Work Health and Safety Act 2011

An Act to provide comprehensively for work health and safety, to provide for a new definition of asbestos in particular legislation and for a work health and safety levy, to amend other legislation as a consequence, and to amend the Workers’ Compensation and Rehabilitation Act 2003 for particular purposes

1Short title

This Act may be cited as the Work Health and Safety Act 2011.

2Commencement

(1)The following provisions commence on 1 January 2014—

(a)part 18, division 2;

(b)sections 391 and 401;

(c)schedule 4, part 1.

(2)Sections 395, 396, 397(2) and 398 to 400 commence immediately after the commencement of sections 391 and 401.

(3)The remaining provisions commence on a day to be fixed by proclamation.

s 2 sub 2013 No. 25 s 189

3Object

(1)The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

(a)protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and

(b)providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

(c)encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and

(d)promoting the provision of advice, information, education and training in relation to work health and safety; and

(e)securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f)ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and

(g)providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h)maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland.

(2)In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.

Note—

The numbering of this Act closely corresponds to the same numbering in a model Bill prepared for and approved by the Council of Australian Governments. To maximise uniformity between this Act and the model Bill, the numbers of some sections in the model Bill that are not relevant have not been used in the numbering of this Act, unless required for provisions particular to the State. Adoption of the numbering of the model Bill also results in alphanumeric numbering being used to insert further provisions particular to the State.

4Definitions

The dictionary in schedule 5 defines particular words used in this Act.

5Meaning of person conducting a business or undertaking

(1)For this Act, a person conducts a business or undertaking—

(a)whether the person conducts the business or undertaking alone or with others; and

(b)whether or not the business or undertaking is conducted for profit or gain.

(2)A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4)A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5)An elected member of a local government does not in that capacity conduct a business or undertaking.

(6)A regulation may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8)In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

6Meaning of supply

(1)A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent.

(2)A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.

(3)A supply of a thing does not include—

(a)the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or

(b)a prescribed supply.

(4)A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if—

(a)the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and

(b)the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.

(5)If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer.

7Meaning of worker

(1)A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—

(a)an employee; or

(b)a contractor or subcontractor; or

(c)an employee of a contractor or subcontractor; or

(d)an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e)an outworker; or

(f)an apprentice or trainee; or

(g)a student gaining work experience; or

(h)a volunteer; or

(i)a person of a prescribed class.

(2)For this Act, a police officer is—

(a)a worker; and

(b)at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.

(3)The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

8Meaning of workplace

(1)A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

(2)In this section, place includes—

(a)a vehicle, vessel, aircraft or other mobile structure; and

(b)any waters and any installation on land, on the bed of any waters or floating on any waters.

9Section number not used

See note to section 3.

10Act binds all persons

(1)This Act binds all persons including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

(2)The State, the Commonwealth and the other States are liable for an offence against this Act.

(3)Without limiting subsection (1), the State, the Commonwealth and the other States are liable for a contravention of a WHS civil penalty provision.

11Section number not used

See note to section 3.

12Scope: application of Act to particular matters

Schedule 1 provides for the application of this Act to—

(a)dangerous goods and high risk plant; and

(b)matters dealt with under other legislation.

13Principles that apply to duties

This subdivision sets out the principles that apply to all duties that persons have under this Act.

Note—

The principles will apply to duties under this part and other parts of this Act including, for example, duties relating to incident notification and consultation.

14Duties not transferable

A duty can not be transferred to another person.

15Person may have more than 1 duty

A person can have more than 1 duty by virtue of being in more than 1 class of duty holder.

16More than 1 person can have a duty

(1)More than 1 person can concurrently have the same duty.

(2)Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)If more than 1 person has a duty for the same matter, each person—

(a)retains responsibility for the person’s duty in relation to the matter; and

(b)must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

17Management of risks

A duty imposed on a person to ensure health and safety requires the person—

(a)to eliminate risks to health and safety, so far as is reasonably practicable; and

(b)if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

18What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a)the likelihood of the hazard or the risk concerned occurring; and

(b)the degree of harm that might result from the hazard or the risk; and

(c)what the person concerned knows, or ought reasonably to know, about—

(i)the hazard or the risk; and

(ii)ways of eliminating or minimising the risk; and

(d)the availability and suitability of ways to eliminate or minimise the risk; and

(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

19Primary duty of care

(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a)workers engaged, or caused to be engaged by the person; and

(b)workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a)the provision and maintenance of a work environment without risks to health and safety; and

(b)the provision and maintenance of safe plant and structures; and

(c)the provision and maintenance of safe systems of work; and

(d)the safe use, handling and storage of plant, structures and substances; and

(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(4)If—

(a)a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b)the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available;

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5)A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

Note—

A self-employed person is also a person conducting a business or undertaking for the purposes of this section.

20Duty of persons conducting businesses or undertakings involving management or control of workplaces

(1)In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include—

(a)the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(b)a prescribed person.

(2)The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

21Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces

(1)In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include—

(a)the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(b)a prescribed person.

(2)The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.

22Duties of persons conducting businesses or undertakings that design plant, substances or structures

(1)This section applies to a person (the designer) who conducts a business or undertaking that designs—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons—

(a)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or

(iii)the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure; or

Example—

inspection, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4)The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning—

(a)each purpose for which the plant, substance or structure was designed; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

23Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures

(1)This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons—

(a)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii)the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

Example—

inspection, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4)The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning—

(a)each purpose for which the plant, substance or structure was designed or manufactured; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

24Duties of persons conducting businesses or undertakings that import plant, substances or structures

(1)This section applies to a person (the importer) who conducts a business or undertaking that imports—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons—

(a)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii)the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

Example—

inspection, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The importer must—

(a)carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b)ensure that the calculations, analysis, testing or examination have been carried out.

(4)The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning—

(a)each purpose for which the plant, substance or structure was designed or manufactured; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

25Duties of persons conducting businesses or undertakings that supply plant, substances or structures

(1)This section applies to a person (the supplier) who conducts a business or undertaking that supplies—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons—

(a)who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii)the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

Example—

inspection, storage, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The supplier must—

(a)carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b)ensure that the calculations, analysis, testing or examination have been carried out.

(4)The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning—

(a)each purpose for which the plant, substance or structure was designed or manufactured; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

26Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures

(1)This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons—

(a)who install or construct the plant or structure at a workplace; or

(b)who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or

(c)who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or

(d)who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b) or (c).

26ADuty of persons conducting business or undertaking—codes of practice

A person conducting a business or undertaking must, if the Minister approves a code of practice for the purposes of this Act—

(a)comply with the code; or

(b)manage hazards and risks arising from the work carried out as part of the conduct of the business or undertaking in a way that is different to the code but provides a standard of health and safety that is equivalent to or higher than the standard required under the code.

s 26A ins 2017 No. 38 s 14

27Duty of officers

(1)If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2)Subject to subsection (3), the maximum penalty applicable under division 5 for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3)Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of division 2 or 3 or this division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4)An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5)In this section, due diligence includes taking reasonable steps—

(a)to acquire and keep up-to-date knowledge of work health and safety matters; and

(b)to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and

(c)to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d)to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e)to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

Example—

For paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

•reporting notifiable incidents

•consulting with workers

•ensuring compliance with notices issued under this Act

•ensuring the provision of training and instruction to workers about work health and safety

•ensuring that health and safety representatives receive their entitlements to training.

(f)to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).

28Duties of workers

While at work, a worker must—

(a)take reasonable care for his or her own health and safety; and

(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c)comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d)co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

29Duties of other persons at the workplace

A person at a workplace, whether or not the person has another duty under this part, must—

(a)take reasonable care for his or her own health and safety; and

(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c)comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

30Health and safety duty

Health and safety duty means a duty imposed under division 2, 3 or 4.

31Reckless conduct—category 1

(1)A person commits a category 1 offence if—

(a)the person has a health and safety duty; and

(b)the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

(c)the person is reckless as to the risk to an individual of death or serious injury or illness.

Maximum penalty—

(a)for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,000 penalty units or 5 years imprisonment; or

(b)for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—6,000 penalty units or 5 years imprisonment; or

(c)for an offence committed by a body corporate—30,000 penalty units.

Note—

In this division, the penalty applicable to a body corporate is separately expressed. Otherwise the Penalties and Sentences Act 1992, section 181B applies for this Act.

(2)The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

(3)A category 1 offence is a crime.

32Failure to comply with health and safety duty—category 2

A person commits a category 2 offence if—

(a)the person has a health and safety duty; and

(b)the person fails to comply with that duty; and

(c)the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty—

(a)for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,500 penalty units; or

(b)for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,000 penalty units; or

(c)for an offence committed by a body corporate—15,000 penalty units.

Note—

See also the note to section 31(1).

33Failure to comply with health and safety duty—category 3

A person commits a category 3 offence if—

(a)the person has a health and safety duty; and

(b)the person fails to comply with that duty.

Maximum penalty—

(a)for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—500 penalty units; or

(b)for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,000 penalty units; or

(c)for an offence committed by a body corporate—5,000 penalty units.

Note—

See also the note to section 31(1).

33ADuty prevails over particular excuses

For an offence against section 32 or 33, the Criminal Code sections 23(1) and 24 are subject to divisions 1 to 4.

34Exceptions

(1)A volunteer does not commit an offence under this division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.

(2)An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.

(3)However—

(a)an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and

(b)a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.

pt 2A hdg ins 2017 No. 38 s 4

34ADefinitions for part

(1)In this part—

conduct means an act or omission to perform an act.

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

senior officer, of a person conducting a business or undertaking, means—

(a)if the person is a corporation—an executive officer of the corporation; or

(b)otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.

(2)For this part, a person’s conduct causes death if it substantially contributes to the death.

(3)For this part, a reference to a worker carrying out work for a business or undertaking includes a reference to a worker who is at a workplace to carry out work for the business or undertaking, including during a work break.

Note—

In relation to the numbering of this part, see the note to section 3.

s 34A ins 2017 No. 38 s 4

34BExceptions

(1)A volunteer does not commit an offence under this part.

(2)Despite section 34(2), a senior officer of an unincorporated association (other than a volunteer) may commit an offence under this part.

(3)The Criminal Code, section 23 does not apply to an offence under this part.

s 34B ins 2017 No. 38 s 4

34CIndustrial manslaughter—person conducting business or undertaking

(1)A person conducting a business or undertaking commits an offence if—

(a)a worker—

(i)dies in the course of carrying out work for the business or undertaking; or

(ii)is injured in the course of carrying out work for the business or undertaking and later dies; and

(b)the person’s conduct causes the death of the worker; and

(c)the person is negligent about causing the death of the worker by the conduct.

Maximum penalty—

(a)for an individual—20 years imprisonment; or

(b)for a body corporate—100,000 penalty units.

Note—

See section 244 or 251 in relation to imputing to a body corporate or public authority particular conduct of employees, agents or officers of the body corporate or public authority.

(2)An offence against subsection (1) is a crime.

s 34C ins 2017 No. 38 s 4

34DIndustrial manslaughter—senior officer

(1)A senior officer of a person who carries out a business or undertaking commits an offence if—

(a)a worker—

(i)dies in the course of carrying out work for the business or undertaking; or

(ii)is injured in the course of carrying out work for the business or undertaking and later dies; and

(b)the senior officer’s conduct causes the death of the worker; and

(c)the senior officer is negligent about causing the death of the worker by the conduct.

Maximum penalty—20 years imprisonment.

(2)An offence against subsection (1) is a crime.

s 34D ins 2017 No. 38 s 4

35What is a notifiable incident

In this Act, notifiable incident means—

(a)the death of a person; or

(b)a serious injury or illness of a person; or

(c)a dangerous incident.

36What is a serious injury or illness

In this part, serious injury or illness of a person means an injury or illness requiring the person to have—

(a)immediate treatment as an in-patient in a hospital; or

(b)immediate treatment for—

(i)the amputation of any part of his or her body; or

(ii)a serious head injury; or

(iii)a serious eye injury; or

(iv)a serious burn; or

(v)the separation of his or her skin from an underlying tissue (for example, degloving or scalping); or

(vi)a spinal injury; or

(vii)the loss of a bodily function; or

(viii)serious lacerations; or

(c)medical treatment within 48 hours of exposure to a substance;

and includes any other injury or illness prescribed under a regulation but does not include an illness or injury of a prescribed kind.

s 36 sub 2015 No. 16 clause 16 (amdt not made—clause 16 was negatived during Parliamentary debate of the Bill.)

37What is a dangerous incident

In this part, a dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to—

(a)an uncontrolled escape, spillage or leakage of a substance; or

(b)an uncontrolled implosion, explosion or fire; or

(c)an uncontrolled escape of gas or steam; or

(d)an uncontrolled escape of a pressurised substance; or

(e)electric shock; or

(f)the fall or release from a height of any plant, substance or thing; or

(g)the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use under a regulation; or

(h)the collapse or partial collapse of a structure; or

(i)the collapse or failure of an excavation or of any shoring supporting an excavation; or

(j)the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or

(k)the interruption of the main system of ventilation in an underground excavation or tunnel; or

(l)any other event prescribed under a regulation;

but does not include an incident of a prescribed kind.

38Duty to notify of notifiable incidents

(1)A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.

Maximum penalty—100 penalty units.

(2)The notice must be given as required under this section and by the fastest possible means.

(3)The notice must be given—

(a)by telephone; or

(b)in writing.

Example—

The written notice can be given by facsimile, email or other electronic means.

(4)A person giving notice by telephone must—

(a)give the details of the incident requested by the regulator; and

(b)if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made.

(5)A written notice must be in a form, or contain the details, approved by the regulator.

(6)If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking—

(a)details of the information received; or

(b)an acknowledgement of receiving the notice.

(7)A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section.

Maximum penalty—50 penalty units.

39Duty to preserve incident sites

(1)The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.

Maximum penalty—100 penalty units.

(2)In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident.

(3)Subsection (1) does not prevent any action—

(a)to assist an injured person; or

(b)to remove a deceased person; or

(c)that is essential to make the site safe or to minimise the risk of a further notifiable incident; or

(d)that is associated with a police investigation; or

(e)for which an inspector or the regulator has given permission.

40Meaning of authorised

In this part, authorised means authorised by a licence, permit, registration or other authority (however described) as required under a regulation.

41Requirements for authorisation of workplaces

A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if—

(a)a regulation requires the workplace or workplaces in that class of workplace to be authorised; and

(b)the workplace is not authorised under the regulation.

Maximum penalty—500 penalty units.

42Requirements for authorisation of plant or substance

(1)A person must not use plant or a substance at a workplace if—

(a)a regulation requires the plant or substance or its design to be authorised; and

(b)the plant or substance or its design is not authorised under the regulation.

Maximum penalty—200 penalty units.

(2)A person who conducts a business or undertaking must not direct or allow a worker to use plant or a substance at a workplace if—

(a)a regulation requires the plant or substance or its design to be authorised; and

(b)the plant or substance or its design is not authorised in under a regulation.

Maximum penalty—200 penalty units.

43Requirements for authorisation of work

(1)A person must not carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b)the person, or the person on whose behalf the work is carried out, is not authorised under a regulation.

Maximum penalty—200 penalty units.

(2)A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b)the person, or the person on whose behalf the work is to be carried out, is not authorised under a regulation.

Maximum penalty—200 penalty units.

44Requirements for prescribed qualifications or experience

(1)A person must not carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and

(b)the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

Maximum penalty—200 penalty units.

(2)A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and

(b)the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

Maximum penalty—200 penalty units.

45Requirement to comply with conditions of authorisation

A person must comply with the conditions of any authorisation given to that person under a regulation.

Maximum penalty—200 penalty units.

46Duty to consult with other duty holders

If more than 1 person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.

Maximum penalty—200 penalty units.

47Duty to consult workers

(1)The person conducting a business or undertaking must, so far as is reasonably practicable, consult, as required under in this division and any regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty—200 penalty units.

(2)If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3)The agreed procedures must not be inconsistent with section 48.

48Nature of consultation

(1)Consultation under this division requires—

(a)that relevant information about the matter is shared with workers; and

(b)that workers be given a reasonable opportunity—

(i)to express their views and to raise work health or safety issues in relation to the matter; and

(ii)to contribute to the decision-making process relating to the matter; and

(c)that the views of workers are taken into account by the person conducting the business or undertaking; and

(d)that the workers consulted are advised of the outcome of the consultation in a timely way.

(2)If the workers are represented by a health and safety representative, the consultation must involve that representative.

49When consultation is required

Consultation under this division is required in relation to the following health and safety matters—

(a)when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;

(b)when making decisions about ways to eliminate or minimise those risks;

(c)when making decisions about the adequacy of facilities for the welfare of workers;

(d)when proposing changes that may affect the health or safety of workers;

(e)when making decisions about the procedures for—

(i)consulting with workers; or

(ii)resolving work health or safety issues at the workplace; or

(iii)monitoring the health of workers; or

(iv)monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or

(v)providing information and training for workers; or

(f)when carrying out any other activity prescribed under a regulation for this section.

50Request for election of health and safety representative

A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for 1 or more health and safety representatives to represent workers who carry out work for the business or undertaking.

51Determination of work groups

(1)If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of 1 or more work groups of workers.

(2)The purpose of determining a work group is to facilitate the representation of workers in the work group by 1 or more health and safety representatives.

(3)A work group may be determined for workers at 1 or more workplaces.

52Negotiations for agreement for work group

(1)A work group is to be determined by negotiation and agreement between—

(a)the person conducting the business or undertaking; and

(b)the workers who will form the work group or their representatives.

(2)The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50.

(3)The purpose of the negotiations is to determine—

(a)the number and composition of work groups to be represented by health and safety representatives; and

(b)the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and

(c)the workplace or workplaces to which the work groups will apply; and

(d)the businesses or undertakings to which the work groups will apply.

(4)The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.

(5)The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.

Maximum penalty—100 penalty units.

(6)A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups.

53Notice to workers

(1)The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.

Maximum penalty—20 penalty units.

(2)The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.

Maximum penalty—20 penalty units.

54Failure of negotiations

(1)If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section.

(2)An inspector appointed under subsection (1) may decide—

(a)the matters mentioned in section 52(3), or any of those matters which is the subject of the proposed variation (as the case requires); or

(b)that work groups should not be determined or that the agreement should not be varied (as the case requires).

(3)For this section, there is a failure of negotiations if—

(a)the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after—

(i)a request is made under section 50; or

(ii)a party to the agreement requests the variation of the agreement; or

(b)agreement can not be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence.

(4)A decision under this section is taken to be an agreement under section 52.

55Determination of work groups of multiple businesses

(1)Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces.

(2)The particulars of the work groups are to be determined by negotiation and agreement, under section 56, between each of the persons conducting the businesses or undertakings and the workers.

(3)The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.

(4)The determination of 1 or more work groups under this subdivision does not—

(a)prevent the determination under this subdivision or subdivision 2 of any other work group of the workers concerned; or

(b)affect any work groups of those workers that have already been determined under this subdivision or subdivision 2.

56Negotiation of agreement for work groups of multiple businesses

(1)Negotiations concerning work groups under this subdivision must be directed only at the following—

(a)the number and composition of work groups to be represented by health and safety representatives;

(b)the number of health and safety representatives and deputy health and safety representatives (if any) for each work group;

(c)the workplace or workplaces to which the work groups will apply;

(d)the businesses or undertakings to which the work groups will apply.

(2)A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.

Maximum penalty—100 penalty units.

(3)If agreement can not be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter.

(4)A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.

57Notice to workers

(1)A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.

Maximum penalty—20 penalty units.

(2)A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.

Maximum penalty—20 penalty units.

58Withdrawal from negotiations or agreement involving multiple businesses

(1)A party to a negotiation for an agreement, or to an agreement, concerning a work group under this subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties.

(2)If a party withdraws from an agreement concerning a work group under this subdivision—

(a)the other parties must negotiate a variation to the agreement under section 56; and

(b)the withdrawal does not affect the validity of the agreement between the other parties in the meantime.

59Effect of subdivision on other arrangements

To remove doubt, it is declared that, nothing in this subdivision affects the capacity of 2 or more persons conducting businesses or undertakings and their workers to enter into other agreements or make other arrangements, in addition to complying with this part, concerning the representation of those workers.

60Eligibility to be elected

A worker is—

(a)eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group; and

(b)not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative.

61Procedure for election of health and safety representatives

(1)The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted.

(2)However, an election must comply with the procedures (if any) prescribed under a regulation.

(3)If a majority of the workers in a work group so determine, the election may be conducted with the assistance of a union or other person or organisation.

(4)The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed under a regulation to enable elections to be conducted.

Maximum penalty—100 penalty units.

62Eligibility to vote

(1)A health and safety representative for a work group is to be elected by members of that work group.

(2)All workers in a work group are entitled to vote for the election of a health and safety representative for that work group.

63When election not required

If the number of candidates for election as a health and safety representative for a work group equals the number of vacancies, the election need not be conducted and each candidate is to be taken to have been elected as a health and safety representative for the work group.

64Term of office of health and safety representative

(1)A health and safety representative for a work group holds office for 3 years.

(2)However a person ceases to hold office as a health and safety representative for a work group if—

(a)the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking; or

(b)the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative; or

(c)the person is disqualified under section 65 from acting as a health and safety representative; or

(d)the person is removed from that position by a majority of the members of the work group under a regulation.

(3)A health and safety representative is eligible for re-election.

65Disqualification of health and safety representatives

(1)An application may be made to the commission to disqualify a health and safety representative on the ground that the representative has—

(a)exercised a power or performed a function as a health and safety representative for an improper purpose; or

(b)used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.

(2)The following persons may make an application under this section—

(a)any person adversely affected by—

(i)the exercise of a power or the performance of a function mentioned in subsection (1)(a); or

(ii)the use or disclosure of information mentioned in subsection (1)(b);

(b)the regulator.

(3)If the commission is satisfied that a ground in subsection (1) is made out, the commission may disqualify the health and safety representative for a stated period or indefinitely.

(4)A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note—

See the Industrial Relations Act 2016, chapter 11, part 6.

s 65 amd 2016 No. 63 s 1157 sch 6

66Immunity of health and safety representatives

A health and safety representative is not personally liable for anything done or omitted to be done in good faith—

(a)in exercising a power or performing a function under this Act; or

(b)in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act.

67Deputy health and safety representatives

(1)Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group.

(2)If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act—

(a)the powers and functions may be exercised or performed by a deputy health and safety representative for the work group; and

(b)this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety representative.

(3)Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives.

67ADefinition for subdivision

In this subdivision—

applicant means—

(a)if the application under section 65 is made by the regulator—the regulator; or

(b)if the application under section 65 is made by a person other than the regulator—the person and the regulator.

Note—

In relation to the numbering of this subdivision, see the note to section 3.

67BApplication of subdivision

This subdivision applies for the purpose of an application to the commission under section 65 to disqualify a health and safety representative.

67CDecision on application may be given on the papers or at a hearing

The commission may decide whether or not to take action on the application entirely or partly from a consideration of the documents filed.

67DApplications decided on the papers

(1)This section applies if the commission decides to decide the application after a consideration of the documents filed and without a hearing.

(2)The commission must give the applicant and the representative a written notice stating—

(a)the commission is considering whether to disqualify the representative for a period or indefinitely (the proposed action); and

(b)the reason for the proposed action; and

(c)if the proposed action is disqualification for a period—the proposed suspension period; and

(d)an invitation—

(i)to the representative to show in writing, within a stated time of at least 14 days after the date of the notice, why the proposed action should not be taken; and

(ii)to the applicant to comment in writing, within a stated time of at least 14 days after the date of the notice, on the appropriateness of the proposed action.

(3)The commission may take action under section 65(3) after considering all documents filed in the application and all written submissions made within the time allowed under subsection (2)(d).

(4)Under section 65(3), the commission may—

(a)if the proposed action is to disqualify the representative for a period—disqualify the representative for a stated period that is no longer than the proposed disqualification period; or

(b)if the proposed action is to disqualify the representative for an indefinite period—disqualify the representative indefinitely or for a period.

67EApplications decided at a hearing

(1)This section applies if the commission decides to decide the application at a hearing.

(2)The commission must give the applicant and the representative at least 14 days notice of the hearing date.

(3)To the extent practicable, the hearing is to be conducted under the rules applying to hearings of the commission under the Industrial Relations Act 2016 with necessary changes or, if the rules make no provision or insufficient provision, in accordance with directions of the commission.

(4)The commission may take action under section 65(3) after considering the evidence and submissions in relation to the application.

(5)The commission may—

(a)disqualify the representative for a stated period; or

(b)disqualify the representative indefinitely.

s 67E amd 2016 No. 63 s 1157 sch 6

67FNotice of decision

The commission must give the applicant and the representative a written notice stating—

(a)the decision; and

(b)the reasons for the decision; and

(c)that the applicant or the representative may appeal against the decision under the Industrial Relations Act 2016, chapter 11, part 6.

s 67F amd 2016 No. 63 s 1157 sch 6

68Powers and functions of health and safety representatives

(1)The powers and functions of a health and safety representative for a work group are—

(a)to represent the workers in the work group in matters relating to work health and safety; and

(b)to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group; and

(c)to investigate complaints from members of the work group relating to work health and safety; and

(d)to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

(2)In exercising a power or performing a function, the health and safety representative may—

(a)inspect the workplace or any part of the workplace at which a worker in the work group works—

(i)at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and

(ii)at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; and

(b)accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works; and

(c)with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and—

(i)an inspector; or

(ii)the person conducting the business or undertaking at that workplace or the person’s representative; and

(d)with the consent of 1 or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

(i)an inspector; or

(ii)the person conducting the business or undertaking at that workplace or the person’s representative; and

(e)request the establishment of a health and safety committee; and

(f)receive information concerning the work health and safety of workers in the work group; and

(g)whenever necessary, request the assistance of any person.

Note—

A health and safety representative also has a power under division 6 to direct work to cease in certain circumstances and under division 7 to issue provisional improvement notices.

(3)Despite subsection (2)(f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—

(a)does not identify the worker; and

(b)could not reasonably be expected to lead to the identification of the worker.

(4)Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

s 68 amd 2014 No. 14 s 6; 2015 No. 16 s 17

69Powers and functions generally limited to the particular work group

(1)A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group.

(2)Subsection (1) does not apply if—

(a)there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

(b)a member of another work group asks for the representative’s assistance;

and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.

(3)In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates.

70General obligations of person conducting business or undertaking

(1)The person conducting a business or undertaking must—

(a)consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking; and

(b)confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and

(c)allow any health and safety representative for the work group to have access to information that the person has relating to—

(i)hazards (including associated risks) at the workplace affecting workers in the work group; and

(ii)the health and safety of the workers in the work group; and

Note—

The issue resolution procedures in division 5, and the dispute resolution process in division 7A, can be used to resolve a dispute arising in relation to paragraph (c).

(d)with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and—

(i)an inspector; or

(ii)the person conducting the business or undertaking at that workplace or the person’s representative; and

(e)with the consent of 1 or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

(i)an inspector; or

(ii)the person conducting the business or undertaking at that workplace or the person’s representative; and

(f)provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed under a regulation to enable the representative to exercise his or her powers or perform his or her functions under this Act; and

(g)allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and

(h)permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works; and

(i)provide any other assistance to the health and safety representative for the work group that may be required under a regulation.

Maximum penalty—100 penalty units.

(2)The person conducting a business or undertaking must allow a health and safety representative to spend the time reasonably necessary to exercise his or her powers and perform his or her functions under this Act.

Maximum penalty—100 penalty units.

(3)Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

s 70 amd 2017 No. 38 s 28

71Exceptions from obligations under s 70(1)

(1)This section applies despite section 70(1).

(2)The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—

(a)does not identify the worker; and

(b)could not reasonably be expected to lead to the identification of the worker.

Maximum penalty—100 penalty units.

(3)The person conducting a business or undertaking is not required to give financial assistance to a health and safety representative for the purpose of the assistance mentioned in section 70(1)(f).

(4)The person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a work group to have access to the workplace—

(a)if the assistant has had his or her WHS entry permit revoked; or

(b)during any period that the assistant’s WHS entry permit is suspended or the assistant is disqualified from holding a WHS entry permit.

(5)The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group.

(6)If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter.

Note—

The dispute resolution process in division 7A can be used to resolve a dispute about the refusal of access to a person assisting a health and safety representative under subsection (5).

(7)The person conducting a business or undertaking may refuse to grant access to the information mentioned in section 70(1)(c) if the information is confidential commercial information.

(8)In this section—

confidential commercial information means—

(a)information about a trade secret; or

(b)financial information or other information that has a commercial value and, if disclosed, will cause significant financial harm to a business or undertaking.

s 71 amd 2014 No. 14 s 7; 2015 No. 16 s 18; 2017 No. 38 ss 5, 29

72Obligation to train health and safety representatives

(1)The person conducting a business or undertaking must ensure, so far as is reasonably practicable, a health and safety representative for a work group for that business or undertaking has completed the training prescribed by regulation.

Maximum penalty—100 penalty units.

(2)The person conducting a business or undertaking must—

(a)allow a health and safety representative time off work to attend the training; and

(b)pay the training fees and any other reasonable costs associated with the health and safety representative’s attendance at the training.

Maximum penalty—100 penalty units.

(3)If—

(a)a health and safety representative represents a work group of the workers of more than 1 business or undertaking; and

(b)the person conducting any of those businesses or undertakings has complied with this section in relation to the representative;

each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative.

(4)Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

s 72 amd 2017 No. 38 s 15

73Obligation to share costs if multiple businesses or undertakings

(1)If a health and safety representative, or deputy health and safety representative (if any), represents a work group of workers carrying out work for 2 or more persons conducting businesses or undertakings—

(a)the costs of the representative exercising powers and performing functions under this Act; and

(b)the costs mentioned in section 72(2)(b);

for which any of the persons conducting those businesses or undertakings are liable must be apportioned equally between each of those persons unless they agree otherwise.

(2)An agreement to apportion the costs in another way may be varied at any time by negotiation and agreement between each of the persons conducting the businesses or undertakings.

74List of health and safety representatives

A person conducting a business or undertaking must ensure that—

(a)a list of each health and safety representative and deputy health and safety representative (if any) for each work group of workers carrying out work for the business or undertaking is prepared and kept up to date; and

(b)as soon as practicable after the list is prepared or amended, a copy is given to the regulator; and

(c)a copy of the up-to-date list is displayed, in a way that is readily accessible to workers in each of the work groups—

(i)at the principal place of business of the business or undertaking; and

(ii)at any other workplace that is appropriate, taking into account the constitution of each work group.

Maximum penalty—20 penalty units.

s 74 amd 2014 No. 14 s 8

sub 2017 No. 38 s 6

75Health and safety committees

(1)The person conducting a business or undertaking at a workplace must establish a health and safety committee for the business or undertaking or part of the business or undertaking—

(a)within 2 months after being requested to do so by—

(i)a health and safety representative for a work group of workers carrying out work at that workplace; or

(ii)5 or more workers at that workplace; or

(b)if required under a regulation to do so, within the time prescribed under a regulation.

Maximum penalty—50 penalty units.

(2)A person conducting a business or undertaking at a workplace may establish a health and safety committee for the workplace or part of the workplace on the person’s own initiative.

Note—

If a health and safety committee is not required to be established, other consultation procedures can be established for a workplace—see division 2.

76Constitution of committee

(1)Subject to subsections (2) to (4), the constitution of a health and safety committee may be agreed between the person conducting the business or undertaking and the workers at the workplace.

(2)The membership of the committee must include—

(a)if there is a health and safety representative at a workplace and the representative consents to being a member—the representative; and

(b)if there is a work health and safety officer at the workplace—the officer.

(3)If there are 2 or more health and safety representatives at a workplace, those representatives may choose 1 or more of their number (who consent) to be members of the committee.

(4)At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking.

(5)If agreement is not reached under this section within a reasonable time, any party may ask the regulator to appoint an inspector to decide the matter.

(6)An inspector appointed on a request under subsection (5) may decide the constitution of the health and safety committee or that the committee should not be established.

(7)A decision of an inspector under this section is taken to be an agreement under this section between the parties.

s 76 amd 2017 No. 38 s 16

77Functions of committee

The functions of a health and safety committee are—

(a)to facilitate cooperation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers’ health and safety at work; and

(b)to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace; and

(c)any other functions prescribed under a regulation or agreed between the person conducting the business or undertaking and the committee.

78Meetings of committee

A health and safety committee must meet—

(a)at least once every 3 months; and

(b)at any reasonable time if—

(i)at least half the members of the committee request that the committee meet; or

(ii)if there is a work health and safety officer at the workplace—the work health and safety officer requests that the committee meet.

s 78 amd 2017 No. 38 s 17

79Duties of person conducting business or undertaking

(1)The person conducting a business or undertaking must allow each member of the health and safety committee to spend the time that is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee.

Maximum penalty—100 penalty units.

(2)Any time that a member of a health and safety committee spends for the purposes set out in subsection (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(3)The person conducting a business or undertaking must allow the health and safety committee for a workplace to have access to information that the person has relating to—

(a)hazards (including associated risks) at the workplace; and

(b)the health and safety of the workers at the workplace.

Maximum penalty—100 penalty units.

(4)Despite subsection (3), the person conducting a business or undertaking must not allow the health and safety committee to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—

(a)does not identify the worker; and

(b)could not reasonably be expected to lead to the identification of the worker.

Maximum penalty—100 penalty units.

80Parties to an issue

(1)In this division, parties, in relation to an issue, means the following—

(a)the person conducting the business or undertaking or the person’s representative;

(b)if the issue involves more than 1 business or undertaking, the person conducting each business or undertaking or the person’s representative;

(c)if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative;

(d)if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative.

(2)A person conducting a business or undertaking must ensure that the person’s representative (if any) for the purposes of this division—

(a)is not a health and safety representative; and

(b)has an appropriate level of seniority, and is sufficiently competent, to act as the person’s representative.

81Resolution of health and safety issues

(1)This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue.

(2)The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed under a regulation.

(3)A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.

82Referral of issue to regulator for resolution by inspector

(1)This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue.

(2)A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue.

Note—

The dispute resolution process in division 7A can be used to resolve the issue.

(3)A request to the regulator under this section does not prevent—

(a)a worker from exercising the right under division 6 to cease work; or

(b)a health and safety representative from issuing a provisional improvement notice or a direction under division 6 to cease work.

(4)On attending a workplace under this section, an inspector may exercise any of the inspector’s compliance powers under this Act in relation to the workplace.

s 82 amd 2014 No. 14 s 9; 2015 No. 16 s 19; 2017 No. 38 s 30

83Definition of cease work under this division

In this division, cease work under this division means—

(a)to cease, or refuse, to carry out work under section 84; or

(b)to cease work on a direction under section 85.

s 83 amd 2014 No. 14 s 10

sub 2015 No. 16 s 20

84Right of worker to cease unsafe work

A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

85Health and safety representative may direct that unsafe work cease

(1)A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

(2)However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after—

(a)consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and

(b)attempting to resolve the matter as an issue under division 5.

(3)The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under division 5 if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.

(4)The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).

(5)The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section.

(6)A health and safety representative can not give a direction under this section unless the representative has—

(a)completed initial training prescribed by regulation under section 72(1); or

(b)previously completed that training when acting as a health and safety representative for another work group; or

(c)completed training equivalent to that training under a corresponding WHS law.

s 85 prev s 85 om 2014 No. 14 s 11

pres s 85 ins 2015 No. 16 s 21

amd 2017 No. 38 s 18

86Worker to notify if ceases work

A worker who ceases work under this division must—

(a)as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this division unless the worker ceased work under a direction from a health and safety representative; and

(b)remain available to carry out suitable alternative work.

s 86 amd 2014 No. 14 s 12; 2015 No. 16 s 22

87Alternative work

If a worker ceases work under this division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties.

88Continuity of engagement of worker

If a worker ceases work under this division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work—

(a)at the same or another workplace; and

(b)that was safe and appropriate for the worker to carry out.

89Request to regulator to appoint inspector to assist

The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work.

Note—

The issue resolution procedures in division 5, and the dispute resolution process in division 7A, can also be used to resolve an issue arising in relation to the cessation of work.

s 89 amd 2017 No. 38 s 31

90Provisional improvement notices

(1)This section applies if a health and safety representative reasonably believes that a person—

(a)is contravening a provision of this Act; or

(b)has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.

(2)The health and safety representative may issue a provisional improvement notice requiring the person to—

(a)remedy the contravention; or

(b)prevent a likely contravention from occurring; or

(c)remedy the things or operations causing the contravention or likely contravention.

(3)However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

(4)A health and safety representative can not issue a provisional improvement notice unless the representative has—

(a)completed initial training prescribed by regulation under section 72(1); or

(b)previously completed that training when acting as a health and safety representative for another work group; or

(c)completed training equivalent to that training under a corresponding WHS law.

(5)A health and safety representative can not issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.

s 90 amd 2017 No. 38 s 19

91Provisional improvement notice to be in writing

A provisional improvement notice must be in writing.

92Contents of provisional improvement notice

A provisional improvement notice must state—

(a)that the health and safety representative believes the 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 the contravention will continue or be repeated; and

(b)the provision the representative believes is being, or has been, contravened; and

(c)briefly, how the provision is being, or has been contravened; and

(d)the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.

93Provisional improvement notice may give directions to remedy contravention

(1)A provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates.

(2)A direction included in a provisional improvement notice may—

(a)refer to a code of practice; and

(b)offer the person to whom it is issued a choice of ways in which to remedy the contravention.

94Minor changes to provisional improvement notice

A health and safety representative may make minor changes to a provisional improvement notice—

(a)for clarification; or

(b)to correct errors or references; or

(c)to reflect changes of address or other circumstances.

95Issue of provisional improvement notice

A provisional improvement notice may be issued to a person under section 209.

96Health and safety representative may cancel notice

The health and safety representative may at any time cancel a provisional improvement notice issued to a person by written notice given to that person.

97Display of provisional improvement notice

(1)A person to whom a provisional improvement notice is issued must as soon as practicable display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.

Maximum penalty—50 penalty units.

(2)A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) during the period that the notice is in force.

Maximum penalty—50 penalty units.

97APerson conducting business or undertaking to give copy of provisional improvement notice to regulator

(1)This section applies if a health and safety representative issues a provisional improvement notice to a person conducting a business or undertaking.

(2)As soon as practicable after the provisional improvement notice is issued, the person conducting the business or undertaking must give the regulator a copy of the notice.

Maximum penalty—50 penalty units.

s 97A ins 2017 No. 38 s 6A

98Formal irregularities or defects in notice

A provisional improvement notice is not invalid only because of—

(a)a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or

(b)a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person.

99Offence to contravene a provisional improvement notice

(1)This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace.

(2)The person must comply with the provisional improvement notice within the time stated in the notice.

Maximum penalty—500 penalty units.

100Request for review of provisional improvement notice

(1)Within 7 days after a provisional improvement notice is issued to a person—

(a)the person to whom it was issued; or

(b)if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work;

may ask the regulator to appoint an inspector to review the notice.

(2)If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review.

101Regulator to appoint inspector to review notice

(1)The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100.

(2)The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice.

(3)An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired.

102Decision of inspector on review of provisional improvement notice

(1)After reviewing the provisional improvement notice, the inspector must—

(a)confirm the provisional improvement notice; or

(b)confirm the provisional improvement notice with changes; or

(c)cancel the provisional improvement notice.

(2)The inspector must give a copy of his or her decision to—

(a)the applicant for the review of the provisional improvement notice; and

(b)the health and safety representative who issued the notice.

(3)A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act.

pt 5 div 7A hdg ins 2017 No. 38 s 32

102ADefinitions for division

In this division—

dispute means a dispute about a WHS matter that exists between any of the following persons—

(a)a person conducting a business or undertaking;

(b)a worker affected by the WHS matter;

(c)a health and safety representative affected by the WHS matter;

(d)a relevant union for the WHS matter.

relevant union, for a WHS matter, means a union of which a worker who works at the workplace is a member or eligible to be a member.

WHS matter means any of the following matters—

(a)access to information by a health and safety representative under section 70(1)(c);

(b)a request by a health and safety representative for an assistant to have access to the workplace under section 70(1)(g);

(c)a matter about work health and safety that is an issue to which division 5 applies;

(d)an issue about cessation of work under division 6.

Note—

In relation to the numbering of this division, see the note to section 3.

s 102A ins 2017 No. 38 s 32

102BNotice of dispute may be given to commission

(1)This section applies if a dispute remains unresolved at least 24 hours after any of the parties to the dispute has, under another provision of this part, asked the regulator to appoint an inspector to assist in resolving the dispute.

Note—

See also section 71(5), 82(2) or 89 in relation to a request by a party that the regulator appoint an inspector to assist in resolving the dispute.

(2)A party to the dispute may give the industrial registrar written notice of the dispute.

(3)The notice must state each of the following matters—

(a)the names of the parties to the dispute;

(b)the workplace where the dispute exists;

(c)the WHS matter the subject of the dispute;

(d)whether a decision made by an inspector to exercise, or not to exercise, compliance powers under part 10 to assist in resolving the dispute is subject to review under part 12.

(4)On receiving the notice, the industrial registrar must immediately publish it on the QIRC website within the meaning of the Industrial Relations Act 2016.

(5)A relevant union for the WHS matter may notify the industrial registrar, in writing, that the union wants to participate in the resolution of the dispute.

(6)A relevant union that gives notice under subsection (5) is taken to be a party to the dispute for the purposes of this division.

s 102B ins 2017 No. 38 s 32

102CAction for settling dispute

(1)This section applies if notice of a dispute has been given under section 102B.

(2)The commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration.

(3)Without limiting subsection (2), if the commission deals with the dispute by arbitration, the commission may make any order it considers appropriate for the prompt settlement of the dispute.

(4)A person must not contravene an order made under subsection (3).
WHS civil penalty provision.
Maximum penalty—100 penalty units.

s 102C ins 2017 No. 38 s 32

102DReview of particular decisions made by inspector

(1)In dealing with the dispute, the commission may review a decision (a compliance decision) made by an inspector to exercise, or not to exercise, compliance powers under part 10 to assist in resolving the dispute.

(2)If the commission reviews a compliance decision under subsection (1), the commission—

(a)may decide to—

(i)confirm or vary the compliance decision; or

(ii)set aside the compliance decision and substitute another decision the commission considers appropriate; or

(iii)set aside the compliance decision and return the matter to the inspector who made it with directions the commission considers appropriate; and

(b)must give the regulator notice of—

(i)the commission’s decision to review the compliance decision; and

(ii)any decision made by the commission under paragraph (a) (the review decision).

(3)A notice mentioned in subsection (2)(b)(i) must state that any review of the compliance decision, or any stay of the operation of the compliance decision, under part 12 ends on the making of the commission’s decision to review the compliance decision under this section.

(4)Despite section 102C(3), the commission must not make an order staying the operation of the compliance decision.

(5)A compliance decision reviewed by the commission under this section is, from the time the commission decides to review the decision, taken not to be a reviewable decision under section 223.

(6)If the compliance decision is or has been the subject of review proceedings under part 12—

(a)any review of the compliance decision, or any stay of the operation of the compliance decision, under that part ends when the commission decides to review the compliance decision; and

(b)subsection (5) does not affect the validity of any action taken under part 12 before the making of the commission’s decision to review the compliance decision.

s 102D ins 2017 No. 38 s 32

102EDecision not to deal with dispute

(1)The commission may decide not to deal with a dispute about a WHS matter if—

(a)notice of the dispute was not given in accordance with section 102B; or

(b)the commission considers the WHS matter the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance.

(2)Subsection (1) does not limit the grounds on which the commission may decide not to deal with the dispute.

(3)The commission may make a decision under subsection (1) on its own initiative.

s 102E ins 2017 No. 38 s 32

102FCosts

(1)A party to a dispute notified to the commission under this division must bear the party’s own costs in relation to the dispute.

(2)However, the commission may order a party (the first party) to pay costs incurred by another party in relation to the dispute if the commission is satisfied—

(a)the WHS matter the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance; and

(b)the first party notified the dispute to the commission or has otherwise acted without reasonable cause in relation to the dispute.

(3)If the commission orders the payment of costs, the amount ordered may be recovered as a debt.

(4)Subsection (3) does not limit other ways in which amounts may be recovered on an order of the commission.

s 102F ins 2017 No. 38 s 32

102GAppeal

A person dissatisfied with a decision made by the commission under this division may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

s 102G ins 2017 No. 38 s 32

103Part does not apply to prisoners and detainees

Nothing in this part applies to a worker who is—

(a)under the Corrective Services Act 2006, a prisoner detained in a corrective services facility; or

(b)under the Youth Justice Act 1992, a person detained in a detention centre; or

(c)under the Police Powers and Responsibilities Act 2000, a person in custody in a watch-house.

pt 5A hdg ins 2017 No. 38 s 20

103A Appointment

(1)A person conducting a business or undertaking may appoint, as a work health and safety officer for that business or undertaking, a person who holds a certificate of authority for appointment as a work health and safety officer.

(2)A person conducting a business or undertaking may appoint himself or herself as a work health and safety officer for that business or undertaking under subsection (1).

Note—

In relation to the numbering of this part, see the note to section 3.

s 103A ins 2017 No. 38 s 20

103B General functions of work health and safety officer who is not the person conducting the business or undertaking

(1)This section applies to a work health and safety officer if the officer is not the person conducting the business or undertaking.

(2)The functions of the work health and safety officer are—

(a)to notify the person conducting the business or undertaking about work health and safety matters; and

(b)to identify hazards and risks to health and safety arising from the work carried out as part of the conduct of the business or undertaking; and

(c)to report, in writing to the person conducting the business or undertaking, any hazards and risks identified under paragraph (b); and

(d)to immediately notify the person conducting the relevant business or undertaking about—

(i)any incident the work health and safety officer is aware has occurred at the business or undertaking; or

(ii)any immediate or imminent risk to health and safety at the business or undertaking; and

(e)to investigate, or assist in the investigation of, any incidents that occurred at the business or undertaking; and

(f)to accompany and assist an inspector during an inspection of the business or undertaking; and

(g)to establish educational and training programs on matters relating to work health and safety; and

(h)any other function prescribed by regulation.

s 103B ins 2017 No. 38 s 20

103C General functions of work health and safety officer who is the person conducting the business or undertaking

(1)This section applies to a work health and safety officer if the officer is the person conducting the business or undertaking.

(2)The functions of the work health and safety officer are—

(a)to investigate, or assist in the investigation of, any incidents that occurred at the business or undertaking; and

(b)to accompany and assist an inspector during an inspection of the business or undertaking; and

(c)to establish educational and training programs on matters relating to work health and safety; and

(d)any other function prescribed by regulation.

s 103C ins 2017 No. 38 s 20

103D Assessment functions

(1)A work health and safety officer must, at least every 12 months or within any other intervals agreed under subsection (2) for the business or undertaking—

(a)assess risks to health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(b)if there is a work health and safety criteria for the business or undertaking—assess the risks in accordance with the criteria; and

(c)comply with section 103E in relation to the assessment.

(2)If there is a health and safety committee at the business or undertaking, the committee and the work health and safety officer may agree on the intervals within which the officer must carry out the functions mentioned in subsection (1).

(3)In this section—

work health and safety criteria, for a business or undertaking, means a work health and safety criteria approved by a health and safety committee for the business or undertaking.

s 103D ins 2017 No. 38 s 20

103E Assessment reports

(1)The work health and safety officer must—

(a)prepare a report (an assessment report) for the assessment carried out under section 103D(1); and

(b)if the assessment identifies any risks to health and safety arising from the work carried out as part of the conduct of the business or undertaking—include in the report recommendations about managing the risks.

(2)The work health and safety officer must, within 30 days after the assessment has been carried out, give a copy of the assessment report to—

(a)if the work health and safety officer is not the person conducting the business or undertaking—the person conducting the business or undertaking; and

(b)if there is a health and safety committee at the business or undertaking—the committee.

s 103E ins 2017 No. 38 s 20

103F General obligations of person conducting business or undertaking to work health and safety officer

(1)This section applies to a person conducting a business or undertaking if the person has appointed another person as a work health and safety officer for the business or undertaking.

(2)The person conducting the business or undertaking must—

(a)give the work health and safety officer information that the person has about risks to the health and safety of workers and any other person at the business or undertaking; and

(b)with the consent of a worker, allow the work health and safety officer to be present at an interview concerning work health and safety matters between the worker and the person; and

(c)consult, so far as is reasonably practicable, with the work health and safety officer about any proposed changes to workplace practices that affect, or may affect, work health and safety at the business or undertaking; and

(d)allow the work health and safety officer to inspect the business or undertaking and carry out assessments at the business or undertaking during normal working hours; and

(e)take appropriate action to manage—

(i)any hazards and risks notified to the person by the work health and safety officer or included in an assessment report prepared by the work health and safety officer; and

(ii)any incidents or immediate or imminent risks that have been notified to the person by the work health and safety officer; and

(f)provide resources and assistance to the work health and safety officer that are reasonably necessary to enable the officer to exercise the officer’s functions under this Act; and

(g)keep an assessment report given to the person for at least 5 years.

Maximum penalty—50 penalty units.

(3)The person conducting the business or undertaking may instruct the work health and safety officer to take reasonable action to eliminate or minimise risks to health and safety.

s 103F ins 2017 No. 38 s 20

103G Immunity for work health and safety officers

A work health and safety officer who is not the person conducting the business or undertaking is not personally liable for anything done or omitted to be done in good faith—

(a)in performing a function under this Act; or

(b)in the reasonable belief that the thing was done or omitted to be done in the performance of a function under this Act.

s 103G ins 2017 No. 38 s 20

103H Appointment of work health and safety officers does not affect duties and obligations under this Act

The appointment of a work health and safety officer at a business or undertaking by a person conducting the business or undertaking does not affect any duty or obligation owed by the person under this Act.

s 103H ins 2017 No. 38 s 20

103I Displaying identities

(1)The person conducting a business or undertaking must display, under this section, an up-to-date list of each work health and safety officer for the business or undertaking.

Maximum penalty—40 penalty units.

(2)The list must—

(a)be displayed within 5 days after the day a work health and safety officer is appointed for that business or undertaking; and

(b)be displayed in at least 1 conspicuous place at the business or undertaking and in a way that ensures it can be seen by workers at the business or undertaking.

s 103I ins 2017 No. 38 s 20

104Prohibition of discriminatory conduct

(1)A person must not engage in discriminatory conduct for a prohibited reason.

Maximum penalty—1,000 penalty units.

(2)A person commits an offence under subsection (1) only if the reason mentioned in section 106 was the dominant reason for the discriminatory conduct.

Note—

Civil proceedings may be taken under division 3 in relation to discriminatory conduct engaged in for a prohibited reason.

105What is discriminatory conduct

(1)For this part, a person engages in discriminatory conduct if—

(a)the person—

(i)dismisses a worker; or

(ii)terminates a contract for services with a worker; or

(iii)puts a worker to his or her detriment in the engagement of the worker; or

(iv)alters the position of a worker to the worker’s detriment; or

(b)the person—

(i)refuses or fails to offer to engage a prospective worker; or

(ii)treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or

(c)the person terminates a commercial arrangement with another person; or

(d)the person refuses or fails to enter into a commercial arrangement with another person.

(2)For this part, a person also engages in discriminatory conduct if the person organises to take any action mentioned in subsection (1) or threatens to organise or take that action.

106What is a prohibited reason

Conduct mentioned in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person mentioned in section 105(1)(c) or (d) (as the case requires)—

(a)is, has been or proposes to be a work health and safety officer, a health and safety representative or a member of a health and safety committee; or

(b)undertakes, has undertaken or proposes to undertake another role under this Act; or

(c)exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a work health and safety officer, as a health and safety representative or as a member of a health and safety committee; or

(d)exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way; or

(e)performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way; or

(f)refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way; or

(g)assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act; or

(h)raises or has raised or proposes to raise an issue or concern about work health and safety with—

(i)the person conducting a business or undertaking; or

(ii)an inspector; or

(iii)a WHS entry permit holder; or

(iv)a health and safety representative; or

(v) a work health and safety officer who is not the person conducting the business or undertaking; or

(vi)a member of a health and safety committee; or

(vii)another worker; or

(viii)any other person who has a duty under this Act in relation to the matter; or

(ix)any other person exercising a power or performing a function under this Act; or

(i)is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act; or

(j)is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act.

s 106 amd 2017 No. 38 s 21

107Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct

A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104.

Maximum penalty—1,000 penalty units.

Note—

Civil proceedings may be taken under division 3 if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason.

108Prohibition of coercion or inducement

(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person—

(a)to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act; or

(b)to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act; or

(c)to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way; or

(d)to refrain from seeking, or continuing to undertake, a role under this Act.

Maximum penalty—1,000 penalty units.

Note—

Civil proceedings may be taken under division 3 in relation to a contravention of this section.

(2)In this section, a reference to taking action or threatening to take action against a person includes a reference to not taking a particular action or threatening not to take a particular action in relation to that person.

(3)To remove doubt it is declared that, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person.

(4)In this section—

emergency services worker means a person who under an Act is authorised to give directions to anyone else for the purposes of an emergency.

109Misrepresentation

(1)A person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s—

(a)rights or obligations under this Act; or

(b)ability to initiate, or participate in, a process or proceedings under this Act; or

(c)ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act.

Maximum penalty—1,000 penalty units.

(2)Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

110Proof of discriminatory conduct

(1)This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution—

(a)proves that the discriminatory conduct was engaged in; and

(b)proves that a circumstance mentioned in section 106(a) to (j) existed at the time the discriminatory conduct was engaged in.

(2)If it is alleged that the discriminatory conduct was engaged in for a prohibited reason, that reason is presumed to be the dominant reason for that conduct unless the defendant proves on the balance of probabilities, that the reason was not the dominant reason for the conduct.

(3)To remove doubt it is declared that, the burden of proof on the defendant under subsection (2) is a legal burden of proof.

111Order for compensation or reinstatement

If a person is convicted or found guilty of an offence against section 104 or 107, the court may (in addition to imposing a penalty) make either or both of the following orders—

(a)an order that the offender pay (within a stated period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate;

(b)in relation to a person who was or is an employee or prospective employee, an order that—

(i)the person be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or

(ii)the person be employed in the position for which he or she had applied or a similar position.

112Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct

(1)An eligible person may apply to a Magistrates Court for an order under this section.

Note—

The Uniform Civil Procedure Rules 1999 generally apply.

(2)The court may make 1 or more of the orders set out in subsection (3) in relation to a person who has—

(a)engaged in discriminatory conduct for a prohibited reason; or

(b)requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or

(c)contravened section 108.

(3)For subsection (2), the orders that the court may make are—

(a)an injunction; or

(b)in the case of conduct mentioned in subsection (2)(a) or (b), an order that the person pay (within a stated period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate; or

(c)in the case of conduct mentioned in subsection (2)(a) in relation to a worker who was or is an employee or prospective employee, an order that—

(i)the worker be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or

(ii)the prospective worker be employed in the position for which he or she had applied or a similar position; or

(d)any other order that the court considers appropriate.

(4)For this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason mentioned in section 106 was a substantial reason for the conduct.

(5)Nothing in this section is to be construed as limiting any other power of the court.

(6)For this section, each of the following is an eligible person—

(a)a person affected by the contravention;

(b)a person authorised as a representative by a person mentioned in paragraph (a).

113Procedure for civil actions for discriminatory conduct

(1)A proceeding taken under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued.

(2)In a proceeding under section 112 in relation to conduct mentioned in section 112(2)(a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(3)It is a defence to a proceeding under section 112 in relation to conduct mentioned in section 112(2)(a) or (b) if the defendant proves that—

(a)the conduct was reasonable in the circumstances; and

(b)a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law.

(4)To remove doubt, it is declared that, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof.

114General provisions relating to orders

(1)The making of an order in a proceeding under section 112 in relation to conduct mentioned in section 112(2)(a) or (b) does not prevent the bringing of a proceeding for an offence under section 104 or 107 in relation to the same conduct.

(2)If a court makes an order under section 112 in a proceeding in relation to conduct mentioned in section 112(2)(a) or (b), a court can not make an order under section 111 in a proceeding for an offence under section 104 or 107 in relation to the same conduct.

(3)If a court makes an order under section 111 in a proceeding for an offence under section 104 or 107, a court can not make an order under section 112 in a proceeding in relation to conduct mentioned in section 112(2)(a) or (b) that is the same conduct.

115Prohibition of multiple actions

A person can not—

(a)commence a proceeding under division 3 if the person has commenced a proceeding or made an application or complaint in relation to the same matter under a law of the Commonwealth or a State and that proceeding, application or complaint has not been withdrawn; or

(b)recover any compensation under division 3 if the person has received compensation for the matter under a law of the Commonwealth or a State; or

(c)commence or continue an application under division 3 if the person has failed in a proceeding, application or complaint in relation to the same matter under a law of the Commonwealth or a State, other than a proceeding, application or complaint relating to workers’ compensation.

116Definitions

In this part—

official of a union means a person who holds an office in, or is an employee of, the union.

relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry.

relevant union means the union that a WHS entry permit holder represents.

relevant worker, in relation to a workplace, means a worker—

(a)who is a member, or eligible to be a member, of a relevant union; and

(b)whose industrial interests the relevant union is entitled to represent; and

(c)who works at that workplace.

117Entry to inquire into suspected contraventions

(1)A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.

(2)The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

118Rights that may be exercised while at workplace

(1)While at the workplace under this division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act—

(a)inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

(b)consult with the relevant workers in relation to the suspected contravention;

(c)consult with the relevant person conducting a business or undertaking about the suspected contravention;

(d)require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—

(i)is kept at the workplace; or

(ii)is accessible from a computer that is kept at the workplace;

(e)warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

(2)However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

(3)A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

WHS civil penalty provision.

Maximum penalty—100 penalty units.

(4)Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.

Notes—

1At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120.

2The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.

119Notice of entry

(1)A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this division, give notice of the entry and the suspected contravention, as prescribed by regulation, to—

(a)the relevant person conducting a business or undertaking; and

(b)the person with management or control of the workplace.

(2)Subsection (1) does not apply if to give the notice would—

(a)defeat the purpose of the entry to the workplace; or

(b)unreasonably delay the WHS entry permit holder in an urgent case.

(3)Subsection (1) does not apply to an entry to a workplace under this division to inspect or make copies of documents mentioned in section 120.

s 119 sub 2014 No. 14 s 13; 2015 No. 16 s 23

120Entry to inspect employee records or information held by another person

(1)This section applies if a WHS entry permit holder is entitled under section 117 to enter a workplace to inquire into a suspected contravention of this Act.

(2)For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of—

(a)employee records that are directly relevant to a suspected contravention; or

(b)other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking.

(3)Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking.

(4)The notice must comply with a regulation made for this section.

(5)The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.

Note—

The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.

121Entry to consult and advise workers

(1)A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, 1 or more relevant workers who wish to participate in the discussions.

(2)A WHS entry permit holder may, after entering a workplace under this division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

122Notice of entry

(1)Before entering a workplace under this division, a WHS entry permit holder must give notice of the proposed entry to—

(a)the relevant person conducting a business or undertaking; and

(b)the person with management or control of the workplace.

(2)The notice must comply with a regulation made for this section.

(3)The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.

s 122 amd 2014 No. 14 s 14

123Contravening WHS entry permit conditions

A WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

s 123 amd 2014 No. 14 s 15; 2015 No. 16 s 24

124WHS entry permit holder must also hold permit under other law

A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or an industrial officer authority.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

125WHS entry permit to be available for inspection

A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under division 2 or 3, have his or her WHS entry permit and photographic identification available for inspection by any person on request.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

126When right may be exercised

A WHS entry permit holder may exercise a right under division 2 or 3 only during the usual working hours at the workplace.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

127Where the right may be exercised

A WHS entry permit holder may exercise a right of entry to a workplace only in relation to—

(a)the area of the workplace where the relevant workers work; or

(b)any other work area that directly affects the health or safety of those workers.

128Work health and safety requirements

A WHS entry permit holder must not exercise a right of entry to a workplace under division 2 or 3 unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with—

(a)any work health and safety requirement that applies to the workplace; and

(b)any other legislated requirement that applies to that type of workplace.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

129Residential premises

A WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

130WHS entry permit holder not required to disclose names of workers

(1)A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace.

(2)A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker.

131Application for WHS entry permit

(1)A union may apply to the industrial registrar for the issue of a WHS entry permit to a person who is an official of the union.

(2)The application must specify the person who is to hold the WHS entry permit and include a statutory declaration by that person declaring that he or she—

(a)is an official of the union; and

(b)has satisfactorily completed the prescribed training; and

(c)holds, or will hold, an entry permit under the Fair Work Act or an industrial officer authority.

132Consideration of application

In considering whether to issue a WHS entry permit, the industrial registrar must take into account—

(a)the object of this Act; and

(b)the object of allowing union right of entry to workplaces for work health and safety purposes.

133Eligibility criteria

The industrial registrar must not issue a WHS entry permit to an official of a union unless the industrial registrar is satisfied that the official—

(a)is an official of the union; and

(b)has satisfactorily completed the prescribed training; and

(c)holds, or will hold, an entry permit under the Fair Work Act or an industrial officer authority.

134Issue of WHS entry permit

(1)The industrial registrar may issue a WHS entry permit to a person if the industrial registrar has taken into account the matters in section 132 and is satisfied about the matters in section 133.

(2)A person dissatisfied with the decision of the industrial registrar may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note—

See the Industrial Relations Act 2016, chapter 11, part 6.

s 134 amd 2016 No. 63 s 1157 sch 6

135Conditions on WHS entry permit

The industrial registrar may impose conditions on a WHS entry permit.

136Term of WHS entry permit

A WHS entry permit has effect for a term of 3 years from the date it is issued.

137Expiry of WHS entry permit

(1)Unless it is earlier revoked, a WHS entry permit expires at the first of the following to occur—

(a)at the end of the term of the WHS entry permit;

(b)at the end of the term of the entry permit held by the WHS entry permit holder under the Fair Work Act or of the industrial officer authority;

(c)when the permit holder ceases to be an official of the union that applied for the permit;

(d)the union that applied for the permit ceases to be—

(i)an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or

(ii)an association of employees or independent contractors, or both, that is registered or recognised as an association of that type (however described) under the Industrial Relations Act 2016.

(2)An application may be made for the issue of a subsequent WHS entry permit before or after the current WHS entry permit expires.

s 137 amd 2016 No. 63 s 1157 sch 6

138Application to revoke WHS entry permit

(1)The following persons may apply to the commission for a WHS entry permit held by a person to be revoked—

(a)the regulator;

(b)the relevant person conducting a business or undertaking;

(c)any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this part;

(d)any other person affected by the exercise or purported exercise of a right under this part by a WHS entry permit holder.

(2)The grounds for an application for revocation of a WHS entry permit are—

(a)that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or for an industrial officer authority; or

(b)that the permit holder has contravened any condition of the WHS entry permit; or

(c)that the permit holder has acted or purported to act in an improper way in the exercise of any right under this Act; or

(d)in exercising or purporting to exercise a right under this part, that the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace.

(3)The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned.

(4)The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application.

139Commission must permit WHS entry permit holder to show cause

(1)If, on an application under section 138, the commission is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the commission must—

(a)give the WHS entry permit holder written notice (a show cause notice); and

(b)if the commission considers it appropriate, suspend the operation of the WHS entry permit until the commission decides the application for revocation.

(2)The show cause notice must—

(a)contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the commission written reasons explaining why the WHS entry permit should not be revoked; and

(b)be accompanied by a summary of the reasons for the application; and

(c)if applicable, be accompanied by a notice of suspension of the permit.

140Determination of application

(1)If the commission is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make 1 or more of the following orders—

(a)an order imposing conditions on the WHS entry permit;

(b)an order suspending the WHS entry permit;

(c)an order revoking the WHS entry permit;

(d)an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked;

(e)an order imposing any alternative action the commission considers appropriate.

(2)In deciding what action to take under subsection (1), in relation to a person, the commission must take into account—

(a)the seriousness of any findings of the commission having regard to the object of this Act; and

(b)any other matters the commission considers relevant.

(3)A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note—

See the Industrial Relations Act 2016, chapter 11, part 6.

s 140 amd 2016 No. 63 s 1157 sch 6

pt 7 div 6 sdiv 1 hdg ins 2017 No. 38 s 33

141Application for assistance of inspector to resolve dispute

If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute.

141APowers of inspector asked to assist in resolving dispute

(1)This section applies if—

(a)an inspector is appointed by the regulator under section 141 to assist in resolving a dispute; and

(b)the dispute is about—

(i)whether the WHS entry permit holder has a right to enter the workplace under division 2 or 3; or

(ii)whether section 119 or 122 has been complied with in relation to notice of the entry or purported entry.

Note—

This section does not apply if the dispute is about rights the WHS entry permit holder may exercise while at the workplace under division 2 or 3.

(2)The inspector may—

(a)decide the matter mentioned in subsection (1)(b)(i) or (ii); and

(b)if the inspector is reasonably satisfied the WHS entry permit holder has a right of entry under division 2 or 3—give the person conducting the business or undertaking a direction, in writing, to immediately allow the WHS entry permit holder to enter the workplace under a stated provision of division 2 or 3.

Note—

The commission may review a decision made under subsection (2) in dealing with a dispute under subdivision 2—see section 142A.

(3)A direction under subsection (2)(b) must state—

(a)that the inspector is reasonably satisfied the WHS entry permit holder has a right to enter the workplace under division 2 or 3; and

(b)the reasons the inspector is reasonably satisfied about the right to enter.

(4)A person given a direction under subsection (2)(b) must comply with it.

WHS civil penalty provision.
Maximum penalty—100 penalty units.

(5)This section does not limit the powers of the inspector under this Act.

Example of powers of the inspector—

the inspector’s power to issue a notice under part 10

s 141A ins 2017 No. 38 s 34

pt 7 div 6 sdiv 2 hdg ins 2017 No. 38 s 35

142Commission may deal with a dispute about a right of entry under this Act

(1)The commission may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable).

(2)The commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration.

(3)If the commission deals with the dispute by arbitration, it may make 1 or more of the following orders—

(a)an order imposing conditions on a WHS entry permit;

(b)an order suspending a WHS entry permit;

(c)an order revoking a WHS entry permit;

(d)an order about the future issue of WHS entry permits to 1 or more persons;

(e)any other order it considers appropriate.

(4)The commission may deal with the dispute—

(a)on its own initiative; or

(b)on application by any of the following to whom the dispute relates—

(i)a WHS entry permit holder;

(ii)the relevant union;

(iii)the relevant person conducting a business or undertaking;

(iv)any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry;

(v)any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder;

(vi)the regulator.

(5)In dealing with a dispute, the commission must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this part.

(6)A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note—

See the Industrial Relations Act 2016, chapter 11, part 6.

s 142 amd 2016 No. 63 s 1157 sch 6

142AReview by commission of decision made by inspector under s 141A

(1)This section applies if—

(a)the commission is dealing with a dispute under section 142; and

(b)an inspector has made a decision under section 141A in relation to the dispute.

(2)In dealing with the dispute, the commission may review the decision.

(3)If the commission reviews the decision under this section, the commission may decide to—

(a)confirm or vary the decision; or

(b)set aside the decision and substitute another decision the commission considers appropriate; or

(c)set aside the decision and return the matter to the inspector who made it with directions the commission considers appropriate.

(4)A person dissatisfied with the commission’s decision may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

s 142A ins 2017 No. 38 s 36

143Contravening order made to deal with dispute

A person must not contravene an order under section 142(3).

WHS civil penalty provision.

Maximum penalty—100 penalty units.

144Person must not refuse or delay entry of WHS entry permit holder

(1)A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under this part.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

(2)Subsection (1) places an evidential burden on the defendant to show a reasonable excuse.

145Person must not hinder or obstruct WHS entry permit holder

A person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace under this part.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

146WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace

A WHS entry permit holder exercising, or seeking to exercise, rights under this part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper way.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

147Misrepresentations about things authorised by this part

(1)A person must not take action—

(a)with the intention of giving the impression; or

(b)reckless as to whether the impression is given;

that the doing of a thing is authorised by this part if it is not so authorised.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

(2)Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

148Unauthorised use or disclosure of information or documents

A person must not use or disclose information or a document obtained under division 2 in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless—

(a)the person reasonably believes that the use or disclosure is necessary to lessen or prevent—

(i)a serious risk to a person’s health or safety; or

(ii)a serious threat to public health or safety; or

(b)the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or

(c)the use or disclosure is required or authorised by or under law; or

(d)the person reasonably believes that the use or disclosure is reasonably necessary for 1 or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 of the Commonwealth)—

(i)the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;

(ii)the enforcement of laws relating to the confiscation of the proceeds of crime;

(iii)the protection of the public revenue;

(iv)the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;

(v)the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or

(e)if the information is, or the document contains, personal information—the use or disclosure is made with the consent of the individual to whom the information relates.

WHS civil penalty provision.

Maximum penalty—100 penalty units.

149Return of WHS entry permits

(1)The person to whom a WHS entry permit is issued must return the permit to the industrial registrar within 14 days of any of the following things happening—

(a)the permit is revoked or suspended;

(b)the permit expires.

WHS civil penalty provision.

Maximum penalty—20 penalty units.

(2)After the end of a period of suspension of a WHS entry permit, the industrial registrar must return the WHS entry permit to the person to whom it was issued if—

(a)the person, or the person’s union, applies to the industrial registrar for the return of the permit; and

(b)the permit has not expired.

150Union to provide information to industrial registrar

The relevant union must advise the industrial registrar if—

(a)the WHS entry permit holder resigns from or otherwise leaves the union; or

(b)the WHS entry permit holder has had any entry permit granted under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth (no matter when in force), or an industrial officer authority, cancelled or suspended; or

(c)the union ceases to be—

(i)an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or

(ii)an association of employees or independent contractors, or both, that is registered or recognised as an association of that type (however described) under the Industrial Relations Act 2016.

WHS civil penalty provision.

Maximum penalty—50 penalty units.

s 150 amd 2016 No. 63 s 1157 sch 6

151Register of WHS entry permit holders

The industrial registrar must keep available for public access an up-to-date register of WHS entry permit holders as provided under a regulation.

152Functions of regulator

The regulator has the following functions—

(a)to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act;

(b)to monitor and enforce compliance with this Act;

(c)to provide advice and information on work health and safety to duty holders under this Act and to the community;

(d)to collect, analyse and publish statistics relating to work health and safety;

(e)to foster a cooperative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters;

(f)to promote and support education and training on matters relating to work health and safety;

(g)to engage in, promote and coordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator;

(h)any other function conferred on the regulator under this Act.

Note—

The regulator is appointed under schedule 2, part 1.

s 152 amd 2015 No. 13 s 39; 2017 No. 38 s 37

153Powers of regulator

(1)Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of the regulator’s functions.

(2)Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act.

154Delegation by regulator

(1)The regulator may delegate to an inspector, appropriately qualified public service employee or a person prescribed under a regulation a function or power under this Act.

(2)In this section—

appropriately qualified includes having the qualifications, experience or standing appropriate to perform the function or exercise the power.

Example of standing—

a person’s classification level in the public service

155Powers of regulator to obtain information

(1)This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act.

(2)The regulator may, by written notice served on the person, require the person to do one or more of the following—

(a)to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the way stated in the notice, that information of which the person has knowledge;

(b)to produce to the regulator, in accordance with the notice, those documents;

(c)to appear before a person appointed by the regulator on a day, and at a time and place, stated in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents.

(3)The notice must—

(a)state that the requirement is made under this section; and

(b)contain a statement to the effect that a failure to comply with a requirement is an offence; and

(c)if the notice requires the person to provide information or documents or answer questions—

(i)contain a statement about the effect of sections 172 and 269; and

(ii)state that the person may attend with a legal practitioner.

(4)The regulator must not make a requirement under subsection (2)(c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2)(a) and (b) and has been unable to do so.

(5)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty—100 penalty units.

(6)Subsection (5) places an evidential burden on the accused to show a reasonable excuse.

(7)Section 172, with any necessary changes, applies to a requirement under this section.

156Appointment of inspectors

(1)The regulator may, by instrument, appoint any of the following as an inspector—

(a)a public service employee;

(b)an employee of a public authority;

(c)the holder of a statutory office;

(d)a person who is appointed as an inspector under a corresponding WHS law;

(e)a person of a class prescribed under a regulation.

(2)Without limiting subsection (1)(d), arrangements may be made for that paragraph under the Public Service Act 2008, sections 183 and 184 as if reference in those sections to the chief executive were a reference to the regulator.

157Identity cards

(1)The regulator must give each inspector an identity card that states the person’s name and appointment as an inspector and includes any other matter prescribed under a regulation.

(2)In exercising a compliance power in relation to a person, an inspector must—

(a)produce the inspector’s identity card for the person’s inspection before exercising the power; or

(b)have the identity card displayed so it is clearly visible to the person when exercising the power.

(3)However, if it is not practicable to comply with subsection (2), the inspector must produce the identity card for the person’s inspection at the first reasonable opportunity.

(4)If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the regulator as soon as practicable.

Maximum penalty—40 penalty units.

158Accountability of inspectors

(1)An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector’s functions.

(2)The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter and the regulator considers that the inspector should not deal, or should no longer deal, with the matter.

Note—

Failure to comply with subsection (1) or (2) may result in action by the regulator under section 159 (Suspension and ending of appointment of inspectors) or disciplinary action under the Public Service Act 2008.

159Suspension and ending of appointment of inspectors

(1)The regulator may suspend or end the appointment of an inspector.

(2)A person’s appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector.

160Functions and powers of inspectors

An inspector has the following functions and powers under this Act—

(a)to provide information and advice about compliance with this Act;

(b)to assist in the resolution of—

(i)work health and safety issues at workplaces; and

(ii)issues related to access to a workplace by an assistant to a health and safety representative; and

(iii)issues related to the exercise or purported exercise of a right of entry under part 7;

(c)to review disputed provisional improvement notices;

(d)to require compliance with this Act through the issuing of notices;

(e)to investigate contraventions of this Act and assist in the prosecution of offences;

(f)any other function or power conferred on the inspector under this Act.

s 160 amd 2017 No. 38 s 38

161Conditions on inspectors’ compliance powers

An inspector’s compliance powers are subject to any conditions stated in the instrument of the inspector’s appointment.

162Inspectors subject to regulator’s directions

(1)An inspector is subject to the regulator’s directions in the exercise of the inspector’s compliance powers.

(2)A direction under subsection (1) may be of a general nature or may relate to a stated matter or stated class of matter.

(3)Without limiting subsection (1), the regulator must issue directions to inspectors to ensure powers are exercised under this part in a way that minimises any adverse affect on the privacy, confidentiality and security of persons and businesses.

163Powers of entry

(1)An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace.

(2)An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace.

(3)If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately.

(4)An inspector may enter any place if the entry is authorised by a search warrant.

Note—

An inspector may enter residential premises to gain access to a workplace (see section 170(c)).

164Notification of entry

(1)An inspector may enter a place under section 163 without prior notice to any person.

(2)An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry—

(a)the relevant person conducting a business or undertaking at the workplace;

(b)the person with management or control of the workplace;

(c)any health and safety representative for workers carrying out work for that business or undertaking at the workplace;

(d)any work health and safety officer for that business or undertaking at the workplace.

(3)However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay.

(4)In this section, relevant person conducting a business or undertaking means the person conducting any business or undertaking in relation to which the inspector is exercising the powers of entry.

s 164 amd 2017 No. 38 s 22

165General powers on entry

(1)An inspector who enters a workplace under this division may do all or any of the following—

(a)inspect, examine and make inquiries at the workplace;

(b)inspect and examine anything, including a document, at the workplace;

(c)bring to the workplace and use any equipment or materials that may be required;

(d)take measurements, conduct tests and make sketches or recordings, including photographs, films, audio, video, digital or other recordings;

(e)take and remove for analysis a sample of any substance or thing without paying for it;

(f)require a person at the workplace to give the inspector reasonable help to exercise the inspector’s powers under paragraphs (a) to (e);

(g)exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of this Act.

(2)A person required to give reasonable help under subsection (1)(f) must not, without reasonable excuse, refuse or fail to comply with the requirement.

Maximum penalty—100 penalty units.

(3)Subsection (2) places an evidential burden on the accused to show a reasonable excuse.

166Persons assisting inspectors

(1)A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 165 to assist the inspector if the inspector considers the assistance is necessary.

(2)The assistant—

(a)may do the things at the place and in the way that the inspector reasonably requires to assist the inspector to exercise compliance powers; but

(b)must not do anything that the inspector does not have power to do, except as permitted under a search warrant.

(3)Anything done lawfully by the assistant is taken for all purposes to have been done by the inspector.

167Search warrants

(1)An inspector may apply to a magistrate for a search warrant for a place.

(2)The application must be sworn and state the grounds on which the warrant is sought.

(3)The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

(4)The magistrate may issue a search warrant only if the magistrate is satisfied there are reasonable grounds for suspecting—

(a)there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and

(b)the evidence is, or may be within the next 72 hours, at the place.

(5)The search warrant must state—

(a)that a stated inspector may, with necessary and reasonable help and force, enter the place and exercise the inspector’s compliance powers; and

(b)the offence for which the search warrant is sought; and

(c)the evidence that may be seized under the search warrant; and

(d)the hours of the day or night when the place may be entered; and

(e)the date, within 7 days after the search warrant’s issue, the search warrant ends.

167AElectronic application

(1)An application under section 167 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the inspector reasonably considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances, including, for example, the inspector’s remote location.

(2)The application—

(a)may not be made before the inspector prepares a written application under section 167(2); but

(b)may be made before the application is sworn.

(3)The magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—

(a)it was necessary to make the application under this section; and

(b)the way the application was made was appropriate.

(4)After the magistrate issues the original warrant—

(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the inspector, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the inspector; or

(b)otherwise—

(i)the magistrate must tell the inspector the information mentioned in section 167(5); and

(ii)the inspector must complete a form of warrant, including by writing on it the information mentioned in section 167(5) provided by the magistrate.

(5)The copy of the warrant mentioned in subsection (4)(a), or the form of warrant completed under subsection (4)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.

(6)The inspector must, at the first reasonable opportunity, send to the magistrate—

(a)the written application complying with section 167(2); and

(b)if the inspector completed a form of warrant under subsection (4)(b)—the completed form of warrant.

(7)The magistrate must keep the original warrant and, on receiving the documents under subsection (6)—

(a)attach the documents to the original warrant; and

(b)give the original warrant and documents to the clerk of the court of the relevant Magistrates Court.

(8)Despite subsection (5), if—

(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and

(b)the original warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

(9)This section does not limit section 167.

(10)In this section—

relevant Magistrates Court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991.

Note—

In relation to the numbering of this section, see the note to section 3.

168Announcement before entry on warrant

(1)Before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must—

(a)announce that he or she is authorised by the warrant to enter the place; and

(b)give any person at the place an opportunity to allow that entry.

(2)However, the inspector or an assistant to the inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is needed to ensure—

(a)the safety of any person; or

(b)that the effective execution of the warrant is not frustrated.

169Copy of warrant to be given to person with management or control of place

(1)If the person who has or appears to have management or control of a place is present at the place when a search warrant is being executed, the inspector must—

(a)identify himself or herself to that person by producing his or her identity card for inspection; and

(b)give that person a copy of the execution copy of the warrant.

(2)In this section—

execution copy includes a duplicate warrant mentioned in section 167A(5).

170Places used for residential purposes

Despite anything else in this division, the powers of an inspector under this division in relation to entering a place are not exercisable in relation to any part of a place that is used only for residential purposes except—

(a)with the consent of the person with management or control of the place; or

(b)under the authority conferred by a search warrant; or

(c)for the purpose only of gaining access to a suspected workplace, but only—

(i)if the inspector reasonably believes that no reasonable alternative access is available; and

(ii)at a reasonable time having regard to the times at which the inspector believes work is being carried out at the place to which access is sought.

171Power to require production of documents and answers to questions

(1)If an inspector enters a workplace under this division, or has within the last 30 days entered a workplace under this division, the inspector or another inspector may—

(a)require a person to tell the inspector who has custody of, or access to, a document; or

(b)require a person who has custody of, or access to, a document mentioned in paragraph (a) to give the document to the inspector; or

(c)require a person at the workplace to attend before the inspector at a stated reasonable time and place to answer questions put by the inspector.

(2)A requirement under subsection (1)(b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document.

(3)An interview conducted by an inspector under subsection (1)(c) must be conducted in private if—

(a)the inspector considers it appropriate; or

(b)the person being interviewed so requests.

(4)Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview.

(5)Subsection (3) may be invoked during an interview by—

(a)the inspector; or

(b)the person being interviewed;

in which case the subsection applies to the remainder of the interview.

(6)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty—100 penalty units.

Note—

See sections 172 and 173 in relation to self-incrimination and section 269 in relation to legal professional privilege.

(7)Subsection (6) places an evidential burden on the accused to show a reasonable excuse.

s 171 amd 2017 No. 38 s 23

172Abrogation of privilege against self-incrimination

(1)A person is not excused from answering a question or providing information or a document under this part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

(2)However, the answer to a question or information or a document provided by an individual, and other evidence directly or indirectly derived from the answer, information or document, is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.

173Warning to be given

(1)Before requiring a person to answer a question or provide information or a document under this part, an inspector must—

(a)identify himself or herself to the person as an inspector by producing the inspector’s identity card or in some other way; and

(b)warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and

(c)warn the person about the effect of section 172; and

(d)advise the person about the effect of section 269.

(2)It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector under this part on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning in subsection (1)(c).

(3)Nothing in this section prevents an inspector from obtaining and using evidence given to the inspector voluntarily by any person.

174Powers to copy and retain documents

(1)An inspector may—

(a)make copies of, or take extracts from, a document given to the inspector under a requirement under this Act; and

(b)keep that document for the period that the inspector considers necessary.

(2)While an inspector retains custody of a document, the inspector must permit the following persons to inspect or make copies of the document at all reasonable times—

(a)the person who produced the document;

(b)the owner of the document;

(c)a person authorised by a person mentioned in paragraph (a) or (b).

175Power to seize evidence etc.

(1)An inspector who enters a workplace under this part may—

(a)seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act; or

(b)take and remove for analysis, testing or examination a sample of any substance or thing without paying for it.

(2)An inspector who enters a place with a search warrant may seize the evidence for which the warrant was issued.

(3)An inspector may also seize anything else at the place if the inspector reasonably believes—

(a)the thing is evidence of an offence against this Act; and

(b)the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence.

176Inspector’s power to seize dangerous workplaces and things

(1)This section applies if an inspector who enters a workplace under this part reasonably believes that—

(a)the workplace or part of the workplace; or

(b)plant at the workplace; or

(c)a substance at the workplace or part of the workplace; or

(d)a structure at a workplace;

is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur.

(2)The inspector may seize the workplace or part, the plant, the substance or the structure.

177Powers supporting seizure

(1)Having seized a thing, an inspector may—

(a)move the thing from the place where it was seized (the place of seizure); or

(b)leave the thing at the place of seizure but take reasonable action to restrict access to it; or

Examples—

1sealing a thing and marking it to show access to it is restricted

2sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted

(c)if the thing is plant or a structure—dismantle or cause to be dismantled the plant or structure.

(2)If an inspector restricts access to a seized thing, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector’s approval.

Maximum penalty—100 penalty units.

(3)To enable a thing to be seized, an inspector may require the person in control of it—

(a)to take it to a stated reasonable place by a stated reasonable time; and

(b)if necessary, to remain in control of it at the stated place for a reasonable time.

(4)The requirement—

(a)must be made by written notice; or

(b)if for any reason it is not practicable to give the notice, may be made orally and confirmed by written notice as soon as practicable.

(5)A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement.

(6)The person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (3) or (5).

Maximum penalty—100 penalty units.

(7)Subsection (6) places an evidential burden on the defendant to show a reasonable excuse.

178Receipt for seized things

(1)As soon as practicable after an inspector seizes a thing, the inspector must give a receipt for it to the person from whom it was seized.

(2)However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place of seizure.

(3)The receipt must describe generally each thing seized and its condition.

(4)This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt required by this section (given the thing’s nature, condition and value).

179Forfeiture of seized things

(1)A seized thing is forfeited to the State if the regulator—

(a)can not find the person entitled to the thing after making reasonable inquiries; or

(b)can not return it to the person entitled to it, after making reasonable efforts; or

(c)reasonably believes it is necessary to forfeit the thing to prevent it being used to commit an offence against this Act.

(2)Subsection (1)(a) does not require the regulator to make inquiries if it would be unreasonable to make inquiries to find the person entitled to the thing.

(3)Subsection (1)(b) does not require the regulator to make efforts if it would be unreasonable to make efforts to return the thing to the person entitled to it.

(4)If the regulator decides to forfeit the thing under subsection (1)(c), the regulator must tell the person entitled to the thing of the decision by written notice.

(5)Subsection (4) does not apply if—

(a)the regulator can not find the person entitled to the thing, after making reasonable inquiries; or

(b)it is impracticable or would be unreasonable to give the notice.

(6)The notice must state—

(a)the reasons for the decision; and

(b)that the person entitled to the thing may apply within 28 days after the date of the notice for the decision to be reviewed; and

(c)how the person may apply for the review; and

(d)that the person may apply for a stay of the decision if the person applies for a review.

(7)In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing’s nature, condition and value.

(8)Any costs reasonably incurred by the State in storing or disposing of a thing forfeited under subsection (1)(c) may be recovered in a court of competent jurisdiction as a debt due to the State from that person.

(9)In this section, person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it in which case it means the owner of the thing.

180Return of seized things

(1)If a seized thing has not been forfeited, the person entitled to the thing may apply to the regulator for the return of the thing after the end of 6 months after it was seized.

(2)The regulator must return the thing to the applicant under subsection (1) unless the regulator has reasonable grounds to retain the thing.

(3)The regulator may impose any conditions on the return of the thing under this section that the regulator considers appropriate to eliminate or minimise any risk to work health or safety related to the thing.

(4)In this section, person entitled to a thing means the person entitled to possess the thing or the owner of the thing.

181Access to seized things

(1)Until a seized thing is forfeited or returned, the regulator must permit the following persons to inspect it and, if it is a document, to make copies of it at all reasonable times—

(a)the person from whom the thing was seized;

(b)the owner of the thing;

(c)a person authorised by a person mentioned in paragraph (a) or (b).

(2)Subsection (1) does not apply if it is impracticable or would be unreasonable to allow inspection or copying.

182Damage etc. to be minimised

In the exercise, or purported exercise, of a compliance power, an inspector must take all reasonable steps to ensure that the inspector, and any assistant to the inspector, cause as little inconvenience, detriment and damage as is practicable.

183Inspector to give notice of damage

(1)This section applies if an inspector or an assistant to an inspector damages a thing when exercising or purporting to exercise a compliance power.

(2)The inspector must, as soon as practicable, give written notice of the damage to the person who the inspector believes on reasonable grounds, is the person in control of the thing.

(3)If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector’s or assistant’s control, the inspector may state it in the notice.

(4)If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.

(5)This section does not apply to damage the inspector reasonably believes is trivial.

184Compensation

(1)A person may claim compensation from the State if the person incurs loss or expense because of the exercise or purported exercise of a power under division 3.

(2)Compensation may be claimed and ordered in a proceeding—

(a)taken in a court of competent jurisdiction; or

(b)for an offence against this Act taken against the person claiming compensation.

(3)The court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.

(4)A regulation may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order.

185Power to require name and address

(1)An inspector may require a person to provide the person’s name and residential address if—

(a)the inspector finds the person committing an offence against this Act; or

(b)the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has just committed an offence against this Act.

(2)When asking a person to provide his or her name and residential address, the inspector must—

(a)tell the person the reason for the requirement to provide his or her name and residential address; and

(b)warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse.

(3)If the inspector reasonably believes that the name or residential address is false, the inspector may require the person to give evidence of its correctness.

(4)A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) or (3).

Maximum penalty—100 penalty units.

(5)Subsection (4) places an evidential burden on the defendant to show a reasonable excuse.

(6)The person does not commit an offence against subsection (4) if—

(a)the person was required to state the person’s name and address by an inspector who suspected the person had committed an offence against this Act; and

(b)the person is not proved to have committed the offence.

186Inspector may take affidavits

An inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of his or her compliance powers.

187Inspector at coronial inquests

Under and subject to the Coroners Act 2003, section 36, an inspector may appear at and otherwise participate in any coroners inquest into the cause of death of a worker while carrying out work.

188Offence to hinder or obstruct inspector

A person must not intentionally hinder or obstruct an inspector in exercising his or her compliance powers, or induce or attempt to induce any other person to do so.

Maximum penalty—100 penalty units.

189Offence to impersonate inspector

A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.

Maximum penalty—100 penalty units.

190Offence to assault, threaten or intimidate inspector

A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an inspector or a person assisting an inspector.

Maximum penalty—500 penalty units or 2 years imprisonment.

191Issue of improvement notices

(1)This section applies if an inspector reasonably believes that a person—

(a)is contravening a provision of this Act; or

(b)has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.

(2)The inspector may issue an improvement notice requiring the person to—

(a)remedy the contravention; or

(b)prevent a likely contravention from occurring; or

(c)remedy the things or operations causing the contravention or likely contravention.

192Contents of improvement notices

(1)An improvement notice must state—

(a)that the inspector believes the person—

(i)is contravening a provision of this Act; or

(ii)has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and

(b)the provision the inspector believes is being, or has been, contravened; and

(c)briefly, how the provision is being, or has been, contravened; and

(d)the day by which the person is required to remedy the contravention or likely contravention.

(2)An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.

(3)The day stated for compliance with the improvement notice must be reasonable in all the circumstances.

193Compliance with improvement notice

The person to whom an improvement notice is issued must comply with the notice within the period stated in the notice.

Maximum penalty—500 penalty units.

194Extension of time for compliance with improvement notices

(1)This section applies if a person has been issued with an improvement notice.

(2)An inspector may, by written notice given to the person, extend the compliance period for the improvement notice.

(3)However, the inspector may extend the compliance period only if the period has not ended.

(4)In this section—

compliance period means the period stated in the improvement notice under section 192, and includes that period as extended under this section.

195Power to issue prohibition notice

(1)This section applies if an inspector reasonably believes that—

(a)an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; or

(b)an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

(2)The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a stated way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.

(3)The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.

196Contents of prohibition notice

(1)A prohibition notice must state—

(a)that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief; and

(b)briefly, the activity that the inspector believes involves or will involve the risk and the matters that give or will give rise to the risk; and

(c)the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity.

(2)A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in subsection (1)(c).

(3)Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a stated way may do so by specifying 1 or more of the following—

(a)a workplace, or part of a workplace, at which the activity is not to be carried out;

(b)anything that is not to be used in connection with the activity;

(c)any procedure that is not to be followed in connection with the activity.

197Compliance with prohibition notice

The person to whom a direction is given under section 195(2) or a prohibition notice is issued must comply with the direction or notice.

Maximum penalty—1,000 penalty units.

198Issue of non-disturbance notice

An inspector may issue a non-disturbance notice to the person with management or control of a workplace if the inspector reasonably believes that it is necessary to do so to facilitate the exercise of his or her compliance powers.

199Contents of non-disturbance notice

(1)A non-disturbance notice may require the person to—

(a)preserve the site at which a notifiable incident has occurred for a stated period; or

(b)prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a stated period that is reasonable in the circumstances.

(2)A non-disturbance notice must state the period (of no more than 7 days) for which it applies and set out—

(a)the obligations of the person to whom the notice is issued; and

(b)the measures to be taken to preserve a site or prevent disturbance of a site; and

(c)the penalty for contravening the notice.

(3)In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the site.

(4)A non-disturbance notice does not prevent any action—

(a)to assist an injured person; or

(b)to remove a deceased person; or

(c)that is essential to make the site safe or to prevent a further incident; or

(d)that is associated with a police investigation; or

(e)for which an inspector has given permission.

200Compliance with non-disturbance notice

(1)A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person.

Maximum penalty—500 penalty units.

(2)Subsection (1) places an evidential burden on the defendant to show a reasonable excuse.

201Issue of subsequent notices

If an inspector considers it necessary to do so, he or she may issue 1 or more subsequent non-disturbance notices to a person, whether before or after the expiry of the previous notice, each of which must comply with section 199.

202Application of division

In this division notice means improvement notice, prohibition notice or non-disturbance notice.

203Notice to be in writing

A notice must be in writing.

204Directions in notices

A direction included in an improvement notice or prohibition notice may—

(a)refer to a code of practice; and

(b)offer the person to whom it is issued a choice of ways in which to remedy the contravention.

205Recommendations in notice

(1)An improvement notice or prohibition notice may include recommendations.

(2)It is not an offence to fail to comply with recommendations in a notice.

206Changes to notice by inspector

(1)An inspector may make minor changes to a notice—

(a)for clarification; or

(b)to correct errors or references; or

(c)to reflect changes of address or other circumstances.

(2)An inspector may also, under section 194, extend the compliance period for an improvement notice.

207Regulator may vary or cancel notice

Except as provided in section 206, a notice issued by an inspector may only be varied or cancelled by the regulator.

208Formal irregularities or defects in notice

A notice is not invalid only because of—

(a)a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or

(b)a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person under section 209.

209Issue and giving of notice

(1)A notice may be issued or given to a person—

(a)by delivering it personally to the person or sending it by post or facsimile or electronic transmission to the person’s usual or last known place of residence or business; or

(b)by leaving it for the person at the person’s usual or last known place of residence or business with a person who appears to be over 16 years and who appears to reside or work there; or

(c)by leaving it for the person at the workplace to which the notice relates with a person who is or appears to be the person with management or control of the workplace; or

(d)in a prescribed way.

(2)A regulation may prescribe—

(a)the way of issuing a notice; and

(b)the steps a person to whom a notice is issued must take to bring it to the attention of other persons.

210Display of notice

(1)A person to whom a notice is issued must, as soon as possible, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.

Maximum penalty—50 penalty units.

(2)A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force.

Maximum penalty—50 penalty units.

211When regulator may carry out action

(1)This section applies if a person to whom a prohibition notice is issued fails to take reasonable steps to comply with the notice.

(2)The regulator may take any remedial action the regulator believes reasonable to make the workplace or situation safe after giving written notice to the person to whom the prohibition notice was issued of—

(a)the regulator’s intention to take that action; and

(b)the owner’s or person’s liability for the costs of that action.

212Power of the regulator to take other remedial action

(1)This section applies if the regulator reasonably believes that—

(a)circumstances in which a prohibition notice can be issued exist; and

(b)a prohibition notice can not be issued at a workplace because, after taking reasonable steps, the person with management or control of the workplace can not be found.

(2)The regulator may take any remedial action necessary to make the workplace safe.

213Costs of remedial or other action

The regulator may recover the reasonable costs of any remedial action taken under—

(a)section 211 from the person to whom the notice is issued; or

(b)section 212 from any person to whom the prohibition notice could have been issued in relation to the matter;

as a debt due to the regulator.

214Application of division

In this division, notice means improvement notice, prohibition notice or non-disturbance notice.

215Injunctions for noncompliance with notices

(1)The regulator may apply to a Magistrates Court for an injunction—

(a)compelling a person to comply with a notice; or

(b)restraining a person from contravening a notice.

(2)The regulator may do so—

(a)whether or not proceedings have been taken for an offence against this Act in connection with any matter in relation to which the notice was issued; and

(b)whether any period for compliance with the notice has expired.

216Regulator may accept WHS undertakings

(1)The regulator may accept a written undertaking (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act.

(2)A WHS undertaking can not be accepted for a contravention or alleged contravention that is—

(a)a category 1 offence; or

(b)a category 2 offence, if the person’s failure to comply with a health and safety duty results in the death of an individual; or

(c)an offence against part 2A.

(3)The giving of a WHS undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates.

(4)The regulator must issue, and publish on the regulator’s website, general guidelines in relation to the acceptance of WHS undertakings under this Act.

s 216 amd 2017 No. 38 ss 7, 39

217Notice of decision and reasons for decision

(1)The regulator must give the person seeking to make a WHS undertaking written notice of the regulator’s decision to accept or reject the WHS undertaking and of the reasons for the decision.

(2)The regulator must publish, on the regulator’s website, notice of a decision to accept a WHS undertaking and the reasons for that decision.

218When a WHS undertaking is enforceable

A WHS undertaking takes effect and becomes enforceable when the regulator’s decision to accept the undertaking is given to the person who made the undertaking or at any later date stated by the regulator.

219Compliance with WHS undertaking

A person must not contravene a WHS undertaking made by that person that is in effect.

Maximum penalty—500 penalty units.

220Contravention of WHS undertaking

(1)The regulator may apply to a Magistrates Court for an order if a person contravenes a WHS undertaking.

(2)If the court is satisfied that the person who made the WHS undertaking has contravened the undertaking, the court, in addition to the imposition of any penalty, may make 1 or both of the following orders—

(a)an order directing the person to comply with the undertaking;

(b)an order discharging the undertaking.

(3)In addition to the orders mentioned in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the person to pay to the State—

(a)the costs of the proceedings; and

(b)the reasonable costs of the regulator in monitoring compliance with the WHS undertaking in the future.

(4)Nothing in this section prevents proceedings being taken for the contravention or alleged contravention of this Act to which the WHS undertaking relates.

Note—

Section 222 specifies circumstances affecting proceedings for a contravention for which a WHS undertaking has been given.

221Withdrawal or variation of WHS undertaking

(1)A person who has made a WHS undertaking may at any time, with the written agreement of the regulator—

(a)withdraw the undertaking; or

(b)vary the undertaking.

(2)However, the provisions of the undertaking can not be varied to provide for a different alleged contravention of the Act.

(3)The regulator must publish, on the regulator’s website, notice of the withdrawal or variation of a WHS undertaking.

222Proceeding for alleged contravention

(1)Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be taken against a person if a WHS undertaking is in effect in relation to that contravention.

(2)No proceedings may be taken for a contravention or alleged contravention of this Act against a person who has made a WHS undertaking in relation to that contravention and has completely discharged the WHS undertaking.

(3)The regulator may accept a WHS undertaking in relation to a contravention or alleged contravention, other than a contravention or alleged contravention mentioned in section 216(2)(a), (b) or (c), before proceedings in relation to that contravention have been finalised.

(4)If the regulator accepts a WHS undertaking before the proceedings are finalised—

(a)the regulator must immediately notify the WHS prosecutor; and

(b)the WHS prosecutor must take all reasonable steps to have the proceedings discontinued as soon as possible.

s 222 amd 2017 No. 38 ss 8, 40

223Which decisions are reviewable

(1)The table in schedule 2A states—

(a)decisions made under this Act that are reviewable under this part (reviewable decisions); and

(b)who is eligible to apply for review of a reviewable decision (the eligible person); and

(c)the body (the external review body) on which jurisdiction is conferred to hear and decide an external review relating to a reviewable decision.

Note—

See, however, section 102D(5) in relation to particular decisions that are taken not to be reviewable decisions under this section.

(2)Unless the contrary intention appears, a reference in this part and schedule 2A to a decision includes a reference to—

(a)making, suspending, revoking or refusing to make an order, determination or decision; or

(b)giving, suspending, revoking or refusing to give a direction, approval, consent or permission; or

(c)issuing, suspending, revoking or refusing to issue an authorisation; or

(d)imposing a condition; or

(e)making a declaration, demand or requirement; or

(f)retaining, or refusing to deliver up, a thing; or

(g)doing or refusing to do any other act or thing.

(3)A reference in schedule 2A to a person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it, in which case it means the owner of the thing.

Note—

Decisions under a regulation that will be reviewable decisions will be stated in the regulation.

s 223 amd 2017 No. 38 s 41

224Application for internal review

(1)An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within—

(a)the prescribed time after the day on which the decision first came to the eligible person’s notice; or

(b)the longer period the regulator allows.

(2)The application must be made in the way and in the form required by the regulator.

(3)For this section, the prescribed time is—

(a)for a decision to issue an improvement notice the period stated in the notice for compliance with the notice or 14 days, whichever is the lesser; and

(b)otherwise—14 days.

225Internal reviewer

(1)The regulator may appoint a person or body to review decisions on applications under this division.

(2)The person who made the decision can not be an internal reviewer in relation to that decision.

226Decision of internal reviewer

(1)The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received.

(2)The decision may be—

(a)to confirm or vary the reviewable decision; or

(b)to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.

(3)If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer.

(4)The applicant must provide the further information within the time (being not less than 7 days) stated by the internal reviewer in the request for information.

(5)If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time.

(6)If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer.

227Decision on internal review

As soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing—

(a)the decision on the internal review; and

(b)the reasons for the decision.

228Stay of reviewable decisions on internal review

(1)An application for an internal review of a reviewable decision (other than a decision to issue a prohibition notice or a non-disturbance notice) stays the operation of the decision.

(2)If an application is made for an internal review of a decision to issue a prohibition notice or a non-disturbance notice, the reviewer may stay the operation of the decision.

(3)The reviewer may make the decision to stay the operation of a decision on the reviewer’s own initiative or on the application of the applicant for review.

(4)The reviewer must make a decision on an application for a stay within 1 working day after the reviewer receives the application.

(5)If the reviewer has not made a decision to stay a decision within the time set out in subsection (4), the reviewer is taken to have made a decision to grant a stay.

(6)A stay of the operation of a decision pending a decision on an internal review continues until whichever of the following is the earlier—

(a)the end of the prescribed period for applying for an external review of the decision made on the internal review;

(b)an application for external review is made.

229Application for external review

(1)An eligible person may apply to the external review body for a review (an external review) of—

(a)a reviewable decision made by the regulator; or

(b)a decision made, or taken to have been made, on an internal review.

(2)A review by QCAT is provided for under the QCAT Act.

Note—

See QCAT Act, chapter 2, part 1, division 3 (Review jurisdiction).

(3)A review by the commission is provided for under division 4.

229ADecision

A person applying for an external review by the commission (a review) of a decision (the decision) has a right to a statement of—

(a)the decision; and

(b)the reasons for the decision.

Note—

In relation to the numbering of this division, see the note to section 3.

229BHow to start review

(1)A review is started by—

(a)filing a written application for a review with the industrial registrar; and

(b)complying with the rules applying to applications for reviews by the commission under the Industrial Relations Act 2016.

(2)The application for a review must be filed within 30 days after the day on which the decision first came to the applicant’s notice.

(3)The commission may at any time extend the period for filing the application for a review.

(4)The application for a review must state fully the grounds of the application and the facts relied on.

s 229B amd 2016 No. 63 s 1157 sch 6

229CStay of operation of decision

(1)The commission may grant a stay of the decision to secure the effectiveness of the review.

(2)A stay—

(a)may be given on the conditions the commission considers appropriate; and

(b)operates for the period fixed by the commission; and

(c)may be revoked or amended by the commission.

(3)The period of a stay must not extend past the time when the commission decides the application.

(4)An application affects the decision, or carrying out of the decision, only if the decision is stayed.

229DHearing procedures

(1)The procedure for an application for a review is to be under the rules applying to applications for review by the commission under the Industrial Relations Act 2016 or, if the rules make no provision or insufficient provision, in accordance with directions of the commission.

(2)An application for a review is to be dealt with by way of rehearing, unaffected by the decision.

s 229D amd 2016 No. 63 s 1157 sch 6

229EPowers of commission on application

(1)In deciding an application for a review, the commission may—

(a)confirm the decision; or

(b)vary the decision; or

(c)set aside the decision and make a decision in substitution for it; or

(d)set aside the decision and return the issue to the decision-maker with directions the commission considers appropriate.

(2)If the commission acts under subsection (1)(b) or (c), the decision is taken, for this Act (other than this part), to be that of the person whose decision was the subject of the application.

229FAppeals

A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note—

See the Industrial Relations Act 2016, chapter 11, pat 6.

s 229F amd 2016 No. 63 s 1157 sch 6

230Prosecutions

(1AA)Proceedings for an offence against this Act, other than a category 1 offence or an offence against part 2A, must be taken in a summary way under the Justices Act 1886.

Note—

In relation to the numbering of this section, see the note to section 3.

(1)Subject to subsection (4), proceedings for an offence against this Act may only be taken by—

(a)the WHS prosecutor; or

(b)for a category 3 offence—an inspector with the written authorisation of the WHS prosecutor, either generally or in a particular case.

(2)An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons.

(3)In deciding whether to bring a prosecution for an offence under this Act, the WHS prosecutor must have regard to any guidelines issued under the Director of Public Prosecutions Act 1984, section 11.

(4)Nothing in this section affects the ability of the director of public prosecutions to bring proceedings for an offence against this Act.

s 230 amd 2017 No. 38 ss 9, 42

231Procedure if prosecution is not brought

(1)If—

(a)a person reasonably considers that an act or omission constitutes a category 1 offence or a category 2 offence; and

(b)no prosecution has been brought in relation to the act or omission after 6 months but not later than 12 months after the act or omission happens;

the person may make a written request to the WHS prosecutor that a prosecution be brought.

(1A)Also, a person may make a written request to the WHS prosecutor that a prosecution be brought if—

(a)the person reasonably considers an act or omission constitutes an offence against part 2A; and

(b)no prosecution has been brought in relation to the act or omission; and

(c)it has been at least 6 months since the act or omission happened.

(2)Within 3 months after the WHS prosecutor receives a request under subsection (1) or (1A) the WHS prosecutor must—

(a)advise the person, in writing—

(i)whether the investigation is complete; and

(ii)if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought; and

(b)advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a).

(3)If the WHS prosecutor advises the person that a prosecution for a category 1 or category 2 offence or an offence against part 2A will not be brought, the WHS prosecutor must—

(a)advise the person that the person may ask the WHS prosecutor to refer the matter to the director of public prosecutions for consideration; and

(b)if the person makes a written request to the WHS prosecutor to do so, refer the matter to the director of public prosecutions within 1 month of the request.

(4)The director of public prosecutions must consider the matter and advise (in writing) the WHS prosecutor within 1 month as to whether the director considers that a prosecution should be brought.

(5)The WHS prosecutor must ensure a copy of the advice is given to—

(a)the person who made the request; and

(b)the person who the applicant believes committed the offence.

(6)If the WHS prosecutor declines to follow the advice of the director of public prosecutions to bring proceedings, the WHS prosecutor must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5).

s 231 amd 2017 No. 38 ss 10, 43

232Limitation period for prosecutions

(1)Proceedings for an offence against this Act may be taken within the latest of the following periods—

(a)within 2 years after the offence first comes to the notice of the WHS prosecutor;

(b)within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act;

(c)if a WHS undertaking has been given in relation to the offence, within 6 months after—

(i)the WHS undertaking is contravened; or

(ii)it comes to the notice of the regulator that the WHS undertaking has been contravened; or

(iii)the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.

(2)A proceeding for a category 1 offence may be taken after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period.

(3)Subsection (1) does not apply to a proceeding for an offence against part 2A.

s 232 amd 2017 No. 38 ss 11, 44

233Multiple contraventions of health and safety duty provision

(1)Two or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

(2)This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence.

(3)A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence.

(4)In this section health and safety duty provision means a provision of part 2, division 2, 3 or 4.

234Application of this division

This division applies if a court convicts a person, or finds a person guilty (the offender), of an offence against this Act.

235Orders generally

(1)One or more orders may be made under this division against the offender.

(2)Orders may be made under this division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.

236Adverse publicity orders

(1)The court may make an order (an adverse publicity order) in relation to the offender requiring the offender—

(a)to take either or both of the following actions within the period stated in the order—

(i)to publicise, in the way stated in the order, the offence, its consequences, the penalty imposed and any other related matter;

(ii)to notify a stated person or stated class of persons, in the way stated in the order, of the offence, its consequences, the penalty imposed and any other related matter; and

(b)to give the WHS prosecutor, within 7 days after the end of the period stated in the order, evidence that the action or actions were taken by the offender in accordance with the order.

(2)The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence.

(3)If the offender fails to give evidence to the WHS prosecutor as provided under subsection (1)(b), the WHS prosecutor, or a person authorised in writing by the WHS prosecutor, may take the action or actions stated in the order.

(4)However, if—

(a)the offender gives evidence to the WHS prosecutor as provided under subsection (1)(b); and

(b)despite that evidence, the WHS prosecutor is not satisfied that the offender has taken the action or actions stated in the order in accordance with the order;

the WHS prosecutor may apply to the court for an order authorising the WHS prosecutor, or a person authorised in writing by the WHS prosecutor, to take the action or actions.

(5)If the WHS prosecutor or a person authorised in writing by the WHS prosecutor takes an action or actions under subsection (3) or an order under subsection (4), the WHS prosecutor is entitled to recover from the offender, by action in a court of competent jurisdiction, an amount in relation to the reasonable expenses of taking the action or actions as a debt due to the WHS prosecutor.

s 236 amd 2017 No. 38 s 45

237Orders for restoration

(1)The court may order the offender to take steps stated in the order, within the period so stated, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender’s power to remedy.

(2)The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if an application for the extension is made before the end of that period.

238Work health and safety project orders

(1)The court may make an order requiring the offender to undertake a stated project for the general improvement of work health and safety within the period stated in the order.

(2)The order may state conditions that must be complied with in undertaking the project.

239Release on the giving of a court-ordered WHS undertaking

(1)The court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with stated conditions (a court-ordered WHS undertaking).

(2)A court-ordered WHS undertaking must state the following conditions—

(a)that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so states, at the time to which the further hearing is adjourned;

(b)that the offender does not commit, during the period of the adjournment, any offence against this Act;

(c)that the offender observes any special conditions imposed by the court.

(3)An offender who has given a court-ordered WHS undertaking under this section may be called on to appear before the court by order of the court.

(4)An order under subsection (3) must be served on the offender not less than four days before the time stated in it for the appearance.

(5)If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered WHS undertaking, it must discharge the offender without any further hearing of the proceeding.

240Injunctions

The court may issue an injunction requiring the offender to cease contravening this Act.

Note—

An injunction may also be obtained under section 215 for noncompliance with a non-disturbance notice, improvement notice or prohibition notice.

241Training orders

The court may make an order requiring the offender to undertake or arrange for 1 or more workers to undertake a stated course of training.

242Offence to fail to comply with order

(1)A person must not, without reasonable excuse, fail to comply with an order under this division.

Maximum penalty—500 penalty units.

(2)Subsection (1) places an evidential burden on the defendant to show a reasonable excuse.

(3)This section does not apply to an order or injunction under section 239 or 240.

243Division and section number not used

See the note to section 3.

244Imputing conduct to bodies corporate

(1)For this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

(2)If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for the offence to prove that the person mentioned in subsection (1) had the relevant knowledge, intention or recklessness.

(3)If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for the offence if the person mentioned in subsection (1) made the mistake of fact.

245Offences and the State, Commonwealth and other States

(1)If the State, Commonwealth or another State is found guilty of an offence against this Act, the penalty to be imposed on the State, Commonwealth or other State is the penalty applicable to a body corporate.

(2)For this Act, conduct engaged in on behalf of the State, Commonwealth or another State by an employee, agent or officer of the State, Commonwealth or other State acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the State, Commonwealth or other State.

(3)If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the State, Commonwealth or another State for the offence to prove that the person mentioned in subsection (2) had the relevant knowledge, intention or recklessness.

(4)If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the State, Commonwealth or another State for the offence if the person mentioned in subsection (2) made the mistake of fact.

246WHS civil penalty provisions and the State, Commonwealth and other States

(1)If the State, Commonwealth or another State contravenes a WHS civil penalty provision, the monetary penalty to be imposed on the State, Commonwealth or other State is the penalty applicable to a body corporate.

(2)For a WHS civil penalty provision, conduct engaged in on behalf of the State, Commonwealth or another State by an employee, agent or officer of the State, Commonwealth or other State acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the State, Commonwealth or other State.

(3)If a WHS civil penalty provision requires proof of knowledge, it is sufficient in proceedings against the State, Commonwealth or another State for a contravention of that provision to prove that the person mentioned in subsection (2) had the knowledge.

247Officers

(1)A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the State, Commonwealth or another State is taken to be an officer of the State, Commonwealth or other State for the purposes of this Act.

(2)A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act.

248Responsible agency for the State, Commonwealth or another State

(1)The following notices may be given to or served on the responsible agency—

(a)a provisional improvement notice, improvement notice, prohibition notice, non-disturbance notice or notice of entry under part 7 to be given to or served on the State, Commonwealth or another State under this Act;

(b)an infringement notice for an offence against this Act to be given to or served on the State, Commonwealth or another State.

(2)If an infringement notice is to be served on the State, Commonwealth or another State for an offence against this Act, the responsible agency may be stated in the infringement notice.

(3)If proceedings are taken against the State, Commonwealth or another State for an offence against this Act or in relation to a contravention of this Act, the responsible agency in relation to the offence or contravention may be stated in any document initiating, or relating to, the proceedings.

(4)The responsible agency in relation to an offence or a contravention of this Act is entitled to act in proceedings against the State, Commonwealth or other State for the offence or relating to the contravention and, subject to any relevant rules of court, the procedural rights and obligations of the State, Commonwealth or other State as the accused or defendant in the proceedings are conferred or imposed on the responsible agency.

(5)The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court’s leave.

(6)In this section, the responsible agency—

(a)in relation to a notice mentioned in subsection (1) is the following—

(i)for a provisional improvement notice, improvement notice or infringement notice—the agency of the State, Commonwealth or other State, the acts or omissions of which are alleged to contravene this Act;

(ii)for a prohibition notice—the agency of the State, Commonwealth or other State that has control over the activity mentioned in section 195(1)(a) or (b);

(iii)for a non-disturbance notice—the agency of the State, Commonwealth or other State with the management and control of the workplace;

(iv)for a notice of entry under part 7—the agency of the State, Commonwealth or other State conducting the relevant business or undertaking or with the management and control of the workplace; and

(b)in relation to an offence or proceedings for a contravention of this Act, is the agency of the State, Commonwealth or other State—

(i)the acts or omissions of which are alleged to constitute the offence or contravention; or

(ii)if that agency has ceased to exist—that is the successor of that agency; or

(iii)if that agency has ceased to exist and there is no clear successor—that the court declares to be the responsible agency.

249Application to public authorities that are bodies corporate or local governments

This division applies only to public authorities that are bodies corporate or are local governments.

250Proceedings against public authorities

(1)Proceedings may be taken under this Act against a public authority in its own name.

(1A)Proceedings may be taken under this Act against a local government, and a local government may be prosecuted and punished, as if it were a body corporate.

(2)Nothing in this division affects any privileges that a public authority may have under the State, Commonwealth or another State.

251Imputing conduct to public authorities

(1)For this Act, any conduct engaged in on behalf of a public authority by an employee, agent or officer of the public authority acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the public authority.

(2)If an offence against this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the public authority for that offence to prove that the person mentioned in subsection (1) had the relevant knowledge, intention or recklessness.

(3)If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the public authority for that offence if the person mentioned in subsection (1) made that mistake of fact.

252Officer of public authority

A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act.

253Proceedings against successors to public authorities

(1)Proceedings for an offence against this Act that were instituted against a public authority before its dissolution, or that could have been instituted against a public authority if not for its dissolution, may be continued or instituted against its successor if the successor is a public authority.

(2)An infringement notice served on a public authority for an offence against this Act is taken to be an infringement notice served on its successor if the successor is a public authority.

(3)Similarly, any penalty paid by a public authority in relation to an infringement notice is taken to be a penalty paid by its successor if the successor is a public authority.

254When is a provision a WHS civil penalty provision

(1)A subsection of a section of part 5, division 7A or part 7 (or a section of part 5, division 7A or part 7 that is not divided into subsections) is a WHS civil penalty provision if—

(a)the words “WHS civil penalty provision” and one or more amounts by way of monetary penalty are set out at the foot of the subsection (or section); or

(b)another provision of part 5, division 7A or part 7 states that the subsection (or section) is a WHS civil penalty provision.

(2)A subsection of a section of a regulation (or a section of a regulation that is not divided into subsections) is a WHS civil penalty provision if—

(a)the words “WHS civil penalty provision” and one or more amounts by way of monetary penalty are set out at the foot of the subsection (or section); or

(b)another provision of the regulation states that the subsection (or section) is a WHS civil penalty provision.

s 254 amd 2017 No. 38 s 46

255Proceedings for contravention of WHS civil penalty provision

(1)Subject to this division, proceedings may be taken in a Magistrates Court (the court) against a person for a contravention of a WHS civil penalty provision.

Note—

The Uniform Civil Procedure Rules 1999 generally apply.

(2)If a body corporate contravenes a civil penalty provision, the value of the penalty units applying to the contravention is calculated under the Penalties and Sentences Act 1992, section 181B (the calculation section).

(3)For subsection (2), a reference in the calculation section to the maximum fine for an offence includes a reference to the maximum penalty for the contravention of the civil penalty provision.

Note—

A term penalty unit has the meaning given under the Penalties and Sentences Act 1992, section 5—see the Acts Interpretation Act 1954, schedule 1, definition penalty unit.

s 255 amd 2013 No. 39 s 110 sch 3 pt 1

256Involvement in contravention treated in same way as actual contravention

(1)A person who is involved in a contravention of a WHS civil penalty provision is taken to have contravened that provision.

(2)A person is involved in a contravention of a civil penalty provision if, and only if, the person—

(a)has aided, abetted, counselled or procured the contravention; or

(b)has induced the contravention, whether by threats or promises or otherwise; or

(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)has conspired with others to effect the contravention.

257Contravening a civil penalty provision is not an offence

A contravention of a WHS civil penalty provision is not an offence.

258Civil proceeding rules and procedure to apply

The court must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a contravention of a WHS civil penalty provision.

259Proceeding for a contravention of a WHS civil penalty provision

(1)In a proceeding for a contravention of a WHS civil penalty provision, if the court is satisfied that a person has contravened a WHS civil penalty provision, the court may—

(a)order the person to pay a monetary penalty that the court considers appropriate; and

(b)make any other order that the court considers appropriate, including an injunction.

(2)A monetary penalty imposed under subsection (1) must not exceed the relevant maximum amount of monetary penalty provided under part 5, division 7A, part 7 or a regulation in relation to a contravention of that WHS civil penalty provision.

s 259 amd 2017 No. 38 s 47

260Proceeding may be taken by WHS prosecutor

Proceedings for a contravention of a WHS civil penalty provision may only be taken by the WHS prosecutor.

s 260 sub 2017 No. 38 s 48

261Limitation period for WHS civil penalty proceedings

Proceedings for a contravention of a WHS civil penalty provision may be taken within 2 years after the contravention first comes to the notice of the WHS prosecutor.

s 261 amd 2017 No. 38 s 49

262Recovery of a monetary penalty

If the court orders a person to pay a monetary penalty—

(a)the penalty is payable to the State; and

(b)the State may enforce the order as if it were a judgment of the court.

263Civil double jeopardy

The court must not make an order against a person under section 259 for contravention of a WHS civil penalty provision if an order has been made against the person under a civil penalty provision under an Act of the Commonwealth or a State in relation to conduct that is substantially the same as the conduct constituting the contravention.

264Criminal proceedings during civil proceedings

(1)Proceedings against a person for a contravention of a WHS civil penalty provision are stayed if—

(a)criminal proceedings are commenced or have already commenced against the person for an offence; and

(b)the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision.

(2)The proceedings for the order may be resumed if the person is not convicted or found guilty of the offence.

(3)Otherwise, the proceedings for the order are dismissed.

265Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a WHS civil penalty provision regardless of whether an order has been made against the person under section 259.

266Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings

(1)Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if—

(a)the individual previously gave the information or produced the documents in proceedings against the individual for a contravention of a WHS civil penalty provision (whether or not the order was made); and

(b)the conduct alleged to constitute the offence is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision.

(2)However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the contravention of the WHS civil penalty provision.

267Civil liability not affected by this Act

Except as provided in part 6 and part 7 and division 7, nothing in this Act is to be construed as—

(a)conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or

(b)conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or

(c)affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, in relation to breaches of duties or obligations imposed under a regulation.

268Offence to give false or misleading information

(1)A person must not give information in complying or purportedly complying with this Act that the person knows—

(a)to be false or misleading in a material particular; or

(b)omits any matter or thing without which the information is misleading.

Maximum penalty—100 penalty units.

(2)A person must not produce a document in complying or purportedly complying with this Act that the person knows to be false or misleading in a material particular without—

(a)indicating how it is false or misleading and, if practicable, providing correct information; or

(b)accompanying the document with a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate—

(i)stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and

(ii)setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.

Maximum penalty—100 penalty units.

(3)Subsection (2) places an evidential burden on the defendant to show that the accused had indicated the extent to which the document was false or misleading or that the accompanying document sufficiently explained the extent to which the document was false or misleading.

269Act does not affect legal professional privilege

Nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege.

270Immunity from liability

(1)An inspector, or other person engaged in the administration of this Act, incurs no civil liability for an act or omission done or omitted to be done in good faith and in the execution or purported execution of powers and functions under this Act.

(2)A civil liability that would, but for subsection (1), attach to a person, attaches instead to the State.

271Confidentiality of information

(1)This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act, other than under part 7.

(2)The person must not do any of the following—

(a)disclose to anyone else—

(i)the information; or

(ii)the contents of or information contained in the document;

(b)give access to the document to anyone else;

(c)use the information or document for any purpose.

Maximum penalty—100 penalty units.

(3)Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document—

(a)about a person, with the person’s consent; or

(b)that is necessary for the exercise of a power or function under this Act; or

(c)that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use—

(i)is necessary for administering, or monitoring or enforcing compliance with, this Act; or

(ii)is necessary for the administration or enforcement of another Act prescribed under a regulation; or

(iii)is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety; or

(iv)is necessary for the recognition of authorisations under a corresponding WHS law; or

(v)is required for the exercise of a power or function under a corresponding WHS law; or

(d)that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or

(e)that is required or authorised under a law; or

(f)to a Minister.

(4)A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless—

(a)the disclosure is made with the consent of the complainant; or

(b)the disclosure is required under a law.

Maximum penalty—100 penalty units.

272No contracting out

A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.

273Person not to levy workers

A person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety.

Maximum penalty—50 penalty units.

273A Evidentiary aids

(1)This section applies in a proceeding against a person conducting a business or undertaking for an offence against this Act.

(2)Evidence that there was a person holding office as a work health and safety officer or a health and safety representative for the business or undertaking when the offence was alleged to have been committed is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.

s 273A ins 2017 No. 38 s 24

274Approved codes of practice

(1)The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice.

(3)A code of practice may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether—

(a)with or without modification; or

(b)as in force at a particular time or from time to time.

(4)An approval of a code of practice, or an instrument varying or revoking an approved code of practice, has no effect unless the Minister gives notice of its making.

(4A)A notice under subsection (4) is subordinate legislation.

(4B)A code of practice, or an instrument varying or revoking a code of practice, commences on the later of the following—

(a)the day the notice under subsection (4) commences; or

(b)the day the code or instrument provides that it commences.

(4C)A code of practice expires 5 years after it is approved.

(5)As soon as practicable after approving a code of practice, or varying or revoking an approved code of practice, the Minister must ensure that notice of the approval, variation or revocation is published in a newspaper circulating generally throughout the State.

(6)The regulator must ensure that a copy of—

(a)each code of practice that is currently approved; and

(b)each document applied, adopted or incorporated, to any extent, by an approved code of practice;

is available for inspection by members of the public without charge at the office of the regulator during normal business hours.

s 274 amd 2014 No. 14 s 17; 2017 No. 38 s 12

275Use of codes of practice in proceedings

(1)This section applies in a proceeding for an offence against this Act.

(2)An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.

(3)The court may—

(a)have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and

(b)rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

Note—

See section 18 for the meaning of reasonably practicable.

(4)Nothing in this section prevents a person from introducing evidence of compliance with this Act in a way that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.

276Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)Without limiting subsection (1), a regulation may make provision for any matter stated in schedule 3 or otherwise related to work health and safety.

(3)A regulation may—

(a)allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator; or

(b)prescribe fees for doing any act or providing any service for the purposes of this Act; or

(c)prescribe a penalty for any contravention of the regulations not exceeding 300 penalty units.

(4)Subsection (1) applies as provided under, and subsections (2) and (3) do not limit, the Statutory Instruments Act 1992.

(5)For the Statutory Instruments Act 1992, to remove doubt it is declared that—

(a)a reference in section 24 and 25 of that Act to exceptions includes exemptions, and exceptions and exemptions given on terms or conditions (if any) prescribed; and

(b)a reference in 30B(1)(b) of that Act to waiving payment of a fee includes reducing or refunding the fee.

277Repeal of Workplace Health and Safety Act 1995

The Workplace Health and Safety Act 1995, No. 25 is repealed.

278Repeal of Dangerous Goods Safety Management Act 2001

The Dangerous Goods Safety Management Act 2001, No. 28 is repealed.

279Definitions for div 1

In this division—

repeal means the repeal of the repealed Act.

repealed Act means the repealed Workplace Health and Safety Act 1995.

280Application of this Act and repealed Act in relation to particular provisions

(1)This section applies to an obligation imposed by any of the following provisions of the repealed Act—

(a)section 28;

(b)section 30;

(c)section 30C;

(d)section 31;

(e)section 34C;

(f)section 34D;

(g)section 35;

(h)section 36.

(2)To the extent the obligation was contravened before the repeal, proceedings may be taken or continued against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened.

(3)If—

(a)the acts or omissions constituting the contravention continue after the repeal; and

(b)the continuing acts or omissions contravene a duty imposed by a provision of this Act;

proceedings may be taken against the person under the provision of this Act to the extent of the continuation of the acts or omissions after the repeal.

281Application of this Act and repealed Act in relation to other particular provisions

(1)This section applies to an obligation imposed by any of the following provisions of the repealed Act—

(a)section 30A;

(b)section 30B;

(c)section 32;

(d)section 32A;

(e)section 32B;

(f)section 33;

(g)section 34;

(h)section 34A.

(2)If a contravention of the obligation happens before the repeal, proceedings may be taken or continued against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened.

(3)If—

(a)a particular activity of a person would be a contravention of the obligation if all the acts or omissions involved happened before the repeal; but

(b)some of the acts or omissions happen before, and some after, the repeal;

the proceedings may be taken against the person for the activity as a contravention of the obligation as if the repeal had not happened.

(4)However, subsection (3) only applies if proceedings against the person for the activity are commenced—

(a)for an activity to which the provisions mentioned in subsection (1)(b), (c) or (f) relate—within 2 years after the repeal; or

(b)otherwise—within 1 year after the repeal.

(5)Also, the person can not be convicted of the contravention under subsection (3) unless the acts or omissions would also be a contravention of a corresponding duty under this Act if they all happened after the repeal.

(6)Subsections (3) and (4) do not prevent proceedings being commenced against the person under this Act solely for any acts of omissions involved in the activity that happen after the repeal.

282Investigations and proceedings generally

(1)This section does not limit sections 280 and 281.

(2)This section applies to an offence committed by a person against the repealed Act, for which investigations or proceedings had not been conducted, taken or completed before the repeal.

(3)The investigation or proceedings may be conducted, taken or continued against the person, and the person may be punished, as if the repeal had not happened.

(4)For subsection (3) and for any other provision of this division that authorises the taking or continuation of proceedings under the repealed Act as if it had not been repealed—

(a)a reference in the repealed Act, section 161(1), to the chief executive is taken to include a reference to the regulator; and

(b)a reference in the repealed Act, section 164(5), to the chief executive is taken to be a reference to the regulator, if proceedings are started after the repeal.

283Principal contractor

(1)This section applies if, immediately before the repeal of the repealed Act, a person is the principal contractor for construction work because of an appointment under the repealed Act, section 184A.

(2)The person is taken to continue to be the principal contractor for the construction work for a provision under a regulation that mentions a principal contractor (a principal contractor regulation).

(3)Subsection (2) does not apply if—

(a)a regulation in effect defines or limits who is a principal contractor for the principal contractor regulation; and

(b)the person is not a principal contractor as so defined or limited.

284Code of practice preserved

(1)This section applies to a code of practice made by the Minister under the repealed Act, section 41, and in existence immediately before the repeal (an old code).

(2)The old code is taken to be made under section 274 of this Act (a preserved code).

(3)A preserved code—

(a)is taken to be effective without compliance with section 274(2) or (5) of this Act; and

(b)may be varied or revoked under this Act without compliance with section 274(2) of this Act.

285Enforceable undertaking

(1)Subsection (2) applies to a workplace health and safety undertaking—

(a)made under the part 5 of the repealed Act; and

(b)in force immediately before the repeal of the part.

(2)Part 5 of the repealed Act and any other provision of the repealed Act relevant to the operation of part 5 continue to apply in relation to the undertaking as if they had not been repealed.

(3)However, for subsection (2), sections 42F, 42H and 42I of the repealed Act, as they existed before the repeal of part 5 of the repealed Act, apply as if a reference to the chief executive were a reference to the regulator.

(4)Also, the undertaking continues in force with necessary changes, in relation to an act or omission of the identified person happening after the repeal of part 5 of the repealed Act, as if it were an undertaking accepted by the regulator under section 216(1) of this Act to the extent to which the future behaviour assurance is material to compliance with this Act.

(5)Subsection (4) does not apply to an act or omission that constitutes a category 1 offence.

(6)Subsections (7) and (8) apply if, immediately before the repeal of the repealed Act, the chief executive—

(a)has received an undertaking under section 42DA of the repealed Act; but

(b)has not made a decision whether to accept the undertaking under section 42E of the repealed Act.

(7)The chief executive must decide whether or not to accept the undertaking.

(8)If the chief executive accepts the undertaking, subsections (2) to (5) and (9) and (12) apply to the undertaking.

(9)For subsection (4), a reference—

(a)in the undertaking to the alleged contravention; or

(b)in the future behaviour assurance to a contravention of the repealed Act;

is taken to include a reference to a contravention of this Act that corresponds to those contraventions.

Note—

Paragraph (a) is relevant to the continued operation of section 42F of the repealed Act as it existed before the repeal. Paragraph (b) is relevant if future behaviour is expressed in terms of contraventions of particular sections of the repealed Act.

(10)Despite subsections (1) to (9), the regulator may accept a WHS undertaking under part 11 of this Act for a contravention of the repealed Act.

(11)For subsection (10), a reference in part 11 to this Act is taken to include a reference to the repealed Act.

(12)In this section—

future behaviour assurance is the assurance about future behaviour from the identified person included in the workplace health and safety undertaking.

identified person means the identified person for the undertaking.

286Appointment to particular board and committee preserved

(1)An appointment made under any of the following provisions of the repealed Act and in force immediately before the repeal continues in force from the repeal as if the appointment had been made under the corresponding provision of this Act—

(a)section 46;

(b)section 57.

(2)For the purpose of calculating the duration of the appointment, it is taken to have been made when it was made under the repealed Act.

(3)In this section—

corresponding provision, of this Act, means—

(a)for an appointment made under the repealed Act, section 46—schedule 2, section 6 of this Act; or

(b)for an appointment made under the repealed Act, section 57—schedule 2, section 16 of this Act.

287Election of workplace health and safety representative preserved

(1)A workplace health and safety representative elected under the repealed Act, part 7, division 3, and holding office immediately before the repeal is taken from the repeal to have been elected as a health and safety representative, and to hold office for 3 years, under part 5, division 3, subdivision 4 of this Act.

(2)For the purpose of calculating the representative’s duration of office, the representative is taken to have been elected for a period of 3 years from the election under the repealed Act.

(3)Subsections (4) and (5) apply if, before the repeal, an employer has complied with the repealed Act, section 73(2) for the election of a workplace health and safety representative but the election has not been conducted before the repeal.

(4)The election may be continued to be conducted under the repealed Act despite the repeal but within 3 months after the repeal.

(5)The person elected under subsection (3) is taken to be elected as a health and safety representative, and to hold office for 3 years, under part 5, division 3, subdivision 4 of this Act.

(6)The work group of the health and safety representative mentioned in subsection (1) or (5) is taken to be—

(a)the representative’s workplace; or

(b)if there is more than 1 representative for the workplace under the repealed Act—the part of the workplace within the representative’s area of representation.

288Training requirements for workplace health and safety representative

(1)This section applies to a health and safety representative mentioned in section 287(1) and (5).

(2)Sections 85(6) and, subject to section 290(3), 90(4) of this Act do not apply to the representative for a period of 1 year from the commencement of this section.

(3)If the representative, immediately before the repeal of the repealed Act, was a qualified workplace health and safety representative under section 81A of the repealed Act, the representative is taken to have satisfied the requirements of section 90(4)(a) of this Act.

289Provisional improvement notices preserved

(1)Subsection (2) applies to the following in force immediately before the repeal of the repealed Act—

(a)a provisional improvement notice given under the repealed Act, section 81B for a contravention or likely contravention of the repealed Act (the old contravention);

(b)a provisional improvement notice mentioned in paragraph (a) affirmed (with or without changes) by an inspector under the repealed Act, section 81I.

(2)The provisional improvement notice continues to be enforceable against the person to whom it was given for a contravention of the repealed Act, section 81F, 81G or 81I(4) that happened before the repeal as if the repealed Act had not been repealed.

(3)Also, the provisional improvement notice continues in force and may be enforced as if it were a provisional improvement notice given to the person under section 90 of this Act for a contravention of a provision of this Act that corresponds to the old contravention.

290Suspension or cancellation relating to workplace health and safety representative preserved

(1)This section applies if—

(a)the entitlement of a workplace health and safety representative to give a provisional improvement notice under the repealed Act has been suspended or cancelled under section 81P of that Act; and

(b)the suspension or cancellation is in effect immediately before the repeal.

(2)The representative is taken not to satisfy section 90(4)(a) of this Act—

(a)for a suspension—until the day the suspension would have ended if section 81P of the repealed Act had not been repealed; or

(b)for a cancellation—indefinitely.

(3)Section 288(2) does not apply to the representative for the period that subsection (2) applies to the representative.

291Workplace health and safety committee preserved

(1)This section applies to a workplace health and safety committee established for a workplace under the repealed Act, section 86 and in existence immediately before the repeal of the repealed Act.

(2)From the repeal, the committee continues as the health and safety committee for the workplace taken to be established under part 5, division 4 of this Act.

(3)However, if the constitution of the committee is inconsistent with the requirements for a health and safety committee under section 76 of this Act, the constitution must be adjusted to comply with section 76 within 1 year after the repeal (the transitional period).

(4)After the transitional period, if subsection (3) has not been complied with, the person conducting the business undertaking or the workers who must agree to the constitution of the committee under section 76(1) of this Act may ask the regulator to appoint an inspector to decide the matter.

(5)The inspector must decide the appropriate constitution of the committee.

292Appointment of authorised representative preserved

(1)A person appointed as an authorised representative under the repealed Act, section 90D, and holding office immediately before the repeal of that section, from the repeal is taken to be issued with a WHS entry permit under section 134.

(2)The person’s WHS entry permit is taken to be the identity card issued to the person under the repealed Act, section 90H.

(3)For deciding the term of the permit, and despite section 136, the permit is taken to have been issued—

(a)when the person was appointed as an authorised representative under the repealed Act; and

(b)for the period until the expiry date stated on the identity card.

(4)The permit is taken to be issued to the person on the conditions of the appointment mentioned in the repealed Act, section 90F, which may be varied under section 135.

(5)If the industrial registrar issues the person with a WHS permit under section 134, subsections (1) to (3) stop applying to the person.

(6)An application under the repealed Act, section 90C that has not been decided at the repeal, from the repeal is taken to be an application under section 131 and must be decided by the industrial registrar.

293Appointment of inspector

(1)This section applies to a person who, immediately before the repeal of the repealed Act was an inspector appointed under the repealed Act, section 99.

(2)The person is taken to be appointed by the regulator as an inspector under section 156.

(3)The inspector’s compliance powers continue to be subject to the conditions imposed under the repealed Act, section 100, which are taken to be imposed under section 161.

(4)The inspector continues to be subject to directions given under the repealed Act, section 100(1), which are taken to be given, and may be withdrawn, under section 162.

294Warrants and actions by inspectors preserved

(1)A warrant issued under the repealed Act, part 9, division 2, and in force immediately before the repeal, continues to have effect for the purposes of an investigation to which section 282 applies.

(2)A power exercised by an inspector before the repeal—

(a)if the context permits, continues to have effect for the purposes of this Act; and

(b)if the context permits, is taken to have been exercised under a corresponding provision of this Act.

(3)However, subsection (2) does not apply to an exercise of an inspector’s power to which section 289, 295 or 296 applies.

(4)In this section—

corresponding provision means a provision of this Act that corresponds to a provision of the repealed Act under which the power mentioned in subsection (2) was exercised.

295Improvement notice preserved

(1)This section applies to an improvement notice—

(a)given by an inspector under the repealed Act, section 117 for a contravention or likely contravention of the repealed Act (the notified contravention); and

(b)in force immediately before the repeal.

(2)The notice continues to be enforceable against the person to whom it was given for an offence against the repealed Act, section 117(4) that happened before the repeal as if the repealed Act had not been repealed.

(3)Also, the notice continues in force and may be enforced as if it were an improvement notice given to the person under the repealed Act, section 117 for a contravention or likely contravention of this Act that corresponds to the notified contravention.

296Prohibition notice preserved

(1)This section applies to a direction or prohibition notice given by an inspector under the repealed Act, section 118 and in force immediately before the repeal.

(2)The direction or prohibition notice continues in force, and may be enforced under the repealed Act, section 118(4), as if the repealed Act had not been repealed.

297Appeals

(1)The repealed Act, part 11 continues to apply to a decision made under the repealed Act as if the repealed Act had not been repealed.

(2)Another provision of this subdivision that would have applied to a matter if the final decision on a review or appeal under the repealed Act, part 11 had been made before the repeal of the repealed Act applies to matter as if the final decision had been made before the repeal.

298Definitions for pt 15, div 2

repeal means the repeal of the repealed Act.

repealed Act means the repealed Dangerous Goods Safety Management Act 2001.

299Application of this Act and repealed Act in relation to particular provisions

(1)This section applies to an obligation imposed by any of the following provisions of the repealed Act—

(a)section 16;

(b)section 23;

(c)section 24.

(2)To the extent the obligation was contravened before the repeal, proceedings may be taken, or continue to be taken, against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened.

(3)If—

(a)the acts or omissions constituting the contravention continue after the repeal; and

(b)the continuing acts or omissions contravene a duty imposed by a provision of this Act;

proceedings may be taken against the person under the provision of this Act to the extent of the continuation of the acts or omissions after the repeal.

300Application of this Act and repealed Act in relation to other particular provisions

(1)This section applies to an obligation imposed by any of the following provisions of the repealed Act—

(a)section 25;

(b)section 26;

(c)section 27.

(2)If a contravention of the obligation happens before the repeal, proceedings may be taken or continued against the person who contravened the obligation, and the person may be punished, as if the repeal had not happened.

(3)If—

(a)a particular activity of a person would be a contravention of the obligation if all the acts or omissions involved happened before the repeal; but

(b)some of the acts or omissions happen before, and some after, the repeal;

the proceedings may be taken against the person for the activity as a contravention of the obligation as if the repeal had not happened.

(4)However, subsection (3) only applies if proceedings against the person for the activity are commenced—

(a)for an activity to which section 26 and 27 of the repealed Act applies in relation to designers and installers—within 2 years after the repeal; or

(b)for an activity to which section 26(2) of the repealed Act applies—within 2 years after the repeal; or

(c)otherwise—within 1 year after the repeal.

(5)Also, the person can not be convicted of the contravention under subsection (3) unless the acts or omissions would also be a contravention of a corresponding duty under this Act if they all happened after the repeal.

(6)Subsections (3) and (4) do not prevent proceedings being commenced against the person under this Act solely for any acts of omissions involved in the activity that happen after the repeal.

301Investigations and proceedings generally

(1)This section does not limit sections 299 and 300.

(2)This section applies to an offence by a person against the repealed Act for which investigations or proceedings had not been conducted, taken or completed before the repeal.

(3)The investigations and proceedings may be conducted, taken or continued against the person, and the person may be punished, as if the repeal had not happened.

(4)The repealed Act, section 175 continues to apply after the repeal in relation to an offence committed before the repeal.

302Directive by authorised officer preserved

(1)Subsection (2) applies to a directive (an old directive) given by an authorised officer under the repealed Act, part 6, division 3 before its repeal.

(2)The repealed Act, part 6, division 3 and any other provision of the repealed Act relevant to the operation of the division (the preserved provisions) continue to apply in relation to the old directive despite the repeal.

(3)Also, a further directive may be given under the preserved provisions (a consequential directive) in relation to the same matter as, or a matter connected to, the matter for which the old directive was given.

Example—

Before the repeal, an authorised officer gives a directive under the repealed Act, section 90. As a result of the response to the directive, or a lack of response to the directive, an inspector appointed under this Act gives a directive under section 91 of the preserved provisions.

(4)Under subsections (2) and (3), for any action that may be taken after the repeal, a reference in the division to an authorised officer is taken to be a reference to an inspector appointed under this Act.

(5)Under subsections (2) and (3), for the purpose of—

(a)an application for a review under the repealed Act, section 102 made after the repeal; or

(b)an action taken by the administering executive after the repeal on an application for review made before the repeal;

a reference in the division to the chief executive as the administering executive is taken to be a reference to the regulator.

Note—

Subsection (3) also necessarily affects later references to the administering executive in the repealed Act, part 9, division 2, as preserved under section 305.

303Warrants and actions by authorised officer preserved

(1)A warrant issued under the repealed Act, part 6 before the repeal continues to have effect for the purposes of an investigation to which section 301 applies.

(2)A power exercised by an authorised officer before the repeal—

(a)if the context permits, continues to have effect for the purposes of this Act; and

(b)if the context permits, is taken to have been exercised under a corresponding provision of this Act by an inspector appointed under this Act.

(3)However, subsection (2) does not apply to an exercise of an authorised person’s power to which section 302 applies.

(4)In this section—

corresponding provision means a provision of this Act that corresponds to a provision under which the power mentioned in subsection (2) was exercised.

304Cost recovery notice

(1)Despite the repeal of the repealed Act, a claimant under the repealed Act, section 107A may issue a cost recovery notice under the section in relation to costs incurred under the repealed Act, section 107 before the repeal.

(2)Despite the repeal, sections 107A and 107B of the repealed Act continue to apply as if they had not been repealed to—

(a)a cost recovery notice issued before the repeal or under subsection (1); and

(b)to any amount for which the notice was issued.

305Appeals

(1)The repealed Act, part 9 continues to apply to a decision made under the repealed Act as if the repealed Act had not been repealed.

(2)For the repealed Act, section 154F, applied under subsection (1), a reference to the chief executive of the department is taken to be a reference to the regulator.

306Regulation-making power for major hazard facility

A regulation may make provision for declaring whether or how any matter defined, decided, notified, done or otherwise arising under the repealed Act, part 4 or 5, is to have continuing effect for the regulation, including a continuing effect as modified for the purpose of the regulation.

Examples—

1A regulation may declare that a facility classified as a major hazard facility by the chief executive under the repealed Act, part 4, is taken. under the regulation, to be a facility registered or licensed as a major hazard facility by the regulator.

2A regulation may declare that a workplace defined as a large dangerous goods location under the repealed Act, part 5, is taken, under the regulation, to be a notified workplace with hazardous materials above the manifest quantity.

pt 16 div 3 hdg prev div 3 hdg om 2013 No. 39 s 109 sch 2

pres div 3 hdg ins 2014 No. 14 s 18

307Definitions

In this division—

amendment Act means the Work Health and Safety and Other Legislation Amendment Act 2014.

commencement means the commencement of this section.

former, in relation to a provision of this Act, means the provision as in force before the commencement.

s 307 prev s 307 om 2013 No. 39 s 109 sch 2

pres s 307 ins 2014 No. 14 s 18

308Existing directions to cease unsafe work

(1)This section applies if, before the commencement, a health and safety representative directed a worker to cease work under former section 85.

(2)Former section 85 continues to apply in relation to the direction as if the section had not been repealed by the amendment Act.

s 308 ins 2014 No. 14 s 18

309Entry to workplace under former s 119

(1)This section applies if—

(a)before the commencement, a WHS entry permit holder entered a workplace under part 7, division 2; and

(b)at the commencement, the WHS permit holder has not given notice of the entry and the suspected contravention under former section 119.

(2)Former section 119 continues to apply in relation to the entry as if the amendment Act had not been enacted.

s 309 ins 2014 No. 14 s 18