Occupational Health and Safety (Commonwealth Employment) Regulations (Amendment) (Cth)
I, THE
GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of
the Federal Executive Council, make the following Regulations under the
Dated 22 January 1993
BILL HAYDEN
Governor-General
By His Excellency’s Command,
Peter Cook
Minister of State for Industrial Relations
1.1 These Regulations commence on 29 July 1993.
2.1 The Occupational Health and Safety (Commonwealth Employment) Regulations are amended as set out in these Regulations.
3.1 Definition of “approved form”:
Omit the definition.
3.2 Insert the following definitions:
“
(a) that is caused in the course of work; and
(b) for which the person is:
(i) given emergency treatment by a registered medical practitioner; or
(ii) treated in a hospital as a casualty, without being admitted to the hospital; or
(iii) admitted to a hospital;
3.3 Add at the end:
“(2) A reference in these Regulations to a form by number is a reference to a form so numbered in Schedule 1.”.
4.1 After regulation 2, insert:
“2A. (1) A form must be completed in accordance with a direction specified in, or at the foot of, the form.
“(2) A person must complete a form, give notice or make a report in sufficient detail to allow proper consideration of the completed form, notice or report.
“(3) A form, notice or report must be produced clearly and legibly in handwriting or by means of a machine in such a way as to enable clear and legible reproduction of the contents of the form, notice or report.”.
5.1 Subregulation 3 (1):
Omit the subregulation, substitute:
“(1) An occurrence is a dangerous occurrence for the purpose of the definition of “dangerous occurrence” in subsection 5 (1) of the Act if it is an occurrence that:
(a) resulted from operations that arose from the undertaking conducted by an employer; and
(b) could have caused:
(i) the death of, or serious personal injury to, any person; or
(ii) the incapacity of an employee for a duration of 5 or more successive working days or shifts;
but as a result of which death, serious personal injury or incapacity referred to in paragraph (b) did not occur.”.
6.1 Omit the regulation, substitute:
“4. For the purposes of subparagraph (a) (i) of the definition of “employing authority” in subsection 5 (1) of the Act:
(a) the Chief of the Defence Force is the employing authority in relation to a member of the Australian Defence Force; and
(b) the employing authority in relation to an officer or employee of a body referred to in this paragraph is the person specified in this paragraph as the principal officer (by whatever description) of the body:
(i) the Department of Primary Industries and Energy—the Executive Director of each of:
(A) the Australian Bureau of Agricultural and Resource Economics; and
(B) the Australian Geological Survey Organisation; and
(C) the Australian Quarantine and Inspection Service;
(ii) the Department of the Prime Minister and Cabinet:
(A) the Director of the Economic Planning Advisory Council; and
(B) the Head of Office of the Resources Assessment Commission;
(iii) the Department of Social Security—the Director of the Australian Institute of Family Studies;
(iv) the Department of the Treasury—the Controller at the Royal Australian Mint.”.
7.1 Omit “in the Commission” (first occurring), substitute “of Comcare”.
8.1 Paragraph 7 (2) (b):
Omit the paragraph, substitute:
“(b) include statements to the effect that any employee of the work group:
(i) may be a candidate for election; and
(ii) may request the poll for the election to be conducted by secret ballot.”.
9.1 Paragraph 9 (2) (c):
Omit “personn”, substitute “person”.
10.1 After regulation 22, insert:
“22A. (1) The returning officer may direct a person to leave the place where the count is being conducted if the person:
(a) is not entitled to be present, or to remain present, at the count; or
(b) being entitled to be present—interrupts the count, except as provided by subregulation (2).
“(2) A candidate’s scrutineer who:
(a) objects to a decision by the returning officer that a ballot paper is formal or informal, as the case may be; or
(b) considers that an error has been made in the conduct of the count;
may interrupt the count and so inform the returning officer.
“(3) A person who, without reasonable excuse, does not comply with a direction given to him or her under subregulation (1) commits an offence.
Penalty: $500.”.
11.1 Paragraph 29 (1) (b):
Omit “the Commission”, substitute “Comcare”.
11.2 Subregulation 29 (2):
Omit “paragraph 25 (1) (a)”, substitute “regulation 25”.
12.1 Omit “the Form in Schedule 1”, substitute “Form 1”.
13.1 Subregulation 31 (2):
Omit “the Commission”, substitute “Comcare”.
14.1 Subregulations 32 (1) and (2):
Omit “the Commission”, substitute “Comcare”.
14.2 Subregulation 32 (3):
Omit “the Commission must cancel the certificate issue”, substitute “Comcare must cancel the certificate and issue”.
14.3 Subregulation 32 (5):
Omit “the Commission”, substitute “Comcare”.
15.1 Omit the regulation, substitute:
“34. A notice issued by an investigator under a following provision of the Act must be in accordance with the form specified in relation to the provision concerned:
(a) subsection 44 (2) (‘power to take possession of plant, take samples of substances etc.’)—Form 2;
(b) subsection 45 (1) (‘power to direct that workplace etc. not be disturbed’)—Form 3;
(c) subsection 46 (1) (‘power to issue prohibition notices’)—Form 4;
(d) subsection 47 (1) (‘power to issue improvement notices’)—Form 5.
16.1 Omit the regulation, substitute:
“35. (1) An employer must not, without reasonable excuse, alter or disturb the site of an accident or dangerous occurrence arising out of an undertaking of the employer, or allow the site to be altered or disturbed, before:
(a) an investigation of the accident or dangerous occurrence; or
(b) the investigator gives permission for alteration or disturbance of the site.
Penalty: $1,000.
“(2) Without limiting the generality of subregulation (1), it is a reasonable excuse if an employer alters or disturbs, or allows to be altered or disturbed, the site of an accident or dangerous occurrence in the course of:
(a) the rescue, or attempted rescue, an injured person; or
(b) the retrieval, or attempted retrieval, of the body of a deceased person; or
(c) the protection, or attempted protection, of the health or safety of a person; or
(d) the prevention, or attempted prevention, of damage being done to a substance or thing;
if the alteration or disturbance is unavoidable and not done recklessly.
“(3) It is a defence to a prosecution for an offence against subregulation (1) that notice of the accident or dangerous occurrence was given to Comcare in accordance with section 68 of the Act (‘notification and reporting of accidents and dangerous occurrences’) and:
(a) Comcare has given notice that investigation of the accident or dangerous occurrence is not required; or
(b) an investigator has not entered the workplace where the site of the accident or dangerous occurrence is located in response to the notice within 1 working day of the notice being given to Comcare.
17.1 After regulation 36, insert:
“36A. For the purposes of paragraph 68 (1) (b) of the Act (‘notification and reporting of accidents and dangerous occurrences’), each of the following periods is prescribed:
(a) in the case of an employee who performs work in shifts—5 or more successive shifts workable by the employee; and
(b) in any other case—5 or more successive working days.”.
18.1 Subregulation 37 (1):
Omit all the words before paragraph (a), substitute:
“(1) For the purposes of the Act and these Regulations, a notice or report that is to be given to Comcare may be delivered in business hours:”.
18.2 Paragraphs 37 (1) (a), (b) and (c):
Omit “if the notice”, substitute “in the case of a notice or report that”.
18.3 Paragraphs 37 (1) (a), (b) and (c):
Omit “the Commission”, substitute “Comcare”.
18.4 Paragraph 37 (1) (d):
Omit the paragraph, substitute:
“(d) in any case, except the case of a notice under regulation 37A (‘notice of accidents and dangerous occurrences’)— to the Chief Executive Officer of Comcare.”.
18.5 Subregulation 37 (2):
Add at the end:
“; and (d) in the case of a notice in respect of work performed by an officer or employee of a body referred to in paragraph 4 (b)—to the employing authority in relation to the body.”.
18.6 Subregulation 37 (4):
Omit the subregulation, substitute:
“(4) For the purposes of the Act and these Regulations, a notice or report may be given to a person:
(a) except in the case of a notice under section 68 of the Act (‘notification and reporting of accidents and dangerous occurrences’)—by a message transmitted to a computer system known to be in use by the person, being a message that is:
(i) in a form compatible with the computer system; and
(ii) capable of being recorded by the computer system; or
(b) in the case of a notice of a dangerous occurrence, incapacity within the meaning of paragraph 37A (1) (c) or a serious personal injury—by direct telephone contact with the person in business hours.
“(5) For the purposes of the Act and these Regulations, a notice may be given to a person by electronic facsimile message transmitted to a facsimile facility that is installed at the address of the person last known to the person giving the notice.”.
19.1 After regulation 37, insert:
“37A. (1) For the purposes of section 68 of the Act (‘notification and reporting of accidents and dangerous occurrences’), an employer must give notice to Comcare:
(a) in the case of an accident that causes the death of a person—within 2 hours of the employer becoming aware of the death; and
(b) in the case of an accident that causes serious personal injury to a person—within 24 hours of the employer becoming aware that the person has, or is likely to have, suffered the injury; and
(c) in the case of an accident that causes an employee who performs work in connection with the undertaking conducted by his or her employer to be incapacitated from performing work for a prescribed period—within 24 hours of the employer becoming aware of the incapacity; and
(d) in the case of a dangerous occurrence—within 24 hours of the employer becoming aware of the occurrence.
Penalty: $1,000.
“(2) It is a defence to a prosecution for an offence against subregulation (1) that it was not reasonably practicable for the defendant to report within the period concerned.
“37B. (1) For the purposes of section 68 of the Act (‘notification and reporting of accidents and dangerous occurrences’), notice of an accident must include the following information:
(a) the name of the employer; and
(b) the address of the workplace; and
(c) the time and date of the accident; and
(d) details of the accident, including a description of:
(i) the location in the workplace where the accident occurred; and
(ii) any plant and equipment that was involved in the accident; and
(iii) the process or substance used in the undertaking at the workplace that was involved in the accident; and
(e) subject to subregulation (3), the full name of:
(i) each person killed; and
(ii) each person receiving serious personal injury; and
(iii) each person incapacitated within the meaning of paragraph 68 (1) (b) of the Act; and
(f) action that the employer has taken, or proposes to take, to prevent an accident of the same kind from happening again; and
(g) in respect of the person giving the notice:
(i) his or her name; and
(ii) the classification and designation (if any) of the position occupied, or the duties of which are performed, by him or her; and
(iii) his or her telephone number during working hours.
“(2) For the purposes of section 68 of the Act, notice of a dangerous occurrence must include:
(a) information referred to in paragraphs (1) (a), (b), (c), (d) and (f), as if a reference in those paragraphs to an accident were a reference to a dangerous occurrence; and
(b) information referred to in paragraph (1) (g).
“(3) If an accident results in the death of, or injury to, more than one person, an employer is not obliged to give to Comcare the name of a dead or injured person until the names of all persons who died or were injured as a result of the accident are known to the employer.
“37C. Notice of the death of a person must be given to Comcare:
(a) in business hours—by direct telephone contact with the State Manager of Comcare in the relevant State or Territory; and
(b) outside business hours—by a telephone message that the person giving the notice is reasonably satisfied is being recorded on receipt at the office of the State Manager.
“37D. (1) Subject to subregulation (2), for the purposes of section 68 of the Act (‘notification and reporting of accidents and dangerous occurrences’), an employer must report to Comcare:
(a) if the accident causes the death of, or serious personal injury to, a person—within 28 days of the employer becoming aware:
(i) of the death; or
(ii) that the person has, or is likely to have, received the injury; and
(b) if the accident causes an employee who performs work in connection with the undertaking conducted by his or her employer to be incapacitated from performing work for at least the prescribed period—within 28 days of the employer becoming aware of the incapacity; and
(c) in the case of a dangerous occurrence—within 28 days of the employer becoming aware of the occurrence.
Penalty: $1,000.
“(2) If an accident results in the death of more than one person, an employer is not obliged to report to Comcare until the names of all persons who died as a result of the accident are known to the employer.
“(3) It is a defence to a prosecution for an offence against subregulation (1) that it was not reasonably practicable for the defendant to report within the specified period.
“37E. For the purposes of section 68 of the Act (‘notification and reporting of accidents and dangerous occurrences’), a report about an accident must include the following information:
(a) the name and business address of the employer;
(b) the address of the workplace;
(c) the time and date of the accident;
(d) a description of the part of the workplace where the accident happened;
(e) the principal activity of each person who is killed, injured, or incapacitated within the meaning of paragraph 68 (1) (b) of the Act, as a result of the accident;
(f) details of the accident, including a description of the plant and equipment and of the process or substance used in the undertaking at the workplace that was involved in the accident;
(g) how, in respect of:
(i) each person killed—the death was caused; and
(ii) each person receiving serious personal injury— the injury was sustained; and
(iii) each person incapacitated—the incapacity was caused;
(h) the full name, sex and date of birth of each person killed, injured or incapacitated;
(i) the name, address and telephone number of any witness to the accident;
(j) if a person referred to in paragraphs (g) and (h) was present at the site of the accident as:
(i) an employee on duty at his or her usual base or primary workplace—the Australian Government Staff Number, or an equivalent numerical or alphanumerical identifier, of the employee; or
(ii) an employee on duty at another workplace—the Australian Government Staff Number, or an equivalent numerical or alphanumerical identifier, of the employee and the name of his or her usual or primary employer and the address of his or her usual base or primary workplace;
(k) if a person referred to in paragraphs (g) and (h) was present at the site of the accident:
(i) as a contractor—whether the contract was with the Commonwealth, a Commonwealth authority or another person and the name and address of the Department, authority or other person concerned; or
(ii) in a capacity other than that of employee or contractor—a description of that capacity;
(l) the classification and designation (if any) of the position that was occupied, or the duties of which were performed, by the person at the time of the accident;
(m) the principal duties of that position;
(n) the classification of the work that is performed by a person in that position in accordance with the Australian Standard Classification of Occupations published by the Australian Government Publishing Service;
(o) the duration of the experience of the person in work of the kind that he or she was performing at the time of the accident;
(p) whether at the time of the accident the person was employed on a full-time permanent, part-time permanent, full-time casual, part-time casual or graduated return to work basis;
(q) the official hours of duty of the person on the day on which the accident occurred; (r) a description of the nature of the injury or disease:
(i) of which the person died; or
(ii) that constitutes his or her serious personal injury; or
(iii) that is incapacitating him or her;
(s) the regions of the body of the person that are affected by the injury or disease;
(t) action that the employer has taken, or proposes to take, to prevent an accident of the same kind from happening again;
(u) in respect of the person giving the report:
(i) his or her full name;
(ii) the classification and designation (if any) of the position occupied, or the duties of which are performed, by the person;
(iii) his or her telephone number during working hours.
[Note: COMCARE may publish a form to facilitate the preparation of a report under regulation 37E]
“37F. For the purposes of section 68 of the Act (‘notification and reporting of accidents and dangerous occurrences’), a report about a dangerous occurrence must include the following information:
(a) information referred to in paragraphs 37E (a), (b), (c), (d), (f) and (t), as if a reference in those paragraphs to an accident were a reference to a dangerous occurrence;
(b) the name, address and telephone number of any witness to the dangerous occurrence;
(c) the information referred to in paragraph 37E (u).
[Note: COMCARE may publish a form to facilitate the preparation of a report under regulation 37F]
“37G. For the purposes of section 69 of the Act (‘records of accidents and dangerous occurrences’), an employer must retain a record of a report under regulation 37D (‘reports of accidents and dangerous occurrences to be given’) for a period of 30 years.
“37H. (1) An employer must report in writing to Comcare within 30 days after the end of a financial year:
(a) the average number of full-time equivalent employees of the employer in that year; and
(b) the total number of hours worked by employees of the employer in the year.
Penalty: $1,000.
“(2) It is a defence to a prosecution for an offence against subregulation (1) that it was not reasonably practicable for the defendant to report within 30 days of the end of a financial year.
“(3)
In subregulation (1),
20.1 Before regulation 38, insert:
21.1 After regulation 38, insert:
“39.
(1) Subject to the
“(2) A returning officer must take such steps as are reasonable in the circumstances to give a person whose interests are affected by the decision written notice of:
(a) the making of the decision; and
(b) the right to have the decision reviewed by the Administrative Appeals Tribunal; and
(c) except where subsection 28 (4) of the
Administrative Appeals Tribunal Act 1975 applies, the right to be given a statement under section 28 of that Act.
“(3) Failure to comply with subregulation (2) in relation to a decision does not affect the validity of the decision.”.
22.1 Omit the heading, substitute:
“
SCHEDULE 1 Subregulation 2 (2)
FORMS
FORM 1 Regulation 30
OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) REGULATIONS
22.2 Note 1 to the Form:
Omit “the Commission”, substitute “Comcare”.
22.3 Note 2 to the Form:
Omit “investigator, and”, substitute “investigator; or”.
22.4 Add at the end:
“FORM 2 Paragraph 34 (a)
OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) REGULATIONS
To:
(
and
(
I,
(
from the workplace at:
(
The reason for this action is:
(
Signed:
(
Dated:
(See notes over)
(
1. This notice must be displayed in a prominent place at the workplace from which the item was removed.
2. Under section 50 of the Act, this notice must not be tampered with or removed until the item has been returned to the workplace.
3. Under subsection 47 (8) of the Act, an employer to whom this notice is given must:
• give a copy of the notice to each health and safety representative for a designated workgroup of employees performing work that is affected by the notice; and
• display a copy of the notice in a prominent place at or near each workplace at which that work is being performed.
4. Under section 48 of the Act, any of the following persons may request the Australian Industrial Relations Commission in writing to review the investigator’s decision:
• an employer affected by the investigator’s decision;
• any person to whom an Improvement Notice has been issued;
• the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision;
• if there is no such designated work group—an involved union in relation to the employee;
FORM 3 Paragraph 34 (b)
OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) REGULATIONS
To: (
I,
(
(
is not to be disturbed during the period from am/pm
to am/pm on (
The reasons for issuing this notice are:
Signed:
(
Dated:
(
(
NOTES:
1. Under section 45 of the Act, a government business enterprise that does not ensure that this notice is complied with may be liable to a fine not exceeding $25,000.
2. This notice must be displayed in a prominent place at the workplace and must not be tampered with or removed before the notice has ceased to have effect.
3. Under section 48 of the Act, any of the following persons may request the Australian Industrial Relations Commission in writing to review the investigator’s decision:
• an employer affected by the investigator’s decision,
• any person to whom an Improvement Notice has been issued,
• the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision,
• if there is no such designated work group—an involved union in relation to the employee,
• the owner of any plant, substance or thing to which the investigator’s decision relates.FORM 4 Paragraph 34 (c)
OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) REGULATIONS
To:
(
and
(
I, (
(
where an activity is being undertaken that immediately threatens the health and safety of a person at or near the workplace.
I THEREFORE PROHIBIT the following activity or activities:
(a) at this workplace or part of workplace: (
specify workplace, or part, if applicable )(b) using this plant or substance: (
specify plant or substance, if applicable )(c) following this procedure: (
specify procedure, if applicable )
*Action that may betaken that will be adequate to remove the threat to health and safety is:
(
Signed:
(
Dated:
[* Omit if inapplicable]
(
(
NOTES:
1. Under section 46 of the Act, a government business enterprise to which this notice is issued may be liable to a penalty not exceeding $25,000 for failing to comply with this notice.
2. This notice must be displayed in a prominent place at the workplace and must not be tampered with or removed before the notice has ceased to have effect.
3. If an investigator removes an item from a workplace, subsection 44 (4) of the Act requires the investigator to have the item tested and returned to the workplace as soon as practicable.
4. In accordance with subsection 44 (5) of the Act, the investigator must provide a report in writing setting out the results of the tests carried out on the item removed to each person who received a copy of the notice.
5. Under section 48 of the Act, any of the following persons may request the Australian Industrial Relations Commission in writing to review the investigator’s decision:
• an employer affected by the investigator’s decision,
• any person to whom an Improvement Notice has been issued,
• the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision,
• if there is no such designated work group—an involved union in relation to the employee,
• the owner of any plant, substance or thing to which the investigator’s decision relates.
FORM 5 Paragraph 34 (d)
OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) REGULATIONS
To:
(
and
(
and
(
I, (
(
The reasons for my opinion are:
(
You
are required to take action within
*The following action must be taken by the responsible person within the period specified above:
(
Signed:
(
Dated:
[* Omit if inapplicable]
(
Return this portion of the notice (when the required improvement has been completed) to this address:
Name:
Position:
Address:
Telephone:
Improvement Notice No. has been complied with.
Signed:
--------------------------------------------------------------------------------------------------------------------
This
notice was delivered to: (
in
the office/position of: (
at:
(
(
(
NOTES:
1. Under section 47 of the Act, a government business enterprise or an employee of a government business enterprise to whom this notice is issued may be liable to a penalty not exceeding $10,000 for failing to comply with this notice.
2. This notice must be displayed in a prominent place at the workplace and, under section 50 of the Act, must not be tampered with or removed before the notice has ceased to have effect.
3. This notice ceases to have effect when the investigator notifies the employer that he or she is satisfied that the employer has taken adequate action to remove the threat to health or safety that caused the notice to be issued. If the investigator has specified action that the employer should take to remove the threat, the employer should advise the investigator as soon as the action has been taken.
4. Under subsection 47 (8) of the Act, an employer to whom this notice is given must:
• give a copy of the notice to each health and safety representative for a designated workgroup of employees performing work that is affected by this notice, and
• display a copy of the notice in a prominent place at or near each workplace at which that work is being performed.
5. Under section 48 of the Act, any of the following persons may request the Australian Industrial relations Commission to review the investigator’s decision:
• an employer affected by the investigator’s decision;
• any person to whom an Improvement Notice has been issued,
• the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision;
• if there is no such designated work group—an involved union in relation to the employee;
• the owner of any plant, substance or thing to which the investigator’s decision relates.
23.1
Omit “
23.2 Omit “the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees”, substitute “Comcare”.
23.3 Omit
“
1. Notified in the
2. Statutory Rules 1991 No. 266 as amended by 1992 No. 244.
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