
(1) An improvement notice and a provisional improvement
notice may be issued in respect of a contravention of
this Act by the Crown in any of its capacities.
(2) A prohibition notice may be issued in respect of an
20 activity of or controlled by the Crown in any of its
capacities.
(3) If the contravention or activity relates to a body
corporate that is an agent of the Crown, the notice is to
be issued to the body corporate.
25 (4) In the case of any other contravention or activity that
relates to the Crown, the notice --
(a) is to be issued to the Crown under the title
"State of Western Australia"; and
(b) is to show the name of the responsible agency
30 under Part VII Division 2 that would be
specified in a charge for an offence in respect
of that contravention or activity.
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(5) It is sufficient for the purposes of subsection (3) or (4)
if the notice --
(a) is delivered to a person at the workplace
concerned who has, or reasonably appears to
5 have, responsibility for the management or
control of the workplace; or
(b) is sent by pre-paid letter addressed and posted
to the body corporate or responsible agency
concerned at its principal place of business in
10 the State.
(6) If a notice is delivered to a person as mentioned in
subsection (5)(a) the person must, as soon as is
practicable, give a copy of the notice to the executive
who is responsible for the day to day administration of
15 the body corporate or responsible agency concerned.
".
110. Section 51AA inserted
After section 51 the following section is inserted --
"
20 51AA. Further power of Commissioner to cancel notice
(1) The Commissioner, on his or her own initiative, may
cancel an improvement notice or a prohibition notice
by giving notice in writing of the cancellation, and the
reasons for it --
25 (a) to the person issued with the notice; and
(b) if that person is an employee, to the employee's
employer.
(2) The power conferred by subsection (1) is not to be
exercised in respect of a notice --
30 (a) during a period when a referral of the notice
under section 51 is awaiting a determination of
the Commissioner under that section; or
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s. 111
(b) after a decision in respect of the notice has been
referred to the Tribunal under section 51A,
but may be exercised at any other time and whether or
not the notice has been affirmed under section 51(5)(a)
5 or (b).
".
111. Section 53 amended
(1) Section 53 is amended by inserting before "In proceedings" the
subsection designation "(1)".
10 (2) Section 53(b) is amended by deleting "of persons at a particular
workplace".
(3) After section 53(b) the following paragraphs are inserted --
"
(ba) a particular person was an employer of
15 particular persons;
(bb) a particular person was an employer at a
particular workplace;
".
(4) Section 53(f) is amended by deleting "inspector," and inserting
20 instead --
" inspector or a restricted inspector under section 42A, ".
(5) At the end of section 53 the following subsections are
inserted --
"
25 (2) The person commencing a prosecution for an offence
against this Act is taken to be authorised under
section 52(1) to commence the prosecution, in the
absence of evidence to the contrary.
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Part 8 Miscellaneous amendments
s. 112
(3) In proceedings for an offence against this Act,
production of a copy of --
(a) a code of practice;
(b) an Australian Standard; or
5 (c) an Australian/New Zealand Standard,
purporting to be certified by the Commissioner to be a
true copy as at any date or during any period is,
without proof of the signature of the Commissioner,
sufficient evidence of the contents of the code of
10 practice or Standard as at that date or during that
period.
".
112. Section 56 amended
Section 56(1)(d) is deleted and the following paragraph is
15 inserted instead --
"
(d) makes or has made a complaint in relation to
safety or health to --
(i) the Commissioner;
20 (ii) an inspector;
(iii) a person who is or was his or her
employer or fellow employee;
(iv) a safety and health representative; or
(v) a member of a safety and health
25 committee,
".
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s. 113
113. Section 57A inserted
After section 57 the following section is inserted --
"
57A. Visitors to comply with directions
5 (1) In this section --
"authorised person", in relation to a workplace,
means --
(a) an employer of any employee at the
workplace, including a person that is an
10 employer by operation of section 23D, 23E
or 23F;
(b) any self-employed person carrying out work
at the workplace; and
(c) a person at the workplace who has the
15 management and control of --
(i) the workplace; or
(ii) the work being carried out at the
workplace;
"conduct" includes a failure to do a particular act or
20 thing;
"employee" includes a person who is an employee by
operation of section 23D, 23E or 23F.
(2) Subsection (3) applies if --
(a) a person (a "visitor") is at a workplace
25 otherwise than in the capacity of --
(i) an employer;
(ii) an employee;
(iii) a self-employed person; or
(iv) a person having control, to any extent,
30 of the workplace;
and
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(b) an authorised person believes on reasonable
grounds that --
(i) any conduct of the visitor at the
workplace; or
5 (ii) the presence of the visitor in the
workplace or in a particular part of the
workplace,
constitutes a hazard to any person.
(3) The authorised person may direct the visitor --
10 (a) to immediately cease engaging in the conduct
concerned; or
(b) to immediately leave the workplace and not to
return as a visitor to the workplace until
permitted by the authorised person to do so.
15 (4) A person who, without reasonable excuse, fails to
comply with a direction given to the person under
subsection (3) commits an offence.
".
114. Schedule amended
20 The Schedule is amended as follows:
(a) by inserting after item 1 the following item --
"
1A. The imposition of duties on persons in relation to --
(a) the identification of hazards at workplaces;
25 (b) the assessment of risks resulting from such hazards;
and
(c) the taking of remedial or other action.
";
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(b) by inserting after item 4 the following item --
"
4A. Duties to be observed by --
(a) the owner; or
5 (b) a person having the control,
of plant used at a workplace.
".
115. Mines Safety and Inspection Act 1994 amended and saving
provision
10 (1) The amendments in this section are to the Mines Safety and
Inspection Act 1994*.
[* Reprinted as at 17 March 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 250.]
15 (2) Section 4(1) is amended by deleting the definition of "Mines
Occupational Safety and Health Advisory Board".
(3) Section 90 is repealed.
(4) Section 93(1) is amended by deleting "Mines Occupational
Safety and Health Advisory Board" and inserting instead --
20 " Mining Industry Advisory Committee ".
(5) Section 103 is amended by deleting "Mines Occupational Safety
and Health Advisory Board," and inserting instead --
" Mining Industry Advisory Committee ".
(6) Section 110(1)(b) is amended by deleting "the Mines
25 Occupational Safety and Health Advisory Board,".
(7) The amendment made by subsection (5) does not affect the
operation of section 103 of the Mines Safety and Inspection
Act 1994, before the commencement of that subsection, in
relation to members of the Mines Occupational Safety and
30 Health Advisory Board established under the section repealed
by subsection (3).
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Part 9 Repeal of Shearers' Accommodation Act 1912
s. 116
Part 9 -- Repeal of Shearers' Accommodation Act 1912
116. Shearers' Accommodation Act 1912 repealed
The Shearers' Accommodation Act 1912 is repealed.
page 122
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