Occupational Health, Safety and Welfare Act 1986 (SA)

South Australia

Occupational Health, Safety and Welfare Act 1986

An Act to provide for the health, safety and welfare of persons at work; and for other purposes.

Contents

Part 1—Preliminary

1            Short title

3            Objects of Act

4            Interpretation

5            Application of Act

6            Non-derogation

Part 2—The SafeWork SA Advisory Committee

Division 1—Establishment of Advisory Committee

7           Establishment of Advisory Committee

Division 2—The Advisory Committee's membership

8            Composition of the Advisory Committee

9            Terms and conditions of office

10          Allowances and expenses

11          Validity of acts

Division 3—Proceedings

12          Proceedings

12A         Conflict of interest under Public Sector (Honesty and Accountability) Act

Division 4—Functions and powers

13          Functions of the Advisory Committee

Division 5—Use of staff and facilities

14          Use of staff and facilities

Division 6—Related matters

15          Confidentiality

16          Annual report

Part 3—General provisions relating to occupational health, safety and welfare

19          Duties of employers

20          Employers' statements for health and safety at work

21          Duties of workers

22          Duties of employers and self-employed persons

23          Duties of occupiers

23A         Duties of designers and owners of buildings

24          Duties of manufacturers etc

24A         Duties of owners of plant

25          Duties applicable to all persons

Part 4—Health and safety representatives and committees

Division 1—Preliminary

26          Preliminary

Division 2—Appointment of health and safety representatives and committees

26A         Interpretation

27          Health and safety representatives may represent groups

28          Election of health and safety representatives

29          Election of a deputy health and safety representative

30          Term of office of a health and safety representative

31          Health and safety committees

Division 2A—Training

31A         Training of health and safety representatives, deputies and committee members

31B         Maintenance of pay and reimbursement of expenses

31C         Guidelines

Division 3—Functions of health and safety representatives and committees

32          Functions of health and safety representatives

33          Functions of health and safety committees

34          Responsibilities of employers

Division 4—Resolution of health, safety or welfare issues

35          Default notices

36          Action where the health and safety of a worker is threatened

37          Attendance by inspector

37A        Division not to derogate from other referrals to an inspector

Part 5—Inspections

38          Powers of entry and inspection

Part 6—Improvement notices and prohibition notices

39          Improvement notices

40          Prohibition notices

41          Notices to be displayed

42          Review of notices

43          Powers of committee on review

44          Worker's entitlement to pay while notice is in force

45          Action on default

Part 7—Review committees

46          Review committees

47          Constitution of review committees

48          Procedures of the committee

49          Appeals

50          Immunity of members

Part 8—Miscellaneous

52          Inspector to produce certificate of authority

53          Delegation

54          Power to require information

54A         Provision of information by WorkCover

55          Confidentiality

55A         Inappropriate behaviour towards an employee

56          Discrimination against workers

57          Assignment of workers during a cessation of work

58          Offences

59          Offence to endanger persons in workplaces

59A         Imputation of conduct or state of mind of officer, employee etc

59B         Statement of officer evidence against body corporate

59C         Liability of officers of body corporate

60          Continuing or repeated offences

60A        Non-pecuniary penalties

61          Offences by bodies corporate

62          Health and safety in the public sector

63          Code of practice

63A         Use of codes of practice in proceedings

64          Evidentiary provision

66          Modifications of regulations

67          Exemption from Act

67A        Registration of employers

67B         Portion of WorkCover levy to be used to improve occupational health and safety

67C         Five-yearly reports

68          Consultation on regulations

69          Regulations

Schedule 1—Regulations

Schedule 2—Extension of Act to specified plant

Schedule 3—The Mining and Quarrying Occupational Health and Safety Committee

1            The Committee

2            Application of funds

3            Ministerial control

Legislative history

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Occupational Health, Safety and Welfare Act 1986.

3—Objects of Act

The chief objects of this Act are—

(a)to secure the health, safety and welfare of persons at work; and

(b)to eliminate, at their source, risks to the health, safety and welfare of persons at work; and

(c)to protect the public against risks to health or safety arising out of or in connection with—

(i)the activities of persons at work; or

(ii)the use or operation of various types of plant;

(d)to involve employees and employers in issues affecting occupational health, safety and welfare; and

(e)to encourage registered associations to take a constructive role in promoting improvements in occupational health, safety and welfare practices and assisting employers and employees to achieve a healthier and safer working environment.

4—Interpretation

(1)In this Act, unless the contrary intention appears—

accident means an unplanned occurrence or incident that causes or contributes to personal injury or damage to property;

Advisory Committee means the SafeWork SA Advisory Committee established under Part 2;

appointed member of the Advisory Committee means a member of the Advisory Committee appointed by the Governor;

approved code of practice means a code of practice approved by the Minister pursuant to section 63;

business day in relation to a particular workplace means any day on which work is normally carried out at the workplace;

contract of service means—

(a)a contract under which one person is employed by another;

(b)a contract of apprenticeship;

(c)a contract, arrangement or understanding under which a person receives on-the-job training in a trade or vocation from another;

Department means the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act;

the designated person means—

(a)in relation to mines to which the Mines and Works Inspection Act 1920 applies—the Chief Inspector of Mines;

(b)in relation to operations to which the Petroleum Act 2000, the Petroleum (Submerged Lands) Act 1982 or the Offshore Minerals Act 2000 applies—the chief executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of those Acts;

(c)in any other case—a public service employee authorised by the Minister to exercise the powers of the designated person under this Act;

Director means the person for the time being holding, or acting in, the position of Executive Director of that part of the Department that is directly involved in the administration and enforcement of this Act;

employee means a person who is employed under a contract of service or who works under a contract of service;

employer means a person by whom an employee is employed under a contract of service or for whom work is done by an employee under a contract of service;

health and safety committee means a health and safety committee established under Part 4;

health and safety representative means a health and safety representative elected in accordance with Part 4;

Industrial Commission means the Industrial Relations Commission of South Australia;

Industrial Court means the Industrial Relations Court of South Australia;

inspector means—

(a)in relation to mines to which the Mines and Works Inspection Act 1920 applies—an inspector of mines under that Act;

(b)in relation to operations to which the Petroleum Act 2000 applies—an authorised officer under that Act;

(c)in relation to operations to which the Petroleum (Submerged Lands) Act 1982 applies—an inspector under that Act;

(ca)in relation to operations to which the Offshore Minerals Act 2000 applies—an inspector under that Act;

(d)in any other case—a public service employee authorised by the Minister to exercise the powers of an inspector under this Act;

metropolitan area means the area comprised by—

(a)Metropolitan Adelaide as defined in the Development Plan compiled under the Development Act 1993; and

(b)the City of Adelaide and the Corporation of the Town of Gawler;

occupier in relation to a place means a person who has the management or control of the place;

officer in relation to a body corporate means—

(a)a member of the governing body of the body corporate; or

(b)an executive officer of the body corporate; or

(c)a receiver or manager of any property of the body corporate; or

(d)a liquidator;

plant includes—

(a)any machinery, equipment, appliance, implement or tool;

(b)without limiting the application of this Act to any plant used at work or at any workplace, any plant to which this Act extends by virtue of Schedule 2;

(c)any component, fitting, connection, mounting or accessory used in or in conjunction with any of the above;

record means a record of any kind and includes a disk, tape or other article from which information is capable of being reproduced (with or without another article or device);

registered association means—

(a)an association registered under the Fair Work Act 1994 or an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or

(b)the United Trades and Labor Council;

review committee means a review committee constituted under Part 7;

safe connotes safe from injury and risks to health;

ship includes a boat, vessel or craft;

South Australian ship means a ship—

(a)that is registered in the State; or

(b)that is owned or under charter by the Crown; or

(c)that is owned or under charter by a body corporate or other person—

(i)whose principal office or place of business is in the State; or

(ii)whose principal office or place of business with respect to the control or management of the ship is in the State;

substance means any natural or artificial substance, whether in solid, liquid or gaseous form;

WorkCover means the WorkCover Corporation of South Australia;

work group means a group of employees constituted as a work group for the purposes of Part 4;

work-related injury means—

(a)an injury, disease or disability; or

(b)the loss or destruction of, or damage to, an artificial limb or other prosthesis or a medical or surgical aid or appliance; or

(c)any death,

that is attributable to work and includes the aggravation, exacerbation or recurrence of a prior work-related injury;

workplace means any place (including any aircraft, ship or vehicle) where an employee or self-employed person works and includes any place where such a person goes while at work.

(2)For the purposes of this Act, where a person (the contractor) is engaged to perform work for another person (the principal) in the course of a trade or business carried on by the principal, the contractor, and any person employed or engaged by the contractor to carry out or to assist in carrying out the work, will be taken to be employed by the principal but the principal's duties under this Act in relation to them extend only to matters over which the principal has control or would have control but for some agreement to the contrary between the principal and the contractor.

(3)For the purposes of this Act, where a person, in connection with a trade or business carried on by the employer, performs work for an employer gratuitously, the person will be taken to be employed by the employer.

(4)The following matters are aspects of occupational health, safety and welfare:

(a)the general well-being of employees while at work;

(b)the prevention of work-related injuries and work-related fatalities;

(c)the investigation of the causes of work-related injuries and work-related fatalities;

(d)the rehabilitation and retraining of people who have suffered work-related injuries.

(4a)The safe operation or use of any plant referred to in Schedule 2 will be taken to be an aspect of occupational health, safety and welfare.

(5)For the purposes of this Act, a reference to a divisional fine in column 1 of the following table means—

(a)in the case of an offence where the defendant is a body corporate or an administrative unit in the Public Service of the State—a fine not exceeding the amount in column 3; or

(b)in any other case—a fine not exceeding the amount in column 2.

Division 1 fine	$200 000	$600 000
Division 2 fine	$100 000	$300 000
Division 3 fine	$40 000	$120 000
Division 4 fine	$30 000	$90 000
Division 5 fine	$20 000	$60 000
Division 6 fine	$10 000	$30 000
Division 7 fine	$5 000	$15 000

5—Application of Act

(1)This Act or specified provisions of this Act do not apply in relation to—

(a)work or classes of work; or

(b)employees or classes of employees,

excluded by regulation from the application of this Act or specified provisions of this Act.

(2)Subject to any regulations made for the purposes of subsection (1), this Act applies in relation to work on a South Australian ship whether or not the ship is within the coastal waters of the State.

(3)This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities.

6—Non-derogation

(1)The provisions of this Act are in addition to and do not derogate from the provisions of any other Act.

(2)The provisions of this Act do not limit or derogate from any civil right or remedy and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.

Part 2—The SafeWork SA Advisory Committee

Division 1—Establishment of Advisory Committee

7—Establishment of Advisory Committee

The SafeWork SA Advisory Committee is established.

Division 2—The Advisory Committee's membership

8—Composition of the Advisory Committee

(1)The Advisory Committee consists of 11 members of whom—

(a)9 will be appointed by the Governor and of these—

(i)1 will be the presiding member appointed on the recommendation of the Minister; and

(ii)4 will be persons who, in the opinion of the Minister, are suitable to represent the interests of employers (1 being a person considered by the Minister to be suitable to represent the interests of the public sector as an employer), appointed on the recommendation of the Minister after the Minister has consulted with Business SA, and with associations representing the interests of employers determined to be appropriate by the Minister; and

(iii)4 will be persons who, in the opinion of the Minister, are suitable to represent the interests of employees (1 being a person considered by the Minister to be suitable to represent the interests of employees in the public sector), appointed on the recommendation of the Minister after the Minister has consulted with the United Trades and Labor Council, and with other associations representing the interests of employees determined to be appropriate by the Minister; and

(b)1 will be the Director (ex officio); and

(c)1 will be the Chief Executive of WorkCover (ex officio).

(2)In proposing persons for appointment to the Advisory Committee, an organisation or association consulted under subsection (1) should seek to promote gender balance, and diversity, in the membership of the Advisory Committee.

(3)Subject to subsection (4), the Minister may appoint a suitable person to be a deputy of a member of the Advisory Committee and to act as a member of the Advisory Committee during any period of absence of the member.

(4)During the absence of the presiding member of the Advisory Committee, the Director will act in the position of the presiding member (and if the Director is unavailable then a member of the Advisory Committee appointed by the remaining members will act in the position of presiding member).

9—Terms and conditions of office

(1)An appointed member of the Advisory Committee will hold office on conditions, and for a term (not exceeding 3 years), determined by the Governor and, on the expiration of a term of appointment, is eligible for re-appointment.

(2)The Governor may remove an appointed member from office for—

(a)breach of, or non-compliance with, a condition of appointment; or

(b)mental or physical incapacity to carry out duties of office satisfactorily; or

(c)neglect of duty; or

(d)dishonourable conduct.

(3)The office of an appointed member becomes vacant if the member—

(a)dies; or

(b)completes a term of office and is not re-appointed; or

(c)resigns by written notice addressed to the Minister; or

(d)is found guilty of an indictable offence; or

(f)is removed from office by the Governor under subsection (2).

(4)On the office of an appointed member of the Advisory Committee becoming vacant, a person must be appointed, in accordance with this Act, to the vacant office.

(5)The Minister must ensure that a vacant office is filled within 6 months after the vacancy occurs.

10—Allowances and expenses

(1)An appointed member of the Advisory Committee is entitled to fees, allowances and expenses approved by the Governor.

(2)The amount of any fees, allowances or expenses paid under subsection (1) will be recoverable from the Compensation Fund under the Workers Rehabilitation and Compensation Act 1986 under a scheme established or approved by the Treasurer.

11—Validity of acts

(1)An act or proceeding of the Advisory Committee is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

Division 3—Proceedings

12—Proceedings

(1)Six members of the Advisory Committee, of whom—

(a)1 is the presiding member, or the Director acting in the absence of the presiding member (unless the Director is unavailable); and

(b)at least 2 are members appointed to represent the interests of employers; and

(c)at least 2 are members appointed to represent the interests of employees,

constitute a quorum of the Advisory Committee.

(2)When a matter arises for decision at a meeting of the Advisory Committee—

(a)the members appointed to represent the interests of employers or employees will each have a deliberative vote; and

(b)if those deliberative votes are equal, the person presiding at the meeting does not have a casting vote.

(3)The members of the Advisory Committee holding office under section 8(1)(b) and (c) do not have a vote on any matter arising for decision at a meeting of the Advisory Committee.

(4)A decision carried by a majority of the votes cast under subsection (2)(a) is a decision of the Advisory Committee.

(5)A telephone or video conference between members of the Advisory Committee constituted in accordance with procedures determined by the Advisory Committee will, for the purposes of this section, be taken to be a meeting of the Advisory Committee at which the participating members are present.

(6)A resolution of the Advisory Committee—

(a)of which notice was given to all members of the Advisory Committee in accordance with procedures determined by the Advisory Committee; and

(b)in which a majority of the members of the Advisory Committee who would be entitled to vote under subsection (2) if the matter were before a meeting of the Advisory Committee have expressed their concurrence in writing or in some other manner determined by the Advisory Committee,

will be taken to be a decision of the Advisory Committee made at a meeting of the Advisory Committee.

(7)The Advisory Committee must cause an accurate record to be kept of its proceedings.

(8)Subject to this Act, the proceedings of the Advisory Committee will be conducted in a manner determined by the Advisory Committee.

12A—Conflict of interest under Public Sector (Honesty and Accountability) Act

(1)A member of the Advisory Committee will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with employers or employees generally, or a substantial section of employers or employees.

(2)Despite the Public Sector (Honesty and Accountability) Act 1995, a member of the Advisory Committee who has made a disclosure of an interest in a matter decided or under consideration by the Advisory Committee may, with the permission of a majority of the members of the Advisory Committee who may vote on the matter, attend or remain at a meeting when the matter is under consideration in order to ask or answer questions, or to provide any other information or material that may be relevant to the deliberations of the Advisory Committee, provided that the member then withdraws from the room and does not in any other way take part in any deliberations or vote on the matter.

Division 4—Functions and powers

13—Functions of the Advisory Committee

(1)The functions of the Advisory Committee are—

(a)to keep the administration and enforcement of this Act, and any other legislation relevant to occupational health, safety and welfare, under review, and to make recommendations for change as the Advisory Committee thinks fit; and

(b)to advise the Minister (on its own initiative or at the request of the Minister) on—

(i)legislation, regulations, codes, standards and policies relevant to occupational health, safety and welfare; and

(ii)national and international developments in the field of occupational health, safety and welfare; and

(iii)the establishment of public inquiries and legislative and other reviews concerning issues associated with occupational health, safety and welfare; and

(c)to provide a forum for ensuring consultation and co‑operation between WorkCover, associations representing the interests of employees or employers, industry associations, Government agencies and other public authorities, and other interested persons or bodies, in relation to occupational health, safety or welfare matters; and

(d)to prepare, adopt, promote or endorse prevention strategies, standards, codes, guidelines or guidance notes, and to recommend practices, to assist people in connection with occupational health, safety and welfare; and

(e)to promote education and training with respect to occupational health, safety and welfare, to develop, support, accredit, approve or promote courses or programmes relating to occupational health, safety or welfare, and to accredit, approve or recognise education providers in the field of occupational health, safety and welfare; and

(f)to keep the provision of services relevant to occupational health, safety and welfare under review; and

(g)to collect, analyse and publish information and statistics relating to occupational health, safety or welfare; and

(h)to commission or sponsor research in relation to any matter relevant to occupational health, safety or welfare; and

(i)to initiate, co-ordinate or support projects and activities that promote public discussion or comment in relation to the development or operation of legislation, codes of practice and other material relevant to occupational health, safety or welfare; and

(j)to promote occupational health, safety or welfare programs, and to make recommendations with respect to the making of grants in support of projects and activities relevant to occupational health, safety or welfare; and

(k)to consult and co-operate with relevant national, State and Territory authorities; and

(l)to report to the Minister on any matter referred to the Advisory Committee by the Minister; and

(m)as it thinks fit, to consider any other matter relevant to occupational health, safety or welfare; and

(n)to carry out other functions assigned to the Advisory Committee by or under this or any other Act.

(2)The Advisory Committee may, with the approval of the Minister—

(a)perform functions conferred on the Advisory Committee by or under a law of the Commonwealth, another State or a Territory;

(b)confer (subject to conditions or limitations (if any) specified by the Minister) functions of the Advisory Committee on an authority established by or under a law of the Commonwealth, another State or a Territory.

(3)The Advisory Committee should seek—

(a)to ensure that South Australia takes advantage of initiatives that are recognised as being at the forefront of occupational health, safety and welfare practices; and

(b)to achieve a high level of consistency between occupational health, safety and welfare standards and requirements under this Act and corresponding standards and requirements under the laws of the Commonwealth, the other States and the Territories (insofar as to do so is in the best interests of the State).

(4)The Advisory Committee should, as far as reasonably practicable, ensure that information provided for use in the workplace is in a language and form appropriate for those expected to make use of it.

(5)If the Minister receives a recommendation from the Advisory Committee under this Act, the Minister should, within 2 months, respond in writing to the Advisory Committee in relation to the recommendation.

(6)The Advisory Committee may establish such committees and subcommittees as it thinks fit (which may, but need not, consist of, or include, members of the Advisory Committee) to advise it on, or to assist it with respect to, any aspect of its functions under this Act.

(7)The Advisory Committee has the power to do anything necessary, expedient or incidental to the performance of its functions.

Division 5—Use of staff and facilities

14—Use of staff and facilities

(1)The Advisory Committee may, by agreement with the Minister responsible for an administrative unit in the Public Service, make use of the services of the staff, equipment or facilities of that administrative unit.

(2)The Advisory Committee may, by agreement with the relevant agency or instrumentality, make use of the services of the staff, equipment or facilities of any other agency or instrumentality of the Crown.

Division 6—Related matters

15—Confidentiality

A member of the Advisory Committee who, as a member of the Advisory Committee, acquires information that—

(a)the member knows to be of a commercially sensitive nature, or of a private confidential nature; or

(b)the Advisory Committee classifies as confidential information,

must not divulge the information without the approval of the Advisory Committee.

Maximum penalty: Division 6 fine.

16—Annual report

(1)The Advisory Committee must, on or before 30 September in each year, provide to the Minister a report on the work of the Advisory Committee, and on other matters relevant to the operation and administration of this Act, for the financial year ending on the preceding 30 June.

(2)A report under this section may be incorporated into the annual report of the Department.

(3)The Minister must cause a copy of a report prepared under subsection (1) to be laid before both Houses of Parliament within 12 sitting days after the report is received by the Minister.

Part 3—General provisions relating to occupational health, safety and welfare

19—Duties of employers

(1)An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular—

(a)must provide and maintain so far as is reasonably practicable—

(i)a safe working environment;

(ii)safe systems of work;

(iii)plant and substances in a safe condition; and

(b)must provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and

(c)must provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(3)Without derogating from the operation of subsection (1), an employer must so far as is reasonably practicable—

(a)monitor the health and welfare of the employer's employees in their employment with the employer, insofar as that monitoring is relevant to the prevention of work-related injuries; and

(b)keep information and records relating to work-related injuries suffered by employees in their employment with the employer and retain that information and those records for such period as may be prescribed; and

(c)provide information to the employer's employees (in such languages as are appropriate) in relation to health, safety and welfare in the workplace (including the names of persons to whom the employees may make inquiries and complaints about matters affecting occupational health, safety or welfare); and

(d)ensure that any employee who is to undertake work of a hazardous nature not previously performed by the employee receives proper information, instruction and training before he or she commences that work; and

(da)keep information and records relating to occupational health, safety or welfare training undertaken by any of the employer's employees during their employment with the employer; and

(e)ensure that any employee who is inexperienced in the performance of any work of a hazardous nature receives such supervision as is reasonably necessary to ensure his or her health and safety; and

(f)ensure that any employee who could be put at risk by a change in the workplace, in any work or work practice, in any activity or process, or in any plant—

(i)is given proper information, instruction and training before the change occurs; and

(ii)receives such supervision as is reasonably necessary to ensure his or her health and safety; and

(g)ensure that any manager or supervisor is provided with such information, instruction and training as are necessary to ensure that each employee under his or her management or supervision is, while at work, so far as is reasonably practicable, safe from injury and risks to health; and

(h)monitor working conditions at any workplace that is under the management and control of the employer; and

(i)ensure that any accommodation, or eating, recreational or other facility, provided for the benefit of the employer's employees while they are at work, or in connection with the performance of their work, and under the management or control of the employer (either wholly or substantially), is maintained in a safe and healthy condition.

20—Employers' statements for health and safety at work

(1)Every employer must—

(a)prepare and maintain, in consultation with—

(i)health and safety committees; and

(ii)the employer's employees; and

(iii)any health and safety representative who represents those employees; and

(iv)on the application of an employee—a registered association of which that employee is a member; and

(v)if the employer so decides—any other registered association nominated by the employer of which the employer is a member,

policies relating to occupational health, safety and welfare at the workplace; and

(b)—

(i)prepare and keep up to date a written statement setting out with reasonable particularity the arrangements, practices and procedures at the workplace protecting the health and safety of the employer's employees at the workplace; and

(ii)take reasonable steps to bring the contents of that statement to the notice of those employees.

Maximum penalty: Division 6 fine.

21—Duties of workers

(1)An employee must take reasonable care to protect the employee's own health and safety at work.

Maximum penalty: Division 7 fine.

(1a)An employee must take reasonable care to avoid adversely affecting the health or safety of any other person through an act or omission at work.

Maximum penalty: Division 6 fine.

(1b)An employee must so far as is reasonable (but without derogating from subsection (1) or (1a) or from any common law right)—

(a)use equipment provided for health or safety purposes; and

(b)obey reasonable instruction that the employer may give in relation to health or safety at work; and

(c)comply with any policy that applies at the workplace published or approved by the Minister after seeking the advice of the Advisory Committee; and

(d)ensure that the employee is not, by the consumption of alcohol or a drug, in such a state as to endanger the employee's own safety at work or the safety of any other person at work.

Maximum penalty: Division 6 fine.

(2)In determining the standard of care applicable to a worker whose native language is not English and who is not reasonably fluent in English regard must be had to—

(a)whether information relating to occupational health and safety has been reasonably available to the worker in a language and form that the worker might reasonably be expected to understand; and

(b)whether instruction or training of the worker (if any) has been carried out in a language and form that the worker might reasonably be expected to understand.

22—Duties of employers and self-employed persons

(1)An employer or a self-employed person must take reasonable care to protect his or her own health and safety at work.

Maximum penalty: Division 7 fine.

(2)An employer or self-employed person must ensure, so far as is reasonably practicable, that any other person (not being an employee employed or engaged by the employer or the self-employed person) is safe from injury and risks to health—

(a)while the other person is at a workplace that is under the management and control of the employer or self-employed person; or

(b)while the other person is in a situation where he or she could be adversely affected through an act or omission occurring in connection with the work of the employer or self-employed person.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

23—Duties of occupiers

The occupier of a workplace must ensure so far as is reasonably practicable—

(a)that the workplace is maintained in a safe condition; and

(b)that the means of access to and egress from the workplace are safe.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

23A—Duties of designers and owners of buildings

(1)A person who designs a building that is reasonably expected to comprise or include a workplace must—

(a)ensure so far as is reasonably practicable that the building is designed so that people who might work in, on or about the workplace are, in doing so, safe from injury and risks to health; and

(b)ensure that the building complies in all respects with prescribed requirements (if any) applicable to it.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(2)The owner of a building that comprises or includes a workplace must—

(a)ensure so far as is reasonably practicable that the building, and any fixtures or fittings within the building that are under the control of the owner, are in a condition that allows people who might work in, on or about the workplace to be safe from injury and risks to health; and

(b)ensure that the building complies in all respects with prescribed requirements (if any) applicable to it.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(3)In this section—

building includes a part of a building.

24—Duties of manufacturers etc

(1)A person who designs, manufactures, imports or supplies any plant to which this subsection applies must—

(a)ensure so far as is reasonably practicable that the plant is designed and constructed so as to be safe—

(i)when properly used and maintained; and

(ii)when subjected to reasonably foreseeable forms of misuse; and

(b)ensure so far as is reasonably practicable that the plant is designed and constructed so that people who might use, clean or maintain the plant are, in doing so, safe from injury and risks to health; and

(c)take such steps to test or examine, or arrange for the testing or examination of, the plant as are reasonably necessary to ensure compliance with paragraphs (a) and (b); and

(d)ensure that the plant complies in all respects with prescribed requirements (if any) applicable to it; and

(e)ensure so far as is reasonably practicable that adequate information about any conditions necessary to ensure the safe installation, use and maintenance of the plant is supplied with the plant.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(2)A person who erects, installs or modifies any plant to which this subsection applies must ensure so far as is reasonably practicable that it will be safe—

(a)when properly used and maintained; and

(b)when subjected to reasonably foreseeable forms of misuse.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(2aa)Subsections (1) and (2) apply to—

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

(b)without limiting the operation of paragraph (a), any plant to which this Act extends by virtue of Schedule 2.

(2a)Without derogating from the operation of subsections (1) and (2), where any structure is to be erected in the course of any work—

(a)the person who designs the structure must ensure so far as is reasonably practicable that the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health; and

(b)any person who manufactures any materials to be used for the purposes of the structure must ensure so far as is reasonably practicable that the materials are manufactured so that the persons who are required to erect the structure are, in using, handling or otherwise dealing with the materials, safe from injury and risks to health; and

(c)any person who imports or supplies any materials to be used for the purposes of the structure must ensure so far as is reasonably practicable that the materials are in such a state as to be safe to any person who must use, handle or otherwise deal with the materials; and

(d)the person undertaking the erection of the structure must ensure so far as is reasonably practicable that the structure is safe during the course of its erection and subsequent use.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(3)A person who manufactures, imports or supplies any substance for use at a workplace must—

(a)ensure so far as is reasonably practicable that the substance is in such a state as to be safe—

(i)when properly used, handled, processed, stored, transported or disposed of; and

(ii)when subjected to reasonably foreseeable forms of improper use, handling, processing, storage, transportation or disposal; and

(b)ensure so far as is reasonably practicable that the substance is in such a state that persons who might use, handle, process, store, transport or dispose of the substance are, in doing so, safe from injury and risks to health; and

(c)take such steps to test or examine, or arrange for the testing or examination of, the substance as are reasonably necessary to ensure compliance with paragraphs (a) and (b); and

(d)ensure that the substance complies in all respects with prescribed requirements (if any) applicable to it; and

(e)ensure so far as is reasonably practicable that adequate information about any conditions necessary to ensure its safe use, handling, processing, storage, transportation or disposal is provided in connection with the supply of the substance.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(4)In this section—

structure includes a part of a structure.

24A—Duties of owners of plant

(1)The owner of any plant to which this section applies must—

(a)ensure so far as is reasonably practicable that the plant is maintained in a safe condition; and

(b)ensure that the plant complies in all respects with prescribed requirements (if any) applicable to it; and

(c)ensure so far as is reasonably practicable that adequate information necessary to ensure the safe use of the plant is supplied to any user of the plant.

Maximum penalty:

(a)for a first offence—Division 2 fine;

(b)for a subsequent offence—Division 1 fine.

(2)This section applies to—

(a)any plant that is used at a workplace; and

(b)without limiting the operation of paragraph (a), any plant to which this Act extends by virtue of Schedule 2.

(3)In this section—

owner includes, in relation to any plant to which this Act extends by virtue of Schedule 2 which is installed in, or used in connection with, a building or structure on a permanent basis, the owner, lessee or occupier of the building or structure.

25—Duties applicable to all persons

(1)A person (not being an employer, employee or occupier of a workplace) must not—

(a)misuse or damage anything provided in the interests of health, safety or welfare; or

(b)place at risk the health or safety of any other person while that person is at work.

(2)It is a defence to a charge of an offence against subsection (1) for the defendant to prove—

(a)that the act or omission alleged to give rise to the offence was neither intentional nor reckless; or

(b)that there is a reasonable excuse for that act or omission.

Part 4—Health and safety representatives and committees

Division 1—Preliminary

26—Preliminary

For the purposes of this Part, employee does not include—

(a)a self-employed contractor unless the work performed by the contractor is of a class prescribed for the purposes of this paragraph; or

(b)a person employed in a managerial capacity unless a majority of employees at the particular workplace have resolved that it is reasonable to treat the person as an employee for the purposes of this Part; or

(c)where the employer is a body corporate, an officer of the body corporate.

Division 2—Appointment of health and safety representatives and committees

26A—Interpretation

In this Division—

interested employee, in relation to the constitution or composition of a work group or health and safety committee, means an employee whose interests could be affected by the constitution or composition of that group or committee (or a change in such constitution or composition);

recognised member of a group means a member of the group who—

(a)by agreement between the employer and—

(i)any interested employees; or

(ii)a person appointed by such employees; or

(b)in default of agreement, by determination of the Industrial Commission,

is recognised as a member of the group for the purposes of the election of any health and safety representative to represent the group, and the other provisions of this Division relating to the office of health and safety representative.

27—Health and safety representatives may represent groups

(1)A group of employees may elect a health and safety representative to represent a work group for the purposes of this Act.

(2)The constitution of a work group will be determined by agreement between the employer and—

(a)any interested employees; or

(b)a person appointed by such employees.

(3)Where an employer is requested by an employee to act to constitute a work group for the purposes of this section, the employer must respond to the request within 14 days of its receipt.

(4)If an employee is a member of a registered association, that registered association must, at the request of the employee, be consulted in relation to any proposal relating to the formation of a work group that could affect the employee.

(5)A work group must be constituted in a manner that takes into account—

(a)the need for a health and safety representative representing that group to be able to perform his or her functions effectively; and

(b)the need for the employer to be able to fulfil his or her responsibilities to a health and safety representative representing that group effectively.

(6)Insofar as may be relevant to a particular case, and subject to any guidelines issued by the Advisory Committee, the following matters should be considered in relation to the constitution of a work group:

(a)the number of employees employed by the employer;

(b)the nature of each type of work performed by the employer's employees;

(c)the number and grouping of employees who perform the same or similar types of work;

(d)the areas or places where each type of work is performed;

(e)the extent to which any employee must move from place to place while at work;

(f)the times at which particular work is performed;

(g)the overtime or shift-work arrangements that apply in relation to the performance of work;

(h)the nature of particular risks involved in each type of work;

(i)any other relevant factor.

(7)Where—

(a)an employer fails to respond to a request in accordance with subsection (3); or

(b)a dispute arises in relation to the constitution of a work group under this section,

an employee, the employer or, if any employee is a member of a registered association, that registered association if so requested by such an employee, may refer the matter to the Industrial Commission.

(8)Where a matter is referred to the Industrial Commission under subsection (7), the Industrial Commission must attempt to resolve the matter by conciliation.

(9)If a matter cannot be resolved within a reasonable time by conciliation under subsection (8), the Industrial Commission must refer the matter to the President of the Industrial Court for determination by a review committee.

(10)The review committee may determine how a particular work group or groups are to be constituted and the decision of the review committee is binding on all parties.

(11)The constitution of a work group may be varied at any time—

(a)by agreement between the employer and—

(i)any interested employees; or

(ii)a person appointed by such employees; or

(b)in default of agreement, by a review committee.

(12)The employer must keep a list of the work groups constituted under this section.

(13)A copy of the list must be displayed by the employer in a prominent place at his or her principal place of business, or at any other place that is appropriate taking into account the constitution of the various work groups.

28—Election of health and safety representatives

(1)The election of health and safety representatives must be conducted in accordance with this section.

(2)A person is eligible to be a candidate for election as a health and safety representative if the person is a recognised member of the work group that the health and safety representative is to represent.

(3)The conduct of an election of a health and safety representative will be carried out by a person selected by agreement between at least one-half of the recognised members of the work group or, failing the selection of such a person within a reasonable time, on application to the Advisory Committee, by a person nominated by the Advisory Committee.

(4)Every recognised member of the work group is entitled to vote at the election to appoint the health and safety representative to represent that group.

(5)Subject to subsection (6), the election of a health and safety representative must be carried out in accordance with procedures prescribed by regulations made after the Minister has consulted with the Advisory Committee.

(6)The election must be carried out by secret ballot if any recognised member of the work group so requests.

(6a)The employer must be consulted about when the election is to be carried out before the arrangements for the election are finalised.

(7)If there is only one candidate for election—

(a)a ballot need not be held; and

(b)the candidate is taken to have been duly elected.

(8)If a dispute arises in relation to the election of a health and safety representative under this section—

(a)a person who is a recognised member of the work group; or

(b)if any such person is a member of a registered association and requests the registered association to act on his or her behalf—that registered association,

may refer the dispute to the Industrial Commission.

(9)Where a dispute is referred to the Industrial Commission under subsection (8), the Industrial Commission must attempt to resolve the dispute by conciliation.

(10)If a dispute cannot be resolved within a reasonable time by conciliation under subsection (9), the Industrial Commission must refer the dispute to the President of the Industrial Court for determination by a review committee.

(11)The review committee may determine the dispute and the decision of the review committee is binding on all the parties.

(12)On being elected under this section, a health and safety representative must, in accordance with the regulations, provide the prescribed information to the employer and the Department.

29—Election of a deputy health and safety representative

(1)The recognised members of a work group may elect one of their number to be a deputy to the health and safety representative for that group.

(2)A deputy may, in the absence of the health and safety representative, perform the functions of the health and safety representative under this Act.

30—Term of office of a health and safety representative

(1)Subject to this section, a health and safety representative will hold office for a term of three years.

(2)A person ceases to be a health and safety representative for a work group if that person—

(a)completes a term of office and is not re-elected; or

(b)ceases to belong to the relevant work group; or

(c)resigns as a health and safety representative; or

(ca)is removed from office by a resolution of at least two-thirds of the recognised members of the group on the ground that they consider that the person has ceased to be a suitable person to act as their representative; or

(d)is disqualified by a review committee.

(3)Where there is a substantial change in the circumstances surrounding the constitution of a work group and it is agreed at that time by at least one-half of the recognised members of the group that a fresh election should be held to elect a health and safety representative, the health and safety representative who was representing that group must resign and a fresh election must be held.

(4)An application for the disqualification of a health and safety representative may be made to the President of the Industrial Court for determination by a review committee by—

(a)the employer; or

(b)a registered association of which any recognised member of the work group that the health and safety representative represents is a member; or

(c)a majority of the employees who at any particular time are the members of the work group that the health and safety representative represents.

(5)The grounds upon which a health and safety representative may be disqualified are—

(a)that the health and safety representative has on repeated occasions neglected to carry out the functions of a health and safety representative under this Act; or

(b)that the health and safety representative has—

(i)exercised or performed powers or functions under this Act for an improper purpose; or

(ii)disclosed information (being information acquired from the employer) for an improper purpose.

(6)If a review committee is satisfied that a ground for disqualification exists, the review committee may, if it thinks fit, disqualify the health and safety representative for a specified period.

(7)In determining what action (if any) should be taken under subsection (6), the review committee must take into account—

(a)the harm (if any) that has been caused by the health and safety representative;

(b)the past record of the health and safety representative in exercising or performing powers or functions under this Act;

(c)whether the actions of the health and safety representative were contrary to the public interest;

(d)any other relevant consideration.

(8)For the purposes of this section, a reference to a health and safety representative includes a deputy to a health and safety representative.

31—Health and safety committees

(1)At the request of—

(a)a health and safety representative; or

(b)a prescribed number of employees; or

(c)a majority of the employees at any workplace,

the employer must, within two months of the request, establish one or more health and safety committees.

(1a)An employer must also establish one or more health and safety committees if required to do so by or under the regulations.

(2)The composition of a health and safety committee must be determined by agreement between the employer, the health and safety representative and any interested employees.

(3)If an employee is a member of a registered association, that registered association must, at the request of the employee, be consulted in relation to the composition of a health and safety committee under this section.

(4)The membership of a committee should, so far as is reasonably practicable, represent a reasonable cross-section of the persons whose activities, work, or health, safety or welfare (whether as principal, manager, supervisor or employee) could be within the responsibilities of the committee subject however to the following qualifications:

(a)any relevant health and safety representative should be encouraged to be a member of the committee; and

(b)at least half of the members of the committee must be employees.

(5)If at any time agreement cannot be reached on any matter relating to the establishment or composition of a health and safety committee, an interested party may refer the matter to the Industrial Commission to resolve the disagreement.

(6)Where a matter is referred to the Industrial Commission under subsection (5), the Industrial Commission must attempt to resolve the matter by conciliation.

(7)If a matter cannot be resolved within a reasonable time by conciliation under subsection (6), the Industrial Commission must refer the matter to the President of the Industrial Court for determination by a review committee.

(8)The review committee may determine any matter relating to the establishment or composition of a health and safety committee and its decision is binding on all the parties.

(9)Subject to the regulations, the proceedings of a health and safety committee will be conducted in such manner as the committee may determine.

(10)A health and safety committee must hold at least one meeting in every 3 months.

(11)A meeting of a health and safety committee must be held—

(a)on the request of at least half of the members of the committee; or

(b)on the request of a health and safety representative; or

(c)on the request of the employer.

(12)The composition of a health and safety committee may be varied at any time by agreement between the employer, any relevant health and safety representative, and any interested employees who are within the responsibility of the committee.

(13)In addition to the other matters provided by this section, the regulations may make provision for—

(a)the term of office of a member of a health and safety committee;

(b)the disqualification of a person from acting, or continuing to act, as a member of a health and safety committee;

(c)the appointment of a person to a casual vacancy in the membership of a health and safety committee.

(14)This section does not apply to a prescribed employer or an employer of a prescribed class (if any).

Division 2A—Training

31A—Training of health and safety representatives, deputies and committee members

(1)A prescribed person is entitled to take such time off work as is authorised by the regulations for the purposes of taking part in a course of training relating to occupational health, safety or welfare approved by the Advisory Committee for the purposes of this section.

(2)Subsection (1) is subject to the following qualifications:

(a)if—

(i)the employer employs 20 or less employees; and

(ii)the employer is not an employer in respect of whom a supplementary levy has been imposed by WorkCover under Part 5 of the Workers Rehabilitation and Compensation Act 1986,

a prescribed person may only take such time off work to take part in a course of training as the employer reasonably allows;

(b)a prescribed person must take reasonable steps to consult with the employer before taking time off work to take part in a course of training under this section.

(3)If a dispute arises in relation to the entitlement of a prescribed person under this section, the prescribed person or the employer may refer the dispute to the Industrial Commission.

(4)The Industrial Commission may determine the dispute and the decision of the Industrial Commission is binding on the prescribed person and the employer.

(5)In this section—

prescribed person means—

(a)a health and safety representative; and

(b)a deputy to a health and safety representative; and

(c)a member of a health and safety committee.

31B—Maintenance of pay and reimbursement of expenses

(1)A person who takes time off work for the purposes of any training under this Division—

(a)is entitled to take that time without the loss of any remuneration (payable by the employer) that the person would have received had he or she been at work for the relevant time; and

(b)is entitled to be reimbursed by the employer for any reasonable expenses reasonably incurred by the person with respect to—

(i)travelling; or

(ii)obtaining meals or accommodation; or

(iii)parking fees; or

(iv)other matters (if any) prescribed by the regulations,

to the extent that these expenses are over and above, or additional to, expenses that the person would have incurred in any event had he or she been at work at the relevant time.

(2)If a dispute arises in relation to the entitlement of a person under this section, the person or the employer may refer the dispute to the Industrial Commission.

(3)The Industrial Commission may determine the dispute and the decision of the Industrial Commission is binding on the person and the employer.

31C—Guidelines

The Advisory Committee may prepare and publish guidelines in relation to the operation of this Division.

Division 3—Functions of health and safety representatives and committees

32—Functions of health and safety representatives

(1)A health and safety representative may, for the purpose of the health, safety and welfare of the employees in the work group that the health and safety representative represents—

(a)inspect the whole or any part of any relevant workplace—

(i)at any time after giving reasonable notice to the employer (which must state the name of any consultant who is to accompany the representative during the inspection and the purpose for which the consultant's advice is sought); or

(ii)immediately, in the event of an accident, dangerous occurrence or imminent danger or risk to the health or safety of any person;

(b)accompany an inspector during an inspection of any relevant workplace;

(c)investigate complaints relating to occupational health, safety or welfare made by employees in the work group;

(d)at the request of the employee, be present at any interview concerning occupational health, safety or welfare between an inspector and an employee;

(e)at the request of the employee, be present at any interview concerning occupational health, safety or welfare between the employer (or a representative of the employer) and an employee;

(f)make representations to the employer on any matter that relates to occupational health, safety or welfare at any relevant workplace.

(2)In relation to the inspection of a workplace under subsection (1)(a), a health and safety representative may—

(a)be accompanied by such consultants as the representative thinks fit; and

(b)discuss any matter affecting health, safety or welfare with any employee at the workplace; and

(c)carry out any investigation that may appear appropriate.

(3)Subsections (1) and (2) are subject to the following qualifications:

(a)a health and safety representative is only entitled to be accompanied on an inspection by a consultant approved by—

(i)the Advisory Committee; or

(ii)a health and safety committee that has responsibilities in relation to the work group that the health and safety representative represents; or

(iii)the employer; and

(b)a health and safety representative should take reasonable steps to consult with the employer in relation to carrying out an investigation of any workplace and the outcome of any such investigation.

(4)An employer is not liable for the cost of a consultant attending at a workplace pursuant to this section.

(5)The powers and functions of a health and safety representative under this Act are limited to acting in relation to the work group that the health and safety representative represents.

(6)No provision of this Act may be construed as imposing any duty on a health and safety representative in his or her capacity as a health and safety representative.

(7)Where a health and safety representative exercises or performs a power or function under this Act—

(a)for an improper purpose intending to cause harm to the employer or a commercial or business undertaking of the employer; or

(b)for an improper purpose related to an industrial claim or dispute,

the health and safety representative is guilty of an offence.

Maximum penalty: Division 6 fine.

(8)In this section—

consultant means a person who is, by reason of his or her experience or qualifications, suitably qualified to advise on issues relating to occupational health, safety or welfare.

33—Functions of health and safety committees

(1)The functions of a health and safety committee are—

(a)to facilitate co-operation between an employer and the employees of the employer in initiating, developing, carrying out and monitoring measures designed to ensure the health, safety and welfare at work of the employees; and

(b)to assist in the resolution of issues relating to occupational health, safety or welfare that arise at any relevant workplace; and

(c)to assist in the formulation, review and dissemination (in such languages as are appropriate) to employees of the occupational health, safety and welfare practices, procedures and policies that are to be followed at any relevant workplace; and

(d)to consult with the employer on any proposed changes to occupational health, safety or welfare practices, procedures or policies; and

(e)to keep under review—

(i)developments in the field of rehabilitation of employees who suffer work-related injuries; and

(ii)the employment of employees who suffer from any form of disability; and

(f)to assist—

(i)in the return to work of employees who have suffered work-related injuries; and

(ii)in the employment of employees who suffer from any form of disability; and

(g)such other functions as are prescribed or agreed upon by the employer and the health and safety committee.

(2)A health and safety committee may establish such sub-committees as it thinks fit (which may, but need not consist of, or include, members of the committee) to provide advice or to assist it in the performance of its functions under this Act.

(3)A health and safety committee may delegate any of its functions to a sub-committee established under subsection (2).

(4)A delegation under subsection (3)—

(a)may be made subject to such conditions as the health and safety committee thinks fit; and

(b)is revocable at will; and

(c)does not derogate from the power of the committee to act in any matter itself.

34—Responsibilities of employers

(1)An employer must—

(a)consult any relevant health and safety representatives and health and safety committees on any proposed changes to any workplace, the plant used at any workplace, the substances used, handled, processed or stored at any workplace, the work to be conducted at any workplace or the procedures for carrying out work at any workplace, where those changes might affect the health, safety or welfare of employees at the workplace; and

(b)consult any relevant health and safety representatives and health and safety committees on the occupational health, safety and welfare practices, procedures and policies that are to be followed at any workplace; and

(c)consult any relevant health and safety representatives and health and safety committees on any proposed changes to occupational health, safety and welfare practices, procedures or policies; and

(d)consult any relevant health and safety representatives on any proposed application to the designated person for the modification of the requirements of any regulation; and

(e)at the request of the employee, permit a health and safety representative to be present at any interview concerning occupational health, safety or welfare between the employer (or a representative of the employer) and an employee who is a member of the work group that the health and safety representative represents; and

(f)permit any relevant health and safety representative to accompany an inspector during an inspection of any workplace; and

(g)permit a health and safety representative to have access to such information as the employer possesses or can reasonably obtain—

(i)relating to risks that arise or may arise at any workplace where employees who are members of the work group that the health and safety representative represents work, out of work conducted at any workplace or out of plant or substances used at any workplace; or

(ii)concerning the health and safety of the employees of the employer (but personal information regarding the health of an employee must not be divulged under this subparagraph without the consent of the employee),

and, when requested to do so, supply a copy of that information to the health and safety representative; and

(h)immediately notify a health and safety representative of the occurrence of an accident, dangerous occurrence, imminent danger or risk or hazardous situation that affects or may affect any employee who is a member of the work group that the health and safety representative represents; and

(i)notify a health and safety representative of the occurrence of any work-related injury to an employee who is a member of the work group that the health and safety representative represents; and

(j)provide such other facilities and assistance to health and safety representatives as are necessary or prescribed to enable them to perform their functions under this Act.

(2)An employer is not required to give to a health and safety representative under subsection (1)(g)—

(a)information that is privileged on the ground of legal professional privilege; or

(b)information that is relevant to proceedings that have been commenced under this Act.

(3)A health and safety representative is entitled to take such time off work as is reasonably necessary for the purposes of performing the functions of a health and safety representative under this Act.

(4)A health and safety representative who takes time off work under subsection (3)—

(a)is entitled to take that time without the loss of any remuneration (payable by the employer) that the health and safety representative would have received had he or she been at work for the relevant time; and

(b)is entitled to be reimbursed by the employer for any reasonable expenses reasonably incurred by the health and safety representative with respect to—

(i)travelling; or

(ii)obtaining meals or accommodation; or

(iii)parking fees; or

(iv)other matters (if any) prescribed by the regulations,

to the extent that these expenses are over and above, or additional to, expenses that the health and safety representative would have incurred in any event had he or she been at work at the relevant time.

(5)A health and safety representative must take reasonable steps to obtain the agreement of the employer before incurring any expenses that he or she intends to claim under subsection (4)(b) (and that agreement must not be unreasonably withheld).

(5a)The Advisory Committee may prepare and publish guidelines in relation to the operation of subsections (3), (4) and (5).

(6)If a dispute arises in relation to the entitlement of a health and safety representative under subsection (3) or (4), the health and safety representative or the employer may refer the dispute to the Industrial Commission.

(7)The Industrial Commission may determine the dispute and the decision of the Commission is binding on the health and safety representative and the employer.

Division 4—Resolution of health, safety or welfare issues

35—Default notices

(1)Where a health and safety representative is of the opinion that a person—

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

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

the health and safety representative must consult with the employer in relation to the matter.

(2)If the health and safety representative and the employer are unable within a reasonable time to resolve a particular matter pursuant to subsection (1), the matter must, if there is a health and safety committee that has responsibility in relation to the matter, be referred to that committee or, if there is no such committee, the matter may be referred to an inspector.

(3)Despite subsections (1) and (2), if after taking reasonable steps to stop by consultation a contravention of this Act or prevent a repeated contravention of this Act the health and safety representative is of the opinion that the matter has not been satisfactorily resolved, the health and safety representative may issue a default notice requiring the person to whom the notice is addressed to remedy the contravention.

(4)A health and safety representative must not issue a default notice in relation to any matter that is the subject of an improvement notice or a prohibition notice.

Maximum penalty: Division 7 fine.

(5)Where a health and safety representative issues a default notice, the notice must—

(a)state that the health and safety representative is of the opinion that a person—

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

(ii)has contravened a provision of this Act in circumstances that make it likely that the contravention will be repeated; and

(b)state the grounds of the health and safety representative's opinion.

(6)A health and safety representative may specify in a default notice a day by which the matters referred to in the notice must be remedied.

(7)Where a default notice is issued to an employee, the employee must, as soon as is reasonably practicable after receiving it, give the notice, or a copy of the notice, to his or her employer.

Maximum penalty: Division 6 fine.

(8)Subject to subsection (11), a person to whom a default notice is addressed or, where that person is an employee, that person's employer, must take all reasonable steps to remedy—

(a)if a day has been specified under subsection (6)—by that day;

(b)if a day has not been specified under subsection (6)—within a reasonable time,

the matters referred to in the notice.

Maximum penalty: Division 3 fine.

(9)If—

(a)a person to whom a default notice is addressed or, where that person is an employee, that person's employer, considers that a default notice need not have been issued or is, for some other reason, inappropriate; or

(b)a health and safety representative—

(i)considers that there has been unreasonable delay in taking action under subsection (8); or

(ii)is dissatisfied with the action taken under that subsection in response to the notice,

an inspector may be requested to attend at the workplace.

(10)A request under subsection (9)(a) must be made by a person within 14 days of the receipt of the default notice (or a copy of the notice) by the person.

(11)Where an inspector has been requested to attend at a workplace under subsection (9)(a), the operation of the default notice is, pending the attendance of the inspector, suspended.

(12)Where a default notice is issued, the person to whom notice is addressed must, on receipt of the notice (or a copy of the notice)—

(a)bring the notice to the attention of any person whose work is affected by the notice; and

(b)display the notice or a copy of the notice in a prominent place at or near any workplace that is affected by the notice; and

(c)keep a copy of the notice for such period as may be prescribed.

Maximum penalty: Division 6 fine.

(13)A person must not remove a notice or a copy of a notice displayed pursuant to subsection (12) while the notice is in force.

Maximum penalty: Division 6 fine.

(14)A default notice may be cancelled—

(a)at any time, by the health and safety representative who issued the notice; or

(b)if the health and safety representative is absent from the workplace and cannot reasonably be contacted, by a health and safety committee that has responsibilities in relation to the matter.

36—Action where the health and safety of a worker is threatened

(1)Where a health and safety representative is of the opinion that there is an immediate threat to the health or safety of an employee who is a member of the work group that the health and safety representative represents, the health and safety representative must consult with the employer in relation to the matter.

(2)If the health and safety representative and the employer are unable within a reasonable time to resolve a particular matter pursuant to subsection (1), the matter must, if there is a health and safety committee that has responsibility in relation to the matter, be referred to that committee or, if there is no such committee, the matter must be referred to an inspector.

(3)Despite subsections (1) and (2), if the health and safety representative is of the opinion that given the nature of the threat and degree of risk work should immediately cease, the health and safety representative may direct that work cease until adequate measures are taken to protect the health and safety of an employee.

(4)Where a health and safety representative gives a direction that work cease—

(a)if the direction is given without consultation with the employer or before the matter has been considered by a health and safety committee (if any) that has responsibility in relation to the matter, the health and safety representative must, as soon as practicable after giving the direction, consult with the employer and, if it is necessary or appropriate, with the committee; and

(b)the employer or the health and safety representative may request an inspector to attend at the workplace.

37—Attendance by inspector

(1)Where a matter is referred to an inspector under this Division, the inspector must attend at the workplace as soon as possible but in any event—

(a)if a direction has been given that work cease—

(i)where the workplace is within the metropolitan area—within 1 business day;

(ii)where the workplace is outside the metropolitan area—within 2 business days; or

(b)in any other case—within 7 business days.

(2)An inspector—

(a)must attempt to resolve any occupational health, safety or welfare matter that remains unresolved; and

(b)if a default notice has been issued, may—

(i)confirm the notice; or

(ii)confirm the notice with such modifications as the inspector thinks fit; or

(iii)cancel the notice; and

(c)if the inspector thinks fit, may issue a prohibition notice or an improvement notice; and

(d)may make such recommendations or take such other action as appear appropriate.

(3)Where a work cessation direction was given and an inspector determines that there was an immediate threat to health or safety justifying a cessation of work or that the health and safety representative reasonably believed that such a threat existed, any employee employed in the work who is remunerated by wages or salary is entitled to be paid for the period of cessation so as not to suffer a loss of income.

(4)Where an inspector confirms a default notice or confirms such a notice with modifications, the inspector must order the person to whom the notice was addressed to comply with the notice within a period specified by the inspector.

(a)must disclose the nature of the interest to the Committee; and

(b)must not take part in any deliberation or decision of the Committee with respect to the matter.

Maximum penalty: $2 000.

(16)A disclosure under subclause (15) must be recorded in the minutes of the Committee.

(17)The Committee may, in connection with the performance of its functions, make use of the services, facilities and staff of the Department.

2—Application of funds

(1)Money available to the Committee from the Mining and Quarrying Industries Fund under Schedule 1 of the Workers Rehabilitation and Compensation Act 1986 may be used for any of the following purposes:

(a)to promote and support practices, procedures and arrangements designed to protect workers from silicosis;

(b)to support education in the field of occupational health or safety in the mining and quarrying industries;

(c)to initiate or support research and studies into occupational health or safety that could benefit workers in the mining and quarrying industries;

(d)to promote and support persons or organisations working to prevent, alleviate or treat the kinds of injuries suffered by workers in the mining and quarrying industries;

(e)to support any other kind of activity that could directly or indirectly improve occupational health or safety in the mining and quarrying industries or assist in the rehabilitation of injured workers in those industries.

(2)The Committee has all such powers as are reasonably necessary for the effective performance of its functions (including the power to establish subcommittees and to engage, as may be appropriate, experts or consultants to assist the Committee in the performance of its functions).

(3)The Committee must, in making grants of money under this Schedule, give preference to supporting projects directed at improving occupational health or safety in those industries that involve exposure to silica dust and in particular to supporting specialised research and training projects directed at that purpose in South Australia.

(4)The Committee must not spend any part of the principal standing to the credit of Part B of the Mining and Quarrying Industries Fund without the specific approval of the Minister and in any case the Committee is not to spend in any financial year more than 20% of the principal that, at the commencement of that financial year, is standing to the credit of that part of the fund.

(5)The Committee must after the end of each financial year prepare a report on its operations during that financial year.

(6)The report must be submitted to the Minister in conjunction with the annual report of the Advisory Committee for the relevant financial year (and laid before each House of Parliament by the Minister together with the Advisory Committee's annual report).

3—Ministerial control

The Committee is, in the performance of its functions, subject to the control and direction of the Minister.

Legislative history

Notes

•This version is comprised of the following:

Part 1	1.2.2010
Part 2	1.2.2010
Part 3	15.8.2005
Part 4	15.8.2005
Part 5	15.8.2005
Part 6	15.8.2005
Part 7	4.9.2006
Part 8	1.7.2012
Schedules	1.7.2012

•Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.

•Earlier versions of this Act (historical versions) are listed at the end of the legislative history.

•For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or of Act

The Occupational Health, Safety and Welfare Act 1986 was repealed by Sch 6 cl 11 of the Work Health and Safety Act 2012 on 1.1.2013.

Legislation repealed by principal Act

The Occupational Health, Safety and Welfare Act 1986 repealed the following:

Industrial Safety, Health and Welfare Act 1972

Legislation amended by principal Act

The Occupational Health, Safety and Welfare Act 1986 amended the following:

Industrial Conciliation and Arbitration Act 1972

Mines and Works Inspection Act 1920

Principal Act and amendments

Year	No	Title	Assent	Commencement
1986	125	Occupational Health, Safety and Welfare Act 1986	24.12.1986	16.4.1987 (Gazette 2.4.1987 p806) except ss 3—6, 19—71 & Schs 1—3—30.11.1987 (Gazette 8.10.1987 p1068)
1989	24	Occupational Health, Safety and Welfare Act Amendment Act 1989	27.4.1989	22.6.1989 (Gazette 22.6.1989 p1709) except ss 9 & 11—1.7.1990 (Gazette 24.5.1990 p1404)
1990	67	Occupational Health, Safety and Welfare Act Amendment Act 1990	20.12.1990	1.1.1991 (Gazette 20.12.1990 p1842)
1993	1	Statutes Amendment (Chief Inspector) Act 1993	25.2.1993	1.7.1993 (Gazette 17.6.1993 p1974)
1993	46	Occupational Health, Safety and Welfare (Plant) Amendment Act 1993	20.5.1993	3.4.1995 (Gazette 23.2.1995 p422)
1993	51	Occupational Health, Safety and Welfare (Registration Fees) Amendment Act 1993	20.5.1993	1.7.1993: s 2
1994	50	Occupational Health, Safety and Welfare (Administration) Amendment Act 1994	16.6.1994	1.7.1994 (Gazette 30.6.1994 p1842) except s 24(d)—1.7.1994: s 2(2)(c)
1996	34	Statutes Amendment and Repeal (Common Expiation Scheme) Act 1996	2.5.1996	Sch (cl 26)—3.2.1997 (Gazette 19.12.1996 p1923)
2000	11	Offshore Minerals Act 2000	4.5.2000	4.5.2002 (s 7(5) Acts Interpretation Act 1915)
2000	86	Occupational Health, Safety and Welfare (Penalties) Amendment Act 2000	14.12.2000	1.1.2001 (Gazette 21.12.2000 p3689)
2003	44	Statute Law Revision Act 2003	23.10.2003	Sch 1—24.11.2003 (Gazette 13.11.2003 p4048)
2005	41	Occupational Health, Safety and Welfare (SafeWork SA) Amendment Act 2005	14.7.2005	Pt 2 (ss 4—31), Sch 1 (cll 9—14) & Sch 2—15.8.2005 (Gazette 11.8.2005 p3011); Sch 1 (cl 8)—1.1.2006 (Gazette 1.12.2005 p4072)
2006	17	Statutes Amendment (New Rules of Civil Procedure) Act 2006	6.7.2006	Pt 56 (ss 174—176)—4.9.2006 (Gazette 17.8.2006 p2831)
2007	54	Occupational Health, Safety and Welfare (Penalties) Amendment Act 2007	29.11.2007	1.1.2008 (Gazette 13.12.2007 p4812)
2009	58	Statutes Amendment (National Industrial Relations System) Act 2009	26.11.2009	Pt 9 (s 37)—1.1.2010 (Gazette 17.12.2009 p6351)
2009	84	Statutes Amendment (Public Sector Consequential Amendments) Act 2009	10.12.2009	Pt 99 (ss 240—244)—1.2.2010 (Gazette 28.1.2010 p320)
2011	48	Workers Rehabilitation and Compensation (Employer Payments) Amendment Act 2011	8.12.2011	Sch 2 (cll 1—3)—1.7.2012 (Gazette 29.3.2012 p1294)

Provisions amended

Entries that relate to provisions that have been deleted appear in italics.

Provision	How varied	Commencement
Long title	amended by 50/1994 s 3	1.7.1994
amended under Legislation Revision and Publication Act 2002	24.11.2003
Pt 1
s 2	omitted under Legislation Revision and Publication Act 2002	24.11.2003
s 3	amended by 46/1993 s 3	3.4.1995
s 4
s 4(1)
Advisory Committee	inserted by 50/1994 s 4(a)	1.7.1994
substituted by 41/2005 s 4(1)	15.8.2005
appointed member	inserted by 41/2005 s 4(1)	15.8.2005
the Chief Inspector	deleted by 1/1993 s 53(a)	1.7.1993
the Commission	deleted by 50/1994 s 4(b)	1.7.1994
Corporation	inserted by 50/1994 s 4(c)	1.7.1994
deleted by 41/2005 s 4(2)	15.8.2005
Department	inserted by 41/2005 s 4(2)	15.8.2005
substituted by 84/2009 s 240(1)	1.2.2010
the designated person	inserted by 1/1993 s 53(b)	1.7.1993
amended by 50/1994 s 4(d)	1.7.1994
amended by 11/2000 Sch 2	4.5.2002
amended by 41/2005 Sch 2	15.8.2005
amended by 84/2009 s 240(2)	1.2.2010
the Director	inserted by 1/1993 s 53(b)	1.7.1993
(b) deleted by 50/1994 s 4(e)	1.7.1994
deleted by 41/2005 s 4(3)	15.8.2005
Director	inserted by 41/2005 s 4(3)	15.8.2005
the Industrial Commission	deleted by 41/2005 Sch 2	15.8.2005
Industrial Commission	inserted by 41/2005 Sch 2	15.8.2005
the Industrial Court	deleted by 41/2005 Sch 2	15.8.2005
Industrial Court	inserted by 41/2005 Sch 2	15.8.2005
inspector	amended by 50/1994 s 4(f)	1.7.1994
amended by 11/2000 Sch 2	4.5.2002
amended by 41/2005 Sch 2	15.8.2005
metropolitan area	amended by 41/2005 Sch 2	15.8.2005
plant	substituted by 46/1993 s 4(a)	3.4.1995
record	inserted by 41/2005 s 4(4)	15.8.2005
registered association	substituted by 50/1994 s 4(g)	1.7.1994
amended by 41/2005 Sch 2	15.8.2005
amended by 58/2009 s 37	1.1.2010
WorkCover	inserted by 41/2005 s 4(5)	15.8.2005
work group	amended by 67/1990 s 3(a)	1.1.1991
workplace	substituted by 67/1990 s 3(b)	1.1.1991
s 4(2) and (3)	amended by 41/2005 Sch 2	15.8.2005
s 4(4a)	inserted by 46/1993 s 4(b)	3.4.1995
s 4(5)	substituted by 86/2000 s 3	1.1.2001
substituted by 54/2007 s 4	1.1.2008
Pt 2 before substitution by 41/2005	amended by 24/1989 ss 3—8	22.6.1989
amended by 67/1990 ss 4, 5	1.1.1991
amended by 1/1993 s 54	1.7.1993
substituted by 50/1994 s 5	1.7.1994
s 7
s 7(3)	amended by 44/2003 s 3(1) (Sch 1)	24.11.2003
s 9
s 9(5)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 12	amended by 86/2000 s 7 (Sch)	1.1.2001
Pt 2	inserted by 41/2005 s 5	15.8.2005
s 9
s 9(3)	(e) deleted by 84/2009 s 241(1)	1.2.2010
s 9(6)—(8)	deleted by 84/2009 s 241(2)	1.2.2010
s 11
s 11(2) and (3)	deleted by 84/2009 s 242	1.2.2010
s 12A	inserted by 84/2009 s 243	1.2.2010
Pt 3
s 19
s 19(1)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 19(2)	deleted by 67/1990 s 6(a)	1.1.1991
s 19(3)	amended by 67/1990 s 6(b), (c)	1.1.1991
amended by 41/2005 s 6, Sch 2	15.8.2005
s 20
s 20(1)	amended by 67/1990 s 7(a)	1.1.1991
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 20(2)	deleted by 67/1990 s 7(b)	1.1.1991
s 21
s 21(1)	amended by 50/1994 s 6	1.7.1994
substituted by 86/2000 s 4	1.1.2001
s 21(1a) and (1b)	inserted by 86/2000 s 4	1.1.2001
s 22	substituted by 86/2000 s 5	1.1.2001
s 22(2)	substituted by 41/2005 s 7	15.8.2005
s 23	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 23A	inserted by 67/1990 s 8	1.1.1991
s 23A(1) and (2)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 24
s 24(1)	amended by 46/1993 s 5(a)	3.4.1995
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 24(2)	amended by 46/1993 s 5(b)	3.4.1995
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 24(2aa)	inserted by 46/1993 s 5(c)	3.4.1995
s 24(2a)	inserted by 67/1990 s 9(a)	1.1.1991
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 24(3)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 24(4)	inserted by 67/1990 s 9(b)	1.1.1991
s 24A	inserted by 46/1993 s 6	3.4.1995
s 24A(1)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 25
s 25(1)	amended by 41/2005 Sch 2	15.8.2005
Pt 4
Pt 4 Div 2
s 26A	inserted by 67/1990 s 10	1.1.1991
s 27	substituted by 67/1990 s 10	1.1.1991
s 27(6)	amended by 50/1994 s 7	1.7.1994
amended by 41/2005 s 8	15.8.2005
s 28
s 28(1)	amended by 41/2005 Sch 2	15.8.2005
s 28(2)	amended by 67/1990 s 11(a)	1.1.1991
s 28(3)	substituted by 67/1990 s 11(b)	1.1.1991
amended by 50/1994 s 8(a)	1.7.1994
amended by 41/2005 s 9(1)	15.8.2005
s 28(4)	amended by 67/1990 s 11(c)	1.1.1991
s 28(5)	amended by 50/1994 s 8(b)	1.7.1994
s 28(6)	amended by 67/1990 s 11(d)	1.1.1991
s 28(6a)	inserted by 41/2005 s 9(2)	15.8.2005
s 28(7)	amended by 41/2005 Sch 2	15.8.2005
s 28(8)	substituted by 67/1990 s 11(e)	1.1.1991
s 28(9)	amended by 67/1990 s 11(f)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 28(10)	amended by 41/2005 Sch 2	15.8.2005
s 28(12)	amended by 50/1994 s 8(c)	1.7.1994
amended by 41/2005 s 9(3), Sch 2	15.8.2005
s 29
s 29(1)	substituted by 67/1990 s 12	1.1.1991
s 30
s 30(1)	amended by 67/1990 s 13(a)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 30(2)	amended by 67/1990 s 13(b), (c)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 30(3)	substituted by 67/1990 s 13(d)	1.1.1991
s 30(4)	amended by 67/1990 s 13(e), (f)	1.1.1991
s 30(7)	amended by 41/2005 Sch 2	15.8.2005
s 31
s 31(1)	substituted by 67/1990 s 14(a)	1.1.1991
s 31(1a)	inserted by 50/1994 s 9	1.7.1994
s 31(2) and (3)	amended by 41/2005 Sch 2	15.8.2005
s 31(4)	substituted by 67/1990 s 14(b)	1.1.1991
s 31(6)	amended by 67/1990 s 14(c)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 31(7)	amended by 41/2005 Sch 2	15.8.2005
s 31(9)—(11)	amended by 41/2005 Sch 2	15.8.2005
s 31(12)	amended by 67/1990 s 14(d)	1.1.1991
Pt 4 Div 2A	inserted by 41/2005 s 10	15.8.2005
Pt 4 Div 3
s 32
s 32(1)	amended by 67/1990 s 15(a)—(e)	1.1.1991
s 32(3)	amended by 67/1990 s 15(f), (g)	1.1.1991
amended by 50/1994 s 10	1.7.1994
amended by 41/2005 s 11	15.8.2005
s 32(5)	amended by 67/1990 s 15(h)	1.1.1991
s 32(6)	amended by 41/2005 Sch 2	15.8.2005
s 32(7)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 33
s 33(1)	amended by 67/1990 s 16	1.1.1991
s 34
s 34(1)	substituted by 67/1990 s 17(a)	1.1.1991
amended by 1/1993 s 55	1.7.1993
amended by 41/2005 Sch 2	15.8.2005
s 34(3)	amended by 67/1990 s 17(b)	1.1.1991
amended by 50/1994 s 11(a)	1.7.1994
substituted by 41/2005 s 12(1)	15.8.2005
s 34(4)	amended by 67/1990 s 17(c)	1.1.1991
substituted by 41/2005 s 12(1)	15.8.2005
s 34(5)	amended by 50/1994 s 11(b)	1.7.1994
substituted by 41/2005 s 12(1)	15.8.2005
s 34(5a)	inserted by 41/2005 s 12(1)	15.8.2005
s 34(6)	amended by 41/2005 s 12(2)	15.8.2005
Pt 4 Div 4
s 35
s 35(1)	amended by 41/2005 Sch 2	15.8.2005
s 35(2)	amended by 67/1990 s 18(a)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 35(3)	amended by 67/1990 s 18(b)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 35(4)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 35(5)	amended by 67/1990 s 18(c)	1.1.1991
s 35(7)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 35(8)	amended by 67/1990 s 18(d)	1.1.1991
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 35(9)	amended by 67/1990 s 18(e)	1.1.1991
s 35(11)	amended by 41/2005 Sch 2	15.8.2005
s 35(12)	substituted by 67/1990 s 18(f)	1.1.1991
amended by 86/2000 s 7 (Sch)	1.1.2001
s 35(13)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 36
s 36(1)	amended by 67/1990 s 19(a)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 36(2)	amended by 67/1990 s 19(b)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 36(3)	amended by 41/2005 Sch 2	15.8.2005
s 36(4)	amended by 67/1990 s 19(c)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 37
s 37(1) and (2)	amended by 41/2005 Sch 2	15.8.2005
s 37(4)	amended by 67/1990 s 20	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 37(5)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 37(8)	amended by 41/2005 Sch 2	15.8.2005
s 37A	inserted by 41/2005 s 13	15.8.2005
Pt 5
s 38
s 38(1)	amended by 1/1993 s 56(a)	1.7.1993
amended by 50/1994 s 12(a)	1.7.1994
amended by 46/1993 s 7(a)	3.4.1995
amended by 41/2005 s 14(1)	15.8.2005
s 38(1a)	inserted by 67/1990 s 21(a)	1.1.1991
substituted by 46/1993 s 7(b)	3.4.1995
s 38(5)	substituted by 41/2005 s 14(2)	15.8.2005
s 38(6)	amended by 1/1993 s 56(b)	1.7.1993
amended by 50/1994 s 12(b)	1.7.1994
substituted by 41/2005 s 14(2)	15.8.2005
s 38(7)	amended by 41/2005 Sch 2	15.8.2005
s 38(8)	amended by 1/1993 s 56(c)	1.7.1993
amended by 50/1994 s 12(c)	1.7.1994
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 38(9)	amended by 46/1993 s 7(c)	3.4.1995
amended by 41/2005 Sch 2	15.8.2005
s 38(10)	amended by 67/1990 s 21(b)	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 38(11)	amended by 1/1993 s 56(d)	1.7.1993
amended by 50/1994 s 12(d)	1.7.1994
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 s 14(3), (4), Sch 2	15.8.2005
Pt 6
s 39
s 39(1)	amended by 67/1990 s 22(a)	1.1.1991
s 39(2)	amended by 67/1990 s 22(b)	1.1.1991
amended by 41/2005 s 15(1)	15.8.2005
s 39(4)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 s 15(2)	15.8.2005
s 39(5) and (6)	inserted by 41/2005 s 15(3)	15.8.2005
s 40
s 40(1)	amended by 46/1993 s 8	3.4.1995
substituted by 41/2005 s 16(1)	15.8.2005
s 40(2)	substituted by 41/2005 s 16(1)	15.8.2005
s 40(3)	amended by 41/2005 s 16(2)	15.8.2005
s 40(4)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 41
s 41(1)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 41(2)	substituted by 67/1990 s 23	1.1.1991
amended by 46/1993 s 9	3.4.1995
amended by 86/2000 s 7 (Sch)	1.1.2001
s 41(3)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 42
s 42(1)	amended by 67/1990 s 24(a)	1.1.1991
amended by 46/1993 s 10(a)	3.4.1995
s 42(3)	amended by 41/2005 Sch 2	15.8.2005
s 42(5)	amended by 67/1990 s 24(b)	1.1.1991
amended by 46/1993 s 10(b)	3.4.1995
s 43
s 43(2)	amended by 67/1990 s 25	1.1.1991
amended by 41/2005 Sch 2	15.8.2005
s 43(3)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 45
s 45(1)	amended by 46/1993 s 11	3.4.1995
s 45(3)	amended by 86/2000 s 7 (Sch)	1.1.2001
Pt 7
s 46	amended by 41/2005 Sch 2	15.8.2005
s 47
s 47(1)—(4)	amended by 41/2005 Sch 2	15.8.2005
s 47(6)	inserted by 50/1994 s 13	1.7.1994
s 48
s 48(1)	amended by 41/2005 Sch 2	15.8.2005
s 48(3) and (4)	amended by 41/2005 Sch 2	15.8.2005
s 48(8)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 49
s 49(4)	amended by 17/2006 s 174	4.9.2006
s 49(6)	amended by 41/2005 Sch 2	15.8.2005
Pt 8
s 51 before deletion by 84/2009
s 51(1)	amended by 50/1994 s 14	1.7.1994
amended by 41/2005 s 17	15.8.2005
s 51(2)	amended by 41/2005 Sch 2	15.8.2005
s 51	deleted by 84/2009 s 244	1.2.2010
s 53	amended by 1/1993 s 57	1.7.1993
substituted by 50/1994 s 15	1.7.1994
s 53(1)	amended by 41/2005 s 18	15.8.2005
s 54
s 54(1)	substituted by 50/1994 s 16(a)	1.7.1994
amended by 41/2005 s 19(1)	15.8.2005
s 54(1a)	inserted by 50/1994 s 16(a)	1.7.1994
amended by 41/2005 s 19(2)	15.8.2005
s 54(2)	amended by 50/1994 s 16(b)	1.7.1994
s 54A	inserted by 41/2005 s 20	15.8.2005
s 55
s 55(1)	substituted by 50/1994 s 17(a)	1.7.1994
amended by 86/2000 s 7 (Sch)	1.1.2001
s 55(1a)	inserted by 50/1994 s 17(a)	1.7.1994
amended by 41/2005 s 21	15.8.2005
s 55(1b) and (1c)	inserted by 50/1994 s 17(a)	1.7.1994
s 55(2)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 55A	inserted by 41/2005 s 22	15.8.2005
s 56
s 56(1) and (2)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 56(3)	amended by 41/2005 Sch 2	15.8.2005
s 58
s 58(5)	amended by 41/2005 s 23(1)	15.8.2005
s 58(5a)	inserted by 41/2005 s 23(2)	15.8.2005
amended by 17/2006 s 175	4.9.2006
s 58(6)	substituted by 86/2000 s 6	1.1.2001
amended by 41/2005 s 23(3)	15.8.2005
s 58(6a) and (6b)	inserted by 41/2005 s 23(4)	15.8.2005
s 58(7)	substituted by 86/2000 s 6	1.1.2001
amended by 41/2005 s 23(5), (6)	15.8.2005
s 58(8)	inserted by 86/2000 s 6	1.1.2001
substituted by 41/2005 s 23(7)	15.8.2005
s 58(9)	inserted by 86/2000 s 6	1.1.2001
amended by 41/2005 s 23(8)	15.8.2005
s 58(10)	inserted by 41/2005 s 23(9)	15.8.2005
s 59	substituted by 54/2007 s 5	1.1.2008
ss 59A—59C	inserted by 54/2007 s 5	1.1.2008
s 60
s 60(1) and (3)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 60(4)	amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 60A	inserted by 67/1990 s 26	1.1.1991
amended by 50/1994 s 18	1.7.1994
deleted by 34/1996 s 4 (Sch cl 26)	3.2.1997
inserted by 41/2005 s 24	15.8.2005
s 61	substituted by 67/1990 s 27	1.1.1991
s 61(2a) and (2b)	inserted by 41/2005 s 25	15.8.2005
s 61(3)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 62
s 62(1)	s 62 redesignated as s 62(1) by 41/2005 s 26	15.8.2005
amended by 41/2005 Sch 2	15.8.2005
s 62(2)	inserted by 41/2005 s 26	15.8.2005
s 63
s 63(1)	amended by 50/1994 s 19(a)	1.7.1994
s 63(3)	deleted by 50/1994 s 19(b)	1.7.1994
s 63(4)	amended by 50/1994 s 19(c)	1.7.1994
s 63(5)—(7)	amended by 41/2005 Sch 2	15.8.2005
s 63A	inserted by 67/1990 s 28	1.1.1991
amended by 50/1994 s 20	1.7.1994
s 64
s 64(1)	amended by 46/1993 s 12	3.4.1995
amended by 41/2005 Sch 2	15.8.2005
s 64(2)	amended by 41/2005 Sch 2	15.8.2005
s 64(3)	inserted by 67/1990 s 29	1.1.1991
s 65	amended by 1/1993 s 58	1.7.1993
substituted by 50/1994 s 21	1.7.1994
deleted by 41/2005 s 27	15.8.2005
s 66
s 66(1)	amended by 1/1993 s 59(a)	1.7.1993
amended by 46/1993 s 13(a), (b)	3.4.1995
amended by 41/2005 Sch 2	15.8.2005
s 66(2)	amended by 46/1993 s 13(c), (d)	3.4.1995
amended by 86/2000 s 7 (Sch)	1.1.2001
amended by 41/2005 Sch 2	15.8.2005
s 66(3)	amended by 1/1993 s 59(b)	1.7.1993
amended by 50/1994 s 22	1.7.1994
amended by 41/2005 Sch 2	15.8.2005
s 66(4)	amended by 67/1990 s 30	1.1.1991
amended by 1/1993 s 59(c)	1.7.1993
s 66(6)	amended by 41/2005 Sch 2	15.8.2005
s 67
s 67(1)	amended by 50/1994 s 23(a)—(c)	1.7.1994
amended by 46/1993 s 14(a)—(c)	3.4.1995
amended by 41/2005 Sch 2	15.8.2005
s 67(2)	substituted by 46/1993 s 14(d)	3.4.1995
s 67(3)	substituted by 50/1994 s 23(d)	1.7.1994
s 67(4)	amended by 50/1994 s 23(e)	1.7.1994
s 67(5)	amended by 50/1994 s 23(f)	1.7.1994
s 67A	inserted by 24/1989 s 9	1.7.1990
s 67A(3)	amended by 50/1994 s 24(a)	1.7.1994
amended by 41/2005 s 28(1)	15.8.2005
s 67A(5)	substituted by 51/1993 s 3	1.7.1993
amended by 50/1994 s 24(b)	1.7.1994
amended by 41/2005 s 28(2)	15.8.2005
s 67A(6)	substituted by 51/1993 s 3	1.7.1993
amended by 50/1994 s 24(c)	1.7.1994
amended by 41/2005 s 28(3)	15.8.2005
amended by 48/2011 Sch 2 cl 1(1), (2)	1.7.2012
(c) deleted by 48/2011 Sch 2 cl 1(3)	1.7.2012
s 67A(7)	substituted by 51/1993 s 3	1.7.1993
substituted by 50/1994 s 24(d)	1.7.1994
amended by 41/2005 s 28(4)	15.8.2005
s 67A(8)	substituted by 51/1993 s 3	1.7.1993
substituted by 50/1994 s 24(d)	1.7.1994
amended by 41/2005 s 28(5)	15.8.2005
s 67A(8a)	inserted by 51/1993 s 3	1.7.1993
deleted by 50/1994 s 24(d)	1.7.1994
s 67A(8b)	inserted by 51/1993 s 3	1.7.1993
s 67A(8c)	inserted by 51/1993 s 3	1.7.1993
amended by 50/1994 s 24(e)	1.7.1994
amended by 41/2005 s 28(6)	15.8.2005
s 67A(8d)	inserted by 51/1993 s 3	1.7.1993
amended by 50/1994 s 24(f)	1.7.1994
amended by 41/2005 s 28(7)	15.8.2005
amended by 48/2011 Sch 2 cl 1(4)	1.7.2012
s 67A(8e)	inserted by 51/1993 s 3	1.7.1993
deleted by 50/1994 s 24(g)	1.7.1994
s 67A(9)	substituted by 50/1994 s 24(h)	1.7.1994
amended by 41/2005 s 28(8), (9)	15.8.2005
s 67A(10)	amended by 86/2000 s 7 (Sch)	1.1.2001
s 67A(11)	amended by 1/1993 s 60	1.7.1993
substituted by 50/1994 s 24(i)	1.7.1994
deleted by 41/2005 s 28(10)	15.8.2005
s 67B	inserted by 41/2005 s 29	15.8.2005
s 67B(1)	amended by 48/2011 Sch 2 cl 2(1)	1.7.2012
s 67B(2)	amended by 48/2011 Sch 2 cl 2(2)	1.7.2012
s 67C	inserted by 41/2005 s 29	15.8.2005
s 68	amended by 50/1994 s 25	1.7.1994
amended by 41/2005 Sch 2	15.8.2005
s 69
s 69(3)	amended by 1/1993 s 61(a)	1.7.1993
amended by 41/2005 Sch 2	15.8.2005
s 69(4)	amended by 1/1993 s 61(b)	1.7.1993
s 69(7)	amended by 41/2005 Sch 2	15.8.2005
s 69(8)	amended by 17/2006 s 176	4.9.2006
s 69(8a)	inserted by 24/1989 s 10	22.6.1989
amended by 50/1994 s 26(a)	1.7.1994
amended by 41/2005 s 30(1)	15.8.2005
s 69(8b)	inserted by 24/1989 s 10	22.6.1989
substituted by 50/1994 s 26(b)	1.7.1994
substituted by 41/2005 s 30(2)	15.8.2005
s 69(8c)	inserted by 24/1989 s 10	22.6.1989
deleted by 50/1994 s 26(b)	1.7.1994
s 69(9)	amended by 50/1994 s 26(c)	1.7.1994
s 69(10)	amended by 41/2005 Sch 2	15.8.2005
s 69(11)	amended by 1/1993 s 61(c)	1.7.1993
ss 70 and 71	omitted under Legislation Revision and Publication Act 2002	24.11.2003
Sch 1
cll 3A and 3B	inserted by 24/1989 s 11	1.7.1990
cl 4	amended by 1/1993 s 62	1.7.1993
cl 8	amended by 46/1993 s 15(a)	3.4.1995
cl 21	amended by 46/1993 s 15(b)	3.4.1995
cl 33	inserted by 34/1996 s 4 (Sch cl 26)	3.2.1997
Sch 2	amended by 1/1993 s 63	1.7.1993
amended by 50/1994 s 27	1.7.1994
substituted by 46/1993 s 16	3.4.1995
Sch 3	omitted under Legislation Revision and Publication Act 2002	24.11.2003
inserted by 41/2005 s 31	15.8.2005
cl 2
cl 2(1)	amended by 48/2011 Sch 2 cl 3(1), (2)	1.7.2012

Transitional etc provisions associated with Act or amendments

Occupational Health, Safety and Welfare Act Amendment Act 1989

12—Transitional provisions

(1)The offices of all members of the Commission become vacant on the commencement of this Act.

(2)The person who was, immediately before the commencement of this Act, the full-time member of the Commission is entitled to be appointed to the office of Chief Executive Officer of the Commission—

(a)for a term equal to the balance of the term for which he or she was appointed as full-time member of the Commission; and

(b)on terms and conditions equivalent to the terms and conditions of employment that applied to him or her as full-time member of the Commission.

(3)The person who was, immediately before the commencement of this Act, the deputy to the full-time member of the Commission is entitled to be appointed to the office of Deputy Chief Executive Officer of the Commission (on the same terms and conditions of employment that applied to him or her as deputy to the full-time member of the Commission).

Statutes Amendment (Chief Inspector) Act 1993

65—Existing appointments

This Act does not affect the appointment of any person as an inspector before the commencement of this Act (other than as a Chief Inspector).

Occupational Health, Safety and Welfare (Plant) Amendment Act 1993

19—Transitional provisions

The Governor may, by regulation, make such transitional provisions as appear to the Governor to be necessary or expedient on account of the enactment of this Act.

Occupational Health, Safety and Welfare (Administration) Amendment Act 1994

28—Transitional provisions

The Governor may, by regulation, make such saving or transitional provisions as appear to the Governor to be necessary or expedient on account of the enactment of this Act.

Statutes Amendment and Repeal (Common Expiation Scheme) Act 1996

5—Transitional provision

An Act repealed or amended by this Act will continue to apply (as in force immediately prior to the repeal or amendment coming into operation) to an expiation notice issued under the repealed or amended Act.

Occupational Health, Safety and Welfare (SafeWork SA) Amendment Act 2005, Sch 1

8—Staff

(1)The Minister may, by notice in the Gazette, transfer a person who is a member of the staff of WorkCover immediately before the commencement of this subclause to—

(a)the Department; or

(b)another administrative unit in the Public Service of the State.

(2)The Minister must obtain the concurrence of the board of management of WorkCover before he or she may act under subclause (1).

(3)The conditions of employment that will apply to a person on his or her transfer under subclause (1) will be determined by the Commissioner for Public Employment after consultation with—

(a)the Chief Executive of the Department and, if a person is being transferred to another administrative unit under subclause (1)(b), the Chief Executive of that other administrative unit; and

(b)any registered association that represents the interests of any person who is being transferred; and

(c)WorkCover.

(4)Despite subclause (3), a transfer under subclause (1) will occur without prejudice to any continuity of service of a person and without affecting any accrued right to leave.

9—Property

(1)The Governor may, by proclamation made on the recommendation of the Minister, vest an asset, right or liability of WorkCover in—

(a)the Crown; or

(b)the Minister.

(2)The Governor may, by proclamation made on the recommendation of the Minister, transfer a monetary amount from WorkCover to the Department on account of the arrangements or functions that are to be established or assumed by the Advisory Committee or the Department after the enactment of this Act.

(3)The Minister must obtain the concurrence of the board of management of WorkCover before he or she may make a recommendation under subclause (1) or (2).

(4)Any money transferred from WorkCover under subclause (2) will be paid from the Compensation Fund (without further authorisation under the Workers Rehabilitation and Compensation Act 1986).

10—Review of conciliation and mediation scheme

(1)The Minister to whom the administration of the principal Act is committed must cause a review to be undertaken in relation to the operation of section 55A of the principal Act after that section has been in operation for a period of 12 months.

(2)The results of the review must be embodied in a written report and incorporated into the Department's annual report for the financial year during which the review is completed.

11—Training

(1)The period within which a person must attend a course of training under section 61(2a) of the principal Act (as enacted by this Act) if the person is appointed as a responsible officer within the first 12 months after the commencement of this clause will be extended from 3 months to 12 months after his or her appointment.

(2)A person who is a responsible officer under section 61 of the principal Act on the commencement of this clause must attend a course of training recognised or approved by the Advisory Committee for the purposes of subsection (2a) of that section within 3 years after the commencement of this clause.

(3)However—

(a)the requirement for a person to attend a course of training under subclause (2) lapses if the person ceases to be a responsible officer for the relevant body corporate (but this paragraph does not derogate from the operation of section 61(2a) of the principal Act); and

(b)a person is not required to attend a course of training under subclause (2) if he or she has, before the commencement of this clause, attended a course of training recognised by the Advisory Committee for the purposes of this provision.

(4)A person who fails to comply with subclause (2) will be guilty of an offence and liable to the same penalty as the penalty that applies to a failure to comply with section 61(2a) of the principal Act.

12—Committee membership

The persons holding office as members of the Mining and Quarrying Occupational Health and Safety Committee immediately before the commencement of this clause may continue to hold office after the commencement of this clause.

13—Regulations

The Governor may, by regulation, make other provisions of a saving or transitional nature consequent on the enactment of this Act.

14—Interpretation

In this Part—

Advisory Committee means the SafeWork SA Advisory Committee;

Compensation Fund means the Compensation Fund under Part 5 of the Workers Rehabilitation and Compensation Act 1986;

Department means the administrative unit of the Minister to whom the administration of the principal Act is committed;

principal Act means the Occupational Health, Safety and Welfare Act 1986;

registered association has the same meaning as in the Occupational Health, Safety and Welfare Act 1986;

WorkCover means the WorkCover Corporation of South Australia.

Historical versions

Reprint No 1—4.2.1991

Reprint No 2—1.7.1993

Reprint No 3—1.7.1994

Reprint No 4—3.4.1995

Reprint No 5—3.2.1997

Reprint No 6—1.1.2001

Reprint No 7—4.5.2002

Reprint No 8—24.11.2003

15.8.2005

1.1.2006 (electronic only)

4.9.2006

1.1.2008

1.1.2010

1.2.2010