Occupational Health and Safety Act 1991 (Cth)

Occupational Health and Safety Act 1991

Act No. 30 of 1991 as amended

[Note: This Act was repealed by Act No. 146 of 2011 on

1 January 2012]

This compilation was prepared on 22 April 2011

taking into account amendments up to Act No. 103 of 2010

The text of any of those amendments not in force

on that date is appended in the Notes section

The operation of amendments that have been incorporated may be

affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,

Attorney‑General’s Department, Canberra

Contents

An Act to promote the occupational health and safety of persons employed by the Commonwealth, Commonwealth authorities and certain licensed corporations, and for related purposes

Part 1Preliminary 1Short title [see Note 1]

This Act may be cited as the Occupational Health and Safety Act 1991.

2Commencement [see Note 1]

(1)
Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
(2)
Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
(3)
If a provision referred to in subsection (2) does not commence within the period of 6 months commencing on the day on which this Act receives the Royal Assent, that provision commences on the first day after the end of that period.

3Objects

The objects of this Act are:
(a)
to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of non‑Commonwealth licensees; and
(b)
to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and
(c)
to ensure that expert advice is available on occupational health and safety matters affecting employers, employees and contractors; and
(d)
to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and
(e)
to foster a co‑operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and
(f)
to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and
(g)
to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.

4Act excludes some State and Territory laws

Exclusion of State and Territory laws
(1)
Subject to subsection (2), this Act is intended to apply to the exclusion of any law of a State or Territory (other than a law prescribed under subsection (3)) to the extent that the law of the State or Territory relates to occupational health or safety and would otherwise apply in relation to employers, employees or the employment of employees.
Note: For the meaning of employer and employee, see section 5.
State or Territory laws not excluded from applying to situations not covered by this Act
(2)
If, because of section 14 or 15, provisions of this Act do not apply in relation to a particular situation, subsection (1) is not intended to affect the application of State or Territory laws to that situation.
Allowing certain State or Territory laws to apply
(3)
If a State or Territory law deals with a matter relating to occupational health or safety that is not dealt with by or under this Act, the regulations may prescribe the law as not being intended to be excluded by this Act.
Interpretation
(4)
In this section, a reference to laws of a State or Territory includes a reference to such laws as they have effect as applied provisions within the meaning of the Commonwealth Places (Application of Laws) Act 1970.
(5)
In this section:
law includes a provision of a law (including, for example, a formula or a component of a formula).

5Interpretation

(1)
In this Act, unless the contrary intention appears:
annual report, in relation to an Entity or a Commonwealth authority, means its annual report (if any) to the responsible Minister relating to its activities, operations, business or affairs.
annual report of Comcare means the annual report on Comcare prepared under section 9 of the Commonwealth Authorities and Companies Act 1997.
annual report of the Commission means the annual report of the Commission under section 89S of the Safety, Rehabilitation and Compensation Act 1988.
association means an association of employees, a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment.
chief executive officer means:
(a)
for a Commonwealth authority—the person (by whatever name called) who is responsible for the administration of the authority; or
(b)
for a non‑Commonwealth licensee—the person (by whatever name called) who is primarily and directly responsible to the directors of the licensee for the general and overall management of the licensee.
Comcare means the body corporate established by section 68 of the Safety, Rehabilitation and Compensation Act 1988.
Commission means the Safety, Rehabilitation and Compensation Commission established by section 89A of the Safety, Rehabilitation and Compensation Act 1988.
Commonwealth authority means:
(a)
a body corporate established for a public purpose by or under a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or
(b)
a body corporate:
(i)
that is incorporated under a law of the Commonwealth or a State or Territory; and
(ii)
in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest; and
(iii)
that is not a body corporate that the Minister, by notice published in the Gazette, has declared not to be a Commonwealth authority for the purposes of this Act; or
(c)
a body corporate:
(i)
that is incorporated under a law of the Commonwealth or a State or Territory; and
(ii)
in which the Commonwealth has a substantial interest; and
(iii)
that is a body corporate that the Minister, by notice published in the Gazette, has declared to be a Commonwealth authority for the purposes of this Act; or
(d)
a body corporate:
(i)
that is not covered by paragraph (a), (b) or (c); and
(ii)
for which a licence under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 is in force (whether or not the licence is suspended); and
(iii)
that was not an eligible corporation for the purposes of that Part when the licence was granted.
Commonwealth authority contractor has the meaning given by section 9A.
Commonwealth authority employee has the meaning given by section 9.
Commonwealth contractor has the meaning given by section 9A.
Commonwealth employee has the meaning given by section 9.
Commonwealth premises means premises owned or occupied by the Commonwealth or by a Commonwealth authority.
contract includes any arrangement or understanding.
contractor has the meaning given by section 9A.
Note: In section 14, the meaning of contractor is affected by subsection 14(3).
controlling interest, in relation to a body corporate, means:
(a)
an interest in the body corporate that enables the person holding the interest to:
(i)
control the composition of the board of directors of the body corporate; or
(ii)
cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the body corporate; or
(iii)
control more than one‑half of the issued share capital of the body corporate (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b)
an interest in another body corporate that constitutes, under paragraph (a), a controlling interest in that other body corporate, being:
(i)
a body corporate that, under paragraph (a), has a controlling interest in the first‑mentioned body corporate; or
(ii)
a body corporate that has such a controlling interest by another application or other applications of this paragraph.
dangerous occurrence means an occurrence, at a workplace, that is declared by the regulations to be a dangerous occurrence for the purpose of this definition.
designated work group means a group of employees established as a designated work group in accordance with section 24, or that designated work group as varied in accordance with that section, and, in relation to an employer, means such a group that consists entirely of employees of that employer.
employee has the meaning given in section 9.
employee representative means:
(a)
in relation to an employee of an employer—a registered organisation of employees, or an association, of which the employee is a member, being an employee who is qualified to be such a member by virtue of the work the employee performs as an employee of the employer; or
(b) in relation to a designated work group—a registered organisation of employees, or an association, of which an employee included in the group is a member, being an employee who is qualified to be such a member by virtue of the work the employee performs as an employee included in the group.
employer means:
(a)
the Commonwealth; or
(b)
a Commonwealth authority; or
(c)
a non‑Commonwealth licensee.
employing authority means:
(a)
in relation to a person who is a Commonwealth employee or a Commonwealth contractor:
(i)
the person or body specified in the regulations to be the employing authority in relation to that first‑mentioned person or in relation to a class of persons that includes that first‑mentioned person; or
(ii)
if the regulations do not so specify a person or body—the principal officer of the Entity for which the first‑mentioned person is performing work; or
(b)
in relation to a workplace at which, or any plant, substance or thing with which, a person of the kind first‑mentioned in paragraph (a) is performing work for the Commonwealth—the person or body who is, under paragraph (a), the employing authority in relation to that first‑mentioned person.
Entity means:
(a)
an Agency, within the meaning of the Public Service Act 1999, that is not a Commonwealth authority; or
(b)
a Parliamentary Department within the meaning of the Parliamentary Service Act 1999; or
(c)
a person, body, organisation or group of persons prescribed for this paragraph.
Government business enterprise means:
(a)
a Commonwealth authority to which paragraph (a) or (d) of the definition of Commonwealth authority applies:
(i)
that is specified in Schedule 1; or
(ii)
that the Minister, by instrument published in the Gazette, has declared to be a Government business enterprise for the purposes of this Act; or
(b)
a Commonwealth authority to which paragraph (b) or (c) of that definition applies.
health and safety management arrangements means the health and safety management arrangements referred to in paragraph 16(2)(d).
improvement notice means an improvement notice issued under subsection 47(1).
investigation means an investigation conducted under Part 4.
investigator means a person appointed under section 40 to be an investigator.
involved: a person is involved in a breach of a provision if, and only if, the person has:
(a)
aided, abetted, counselled or procured the breach; or
(b)
has induced, whether by threats or promises or otherwise, the breach; or
(c)
has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the breach; or
(d)
has conspired with others to effect the breach.
member, in relation to the Commission, has the additional meaning given in subsection (3A).
non‑Commonwealth licensee means a body corporate:
(a)
for which a licence under Part VIII of the Safety, Rehabilitation and Compensation Act 1988 is in force (whether or not the licence is suspended); and
(b)
that was an eligible corporation for the purposes of that Part when the licence was granted; and
(c)
that is not a Commonwealth authority for the purposes of this Act.
non‑Commonwealth licensee contractor has the meaning given by section 9A.
non‑Commonwealth licensee employee has the meaning given by section 9.
non‑Commonwealth licensee premises, in relation to a particular non‑Commonwealth licensee, means premises owned or occupied by the non‑Commonwealth licensee.
own, in relation to a workplace, plant, a substance or a thing, includes own jointly, or own in part, the workplace, plant, substance or thing.
plant includes any machinery, equipment or tool, and any component thereof.
premises includes any place (whether enclosed or built on or not), including a place situated under ground or under water, and, in particular, includes:
(a)
a building, aircraft, vehicle or vessel; and
(b)
any structure, whether a fixed structure, or a moveable structure such as a tent, and whether on land, on the bed of any waters or floating on any waters; and
(c)
a part of premises (including a part of premises of a kind referred to in paragraph (a) or (b).
principal officer, in relation to a Commonwealth authority, means:
(a)
the person who constitutes, or is acting as the person who constitutes, the authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present; or
(b)
if the affairs of the authority are administered or managed by a board or other group of persons—the person who is entitled to preside at any meeting of that board or other group at which he or she is present.
principal officer, in relation to an Entity, means:
(a)
if the Entity is an Agency that is not a Commonwealth authority—the Agency Head within the meaning of the Public Service Act 1999; or
(b)
if the Entity is a Parliamentary Department—the Secretary of the Parliamentary Department within the meaning of the Parliamentary Service Act 1999; or
(c)
if the Entity is a person, body, organisation or group of persons prescribed for paragraph (c) of the definition of Entity—the person prescribed as the principal officer.
prohibition notice means a prohibition notice issued under subsection 46(1).
registered organisation means:
(a)
an association that is registered or recognised under the Fair Work (Registered Organisations) Act 2009; or
(b)
a body that is declared by the regulations to be a registered organisation for the purposes of this Act.
reviewing authority means Fair Work Australia, established under section 575 of the Fair Work Act 2009.
substantial interest, in relation to a body corporate, means an interest (other than a controlling interest) in the body corporate that enables the person holding the interest to cast, or control the casting of, a number of votes at a general meeting of the body corporate that is equal to or greater than the number of votes which may be cast, or whose casting may be controlled, by any other single person.
workplace means:
(a)
any Commonwealth premises in which Commonwealth employees or Commonwealth contractors work; or
(b)
any Commonwealth premises in which Commonwealth authority employees or Commonwealth authority contractors work; or
(c)
any non‑Commonwealth licensee premises of a non‑Commonwealth licensee in which non‑Commonwealth licensee employees, or non‑Commonwealth licensee contractors, of the licensee work.
However, workplace does not include any part of premises that is primarily used as a private dwelling.
(2)
A reference in a particular provision of this Act to the responsible Minister in relation to an employer, other than a Commonwealth authority covered by paragraph (c) or (d) of the definition of Commonwealth authority in subsection 5(1) or a non‑Commonwealth licensee, is a reference:
(a)
where the employer is the Commonwealth and, in the circumstances set out in that provision, is acting through a particular Entity—to the Minister responsible for that Entity; and
(b)
where the employer is a Commonwealth authority referred to in paragraph (a) of the definition of Commonwealth authority—to the Minister who is responsible for the administration of the Act or other law under which the Commonwealth authority is established; and
(c)
where the employer is a Commonwealth authority referred to in paragraph (b) of the definition of Commonwealth authority—to the Minister who is responsible for the administration of the Entity dealing with matters that include the matters for the performance of which the Commonwealth authority was principally incorporated.
(3)
For the purposes of this Act, an employee is to be taken to be at work at all times when the employee is performing work in connection with an undertaking carried on by an employer, whether or not the work is carried out at a workplace.
(3A)
A reference in this Act to a member of the Commission includes a reference to the Chief Executive Officer appointed under section 74 of the Safety, Rehabilitation and Compensation Act 1988.
(4)
A reference in this Act to an employee of an employer at a particular workplace is a reference to an employee who works at that workplace in the capacity of an employee of that employer.
(5)
A reference in this Act to an accident includes a reference to the contracting of a disease.
(6)
A reference in this Act to a breach of this Act or to a breach of the regulations includes, where the breach constitutes an offence, a reference to:
(a)
an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to the breach; or
(b)
an offence against section 6 of the Crimes Act 1914 that relates to the breach.
(7)
Where this Act refers to a Minister, specifying the Minister merely by reference to the Minister administering an Act, the reference to the Minister is to be taken to be a reference to:
(a)
if, for the time being, different Ministers administer the Act in respect of different matters:
(i)
if 2 or more Ministers administer the Act in respect of the relevant matter—any one of those Ministers; or
(ii)
if only one Minister administers the Act in respect of the relevant matter—that Minister; or
(b)
if paragraph (a) does not apply and, for the time being, 2 or more Ministers administer the Act—any one of those Ministers; or
(c)
if paragraphs (a) and (b) do not apply—the Minister for the time being administering the Act.
(8)
An instrument referred to in the definition of Government business enterprise in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

6Act not to prejudice national security

(1)
Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia ’s national security.
(2)
Without limiting, by implication, the generality of subsection (1), the Director‑General of Security may, after consulting with the Minister, by notice in writing, declare that specified provisions of this Act do not apply, or apply subject to such modifications and adaptations as are set out in the declaration, in relation to:
(a)
premises or a workplace under the control of the Director‑General; or
(b)
a person who is employed under section 84 of the Australian Security Intelligence Organisation Act 1979; or
(c)
the performance of work by such a person for the purpose of carrying out a function set out in section 17 of that Act;
and such a declaration has effect accordingly.
(3)
In administering the Australian Security Intelligence Organisation and in the exercise of the power under subsection (2), the Director‑General of Security must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia ’s national security.
(4)
A notice in writing under subsection (2) is a disallowable instrument for the purpose of section 46A of the Acts Interpretation Act 1901.

7Act not to prejudice Australia ’s defence

(1)
Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia ’s defence.
(2)
Without limiting, by implication, the generality of subsection (1), the Chief of the Defence Force may, after consulting with the Minister, by notice in writing, declare that specified provisions of this Act do not apply, or apply subject to such modifications and adaptations as are set out in the declaration, in relation to a specified member of the Defence Force, or members of the Defence Force included in a specified class of such members, and such a declaration has effect accordingly.

(3)
In the exercise of the power under subsection (2), the Chief of the Defence Force must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia ’s defence.
(4)
A notice in writing under subsection (2) is a disallowable instrument for the purpose of section 46A of the Acts Interpretation Act 1901.

8Act not to prejudice certain police operations

(1)
Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to an existing or future covert operation or dangerous operation of the Australian Federal Police.
(2)
In this section:
AFP employee has the same meaning as in the Australian Federal Police Act 1979.
covert operation means the performance of a function or service under section 8 of the Australian Federal Police Act 1979 where knowledge of the operation by an unauthorised person, may:
(a)
reduce the effectiveness of the performance of the function or service; or
(b)
expose a person to the danger of physical harm or death arising from the actions of another person.
dangerous operation means the performance of a function or service under section 8 of the Australian Federal Police Act 1979 in circumstances where exposure of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, or an AFP employee to the danger of serious physical harm or death, other than a danger arising from a cause within the control of the Australian Federal Police, is reasonably necessary for the effective performance of the function or the provision of the service.
unauthorised person in relation to a covert operation, means a person, including an AFP employee, who is not involved in the approval, planning or execution of the operation.

9Meaning of employee etc.

Employee
(1)
An employee is:
(a)
a Commonwealth employee (see subsection (1A)); or
(b)
a Commonwealth authority employee (see subsection (2A)); or
(c)
a non‑Commonwealth licensee employee (see subsection (3A)).
Commonwealth employee
(1A)
A Commonwealth employee is a person who is employed by the Commonwealth, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship.
(2)
Without limiting the generality of subsection (1A):
(a)
the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979); or
(b)
a member of the Defence Force; or
(c)
a person (other than a person to whom subsection (3) applies) who is the holder of or is acting in:
(i)
an office established by a law of the Commonwealth, other than an office that is declared by the Minister, by notice in writing, to be an office in relation to which this Act does not apply; or
(ii)
an office that is established by a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island) and is declared by the Minister, by notice in writing, to be an office in relation to which this Act applies;
is, for the purposes of this Act, to be taken to be employed by the Commonwealth, and the person’s employment is, for those purposes, to be taken to be constituted by the person’s performance of duties as the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, by the person’s performance of duties as such a member of the Defence Force or by the person’s performance of the duties of that office, as the case may be.
Commonwealth authority employee
(2A)
A Commonwealth authority employee of a particular Commonwealth authority is a person who is employed by the authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship.
(3)
Without limiting the generality of subsection (2A), a person who:
(a)
constitutes, or is acting as the person constituting, a Commonwealth authority; or
(b)
is, or is acting as, a member of such an authority; or
(c)
is, or is acting as, a member of a body established, by or under the Act establishing such an authority, for a purpose associated with the performance of the functions of the authority; or
(d)
is a deputy of a member referred to in paragraph (b) or (c);
is, for the purposes of this Act, to be taken to be employed by that authority, and the person’s employment is, for those purposes, to be taken to be constituted by the performance of:
(e)
the duties of the authority; or
(f)
the person’s duties as such a member or acting member; or
(g)
the person’s duties as such a deputy;
as the case may be.
Non‑Commonwealth licensee employee
(3A)
Subject to subsection (3B), a non‑Commonwealth licensee employee of a particular non‑Commonwealth licensee is a person who is employed by the licensee, whether the person is so employed under a law of the Commonwealth or of a State or Territory, or under a contract of service or apprenticeship.
(3B)
If, under the Safety, Rehabilitation and Compensation Act 1988, the licence of a non‑Commonwealth licensee covers only some of the people referred to in subsection (1), only such of those people as are covered by the licence are non‑Commonwealth licensee employees of the licensee for the purposes of this Act.
External territory public servants not covered
(4)
This Act does not apply in relation to an officer or employee of the Public Service of an external Territory.
Minister’s power to declare people to be employed by Commonwealth or Commonwealth authority
(5)
The Minister may, by notice in writing, declare:
(a)
that a person who is included in a class of persons specified in the notice, being a class of persons who engage in activities or perform acts:
(i)
at the request or direction, for the benefit, or under a requirement made by or under a law, of the Commonwealth; or
(ii)
at the request or direction, or for the benefit, of a Commonwealth authority;
is, for the purposes of this Act, to be taken to be employed by the Commonwealth, or by that authority, as the case may be; and
(b)
that the employment of the person is, for those purposes, to be taken to be constituted by the performance by the person of such acts as are specified in the notice;
and such a declaration has effect accordingly.
(6)
A notice in writing under paragraph (2)(c) or subsection (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

9AMeaning of contractor etc.

Contractor
(1)
A contractor is:
(a)
a Commonwealth contractor (see subsection (2)); or
(b)
a Commonwealth authority contractor (see subsection (3)); or
(c)
a non‑Commonwealth licensee contractor (see subsection (4)).
Note: In section 14, the meaning of contractor is affected by subsection 14(3).
Commonwealth contractor
(2)
A Commonwealth contractor is a natural person (other than a Commonwealth employee or a Commonwealth authority employee) who performs work on Commonwealth premises in connection with a contract between:
(a)
the Commonwealth; and
(b)
that person or another person (whether a natural person or not);
which is in connection with an undertaking being carried on by the Commonwealth.
Commonwealth authority contractor
(3)
A Commonwealth authority contractor of a particular Commonwealth authority is a natural person (other than a Commonwealth employee or a Commonwealth authority employee) who performs work on Commonwealth premises in connection with a contract between:
(a)
the authority; and
(b)
that person or another person (whether a natural person or not);
which is in connection with an undertaking being carried on by the authority.
Non‑Commonwealth licensee contractor
(4)
A non‑Commonwealth licensee contractor of a particular non‑Commonwealth licensee is a natural person (other than an employee of the licensee) who performs work on non‑Commonwealth licensee premises of the licensee in connection with a contract between:
(a)
the licensee; and
(b)
that person or another person (whether a natural person or not);
which is in connection with an undertaking being carried on by the licensee.

10Commonwealth to act through employing authority

(1)
For the purposes of this Act and any other law:
(a)
duties imposed by this Act or the regulations on the Commonwealth as an employer shall, so far as they concern those Commonwealth employees, and those Commonwealth contractors, in relation to whom a particular person or body is the employing authority, be performed by that person or body; and
(b)
anything done by that person or body in the capacity of an employing authority has effect as if it had been done by the Commonwealth; and
(c)
anything served on, or otherwise given or notified to, that person or body in the capacity of an employing authority has effect as if it had been served on, or given or notified to, the Commonwealth.
(2)
For the purposes of this Act and any other law, the duties imposed by this Act on the Commonwealth as an employer must, so far as they concern a workplace, or any plant, substance or thing, in relation to which one or more than one person or body is the employing authority, be performed by that person or body, or jointly by those persons or bodies, as the case requires.

11Extent to which Act binds the Crown

(1)
This Act binds the Crown in right of the Commonwealth.
(2)
Nothing in this Act has the effect of making the Commonwealth or a Commonwealth authority (other than a Government business enterprise):
(a)
liable to be prosecuted for an offence; or
(b)
liable to pay any fine or penalty under the Act or the regulations, other than as mentioned in subsection (3).
(3)
Subsection (2) does not prevent the Commonwealth or a Commonwealth authority from being:
(a)
subject to proceedings for a contravention of subclause 2(1) of Schedule 2; or
(b)
liable to pay a pecuniary penalty under subclause 4(1) of Schedule 2.
Note: A court may also grant an injunction under clause 14 of Schedule 2, make remedial orders under clause 15 of Schedule 2 or enforce undertakings under clause 16 of Schedule 2.
(4)
Subsection (2) does not prevent the following:
(a)
a Commonwealth employee; or
(b)
a Commonwealth authority employee (including an employee of a Government business enterprise); or
(c)
a Government business enterprise;
from being:
(d)
subject to proceedings for a contravention of subclause 2(1) of Schedule 2; or
(e)
liable to be prosecuted for an offence; or
(f)
liable to pay any fine or penalty under the Act or the regulations.

12Functions conferred on Commission

(1)
For the purposes of paragraph 89B(c) of the Safety, Rehabilitation and Compensation Act 1988, the following additional functions are conferred on the Commission:
(a)
to ensure, in accordance with this Act and the regulations, that the obligations imposed by or under this Act are complied with;
(b)
to advise employers, employees or contractors, either on its own initiative or on request, on occupational health and safety matters affecting such employers, employees or contractors (including the matters that should be covered by health and safety management arrangements);
(c)
to collect, interpret and report information relating to occupational health and safety in the employment of employees;
(d)
to formulate policies and strategies relating to the occupational health and safety of employees;
(e)
to advise the Minister:
(i)
on the most effective means of giving effect to the objects of this Act; and
(ii)
on the making of regulations under this Act; and
(iii)
on the approval of codes of practice under section 70;
(f)
to accredit occupational health and safety training courses for the purposes of section 27;
(g)
to liaise with other bodies concerned with occupational health and safety;
(h)
to issue any directions that the Commission considers to be appropriate to employers on the conduct of elections under section 25A for health and safety representatives.
(2)
The Minister may, in writing, give a direction to the Commission concerning the performance of its functions, and the exercise of its powers, under this Act, and the Commission must comply with any direction so given.

12AFunctions conferred on Comcare

(1)
The additional functions conferred on the Commission under paragraph 12(1)(a) do not include the specific functions conferred on Comcare under this Act.
(2)
The Minister may, in writing, give a direction to Comcare with respect to the performance of its functions and the exercise of its powers under this Act.
(3)
Comcare must comply with a direction given under this section.

13Application of Act to external Territories etc.

(1)
This Act extends to all the external Territories.
(2)
This Act (other than Parts 3 and 4) has extra‑territorial operation according to its terms.

14Application of Act to workplaces controlled by contractors

(1)
Despite anything in this Act, if a workplace is controlled by a contractor for construction or maintenance purposes:
(a)
this Act, other than section 20, does not apply to that workplace while it is so controlled; and
(b)
this Act, other than section 20, does not apply to work performed by contractors at that workplace while it is so controlled; and
(c)
this Act, other than Parts 1 and 2 and section 82, applies to work performed by employees at that workplace while it is so controlled:
(i)
only if the regulations so provide; and
(ii)
subject to such modifications and adaptations (if any) as are set out in the regulations.
Note: For the meaning of contractor, see section 9A and subsection (3) of this section.
(2)
For the purposes of subsection (1), a workplace is not taken not to be controlled by a contractor simply because of the presence at the workplace of an employee of the employer for which the contractor is performing work if that employee has no right to direct the work of the persons working for the contractor.
(3)
For the purpose of this section, contractor has the meaning given by section 9A, except that:
(a)
it also includes persons who would be contractors under section 9A if references in subsections 9A(2), (3) and (4) to natural persons were extended to also include bodies corporate, other than any body corporate that is a Commonwealth authority or a non‑Commonwealth licensee; and
(b)
it does not include any person who is an employee (as defined in section 9).

15Application of Act to employees working in non‑Commonwealth premises

Where an employee ordinarily performs his or her work at a particular place but that place is neither Commonwealth premises nor non‑Commonwealth licensee premises, this Act, other than Parts 1 and 2 and section 82, applies in relation to that employee or to that place of work:
(a)
only if the regulations so provide; and
(b)
subject to such modifications and adaptations (if any) as are set out in the regulations.

15AApplication of Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For the purposes of this Act, corporate criminal responsibility is dealt with by section 78, rather than by Part 2.5 of the Criminal Code.

Part 2Occupational health and safetyDivision 1General duties relating to occupational health and safety16Duties of employers in relation to their employees etc.

(1)
An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.
Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).
(2)
Without limiting the generality of subsection (1), an employer breaches that subsection if the employer fails to take all reasonably practicable steps:
(a)
to provide and maintain a working environment (including plant and systems of work):
(i)
that is safe for the employer’s employees and without risk to their health; and
(ii)
that provides adequate facilities for their welfare at work; and
(b)
in relation to any workplace under the employer’s control, to:
(i)
ensure the workplace is safe for the employees and without risk to their health; and
(ii)
provide and maintain a means of access to, and egress from, the workplace that is safe for the employees and without risk to their health; and
(c)
to ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use, handling, storage or transport of plant or of substances; and
(d)
to develop, in consultation with the employees of the employer, written health and safety management arrangements that will:
(i)
enable effective cooperation between the employer and the employees in promoting and developing measures to ensure the employees’ health, safety and welfare at work; and
(ii)
provide adequate mechanisms for informing the employees about the arrangements; and
(iii)
provide adequate mechanisms for reviewing the effectiveness of the arrangements; and
(iv)
provide adequate mechanisms for the variation of the arrangements in consultation with the employees; and
(v)
provide for a dispute resolution mechanism to deal with disputes arising in the course of consultations held under this Act (other than section 24) between the employer and the employees; and
(vi)
in the case of an employer who is required under section 34 to establish a health and safety committee—provide for the manner in which the health and safety committee is to be constituted and to operate; and
Note: The establishment of health and safety committees is dealt with in section 34.
(e)
to provide to the employees, in appropriate languages, the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health.
(2A)
An instrument setting out health and safety arrangements developed under subsection (1) is not a legislative instrument.
(3)
Without limiting the matters that may be covered by health and safety management arrangements developed by an employer as mentioned in paragraph (2)(d), such arrangements may provide for the following:
(a)
a written occupational health and safety policy in respect of the employer and the employees of the employer;
(b)
arrangements relating to risk management;
(c)
the making of agreements between the employer, the employees of the employer and their employee representatives in relation to:
(i)
continuing consultation, between the employer, the employees of the employer and their employee representatives on occupational health and safety matters; and
(ii)
such other matters (if any) as are agreed between the employer, the employees of the employer and their employee representatives;
(d)
training in relation to occupational health and safety.
(4)
The obligations of an employer in respect of the employer’s employees that are set out in subsections (1) and (2) apply also in respect of persons who are contractors of that employer but only in relation to:
(a)
matters over which the employer has control; or
(b)
matters over which the employer would have had control but for an express provision in an agreement made by the employer with such a contractor to the contrary, being matters over which the employer would, in the circumstances, usually be expected to have had control.
(5)
Without limiting the generality of subsection (1) insofar as that section applies in relation to an employer’s employees, the employer breaches that subsection if the employer fails to take all reasonably practicable steps:
(a)
to take appropriate action to monitor the employees’ health and safety at work, and the conditions of the workplaces under the employer’s control; or
(b)
to maintain appropriate information and records relating to the employees’ health and safety; or
(c)
to provide appropriate medical and first aid services for the employees.

16ADevelopment of health and safety management arrangements

(1)
In developing or varying health and safety management arrangements, an employer must have regard to any advice of the Commission on the matter (whether the advice has been given to that employer, or to employers generally).

(2)
An employee of an employer who is holding consultations to develop or vary health and safety management arrangements may be represented in the consultations by one of the following if the employee so requests:
(a)
another employee of the employer;
(b)
an employee representative in relation to the employee.
(3)
To avoid doubt, if an employee of an employer is represented under subsection (2), this does not prevent the employee, an employee mentioned in paragraph (2)(a) or any other employee of the employer from being involved in the consultations.

16BCertificate evidencing employee representative’s entitlement to be involved in consultations

(1)
If the Chief Executive Officer of Comcare is satisfied, on application by an employee representative, that an employee in relation to the employee representative has requested:
(a)
that the employee representative represent the employee in consultations held by an employer in the course of developing or varying health and safety management arrangements; and
(b)
that the identity of the employee not be revealed;
the Chief Executive Officer may issue a certificate to the effect that the employee representative is entitled to represent the employee in such consultations.
(2)
The application must be in the prescribed form.
(3)
The certificate must not identify any of the employees concerned. However, it must identify the employee representative, the employer and the proposed consultations.
(4)
An employee representative in relation to whom a certificate has been issued must not reveal the identity of an employee whom the employee representative is authorised by the certificate to represent.
(5)
The certificate ceases to have effect at the earlier of:
(a)
the time when the Chief Executive Officer of Comcare considers that each of the employees who requested to be represented by the employee representative in consultations identified by the certificate has requested that the certificate cease to have effect; and
(b)
the end of the 12 month period that started when the certificate was issued.
(6)
If a certificate ceases to have effect under paragraph (5)(a), the Chief Executive Officer of Comcare must notify the employee representative, and the employer, in writing.
(7)
A notification under subsection (6) is not a legislative instrument.
(8)
A certificate is, for all purposes of this Act, prima facie evidence of the matters stated in it.
(9)
The Chief Executive Officer of Comcare may delegate to the Deputy Chief Executive Officer of Comcare his or her power under subsection (1). The delegation must be in writing.
(10)
Nothing in this section implies that an employee representative in respect of whom a certificate has not been issued cannot represent employees in consultations with the employer of those employees.

17Duty of employers in relation to third parties

An employer must take all reasonably practicable steps to ensure that persons at or near a workplace under the employer’s control who are not the employer’s employees or contractors are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking.
Note: An employer who breaches section 17 may be subject to civil action or a criminal prosecution (see Schedule 2).

18Duties of manufacturers in relation to plant and substances

(1)
A manufacturer of any plant that the manufacturer ought reasonably to expect will be used by employees at work must take all reasonably practicable steps:
(a)
to ensure that the plant is so designed and constructed as to be, when properly used, safe for employees and without risk to their health; and
(b)
to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk to the health or safety of employees, that may arise from the use of the plant; and
(c)
to make available to an employer, in connection with the use of the plant by employees at work, adequate information concerning:
(i)
the use for which it is designed and has been tested; and
(ii)
details of its design and construction; and
(iii)
any conditions necessary to ensure that, when put to the use for which it was designed and tested, it will be safe for employees and without risk to their health.
Note: A manufacturer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).
(2)
A manufacturer of any substance that the manufacturer ought reasonably to expect will be used by employees at work must take all reasonably practicable steps:
(a)
to ensure that the substance is so manufactured as to be, when properly used, safe for employees and without risk to their health; and
(b)
to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk, to the health and safety of employees, that may arise from the use of the substance; and
(c)
to make available to an employer, in connection with the use of the substance by employees at work, adequate information concerning:
(i)
the use for which it is manufactured and has been tested; and
(ii)
details of its composition; and
(iii)
any conditions necessary to ensure that, when put to the use for which it was manufactured and tested, it will be safe for employees and without risk to their health; and
(iv)
the first aid and medical procedures that should be followed if the substance causes injury.
Note: A manufacturer who breaches subsection (2) may be subject to civil action or a criminal prosecution (see Schedule 2).
(3)
Where:
(a)
plant or a substance is imported into Australia by a person who is not the manufacturer of the plant or substance; and
(b)
at the time of the importation the manufacturer of the plant or substance does not have a place of business in Australia ;
the first‑mentioned person must, for the purposes of this section, be taken to be the manufacturer of the plant or substance.
(4)
Nothing in this section affects the operation of the Competition and Consumer Act 2010, or of any other law of the Commonwealth, a State or a Territory that imposes an obligation on a manufacturer in respect of defective goods or in respect of information to be supplied in relation to goods.

19Duties of suppliers in relation to plant and substances

(1)
A supplier of any plant or substance that the supplier ought reasonably to expect will be used by employees at work must take all reasonably practicable steps:
(a)
to ensure that, at the time of supply, the plant or substance is in such condition as to be, when properly used, safe for employees and without risk to their health; and
(b)
to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk, to the health or safety of employees, that may arise from the condition of the plant or substance; and
(c)
to make available to an employer, in connection with the use of the plant or substance by employees at work, adequate information concerning:
(i)
the condition of the plant or substance at the time of supply; and
(ii)
any risk to the health and safety of employees to which the condition of the plant or substance may give rise unless it is properly used; and
(iii)
the steps that need to be taken in order to eliminate such risk; and
(iv)
in the case of a substance—the first aid and medical procedures that should be followed in the event of the condition of the substance causing injury to an employee.
Note: A supplier who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).
(2)
For the purposes of subsection (1), where a person (in this subsection called the ostensible supplier) supplies to an employer any plant or substance that is to be used by employees at work, and the ostensible supplier:
(a)
carries on the business of financing the acquisition or the use of goods by other persons; and
(b)
has, in the course of that business, acquired an interest in the plant or substance solely for the purpose of financing its acquisition by the employer from a third person, or its provision to the employer by a third person; and
(c)
has not taken possession of the plant or substance or has taken possession of the plant or substance solely for the purpose of passing possession of the plant or substance to that employer;
the reference in subsection (1) to a supplier is, in relation to the plant or substance referred to in this subsection, to be read as a reference to the third person and not as a reference to the ostensible supplier.
(3)
Nothing in this section affects the operation of the Competition and Consumer Act 2010, or of any other law of the Commonwealth, a State or a Territory that imposes an obligation in respect of the sale or supply of goods or in respect of the information to be supplied in relation to goods.

20Duties of person erecting or installing plant in a workplace

(1)
A person who erects or installs any plant in a workplace for the use of employees at work must take all reasonably practicable steps to ensure that the plant is not erected or installed in such a manner that:
(a)
the plant is unsafe for, or constitutes a risk to the health of, employees at the workplace where the plant is erected or installed; or
(b)
the process of erection or installation is unsafe for, or constitutes a risk to the health of, employees at the workplace where the plant is erected or installed.
Note: A person who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).
(2)
Nothing in this section affects the operation of the Competition and Consumer Act 2010, or of any other law of the Commonwealth, a State or a Territory that imposes an obligation in respect of the erection or installation of goods or the supply of services.

21Duties of employees in relation to occupational health and safety

(1)
An employee must, at all times while at work, take all reasonably practicable steps:
(a)
to ensure that the employee does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of the employee, or of other persons (whether employees or not) at or near the place at which the employee is at work; and
(b)
in respect of any duty or obligation imposed on the employee’s employer, or on any other person, by or under this Act or the regulations, to co‑operate with the employer, or that other person, to the extent necessary to enable the employer or other person to fulfil that duty or obligation; and
(c)
to use equipment, in accordance with any instructions given by the employee’s employer consistent with its safe and proper use, that is:
(i)
supplied to the employee by the employer; and
(ii)
necessary to protect the health and safety of the employee, or of other persons (whether employees or not) at or near the place at which the employee is at work.
Note: An employee who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).
(2)
Nothing in subsection (1) is to be taken to imply that the choice, or manner of use, or choice and manner of use, of equipment of the kind referred to in subparagraph (1)(c)(ii) is not a matter that may be, consistent with the requirements of this Act and of the regulations:
(a)
agreed on between the employer and employees (or their representatives under paragraph 16A(2)(a) or (b)) of the employer; or
(b)
agreed on by a health and safety committee in respect of the employees of the employer.
(3)
Where an agreement of the kind referred to in paragraph (2)(a) (whether or not entered into before the commencement of this section) or of the kind referred to in paragraph (2)(b) provides a process for choosing equipment of a particular kind that is to be provided by the employer, action must not be taken against an employee of the employer for failure to use equipment of that kind that is so provided unless the equipment has been chosen in accordance with that process.
(4)
Where an agreement of the kind referred to in paragraph (2)(a) (whether or not entered into before the commencement of this section) or of the kind referred to in paragraph (2)(b) provides a process for determining the manner of use of equipment of a particular kind, action must not be taken against an employee of the employer for failure to use, in the manner required by the employer, equipment of that kind that is so provided unless the manner has been determined in accordance with that process.

22Reliance on information supplied or results of research

(1)
Without limiting the generality of what constitutes the taking of reasonably practicable steps as required by section 16 or 17, for the purpose of the application of that section in relation to the use of plant or a substance, a person on whom an obligation is imposed under that section is to be taken to have taken such reasonably practicable steps as that section requires, in relation to the use of the plant or substance, to the extent that:
(a)
the person ensured, as far as is reasonably practicable, that the use of the plant or substance was in accordance with the information, supplied by the manufacturer or the supplier of the plant or substance, relating to health and safety in the use of the plant or substance; and
(b)
it was reasonable for the person to rely on that information.
(2)
Without limiting the generality of what constitutes the taking of reasonably practicable steps as required by section 20, for the purpose of the application of that section in relation to the erection or installation of plant in a workplace, a person on whom an obligation is imposed under that section is to be taken to have taken such reasonably practicable steps as that section requires to the extent that:
(a)
the person ensured, as far as is reasonably practicable, that the erection or installation of the plant was in accordance with information, supplied by the manufacturer or the supplier of the plant, relating to the erection or installation of the plant in a manner that ensures the health and safety of employees who use the plant; and
(b)
it was reasonable for the person to rely on that information.
(3)
Without limiting the generality of what constitutes the taking of reasonably practicable steps as required by section 18 or 19 for the purpose of the application of that section in relation to the carrying out of research, testing and examination of plant or a substance, a person on whom an obligation is imposed under that section is to be taken to have taken such reasonably practicable steps as that section requires, in relation to the carrying out of research, testing and examination of the plant or substance, to the extent that:
(a)
the research, testing or examination has already been carried out otherwise than by, or on behalf of, the person; and
(b)
it was reasonable for the person to rely on that research, testing or examination.

Division 2Specific duties relating to occupational health and safety23Regulations relating to occupational health and safety

(1)
Subject to this Act, the regulations may make provisions relating to any matter affecting, or likely to affect, the occupational health and safety of:
(a)
employees or contractors; or
(b)
other persons at or near a workplace.
(2)
Without limiting the generality of subsection (1), those regulations may make provision:
(a)
prohibiting, either absolutely or except in accordance with specified requirements, the performance of all work or specified work at a workplace or by employees or contractors at work; and
(b)
prohibiting, either absolutely or except in accordance with specified requirements, the use of all plant or specified plant at a workplace or by employees or contractors at work; and
(c)
prohibiting, either absolutely or except in accordance with specified requirements, the carrying out of all processes or a specified process at a workplace or by employees or contractors at work; and
(d)
prohibiting, either absolutely or except in accordance with specified requirements, the storage or use of all substances or specified substances at a workplace or by employees or contractors at work; and
(e)
specifying the form in which information required to be made available to an employer under paragraph 18(1)(c) or 19(1)(c) is to be so made available; and
(f)
prohibiting, except in accordance with licences granted under the regulations, the use of specified plant or specified substances at a workplace or by employees or contractors at work; and
(g)
providing for the issue, variation, renewal, transfer, suspension and cancellation of such licences, the conditions to which the licences may be subject and the fees payable for the issue, variation or transfer of the licences; and
(h)
regulating the maintenance and testing of plant used at a workplace or by employees or contractors at work; and
(j) regulating the labelling or marking of substances used at a workplace or by employees or contractors at work; and
(k)
regulating the transport of specified plant that is, or specified substances that are, for use at a workplace or by employees or contractors at work; and
(m)
prohibiting the performance, at a workplace or by employees or contractors at work, of specified activities or work except:
(i)
by persons who satisfy requirements of the regulations as to qualifications, training or experience; or
(ii)
under the supervision specified in the regulations; and
(n)
requiring the taking of specified action to avoid accidents or dangerous occurrences; and
(p)
providing for, or prohibiting, the taking of specified action in the event of accidents or dangerous occurrences; and
(q)
providing for the employment at workplaces of persons to perform specified duties relating to the maintenance of occupational health and safety at workplaces; and
(r)
regulating the provision and use, at a workplace or by employees or contractors at work, of protective clothing and equipment, safety equipment and rescue equipment; and
(s)
providing for the monitoring of the health of employees and the conditions at workplaces; and
(t)
requiring the keeping by employers of records of matters related to the occupational health and safety of employees; and
(u)
providing for the provision of first aid equipment and facilities at workplaces.

23AUnlicensed operation of major hazard facility

(1)
A person must not operate a major hazard facility if:
(a)
the person is required by the regulations to have a licence to operate the facility; and
(b)
the person does not have such a licence.
Note: A person who contravenes this provision may be subject to civil action (see Schedule 2).
(2)
For the purposes of subsection (1), a major hazard facility means a facility that is a major hazard facility within the meaning of the regulations.

Part 3Workplace arrangementsDivision 1Health and safety representatives24Designated work groups

(1)
An employee may request his or her employer to:
(a)
establish designated work groups in respect of employees of the employer; or
(b)
vary designated work groups that have already been established.
(1A)
An employee representative in respect of an employee of an employer may, if requested by the employee, request the employer to:
(a)
establish designated work groups in respect of employees of the employer; or
(b)
vary designated work groups that have already been established.
(2)
The employer must, within 14 days after receiving a request under subsection (1) or (1A), enter into consultations to establish or vary (as the case requires) designated work groups with:
(a)
the employer’s employees; and
(b)
if an employee of the employer requests that the employer enter into consultations with an employee representative in relation to the employee—that employee representative.
(3)
If an employer believes that designated work groups should be varied, the employer may at any time enter into consultations about the variation with:
(a)
the health and safety representative of each designated work group proposed to be varied; and
(b)
if an employee in a designated work group proposed to be varied requests that the employer also enter into such consultations with an employee representative in relation to the designated work group—that employee representative.

(4)
If, in the course of consultations under subsection (2) or (3), there is a disagreement between any of the parties to the consultation concerning the manner of establishing or varying a designated work group, any party may, for the purpose of facilitating that consultation, refer the matter of disagreement to the reviewing authority and, where this is done, the parties to the disagreement must complete the consultation in accordance with the resolution of that matter by the reviewing authority.
(5)
Within 14 days after the completion of consultations concerning the establishment of the designated work groups, the employer must, by notifying the employees of the employer, establish the designated work groups in accordance with the outcome of the consultations.
(6)
Within 14 days after the completion of consultations concerning the variation of designated work groups that have already been established, the employer must, if it has been determined that the variation of some or all of those designated work groups is justified, by notifying the employees of the employer who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations.
(7)
Consultations relating to the establishment or variation of a designated work group must be directed principally at the determination of the manner of grouping employees:
(a)
that best and most conveniently enables the employees’ interests relating to occupational health and safety to be represented and safeguarded; and
(b)
that best takes account of the need for any health and safety representative selected for that designated work group to be accessible to each employee included in the group;
and, for these purposes, the parties to the consultations must have regard, in particular, to:
(c)
the number of the employees; and
(d)
the nature of each type of work performed by the employees; and
(e)
the number and grouping of the employees who perform the same or similar types of work; and
(f)
the workplaces, and the areas within the workplaces, where each type of work is performed; and
(g)
the nature of any risks to health and safety at the workplaces; and
(h)
any overtime or shift working arrangements at the workplaces.
(8)
The designated work groups must be established in such a manner that, and must only be varied in such a manner that, so far as is reasonably practicable, each of the employees is included in a designated work group.
(9)
All of an employer’s employees may be included in one designated work group.

24AConsultations on designated work groups are health and safety management arrangement consultations

For the purposes of this Act, consultations under section 24 are taken to be consultations to develop health and safety management arrangements. However, for the purposes of developing health and safety management arrangements as described in paragraph 16(2)(d), it is not sufficient for an employer merely to hold consultations under section 24.

24BList of designated work groups

(1)
An employer must:
(a)
prepare and keep up to date a written list of all designated work groups comprising employees performing work for the employer; and
(b)
ensure that the list is available for inspection by investigators and the employees at all reasonable times.
(2)
The list must describe the categories of employees included in each designated work group.
(3)
The list is not a legislative instrument.

25Selection of health and safety representatives

(1)
One health and safety representative may be selected for each designated work group.
(2)
A person is not eligible for selection as the health and safety representative for a designated work group unless the person is an employee included in the group.
(3)
A person is to be taken to have been selected as the health and safety representative for a designated work group if:
(a)
all of the employees included in the group unanimously agree to the selection of the person as the health and safety representative of the group; or
(b)
the person is elected as the health and safety representative of the group.
(4)
If a person is selected as the health and safety representative for a designated work group under paragraph (3)(a), the person must, by written notice, inform the employer of the employees in the group of this fact as soon as practicable after the selection is made.
(5)
A notice under subsection (4) is not a legislative instrument.

25AElection of health and safety representatives

(1)
If:
(a)
there is a vacancy in the office of health and safety representative for a designated work group; and
(b)
within a reasonable time after the vacancy occurs, a person has not been selected under paragraph 25(3)(a);
the employer of the employees in the designated work group must invite nominations from all employees in the group for election as the health and safety representative of the group.
(2)
If the office of health and safety representative is vacant and the employer has not invited nominations within a further reasonable time that is no later than 6 months after the vacancy occurred, the Commission may direct the employer in writing to do so.
(3)
A direction by the Commission under subsection (2) is not a legislative instrument.
(4)
If there is more than one candidate for election at the close of the nomination period, the employer must conduct, or arrange for the conduct of, an election at the employer’s expense.
(5)
An election conducted or arranged to be conducted under subsection (4) must be conducted in accordance with regulations made for the purposes of this subsection if this is requested by the lesser of:
(a)
100 employees normally in the designated work group; or
(b)
a majority of the employees normally in the designated work group.
(6)
If there is only one candidate for election at the close of the nomination period, that person is taken to have been elected.
(7)
A person cannot be a candidate in the election if he or she is disqualified under section 32.
(8)
All the employees in the designated work group are entitled to vote in the election.
(9)
An employer conducting or arranging for the conduct of an election under this section must comply with any relevant directions issued by the Commission.

25BList of health and safety representatives

(1)
An employer must:
(a)
prepare and keep up to date a written list of all the health and safety representatives of designated work groups comprising employees performing work for the employer; and
(b)
ensure that the list is available for inspection by investigators and the employees at all reasonable times.
(2)
The list is not a legislative instrument.

25CEmployees must be notified of selection etc. of health and safety representative

(1)
The employer of employees in a designated work group must, by written instrument:
(a)
notify those employees of a vacancy in the office of health and safety representative for the designated work group within a reasonable time after the vacancy arises; and
(b)
notify those employees of the name of any person selected (whether under paragraph 25(3)(a) or 25(3)(b)) as health and safety representative for the designated work group within a reasonable time after the selection is made.
(2)
A notification under subsection (1) is not a legislative instrument.

26Term of office

(1)
A health and safety representative for a designated work group holds office for the period specified in the health and safety management arrangements applying to the employees in the designated work group, but is eligible to be selected for further terms of office.
(2)
If a period is not specified in health and safety management arrangements applying to the designated work group, the term of office is 2 years.
(3)
This section is subject to sections 26A and 31.

26ACasual vacancy

If a person (the retiring representative) ceases to hold office as a health and safety representative before the end of the person’s term of office, the person selected to fill the vacancy holds office:
(a)
if the vacancy occurred more than 6 months before the retiring representative’s term of office ended—for the remainder of the retiring representative’s term; and
(b)
if the vacancy occurred within the period of 6 months before the retiring representative’s term of office ended—for the remainder of the retiring representative’s term and for the next term of office.

27Training of health and safety representatives

(1)
A health and safety representative for a designated work group must undertake a course of training relating to occupational health and safety that is accredited by the Commission for the purposes of this section.
(2)
The employer of the employees in a designated work group must permit the health and safety representative for the group to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training.

28Powers of health and safety representatives

(1)
A health and safety representative for a designated work group may, for the purposes of promoting or ensuring the health and safety at work of the employees in the designated work group:
(a)
in respect of a workplace at which work is performed, for the employer of all of the employees in the group, by some or all of those employees, do all or any of the following:
(i)
inspect the whole or any part of the workplace if:
(A)
there has, in the immediate past, been an accident or a dangerous occurrence at the workplace, or there is an immediate threat of such an accident or dangerous occurrence; or
(B)
the health and safety representative has given the employer reasonable notice of the inspection;
(ii)
make a request to an investigator, to Comcare or to the Commission that an investigation be conducted at the workplace;
(iii)
accompany an investigator during any investigation at the workplace by the investigator (whether or not the investigation is being conducted as a result of a request made by the health and safety representative);
(iv)
if there is no health and safety committee in respect of the employer’s employees at the workplace—represent the employees in the group in consultations with the employer concerning the development, implementation and review of measures to ensure the health and safety at work of the employees in the group;
(v)
where a health and safety committee has been established in respect of the employer’s employees at the workplace—examine any of the records of that committee; and
(b)
investigate complaints made by any of the employees in the group to the health and safety representative concerning the health and safety of any of the employees at work; and
(c)
with the consent of the employee concerned, be present at any interview, concerning health and safety at work, between an employee in the group and:
(i)
an investigator; or
(ii)
the employer or a person representing the employer; and
(d)
obtain access to:
(i)
any information under the employer’s control relating to risks to health and safety of any employees:
(A)
at any workplace under the employer’s control; or
(B)
arising from the conduct by the employer of an undertaking or from plant or substances used for the purposes of the undertaking; and
(ii)
subject to subsection (6), any information under the employer’s control relating to the health and safety of any of the employer’s employees; and
(e)
issue provisional improvement notices in accordance with section 29.
(2)
A health and safety representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant.
(3)
A health and safety representative for a designated work group must not:
(a)
be assisted by a consultant at a workplace at which work is performed for an employer of the employees in the group; or
(b)
provide to a consultant information which has been provided to the health and safety representative by an employer under paragraph (1)(d);
unless the employer or the Commission has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be.
(4)
An employer does not, by reason of the agreement of the employer under subsection (3) to the provision of assistance by a consultant, become liable for any remuneration or other expenses incurred in connection with the consultant’s activities.
(5)
Where a health and safety representative for a designated work group is being assisted by a consultant, the consultant is entitled to be present with the representative at any interview, concerning health and safety at work, between an employee in the group and:
(a)
an investigator; or
(b)
the employer or a person representing the employer;
if, and only if, the employee concerned consents to the presence of the consultant.
(6)
The health and safety representative is not entitled, or, where the health and safety representative is assisted by a consultant, the health and safety representative and the consultant are not entitled, under subparagraph (1)(d)(ii), to have access:
(a)
to information in respect of which the employer is entitled to claim, and does claim, legal professional privilege; and
(b)
to information of a confidential medical nature relating to a person who is or was an employee of the employer unless:
(i)
the person has delivered to the employer a written authority permitting the health and safety representative, or, the health and safety representative and the consultant, as the case requires, to have access to the information; or
(ii)
the information is in a form that does not identify the person or enable the identity of the person to be discovered.
(7)
Nothing in this Act is to be read as:
(a)
imposing an obligation on a person to exercise any power conferred on the person because the person is a health and safety representative; or
(b)
rendering a person liable in civil proceedings because of:
(i)
a failure to exercise such a power; or
(ii)
the manner in which such a power was exercised.

29Provisional improvement notices

(1)
Where a health and safety representative for a designated work group believes, on reasonable grounds, that a person:
(a)
is breaching a provision of this Act or the regulations; or
(b)
has breached a provision of this Act or the regulations and is likely to breach that provision again;
being a breach that affects or that may affect one or more employees included in the group, the representative must enter into consultations with the person supervising the work performed by the employee or employees in an attempt to reach agreement on rectifying the breach or preventing the likely breach.
(2)
If, in the health and safety representative’s opinion, agreement is not reached within a reasonable time, the health and safety representative may issue a provisional improvement notice to the person (in this section called the responsible person) responsible for the breach.
(3)
Where the responsible person is an employer but it is not practicable to issue the notice to the employer by giving it to the employer, the notice may be issued to the employer by giving it to the person who is, or who may reasonably be presumed to be, for the time being, in charge of the activity, undertaken by the employer, in connection with which, in the health and safety representative’s opinion, the employer is breaching, or is likely to breach, this Act or the regulations and, where the notice is so issued, a copy of the notice must be given to the employer as soon as practicable thereafter.
(3A)
The notice has effect as soon as it is given to a person in accordance with subsection (2) or (3).
(4)
The notice must:
(a)
specify the breach of the provision of this Act or the regulations that, in the health and safety representative’s opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and
(b)
specify a period of not less than 7 days commencing on the day after the notice is issued, being a period that is, in the representative’s opinion, reasonable, within which the responsible person is to take action necessary to prevent any further breach of the provision or to prevent the likely breach of the provision, as the case may be.
(5)
The notice may specify action that the responsible person is to take during the period specified in the notice.
(6)
Where, in the health and safety representative’s opinion, it is appropriate to do so, the representative may, in writing and before the end of the period, extend the period specified in the notice.
(7)
Upon issuing the notice, the health and safety representative must give a copy of the notice to:
(a)
where the notice is issued to an employee in connection with work performed by the employee for an employer—that employer; and
(b)
where the notice relates to any workplace, plant, substance or thing that is owned by a person, not being the responsible person or a person who is an employer referred to in paragraph (a)—that owner; and
(c)
where the notice is issued to a person (not being an employer) who owns any workplace, plant, substance or thing by reason of which a breach of this Act or the regulations has occurred or is likely to occur—the employer of the employees who work in that workplace or who use that plant, substance or thing.
(8)
Within 7 days after the notice is issued, the responsible person, or any other person, to whom a copy of the notice has been given under subsection (7), may make a request to Comcare or to an investigator that an investigation of the matter the subject of the notice be conducted.
(9)
When a request is made under subsection (8), the operation of the notice is suspended pending the determination of the matter by an investigator.
(9A)
The health and safety representative may request Comcare or an investigator to investigate a matter that is the subject of a notice if:
(a)
the responsible person has not complied with the notice within the period specified in the notice (including any extensions); and
(b)
an investigation has not been requested under subsection (8).
(10)
As soon as possible after a request (under subsection (8) or (9A)) is made, an investigation must be conducted of the work that is the subject of the disagreement, and the investigator conducting the investigation must:
(a)
confirm, vary or cancel the notice and notify the responsible person and any person to whom a copy of the notice has been given under subsection (2) accordingly; and
(b)
make such decisions, and exercise such powers, under Part 4, as the investigator considers necessary in relation to the work.
(11)
Where the investigator varies the notice, the notice as so varied has effect, and, except in so far as it imposes additional obligations on the responsible person, is to be taken to have always had effect, accordingly.
(12)
Where the notice is issued to an employer, the employer must:
(a)
notify each employee who is performing work for the employer and who is affected by the notice of the fact of the issue of the notice; and
(b)
until the notice ceases to have effect, cause a copy of the notice to be displayed at or near each workplace at which the work that is the subject of the notice is being performed.
(13)
The notice ceases to have effect if:
(a)
it is cancelled by an investigator or by the health and safety representative; or
(b)
the responsible person:
(i)
takes such action, if any, as is specified in the notice; or
(ii)
if no action is so specified—takes the action necessary to prevent the further breach, or likely breach, with which the notice is concerned.
(14)
The responsible person:
(a)
must ensure that, to the extent that the notice relates to any matter over which the person has control, the notice is complied with; and
(b)
must take such steps as are reasonably practicable to inform the health and safety representative who issued the notice of the action taken to comply with the notice.
(15)
For the purposes of section 48, where the investigator confirms or varies the notice, the investigator is to be taken to have decided, under section 47, to issue an improvement notice in those terms.

30Duties of employers in relation to health and safety representatives

(1)
The employer of all the employees included in a designated work group for which there is a health and safety representative must:

Provision(s)	Commencement	Date/Details
16. Schedule 1, item 19	Immediately after the commencement of item 5 of Schedule 1 to the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2006. However, if item 5 of Schedule 1 to the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2006 does not commence, the provision(s) do not commence at all.	15 March 2007

Provision(s)

Commencement

Date/Details

16.

Schedule 1, item 19

Immediately after the commencement of item 5 of Schedule 1 to the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2006.

However, if item 5 of Schedule 1 to the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2006 does not commence, the provision(s) do not commence at all.

15 March 2007

(q) Subsection 2(1) (item 24) of the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 provides as follows:
(1)
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Provision(s)	Commencement	Date/Details
24. Schedule 8, items 1 to 130	Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009.	1 July 2009

Provision(s)

Commencement

Date/Details

24.

Schedule 8, items 1 to 130

Immediately after the commencement of Part 2‑4 of the Fair Work Act 2009.

1 July 2009

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Title........................................	am. No. 98, 2006
Part 1
S. 1.........................................	am. No. 98, 2006
S. 3.........................................	am. No. 122, 2004; No. 98, 2006
S. 4.........................................	rs. No. 98, 2006
S. 5.........................................	am. Nos. 7 and 95, 1992; No. 109, 1993; No. 109, 1988 (as am. by No. 92, 1994); No. 60, 1996; No. 152, 1997; No. 146, 1999; Statutory Rules 2001 No. 69; No. 142, 2001; No. 105, 2002; No. 122, 2004; Nos. 98 and 111, 2006; No. 8, 2007; No. 54, 2009; SLI 2009 No. 165 (as am. by SLI 2009 No. 337)
S. 6.........................................	am. No. 161, 1999
S. 8.........................................	am. No. 9, 2000
Heading to s. 9.......................	rs. No. 98, 2006
Subheads. to s. 9(4), (5).........	ad. No. 98, 2006
S. 9.........................................	am. No. 109, 1988 (as am. by No. 92, 1994); No. 9, 2000; No. 98, 2006
S. 9A......................................	ad. No. 98, 2006
S. 10.......................................	am. No. 98, 2006
S. 11.......................................	am. No. 122, 2004; No. 98, 2006
S. 12.......................................	am. No. 7, 1992; No. 122, 2004; Nos. 98 and 111, 2006
S. 12A....................................	ad. No. 7, 1992
S. 14.......................................	am. No. 98, 2006
Note to s. 14(1).......................	ad. No. 122, 2004
am. No. 98, 2006
S. 15.......................................	am. No. 98, 2006
S. 15A....................................	ad. No. 142, 2001
Part 2
Division 1
S. 16.......................................	am. No. 122, 2004; No. 111, 2006
Note to s. 16(1).......................	ad. No. 122, 2004
Ss. 16A, 16B..........................	ad. No. 111, 2006
S. 17.......................................	am. No. 122, 2004
Note to s. 17...........................	ad. No. 122, 2004
S. 18.......................................	am. No. 122, 2004; No. 103, 2010
Notes to s. 18(1), (2)..............	ad. No. 122, 2004
S. 19.......................................	am. No. 122, 2004; No. 103, 2010
Note to s. 19(1).......................	ad. No. 122, 2004
S. 20.......................................	am. No. 122, 2004; No. 111, 2006; No. 103, 2010
Note to s. 20(1).......................	ad. No. 122, 2004
rs. No. 111, 2006
S. 21.......................................	am. No. 122, 2004; No. 111, 2006
Note to s. 21(1).......................	ad. No. 122, 2004
Division 2
S. 23.......................................	am. No. 109, 1993
S. 23A....................................	ad. No. 54, 2007
Part 3
Division 1
S. 24.......................................	am. No. 111, 2006
Ss. 24A, 24B..........................	ad. No. 111, 2006
Heading to s. 25.....................	rs. No. 111, 2006
S. 25.......................................	am. No. 111, 2006
Ss. 25A–25C..........................	ad. No. 111, 2006
S. 26.......................................	rs. No. 111, 2006
S. 26A....................................	ad. No. 111, 2006
S. 28.......................................	am. No. 122, 2004
S. 29.......................................	am. No. 122, 2004; No. 111, 2006
Ss. 31–33...............................	am. No. 111, 2006
Division 2
S. 34.......................................	rs. No. 111, 2006
Division 3
S. 37.......................................	am. No. 111, 2006
Part 4
Division 1
S. 38A....................................	ad. No. 111, 2006
S. 39.......................................	am. No. 7, 1992
rs. No. 111, 2006
Division 2
S. 40.......................................	am. No. 7, 1992 (as am. by No. 95, 1992)
S. 41.......................................	am. No. 7, 1992; Statutory Rules 2001 No. 69; No. 122, 2004; Nos. 98 and 111, 2006
S. 43.......................................	am. No. 137, 2000; Statutory Rules 2001 No. 69; No. 142, 2001; No. 122, 2004; Nos. 98 and 111, 2006
Heading to s. 45.....................	am. No. 122, 2004
S. 45.......................................	am. No. 122, 2004
Note to s. 45(5).......................	ad. No. 122, 2004
S. 45A....................................	ad. No. 122, 2004
S. 46.......................................	am. No. 122, 2004
Note to s. 46(4).......................	ad. No. 122, 2004
S. 47.......................................	am. No. 122, 2004; No. 111, 2006
Note to s. 47(6).......................	ad. No. 122, 2004
S. 48.......................................	am. No. 122, 2004; No. 111, 2006
S. 50.......................................	am. No. 142, 2001; No. 122, 2004
rs. No. 111, 2006
Note to s. 50(1).......................	ad. No. 122, 2004
rep. No. 111, 2006
S. 51.......................................	am. No. 146, 1999
Division 3
S. 52.......................................	am. No. 122, 2004; No. 98, 2006
S. 53.......................................	am. No. 98, 2006
S. 54.......................................	am. No. 142, 2001; No. 122, 2004
S. 57.......................................	am. No. 142, 2001; No. 122, 2004
Note to s. 57(1).......................	ad. No. 122, 2004
Heading to s. 59.....................	am. No. 122, 2004
S. 59.......................................	am. No. 142, 2001; No. 122, 2004
Note to s. 59(1).......................	ad. No. 122, 2004
S. 61.......................................	am. No. 122, 2004
Note to s. 61...........................	ad. No. 122, 2004
S. 64.......................................	am. No. 142, 2001; No. 122, 2004
Note to s. 64...........................	ad. No. 122, 2004
Ss. 66, 67...............................	am. No. 122, 2004
Part 4A
Part 4A ..................................	ad. No. 95, 1992
Division 1
S. 67A....................................	ad. No. 95, 1992
am. Statutory Rules 2001 No. 69
Division 2
S. 67B....................................	ad. No. 95, 1992
am. Statutory Rules 2001 No. 69; No. 144, 2001
S. 67C....................................	ad. No. 95, 1992
am. Statutory Rules 2001 No. 69; No. 111, 2006
Ss. 67D–67F..........................	ad. No. 95, 1992
am. Statutory Rules 2001 No. 69
S. 67G....................................	ad. No. 95, 1992
S. 67H....................................	ad. No. 95, 1992
am. Statutory Rules 2001 No. 69
S. 67J.....................................	ad. No. 95, 1992
am. Statutory Rules 2001 No. 69
S. 67K....................................	ad. No. 95, 1992
Part 5
Heading to s. 68.....................	am. No. 111, 2006
S. 68.......................................	am. No. 109, 1993; No. 111, 2006
S. 70.......................................	am. No. 109, 1993; No. 135, 2005; Nos. 98 and 111, 2006; No. 157, 2008
S. 71.......................................	am. No. 122, 2004
S. 72.......................................	am. No. 142, 2001; No. 122, 2004
Note to s. 72...........................	ad. No. 122, 2004
S. 73.......................................	am. No. 122, 2004
Note to s. 73...........................	ad. No. 122, 2004
S. 74.......................................	am. No. 109, 1993; Statutory Rules 2001 No. 69; No. 111, 2006
S. 75.......................................	am. No. 7, 1992; No. 122, 2004
S. 75A....................................	ad. No. 7, 1992
S. 76.......................................	am. No. 142, 2001; No. 122, 2004
Note to s. 76(1).......................	ad. No. 122, 2004
Heading to s. 77.....................	am. No. 122, 2004
S. 77.......................................	am. No. 7, 1992 (as am. by No. 95, 1992); No. 122, 2004; No. 111, 2006
Ss. 78, 79...............................	am. No. 122, 2004
Heading to s. 80.....................	am. No. 122, 2004
S. 80.......................................	am. No. 146, 1999; No. 122, 2004
S. 82.......................................	am. No. 122, 2004; No. 111, 2006
Schedule 1
Heading to Schedule..............	rep. No. 122, 2004
Heading to Schedule 1...........	ad. No. 122, 2004
rs. No. 111, 2006
Schedule................................	am. No. 54, 1993 (as am. by No. 43, 1996); No. 88, 1993; No. 64, 1994; No. 161, 1995; Nos. 96 and 177, 1997
Schedule 1.............................	am. No. 111, 2005
rs. No. 111, 2006
am. No. 67, 1997; No. 45, 2006
Schedule 2
Heading to Schedule 2...........	rs. No. 54, 2007
Schedule 2.............................	ad. No. 122, 2004
Part 1
C. 2........................................	am. No. 98, 2006; No. 54, 2007
C. 4........................................	am. No. 54, 2007
C. 13.......................................	am. No. 54, 2007

Table A

Application, saving or transitional provisions

Australian Federal Police Legislation Amendment Act 2000 (No. 9, 2000)

Schedule 3

Definition

In this Part:
commencing time means the time when this Part commences.
28
Amendment of the Occupational Health and Safety (Commonwealth Employment) Act 1991
The amendment of the Occupational Health and Safety (Commonwealth Employment) Act 1991 made by Schedule 2 to this Act applies to things done at or after the commencing time by or in relation to the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time).
34
Warrants or writs etc. may continue to be executed
If, immediately before the commencing time, any warrant, writ, order, permission or other instrument (the authority) issued under a law of the Commonwealth, a State or a Territory could be executed by a person who was at that time a member, staff member or special member of the Australian Federal Police, the authority continues to be able to be executed at and after the commencing time by the person in his or her capacity as:
(a)
the Commissioner of the Australian Federal Police; or
(b)
a Deputy Commissioner of the Australian Federal Police; or
(c)
an AFP employee; or
(d)
a special member of the Australian Federal Police;
(all within the meaning of the Australian Federal Police Act 1979 as in force at and after the commencing time).
Note: A person who is a member or staff member of the Australian Federal Police immediately before the commencing time is taken to be engaged as an AFP employee. Similarly, a person who is a special member of the Australian Federal Police immediately before the commencing time is taken to be appointed as a special member. See item 2 of this Schedule.
35
Regulations dealing with matters of a transitional or saving nature
(1) The Governor‑General may make regulations, not inconsistent with any other provision of this Schedule, prescribing matters of a transitional or saving nature in relation to the amendments made by Schedule 1 or 2.
(2) Regulations made under this item within one year after the commencement of this item may commence on a day earlier than the day on which they are made, but not earlier than the commencement of this item.

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418

Transitional—pre‑commencement offences

(1) Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:
(a)
an offence committed before the commencement of this item; or
(b)
proceedings for an offence alleged to have been committed before the commencement of this item; or
(c)
any matter connected with, or arising out of, such proceedings;
as if the amendment or repeal had not been made.
(2) Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419

Transitional—pre‑commencement notices

If:
(a)
a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and
(b)
any or all of those other provisions are repealed by this Schedule; and
(c)
the first‑mentioned provision is amended by this Schedule;
the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001 (No. 142, 2001)

4Application of amendments

(1)
Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
(2)
For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Act 2004 (No. 122, 2004)

Schedule 1

170

Time of effect of notices

The amendments made by items 52 and 91 apply in relation to notices issued on or after the commencement of those items.

171

Reports of investigation

The amendment made by item 106 applies in relation to an investigation begun on or after the commencement of that item.

174

Regulations prescribing penalties

Regulations that were:
(a)
made under paragraph 82(1)(h) of the Occupational Health and Safety (Commonwealth Employment) Act 1991; and
(b)
in force immediately before the substitution of that paragraph by item 154;
continue in force as if they had been made under that paragraph as substituted by that item.

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Act 2005 (No. 135, 2005)

Schedule 2

Saving provision

Subsection 70(2) of the Occupational Health and Safety (Commonwealth Employment) Act 1991, as in force immediately before the commencement of item 6 of this Schedule, is to be taken to continue in force for the purpose of incorporating, in a code of practice prepared by the Commission for Ministerial approval under section 70 of that Act as so in force, any national standard or a code of practice:
(a)
that was declared under subsection 38(1) of the National Occupational Health and Safety Commission Act 1985; and
(b)
that it was not practicable to so incorporate before the repeal of subsection 70(2).

OHS and SRC Legislation Amendment Act 2006 (No. 98, 2006)

Schedule 1

Special provision about licence fees

(1) In this item:

Comcare has the same meaning as in the SRC Act.
Commission has the same meaning as in the SRC Act.
extension commencement means the commencement of item 11 of this Schedule.
OHS Act means the Occupational Health and Safety Act 1991.
SRC Act means the Safety, Rehabilitation and Compensation Act 1988.

(2) This item applies if:

(a)
the extension commencement occurs on a day in a financial year (the relevant financial year), other than on the 1 July that is the start of that financial year; and
(b)
a body corporate (the licensee), in relation to which a licence under Part VIII of the SRC Act is in force on the extension commencement, becomes an employer for the purposes of the OHS Act on the extension commencement because of an amendment or amendments made by this Schedule.
Note: If the extension commencement is on the 1 July that is the start of a financial year, the licence fee imposed by section 104A of the SRC Act will cover recoupment of costs incurred in carrying out functions under both the SRC Act and OHS Act in relation to the licensee and that year. It is only if the extension commencement is on a later day in a financial year that the OHS costs will not (but for this item) be able to be recouped.
(3) On the extension commencement, the licensee becomes liable to pay a licence fee in respect of the continued holding of the licence.
(4) The amount of the licence fee is the amount notified in writing to the licensee by the Commission, being the amount estimated by the Commission to represent that part of the cost incurred by the Commission and by Comcare in carrying out their respective functions under the OHS Act during the relevant financial year that is reasonably referable to the licensee.
(5) The licence fee is payable to Comcare within such period after it is notified to the licensee as Comcare determines.
(6) The SRC Act applies in relation to the licence fee as if it were a licence fee under section 104A of that Act.
(7) The licence fee is in addition to the licence fee for which the licensee is liable under section 104A of the SRC Act in relation to the relevant financial year.

Schedule 2

Definitions

In this Part:
Comcare has the same meaning as it has in the SRC Act.
Commission has the same meaning as it has in the SRC Act.
OHS Act means the Occupational Health and Safety (Commonwealth Employment) Act 1991.
SRC Act means the Safety, Rehabilitation and Compensation Act 1988.
Note: Unless otherwise indicated, references in this Part to the SRC Act are references to that Act as amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001.
5
Validation of regulatory contributions purportedly determined for certain bodies

(1) This item applies if:

(a)
during a period, being all or part of the financial year starting on 1 July 2002, a body was a Commonwealth authority for the purposes of the OHS Act but was not a Commonwealth authority for the purposes of the SRC Act; and
(b)
Comcare has purported to make a determination under section 97D of the SRC Act of an amount of regulatory contribution to be paid by the body in respect of that financial year; and
(c)
the body has paid that amount to Comcare.
(2) The determination referred to in paragraph (1)(b), and any other steps taken by Comcare or the body in relation to the determination, are taken to be, and always to have been, as valid as they would have been if the body had been a Commonwealth authority for the purposes of the SRC Act during the period referred to in paragraph (1)(a).
6
Validation of licence fees purportedly notified to certain bodies

(1) This item applies if:

(a)
during a period, being all or part of the financial year starting on 1 July 2002, a body held a licence under Part VIIIB of the SRC Act as continued in force (despite its repeal) by item 50 of Schedule 2 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001; and
(b)
the Commission has purported to make a notification under section 104A of the SRC Act of an amount of licence fee to be paid by the body in respect of that financial year; and
(c)
the body has paid that amount to Comcare.
(2) The notification referred to in paragraph (1)(b), and any other steps taken by the Commission, Comcare or the body in relation to the notification, are taken to be, and always to have been, as valid as they would have been if the body had held a licence under Part VIII of the SRC Act during the period referred to in paragraph (1)(a).

Occupational Health and Safety (Commonwealth Employment) Amendment Act 2006 (No. 111, 2006)

Schedule 1

Definitions

In this Part:
commencement means the time at which item 9 of this Schedule commences.
OHS (CE) Act means the Occupational Health and Safety (Commonwealth Employment) Act 1991.

Health and safety management arrangements

(1) This item applies for the period of 18 months after commencement.
(2) An employer is not to be taken to breach subsection 16(1) of the OHS (CE) Act as in force after commencement by reason only of the employer having failed to develop health and safety management arrangements under paragraph 16(2)(d) of that Act.

Occupational health and safety policies

(1) The amendment made by item 9 of this Schedule is not to be taken to affect the operation, after commencement, of an occupational health and safety policy that:
(a)
was developed under paragraph 16(2)(d) of the OHS (CE) Act as in force before commencement; and
(b)
applied to employees of an employer immediately before commencement.
(2) However, the policy ceases to apply to the employees once health and safety management arrangements have been developed by the employer under paragraph 16(2)(d) of the OHS (CE) Act as in force after commencement, unless those arrangements provide for the policy to continue to apply.
59
Agreements between employers and involved unions
(1) The amendment made by item 11 of this Schedule is not to be taken to affect the operation, after commencement, of an agreement of the kind referred to in subsection 16(3) of the OHS (CE) Act as in force immediately before commencement.
(2) However, the agreement ceases to have effect if the occupational health and safety policy under which it is made ceases to apply.
(3) The amendment made by item 14 of this Schedule is not to be taken to affect the operation, after commencement, of an agreement of the kind referred to in paragraph 21(2)(a) of the OHS (CE) Act as in force immediately before commencement.

Definitions

In this Part:
commencement means the time at which item 15 of this Schedule commences.
OHS (CE) Act means the Occupational Health and Safety (Commonwealth Employment) Act 1991.

Designated work groups

A designated work group in existence immediately before commencement continues in existence after commencement as if it had been established under section 24 of the OHS (CE) Act as in force after commencement.

Consultations

(1) This item applies for the period of 3 months after commencement.
(2) If consultations under section 24 of the OHS (CE) Act had begun but had not been completed before commencement, the consultations are to be completed as if the amendment made by item 15 of this Schedule had not been made.

Health and safety representative

A person who was the health and safety representative for a designated work group immediately before commencement continues to hold office after commencement subject to the OHS (CE) Act as in force after commencement.

Elections

(1) This item applies for the period of 3 months after commencement.
(2) If, immediately before commencement, an election for a health and safety representative was being conducted but had not been completed, the election is to be completed as if the amendments made by this Schedule had not been made.

Applications under section 32

If an application under section 32 of the OHS (CE) Act had been made but not determined before commencement, the application is to be determined as though the amendment made by item 23 of this Schedule had not been made.

Health and safety committees

(1) If a health and safety committee was in existence immediately before commencement, it continues in existence after commencement as if the amendments made by items 25 and 54 of this Schedule had not been made.
(2) A committee continued in existence under subitem (1) continues in existence until the earlier of the following times:
(a)
the time of the replacement of the committee by a committee established under section 34 of the OHS (CE) Act as in force after commencement;
(b)
the end of the period of 6 months after commencement.
(3) An employer is not to be taken to breach section 34 of the OHS (CE) Act, as amended by item 25 of this Schedule, in respect of the employer’s employees if a committee continues in existence under this section in respect of those employees.

Safe Work Australia (Consequential and Transitional Provisions) Act 2008

(No. 157, 2008)

Schedule 2

Application of item 1

The amendment made by item 1 of this Schedule does not apply to a standard or code:
(a)
that is taken, because of item 1 of Schedule 3, to be a standard or code declared by Safe Work Australia; and
(b)
that has not been amended since it was first required to be so taken.