Factories and Shops (Amendment) Act 1946 (NSW)
FACTORIES AND SHOPS (AMENDMENT)
ACT.
Act No. 17, 1946.
An Act to amend the Factories and Shops Act, 1912-1943, in certain respects; and for purposes connected therewith. [Assented
to, 28th March, 1946.]
BE it enacted by the King's Most Excellent Majesty, lative Council and Legislative Assembly of New South by and with the advice and consent of the Legis Wales in Parliament assembled, and by the authority of the same, as follows :— 1 . (1) This Act may be cited as the "Factories and
Shops (Amendment) Act, 1946."
(2) The Factories and Shops Act, 1912-1943, is in
this Act referred to as the Principal Act.
(3) The Principal Act as amended by this Act may
be cited as the Factories and Shops Act, 1912-1946.
(4) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.
2. The Principal Act is amended—
the (a) (i) by omitting subsection one of section six and by inserting in lieu thereof the follow ing subsection:—
(1) (a) No person shall occupy or use any premises as a factory unless a certificate of registration or a permit has been issued in accordance with this section in respect of such premises, and is in force for the time being.
(b) Application for the registration
of any premises as a factory shall be made
to the Under Secretary by written notice in
the form prescribed and shall be accom panied by a plan of such premises showing such particulars as may be prescribed.
(ii) by omitting subsections seven and ten of the same section;
| (b) | by omitting section seven and by inserting in lieu thereof the following sections:— |
7. Any factory deemed to be an unregistered factory pursuant to section six of this Act or in which or in respect of which there is a contra vention of section six of this Act shall be deemed not to be kept in conformity with this Par t of this Act.
7A. ( 1 ) No person shall commence or cause to be commenced the erection of any building in tended for use as a factory or carry out or cause to be carried out any structural alterations or additions to any premises registered as a factory or intended for use as a factory or in respect of which a permit is in force for the time being unless the approval of the Under Secretary is first obtained.
( 2 ) Application for the approval of the Under Secretary shall—
(a) be made by the builder or owner or his architect in the prescribed manner; (b) be accompanied by two copies of the plans and specifications of the building, structural alterations or additions, one copy of which shall be retained by the
Under Secretary. (3) The Under Secretary shall consider such application and the plans and specifications accompanying it and may approve, or approve subject to conditions, or disapprove thereof.
(4) Where any application under this section is approved subject to conditions, or disapproved, the applicant may if dissatisfied with such decision appeal in the manner pre scribed to the Minister. The decision of the Minister shall be final.
(5)
(5) Every building intended for use as a factory and every structural alteration or addi tion to premises registered as a factory or intended for use as a factory or in respect of which a permit is in force for the time being shall be erected and carried out to the satisfaction of the Under Secretary in conformity with the application, plans and specifications approved pursuant to this section for the erection of such building or the carrying out of such structural alterations or additions.
(6) If any person does or causes to be done any work in connection with the erection of a building intended for use as a factory or carries out or causes to be carried out any struc tural alterations or additions to any premises registered as a' factory or intended for use as a factory or in respect of which a permit is in force for the time being without the approval required by this section or not in conformity with such approval, he shall be liable to a penalty not exceeding fifty pounds.
(c)
by inserting at the end of section 19A the words "No occupier of a factory or trader selling any such clothing shall require, order, cause to be done or performed or contract for the doing or performance of any work to which this section applies outside a factory by any person who is not the holder of a license as an outdoor worker."
(d) by inserting at the end of section 19D the words " A trader who sells clothing to which section 19A of this Act applies by wholesale or retail shall not have at any one time more than the number of licensed outdoor workers determined by the
Industrial Regis t rar" ; (e)
by inserting at the end of section twenty-five the following new subsections:—
(3) Where in a factory work is to be done inside any chamber, tank, vat, pit, pipe, flue or similar confined space in which dangerous fumes are liable to be present or to enter or to be
generated
generated in the course of the work to such an extent as to involve risk of persons being over come thereby—
(a) the confined space shall, unless there is other adequate means of egress, be pro vided with a manhole which may be rectangular, oval or circular in shape and shall be not less than eighteen inches long and sixteen inches wide or (if circular) not less than eighteen inches in diameter: Provided that in the case of tank waggons and other mobile plant, the manhole may be not less than sixteen inches long and fourteen inches wide or (if circular) not less than six teen inches in diameter; and (b) the occupier of the factory shall cause the following requirements to be com plied with:— (i) all practicable steps shall be taken to remove any fumes which may be present and to prevent ingress of fumes and, unless it has been ascertained by a suit able test that the space is free from dangerous fumes, the per son entering shall wear a belt to which there is securely attached a rope of which the free end is held by a person outside:
Provided that in case of
emergency or where it is impracticable to comply with the
foregoing requirements, the person entering shall wear a
suitable breathing apparatus;(ii) effective provision shall be made to collect as near as practicable to the point of origin and remove to the outer air any and all fumes generated during the course of the work and to ventilate the confined space;
(iii)
(iii) suitable breathing apparatus and a suitable reviving apparatus and suitable belts and ropes shall be provided and maintained in good order and condition so as to be readily accessible; and
(iv) a sufficient number of the persons employed shall be trained and practised in the use of such apparatus and in the method of restoring respiration:
Provided that the Chief Inspector may by certificate grant, subject to any conditions speci fied in the certificate, exemption from compliance with any of the requirements of this subsection in any case where he is satisfied that compliance with those requirements is unnecessary or im practicable.
For the purposes of this subsection the ex pression " f u m e " means fume, gas, dust or vapour.
(4) No work shall be permitted in any boiler- furnace or boiler-flue or confined space referred to in subsection three of this section in which excessive heat is present until it has been suffi ciently cooled by ventilation or otherwise to make work safe for the persons employed therein.
(f) (i) by omitting from section thirty-three the
words " A factory in which there is a con
not to be kept in conformity with this Par t travention of this section shall be deemed of this Ac t " and by inserting in lieu thereof the words "The duty imposed on the; occupier of a factory by this section shall be an absolute duty, in no way qualified by any other provision of this A c t " ; (ii) by inserting at the end of the same section the following new subsection:— (2) Any occupier of a factory who con
travenes or fails to comply with the provi
sions of subsection one of this section shall
be
be liable to a penalty not exceeding one
hundred pounds.
(g) (i) by inserting in subsection two of section
thirty-four after the words "first-aid attention" the words "including the appointment of personnel qualified to give nursing or first-aid at tention";
(ii) by omitting from subsection three of the same section the word " twen ty" and by
inserting in lieu thereof the word "f i f ty"; (iii) by inserting at the end of the same section the following new subsection :—
(5) (a) The powers relating to welfare, including the provision of facilities for rest, recreation, meals, changing and protection of clothing, and washing, which are exer cisable by the Minister under subsection two of this section in relation to a factory may also be exercised by the Minister in relation to any industry and for such pur pose—
(i) a reference in subsection two or subsection three of this section to a factory shall be deemed to include a reference to an industry; and
(ii) a reference in subsection two of this section to an occupier of a factory
ence to an employer in an industry. shall be deemed to include a refer
(b) Any employer who fails to comply with the requirements of any order made in pursuance of this subsection shall be liable to a penalty not exceeding fifty pounds.
(c) For the purposes of this subsec tion the expression " indus t ry" means any craft, occupation or calling (other than mining) in which persons of either sex are employed for hire or reward in any pre mises or place not being a factory.
(h)
(h) (i) by inserting in paragraph (a) of subsection two of section 36c after the words "first-aid at tention" the words "including the appointment of personnel qualified to give nursing or first-aid at tention";
(ii) by inserting in the same paragraph after the word "wel fare" where firstly occurring the words " o r safety";
(iii) by inserting after the same paragraph the following new paragraph:—
(a1) to investigate and make recom mendations to the Minister in respect of matters relating to the welfare of employees in any in dustry, including the provision of facilities for rest, recreation, meals, changing and protection of clothing, and washing;
(iv) by inserting in subsection three of the same section after the word "wel fa re" where secondly and thirdly occurring the words
" o r safety"; (v) by inserting in subsection five of the same section after the words " a factory" where firstly occurring the words "o r any premises or place in which an industry is being
carried o n " ;
(vi) by inserting at the end of subsection six of graph :— the same section the following new para (b) In this section the expression " indus t ry" means any craft, occu pation or calling (other than mining) in which persons of either sex are employed for hire or reward in any premises or place not being a factory. (i) by inserting at the end of section thirty-eight the following new subsections:—
(3) Written notice of every case of lead, phos
phorous, arsenical or mercurial poisoning,
anthrax or poisoning due to work in connection
with
with radio-active substances or any other disease due to any cause which the Minister specifies by order published in the Gazette occurring in a factory shall forthwith be sent by the occupier in the prescribed form and accompanied by the prescribed particulars to the Under Secretary.
(4) In addition to the written notices fur nished pursuant to subsections one, two and three of this section, a return in the prescribed form shall be sent to the Under Secretary on or before the expiration of one month after the thirty-first day of March and the thirtieth day of September in each year of cases of accident and disease occurring in such factory during the periods of six months ending on the thirty- first day of March and the thirtieth day of September in each year,
| (j) | by inserting at the end of section 38A the follow ing new subsection:— |
(2) Where the Minister is satisfied that it is necessary in the interests of persons employed in any factory or class or description of factories that more than one first-aid ambulance chest should be installed, equipped and maintained in such factory or class or description of factories, he may by order direct the occupier or occupiers of such factory or class or descrip tion of factories to make such provision for the
installation, equipment and maintenance of additional first-aid ambulance chests as appears to him to be reasonably practicable and to meet the necessity of the case,
| (k) | by inserting next after subsection (1A) of section sixty-two the following new subsection:— |
(1B) (a) The Governor may make regulations not inconsistent with this Act—
(i) providing for the qualifications, exami nation, certification, supervision and control of engine drivers;
(ii) providing for the granting and issue of appropriate certificates of compet ency or service in respect of the driver
of
of any engine or class or type of engine and the cancellation and suspension of such certificates;
(iii) providing for the establishment of an examination board for engine drivers;
(iv) relating to the powers, authorities, duties and functions of the examina tion board for engine drivers;
(v) prescribing the fees to be paid for examination for certificates of compet ency and the issue of certificates of service;
(vi) authorising the Chief Inspector by certificate in writing under his hand to exempt the driver of any engine from any or all of the provisions of the regulations where he is satisfied that such provisions cannot reasonably be applied to the driver of such engine or class or type of engine. Any such exemption may be absolute or may be made subject to such conditions as the Chief Inspector may impose;
(vii) prohibiting any person from being employed as or acting in the capacity of an engine driver of any class or type of engine unless he is the holder of a certificate of competency or of service appropriate to that class or type of
engine; (viii) prescribing a penalty not exceeding fifty pounds for any breach of the regu lations made in relation to the matters referred to in this subsection.
(b) For the purposes of this sub
section :—
"Engine dr iver" means a' person employed or acting in the capacity of driver 01 attendant in charge of an engine, whether the same is in a factory or not, but does not include a person acting as
an
an authorised attendant in charge of a
lift or as driver in charge of a powercrane who is the holder of an authorised
lift attendant's certificate or a powercrane driver's certificate, respectively, issued in pursuance of the provisions of the Scaffolding and Lifts Act, 1912-
1942.
" E n g i n e " means— (i) a piece of mechanism used to convert heat or some other form
of energy into mechanical work;
or
(ii) a machine for the development or utilisation of power from some source of energy such as coal,
gas, oil or compressed air; or
(iii) refrigerating machinery in which the volumetric displacement of the compressor or compressors
exceeds:—
(a) for a system using carbon dioxide as a refrigerant twelve cubic feet per minute; (b) for a system using am monia as a refrigerant
forty-two and one-half cubic feet per minute;
(c) for a system using freon
as a refrigerant eighty- four cubic feet per minute;
(d)
for a system using carrene as a refrigerant one hun dred and two cubic feet per minute;
(e)
for a system using as a refrigerant, gases other than carbon dioxide, am monia, freon or carrene, such volumetric displace ment of the compressor or
compressors
compressors as may be
prescribed,
but does not include—
(i) any engine used on a ship; or
(ii) any engine used at or in connec tion with any mine; or
(iii) any electric motor, electric
generator, electric convertor, electric transformer or electric
rectifier; or(iv) any engine used exclusively for domestic purposes in a private dwelling house; or
(v) any engine (except a locomotive, traction engine or road roller) of any self propelled vehicle used
for the carriage of passengers or
goods; or(vi) any engine used in rural indus tries within the meaning of sub
section one of section one hun
dred and thirty-one of the Industrial Arbitration Act, 1940, as amended by subsequent Acts ; or
(vii) any stationary internal combus tion engine or engines having an area of cylinder or a combined area of cylinders not exceeding one hundred and fourteen square
inches; or (viii) any other type or class of engine exempted from the operation of the provisions of this subsection
by the Minister and in respect of
which notification of exemption has been published in the Gazette.
(c) Any provision inserted in any regu
lation made under this subsection may apply to engines generally or to engines of any specified
class or type or to engines other than of a speci
fied class or type.
(1)
(1) by inserting next after section seventy-six the following new section:—
76A. (1) The Governor may from time to time
by proclamation published in the Gazette declare
that the provisions of this Part of this Act shall extend to any goods, other than bedding or up holstered furniture or wood furniture or boots,
specified therein as from a date to be specified,
and as from such date the provisions of this Part of this Act shall apply mutatis mutandis to such specified goods.
The Governor may in like manner revoke, amend, alter or vary any such proclamation.
(2) In this section the expression
"goods" includes anything which is the subject
of trade, manufacture or merchandise.
| (m) | by inserting next after subsection (4A) of sec tion one hundred and five the following new |
subsections:—
(4B) (a) Where at the commencement of the
Factories and Shops (Amendment) Act, 1946.,
the closing time on Saturday fixed by or under this Act for any class of shops (other than shopsof any of the classes specified in Schedule Eight
to this Act) in a shopping district is later than one o'clock in the afternoon, then, as from such commencement, the closing time on Saturdayfor such class of shops shall be one o'clock in
the afternoon.
(b) Where under the Shop Assistants,
etc. (Metropolitan) Award, the Shop Assistants, etc. (Newcastle) Award, the Shop Assistants, etc. (Country) Award, or the Shop Assistants, etc. (Broken Hill) Award, or any award varying; or replacing any such award, made or deemed
to have been made under the Industrial Arbitra tion Act, 1940, as amended by subsequent Acts, provision is made for the observance of any weekly half-holiday within any shopping district in respect of any class of shops (other than shops
of any of the classes specified in Schedule Eight
to this Act) on a day other than Saturday, theterms
terms of each such award shall as from the commencement of the Factories and Shops (Amendment) Act, 1946, be deemed to be varied and shall have and take effect as if Saturday were substituted for the day provided in the award for the observance of the weekly half- holiday within such shopping district and the times fixed by any such award for the cessation
of the ordinary hours of work by employees in
such class of shops on Saturday were substi tuted for the times fixed by such award for the
cessation of the ordinary hours of work by such
employees on the day which but for the provi sions of this subsection would be observed as the weekly half-holiday in such shopping district.
(c) As soon as practicable after the
commencement of the Factories and Shops (Amendment) Act, 1946, the Industrial Regis trar shall, subject to appeal to the Industrial Commission of New South Wales, vary the terms
of each award affected by the operation of this
subsection to the extent necessary to give effect to the provisions of this subsection, and may make such alterations in the form of any such award as he may think necessary or desirable to enable full effect to be given to the provisions
of this subsection.
The Industrial Registrar may refer any matter arising under this subsection to the
Industrial Commission of New South Wales for directions. (4c) (a) This subsection shall apply to and in respect of all shopping districts other than the Metropolitan Shopping District and the New castle Shopping District and any shopping district in which immediately before the commencement of the Factories and Shops (Amendment) Act, 1946, the closing time on Saturday fixed by or under this Act for any class of shops (other than shops of any of the classes specified in Schedule Eight to this Act) was not later than one o'clock in the afternoon.
(b)
(b) Where a shopping district does not
extend beyond the boundaries of a municipality
or shire, the council of that municipality or shiremay take a poll to determine whether some
specified week day shall, in lieu of Saturday, be
the day (hereinafter referred to as the weekly half-holiday) on which the closing time for anyclass of shops (other than shops of any of the classes specified in Schedule Eight to this Act)
in such district shall be one o'clock in the afternoon.
(c) Where a shopping district extends
beyond the boundaries of any municipality or shire the councils of all municipalities and shires wholly or partially included in such shopping district may agree to take in each of their area's
a poll of the nature referred to in paragraph (b)
of this subsection.(d) Any such poll shall be taken not earlier than six and not later than nine months after the commencement of the Factories and Shops (Amendment) Act, 1946.
(e) Where a council has, pursuant to
this subsectoin, decided or agreed to take a poll,
the council shall—(i) fix the date and places for the taking of the poll: Provided that where the poll
is being taken in respect of a shopping
district to which paragraph (c) of this subsection applies the same date shall
partially included in the shopping be fixed in each area which is wholly or district;
(ii) appoint such persons as may be neces sary to take or assist at the taking of the poll, and determine the duties of such persons in connection therewith;
(iii) provide for the manner in which the poll is to be taken.
(f) A council shall, at least twenty-one
days before the date fixed for the taking of a poll within its area, cause to be published in at
least
least one issue of a newspaper circulating in the
area a notice setting out the date and places at
which the poll is to be taken.
(g) Any person whose name appears on
the local government roll for any ward or riding
of a municipality or shire and whose place of
living as stated in such roll is situated within the shopping district at the date on which
a poll is being taken pursuant to this subsectionin that municipality or shire and who at such date retains the qualifications under which he was enrolled on that roll shall be entitled to vote at such poll but shall be entitled to one vote only.
(h) The clerk of a council which has
taken a poll pursuant to this subsection shall, within fourteen days after the taking of the poll, furnish the Minister with a return showing the number of persons entitled to vote at such poll, the number of persons who voted in favour of changing the weekly half-holiday from Saturday to some other specified week day and the number
of persons who voted against such change.
(i) Where a poll has been taken pur
suant to paragraph (b) of this subsection and the return furnished pursuant to paragraph (h)
of this subsection shows that a majority of the
persons voting at the poll, or where polls have been taken pursuant to paragraph (c) of this subsection and the returns furnished pursuant to paragraph (h) of this subsection shows that a
majority of the persons voting in all areas
wholly or partially included in the shopping district concerned, are in favour of the weekly half-holiday in the shopping district concerned being observed on some specified week day, other than Saturday, the Minister shall, as soon as practicable after the receipt of such return, publish in the Gazette a notification of that fact. ( j ) Upon the publication in the Gazette
of the notification, the Shop Assistants, etc.(Country) Award or the Shop Assistants, etc. (Broken Hill) Award, as the case may be, apply ing to the shopping district concerned shall, as
from
from the date of publication of such notification,
be deemed to be varied and shall have and take effect in respect of any class of shops (other
than shops of any of the classes specified in
Schedule Eight to this Act) as if, in relation to
the shopping district concerned, the day specified therein were substituted for Saturday as the day on which the weekly half-holiday is to be observed and the times fixed by any such award
for the cessation of the ordinary hours of work by employees in such class of shops on the specified day were substituted for the times fixed by such award for the cessation of the ordinary
hours of work by employees on Saturday.
(k) As soon as practicable after the pub
lication in the Gazette of any such notificationthe Industrial Registrar shall, subject to appeal to the Industrial Commission of New South
Wales, vary the terms of any award affected by
the operation of paragraph ( j ) of this subsection to the extent necessary to give effect to the provisions of that paragraph, and may make such alterations in the form of any such award as he may think necessary or desirable to enable
full effect to be given to the provisions of that
paragraph.
The Industrial Registrar may refer any matter arising under this paragraph to the Industrial Commission of New South Wales
for directions.
(1) In this subsection "local government
ro l l" means the roll of electors prepared under
the Local Government Act, 1919, as amended by subsequent Acts, and " a r e a " has the meaning
ascribed to it in that Act, as so amended.
| (n) | by inserting at the end of section one hundred and seven the following words:— |
"and the time fixed by any such award
for the cessation of the ordinary hours of
work by employees in shops (other than shops of any of the classes specified in
Schedule
Schedule Eight to this Act) in any shop- ping district on Saturday, or on the day notified in accordance with the provisions of paragraph (i) of subsection (4c) of section one hundred and five of this Act as the day on which the weekly half-holiday is to be observed, shall not be later than one o'clock in the afternoon."
(o) by inserting in Schedule Eight next before the words "Chemists ' shops" the words "Cake and Pastry shops."
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